Posted on 01/03/2008 12:39:56 PM PST by Graybeard58
Slowly, the tide of tort reform continues to rise across the United States. Last week, the Ohio Supreme Court for the first time upheld limits on damages assessed against manufacturers in product-liability cases after overturning two previous legislative attempts.
Ohio's most recent law sets a limit of $350,000 in damages for intangible losses such as pain and suffering, except when a plaintiff has been disabled permanently or has lost a limb or organ. The law also limits punitive damages — those imposed by juries ostensibly to teach manufacturers a lesson — to twice the amount of compensatory damages.
The case that reached Ohio's high court involved Melisa Arbino, a Cincinnati property manager who contended a birth-control patch made by Johnson & Johnson caused a series of life-threatening blood clots. She sued the company, and as a preliminary, her lawyer asked the trial judge for a summary ruling that the state's latest liability limits were as unconstitutional as the legislature's first two attempts.
That motion set the stage for last week's 5-2 ruling, written by Chief Justice Thomas J. Moyer. He wrote: "(O)ver the past three decades the legislature has repeatedly passed bills attempting to rein in what it perceived to be arbitrary and unpredictable damage awards in personal injury lawsuits because it believed such awards were a threat to the state's economic health. ... (N)oneconomic damages are inherently subjective and thus easily tainted by irrelevant considerations. The implicit, logical conclusion is that the uncertain and subjective system of evaluating noneconomic damages was contributing to the deleterious economic effects of the tort system.'"
In Connecticut, as in Ohio, "arbitrary and unpredictable damage awards in personal injury lawsuits" threaten the state's economic health. When the legislature convenes in February, tort reform comparable to Ohio's should be among the top priorities.
Ping to a Republican-American Editorial.
If you want on or off this list, let me know.
One of John Edwards’ top priorities in the White House, or as a vice president, will be to fight tort reform and appoint liability-friendly judges to the federal judiciary. Most of his large contributions come from trial lawyers.
I’m from Ohio, but I don’t think these are such solid rulings.
1. Full and complete recompense for injury should include everything from medical & legal costs to future income potential lost. It should be a full, fair, and actuarial accounting that goes to the injured.
2. Punitive damages should only be awarded if there’s the likelihood of others being injured in the same way because of the same defect. That money should be the amount that a statistical study determines is the likely number of future parties similarly injured multiplied by the damages awarded in the first trial. It should go into interest bearing escrow managed by the court and be paid from time to time to other injured parties so as not to repeat a court case for each party. These punitive damages should not be awarded to the originally injured party.
3.
On the other hand tort reform is advocated by enormous contributions from an industry that wants to rake in all your premiums and encourages its lawyers to lie cheat and steal in order to make sure that those who are seriously injured by the negligence and deliberate acts of others get nothing for their damages from those who are at fault.
What is conservative about the plan for substituting wealthy entities the size of government for the justice system and enabling them to be able to avoid having juries decide how much harm their insured have done?
ureaucratic
John Edwards specialized in infant cerebral palsy and brain damage cases. He used dubious “experts” and pseudo science—later discredited—on gullible juries to fleece doctors, hospitals and their insurers out of tens of millions of dollars.
One of his more shameless, courtroom exhibitions is recounted here by the New York Times:
Ann Coulter writes in “Godless” on pages 185-186:
“As a result of such lawsuits, there are now more than four times as many cesarean sections as there were in 1970. But curiously, there has been no reduction in babies born with cerebral palsy. All those cesareans have, however, increased the mother’s risk of death, hemorrhage, infection, pulmonary embolism, and Mendelson’s syndrome, while also driving up the cost of medical care for every man, woman and child in America.”
There has to be a middle ground and that is what tort reform and limits on damages tries to accomplish. Otherwise, the judicial system is turned into a vehicle by greedy lawyers for robbing everybody.
I doubt if you have ever experienced the greed of insurance companies bent on taking everyone’s premiums and never paying those who are injured by their insured. The tactics they employ include practices every bit as dishonest as any employed by John Edwards or any other plaintiff’s lawyer. What is the point of a 350K cap on pain and suffering for someone who, through the fault of another has been forced to endure constant and unremitting pain for years and years that could have been avoided? Let us say a person injured and put in a wheel chair with brain damage, for example, has medicals already of 300K and future care costs of 2 million and lost income of 600K. Why not let the jury decide what the other damages are? If there is no fault there are no damages; if there is fault in such a case the award should reflect the magnitude of the culpability as the jury sees it, not a government fiat. Juries are not so easily fooled as you seem to think.
Right, but I thought that the judge ruled on how juries can be subjective. In a case like you described, even a zillion dollars wouldn't bring back the person's legs or life. I don't have a problem with the injured person getting paid. I have a problem with the lawyer getting a third or half of the judgement. I really have a problem with lawyers collecting millions of dollars in fees and the plaintiffs getting a coupon or free rental from Netflix.
“What is the point of a 350K cap on pain and suffering for someone who, through the fault of another has been forced to endure constant and unremitting pain for years and years that could have been avoided?”
I thought “constant and unremitting pain” would be a permanent or lifetime condition covered by compensatory damages which could include open-ended monthly payments and medical care for life.
I found a couple of different takes on this issue if you get time:
http://druganddevicelaw.blogspot.com/2007/12/arbino-v-johnson-johnson-ohio-tort.html
The compensatory damages cover the actual medicals and the economic losses that are more easily measurable, usually consisting of a calculation of so much per year in lost earnings for a person whose ability to work is destroyed. These are what we call the “specials.” As a practical matter the medical costs usually are subrogated to the actual suppliers or health insurance carrier who paid the providers. The victim does not get to keep that money; it simply goes to those who provided the treatment and care. Let us take the classic case of a virtuoso violinist whose hand is severed or smashed. The earnings are measurable and can be shown economically; the medicals will be won and reimbursed, assuming it is a valid case. But the destruction of the entire purpose and meaning of the life is the hard to measure part.
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