In a response to a question posed by U.S. District Court in Toledo, which is considering a federal lawsuit stemming from Johnson & Johnson’s Ortho Evra birth-control patch, the court’s majority found that the General Assembly had the authority to enact the law.

“Some may think limitations on certain damages to be unwise legislative policy-making, but it is beyond the authority of any court to write into the Constitution that which was not installed there by the framers and ratified by the people,” wrote Chief Justice Thomas Moyer.

He was joined in the majority by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Lanzinger, and Robert Cupp. Justices Paul Pfieifer and Terrence O’Donnell dissented.

“If a damage 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?” asked Justice Pfeifer, part of the now long-gone 4-3 majority that struck down a similar law in 1999.

“Under the court’s reasoning, there is nothing in the Ohio Constitution that restrains the General Assembly from limiting non-economic damages to $1…,” he wrote. “After today, what meaning is left in a litigant’s constitutional right to have a jury determine damages?”

Justice O’Donnell opined that the General Assembly has unconstitutionally substituted its judgment for that of a jury through Senate Bill 80, opening the door for further encroachments in the future.

Melisa Arbino, of Cincinnati, suffered a series of potentially fatal blood clots in her brain and lungs in 2005 that she maintains were the result of side effects from the hormonal patch. Ortho Evra remains on the market, but its label warns that it could lead to serious side effects.

The 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, however, 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.

The law was backed by Ohio’s business community, which cited prior decisions striking down such caps as reasons to remake the court through elections. Four justices have joined the court since the 1999 ruling.

Although not a part of this case, the ruling is likely to bolster the argument that different caps put in place under a medical malpractice tort-reform law are also constitutional.

December 27th, 2007 by JIM PROVANCE with toledoblade.com

SOURCE: Ortho Evra and Blood Clots › Ohio Supreme Court upholds law that puts cap on personal injury damages