Ohio Supremes’ Ruling Good for Bad Bills, Bad for Good Juries

OhioNews Bureau

ONB COLUMBUS: The best Republican Supreme Court money can buy delivered another blow to Ohioans Thursday, when it upheld as constitutional a punitive bill rammed through a Republican-led General Assembly in 2004 that arbitrarily imposed low limits on damages in personal injury lawsuits.

Two dissenting judges said the ruling substituted the judgment of the legislature for the judgment of a jury and upheld the prerogative of the legislature, through its power to cap noneconomic damages, to effectively eliminate them.

In a stunning statement captured by the AP that shows just how self-righteous the Republican-business-complex has become in Ohio and how distorted its definition of justice has become, Steve Stivers, a Columbus Republican and sponsor of the bill the court upheld today, said, "As we continue our work to make Ohio an attractive place where companies want to locate, grow and create jobs, a balanced civil justice system is critical."

Stivers, a former telephone lobbyist turned legislator who served a tour of duty in Iraq in an administrative capacity, will run for Ohio's 15th Congressional seat next year against a popular Democratic county commissioner. Stivers, who had his sites set on becoming President of the Ohio Senate but who gave up that goal to run for Congress, ought to realize that his bill, and other business-protection bills he and his colleagues have passed have done little to jump start Ohio's moribund economy.

In its 6-2 decision, the all-Republican Supreme Court said the limits imposed by the Ohio Legislature were not the focus of the court, only whether the Legislature had the authority under the Ohio Constitution to pass the law.

Chief Justice Thomas Moyer, writing for the majority, first noted that the court is “not the forum to second-guess such legislative choices.” Following that escape-clause caveat, he said the bill’s imposition of arbitrary caps on noneconomic damages is constitutional and does not violate right to jury, right to due process, right to remedy, right to open court or right to equal protection. Moyer also wrote that the bill’s caps on noneconomic damages do not violate separation of powers or the single-subject rule, which prevents unrelated issues to be included in the same bill.

Moyer’s concluding remarks noted that, while the Ohio ruling today may not be in line with similar rulings in other states, the issues regarding tort reform and legislative actions to limit damages or preempt lawsuits to win awards in court remains controversial.

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. However, the issue remains a contentious one across the nation, with several states finding such statutes unconstitutional. [Chief Justice Moyer, Majority Opinion]

Dissenting Justice Terrence O’Donnell, as reported by The (Toledo) Blade said the General Assembly has unconstitutionally substituted its judgment for that of a jury, opening the door for further encroachments in the future.

It is not uncommon for Justice Paul Pfeifer, a life-long Republican who served in the Ohio Senate before becoming a judge, to dissent from his majority colleagues. His comments roundly bashed the “shallow…shoddy logic” of the majority’s reason to thwart the jury system, which he quoted Thomas Jefferson as saying is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

“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. 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.’ 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. Instead 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.” [Justice Paul Pfeifer, Dissenting]

Clearly frustrated by the court's decision, Janet Abaray, attorney for plaintiff Melisa Arbino, said in a few words what it took two dissenting judges pages to express:

"The Supreme Court has thrown away your right to trial by jury in a civil case."


The Ohio law does not limit damages in catastrophic cases, such as those involving paralysis or loss of limb. It also does not limit economic damages — lost wages, medical costs, and other measurable out-of-pocket damages — in less serious cases. The law does cap harder-to-quantify non-economic damages for such things as pain, suffering, and mental anguish at $250,000, or three times the economic damages up to a maximum of $500,000 arising out of the injury, $350,000 of which could go specifically to the injured person.

Justice Pfeifer, who had been a member of a 1999 court that struck down a similar bill, ridiculed the justice’s for not giving any mention to the arbitrary amounts Ohio’s legislature – then controlled by veto-proof Republican majorities in both chambers – imposed.

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? [Justice Pfeifer, Dissenting]


The case arose when Melisa Arbino of Cincinnati initiated a product-liability action against Johnson & Johnson, Ortho-McNeil Pharmaceutical, Inc., and Johnson & Johnson Pharmaceutical Research & Development, L.L.C. in 2006. Arbino alleged she suffered blood clots and other serious medical side effects from using the Ortho Evra Birth Control Patch, a hormonal birth-control medication that Johnson & Johnson created. Ortho Evra remains on the market, but its label warns that it could lead to serious side effects.

Arbino’s complaint contained challenges to the constitutionality of four tort-reform statutes implemented by Am.Sub.S.B. No. 80 of the 125th General Assembly and made effective on April 7, 2005.

Arbino argued that these statutes violate several provisions of the Ohio Constitution: the right to trial by jury in Section 5, Article I; the right to a remedy and the right to an open court in Section 16, Article I; the right to due process of law in Section 16, Article I; the right to equal protection of the laws in Section 2, Article I; the separation of powers, specifically the prohibition on the General Assembly exercising general judicial powers in Section 32, Article II; and the single-subject rule in Section 15(D), Article II.


The Ohio business community has waged a long, expensive, controversial but ultimately successful campaign to elect Republican judges to the Supreme Court. It comes as no surprise that with a Republican Legislature to pass tort reform laws that protect business by thwarting consumers and trial lawyers who represent them, bills like this one and rulings that uphold them were what was paid for.

Using the fact that previous courts had turned down previous bills like this, Ohio’s business community proceeded with his march to remake the court through elections. Since 1999, four Republican justices have joined the court.

Now that this law limiting damages by legislators has been upheld, Ohioans should expect Republicans, and maybe some Democrats who are too timid to oppose them for fear of not being reelected, to be emboldened to push for caps on medical malpractice tort-reform laws.

If Ohio lawmakers continue to deliver more illogical, pro-business and anti-people bills like this one, they’ll have no one to blame but themselves for why Ohio sits comfortably at the bottom of many important indicators of health. As recently as today, US Census estimates show Ohio is the 48th fastest growing state. Nipping at the heels of Rhode Island and Michigan, the only two states showing negative growth, Ohio’s growth has essentially flat-lined. And if it makes itself even more hostile to its own citizens and their ability to check the egregious acts of business by taking them to court, the slim positive growth it does have may also evaporate.

John Michael Spinelli is a former Ohio Statehouse government and political reporter and business columnist. He now serves as the OhioNews Bureau Chief for ePluribus Media Journal. Find ONB archives here.
If readers have a news tip or story idea about Ohio politics or government, contact the OhioNews Bureau at: ohionews@www.epluribusmedia.org

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