Statute of Limitations (OHIO)
Personal Injury - 2 yrs. (from when injury/loss occurs.) [R.C. § 2305.10]
Wrongful Death - 2 yrs. (after death) [R.C. § 2125.02]
Personal Property Damage - 2 yrs. (from when injury/loss occurs.) [R.C. § 2305.10]
Product Liability Actions (involving Personal Injury or Property Damage) - 2 yrs. [R.C. § 2305.10]
Real Property Damage - 4 yrs. [R.C. § 2305.09]
Written Contracts - 8 yrs. [R.C. § 2305.06] (used to be 15 yrs.)
Oral Contracts - 6 yrs. [R.C. § 2305.07]
Contacts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [R.C. § 1302.98]
Statute of Repose (Products) (OHIO)
Products - 10 yrs. (may sue within 2 yrs. if action accrues during 8th or 9th year) [R.C. § 2305.10]
Admissibility of Expert Testimony (OHIO)
Daubert test followed. In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance. Although these factors may aid in determining reliability, the inquiry is flexible. The focus is solely on principles and methodology, not on the conclusions that they generate [Miller v. Bike Ath. Co., 687 N.E.2d 735 (Ohio 1998)].
Causes of Action (OHIO)
Statutory cause of action only, pursuant to the Ohio Product Liability Act (“Act”). All common law causes of action arising after 4/7/2005 are abrogated/preempted by the statute [Miles v. Raymond Corp., 612 F. Supp. 2d 913 (N.D. Ohio 2009)]
A manufacturer is subject to liability based on a product liability claim only if Plaintiff establishes, by a preponderance of the evidence: (1) the product was defective in manufacture or construction, was defective in design or formulation, was defective due to inadequate warning or instruction, or was defective because it did not conform to a representation made by its manufacturer as described; (2) a defective aspect of the product was a proximate cause of harm; and (3) the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product [ORC Ann. 2307.73].
Definition of “Defect” (OHIO)
A product is defective in manufacture or construction if, when it left the control of its manufacturer, it deviated in a material way from the design specifications, formula, or performance standards of the manufacturer, or from otherwise identical units manufactured to the same design specifications, formula, or performance standards. A product may be defective in manufacture or construction even though its manufacturer exercised all possible care in its manufacture or construction [ORC Ann. 2307.74].
A product is defective in design or formulation if, at the time it left the control of its manufacturer, the foreseeable risks associated with its design or formulation exceeded the benefits associated with that design or formulation [ORC Ann. 2307.75].
A product is defective due to inadequate warning or instruction if either of the following applies: (1) it is defective due to inadequate warning or instruction at the time of marketing if the the manufacturer knew (or in the exercise of reasonable care) should have known about a risk that is associated with the product; and (2) he failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk [ORC Ann. 2307.76].
A product may be defective because it did not conform to a representation even though its manufacturer did not act fraudulently, recklessly, or negligently in making the representation [ORC Ann. 2307.77].
Liability of Sellers (OHIO)
A supplier is liable only if Plaintiff establishes, by a preponderance of the evidence, that: (1) the supplier was negligent and that negligence was a proximate cause of harm; or (2) the product did not conform, when it left the control of the supplier, to a representation made by that supplier, and that representation and the failure to conform to it were a proximate cause of harm [ORC Ann. 2307.78].
A supplier is liable as if it he was the manufacturer of that product, if: (1) the manufacturer is not subject to judicial process in this state; (2) Plaintiff will be unable to enforce a judgment against the manufacturer due to manufacturer’s insolvency; (3) the supplier in question owns/owned the manufacturer of that product; (4) the supplier is/was owned by the manufacturer; (5) the supplier created or furnished the design or formulation that was used to make the product; (6) the supplier altered, modified, or failed to maintain the product, and the alteration, modification, or failure to maintain that product rendered it defective; (7) the supplier marketed the product under its own label or trade name; or (8) the supplier failed to respond timely and reasonably to a written request by or on behalf of Plaintiff to disclose the name and address of the manufacturer [ORC Ann. 2307.78].
Comparative Negligence – Ohio follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [R.C. § 2315.33]. Applies to product liability claims [ORC Ann. 2307.711]
Assumption of Risk – Express or implied assumption of risk is a complete defense. However, if implied assumption of risk is asserted against a supplier, then the comparative negligence analysis applies [ORC Ann. 2307.711].
Product Alteration/Modification – Complete defense because, in order to recover, Plaintiff must prove that a defect existed at the time the product left Defendant’s hands, and the defect was the direct and proximate cause of the injuries/loss [Temple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977)]. Any change which increases the likelihood of a malfunction, which is the proximate cause of the harm, and which is independent of the expected and intended use to which the product is put, is a substantial change [Fireman’s Fund Ins. Co. v. Clark Equip, Co., 1986 Ohio App. LEXIS 7926 (Ohio Ct. App. 1986)].
Product Misuse – Complete defense if Plaintiff misused the product in an unforeseeable manner [Bowling v. Heil Co., 511 N.E.2d 373 (Ohio July 15, 1987)]. Manufacturer is liable for reasonably foreseeable uses [ORC Ann. 2307.75].
Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (OHIO)
For ordinary consumer not in privity of contract with product manufacturer against whom recovery is sought, action in negligence may be appropriate remedy; but where buyer and seller are in privity of contract and have negotiated that contract from relatively equal bargaining positions, parties are able to allocate risk of all loss between themselves, so any protection against product’s self-inflicted damage in that context is better viewed as arising under contract and not under law of negligence [Chemtrol Adhesives, Inc. v. American Mfrs. Mut. Ins. Co., 537 N.E.2d 624 (Ohio 1989)].
However, it appears that the “consumer” exception is no longer available. ELD was codified in 2005. The statute explicitly abrogates all common law product liability causes of action and states that economic loss is not “harm” [R.C. § 2307.71].
Because of the statute, one court has held that a consumer buyer of a vehicle who alleged only economic loss could not maintain strict liability claim against the manufacturer [Kuns v. Ford Motor Co., 926 F.Supp.2d 976 (N.D. Ohio 2013)]
Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (OHIO)
If Plaintiff is unable (because the product was destroyed) to establish by direct evidence that the product was defective, then, consistent with the Rules of Evidence, it is sufficient to present circumstantial or other competent evidence that establishes, by a preponderance of the evidence, that the product was defective [ORC Ann. 2307.73].
Design Defects (OHIO)
A product is defective in design or formulation if, at the time it left the control of its manufacturer, the foreseeable risks associated with its design or formulation exceeded the benefits associated with that design or formulation [ORC Ann. 2307.75]
The foreseeable risks associated with the design or formulation is determined by considering factors including, but not limited to, the following: (1) the nature and magnitude of the risks of harm associated with that design or formulation in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product; (2) the likely awareness of product users, whether based on warnings, general knowledge, or otherwise, of those risks of harm; (3) the likelihood that that design or formulation would cause harm in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product; (4) the extent to which that design or formulation conformed to any applicable public or private product standard that was in effect when the product left the control of its manufacturer; (5) the extent to which that design or formulation is more dangerous than a resonably prudent consumer would expect when used in an intended or reasonably foreseeable manner [ORC Ann. 2307.75].
The benefits associated with the design or formulation are determined by considering factors including, but not limited to, the following: (1) the intended or actual utility of the product, including any performance or safety advantages associated with that design or formulation; (2) the technical and economic feasibility, when the product left the control of its manufacturer, of using an alternative design or formulation; (3) the nature and magnitude of any foreseeable risks associated with an alternative design or formulation [ORC Ann. 2307.75].
A product is not defective in design or formulation if, at the time the product left the control of its manufacturer, a practical and technically feasible alternative design or formulation was not available that would have prevented the harm for which the claimant seeks to recover compensatory damages without substantially impairing the usefulness or intended purpose of the product [ORC Ann. 2307.75].
Failure to Warn (OHIO)
A product is defective due to inadequate warning or instruction if it is defective due to inadequate warning or instruction at the time of marketing if, when it left the control of its manufacturer: (a) the manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm; and (2) the manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which Plaintiff seeks to recover [ORC Ann. 2307.76].
A product is not defective due to lack of warning or instruction or inadequate warning or instruction as a result of the failure of its manufacturer to warn or instruct about an open and obvious risk or a risk that is a matter of common knowledge [ORC Ann. 2307.76].
There is a presumption that an adequate warning, if given, will be read and heeded. In such a situation, the presumption works to the benefit of the manufacturer. However, where no warning is given, or where an inadequate warning is given, a rebuttable presumption arises, beneficial to the plaintiff, that the failure to adequately warn was a proximate cause of the plaintiff's harm. This presumption, absent the production of rebutting evidence by the defendant, is sufficient to satisfy the first branch of the plaintiff’s proximate cause burden [Seley v. G. D. Searle & Co., 423 N.E.2d 831 (Ohio 1981)]. NOTE: the presumption is not incorporated in the Act.
Independent Cause of Action for Evidence Spoliation (OHIO)
Torts for intentional spoliation against a first party and third party have been recognized [Smith v. Howard Johnson Co., Inc., 615 N.E.2d 1037 (Ohio 1993)]