## Facts

- DuPont released perfluorooctanoic acid (PFOA/C-8) from its Washington Works facility for decades, contaminating regional drinking-water supplies.
- A prior settlement created a C-8 Science Panel, which found a probable link between C-8 exposure and certain diseases, including testicular cancer.
- Travis Abbott, a class member, alleged long-term exposure to contaminated water caused his testicular cancer; treatment resulted in removal of both testicles and permanent infertility.
- Julie Abbott, Travis’s wife, brought a derivative loss-of-consortium claim based on the effects of Travis’s illness and infertility on their marriage.
- A jury awarded $40 million to Travis Abbott and $10 million to Julie Abbott for loss of consortium.
- Post-trial, DuPont moved to apply Ohio’s statutory cap on noneconomic damages (Ohio Rev. Code § 2315.18) to reduce Julie Abbott’s consortium award.

## Issues

1. Whether Ohio’s noneconomic-damages cap applies to a spouse’s loss-of-consortium claim when the defendant’s conduct and the injured spouse’s exposure predated the statute’s effective date, but the marriage and cancer diagnosis occurred after the effective date.
2. If the cap applies, whether the statutory catastrophic-injury exception removes the cap based on the injured spouse’s loss of reproductive organs and resulting permanent harm.

## Decision

- The court held the Ohio noneconomic-damages cap applies to Julie Abbott’s loss-of-consortium claim because the consortium cause of action accrued after the statute’s effective date.
- The court rejected the argument that applying the cap to the consortium claim was an impermissible retroactive impairment of vested rights.
- The court held the catastrophic-injury exception applied because Travis Abbott’s injuries constituted a permanent and substantial physical deformity and loss of a bodily organ system.
- DuPont’s motion was denied insofar as it sought to reduce the $10 million consortium award; the jury verdicts remained intact.

## Legal Principles

- Under Ohio law, a loss-of-consortium claim is derivative of the injured spouse’s tort claim but accrues as a distinct claim when the marital relationship is harmed.
- For temporal application of statutory damages limitations, the relevant date for a consortium claim is its accrual (marriage and impairment of the marital relationship), not the date of the defendant’s earlier conduct or the injured spouse’s earlier exposures.
- Applying a damages cap to a consortium claim that did not exist before the statute’s effective date does not retroactively impair a vested right.
- Ohio Rev. Code § 2315.18’s catastrophic-injury exception removes the noneconomic-damages cap when the underlying injury involves permanent and substantial physical deformity or loss of a bodily organ system, including loss of reproductive organs causing permanent infertility.

## Conclusion

The court treated the spouse’s loss-of-consortium claim as accruing after Ohio’s tort-reform statute took effect, making the noneconomic-damages cap applicable, but it left the jury’s consortium award unreduced because the injured spouse’s loss of both testicles qualified for the statute’s catastrophic-injury exception.


Abbott v. E.I. du Pont de Nemours & Co., 529 F. Supp. 3d 720 (S.D. Ohio 2021)