Ohio Court Weighs Pain-And-Suffering Cap

posted on:
May 3, 2007

author:
Staff

A woman who says she suffered life-threatening blood clots from a birth control medication wants the Ohio Supreme Court to declare the state’s cap on pain-and-suffering awards unconstitutional.

The court on Tuesday planned to hear arguments in the lawsuit filed by Melisa Arbino of Cincinnati over the Ortho Evra Birth Control Patch, which she contends caused permanent physical damage and threatens her ability to have children in the future.

The challenge to a 2005 law limiting pain-and-suffering awards is the first to reach the court. It is being closed watched across the country by companies who support the concept of caps and attorneys representing injured people.

The court threw out a similar law in 1999 in a decision that launched several business attacks against Democratic justices who voted against the legislation. Since then, the court has become an all-Republican bench. In the 1999 vote, two Republicans joined the court’s two Democrats in striking down the law.

The GOP-controlled Legislature approved the caps two years ago, limiting pain-and-suffering awards at between $350,000 and $500,000 for less severe injuries. The bill also put limits on jury awards meant to punish companies for wrongdoing in faulty product cases.

Businesses long said they needed such a bill in part because of rising insurance rates as a result of high jury verdicts.

Attorneys for Arbino contest that argument, saying insurance companies have raised their rates because of investment losses, not expensive jury verdicts.

“Is it constitutional to deprive someone of their right to a trial by jury simply to promote the private economy?” said Janet Abaray, a Cincinnati attorney representing Arbino.

Johnson & Johnson, makers of the patch, countered that companies need the predictability that caps bring to doing business in Ohio.

The 2005 law furthered lawmakers’ “legitimate interest in making Ohio’s civil justice system more fair, curbing the number of frivolous lawsuits and enhancing Ohio’s economic climate to promote jobs and innovation,” Irene Keyse-Walker, a Johnson & Johnson attorney, said in a court filing ahead of Tuesday’s hearing.

Arbino, 26, said she first used the patch shortly after her son, Kyler, was born in 2005. Within days she suffered from severe headaches and was throwing up and was hospitalized with a blood clot on her brain, she said.

She was discharged, only to return about two weeks later with blood clots in her lungs. She must still be treated by a doctor, still has a blood clot lodged in her brain and would have to go on blood thinners if she ever became pregnant again, according to Arbino and court documents filed with the Supreme Court by her attorneys.

“It infuriates me to know that this state has this law, that says we can only claim so much,” Arbino said in an interview Monday. “For me and every other woman that goes through this, we have the right to fight for this.”

Groups urging the court to overturn the law include the Ohio Academy of Trial Lawyers, the Ohio Conference of the NAACP and Mothers Against Drunk Driving.

Organizations asking the court to retain the law include the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business Legal Foundation, representing a wide range of business groups.

Under former Republican Attorney General Jim Petro, the state joined the case last year to defend the law. But Ohio’s new attorney general, Democrat Marc Dann was one of the bill’s fiercest opponents when he served in the Senate in 2005. At the time he called it “legislative malpractice.”

Dann is letting the document filed under Petro speak for itself but his office will not participate in Tuesday’s hearing, Dann spokesman Leo Jennings said.

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