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On Thursday, we noted that the Ohio Supreme Court had upheld two tort reform provisions in Arbino v. Johnson & Johnson, 2007-Ohio-6948. We also said that we’d be back after we had a chance to read the decision.
We’re back.
You know what’s odd? Arbino is plainly an important case: It’s the most recent in a series of decisions in state courts ruling on the constitutionality of various types of tort reform, and it comes out of Ohio, the country’s seventh most populous state. Despite the decision’s importance, almost no one will read this puppy.
Litigators don’t care about the reasoning of this case. There’s only one thing that matters to a working lawyer: Did the court uphold the tort reform provisions (so I must live in this new environment) or did the court strike them down (so I can forget about ’em)? The court’s justification for holding as it did — constitutional issues that concern only deep thinkers and academics — simply don’t matter.
For you folks — the working lawyers — here’s the skinny: The Ohio Supreme Court upheld two aspects of tort reform against facial constitutional challenge. First, in general, Ohio Revised Code Sec. 2315.18 now limits noneconomic damages to the greater of $250,000 or three times economic damages up to a maximum of $350,000. Those limits do not apply, however, if the plaintiff suffered one of various types of severe physical injury.
Second, Ohio Revised Code Sec. 2315.21 now generally limits punitive damages in tort actions to two times the total amount of compensatory damages awarded to a plaintiff per defendant. Those limits, however, do not apply if the defendant was convicted of one of several types of felonies. Lower limits apply if the defendant is a small employer or individual. And punitive damages may not be awarded more than once against the same defendant for the same course of conduct once the maximum amount of damages has been reached, unless the plaintiff offers substantial new evidence of improper conduct by the defendant.
That’s it. Litigators now know the essence of Arbino, and they know when they’ll have to consult the new statutes to see how they apply in particular cases.
Unlike typical practicing lawyers, a few scholars will care deeply about the issues decided in Arbino. But any little summary of the case that we publish can’t possible satisfy them. Scholars will, of necessity, have to parse the decision itself.
Folks who litigate tort reform issues will also care about Arbino. For them, this will be an important precedent.
The rest of the world will never read the decision and will know only that it ignited a firestorm, with liberals complaining that the Ohio Supreme Court has been bought and paid for by business, and conservatives exulting that a court finally exercised appropriate judicial restraint, deferring to policy choices enacted by the legislature and providing some predictability to damage awards in tort cases. For examples of the outraged left, read the Daily Kos; for the business perspective, see the reaction of the National Federation of Independent Business.
For the moderately curious, however, here’s our quick trot through the decision.
First, the backstory: The Ohio legislature was Republican and the Supreme Court Democratic in the 1990s. The legislature repeatedly passed, and the Supreme Court repeatedly struck down, various attempts at tort reform.
This led to unbelievably ugly judicial elections in Ohio in the early 2000s. As of today, the Ohio legislature remains Republican, and the Ohio Supreme Court is now unanimously Republican. The legislature thus took another shot at tort reform; this time, it worked.
Chief Justice Moyer wrote the majority decision in Arbino, joined by Justices Lundberg Stratton, O’Connor, and Lanzinger. Justice Cupp concurred separately, providing a fifth vote in favor of upholding all of the tort reform provisions. Justice O’Donnell dissented in part; he would have struck down the cap on noneconomic damages. And Justice Pfeifer dissented from the whole enchilada. (Ohio court watchers know that Justice Pfeifer runs as a Republican, but he consistently voted with the Democratic majority on the court in the 1990s, and he typically dissents when today’s Republican majority rules in favor of business. Outraged conservatives fume that the Ohio Supreme Court consists of seven Republicans, but only six conservatives; delighted liberals are pleased to have one voice on the court that articulates their views without regard to party affiliation.)
What were the facts? Melisa Arbino filed a product liability case against Johnson & Johnson and others claiming that she suffered blood clots and other injuries as a result of having used the Ortho Evra Birth Control Patch, a hormonal birth-control medication.
In the Arbino decision, the majority first fought its way through a thicket of Ohio Supreme Court precedents from the 1990s repeatedly striking down as unconstitutional previous efforts at tort reform. The court ultimately found that the legislature “made progress in tailoring its legislation to address the constitutional defects identified by the various majorities of this court. The statutes before us here are sufficiently different from the previous enactments so as to avoid the blanket application of stare decisis.” Slip op. at 8.
The court then upheld the limit on noneconomic damages against a series of facial constitutional challenges. The law did not violate the constitutional right to jury trial because it allowed juries to decide underlying facts and then required only that courts apply legal limits to damages based on those facts. The majority analogized to courts imposing remittitur on jury verdicts or to statutes that authorize trebling damages, which is the opposite of limiting them.
The cap does not violate the “open courts” and “right to remedy” provisions because it does not “wholly deny persons a remedy for their injuries.” Id. at 14. The cap complies with due process because the law was related to the general welfare of the public and not arbitrary or unreasonable. (The change in the Ohio Supreme Court’s political make-up is perhaps most visible here, where the majority says that one of its previous precedents, Sheward, contains an “abundance of dicta” suggesting that damage caps may violate due process, but goes on to uphold the new cap because the holding of Sheward — a 1999 case — was limited to other issues.)
The cap does not violate equal protection because it is facially neutral and bears a rational relationship to a legitimate government purpose. And the cap also survives challenges based on separation of powers and the single subject rule. Id. at 22-24.
One down; two to go.
The court declined to address the constitutionality of a tort reform provision dealing with the collateral source rule because Arbino lacked standing to challenge that provision. Id. at 25-26.
Two down; one to go.
Finally, the court upheld the cap on punitive damages against the same collection of constitutional challenges aimed at the noneconomic damages cap. The court again read Sheward narrowly and declined to follow its dictum that suggested that a cap on punitive damages would violate the Ohio Constitution’s right to a trial by jury. Id. at 27-33. (At this point, the gloves are off. A Democratic court would likely have said that Sheward‘s dictum was recent and directly on point, meriting deference. A Republican court instead finds the words to be mere dictum, not worthy of respect and rendered questionable by recent U.S. Supreme Court cases interpreting not the Ohio Constitution, but the U.S. Constitution.) (Mein Gott, Bexis, what are you doing? Implicitly criticizing a pro-business result that benefits our clients?) (Cut that out, Herrmann. You know full well that I didn’t write that parenthetical; you did.) (Did not.) (Did too.)
Justice Pfeifer’s dissent criticizes the majority on every score. But what we found most noteworthy was the tone of Pfeifer’s dissent. At page 50, we learn that the majority employed “shallow reasoning and shoddy logic.” At page 51, the majority’s arguments are “insubstantial, legally unsupported, and in many cases disingenuous.” At page 53, “superficial or disingenuous.” And so on. Whatever our politics, can’t we agree that the public discourse of our justices should be a little more civil?
More substantively, Pfeifer criticizes certain studies that the General Assembly relied upon in legislating because the studies were not “peer-reviewed” or “published in a scholarly journal.” Slip op. at 62. Whatever you think of the rest of the dissent, let’s hope this concept never gains traction. Legislatures are given wide range to pass laws based on their perceptions of public policy. If courts start to impose Daubert review on acts of Congress, today’s partisan battles will look like mere skirmishes in the wars that would come.
Let’s hope that the battles of 2008 don’t degenerate into that.