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Published: Wednesday, 6/21/2006

Caps on civil-suit damages put on fast track

BY LUKE SHOCKMAN AND JIM PROVANCE
BLADE STAFF WRITER

The question of whether Ohio's cap on noneconomic and punitive damages in civil lawsuits is constitutional is headed for the state Supreme Court more quickly than expected.

U.S. District Judge David Katz of Toledo asked the state's high court yesterday to decide on the legality of the cap because it could affect a lawsuit before him in which Ohio litigants are suing Ortho Evra, alleging the company's birth control patch caused serious side effects or death.

If the state court agrees to decide the issue - it has the option of declining - the ruling's impact would be "very important" on civil cases statewide, said Janet Abaray, attorney for a Cincinnati plaintiff involved in the patch case.

That's because supporters and opponents of damage caps on civil suits have long said that, until the state Supreme Court rules on whether the legislature's caps are constitutional, the limits' impact on insurance rates, premiums, and other costs is uncertain.

The legal community and the General Assembly expected the issue to eventually be addressed, but most assumed it would take years for a case to reach the high court.

"The advantage of [Judge Katz asking the state court to rule] is it gets decided by the Ohio Supreme Court a lot quicker," said Charles Boyk, a Toledo personal injury attorney. He said he and his colleagues, as well as attorneys representing defendants in such cases, "would like to have an answer."

The issue of caps on damages has long been controversial.

The Ohio General Assembly in recent years passed two laws capping damage awards by juries. The first affected medical malpractice awards and capped noneconomic damages at $1 million in catastrophic cases and $500,000 in less severe cases.

The second law - the one containing caps Judge Katz wants the court to rule on - was passed in 2004 and contains no limits on jury awards in catastrophic cases. But it limits jury awards for pain, suffering, and other intangible, noneconomic damages for noncatastrophic injuries in product liability, personal injury, and other civil lawsuits at $500,000 per injury, $350,000 of which could go directly to the injured person.

"The sooner we have the constitutionality test, the sooner the full benefits of laws involving lawsuit abuse reform will flow to the general public," said state Sen. Steve Stivers (R., Columbus), the law's author.

"People have been scared to pass on the complete results of tort reform, because they consider it to be temporary until it's tested," he said.

Similar damage caps were passed in 1996, but three years later the Supreme Court, in a 4-3 decision, struck them down as unconstitutional.

Seven years and three elections later, the 2006 court is perceived by observers to be more business-friendly. Only two of the four justices in the 1999 majority are still on the court, and the Republicans elected to replace those who retired were strongly backed by the business community.

While Judge Katz is not asking for the state court to rule on the legality of medical malpractice caps, "whatever the court does will send a signal in terms of what they're thinking on these types of issues," said Tim Maglione, spokesman for the Ohio State Medical Association.

In fact, his organization "has been trying to do exactly what is happening here," he said. It has been searching for a federal malpractice case as a vehicle to convince the state court to rule more quickly on the legality of the caps.

Mr. Maglione was cautious on predicting how the current court might rule, but said he believes "they'll be more inclined to defer [the issue of caps] to the legislative branch of government versus the court itself making that determination."

State Sen. Marc Dann, a Youngstown-area Democrat who opposed the tort reform law, said he was glad a federal judge placed the issue in the legal express lane.

"Certainly there would be less uncertainty in the civil justice system," he said. "But this court has had strong support from the insurance industry. I just hope they will be able to take off their campaign hats, put on their judge hats, and look at this objectively and constitutionally."

Under Supreme Court rules, both sides have 20 days to file briefs in support of their positions, but there is no time limit on the court's decision whether to accept the question, let alone issue a final ruling on constitutionality.

The issue promises to remain a hot one in this election year in which two seats on the seven-member court are on the ballot. One of those seats is now held by Justice Alice Robie Resnick, the Ottawa Hills Democrat who wrote the 1999 decision striking down the law. She is not seeking re-election.

Contact Luke Shockman at:

lshockman@theblade.com

or 419-724-6084.



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