One of the things that makes the United States such a great country is our jury system. Our jury system constitutes the most direct form of self-governance in the world. Not even our votes at the ballot box have as an immediate, direct and consequential impact as do our votes in the jury box. As a people we have the constitutaional right, ability and responsibility to govern our own disputes, including collectively, through a representative jury, assessing those damages necessary to impart justice to injured people seeking redress through the civil justice system.
While you weren’t looking, in 2003 and 2005, the Ohio Legislature pased, and former Governor Taft signed into law, measures that interfere with and restrict our ability and responsibility to govern our own disputes. These “Tort Reform” laws, among other things, limit the amount of damages recoverable by injured persons. Specifically, Ohio’s “Tort Reform” laws limit the amount of noneconomic damages recoverable to the greater of $250,000, or three times economic damages, up to a maximum of $350,000. Punitive damages – those imposed by juries to punish and deter certain bad faith, wrongful and malicious conduct – are now capped at the lesser of two times compensatory damages or, in the case of a small employer, 10% of the employer’s net worth, not to exceed $350,000. Finally, if a wrongdoer has paid punitive damages awarded by a jury once in the past, it is immune from ever paying punitive damages for the same conduct in the future.
In years past, the Ohio Supreme Court has struck down legislative attempts to limit damage awards rendered by juries as unconstitutional. The make up of the Court, however, changed in the most recent elections cycle. Recently in Arbino v. Johnson & Johnson (http://www.sconet.state.oh.us/rod/docs/pdf/0/2007/2007-ohio-6948.pdf), the Court upheld Ohio’s “Tort Reform” laws. Several other state’s high courts have struck down similar legislation as unconstitutional. See http://www.centerjd.org/free/mythbusters-free/MB_Unconstitutional.htm.
Perhaps the most disturbing facet of Ohio’s “Tort Reform” legislation is the deceit perpetrated upon us the jurors. As an example, an Ohio jury that renders justice to an aggrieved person with an award of $500,000 for noneconomic damages will look the parties in the thier eyes and leave the courthouse swelling with pride that they have performed their civic duty and imparted justice. What the jury doesn’t know is that after they leave the courtroom the judge has no choice but to reduce their award to $250,000 or three times economic damages, not to exceed $350,000. Thats right, without ever being told, your jury verdict award will be slashed after you leave and you will never know. A trial by jury that most certainly is not. Instead, it is a trial by jury unless the legislature and the lobbyists disagree. Our legislators have seen fit to take away our right, ability and responsibility to impart justice in our civil justice system. Apparently, we are unable to govern our own disputes.
Furthermore, we can no longer adequately punish those who deal unscrupulously with us. Again, although we as jurors may impose what we think is an adequate punitive damage award to punish and deter future wrongful conduct, our decision will be overturned after we leave the courtroom without us ever knowing. With punitive damages capped and a pay one penalty system in place for corporations, we Ohioans are helpless to keep corporations honest. When economic incentives exceed the limited punitive damages imposed under Ohio law, nothing, not even us, can deter corporations from profiting at our expense.
When some people hear about the concepts of damage caps, they believe it is a vaild concept or idea. Once they understand how Ohio’s “Tort Reform” laws operate, most see the laws for what they are – an assault on our right of self-governance and to a trial by jury.