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Am. Sub. S. B. No. 117 As Concurred by the Senate
As Concurred by the Senate
126th General Assembly | Regular Session | 2005-2006 |
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Senators (Sponsor Removed by Request), Schuler, Amstutz, Clancy, Goodman, Jordan, Mumper, Niehaus, Schuring, Wachtmann, Harris
Representatives Aslanides, Blasdel, Blessing, Bubp, Buehrer, Coley, Collier, Flowers, Gibbs, Hood, Raussen, Schaffer, Schneider, Seitz, Setzer, White, D., Wolpert
A BILL
To amend sections 1345.09, 2307.60, 2307.71, 2307.73, and 2317.02 of the Revised Code to specify the nature of damages that may be recovered in certain actions based on unfair or deceptive sales practices, to provide that a final judgment, entered after a trial or upon a plea of guilty in certain criminal actions generally precludes the offender from denying any fact essential to sustain that judgment when entered in evidence in a civil proceeding that is based on the criminal act, to make an exception to the attorney-client privilege for communications related to an attorney's aiding or furthering an ongoing or future commission of bad faith by a client that is an insurance company, to prohibit the use of enterprise theories of liability against manufacturers in product liability claims, and to include public nuisance claims under the definition of product liability claims. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1345.09, 2307.60, 2307.71, 2307.73, and 2317.02 of the Revised Code be amended to read as follows:
Sec. 1345.09. For a violation of Chapter 1345. of the
Revised Code, a consumer has a cause of action and is entitled to
relief as follows: (A) Where the violation was an act prohibited by section
1345.02, 1345.03, or 1345.031 of the Revised Code, the consumer may, in an
individual action, rescind the transaction or recover the
consumer's actual economic
damages plus an amount not exceeding five thousand dollars in noneconomic damages. (B) Where the violation was an act or practice declared to
be deceptive or unconscionable by rule adopted under division (B)(2) of section 1345.05 of the Revised Code before the consumer
transaction on which the action is based, or an act or practice
determined by a court of this state to violate section 1345.02,
1345.03, or 1345.031 of the Revised Code and committed after the decision
containing the determination has been made available for public
inspection under division (A)(3) of section 1345.05 of the
Revised Code, the consumer may rescind the transaction or
recover, but not in a class action, three times the amount of
the consumer's
actual economic damages or two hundred dollars, whichever is greater, plus an amount not exceeding five thousand dollars in noneconomic damages or
recover damages or other appropriate relief in a class action
under Civil Rule 23, as amended. (C)(1) Except as otherwise provided in division (C)(2) of this section, in any action for rescission, revocation of the
consumer transaction must occur within a reasonable time after
the consumer discovers or should have discovered the ground for
it and before any substantial change in condition of the subject
of the consumer transaction. (2) If a consumer transaction between a loan officer, mortgage broker, or nonbank mortgage lender and a customer is in connection with a residential mortgage, revocation of the consumer transaction in an action for rescission is only available to a consumer in an individual action, and shall occur for no reason other than one or more of the reasons set forth in the "Truth in Lending Act," 82 Stat. 146 (1968), 15 U.S.C. 1635, not later than the time limit within which the right of rescission under section 125(f) of the "Truth in Lending Act" expires.
(D) Any consumer may seek a declaratory judgment, an
injunction, or other appropriate relief against an act or
practice that violates this chapter. (E) When a consumer commences an individual action for a
declaratory judgment or an injunction or a class action under
this section, the clerk of court shall immediately mail a copy of
the complaint to the attorney general. Upon timely application,
the attorney general may be permitted to intervene in any private
action or appeal pending under this section. When a judgment
under this section becomes final, the clerk of court shall mail a
copy of the judgment including supporting opinions to the
attorney general for inclusion in the public file maintained
under division (A)(3) of section 1345.05 of the Revised Code. (F) The court may award to the prevailing party a
reasonable attorney's fee limited to the work reasonably
performed, if either of the following apply: (1) The consumer complaining of the act or practice that
violated this chapter has brought or maintained an action that is
groundless, and the consumer filed or maintained the action in
bad faith; (2) The supplier has knowingly committed an act or
practice that violates this chapter. (G) As used in this section, "actual economic damages" means damages for direct, incidental, or consequential pecuniary losses resulting from a violation of Chapter 1345. of the Revised Code and does not include damages for noneconomic loss as defined in section 2315.18 of the Revised Code. (H) Nothing in this section shall preclude a consumer from also proceeding with a cause of action under any other theory of law.
Sec. 2307.60. (A)(1)
Anyone injured in person or property by
a
criminal act has, and
may recover full damages in, a civil
action
unless specifically excepted by
law, may recover the costs
of
maintaining the civil action and attorney's fees
if authorized
by
any provision of the Rules of Civil Procedure or another
section
of the Revised Code or under the common law of this state,
and may
recover
punitive or exemplary damages if authorized by
section
2315.21 or another
section of the Revised Code.
No record
of a
conviction, unless
obtained by confession in open court,
shall
be
used as evidence in a civil
action brought pursuant to
division
(A) of
this
section.
(2) A final judgment of a trial court that has not been reversed on appeal or otherwise set aside, nullified, or vacated, entered after a trial or upon a plea of guilty, but not upon a plea of no contest or the equivalent plea from another jurisdiction, that adjudges an offender guilty of an offense of violence punishable by death or imprisonment in excess of one year, when entered as evidence in any subsequent civil proceeding based on the criminal act, shall preclude the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding or other extraordinary circumstances justify affording the offender an opportunity to relitigate the issue. The offender may introduce evidence of the offender's pending appeal of the final judgment of the trial court, if applicable, and the court may consider that evidence in determining the liability of the offender. (B)(1) As used in division (B) of this section, "tort action"
means a civil action for damages for
injury, death, or loss to
person or property other than a civil
action for damages for a
breach of contract or another agreement
between persons. "Tort
action" includes, but is not limited to, a
product liability
claim, as defined in section 2307.71 of the Revised Code, and an asbestos claim, as defined in section 2307.91 of the Revised Code, an action for wrongful death under
Chapter 2125. of the
Revised Code, and an action based on
derivative claims for relief. (2) Recovery on a claim for relief in a tort action is
barred
to any person or the person's legal representative if the
person
has been convicted of or has pleaded guilty to a felony, or
to a
misdemeanor that is an offense of violence, arising out of
criminal conduct that was a proximate cause of the injury or loss
for which relief is claimed in the action. (3) Division (B) of this section does not apply to civil
claims based upon alleged intentionally tortious conduct, alleged
violations of the United States Constitution, or alleged
violations of statutes of the United States pertaining to civil
rights.
Sec. 2307.71. (A) As used in sections 2307.71 to 2307.80
of
the
Revised Code: (1)
"Claimant" means either of the following: (a) A person who asserts a product liability claim or on
whose behalf such a claim is asserted; (b) If a product liability claim is asserted on behalf of
the surviving spouse, children, parents, or other next of kin of
a
decedent or on behalf of the estate of a decedent, whether as a
claim in a wrongful death action
under
Chapter 2125. of the
Revised Code or as a survivorship claim,
whichever of the
following is appropriate: (i) The decedent, if the reference is to the person who
allegedly sustained harm or economic loss for which, or in
connection with which, compensatory damages or punitive or
exemplary damages are sought to be recovered; (ii) The personal representative of the decedent or the
estate of the decedent, if the reference is to the person who is
asserting or has asserted the product liability claim. (2)
"Economic loss" means direct, incidental, or
consequential pecuniary loss, including, but not limited to,
damage to the product in question, and nonphysical
damage
to
property other than that product. Harm is not
"economic loss." (3)
"Environment" means only navigable waters, surface water,
ground water, drinking water supplies, land surface, subsurface
strata, and air. (4)
"Ethical drug" means a prescription drug that is
prescribed or dispensed by a physician or any other person who is
legally authorized to prescribe or dispense a prescription drug. (5)
"Ethical medical device" means a medical device that
is
prescribed, dispensed, or implanted by a physician or any
other
person who is legally authorized to prescribe, dispense, or
implant a medical device and that is regulated under the
"Federal
Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. 301-392,
as amended. (6)
"Foreseeable risk" means a risk of harm that satisfies
both of the following: (a) It is associated with an intended or reasonably
foreseeable use, modification, or alteration of a product in
question. (b) It is a risk that the manufacturer in question should
recognize while exercising both of the following: (i) The attention, perception, memory, knowledge, and
intelligence that a reasonable manufacturer should possess; (ii) Any superior attention, perception, memory, knowledge,
or intelligence that the manufacturer in question possesses. (7)
"Harm" means death, physical injury to person, serious
emotional distress, or physical damage to property other than the
product in question. Economic loss is not
"harm." (8)
"Hazardous or toxic substances" include, but are not
limited to, hazardous waste as defined in section 3734.01 of the
Revised Code, hazardous waste as specified in the rules of the
director of environmental protection pursuant to division (A) of
section 3734.12 of the Revised Code, hazardous substances as
defined in section 3716.01 of the Revised Code, and hazardous
substances, pollutants, and contaminants as defined in or by
regulations adopted pursuant to the
"Comprehensive Environmental
Response, Compensation, and Liability Act of 1980," 94 Stat.
2767,
42 U.S.C. 9601, as amended. (9)
"Manufacturer" means a person engaged in a business to
design, formulate, produce, create, make, construct, assemble, or
rebuild a product or a component of a product. (10)
"Person" has the same meaning as in division (C) of
section 1.59 of the Revised Code and also includes governmental
entities. (11)
"Physician" means a person who is licensed to practice
medicine and surgery or osteopathic medicine and surgery by the
state medical board. (12)(a)
"Product" means, subject to division (A)(12)(b) of this
section, any object, substance, mixture, or raw material that
constitutes tangible personal property and that satisfies all of
the following: (i) It is capable of delivery itself, or as an assembled
whole in a mixed or combined state, or as a component or
ingredient. (ii) It is produced, manufactured, or supplied for
introduction into trade or commerce. (iii) It is intended for sale or lease to persons for
commercial or personal use. (b)
"Product" does not include human tissue, blood, or
organs. (13)
"Product liability claim" means a claim or cause of action that is
asserted
in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory
damages
from a manufacturer or supplier for death, physical
injury to
person, emotional distress, or physical damage to
property other
than the product in question, that
allegedly arose
from
any of the
following: (a) The design, formulation, production, construction,
creation, assembly, rebuilding, testing, or marketing of that
product; (b) Any warning or instruction, or lack of warning or
instruction, associated with that product; (c) Any failure of that product to conform to any relevant
representation or warranty.
"Product liability claim" also includes any public nuisance claim or cause of action at common law in which it is alleged that the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling, or sale of a product unreasonably interferes with a right common to the general public. (14)
"Representation" means an express representation of a
material fact concerning the character, quality, or safety of a
product. (15)(a)
"Supplier" means, subject to division
(A)(15)(b) of
this
section, either of the following: (i) A person that, in the course of a business conducted
for
the purpose, sells, distributes, leases, prepares, blends,
packages, labels, or otherwise participates in the placing of a
product in the stream of commerce; (ii) A person that, in the course of a business conducted
for
the purpose, installs, repairs, or maintains any aspect of a
product that allegedly causes harm. (b)
"Supplier" does not include any of the following: (ii) A seller of real property; (iii) A provider of professional services who, incidental to
a
professional transaction the essence of which is the furnishing
of
judgment, skill, or services, sells or uses a product; (iv) Any person who acts only in a financial capacity with
respect to the sale of a product, or who leases a product under a
lease arrangement in which the selection, possession,
maintenance,
and operation of the product are controlled by a
person other than
the lessor. (16)
"Unavoidably unsafe" means that, in the state of
technical, scientific, and medical knowledge at the time a
product
in question left the control of its manufacturer, an
aspect of
that product was incapable of being made safe.
(B) Sections 2307.71 to 2307.80 of the Revised Code are intended to abrogate all common law product liability claims or causes of action. Sec. 2307.73. (A) A manufacturer is subject to liability
for compensatory damages based on a product liability claim only
if the claimant establishes, by a preponderance of the evidence,
both all of the following: (1) Subject to division (B) of this section, the manufacturer's product
in
question was defective in manufacture or construction as
described
in section 2307.74 of the Revised Code, was defective
in design or
formulation as described in section 2307.75 of the
Revised Code,
was defective due to inadequate warning or
instruction as
described in section 2307.76 of the Revised Code,
or was defective
because it did not conform to a representation
made by its
manufacturer as described in section 2307.77 of
the
Revised Code; (2) A
defective aspect of the manufacturer's product in question as
described in division (A)(1) of this section was a proximate
cause
of harm for which the claimant seeks to recover
compensatory
damages; (3) The manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product that was the cause of harm for which the claimant seeks to recover compensatory damages. (B) If
a claimant is unable because a the manufacturer's product in question
was destroyed to establish by direct evidence that the manufacturer's product in
question was defective or if a claimant otherwise is unable to
establish by direct evidence that a the manufacturer's product in question was
defective, then, consistent with the Rules of Evidence, it shall
be sufficient for the claimant to present circumstantial or other
competent evidence that
establishes, by a preponderance of the
evidence, that the manufacturer's product
in question was defective in any one
of
the four respects
specified in division (A)(1) of this
section.
(C) Proof that a manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the type of product in question is not proof that the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual defective product in the product liability claim. A manufacturer may not be held liable in a product liability action based on market share, enterprise, or industrywide liability. Sec. 2317.02. The following persons shall not testify in
certain respects: (A)(1) An attorney, concerning a communication made to the
attorney by a client in that relation or the
attorney's advice to
a client, except
that the attorney may testify by express consent
of the client
or, if the client is deceased, by the express
consent of the
surviving spouse or the executor or administrator
of the estate
of the deceased client. However, if the
client voluntarily
testifies or is deemed by section 2151.421 of
the Revised Code to
have waived any testimonial privilege under
this division, the
attorney may be compelled to testify on the
same subject. The testimonial privilege established under this division does not apply concerning a communication between a client who has since died and the deceased client's attorney if the communication is relevant to a dispute between parties who claim through that deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction, and the dispute addresses the competency of the deceased client when the deceased client executed a document that is the basis of the dispute or whether the deceased client was a victim of fraud, undue influence, or duress when the deceased client executed a document that is the basis of the dispute.
(2) An attorney, concerning a communication made to the attorney by a client in that relationship or the attorney's advice to a client, except that if the client is an insurance company, the attorney may be compelled to testify, subject to an in camera inspection by a court, about communications made by the client to the attorney or by the attorney to the client that are related to the attorney's aiding or furthering an ongoing or future commission of bad faith by the client, if the party seeking disclosure of the communications has made a prima facie showing of bad faith, fraud, or criminal misconduct by the client. (B)(1) A physician or a dentist concerning a communication
made to the physician or dentist by a patient in that relation or
the
physician's or dentist's advice to a
patient, except as
otherwise provided in this division, division (B)(2), and
division
(B)(3) of this section, and except that, if the patient
is deemed
by section 2151.421 of the Revised Code to have waived
any
testimonial privilege under this division, the physician may
be
compelled to testify on the same subject. The testimonial privilege established under this division
does not
apply, and a physician or dentist may testify or may be
compelled
to testify, in any of the following circumstances: (a) In any civil action, in accordance with the discovery
provisions of the Rules of Civil Procedure in connection with a
civil action, or in connection with a claim under Chapter 4123.
of
the Revised Code, under any of the following circumstances: (i) If the patient or the guardian or other legal
representative of the patient gives express consent; (ii) If the patient is deceased, the spouse of the patient
or the executor or administrator of the patient's estate
gives
express consent; (iii) If a medical claim, dental claim, chiropractic
claim,
or optometric claim, as defined in section 2305.113 of the
Revised
Code, an action for wrongful death, any other type of
civil
action, or a claim under Chapter 4123. of the Revised Code
is
filed by the patient, the personal representative of the
estate of
the patient if deceased, or the patient's guardian
or other legal
representative. (b) In any civil action concerning court-ordered treatment
or services
received by a patient, if the court-ordered treatment
or services were ordered
as part of a case plan journalized under
section 2151.412 of the Revised Code or the
court-ordered
treatment or services are necessary or relevant to dependency,
neglect, or abuse or temporary or permanent custody proceedings
under
Chapter 2151. of the Revised Code. (c) In any criminal action concerning any test or the
results of any test that determines the presence or concentration
of alcohol,
a drug of abuse, a combination of them, a controlled substance, or a metabolite of a controlled substance in the patient's whole blood, blood serum or plasma, breath, urine, or other bodily substance at any
time
relevant to the criminal offense in question. (d) In any criminal action against a physician
or dentist.
In such an action, the testimonial privilege
established under
this division does not prohibit the admission
into evidence, in
accordance with the
Rules of
Evidence, of a patient's
medical or
dental records or other communications between a
patient and the
physician or dentist that are related to the
action and obtained
by subpoena, search warrant, or other lawful
means. A court that
permits or compels a physician or dentist
to testify in such an
action or permits the introduction into
evidence of patient
records or other communications in such an
action shall require
that appropriate measures be taken to
ensure that the
confidentiality of any patient named or
otherwise identified in
the records is maintained. Measures to
ensure confidentiality
that may be taken by the court include
sealing its records or
deleting specific information from its
records. (e)(i) If the communication was between a patient who has since died and the deceased patient's physician or dentist, the communication is relevant to a dispute between parties who claim through that deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction, and the dispute addresses the competency of the deceased patient when the deceased patient executed a document that is the basis of the dispute or whether the deceased patient was a victim of fraud, undue influence, or duress when the deceased patient executed a document that is the basis of the dispute. (ii) If neither the spouse of a patient nor the executor or administrator of that patient's estate gives consent under division (B)(1)(a)(ii) of this section, testimony or the disclosure of the patient's medical records by a physician, dentist, or other health care provider under division (B)(1)(e)(i) of this section is a permitted use or disclosure of protected health information, as defined in 45 C.F.R. 160.103, and an authorization or opportunity to be heard shall not be required. (iii) Division (B)(1)(e)(i) of this section does not require a mental health professional to disclose psychotherapy notes, as defined in 45 C.F.R. 164.501. (iv) An interested person who objects to testimony or disclosure under division (B)(1)(e)(i) of this section may seek a protective order pursuant to Civil Rule 26. (v) A person to whom protected health information is disclosed under division (B)(1)(e)(i) of this section shall not use or disclose the protected health information for any purpose other than the litigation or proceeding for which the information was requested and shall return the protected health information to the covered entity or destroy the protected health information, including all copies made, at the conclusion of the litigation or proceeding. (2)(a) If any law enforcement officer submits a written
statement to a health
care provider that states that an official
criminal investigation has begun
regarding a specified person or
that a criminal action or proceeding has been
commenced against a
specified person, that requests the provider to supply to
the
officer copies of any records the provider possesses that pertain
to any
test or the results of any test administered to the
specified person to
determine the presence or concentration of
alcohol, a drug of abuse, a combination of them, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at any time
relevant to the
criminal offense in question, and that conforms to section
2317.022 of the Revised Code, the provider, except to the extent
specifically
prohibited by any law of this state or of the United
States, shall supply to
the officer a copy of any of the requested
records the provider possesses. If
the health care provider does
not possess any of the requested records, the
provider shall give
the officer a written statement that indicates that the
provider
does not possess any of the requested records. (b) If a health care provider possesses any records of the
type described in
division (B)(2)(a) of this section regarding the
person in question at any
time relevant to the criminal offense in
question, in lieu of personally
testifying as to the results of
the test in question, the custodian of the
records may submit a
certified copy of the records, and, upon its submission,
the
certified copy is qualified as authentic evidence and may be
admitted as
evidence in accordance with the Rules of Evidence.
Division (A) of section
2317.422 of the Revised Code does not
apply to any certified copy of records
submitted in accordance
with this division. Nothing in this division shall be
construed
to limit the right of any party to call as a witness the person
who
administered the test to which the records pertain, the person
under whose
supervision the test was administered, the custodian
of the records, the
person who made the records, or the person
under whose supervision the records
were made. (3)(a) If the testimonial privilege described in division
(B)(1) of this section does not apply as provided in division
(B)(1)(a)(iii) of this section, a physician or dentist may be
compelled to testify or to submit to discovery under the Rules of
Civil Procedure only as to a communication made to the physician
or dentist by the patient in question in that relation, or the
physician's or
dentist's advice to the
patient in question, that
related causally or historically to
physical or mental injuries
that are relevant to issues in the
medical claim, dental claim,
chiropractic claim, or optometric
claim, action for wrongful
death, other civil action, or claim
under Chapter 4123. of the
Revised Code. (b) If the testimonial privilege described in division
(B)(1) of this section
does not apply to a physician or dentist as
provided in division
(B)(1)(c) of
this section, the physician or
dentist, in lieu of personally testifying as to
the results of the
test in question, may submit a certified copy of those
results,
and, upon its submission, the certified copy is qualified as
authentic
evidence and may be admitted as evidence in accordance
with the Rules of
Evidence. Division (A) of section 2317.422 of
the Revised Code does not apply
to any certified copy of results
submitted in accordance with this division.
Nothing in this
division shall be construed to limit the right of any party to
call as a witness the person who administered the test in
question, the person
under whose supervision the test was
administered, the custodian of the
results
of the test, the person
who compiled the results, or the person under whose
supervision
the results were compiled. (4) The testimonial privilege
described in division (B)(1)
of this section is not waived when a
communication is made by a
physician to a pharmacist or when there
is communication between a
patient and a pharmacist in furtherance
of the physician-patient
relation. (5)(a) As used in divisions (B)(1) to (4) of this
section,
"communication" means acquiring, recording, or transmitting any
information, in any manner, concerning any facts, opinions, or
statements necessary to enable a physician or dentist to
diagnose,
treat, prescribe, or act for a patient. A
"communication" may
include, but is not limited to, any medical
or dental, office, or
hospital communication such as a record,
chart, letter,
memorandum, laboratory test and results, x-ray,
photograph,
financial statement, diagnosis, or prognosis. (b) As used in division (B)(2) of this section,
"health care
provider"
means a hospital, ambulatory care facility, long-term
care facility, pharmacy, emergency facility, or health care
practitioner. (c) As used in division (B)(5)(b) of this section: (i)
"Ambulatory care facility" means a facility that
provides
medical, diagnostic, or surgical treatment to patients
who do not
require hospitalization, including a dialysis center,
ambulatory
surgical facility, cardiac catheterization facility,
diagnostic
imaging center, extracorporeal shock wave lithotripsy
center, home
health agency, inpatient hospice, birthing center,
radiation
therapy center, emergency facility, and an urgent care
center.
"Ambulatory health care facility" does not include the
private
office of a physician or dentist, whether the office is
for an
individual or group practice. (ii)
"Emergency facility" means a hospital emergency
department or any other facility that provides emergency medical
services.
(iii)
"Health care practitioner" has the same meaning as in
section 4769.01 of the Revised Code. (iv)
"Hospital" has the same meaning as in section 3727.01
of
the Revised Code. (v)
"Long-term care facility" means a nursing home,
residential care facility, or home
for the aging,
as those terms
are defined in section 3721.01 of the Revised Code; an adult care
facility, as defined in section 3722.01
of the Revised Code; a
nursing facility or intermediate care facility for the mentally
retarded, as those terms are defined in section 5111.20 of the
Revised Code; a facility or portion of a facility certified as a
skilled nursing facility under Title XVIII of the
"Social
Security
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.
(vi)
"Pharmacy" has the same meaning as in section 4729.01
of
the Revised Code.
(d) As used in divisions (B)(1) and (B)(2) of this section, "drug of abuse" has the same meaning as in section 4506.01 of the Revised Code. (6) Divisions (B)(1), (2), (3), (4),
and (5) of this section
apply
to doctors of medicine, doctors of osteopathic medicine,
doctors
of podiatry, and dentists. (7) Nothing in divisions (B)(1) to (6)
of this section
affects, or shall be construed as affecting, the immunity from
civil liability conferred by section 307.628 of the Revised Code or the immunity from civil liability conferred by section 2305.33 of the
Revised Code
upon physicians who report an employee's use of a
drug of abuse,
or a condition of an employee other than one
involving the use of
a drug of abuse, to the employer of the
employee in accordance
with division (B) of that section. As used
in division
(B)(7) of this section,
"employee,"
"employer," and
"physician" have the same meanings as
in section 2305.33 of the
Revised Code. (C)(1) A cleric, when the cleric remains accountable to
the authority
of that cleric's church, denomination, or sect, concerning a
confession
made, or any information confidentially communicated,
to the
cleric for
a
religious counseling purpose in the
cleric's professional character. The cleric
may testify
by
express consent of the person making the communication, except
when the disclosure of the information is in violation of a sacred
trust and except that, if the person voluntarily testifies or is deemed by division (A)(4)(c) of section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the cleric may be compelled to testify on the same subject except when disclosure of the information is in violation of a sacred trust. (2) As used in division (C) of this section:
(a) "Cleric" means a member of the clergy, rabbi, priest, Christian science Science practitioner, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination, or sect.
(b) "Sacred trust" means a confession or confidential communication made to a cleric in the cleric's ecclesiastical capacity in the course of discipline enjoined by the church to which the cleric belongs, including, but not limited to, the Catholic Church, if both of the following apply:
(i) The confession or confidential communication was made directly to the cleric.
(ii) The confession or confidential communication was made in the manner and context that places the cleric specifically and strictly under a level of confidentiality that is considered inviolate by canon law or church doctrine. (D) Husband or wife, concerning any communication made by
one to the other, or an act done by either in the presence of the
other, during coverture, unless the communication was made, or
act
done, in the known presence or hearing of a third person
competent
to be a witness; and such rule is the same if the
marital relation
has ceased to exist; (E) A person who assigns a claim or interest, concerning
any
matter in respect to which the person would not, if a
party, be
permitted to testify; (F) A person who, if a party, would be restricted
under
section 2317.03 of the Revised Code, when the
property or thing is
sold or transferred by an executor,
administrator, guardian,
trustee, heir, devisee, or legatee,
shall be restricted in the
same manner in any action or
proceeding concerning the property or
thing. (G)(1) A school guidance counselor who holds a valid
educator license from the state board of education as
provided for
in section 3319.22 of the Revised Code, a person
licensed under
Chapter 4757. of the Revised Code
as a professional clinical
counselor, professional counselor,
social worker, independent
social worker, marriage and family therapist or independent marriage and family therapist, or registered under Chapter 4757. of the Revised
Code as a
social work assistant concerning a confidential
communication received from a
client in that relation or
the
person's advice to a client unless any of
the following applies: (a) The communication or advice indicates clear and
present
danger to the client or other persons. For the purposes
of this
division, cases in which there are indications of present
or past
child abuse or neglect of the client constitute a clear
and
present danger. (b) The client gives express consent to the testimony. (c) If the client is deceased, the surviving spouse or the
executor or administrator of the estate of the deceased client
gives express consent. (d) The client voluntarily testifies, in which case the
school guidance counselor or person licensed or registered under
Chapter 4757. of the Revised Code may
be compelled to testify on
the same subject. (e) The court in camera determines that the information
communicated by the client is not germane to the counselor-client, marriage and family therapist-client,
or social worker-client relationship. (f) A court, in an action brought against a school, its
administration, or any of its personnel by the client, rules
after
an in-camera inspection that the testimony of the school
guidance
counselor is relevant to that action. (g) The testimony is sought in a civil action and concerns
court-ordered treatment or services received by a patient as part
of a case
plan journalized under section 2151.412 of the Revised
Code or the court-ordered treatment or
services are necessary or
relevant to dependency, neglect, or abuse or
temporary or
permanent custody proceedings under
Chapter 2151.
of the
Revised
Code. (2) Nothing in division (G)(1) of this section shall
relieve
a
school guidance counselor or a person licensed or registered
under Chapter
4757. of the Revised Code
from the requirement to
report information concerning
child abuse or neglect under section
2151.421 of the Revised Code. (H) A mediator acting under a mediation order issued under
division (A) of section 3109.052 of the Revised Code or otherwise
issued in any proceeding for divorce, dissolution, legal
separation, annulment, or the allocation of parental rights and
responsibilities for the care of children, in any action or
proceeding, other than a criminal, delinquency, child abuse,
child
neglect, or dependent child action or proceeding, that is
brought
by or against either parent who takes part in mediation
in
accordance with the order and that pertains to the mediation
process, to any information discussed or presented in the
mediation process, to the allocation of parental rights and
responsibilities for the care of the parents' children, or to the
awarding of parenting time rights in relation to their children; (I) A communications assistant, acting within the scope of
the communication assistant's authority, when providing
telecommunications relay service
pursuant to section 4931.35 of
the Revised Code or Title II of
the
"Communications Act of 1934,"
104 Stat. 366 (1990), 47 U.S.C.
225, concerning a communication
made through a telecommunications
relay service.
Nothing in this
section shall limit the obligation of a
communications assistant
to divulge information or testify when mandated by
federal law or
regulation or pursuant to subpoena in a criminal proceeding. Nothing in this section shall limit any immunity or
privilege
granted under federal law or regulation. (J)(1) A chiropractor in a civil proceeding concerning a
communication made to the chiropractor by a patient in that
relation or the
chiropractor's advice to a patient, except as
otherwise provided in this
division. The testimonial privilege
established under this division does not
apply, and a chiropractor
may testify or may be compelled
to testify, in any civil action,
in accordance with the discovery
provisions of the Rules of Civil
Procedure in
connection with a
civil action, or in connection with
a claim under Chapter 4123.
of the Revised Code, under any of the
following
circumstances: (a) If the patient or the guardian or other legal
representative of the patient gives express consent. (b) If the patient is deceased, the spouse of the patient
or
the executor or administrator of the patient's estate
gives
express consent. (c) If a medical claim, dental claim, chiropractic
claim, or
optometric claim, as defined in section 2305.113 of the
Revised
Code, an action for wrongful death, any other type
of
civil
action, or a claim under Chapter 4123. of the Revised
Code
is
filed by the patient, the personal representative of the
estate of
the patient if deceased, or the patient's guardian
or other legal
representative. (2) If the testimonial privilege described in division
(J)(1) of this section does not apply as provided in division
(J)(1)(c) of this section, a chiropractor may be
compelled to
testify or to submit to discovery under the Rules of
Civil
Procedure only as to a communication made to the
chiropractor by
the patient in question in that relation, or the
chiropractor's
advice to the
patient in question, that related causally or
historically to
physical or mental injuries that are relevant to
issues in the
medical claim, dental claim, chiropractic claim, or
optometric
claim, action for wrongful death, other civil action,
or claim
under Chapter 4123. of the Revised Code. (3) The testimonial privilege established under this
division does not
apply, and a chiropractor may testify or be
compelled to testify, in any
criminal action or administrative
proceeding. (4) As used in this division,
"communication" means
acquiring,
recording, or transmitting any information, in any
manner, concerning
any facts, opinions, or statements necessary to
enable a chiropractor to
diagnose, treat, or act for a
patient.
A
communication may
include, but is not limited to, any
chiropractic, office, or
hospital communication such as a record,
chart, letter,
memorandum, laboratory test and results, x-ray,
photograph,
financial statement, diagnosis, or prognosis.
(K)(1) Except as provided under division (K)(2) of this section, a critical incident stress management team member concerning a communication received from an individual who receives crisis response services from the team member, or the team member's advice to the individual, during a debriefing session.
(2) The testimonial privilege established under division (K)(1) of this section does not apply if any of the following are true:
(a) The communication or advice indicates clear and present danger to the individual who receives crisis response services or to other persons. For purposes of this division, cases in which there are indications of present or past child abuse or neglect of the individual constitute a clear and present danger.
(b) The individual who received crisis response services gives express consent to the testimony. (c) If the individual who received crisis response services is deceased, the surviving spouse or the executor or administrator of the estate of the deceased individual gives express consent.
(d) The individual who received crisis response services voluntarily testifies, in which case the team member may be compelled to testify on the same subject.
(e) The court in camera determines that the information communicated by the individual who received crisis response services is not germane to the relationship between the individual and the team member. (f) The communication or advice pertains or is related to any criminal act. (3) As used in division (K) of this section: (a) "Crisis response services" means consultation, risk assessment, referral, and on-site crisis intervention services provided by a critical incident stress management team to individuals affected by crisis or disaster. (b) "Critical incident stress management team member" or "team member" means an individual specially trained to provide crisis response services as a member of an organized community or local crisis response team that holds membership in the Ohio critical incident stress management network. (c) "Debriefing session" means a session at which crisis response services are rendered by a critical incident stress management team member during or after a crisis or disaster. (L)(1) Subject to division (L)(2) of this section and except
as provided in division (L)(3) of this section, an employee
assistance professional, concerning a communication made to the
employee assistance professional by a client in the employee
assistance professional's official capacity as an employee
assistance professional.
(2) Division (L)(1) of this section applies to an employee
assistance professional who meets either or both of the following
requirements:
(a) Is certified by the employee assistance certification
commission to engage in the employee assistance profession;
(b) Has education, training, and experience in all of the
following:
(i) Providing workplace-based services designed to address
employer and employee productivity issues;
(ii) Providing assistance to employees and employees'
dependents in identifying and finding the means to resolve
personal problems that affect the employees or the employees'
performance; (iii) Identifying and resolving productivity problems
associated with an employee's concerns about any of the following
matters: health, marriage, family, finances, substance abuse or
other addiction, workplace, law, and emotional issues; (iv) Selecting and evaluating available community resources;
(v) Making appropriate referrals;
(vi) Local and national employee assistance agreements;
(vii) Client confidentiality.
(3) Division (L)(1) of this section does not apply to any
of the following:
(a) A criminal action or proceeding involving an offense
under sections 2903.01 to 2903.06 of the Revised Code if the
employee assistance professional's disclosure or testimony relates
directly to the facts or immediate circumstances of the offense;
(b) A communication made by a client to an employee
assistance professional that reveals the contemplation or
commission of a crime or serious, harmful act;
(c) A communication that is made by a client who is an
unemancipated minor or an adult adjudicated to be incompetent and
indicates that the client was the victim of a crime or abuse; (d) A civil proceeding to determine an individual's mental
competency or a criminal action in which a plea of not guilty by
reason of insanity is entered;
(e) A civil or criminal malpractice action brought against
the employee assistance professional;
(f) When the employee assistance professional has the
express consent of the client or, if the client is deceased or
disabled, the client's legal representative;
(g) When the testimonial privilege otherwise provided by
division (L)(1) of this section is abrogated under law.
Section 2. That existing sections 1345.09, 2307.60, 2307.71, 2307.73, and 2317.02 of the Revised Code are hereby repealed.
Section 3. The General Assembly declares its intent that the amendments made by this act to sections 2307.71 and 2307.73 of the Revised Code are not intended to be substantive but are intended to clarify the General Assembly's original intent in enacting the Ohio Product Liability Act, sections 2307.71 to 2307.80 of the Revised Code, as initially expressed in Section 3 of Am. Sub. S.B. 80 of the 125th General Assembly, to abrogate all common law product liability causes of action including common law public nuisance causes of action, regardless of how the claim is described, styled, captioned, characterized, or designated, including claims against a manufacturer or supplier for a public nuisance allegedly caused by a manufacturer's or supplier's product.
Section 4. The General Assembly declares its intent that the amendments made by this act to section 2307.73 of the Revised Code are intended to clarify that section 2307.73 of the Revised Code is intended to follow the Ohio Supreme Court's holdings in Sutowski v. Eli Lilly & Co. (1998), 82 Ohio St.3d 347, and in Horton v. Harwick Chemical Corp. (1995), 73 Ohio St. 3d 679, that a plaintiff in a product liability claim must identify the particular manufacturer of the product that allegedly caused the plaintiff's harm in order to maintain the claim. Section 5. Section 1345.09 of the Revised Code, as amended by this act, shall take effect on July 1, 2007, and shall apply to actions commenced on or after that date and, to the extent permitted under the constitutions of this state and of the United States, to cases pending on that date.
Section 6. The General Assembly declares that the attorney-client privilege is a substantial right and that it is the public policy of Ohio that all communications between an attorney and a client in that relation are worthy of the protection of privilege, and further that where it is alleged that the attorney aided or furthered an ongoing or future commission of insurance bad faith by the client, that the party seeking waiver of the privilege must make a prima facie showing that the privilege should be waived and the court should conduct an in camera inspection of disputed communications. The common law established in Boone v. Vanliner Ins. Co. (2001), 91 Ohio St.3d 209, Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, and Peyko v. Frederick (1986), 25 Ohio St.3d 164, is modified accordingly to provide for judicial review regarding the privilege. Section 7. Section 2317.02 of the Revised Code is presented in
this act as a composite of the section as amended by Sub. H.B. 144, Sub. S.B. 8, and Am. Sub. S.B. 17 of
the 126th General Assembly. The General Assembly, applying the
principle stated in division (B) of section 1.52 of the Revised
Code that amendments are to be harmonized if reasonably capable of
simultaneous operation, finds that the composite is the resulting
version of the section in effect prior to the effective date of
the section as presented in this act.
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