Legal Newsline.com, December 28, 2007

by John O'Brien

COLUMBUS, Ohio - Tort reformers recently earned their second major victory in the Ohio Supreme Court this year, as the justices upheld a law that puts caps on non-economic damages in personal injury lawsuits.

The 5-2 decision affirmed the constitutionality of Senate Bill 80, which was enacted by the state's General Assembly in 2004. The bill capped the amount of non-economic damages that could be recovered in a non-catastrophic case (i.e. fatalities, permanent disability) at $350,000.

"(T)he General Assembly is charged with making the difficult policy decisions on such issues and codifying them into law," Chief Justice Thomas Moyer wrote for the majority. "This court is not the forum to second-guess such legislative choices; we must simply determine whether they comply with the Constitution.

"In that function, we cannot say that the General Assembly's action lacked all rational relation to the legitimate state interest of improving the state's civil justice system and its economy."

Justice Paul Pfeifer, who dissented in an August ruling that struck down the veto of a law that prevented public nuisance lawsuits against the former manufacturers of lead paint, also dissented in the S.B. 80 issue.

"A jury award for non-economic damages in excess of the limit imposed by R.C. 2315.18 will be reduced automatically by the judge as a matter of law. According to the majority opinion, that reduction does 'not alter the findings of facts themselves,'" Pfeifer wrote.

"However you characterize it, a statute that authorizes a judge to ignore or change factual findings (made by a jury) deprives litigants 'of the benefits of Trial by Jury' and must be declared unconstitutional."

Attorneys for Melisa Arbino challenged the law. Arbino said she suffered from blood clots as a result of using the Ortho Evra Birth Control Patch, manufactured by Johnson & Johnson Pharmaceutical Co.

Justice Terrance O'Donnell also dissented.

"(W)hile it may be argued that the General Assembly may abolish a common law cause of action in its entirety without violating due process or equal protection, such reasoning does not imply that the legislature may establish by statute the maximum amount a litigant may recover where the Constitution provides that a litigant has the right to have a jury make that determination," he wrote.

Ryan Augsburger, Managing Director of Public Policy Services for the Ohio Manufacturers' Association, said in April that S.B. 80 helped turn the state's business climate around, going from one of the 10 worst to 10 best according to statistics from the Pacific Research Institute.