House Passes Bill Addressing Supreme Court Holdings on Statutes of Repose and Vicarious Liability
By a vote of 92-0, the House this week passed HB179, a bill that addresses issues stemming from two Ohio Supreme Court decisions dealing with statutes of repose and vicarious liability. Sponsored by Reps. Adam Mathews (R-Lebanon) and Brian Stewart (R-Ashville), HB179 would directly overturn the Ohio Supreme Court’s ruling in Elliot v. Durrani and clarify that statutes of repose are not tolled for: product liability claims against product manufacturers or suppliers; medical, dental, optometric or chiropractic claims; assault or battery actions against mental health professionals; actions arising out of defective and unsafe conditions of an improvement to real property and – importantly – legal malpractice claims.
Elliot v. Durrani is a 2022 case in which the court held that Ohio’s “absconded defendant statue” (ORC 2305.15) in a medical malpractice case applied to the statute of repose and, consequently, that the statute of repose is tolled when a defendant has absconded. Though it was a medical malpractice case, the wording extends to all statutes of repose.
As this bill made its way through the House, we’ve reminded lawmakers of SB13, a legal malpractice statute of repose that began as a proposal from our Senior Lawyers Section and was passed into law by the 134th General Assembly. When our members drafted that language, there was no concern that the court would read a new exception into the statute. In our view, HB179 takes away any ambiguity on this issue and we support the bill’s provisions when it comes to clarifying statutes of repose.
HB179 also addresses liability issues that arose out of the Supreme Court’s holding in Clawson v. Heights Chiropractic Physicians LLC. In that decision, the court ruled that an action for chiropractic malpractice against a chiropractor’s employer was time barred because the statute of limitations had extinguished the chiropractor’s direct liability for the alleged malpractice. Concerns have been raised that this decision could lead to over-naming in lawsuits, so HB179 seeks to provide clarity for litigants when it comes to the parties they file actions against where a vicarious liability relationship exists.
The bill now moves on to the Senate for further consideration and we look forward to preserving the important clarifications that it makes to statutes of repose as it continues on to the next leg of its legislative journey — the Ohio Senate.
Applications To Open Thursday for Rural Practice Incentive Program
As we reported last week, rules implementing HB150 from the 134th General Assembly took effect this week. HB150 was Ohio Bar priority legislation that created the Rural Practice Incentive Program, a loan repayment program for prosecutors, public defenders and appointed counsel who serve in counties where there aren’t enough lawyers to adequately serve the population.
Starting Jan. 18, the Ohio Department of Higher Education will begin accepting applications for the new program, which will offer up to $50,000 in student loan repayment dollars for private practice attorneys who dedicate a significant portion of their practice to appointed counsel work, public defenders or prosecutors in counties that have fewer than one lawyer for every 700 residents (currently 81 counties). Eligible applicants will be students in their final year of law school and attorneys up to eight years in practice. If you meet these criteria, keep an eye on your email for more details and get ready to apply. The application window is short (deadline is March 15) and funds are finite ($1.5 million).
While getting this program in place and funded was an important step forward, our work to address the growing attorney shortage in rural communities will continue to be a focus for the Ohio Bar in 2024. Expect a report and additional recommendations from our Rural Practice Gap Task Force this spring.
House Votes To Override Veto of HB68
Despite Governor DeWine’s attempt to address concerns of some lawmakers with two executive orders (2024-01D and 2024-02D), which collectively ban gender transition surgeries from being performed on minors in doctors’ offices, hospitals and ambulatory surgical facilities, the House on Wednesday voted 65-28 to override HB68.
The bill, sponsored by Rep. Gary Click (R-Vickery), would enact the so-called “Saving Ohio Adolescents From Experimentation (SAFE) Act” regarding gender transition services for minors, and the “Save Women's Sports Act” which would require schools, state institutions of higher education and private colleges to designate separate single-sex teams and sports for each sex.
In his veto message just before the new year, DeWine said that he largely agrees with legislators on the bill, but wants to pursue the goals of the legislation through the administrative rule-making process via the Ohio Department of Health (governing hospitals and ambulatory surgical centers) and the State Medical Board of Ohio (governing doctors’ offices). The Ohio Department of Health has now opened a period of public comment, until Feb. 5, on proposed rules for gender transition quality standards and reporting.
With the House’s vote this week, the Senate, which next meets Jan. 24, now has two veto overrides in its court. Last month, the House voted to override one of Gov. Mike DeWine’s 44 line-item vetoes of HB33, the biennial budget bill. That specific budget provision prohibits local regulations of tobacco and alternative nicotine products.
Judge Blocks Enforcement of Social Media Parental Consent Law
Judge Algenon Marbley of the U.S. District Court for the Southern District of Ohio issued a temporary restraining order on Tuesday, blocking enforcement of a new state law that requires parental consent for those under 16 years of age to create social media accounts.
The Parental Notification by Social Media Operators Act was included in the state biennial budget bill (HB33) with enforcement set to take effect on Jan. 15, 2024. NetChoice, a trade association representing social media companies like Google, Meta, and TikTok, among others, filed the lawsuit on Jan. 5, arguing that the law's requirements violate the First and Fourteenth Amendment rights of the companies. In his order this week, Judge Marbley noted that the law is “troublingly vague.”
A preliminary injunction hearing is now set for Feb. 7, 2024 to determine whether the law should remain on hold while the court case plays out.
Candidates Set for Ohio Supreme Court Races
With the certification of the Secretary of State this week, candidates for three open seats on the Supreme Court of Ohio are now set.
Hamilton County Common Pleas Court Judge Megan E. Shanahan will be challenging Justice Michael Donnelly, who is running for reelection to his seat. Justice Joseph Deters, who was appointed by the governor to fill the seat of now-Chief Justice Sharon Kennedy for an unexpired term, will be running against incumbent Justice Melody J. Stewart. And three candidates are vying for Justice Deters’ current seat for an unexpired term: Franklin County Court of Common Pleas Judge Daniel R. Hawkins, 8th District Court of Appeals Judge Lisa Forbes and 10th District Court of Appeals Judge Terri Jamison.
The deadline to register to vote in the March 19 presidential primary election is Feb. 20. Be sure to check your registration, update your info or register at voteohio.gov. Meanwhile, the Ohio Bar is busily working to set up judicialvotescount.org for the 2024 primary election so we can continue in our efforts to provide reliable information to Ohio voters about all candidates for judge in 2024. Will let you know when it’s ready to use.
Other Bills That Passed the House This Week
HB184, sponsored by Reps. Adam Bird (R-New Richmond) and Sean Brennan (D-Parma) regards charitable solicitations. The bill extends to collection receptacles and those who operate them for compensation the same requirements as other charitable organizations under Ohio’s Charitable Solicitation Law and makes other changes related to filing requirements with the attorney general, limitations on the duration of solicitations and recordkeeping requirements. The bill passed the House with a vote of 85-5 and heads to the Senate for further consideration.
HB229, sponsored by Reps. Bride Rose Sweeney (D-Wetslake) and Tom Patton (R-Strongsville), would require health care practitioners to provide information on sudden unexpected death in epilepsy to at-risk patients and would name the act the Brenna Brossard SUDEP Awareness Act. The bill passed the House with a vote of 91-2 and heads to the Senate for further consideration.
HB258, sponsored by Rep. Sara Carruthers (R-Hamilton), would increase fines for repeatedly selling tobacco products to minors and would apply the public nuisance law to places where such sales occur. The bill passed the House with a vote of 83-8 and heads to the Senate for further consideration.
HB101, sponsored by Rep. Adam Bird (R-New Richmond), would modify the law regarding village dissolutions, make appropriations and provide authorization and conditions for the operation of state programs and amend the versions of sections 2950.11, 3301.53, and 3301.55 of the Revised Code that are scheduled to take effect Jan. 1, 2025 (which are corrections to the most recent state budget bill, HB33). The House concurred with Senate amendments by a vote of 82-9, sending the bill on to the governor to be signed into law.
Week Ahead
No legislative sessions are scheduled. The Senate will be back with a session the following week, on Jan. 24.
Season 4 of the Ohio Bar Equity Education Series continues this Wednesday as we cover meaningful mentoring and hear directly from those who have developed successful mentor/mentee relationships in their careers. Register here for this complimentary-for-members Quick Webcast.
Then, on Thursday, winter committee and section meetings officially begin. If you haven’t already, now’s the time to join committees and sections. Then, view the schedule and register for your meetings so you can start your year staying up to date on important practice area updates.
And reminder: Ohio Bar offices will be closed on Monday, Jan. 15, in observance of Martin Luther King Jr. Day.
