If you think Ohio law treats all injured parties the same, you’re wrong.  Let’s look at the different outcomes for two plaintiffs.

Doug Dyer was involved in a collision that resulted in spine and neck injuries and multiple surgeries; he still suffers pain. Last June, a Franklin County jury awarded him nearly $11 million, which included over $9 million in damages for pain and suffering, mental anguish and loss of enjoyment of life, all of which are referred to as “noneconomic damages.”

At age 15, Jessica Simpkins of Delaware County was forced by her pastor to engage in oral sex and was then raped.  Jessica suffers from PTSD and depression.  She is afraid of the dark and afraid to be alone and avoids intimate relationships.  In 2013, Jessica was awarded just $350,000 for her noneconomic damages.

What’s the difference?  In 2005, the General Assembly limited the damages available to an injured party by capping noneconomic losses to either $250,000 or three times the plaintiff’s economic loss (e.g., medical bills, lost wages, etc.), whichever is larger.  The cap does not apply where the plaintiff suffers a permanent and substantial physical deformity, loss of use of a limb, loss of an organ, or a permanent physical injury that permanently prevents a person from independently taking care of himself and performing life sustaining activities.

Because the jury concluded that Mr. Dyer suffered a permanent and substantial physical deformity, the statute-imposed cap on noneconomic damages did not apply to him.  Although the jury awarded Jessica $3.5 million in noneconomic damages, she suffered no permanent physical impairment, and so the trial judge reduced the verdict to $350,000, the maximum under the statute.

Young Jessica’s body was physically abused by a man who held a position of trust, and suffers from PTSD and depression. Why is it that only a physical injury should be considered significant enough to meet the damage cap exception.

Responding to pressure from business and medical communities, the Ohio State General Assembly passed 5 tort reform laws over 30 years, each one limiting damages in some fashion.  Initially, the Supreme Court of Ohio struck down each one as unconstitutional.  However, in 2007, the Supreme Court with a different composition of justices held that the General Assembly was now within its rights to limit noneconomic as well as punitive damages.  This is despite the fact that the Ohio constitution reads, “The right of trial by jury shall be inviolate.”  The power to cap noneconomic damages is almost the equivalent to eliminating them.  If a damages cap of $250,000 is constitutional, why can’t the General Assembly limits damages for claims they do not favor to $10??