Tort Reform Begins In Ohio
In a move certain to strike dread in the hearts (and wallets) of personal injury attorneys everywhere, Ohio’s Supreme Court just approved caps on damage awards in personal injury suits, declaring them constitutional.
The ruling was issued in a case brought by a Cincinnati woman against Johnson & Johnson, the pharmaceutical company that manufactured the Ortho Evra birth control patch which the woman says gave her blood clots. The woman, Melisa Arbino, 32, suffered a cerebral hemorrhage and had to have a hole drilled in her skull to drain the excess fluid. Arbino contends that she’s suffered permanent physical injury and threatened her ability to conceive in the future.
Arbino’s recovery in the case, which personal injury attorneys nationwide have been watching closely, was limited by caps approved by Ohio’s legislature in 2004 that restricted damages to $350,000 unless the person lost a limb or bodily organ. Punitive damages are limited to twice the amount of compensatory damages.
Big businesses have strongly supported the damage caps which the spokesman for one business group says will fairly compensate victims while providing a “reasonable and predictable system for Ohio’s job creators”. Arbino’s personal injury lawyer says that such predictability really amounts to favoring the financial bottom line of out-of-state businesses over the rights of injured people.
Although my days of practicing law are long behind me, I have to admit that I’m rather outraged over Ohio’s law myself. Sure, there are plenty of ridiculous examples one can point to to justify damage caps, like the woman awarded $2.9 million in the McDonald’s coffee case. Those sensationalist cases are exceptions to the rule, however, and that’s why they become sensations.
But, as the dissenting justices in the Arbino case pointed out, legislatures don’t hear evidence. Juries do. They are never informed of how severely a person’s quality of life has been hampered, how much pain or agony they experienced. That’s never been their job: that is the right and the purview of the jury, and it is because we have juries to hear evidence on a case-by-case basis that justice is actually worked in the majority of such lawsuits.
So, if you can strain your ears to listen beyond the applause of the big businesses and their insurance companies who are overjoyed at this ruling from Ohio’s Supreme Court, perhaps you’ll hear the same thing that I do behind all of that financial glee: the death song of the jury system in the civil justice system.
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Kate, isn’t one of the potential side effects of pharmaceutical birth control that of blood clots? I seem to remember my doctor warning me of the possibility especially since I was a smoker. Why was she able to sue the manufacturer for a known potential side effect? Sure, the patch delivery system is newer, but the medication is pretty much the same whether it’s a patch, a pill, or implanted. I guess I’ll have to look more into the case.
kimsch’s last blog post..Rest In Peace Benazir Bhutto
I think her contention was that neither her doctor nor th company’s literature sufficiently stressed the risks. That’s the argument that thousands of Ortho Evra users are now making as they file suit against the company, at any rate, although users of the Pill have long known that blood clots are a risk, particularly for women over 30 and smokers.
I would have thought that the risks were at least the same unless the literature stressed that because of the delivery system it was no longer a risk. Dumb.
kimsch’s last blog post..Snowy Day
Me, too. Besides, I automatically assume that anything which plays with hormone levels means a greater risk of complications like blood clots and/or cancer.
I am (God, after all is gracious) not a lawyer.
I tend to think that “punitive damages” in civil suits are an extremely bad idea. Zero dollars should be the limit on punitive damages. If, in very, very few cases, there is a reason for punitive damages, there should be a strong case for a criminal case.
Of course, the whole of the legal system in these United States is corrupt. When “legal ethics” (and there is an oxymoron) allows champerty and barratry, the mainstays of the plaintiff bar, there is little reason to believe any attorney to have any ethics.
When a “respected” candidate for President made his wealth from lies and “channeling” a dead baby, we have a problem.
When attorneys mass process illegitimate claims of silicosis, we have a problem.
It would also be important to consider silicone breast implants: lawsuits created chiefly for profit and having no basis in fact. The lawyers attempted to suppress peer-reviewed scientific studies which showed that there was no risk to these implants. Such lawyers should be disbarred, but all they have suffered is profit.
The plaintiff bar has much to answer for, and it is not unreasonable to place (even onerous) restrictions on damages. The depredations of lawyers are extensive, and it would take far too long just to mention issues.
I love how I live in Ohio and find this out from a Kansas blogger. Heck, I live in P&G’s vicinity even.
jae’s last blog post..A bit much
Otto, I agree to a point about punitive damages. They often seem like double-dipping to me, despite their purpose of punishing especially egregious conduct.
As to the rest of the rant, I disagree. You seem intent on blaming attorneys for spinning facts in favor of their clients. I would point out, however, that that is their purpose, and it’s a role made necessary when we accord power to judge an act to individuals who weren’t involved or even present for the act. In other words, it is what it is.
As to the silicone implant data, there are just as many peer reviewed cases that say silicone implants DO carry risks. So you, yourself, just “spun” that.
Jae, ain’t newsreaders great?
VK, this discussion is really not going to go anyplace. Years and years ago, on GEnie, I had similar discussions with attorneys which did not go anyplace.
But attorneys, in general, do not discipline their ranks. You must have heard of the corruption among the lawyers involved in the silicosis litigation, who trolled for plaintiffs, and subsidized unethical medical doctors who “found” silicosis. You must have heard of the attorneys who trolled for clients, and even paid them, to sue in wrongful loss stock cases.
These attorneys should be disbarred, but no state bar association has done anything.
It is pleasant that the NC bar has yanked the license of Nifong (the DA whose desire for election trumped any concerns about justice and truth), but that was an egregious example and the NC bar could not do anything else.
The issue of silicone implants is not as ambiguous as you contend. There is no question that if an implant leaks, the woman will not be happy; and the providers were (until they were bankrupted) more than willing to correct the problem. There is no evidence, except for lawyer sponsored fake science, that silicone leakage can cause any of the immune system responses claimed. There is, however, massive evidence that lawyers attempted to suppress studies showing otherwise.
Now, I will admit that I am prejudiced against the plaintiff lawyer bar. I suppose that there a few attorneys who properly and correctly represent their clients, but there is not a whole lot of money in that. There is much more money in trolling for a class action, in one of the friendly counties.
Remember that an attorney is an officer of the court (something which the plaintiff bar conveniently ignores.) No legitimate attorney should have had anything to do with the Agent Orange litigation, or in most of the asbestos litigation: the government cannot be sued (it is called “sovereign immunity”), nor can individuals or corporations providing goods or services to the government.
Please know that we will never agree about this. So it would be agreeable to me if you deleted this post. After all, it isn’t going to reach an agreement.
Otto, we’ll agree to disagree like civilized folks then. I do understand where you’re coming from, and I agree that the Bar doesn’t police their ranks the way that, say, folks who’ve hired attorneys but aren’t lawyers themselves would prefer.
To some extent that’s due to the whole licensing thing. As with any license one might obtain, once you’ve met the requirements you have a right to hold on to the license until clear and convincing evidence establishes otherwise.
Since “clear and convincing” is a term of art, it naturally works in the lawyers’ favor.
I also agree that, like you, I’m sickened when I see those advertisements soliciting all and sundry to file a claim against the Deep Pockets Du Jour. For a while it was silicone implant makers. Judging by daytime TV it’s Ortho Evra right now.
I try to console myself with the fact that the lawyers running those ads are bottom feeders in all senses of the phrase: the ones most likely to pick up the phone and call them are, in fact, the dregs of society.
Perhaps they deserve each other.
I am Melisa’s mother. This patch nearly killed her as she was comatose when brought to the hospital for major brain surgery. She has NEVER smoked a cigarette in her life & WAS warned of the side effects, but possible death was not really emphasized. She now has the hospitals & doctors “hounding” her for the monies due them. 5 days after she was released from the brain surgery, she was re-admitted for a blood clot in each lung & spent another week in the hospital. She only got to see her 7 week old baby once while being hospitalized & wasn’t allowed to return to work for 3 months after all this. How sad a 24 yr. “young” girl had to suffer for all this, that nearly killed her. You should have to be in my shoes, signing the papers as legal guardian at the time, to save my baby girl’s life. I already lost a sister at 29 & my only brother at 47, so this almost put me & the rest of our family in an early grave!!! This was NOT her fault. Blame Johnson & Johnson who refuses to take this off the market!
Kimsch, you really need to get educated on this. First of all, the pill is time released, but the patch hormones go directly into your sytem. Whoever said Melisa was 32, was not paying atention. She was only 24 when all this happened!!! Like I mentioned before, you ought to be in mine or her shoes now. She wants more kids, but it will be HIGH risk if she does. In other words a trip to the “baby doctor” every week, to make sure she is doing OK. Quit knocking her & get an education!!! She DID NOTHING wrong!!!!!!!!!!!!
Thank you for explaining some of the horrors of Melissa’s situation to us, Karen. It’s one thing to read a sterilized report in the newspapers and quite another to actually go through the misery both you and Melissa have endured. I can’t imagine being only 24 and going through that, much less watching one of my children go through it.
Your point about the patch immediately delivering hormones vs. time release, as with the Pill, is well-taken. Here we all have access to the internet at our fingertips, and the patch has been out for quite some time, and yet WE are obviously uneducated about it all this time later.
It certainly isn’t fair of us to assume that a young girl, being given a patch from her doctor and believing he’d only prescribe something safe no matter how new it was at the time, would know any better.