ARBINO v. JOHNSON & JOHNSON ET AL.
No. 2006-1212
Supreme Court of Ohio
Submitted May 1, 2007—Decided December 27, 2007
116 Ohio St.3d 468, 2007-Ohio-6948
MOYER, C.J.
I. Introduction
{¶ 1} Pеtitioner Melisa Arbino initiated a products-liability action against respondents Johnson & Johnson, Ortho-McNeil Pharmaceutical, Inc., and John-
{¶ 2} The case was filed in the United States District Court for the Southern District of Ohio. Arbino‘s complaint contains challenges to the constitutionality of four tort-reform statutes implemented by Am.Sub.S.B. No. 80 of the 125th General Assembly (“S.B. 80“) and made effective on April 7, 2005. Arbino then filed a motion for partial summary judgment on these challenges, leading respondent state of Ohio to intervene in the matter. While this motion was pending, the federal Judicial Panel on Multidistrict Litigation consolidated the case with other claims relating to the Ortho Evra patch before Judge David A. Katz in the United States District Court for the Northern District of Ohio, Western Division.
{¶ 3} Judge Katz certified four questions of state law for review pursuant to S.Ct.Prac.R. XVIII. We accepted three1 of the questions:
{¶ 4} 1. “Is
{¶ 5} 2. “Is
{¶ 6} 3. “Is
{¶ 7} Arbino argues that these statutes violate several provisions of the
{¶ 8} For the following reasons, we hold that
{¶ 9} Before engaging in a specific analysis of these issues, it is necessary to briefly review the major tort-reform laws enacted by the General Assembly in recent history. Doing so provides the proper context for our decision and frames the necessary discussion of stare decisis.
{¶ 10} Since 1975, the General Assembly has adopted several so-called tort-reform acts, which were inevitably reviewed by this court. In the course of this review, we have examined several specific provisions that are similar in language and purpose to those at issue here; all of these similar statutes have been declared unconstitutional.
{¶ 11} The first reform provision we reviewed was former
{¶ 12} Although it took several years for a challenge to be raised, we ultimately held that
{¶ 13} The General Assembly‘s next major enactment was the Tort Reform Act of 1987, Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661 (“H.B. 1“), which sought to change civil-justice and insurance law to alleviate another “insurance crisis.” See Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 419-420, 633 N.E.2d 504.
{¶ 14} In Sorrell, we examined one facet of this law,
{¶ 15} In Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 644 N.E.2d 298, we reviewed former
{¶ 16} We returned to our review of H.B. 1 in Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, 644 N.E.2d 397, in which we examined former
{¶ 17} Finally, the General Assembly passed substantial reforms in 1997 with Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867 (“H.B. 350“). The legislation amended, enacted, or repealed over 100 sections of the Revised Code contained in 18 titles and 38 chapters. Among other things, it modified the collateral-source rule in tort actions to require the trier of fact to consider but not automatically set off collateral benefits (former
{¶ 18} Although we examined and discussed several subsections оf the law in our review, we ultimately found H.B. 350 to be unconstitutional in toto as a violation of the separation of powers and the single-subject clause of the
{¶ 19} Citing Morris, Sorrell, Galayda, Zoppo, and Sheward as precedent, Arbino argues that the portions of S.B. 80 at issue here are functionally identical to the statutes this court held to be unconstitutional in those cases. She alleges that the principle of stare decisis therefore requires us to declare the statutes here unconstitutional as well. We disagree.
{¶ 20} The protracted interbranch tension on this subject establishes at least two key points. First, tort reform has been a major issue of concern in this state over the past several decades and remains one today. Ohio is hardly unique in this regard, as such reforms have been raised in nearly every state in the nation. State legislatures and judiciaries have differed widely in their responses to this issue, and a definite split in authority is clear. See Section IV. The federal judiciary has been drawn to the issue as well, with the United States Supreme
{¶ 21} A fundamental principle of the constitutional separation of powers among the three branches of government is that the legislative branch is “the ultimate arbiter of public policy.” State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. It necessarily follows that the legislature has the power to continually create and refine the laws to meet the needs of the citizens of Ohio. The fact that the General Assembly has repeatedly sought to reform some aspects of the civil tort system for over 30 years demonstrates the continuing prominence of this issue.
{¶ 22} Second, even considering the numerous opinions by this court on this issue, the basic constitutionality of tort-reform statutes is hardly settled law. Our prior review has focused on certain unconstitutional facets of the prior tort-reform laws that can be addressed to create constitutionally valid legislation. We have not dismissed all tort reform as an unconstitutional concept.
{¶ 23} While stare decisis applies to the rulings rendered in regard to specific statutes, it is limited to circumstances “where the facts of a subsequent case are substantially the same as a former case.” Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 5, 539 N.E.2d 103. We will not apply stare decisis to strike down legislation enacted by the General Assembly merely because it is similar to previous enactments that we have deemed unconstitutional. To be covered by the blanket of stare decisis, the legislation must be phrased in language that is substantially the same as that which we have previously invalidated.
{¶ 24} A careful review of the statutes at issue here reveals that they are more than a rehashing of unconstitutional statutes. In its continued pursuit of reform, the General Assembly has 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 to avoid the blanket application of stare decisis and to warrant a fresh review of their individual merits.
{¶ 25} It is difficult to prove that a statute is unconstitutional. All statutes have a strong presumption of constitutionality. See Sorrell, 69 Ohio St.3d at 418-419, 633 N.E.2d 504. Before a court may declare unconstitutional an enactment of the legislative branch, “it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus.
{¶ 26} A party seeking constitutional review of a statute may proceed in one of two ways: present a facial challenge to the statute as a whole or challenge the statute as applied to a specific set of facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. Instead of arguing that these statutes are unconstitutional as applied to the facts of her case, Arbino has raised a facial challenge to each of them. To successfully present such a challenge, she must demonstrate that there is no set of circumstances in which each statute would be valid. Id., citing United States v. Salerno (1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. “The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid.” Harrold at ¶ 37. Mindful of this strict standard of review, we proceed to the merits of the certified questions.
A. Limits on Noneconomic Damages in R.C. 2315.18
{¶ 27} The first certified question concerns the constitutionality of
{¶ 29} Arbino challenges this statute on several grounds.
1. Right to a Trial by Jury
{¶ 30} Arbino initially contends that
{¶ 31} This right serves as one of the most fundamental and long-standing rights in our legal system, having derived originally from the Magna Carta. See Cleveland Ry. Co. v. Halliday (1933), 127 Ohio St. 278, 284, 188 N.E. 1. It was “[d]esigned to prevent government oppression and to promote the fair resolution of factual issues.” Arrington v. DaimlerChrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-3257, 849 N.E.2d 1004, ¶ 21. As Thomas Jefferson stated, the right to trial by jury is “the only anchor, ever yet imagined by man, by which a government can be held to the principles of it‘s [sic] constitution.” Letter from Thomas Jefferson to Thomas Paine (July 11, 1789), reprinted in 15 The Papers of Thomas Jefferson (Boyd Ed.1958) 269.
{¶ 32} However, the right is not absolute. See Arrington at ¶ 22.
{¶ 33} Arbino claims that this provision necessarily includes the right to have a jury determine the full amount of a plaintiff‘s damages. Thus, she argues that any limitations on the process, such as the damages caps in
{¶ 34} To properly approach this issue, one must define what exactly is guaranteed under this right. We are guided by long-standing precedent in this regard: “The right thus intended to be secured by the constitution, was the right of trial by jury as it was recognized by the common law; and within the right thus secured is the right of either party, in an action for the recovery of money only, to demand that the issues of fact therein be tried by a jury.” (Emphasis added.) Dunn v. Kanmacher (1875), 26 Ohio St. 497, 502-503. In short, the right to trial by jury protects a plaintiff‘s right to have a jury determine all issues of fact in his or her case. See Sorrell, 69 Ohio St.3d at 422, 633 N.E.2d 504, citing Miller v. Wikel Mfg. Co. (1989), 46 Ohio St.3d 76, 81, 545 N.E.2d 76 (Douglas, J., concurring in part and dissenting in part). Because the extent of damages suffered by a plaintiff is a factual issue, it is within the jury‘s province to determine the amount of damages to be awarded. See Sorrell.
{¶ 35}
{¶ 36} However, the fact that the jury‘s fact-finding function is protected does not mean jury awards are insulated from all outside influences.
{¶ 37} So long as the fact-finding process is not intruded upon and the resulting findings of fact are not ignored or replaced by another body‘s findings, awards may be altered as a matter of law. There is no dispute that the right to a trial by jury does not extend to the determination of questions of law. See Conley v. Shearer (1992), 64 Ohio St.3d 284, 292, 595 N.E.2d 862. Thus, without violating the Constitution, a court may apply the law to the facts determined by a jury.
{¶ 38} We have recognized several ways in which a court may apply the law to change a jury award of damages without running afoul of the Constitution. For example, courts have the inherent authority to order remittiturs to reduce jury
{¶ 39} Additionally, there are numerous statutes that treble jury damages awards in certain causes of action. See, e.g.,
{¶ 40} So it must be with
{¶ 41} Such limitations are also permissible under the analogous
{¶ 42} Because
2. Open Courts and Right to a Remedy
{¶ 43} Arbino also argues that
{¶ 44} The definition of these rights is well settled. “When the Constitution speaks of remedy and injury to person, property, or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner.” Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 47, 512 N.E.2d 626. We have interpreted this provision to prohibit statutes that effectively prevent individuals from pursuing relief for their injuries. See, e.g., Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, 466, 639 N.E.2d 425 (finding a statute of repose unconstitutional because it deprived certain plaintiffs of the right to sue before they were aware of their injuries); Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 60-61, 514 N.E.2d 709 (declaring a statute of repose unconstitutional because it did not give certain litigants the proper time to file an action following discovery of their claims).
{¶ 45} A statute need not “completely abolish the right to open courts” to run afoul of this section. Sorrell, 69 Ohio St.3d at 426, 633 N.E.2d 504. Any enactment that eliminates an individual‘s right to a judgment or to a verdict properly rendered in a suit will also be unconstitutional. See id. Thus, we struck down the statute in Sorrell under circumstances “where the collateral source benefits reduce the entire jury award.” (Emphasis added.) Id. When an individual is wholly foreclosed from relief after a verdict is rendered in his or her favor, the rights to “a meaningful remedy and open courts become hollow rights hardly worth exercising.” Id.
{¶ 46} Arbino states that
{¶ 47} Although
{¶ 48} Arbino‘s next challenge to
{¶ 49} When reviewing a statute on due-process grounds, we apply a rational-basis test unless the statute restricts the exercise of fundamental rights. Morris, 61 Ohio St.3d at 688-689, 576 N.E.2d 765; Sorrell, 69 Ohio St.3d at 423, 633 N.E.2d 504. Because we have already concluded that
{¶ 50} As a preliminary matter, Arbino argues that we have consistently held that there is no rational relationship “between restrictions on recovery in meritorious cases of serious injury and the deterrence of meritless claims.” She cites both Morris and Sheward for this proposition, arguing that the type of noneconomic-damages caps found in
{¶ 51} However, those cases did not create a bright-line rule that there can never be a real and substantial relation between a restriction on recovery and a legitimate governmental interest. In Morris, we found no evidence in the record of that case demonstrating a connection between awards in excess of the statutory limits and rising malpractice-insurance rates. Morris, 61 Ohio St.3d at 690, 576 N.E.2d 765 (“We are unable to find, either in the amici briefs or elsewhere, any evidence to buttress the proposition that there is а rational connection“).
{¶ 52} Further, although Sheward offered an abundance of dicta on several statutes in H.B. 350, the ultimate holding was that H.B. 350 was unconstitutional in toto as a violation of the separation of powers and of the single-subject clause. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062, paragraphs two and three of the syllabus. The dicta pronounced on other issues does not extend to the statute here. Thus, we must now determine whether
{¶ 53} The record here reveals that the General Assembly reviewed several forms of evidence and made numerous findings relative to
{¶ 54} In addition to these general economic concerns, the General Assembly noted that noneconomic damages are difficult to calculate and lack a precise economic value.
{¶ 55} Viewing these findings as a whole, we conclude that
{¶ 56} Unlike the records in Morris and Sorrell, which we criticized as lacking evidence demonstrating a rational connection between the tort reforms taken and the public good to be achieved, the record here draws a clear connection between
{¶ 57} Arbino assails the specific evidence amassed by the General Assembly in this regard, labeling it “threadbare” and “specious.” She challenges the persuasiveness of these findings and argues that the crisis proposed by the evidence is nonexistent. In doing so, she asks us to evaluate the information relied upon by the General Assembly and come to our own conclusions as to whether
{¶ 58} Such an intensive reexamination is beyond the scope of our review. In an equal-protection context, we noted in State v. Williams (2000), 88 Ohio St.3d 513, 531, 728 N.E.2d 342, that “we are to grant substantial deference to the predictive judgment of the General Assembly” under a rational-basis review. Further, as the United States Supreme Court has stated, “it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature.” Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456, 470, 101 S.Ct. 715, 66 L.Ed.2d 659. Finding that the General Assembly‘s review of the evidence yielded a statute that bears a real and substantial relation to the general welfare of the public, we need not cross-check its findings to ensure that we would agree with its conclusions.
b. Neither arbitrary nor unreasonable
{¶ 59} The second prong of the rational-basis test asks whether the statute is arbitrary or unreasonable. In Morris, we found that the damages caps violated this prong because they imposed the cost of the intended benefit to the public solely upon those most severely injured. Id., 61 Ohio St.3d at 690-691, 576 N.E.2d 765. We repeated this concern in Sheward, albeit in dicta. Sheward, 86 Ohio St.3d at 490, 715 N.E.2d 1062.
{¶ 60}
{¶ 61} At some point, though, the General Assembly must be able to make a policy decision to achieve a public good. Here, it found that the benefits of noneconomic-damages limits could be obtained without limiting the recovery of individuals whose pain and suffering is traumatic, extensive, and chronic, and by
{¶ 62} For those reasons,
4. Equal Protection
{¶ 63} Arbino also challenges
a. Standard of review
{¶ 64} The first step in an equal-protection analysis is determining the proper standard of review. When legislation infringes upon a fundamental constitutional right or the rights of a suspect class, strict scrutiny applies. See Williams, 88 Ohio St.3d at 530, 728 N.E.2d 342. If neither a fundamental right nor a suspect class is involved, a rational-basis test is used. See Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181.
{¶ 65} In arguing for strict scrutiny, Arbino alleges that
{¶ 66} Finding
{¶ 67} The limitations on noneconomic-damages awards in certain tort actions in
{¶ 68} The General Assembly‘s general justification for the tort reforms in S.B. 80 was that the state has an “interest in making certain that Ohio has a fair, predictable system of civil justice that preserves the rights of those who have been harmed by negligent behavior, while curbing the number of frivolous lawsuits, which increases the cost of doing business, threatens Ohio jobs, drives up costs to consumers, and may stifle innovation.” S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, 8024. As noted in the due-process discussion, the General Assembly reviewed several studies and other forms of evidence to reach this conclusion.
{¶ 69} After reviewing these findings, we conclude that
{¶ 70} The noneconomic-damages limits created in
{¶ 71} However, the General Assembly is charged with making the difficult policy decisions on such issues and codifying them into law. This court is not the forum in which to second-guess such legislative choices; we must simply determine whether they comply with the Constitution. See State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 20.
5. Separation of Powers
{¶ 73} Arbino‘s next challenge to
{¶ 74} The argument that
{¶ 75} Arbino‘s contention that the General Assembly reenacted legislation previously deemed unconstitutional also fails. Her argument is largely premised on Sheward. There, we found that the General Assembly‘s actions amounted to an attemрt “to establish itself as the final arbiter of the validity of its own legislation.” Sheward, 86 Ohio St.3d at 492, 715 N.E.2d 1062.
6. Single-Subject Rule
{¶ 77} Finally, Arbino challenges
{¶ 78} This provision exists to prevent the General Assembly from engaging in “logrolling.” State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d 141, 142, 11 OBR 436, 464 N.E.2d 153. This practice occurs when legislators combine a disharmonious group of proposals in a single bill so that they may consolidate votes and pass provisions that may not have been acceptable to a majority on their own merits. See id. at 142-143, 11 OBR 436, 464 N.E.2d 153. “The one-subject provision attacks logrolling by disallowing unnatural combinations of provisions in acts, i.e., those dealing with more than one subject, on the theory that the best explanation for the unnatural combination is a tactical one—logrolling.” Id. at 143, 11 OBR 436, 464 N.E.2d 153. Arbino argues that S.B. 80 violates this provision by combining a variety of vastly different subjects under one title, lumping such subjects as Board of Cosmetology membership (
{¶ 79} However, unlike in Sheward, where we were asked to examine H.B. 350 in its entirety, the review here is limited to three specific statutes within S.B. 80. Because the entire enactment was not made an issue in this case, we cannot determine whether it violates the single-subject rule as a whole, and therefore decline to rule on this issue.
7. Constitutionality of R.C. 2315.18
{¶ 80}
R.C. 2315.20
{¶ 81} The second certified question concerns the constitutionality of
{¶ 82}
{¶ 83} After initially challenging the constitutionality of this statute in her motion for partial summary judgment, Arbino realized through discovery that her insurance contract contains a subrogation clause. Given this information, she has conceded that she lacks standing to challenge the statute, but nevertheless asks us to deem it invalid.
{¶ 84} Since
C. Punitive-Damages Limits in R.C. 2315.21
{¶ 85} The third certified question concerns the constitutionality of
The S.B. 80 amendments to this section included a procedure for bifurcation of proceedings for compensatory and punitive damages and a limitation on the amount of punitive damages recoverable in tort actions.
{¶ 86} The statute limits punitive damages in tort actions to a maximum of two times the total amount of compensatory damages awarded to a plaintiff per defendant.
{¶ 87} If the limitations do apply, punitive damages may be limited further if the dеfendant is a “small employer”6 or an individual.
{¶ 88} Additionally, punitive damages may not be awarded more than once against the same defendant for the same act or course of conduct once the maximum amount of damages has been reached.
{¶ 89} Arbino presents the same constitutional challenges to this statute that she raised against
1. Right to a Trial by Jury
{¶ 90} Arbino‘s first challenge to this statute is that it violates the right to a trial by jury under
{¶ 92} However, Zoppo examined a statute that required trial courts to determine the amount of punitive damages to be awarded, even if the jury was the trier of fact. Zoppo, 71 Ohio St.3d at 556, 644 N.E.2d 397, quoting former
{¶ 93} Arbino‘s Sheward argument similarly fails. Although the majority discussed its view that a similar limit on punitive damages would unconstitutionally infringe on the jury‘s fact-finding function, it did so in dicta before striking H.B. 350 as unconstitutional in toto. See 86 Ohio St.3d at 483-485, 715 N.E.2d 1062; id. at paragraphs two and three of the syllabus. We are therefore not required to follow that view as precedent. See Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 85 (Sweeney, J., dissenting), quoting Black‘s Law Dictionary (6th Ed.1990) 454.
{¶ 94} However, even if we were bound by that reasoning, we would be compelled to revisit it. Since Sheward was decided, the United States Supreme Court has clarified the authority of state legislatures in setting punitive damages. “As in the criminal sentencing context, legislatures enjoy broad discretion in authorizing and limiting permissible punitive damages awards.” Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), 532 U.S. 424, 433, 121 S.Ct. 1678, 149 L.Ed.2d 674, citing BMW of N. Am., Inc. v. Gore (1996), 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (“States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case“).
{¶ 95} This post-Sheward precedent conclusively establishes that regulation of punitive damages is discretionary and that states may regulate and limit them as a matter of law without violating the right to a trial by jury.
{¶ 96} Arbino also argues that
{¶ 97} Like the noneconomic-damages limits in
{¶ 98} Because punitive damages are separate and apart from any remedy for a plaintiff‘s injuries, and because
3. Due Course of Law/Due Process
{¶ 99} Arbino also alleges that
a. Real and substantial relation to the general welfare of the public
{¶ 100}
{¶ 101} As noted in Section III.A.3, we accept that the evidence cited sufficiently demonstrated the need to reform the civil litigation system in the state. Using this evidence, the General Assembly found that the uncertainty and subjectivity associated with the civil justice system were harming the state‘s economy. The reforms codified in
{¶ 102} Arbino assails these findings, arguing that the General Assembly relied on “generalizations about the dilemma of punitive damages, without citation to any specific testimony or evidence supporting its claims.” While we agree with Arbino that the legislative record is thin in this regard, it nonetheless offers justifications sufficient to meet the requirement of a “real and substantial relation” to the general welfare of the public. The general goal of making the civil justice system more predictable is logically served by placing limits that ensure that punitive damages generally cannot exceed a certain dollar figure. Based on its review of the economic evidence, the General Assembly believes that such predictability will aid the state economy. That reasoning is sufficient under the first prong of the analysis.
b. Neither arbitrary nor unreasonable
{¶ 103} Under the second prong, we find that the statute is neither arbitrary nor unreasonable. Setting the limitation at double the amount of compensatory damages received by the plaintiff ensures that the defendant may still be punished. Further, the exceptions for small employers and individuals strike a balance between imposing punishment and ensuring that lives and businesses are not destroyed in the process. This careful compromise represents a level of thought and attention to detail not seen in arbitrary or unreasonable statutes.
{¶ 104} For the foregoing reasons,
4. Equal Protection
{¶ 105} Arbino also challenges
{¶ 106} For the same reasons discussed in Section III.A.4,
5. Separation of Powers
{¶ 107} Arbino‘s next challenge to
{¶ 108} The argument that the General Assembly simply reenacted a statute previously deemed unconstitutional similarly lacks merit.
{¶ 109} While the General Assembly reenacted a statute deemed unconstitutional in a prior decision by this court, it did so in a way that alleviated the constitutional concerns advanced therein. Therefore,
6. Single-Subject Rule
{¶ 110} Arbino‘s final attack on
{¶ 111}
IV. Conclusion
{¶ 112} The decision in this case affirms the General Assembly‘s efforts over the last several decades to enact meaningful tort reforms. It also places Ohio firmly with the growing number of states that have found such reforms to be constitutional.8 However, the issue remains a contentious one across the nation, with several states finding such statutes unconstitutional.9
{¶ 113} We appreciate the policy concerns Arbino and her amici have raised. However, the Genеral Assembly is responsible for weighing those concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices. Issues such as the wisdom of damages limitations and whether the specific dollar amounts available under them best serve the public interest are not for us to decide. Using a highly deferential standard of review appropriate to a facial challenge to these statutes, we conclude that the General Assembly has responded to our previous decisions and has created constitutionally permissible limitations.
{¶ 114} Thus, we answer the first and third certified questions in the negative, finding
LUNDBERG STRATTON, O‘CONNOR, and LANZINGER, JJ., concur.
CUPP, J., concurs separately.
O‘DONNELL, J., dissents in part.
PFEIFER, J., dissents.
CUPP, J., concurring.
{¶ 115} I am in agreement with the majority opinion. However, I believe the question of whether the statutory limitation on noneconomic tort damages contravenes the right to a trial by jury under the Ohio Constitution deserves some additional consideration.
{¶ 116} There is no disagreement that the right to a trial by jury is a fundamental aspect of our jurisprudence and a cherished right. See, e.g., Butler v. Jordan (2001), 92 Ohio St.3d 354, 370-371, 750 N.E.2d 554. This long-held right derives from the Magna Carta and was applied, before Ohio became a state, to the Northwest Territory: “No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land * * *.”
{¶ 117} Similarly, there is no disagreement that there are some limits to the right to trial by jury. The right to a trial by jury is guaranteed only for those
{¶ 118} None of this, however, addresses the right-to-jury issue presented in this case: Is the scope of the right to trial by jury so extensive as to preclude the law-making branch of constitutional government from altering or limiting the amount of damages available to a party prevailing in a common-law cause of action?
{¶ 119} An analysis of this issue must begin with the reason civil juries were considered important in our nation‘s early history. At the time the written constitutions were adopted, a primary purpose of the trial by jury was to safeguard the rights of individual citizens, not against legislative overreaching, but from judicial bias and judicial reexamination of jury-determined facts.
{¶ 120} The concern of biased and corrupt judges was exprеssed as early as colonial days. This fear arose from the colonists’ concern that the English lawyers appointed by the king to preside over colonial courts would have a greater allegiance to imperial rule than to impartial justice. Robert L. Jones, Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction (2007), 82 N.Y.U.L.Rev. 997, 1028-1030. The trial by jury was perceived as a means to ensure the administration of impartial justice free from imperial interference.
{¶ 121} The writings of Alexander Hamilton and Thomas Jefferson also reflect the perception that judges in the 18th century had a partisan bias. In the Federalist Papers, for example, Alexander Hamilton, defending against opposition to the proposed federal Constitution because of its lack of a guarantee of civil jury trial, notes the virtue of the right to a trial by jury:
{¶ 122} “The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter.” The Federalist No. 83 (Luce Ed.1976) at 544.
{¶ 124} And the concern of judicial overreaching was not unfounded. As noted by United States Supreme Court Justice Black in his dissent in Cohen v. Hurley (1961), 366 U.S. 117, 139, 81 S.Ct. 954, 6 L.Ed.2d 156, the English judiciary had a propensity “to make ‘short shrift’ of” jurors, subjecting them to beratement, fines, and indefinite imprisonment in the event of a “wrong verdict.” These abuses were among those that “led, first, to the colonization of this country, later, to the war that won its independence, and, finally, to the Bill of Rights.” Id. at 140, 81 S.Ct. 954, 6 L.Ed.2d 156.
{¶ 125} Finally, Ohio constitutional history also reflects that the right to a trial by jury was in response to a concern regarding a biasеd judiciary. During the debates at the 1850 Ohio Constitutional Convention, A. Harlan, a delegate from Greene County, read from a petition from Richard Randolph. In the petition, Randolph traced juries to the Saxon age, “when they formed an integral part of the Sheriff‘s county court.” But the jury evolved into “a happy and patriotic adaptation to elude the force of oppression, by the decrees of venal and subservient judges,” and was at the time the “only means then devised to resist tyranny and the tools of tyrants; and it thus became rather the palladium of their civil rights than the best form of judicature.” 2 Reports of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio, 1850-1851 (1851) 191.
{¶ 126} Consequently, the right to trial by jury was regarded as a legal mechanism to protect the rights of individual citizens from an overreaching judiciary. Admittedly, relying on historical information to interpret a contemporary constitutional question is not without difficulty. William E. Nelson, History and Neutrality in Constitutional Adjudication (1986), 72 Va.L.Rev. 1237, 1282. Nonetheless, the foregoing discussion indicates that the right to a trial by jury was intended to guard against judicial bias rather than as a limit on the ability of the legislature to act within its constitutional boundaries.
{¶ 128} The constitutional grant of authority at
{¶ 129} The United States Supreme Court has determined that the alteration of the common law is not proscribed by the federal Constitution either:
{¶ 130} “A person has no property, no vеsted interest, in any rule of the common law. * * * Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prohibited by constitutional limitations.” Munn v. Illinois (1876), 94 U.S. 113, 134, 24 L.Ed. 77.
{¶ 131} In summary, it is long-settled constitutional law that it is within the power of the legislature to alter, revise, modify, or abolish the common law as it may determine necessary or advisable for the common good.
{¶ 132} The power to alter or abolish a common-law cause of action necessarily includes the power to modify any associated remedy. See, e.g., State v. Barlow(1904), 70 Ohio St. 363, 374-375, 71 N.E. 726 (remedies may be altered legislatively); Stine v. Atkinson (1942), 69 Ohio App. 529, 533, 24 O.O. 264, 44 N.E.2d 372 (the elements to a cause of action include a remedy). See also Pacific Mut. Life Ins. Co. v. Haslip (1991), 499 U.S. 1, 39, 111 S.Ct. 1032, 113 L.Ed.2d 1 (Scalia, J., concurring in judgment) (the legislature has the authority to restrict or abolish the common-law practice of punitive damages). Indeed, it would be illogical that, while the right to trial by jury does not prevent the legislature from altering or abolishing a cause of action, it nevertheless prevents the legislature from defining by statute the remedies available for a cause of action.
{¶ 133} Still, the dissent echoes the plaintiff‘s assertion that the amount of damages recoverable under a common-law cause of action cannot be limited by action of the legislature because determining the amount of damages is reserved to the jury by the constitutional right to trial by jury. However, we are provided no historical analysis to support this contention, nor are we directed to any relevant case precedent with that analysis.10 Nor have I found any. The historical information that is available does not support the contention that the right to a trial by jury acts as a limit to constitutionally exercised legislative action.
{¶ 134} The absence of any analysis and precedent rationally leads to the conclusion that the legislature‘s law-making power is not so limited, provided the litigant retains the right to have the jury determine the amount of damages to the extent the damages are legally available. Legislative action, however, may alter or limit what damages the law makes available and legally recoverable. In doing so, the General Assembly does not trespass upon the right to jury trial.
{¶ 135} Federal courts, interpreting the United States Constitution, have also concluded that a legislature‘s constitutional authority to create, alter, or abolish law includеs the ability to alter or limit the kind and amount of damages available to a prevailing party, without running afoul of the right to a jury trial protected by the
the
{¶ 136} In light of the General Assembly‘s constitutionally granted, plenary legislative power; the lack of a vested right to the rules of the common law; the long-settled law that the General Assembly‘s power extends to the alteration or abolition of common-law causes of actions, including those to which the right of a trial by jury attaches; the complete lack of historical support or reasoned precedent cited by the plaintiff and the dissents; and the strong presumption in favor of the constitutionality of legislative enactment, I conclude that the Constitution and the right to trial by jury do not implicate the General Assembly‘s plenary, constitutional law-making power to define what damages are available in a common-law cause of action, including reasonable limitations on such damages.
{¶ 137} 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. I conclude, therefore, that the noneconomic-damages limitations of
LUNDBERG STRATTON, O‘CONNOR, and LANZINGER, JJ., concur in the foregoing opinion.
O‘DONNELL, J., dissenting in part.
{¶ 138}
{¶ 139} In Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504, we reiterated that “[t]he right to a jury trial does not involve merely a question of procedure. The right to jury trial derives from Magna Charta. It is reasserted both in the Constitution of the United States and in the Constitution of the State of Ohio. For centuries it has been held that the right of trial by jury is a fundamental constitutional right, a substantial right, and not a procedural privilege.” Id. at 421, 633 N.E.2d 504, quoting Cleveland Ry. Co. v. Halliday (1933), 127 Ohio St. 278, 284, 188 N.E. 1, and citing Kneisley v. Lattimer-Stevens Co.(1988), 40 Ohio St.3d 354, 356, 533 N.E.2d 743. In Sorrell, we further stated that this constitutional right includes the “right to have all facts determined by the jury, including damages.” Id. at 422, 633 N.E.2d 504, citing Miller v. Wikel Mfg. Co. (1989), 46 Ohio St.3d 76, 81, 545 N.E.2d 76 (Douglas, J., concurring in part and dissenting in part).
{¶ 140} The majority acknowledges Sorrell, stating that “[b]ecause the extent of damages suffered by a plaintiff is a factual issue, it is within the jury‘s province to determine the amount of damages to be awarded,” but it concludes that the cap on noneconomic damages established by
{¶ 141} In Alter v. Shearwood (1926), 114 Ohio St. 560, 151 N.E. 667, this court held that the doctrine of remittitur is constitutional. But a remittitur, in my opinion, differs fundamentally from the cap on noneconomic damages imposed by
{¶ 142} In Schulte, this court emphasized the importance of the last requirement, stating, “In an action for unliquidated damages, neither the trial court nor any reviewing court has the power to reduce the verdict of a jury or to render judgment for a lesser amount without the consent to such reduction of the party in whose favor the verdict was rendered.” (Emphasis added.) 120 Ohio St. at 290, 166 N.E. 186. In fact, absent the consent of the party, a judicially ordered remittitur violates that party‘s right to a jury trial. See, for example, Hetzel v. Prince William Cty. (1998), 523 U.S. 208, 211, 118 S.Ct. 1210, 140 L.Ed.2d 336, a per curiam decision in which the court stated that a “Court of Appeals’ writ of mandamus, requiring the District Court to enter judgment for a lesser amount than that determined by the jury without allowing petitioner the option of a new
{¶ 143}
{¶ 144} The majority also refers to several statutes that provide for treble damages found by a jury, and it reasons that if “[w]e have never held that the legislative choice to increase a jury award as a matter of law infringes upon the right tо a trial by jury,” then “the corresponding decrease as a matter of law cannot logically violate that right.” (Emphasis sic.) I disagree, however, because a statutory damages multiplier is fundamentally different from the damages cap imposed by
{¶ 145} In enacting
{¶ 146} Thus, the CSPA increases the damages found by a jury with respect to a statutory cause of action in keeping with the punitive nature of the legislation. This has no similarity, however, to
{¶ 147} Lastly, the majority cites Estate of Sisk v. Manzanares (D.Kan.2003), 270 F.Supp.2d 1265, which held that “statutory damage caps do not violate the Seventh Amendment [to the United States Constitution], largely because a court does not ‘reexamine’ a jury‘s verdict or impose its own factual determination regarding what a proper award might be. Rather, the court simply implements a legislative policy decision to reduce the amount recoverable to that which the legislature deems reasonable.” Id. at 1278. As the United States Supreme Court has held, however, the
{¶ 148} Moreover, I disagree with the conclusion that the majority draws from Manzanares, that the statutory cap on noneconomic damages is constitutional because it does not prevent the jury from performing its constitutional fact-finding role. The statute requires the trial court to disregard the jury‘s findings of noneconomic damages in excess of the statutory limit and to enter judgment pursuant to the legislatively imposed maximum dollar amount. Thus,
{¶ 149} The supreme courts of other states have invalidated statutory damages caps for comparable reasons. In Moore v. Mobile Infirmary Assn. (1991), 592 So.2d 156, 164, the Supreme Court of Alabama stated as follows with respect to similar legislation that it held in violation of the right to trial by jury: “Because the statute caps the jury‘s verdict automatically and absolutely, the jury‘s function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status.” (Emphasis sic.) Further, in Sofie v. Fibreboard Corp. (1989), 112 Wash.2d 636, 655, 771 P.2d 711, the Washington Supreme Court held that a legislative cap on noneconomic damages violated the state‘s right-to-jury-trial provision and rejected an argument similar to the majority‘s conclusion, here, stating, “Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function.” (Emphasis added.) See also Knowles ex rel. Knowles v. United States (In re Certification of Questions of Law), 1996 SD 10, 544 N.W.2d 183; Lakin v. Senco Prods., Inc. (1999), 329 Ore. 62, 987 P.2d 463; Smith v. Dept. of Ins. (Fla.1987), 507 So.2d 1080.
{¶ 150} For these reasons, I am of the view that the cap on noneconomic damages established by
{¶ 151} I also write to address the position advanced in Justice Cupp‘s concurring opinion to the effect that the statutory cap on noneconomic damages
{¶ 152} The concurrence cites precedent that the legislature may abolish or modify a common-law cause of action without violating due process and/or equal protection. See, e.g., Strock v. Pressnell (1988), 38 Ohio St.3d 207, 214, 527 N.E.2d 1235; Leis v. Cleveland Ry. Co. (1920), 101 Ohio St. 162, 128 N.E. 73. These cases, however, do not address the right to a jury trial provided by
{¶ 153} Here,
{¶ 154} Finally, the concurring opinion laments that the majority has provided no historical analysis to support the contention that “the amount of damages recoverable under a common-law cause of action cannot be limited by action of the legislature because determining the amount of damages is reserved to the jury by the constitutional right to trial by jury.” In support of its contrary position, the concurrence provides authority that the constitutional right to a jury trial originated in response to what it terms “judicial overreaching.” This analysis, however, does not suggest that any other branch of government may overreach and interfere with the right to a jury trial or predetermine by legislation that which the Constitution has specified will be decided by jurors. Furthermore, notwithstanding that we have already held, in Sorrell, that the legislature may not encroach upon a party‘s right to have a jury determine the amount of compensatory damages, the historical basis for preventing legislative intrusion on a party‘s right to a jury trial exists in the language of Section 5,
{¶ 155} This constitutional language, and the right it affords litigants in Ohio, has been understood since its incorporation into the Ohio Constitution. As discussed by Judge Ranney in his majority opinion, speaking of the right to a jury of 12 in a criminal trial in Work v. State (1853), 2 Ohio St. 296, 302:
{¶ 156} “What, then, is this right? It is nowhere defined or described in the constitution. It is spoken of as something already sufficiently understood, and referred to as a matter already familiar to the public mind. * * * The constitution furnishes no answer, nor was it necessary that it should. If ages of uninterrupted use can give significance to language, the right of jury trial and the habeas corpus stand as representatives of ideas as certain and definite as any other in the whole range of legal learning.”
{¶ 157} In his opinion, Judge Ranney noted that the
{¶ 158} Judge Ranney stated that “it is beyond the power of the General Assembly to impair the right, or materially change its character; that the number of jurors cannot be diminished, or a verdict authorized short of a unanimous concurrence of all the jurors. It follows that the act under which this conviction was obtained, in so far as it provides for a jury of six only, and authorizes a conviction upon their finding, is unconstitutional and void.” Id. at 306.
{¶ 159} In concluding the opinion, the court stated, “We have deemed it our duty to meet and arrest, at the outset, what we cannot but regard as an infringement of a great constitutional right—not in a very flagrant manner, but, nevertheless, opening the door to further encroachments.” Id.
{¶ 160} In Gibbs v. Girard (1913), 88 Ohio St. 34, 102 N.E. 299, which quoted extensively, with approval and admiration, from Judge Ranney‘s opinion in Work, this court reaffirmed the right to have a jury determine every question of disputed fact in civil cases and stated that “[t]o hold otherwise would not only commit but permit, in a multitude of cases, a sinister and indirect invasion and usurpation of the right of trial by jury. A legislative act impairing it would be clearly unconstitutional.” Id. at 43, 102 N.E. 299.
{¶ 162} Accordingly, it is my view that
PFEIFER, J., dissenting.
I. R.C. 2315.18
A. Right to Trial by Jury
{¶ 163} “So long as the trial by jury is a part of our system of jurisprudence, its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our Constitutions.” Gibbs v. Girard (1913), 88 Ohio St. 34, 47, 102 N.E. 299. Instead of jealously safeguarding the right to trial by jury, the majority opinion in this case eviscerates it by holding constitutional a statute that enables courts to “enter judgments in disregard of the jury‘s verdict.” Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 422, 633 N.E.2d 504. Instead of jealously safeguarding the right to trial by jury, the majority opinion employs shallow reasoning and shoddy logic in concluding that juries can meaningfully determine only facts that do not conflict with predetermined assessments of the General Assembly. Insteаd of jealously safeguarding the right to trial by jury, the majority opinion “cleans the scalpel for the legislature to cut away unrestrainedly at the whole field of tort redress.” Meech v. Hillhaven W., Inc. (1989), 238 Mont. 21, 52, 776 P.2d 488 (Sheehy, J., dissenting).
{¶ 164} The Constitution states that “[t]he right of trial by jury shall be inviolate * * *.”
{¶ 165} In the face of such forceful and clear language and contrary to many holdings of this court, the majority opinion concludes that jury findings of fact can be altered without violating the right to trial by jury. The reasons advanced by the majority opinion to buttress its assault on a fundamental constitutional right are insubstantial, legally unsupported, and in many cases disingenuous. Neither separately nor collectively do they support upholding as constitutional a statute that infringes upon the right to trial by jury.
{¶ 166} The majority states that “[s]o long as the [jury‘s] fact-finding process is not intruded upon and the resulting findings of fact are not ignored or replaced by another body‘s findings, awards may be altered as a matter of law.” (Emphasis sic.) As support for this statement of first impression, the majority offers the irrelevant Conley v. Shearer (1992), 64 Ohio St.3d 284, 595 N.E.2d 862. In Conley, Kurt Shearer argued that he was immune from liability because he was a governmental employee. Whether Shearer was entitled to immunity was deemed a question of law that was not triable to a jury. Id. at 292, 595 N.E.2d 862. It is impossible to determine why the majority cites this case to support its decision to allow a statute to circumvent what the majority itself calls “one of the most fundamental and long-standing rights in our legal system, having derived originally from the Magna Carta.”
{¶ 167} The majority next states that there are “several ways in which a court may apply the law to chаnge a jury award of damages without running afoul of the Constitution” and that among these is remittitur. Though the majority opinion notes parenthetically that a plaintiff must consent to remittitur, it does not explain that the sole reason remittitur does not violate the right to a trial by jury is that remittitur cannot be granted without the consent of the prevailing party. See, e.g., Wightman v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 444, 715 N.E.2d 546. Thus, although remittitur is grounded in a court‘s inherent authority to remit an excessive award, it does not infringe upon a plaintiff‘s right to a trial by jury because “[n]either the trial court nor any reviewing court has power or authority to reduce a verdict on any grounds without the assent of the prevailing party, unless the undisputed testimony shows an error in mathematical calculation.” Chester Park v. Schulte (1929), 120 Ohio St. 273, 166 N.E. 186,
{¶ 168} The majority opinion next states that because the treble-damages provisions of
{¶ 169} The majority next states that
{¶ 170} If a damages cap of $250,000 is constitutional—the majority opinion mentions the amount, but never discusses it, apparently giving it no significance—why can‘t the General Assembly limit damages for claims they do not favor to $100,000? Or $1,000? Or $10? Under this court‘s reasoning, there is nothing in the Ohio Constitution to restrain the General Assembly from limiting noneconomic damages to $1. In essence, the power to cap noneconomic damages is the power to eliminate them. But the General Assembly does not have this power; only the people by the amendment process have this power. After today, what meaning is left in a litigant‘s constitutional right to have a jury determine damages?
{¶ 171} The majority opinion next states that
{¶ 172} Finally, with respect to the right to trial by jury, the majority states that these limitations are constitutional under the “Seventh Amendment right to a jury trial in the federal system,” citing Estate of Sisk v. Manzanares (D.Kan.2003), 270 F.Supp.2d 1265. Although possibly accurate, this assessment is not supported by citation of a case from the United States Supreme Court and is contrary to Dimick, 293 U.S. at 480, 55 S.Ct. 296, 79 L.Ed. 603, in which the United States Supreme Court, quoting Mayne‘s Treatise on Damages (9th Ed.1920) 571, stated that “‘in cases where the amount of damages was uncertain their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.‘” Estate of Sisk is, with all due respect to the members of the majority and the district court magistrate in Kansas who wrote it, wholly irrelevant. Our task today is to decide whether
{¶ 173} To summarize, the majority opinion concludes that
{¶ 174} I would hold that
B. Due Process and Equal Protection
{¶ 175} Even though there is no need to go further with respect to
{¶ 176} Instead, the majority opinion applies the rational-basis test, and concludes that
{¶ 177} “The General Assembly makes the following statеment of findings and intent:
{¶ 178} “(A) The General Assembly finds:
{¶ 179} “(1) The current civil litigation system represents a challenge to the economy of the state of Ohio, which is dependent on business providing essential jobs and creative innovation.
{¶ 180} “(2) The General Assembly recognizes that a fair system of civil justice strikes an essential balance between the rights of those who have been legitimately harmed and the rights of those who have been unfairly sued.
{¶ 181} “(3) This state has a rational and legitimate state interest in making certain that Ohio has a fair, predictable system of civil justice that preserves the rights of those who have been harmed by negligent behavior, while curbing the
{¶ 182} Section 3(A)(2) doesn‘t make sense. It states that a fair system of civil litigation, presumably one that includes
{¶ 183} The predictability of the new system implicitly touted in the findings results solely from the arbitrary and, in my view, unconstitutional diminishment of a jury‘s factual findings of damages.
{¶ 184} That Section 3(A)(3) of Am.Sub.S.B. No. 80 mentions frivolous lawsuits is somewhat surprising, because nothing in the statutory scheme addresses frivolous lawsuits, and damages caps are not even remotely related to frivolous lawsuits. The caps imposed by the statutory scheme can affect only those plaintiffs with meritorious claims, plaintiffs who have prevailed in a trial and who have suffered significant damages. These plaintiffs are exactly the opposite of those who file frivolous lawsuits. Finally, although Section 3(A)(3) lists a series of detrimental effects caused by frivolous lawsuits, nothing in the section suggests that excessive damages awards, the putative target of
{¶ 185} The tort system in Ohio is far from perfect. The various trial and defense attorneys involved in our tort system are not perfect either. There is no doubt much room for improvement in the way the tort system in Ohio functions. For instance, our tort system would better serve the public if frivolous lawsuits wеre never filed and if excessive paper-churning, fee-building discovery practices were curtailed. There is no rational reason to “improve” the tort system in Ohio at the sole expense of a small group of people who are able to prove that they suffered damage significant enough to exceed the damages caps imposed by the General Assembly. Whatever improvement the tort system in Ohio needs, the Ohio Constitution should remain inviolate, unless properly amended.
{¶ 186} My analysis continues with an examination of the evidence the General Assembly relied on to support its findings to determine whether they bear “a reasonable and substantial relation to the public welfare.” State ex rel. Bowman v. Allen Cty. Bd. of Commrs. (1931), 124 Ohio St. 174, 177 N.E. 271, paragraph three of the syllabus. See also Tocqueville, Democracy in America (Heffner
{¶ 187} Uncodified Section 3 of Am.Sub.S.B. No. 80 further states:
{¶ 188} “The General Assembly bases its findings on this state interest upon the following evidence:
{¶ 189} “(a) A National Bureau of Economic Research study estimates that states that have adopted abuse reforms have experienced employment growth between eleven and twelve per cent, productivity growth of seven to eight per cent, and total output growth between ten and twenty per cent for liability reducing reforms.
{¶ 190} “(b) According to a 2002 study from the White House Council of Economic Advisors, the cost of tort litigation is equal to a two and one tenth per cent wage and salary tax, a one and three tenth per cent tax on personal consumption, and a three and one tenth per cent tax on capital investment income.
{¶ 191} “(c) The 2003 Harris Poll of nine hundred and twenty-eight senior corporate attorneys conducted by the United States Chamber of Commerce‘s Institute for Legal Reform reports that eight out of ten respondents claim that the litigation environment in a state could affect important business decisions about their company, such as where to locate or do business. In addition, one in four senior attorneys surveyed cited limits on damages as one specific means for state policy makers to improve the litigation environment in their state and promote economic development.
{¶ 192} “(d) The cost of the United States tort system grew at a record rate in 2001, according to a February 2003 study published by Tillinghast-Towers Perrin. The system, however, failed to return even fifty cents for every dollar to people who were injured. Tillinghast-Towers Perrin also found that fifty-four per cent of the total cost accounted for attorney‘s fees, both for plaintiffs and defendants, and administration. Only twenty-two per cent of the tort system‘s cost was used directly to reimburse people for the economic damages associated with injuries and losses they sustain.
{¶ 193} “(e) The Tillinghast-Towers Perrin study also found that the cost of the United States tort system grew fourteen and three tenths of a per cent in 2001, the highest increase since 1986, greatly exceeding overall economic growth of two and six tenth per cent. As a result, the cost of the United States tort system rose to two hundred and five billion dollars total or seven hundred and twenty-one dollars per citizen, equal to a five per cent tax on wages.
{¶ 195} The evidence in Section 3(A)(3) is not objective, not peer-reviewed, not Ohio-specific, and, in most cases, significantly flawed. First, apart from a couple of anecdotes, the findings do not relate specifically to Ohio. On that ground alone it is unreasonable to conclude that
{¶ 196} Second, most of the findings are the product of biased sources. The National Bureau of Economic Research (“NBER“) study cited in Section 3(A)(3)(a) was produced by an organization that calls itself “a private, nonprofit, nonpartisan research organization dedicated to promoting a greater understanding of how the economy works.” See http://www.nber.org/info.html. But see http://www.mediatransparency.org/recipientgrants.php?recipientID=243, which suggests that NBER‘s source of funding is not nonpartisan. The White House Council of Economic Advisors study cited in Section 3(A)(3)(b) is the work product of three political appointees. See http://www.whitehouse.gov/cea/. The 2003 Harris Poll of 928 attorneys cited in Sеction 3(A)(3)(c) is a survey solely of corporate attorneys. The Tillinghast-Towers Perrin 2003 study cited in Section 3(A)(3)(d) and (e) was produced by a company whose business is to “provide[ ] consulting and software solutions to insurance and financial services companies.” See http://www.towersperrin.com/tp/jsp/masterbrand_html.jsp?webc=176/global/about/about.htm&selected=about. Bruce Johnson, the director of the Ohio Department of Development, whose testimony is cited in Section 3(A)(3)(f), is a political appointee.
{¶ 197} In short, none of the evidence is the product of authentic, objective research. See Abaray, Déjà Vu All Over Again: Ohio‘s 2005 Tort Reform Act Cannot Survive a Rational Basis Challenge (2006), 31 U.Dayton L. Rev. 141. The National Bureau of Economic Research Study is not peer-reviewed and is not published in a scholarly journal.
{¶ 198} The 2002 study by the White House Council of Economic Advisors is also not peer-reviewed, is not published in a scholarly journal, and is not even a study—it is a white paper. “A white paper is generally understood to be a position or policy paper of an organization. As such, white papers do not purport to represent an objective review of empirical data.” (Emphasis sic.) Id. at 155. Further, this “study” contains several empirical flaws, too detailed to explain here, and is based on the Tillinghast report, which, as explained below, is itself flawed. See id. at 156.
{¶ 199} The 2003 Harris Poll of 928 senior corporate attorneys is just that: a poll. Does this even need to be explained? It should surprise no one that corporate attorneys think tort costs are too high; they represent the companies that commit the torts and, therefore, pay the costs. Anyone who would cite a poll of senior corporate attorneys as an excuse for enacting pro-corporate legislation would probably also cite Charlie Wilson‘s maxim, “What‘s good for the country is good for General Motors, and vice versa.”
{¶ 200} The 2003 Tillinghast-Towers Perrin study, like the others, is not peer-reviewed, is not from a scholarly journal, and contains many flaws. 31 U.Dayton L.Rev. at 158. For instance, the conclusions the study draws are based in part on the inclusion of the costs of medical malpractice. Id. A study that includes the costs of medical malpractice cannot rationally be used to justify enacting
{¶ 201} The General Assembly relies on the Tillinghast study‘s conclusion that the “cost of the United States tort system grew at a record rate in 2001,” specifically, 14.4 percent. Id. at 158. Even if that statement is true, and there is no particular reason to believe that it is, it is highly selective. The same study indicates that the cost of the national tort system grew only 3.3 percent throughout the 1990s, a much lower rate than in the previous four decades, and that the growth rate of the tort system was only 5.4 percent in 2003. 31 U.Dayton L.Rev. at 159, quoting a 2004 Tillinghast update on nationwide tort costs. Further, those rates of increase include the cost of medical-malpractice
{¶ 202} The Tillinghast study and the General Assembly include the cost of defense litigation in determining the percentage of money paid to plaintiffs.12 Id. at 159. Section 3(A)(3)(d) states that “[o]nly twenty-two per cent of the tort system‘s cost was used directly to reimburse people for the economic damages associated with injuries and losses they sustain.” That has a certain ring of truth, but in reality, the statement is grossly misleading. “If the defense and insurance costs are excluded, the Tillinghast figures actually demonstrate that the total amount awarded in tort cases nationwide for economic loss equals 34%, noneconomic loss equals 38%, and claimant attorney fees equals 27% of total awards.” 31 U.Dayton L.Rev. at 160; see also Chimerine & Eisenbrey, The Frivolous Case for Tort Law Change: Opponents of the Legal System Exaggerate Its Costs and Ignore Its Benefits (May 17, 2005), Economic Policy Institute Briefing Paper No. 157, at 4-5, available at http://www.epi.org/content.cfm/bp157. The Tillinghast study is misleading, biased, flawed, and disingenuous, and it cannot be the rational basis for enacting a statute in Ohio. Further, the Tillinghast study is impossible to verify because Tillinghast “claims that its data and methodology are ‘proprietary.‘” Chimerine at 3.
{¶ 203} Last, we come to the testimony of Bruce Johnson. Johnson, a political appointee of a governor who desperately wanted to impose tort reform on all Ohioans, relied extensively on the flawed Tillinghast study. Moreover, other than anecdotal evidence and unverifiable statistics, Johnson‘s testimony is not related to Ohio. 31 U.Dayton L.Rev. at 162.
{¶ 204} None of the General Assembly‘s findings are reliable with respect to addressing Ohio-specific problems. First, the findings do not relate specifically to Ohio. Second, all of the proffered evidence is the product of biased sources with political agendas. Third, the studies contain serious flaws, relying either on information that they do not provide or on information (medical-malpractice awards) that is not relevant to
{¶ 205} Given these flaws, it is obvious that
{¶ 206} The statutory scheme creates two classes of tort victims: those with catastrophic or minor injuries, who are able to recover the full measure of their damages, and those with significant but not catastrophic injuries, who are able to recover only a portion of their damages. “Equal protection of the laws requires the existence of reasonable grounds for making a distinction between those within and those outside a designated class.” Morris, 61 Ohio St.3d at 691, 576 N.E.2d 765. Objectively, the classification in this case is not rationally related to anything, let alone a legitimate governmental interest. The majority opinion should explain how this classification is reasonably related to improving business conditions in Ohio. Further, Chief Justice Moyer should explain why his consideration of the caps before us is so radically different from his analysis in Morris.
{¶ 207} The majority opinion states that “one cannot deny that noneconomic-damages awards are inherently subjective and difficult to evaluate.” I agree that “noneconomic-damage awards are inherently subjective.” So are many of the good things in life, for instance, religion, love, and which college football team to root for. That something is subjective does not make it evil. Further, amounts below the statutory threshold are no less subjective than amounts above the statutory threshold. I also agree that noneconomic-damages awards are “difficult to evaluate.” I have great faith in Ohio‘s jury system; so should the members of the majority, each of whom has extensive experience working with juries, either as a judge or an attorney and, therefore, has good cause to know how diligently and seriously juries approach their task to discover the truth.
{¶ 209} I have always had great faith in the ability of Ohio juries to reach just determinations. So apparently does Republican Representative Scott Oelslager. The chairman of the House Judiciary Committee at the time
{¶ 210} The majority opinion states that “the record here draws a clear connection between limiting uncertain and potentially tainted noneconomic damages awards and the economic problems demonstrated in the evidence.” Actually, the General Assembly‘s findings contain no evidence of tainted damages awards or economic problems—they contain only unsubstantiated conclusions supplied by biased organizations with political agendas. There is also, as shown, no established connection between the General Assembly‘s nationwide findings and
{¶ 211}
{¶ 212} I would hold that
II. R.C. 2315.21
{¶ 213} In imposing a cap on punitive damages,
{¶ 214} The majority opinion explains that because the jury determines the fact of punitive damages, the subsequent statutorily required diminution of that damages amount does not intrude on the jury‘s findings. The majority opinion states that the automatic arbitrary diminution of a damages award does not affect the jury‘s factual determination. “The more one tries to explain this extraordinary result the less another can understand it.” Marshall v. Gibson (1985), 19 Ohio St.3d 10, 14, 19 OBR 8, 482 N.E.2d 583 (Wright, J., dissenting). I would hold that
{¶ 215} Citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), 532 U.S. 424, 433, 121 S.Ct. 1678, 149 L.Ed.2d 674, the majority opinion states that “[t]his post-Sheward precedent conclusively establishes that regulation of punitive damages is discretionary and that states may regulate and limit them as a matter of law without violating the right to trial by jury.” Even if we assume that this statement is an accurate reflection of what the United States Supreme Court held with respect to the Constitution of the United States, it is of little relevance to this case where we are determining whether
{¶ 216}
{¶ 217} “The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct.” Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331. See State Farm Mut. Auto. Ins. Co. v. Campbell (2003), 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (“punitive
{¶ 218}
III. Conclusion
{¶ 219} I have a basic philosophical difference with the members of the majority and what they have written in the majority opinion. I believe that the Constitution of Ohio is the fundamental document that protects all Ohioans, not just those with the most lobbying power. I believe that the Constitution says what it says for a reason and that no part of our judicial system exists merely to enable the General Assembly to write around the Constitution. I believe that the Constitution should be altered only by amendment, not by legislative or judicial fiat. I believe that the Ohio Constitution is a CONSTITUTION, not just another statute modifiable at will by the General Assembly. See Tocqueville, Democracy in America (Heffner Ed.1956) 74-75 (“In the United States, the Constitution governs the legislator as much as the private citizen * * *, and it is therefore just that the tribunals should obey the constitution in preference to any law“). If the General Assembly had the courage of its convictions it would submit caps to the voters—that is the proper way to amend the Constitution. See
{¶ 220} Was there ever any doubt how this case would come out? The members of the majority have long talked about judicial restraint. But, in recent high-profile cases, certain members of the majority rewrote
{¶ 221} 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 glorious day for the backers of “judicial restraint.” 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. 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 assurance that their Constitution protects the rights they cherish. I dissent.
Burg, Simpson, Eldredge, Hersh & Jardine, Janet G. Abaray, Calvin S. Tregre Jr., and Melanie S. Bailey; and Center for Constitutional Litigation, P.C., Robert S. Peck, and Stephen B. Pershing, for petitioner.
Tucker, Ellis & West, L.L.P., Irene C. Keyse-Walker, Benjamin C. Sassé, and Julie A. Callsen, for respondents Johnson & Johnson, Ortho-McNeil Pharmaceutical, Inc., and Johnson & Johnson Pharmaceutical Research & Development, L.L.C.
Marc Dann, Attorney General, Stephen Carney, State Solicitor, and Sharon A. Jennings and Frank M. Strigari, Assistant Attorneys General, for respondent state of Ohio.
Volkema Thomas, L.P.A., and Michael S. Miller; Paul W. Flowers Co., L.P.A., and Paul W. Flowers; Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Anthony E. Turley, and Kathleen J. St. John; Kitrick & Lewis Co., L.P.A., and Mark Kitrick, for amicus curiae Ohio Academy of Trial Lawyers, in support of petitioner.
Bernard K. Bauer Co., L.P.A., and Bernard K. Bauer, for amicus curiae Ohio Chapter of the American Board of Trial Advocates, in support of petitioner on Certified Question No. 1.
Gittes & Schulte, Frederick M. Gittes, and Kathaleen B. Schulte, for amici curiae Ohio Employment Lawyers Association, Ohio NOW Education and Legal Defense Fund, Committee Against Sexual Harassment, Ohio Conference of the NAACP, and Columbus NAACP, in support of petitioner.
Arthur, O‘Neil, Mertz & Michel Co., L.P.A., and Dan Michel; Kirby, Thomas, Brandenburg & D‘Amico and Michael R. Thomas; Linton & Hirshman and
Micah Berman and Caris Post, for amicus curiae Tobacco Public Policy Center at Capital University Law School, in support of petitioner.
Kenneth R. Sheets, for amicus curiae Donna Ulliman, in support of petitioner.
Porter, Wright, Morris & Arthur, L.L.P., Joseph W. Ryan Jr., and Colleen L. Marshall, for amicus curiae International Association of Defense Counsel, in support of respondents.
Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and Christopher E. Appel, for amici curiae National Federation of Independent Business Legal Foundation, Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association, National Association of Mutual Insurance Companies, Property Casualty Insurers Association of America, and American Chemistry Council, in support of respondents.
Bricker & Eckler, L.L.P., Kurtis A. Tunnell, Anne Marie Sferra, and Vladimir P. Belo, for amicus curiae Ohio Alliance for Civil Justice, in support of respondents.
Porter, Wright, Morris & Arthur, L.L.P., Carolyn A. Taggart, and J.H. Huebert; Weston Hurd, L.L.P., Ronald A. Rispo, and Daniel A. Richards, for amicus curiae Ohio Association of Civil Trial Attorneys, in support of respondents.
Bricker & Eckler, L.L.P., Catherine Ballard, and Lana Knox, for amici curiae Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association, in support of respondents.
Dinsmore & Shohl, L.L.P., Frank C. Woodside III, Mark L. Silbersack, and Melissa L. Korfhage, for amicus curiae Product Liability Advisory Council, Inc., in support of respondents.