Amicus Briefs on Behalf of the Ohio Association of Justice

At Nurenberg Paris, we have been asked to write Amicus Briefs (as a “friend of the court”) on behalf of clients of other attorneys whose rights are jeopardized. In the following cases, our firm submitted briefs urging the reversal of matters on appeal and the cases were reversed by the Supreme Court:

Arbino v. Johnson & Johnson, Slip Opinion No. 2007-Ohio-6948.

In the final week of 2007, the Ohio Supreme Court released this opinion which represents a set-back in the fight for justice on behalf of the injured. Arbino holds that a statute enacted by the Ohio General Assembly in 2005 imposing caps on certain compensatory and punitive damages recovered by injured persons in lawsuits against the injuring party does not violate the Ohio Constitution. The decision was issued on a 5-2 vote, with two justices dissenting. The dissenting justices believe the caps violate one or more provisions of the Ohio Constitution, including the right to trial by jury, to a remedy, and to equal protection.

The Arbino case stems from a lawsuit brought by Melisa Arbino, who sued Johnson & Johnson Pharmaceutical Co. for injuries she suffered after using a birth control patch manufactured by the company. The plaintiffs petitioned the federal district judge assigned to the case to certify to the Ohio Supreme Court two questions about the caps’ constitutionality. The caps, enacted by the Ohio legislature as part of a “tort reform” statute in 2005, limit non-economic “pain and suffering” damages to the greater of $250,000 per incident, or three times economic damages, but never to exceed $350,000. The statute also imposes caps on the amount of punitive damages recoverable. Under the statute, the caps are to be imposed even if the amount the jury awards is greater than the cap amount. The statute does, however, exempt certain kinds of injuries from the caps—but only if they fall within certain statutorily-defined categories of catastrophic injuries.

The plaintiffs contended the caps violate the Ohio Constitution because they infringe upon the fundamental right to trial by jury, which, as indicated in past decisions of the Court, includes the right to have the jury determine the amount of damages. The plaintiffs also argued that the caps violate the Ohio Constitution’s provisions protecting a party’s right to a remedy and providing for equal protection of the law. The majority rejected each of these arguments, imposing a highly deferential standard of review, and stating that “the court is not the forum to second-guess legislative choices.”

The dissenting justices, on the other hand, believe that the caps violate the Ohio Constitution’s right to trial by jury. The dissenters noted that the caps require the trial judge to disregard the jury’s fact-finding role, and thus render the jury’s fact-finding of damages in excess of the capped amount “a meaningless exercise.” Additionally, Justice Pfeifer’s dissent also finds the caps to violate the due process, right to a remedy, and equal protection provisions of the Ohio Constitution.

Nurenberg Paris attorney, Kathleen J. St. John, participated in writing the amicus curiae brief on behalf of the Ohio Academy of Trial Lawyers (now the Ohio Association for Justice), in support of the plaintiffs.

Holeton v. Crouse Cartage Co., 92 Ohio St.3d 115 (2001)

Construction worker Rick Holeton, while repairing a freeway overpass, was thrown from a lift bucket when the truck he was working in was hit by another vehicle. As a result of this accident, he was entitled to recover workers’ compensation benefits and to file a lawsuit against the driver of the other vehicle. However, due to the workers’ compensation subrogation statute passed in 1995, a substantial portion of Holeton’s settlement with the at-fault driver would have to be paid back to the BWC. The statute permitted the BWC to be reimbursed not only for benefits it has already paid, but also for “estimated future values” of benefits it might pay in the future. The statute also gave the BWC a first priority lien out of any settlement Holeton entered into with the driver, even if the driver’s insurance limits were insufficient to cover both the BWC’s lien and Holeton’s personal injury losses. Holeton thus petitioned the Ohio Supreme Court to determine whether the statute violated the Ohio Constitution.

The Supreme Court found the statute unconstitutional because it violated the Ohio Constitution’s “takings”, “right to a remedy”, and “equal protection” provisions. The Court held that the statute’s requirement that future benefits be reimbursed to the BWC before they were ever paid resulted in a taking of private property without just compensation because there was no guarantee that the injured worker would receive the monies he was forced to pay back. The Court also found the statute unconstitutional because it permitted the BWC to be reimbursed even if the injured worker was not “made whole” for his losses due to insufficient monies available from the at-fault driver.

Minton v. Honda of America Manuf., Inc., 80 Ohio St.3d 62, 684 N.E.2d 648 (1997)

Minton was driving his 1990 Honda Accord when a car came left of the center line hitting him head on, causing his death. Minton was wearing his shoulder belt and manual seat belt at the time but died from fatal head injuries. A product liability suit against Honda alleged that even though the restraint system complied with federal law, the car was defectively designed because it was not equipped with an airbag like Honda’s 1992 models. The trial court excluded evidence of the subsequent design changes and the jury, without the benefit of this evidence, returned a verdict for Honda. The Supreme Court held that 1). State law claims based on failure to equip cars with air bags are not preempted by federal law; and 2). Evidence that a manufacturer had included air bags in subsequent model years was admissible in cases premised on strict liability in tort to show that alternative designs were feasible and that the product was in fact defective.

Newman v. United Oho Ins. Co., 68 Ohio St.3d 170, 624 N.E.2d 728 (1994)

Moskovitz v. Mt. Sinai Medical Center, 69 Ohio St.3d 638, 635 N.E.2d 331 (1994)

Medical malpractice and wrongful death action resulting from physician’s failure to timely diagnose a cancerous tumor on Mrs. Moskovitz’s leg. In addition to seeking compensatory damages, the plaintiffs sought punitive damages against the negligent physician due to his subsequent alteration of medical records in an effort to conceal his malpractice. The jury awarded the plaintiffs $3.25 million in compensatory damages and $3 million in punitive damages. Although the court of appeals reversed, holding that the compensatory damages were excessive and that the plaintiffs were not entitled to punitive damages as a matter of law, the Supreme Court reversed and reinstated the verdict (though reducing the punitive damages to $1 million). The Supreme Court held that a physician’s subsequent alteration of medical records in an effort to conceal medical malpractice is sufficient to support an award of punitive damages, whether or not the act of altering or destroying records directly causes compensable harm. The Court also held that the trial court’s denial of prejudgment interest was improper; and that, in a proceeding for prejudgment interest, neither the attorney-client nor the work-product privilege prevents the discovery of the contents of an insurer’s claims file. The only privileged matters contained in the file are those that go directly to the theory of defense in a medial malpractice case.

Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994)

Zoppo’s bar burnt down as a result of arson. His insurance company conducted an inadequate investigation slanted toward identifying Zoppo as a perpetrator. Zoppo’s insurance claim was denied. He filed suit and the jury found that the insurance company owed Zoppo damages for the loss of his property and punitive damages and attorney fees for acting in bad faith. A “tort reform” statute which required the judge, instead of the jury, to set the amount of punitive damages was applied by the trial court. The Supreme Court held 1). Punitive damages may be recovered against an insurance company that breaches its duty of good faith in refusing to pay a claim of its insured upon proof of “actual malice” (“hatred, ill will… or a conscious disregard for the rights and safety of others that have a great probability of causing substantial harm”) 2). The “tort reform” legislation which requires the judge, instead of the jury, to set the amount of punitive damages violates Section 5, Article I of the Ohio Constitution which guarantees a right to trial by jury. As such, that “tort reform” legislation is unconstitutional.