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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 suffer 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 non-economic damages, she suffered no permanent physical impairment, and so the trial judge reduced the verdict to $350,000, the maximum permitted under the statute.

The defendants in Mr. Dyer’s case are asking the trial judge to reduce the damage award,  arguing that Mr. Dyer’s scar from post-collision surgery does not constitute the type of “physical deformity” required by the statute to escape the damage cap. What constitutes “physical deformity” is a standard never within the reach of someone like Jessica, who suffered great trauma but no physical injury.

For all the pain, fright and depression she has suffered, Jessica’s case did not meet any of the law’s four exceptions. The situation defies logic. Why is it that only a physical injury should be considered significant enough to meet the cap exception?  Jessica’s body was physically abused by a man who held a position of trust. Shouldn’t that be enough? Tying the cap exception to economic damages—that is, out of pocket losses—makes little sense, especially when the injured party is a minor.

How did we get here? For years, the Ohio General Assembly and the Ohio Supreme Court were at odds on the subject of tort reform. Responding to pressure from the business and medical communities, the General Assembly passed five tort reform laws over 30 years, each one limiting damages in some fashion. The Supreme Court struck down each one as unconstitutional.

In 2007, however, the court, with a different composition of justices, held in Arbino v. Johnson & Johnson, that the General Assembly was now within its rights to limit noneconomic (e.g, pain and suffering). as well as punitive damages, as set forth in S.B. 80.

The plaintiff in Arbino argued that the damages caps in S.B. 80 infringed on her right to trial by jury in that Article I, Section 5, of the Ohio Constitution reads, “The right of trial by jury shall be inviolate.”  Just eight years before, the court held, “[A] statute that allows the jury to determine the amount of damages to be awarded but denies the litigant the benefit of that determination stands on no better constitutional footing than one that precludes the jury from making the determination in the first place.”

With Arbino, the Ohio Supreme Court did an about-face and adopted a new rationale: S.B. 80 requires only that courts apply the damages caps to the facts found by the jury, not alter the findings of facts themselves, and there’s no constitutional problem with that.

Not so, wrote Justice Paul E. Pfeifer in his dissent. “The power to cap noneconomic damages is the power to eliminate them.” He posed the following question: “If a damages cap of $250,000 is constitutional  … why can’t the General Assembly limit damages for claims they do not favor to $100,000? Or $1,000? Or $10? Under this court’s reasoning, there is nothing in the Ohio Constitution to restrain the General Assembly from limiting noneconomic damages to $1.”

Years back, the right to trial by jury was regarded by the Ohio Supreme Court as something to be “jealously safeguarded.”  How times have changed.

Jessica’s case was argued before the Ohio Supreme Court last December on a new constitutional challenge. Let’s see how the court handles it.

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Jack D’Aurora writes for Considerthisbyjd.com

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Also published on Medium.