Limits on damages for pain are upheld by Ohio Supreme Court

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By JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

In a decision hailed by the business community and decried by trial lawyers, the Ohio Supreme Court yesterday upheld a controversial 2004 state law limiting damages for pain, suffering, and other non-economic damages in product liability and other lawsuits.

The much anticipated 5-2 ruling was in response to questions posed by U.S. District Court Judge David Katz in Toledo, who is presiding over a federal case involving plaintiffs from multiple states suing over Johnson & Johnson’s Ortho Evra birth-control patch.

The Supreme Court’s majority found that lawmakers did not overstep their authority by passing laws limiting damage awards.

“Some may think limitations on certain damages to be unwise legislative policy-making, but it is beyond the authority of any court to write into the Constitution that which was not installed there by the framers and ratified by the people,� wrote Chief Justice Thomas Moyer.

He was joined in the majority by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Lanzinger, and Robert Cupp. Justices Paul Pfeifer and Terrence O’Donnell dissented. All seven justices are Republicans.

“Was there ever any doubt how this case would come out?’’ asked Justice Pfeifer, part of the now long-gone 4-3 majority that last struck down a similar law in 1999.

“The members of the majority have long talked about judicial restraint…,� he wrote. “Today we learn that ‘judicial restraint’ was code for ‘the General Assembly can do no wrong when it comes to tort reform’…

“Today is a day of fulfilled expectations for insurance companies and manufacturers of defective, dangerous, or toxic products that cause injury to someone in Ohio,� he wrote. “But this is a sad day for our Constitution and this court. And this is a tragic day for Ohioans, who no longer have any assurances that their Constitution protects the rights they cherish.�

Justice O’Donnell opined that the General Assembly had unconstitutionally substituted its judgment for that of a jury through Senate Bill 80, opening the door for further encroachments in the future.

Melisa Arbino, of Cincinnati, suffered a series of potentially fatal blood clots in her brain and lungs in 2005 that she maintains were the result of side effects from the hormonal patch. She and others sued manufacturer Johnson & Johnson in federal court, prompting Judge Katz to ask the state Supreme Court, the final arbiter on state law, whether the caps that would limit how much Ms. Arbino could be awarded were constitutional.

“The plaintiffs from other states who were injured by Ortho Evra will be entitled to full damages, but those from Ohio will not — in the same case,� said Janet Abaray, Ms. Arbino’s attorney. “A New Jersey corporation came to Ohio and sold a dangerous product that harmed people all over the country, but the people in Ohio will not get full damages.�

She said it is possible that the law could be challenged as a violation of the U.S. constitutional right to trial by jury.

“The legislature has picked an arbitrary number out of the blue without knowing the facts of this case,� she said.

Senate Bill 80 does not limit damages in catastrophic cases, such as those involving paralysis or loss of a limb. Nor does it limit economic damages — lost wages, medical costs, and other easier-to-measure out-of-pocket damages — in less serious cases.

The law, however, does cap harder-to-quantify noneconomic damages for such things as pain, suffering, mental anguish, and loss of consortium at $250,000, or three times the economic damages, whichever is greater.

The latter calculation could reach a maximum of $500,000 per incident, up to $350,000 of which could go specifically to the injured person.

The court also upheld the law’s cap on awards for punitive damages, less commonly assessed by juries to punish defendants, to no more than twice the economic damages awarded in the case.

“Senate Bill 80 was carefully crafted to reduce the threat and financial uncertainty of frivolous lawsuits, while preserving the rights of Ohioans to seek redress through our court systems,� said the bill’s sponsor, Sen. Steve Stivers (R., Columbus). “Today’s Supreme Court ruling is good news for Ohio and a significant step in our efforts to revitalize our state economy.�

Tony Fiore, director of labor and human resources policy for the Ohio Chamber of Commerce, said the law was needed to provide a uniform standard in all courts statewide.

“The law provides the predictability that companies need when providing jobs and producing products,� he said. “It’s one factor among many, but this made a stronger argument that Ohio is a great place to do business.�

The court’s majority determined that there were differences between the 2004 law upheld yesterday and prior cap laws struck down by the court. Chief Justice Moyer wrote that the law does not infringe on the fact-finding duty of a jury but rather has the court impose the law on those findings after the fact.

“While the statute prevents some plaintiffs from obtaining the same dollar figures they may have received prior to the effective date of the statute, it neither forecloses their ability to pursue a claim at all nor ‘completely obliterates the entire jury award,’� the chief justice wrote. “Therefore, [the law] does not violate the right to a remedy or the right to an open court [under the Constitution].�

Ohio’s business community had cited prior decisions striking down such caps as reasons to remake the court through elections. Four justices, including dissenter Justice O’Donnell, have joined the court since the 1999 ruling, all of them with direct or indirect help from the Ohio Chamber.

Although not part of this case, the ruling may bolster the argument that different caps put in place under a medical malpractice tort-reform law are also constitutional.

“Under the court’s reasoning, there is nothing in the Ohio Constitution that restrains the General Assembly from limiting noneconomic damages to $1…â€? wrote Justice Pfeifer. “After today, what meaning is left in a litigant’s constitutional right to have a jury determine damages?â€?

Justices Stratton and O’Connor, who are seeking re-election to the court in 2008, joined in the majority decision. This case is likely to raise anew past tort reform arguments that have figured prominently in Supreme Court elections.

“The chamber of commerce wanted a specific business-focused court, and they got the court they paid for,� said Catherine Turcer, director of the Money in Politics Project with government watchdog Ohio Citizen Action.

“I wasn’t surprised, but it is very sad to think a court can flip that dramatically, and all it takes is an enormous amount of money,� she said. She noted, however, that the dissent from Justice O’Donnell, who was backed by much the same supporters as those making up the majority, demonstrated that “it’s not all about the money.�

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