BuckeyeBlog

A couple weeks ago, I posted here regarding the Manhattan Institute’s recent report on the improvement Ohio has made in reforming its civil liability laws. The report briefly mentions two cases in which the Ohio Supreme Court upheld recently enacted reforms of Ohio’s tort system. I discuss those two cases in more detail in the just released summer issue of the Federalist Society’s State Court Docket Watch (the article on the Ohio cases begins on page 2 under “Case in Focus”). As the Manhattan Institute’s report indicates, the recently enacted tort reforms, including placing caps on pain and suffering damages and time limits on liability, are critical if Ohio is going to be successful in making the state attractive again for investment and business activity. Interestingly, in one of the recent cases, Arbino v. Johnson v. Johnson, the portion of the decision upholding the cap on pain and suffering damages was by a 5-2 majority. Two of the justices in the majority, Justice Evelyn Lundberg Stratton and Maureen O’Connor, are up for reelection in 2008. If they are defeated and replaced by more activist justices, the court might then have a majority that would be willing to strike down the caps on damages enacted by the General Assembly. That would be a major step backward for Ohio.

The Center for Legal Policy at the Manhattan Institute manages Trial Lawyers Inc., which does excellent work documenting the crisis in America’s tort system. Its most recent report Judging Ohio: Legal Reforms are Steering Ohio’s Struggling Economy in the Right Direction documents Ohio’s checkered past in trying to reform the personal injury lawsuit system. On numerous occasions, the General Assembly enacted significant reform of the system only to see its efforts invalidated by an activist majority on the Ohio Supreme Court. In recent elections, however, justices who take a less activist role toward public policy matters have been elected to the court. As I wrote in this Buckeye Institute commentary this past spring, the court now has a majority that recognizes the Ohio Constitution authorizes the General Assembly to enact legislation through its lawmaking function, including enacting reforms to the civil liability system. In two recent cases, the Ohio Supreme Court upheld statutory caps on pain and suffering and punitive damages and a 10-year statute of repose for products liability actions.

Two of the justices who make up the new majority committed to judicial restraint are up for reelection in November. The Manhattan Institute’s report raises the ugly possibility of the personal injury trial lawyers  (a.k.a. “Trial Lawyers, Inc.”) regaining the upper hand on the court:

[S]hould Trial Lawyers, Inc. recapture the state supreme court, the legislature’s hard-earned reforms could be reversed in short order. With incumbent justices Maureen O’Connor and Evelyn Lundberg Stratton up for reelection this year, all eyes will be on what promises to be another hotly contested battle. The Buckeye State faces a daunting task in restructuring its industrial economy. Fortunately, it has already embarked on that task by making improvements in its legal climate. The people of the state, having finally been exposed to both sides of the issue in heavily publicized races, have reclaimed their justice system; they can ill afford to let it return to the days when it was a paradise for Trial Lawyers, Inc.”

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A little bit of headline reform is needed here, “Ohio lawmakers appeal DHL’s UPS decision.”

Er, no. The lawmakers appealed to DHL to change its decision. Nobody sued anybody, at least not yet.

A better headline would be, “Say, guys, how about a little cheese with your whine?”

And speaking of untoward results, how about agreeing to chaperone a high school trip, only to be sued because an 18-year-old snuck in some booze and ended up tumbling off a balcony to her death?

Here’s the thing; take doctors as an example. You sue a doctor if you die, the result will not be better medical care. It will be no medical care. If your chance of dying at a given moment is, say, 75 percent to 100 percent, and a doctor can change that percentage to, say, 60 percent, you’ll take that deal. But if your luck doesn’t hold, your estate does not win the lottery. Doctors aren’t there to ensure no one ever dies and insure huge payouts if someone does. Doctors are there to change the odds.

18-year-olds are marginally more likely than adults to engage in stupid behavior, and significantly less likely to know how to deal with the adverse consequences. That has nothing to do with chaperones. Except in the most egregious circumstances, suing chaperones won’t result in fewer kids’ deaths. It’ll just mean the kids will die closer to home