in the supreme court of ohio in the supreme court of ohio melissa arbino, petitioner,))))) on...

IN THE SUPREME COURT OF OHIO

Melissa Arbino,Petitioner,

)))))))

On Questions Certified by the UnitedStates District Court for the NorthernDistrict of Ohio, Westeln DivisionV.

Johnson & Johnson, et al.,

Respondents.

)

AMICUS CURIAE BRIEF OF THE PRODUCT LIABILITYADVISORY COUNCIL, INC. IN SUPPORT OF RESPONDENTS

Frank C. Woodside, Hl, Esq. (0000636)(COUNSEL OF RECORD)

Mark L. Silbersack, Esq. (0013288)Melissa L. Korthage, Esq. (0072967)DINSMORE & SHOHL LLP225 East FiBh Street, Suite 1900Cincinnati, OH 45202Phone: (513) 977-8200Fax: (513) 977-8141frank.woodsidena dinslaw.comCounsel for Amicus Curiae ProductLiability Advisory Council, Inc.

Janet G. Abaray, Esq. (0002943)

(COUNSEL OF RECORD)

BURG, SIMPSON, ELDREDGE, HERSH & JARDINE312 Walnut Street, Suite 2090Cincinnati, OH 45202Phone: (513) 852-5600Fax: (513) 852-5611Counsel for Petitioner Melissa Arbino

Robert S. Peck, Esq.Stephen B. Pershing, Esq.CENTER FOR CONSTITUTIONAL LITIGATION, P.C.1050 31^ Street, NWWashington, DC 20007Phone: (202) 944-2874Fax: (202) 965-0920Counsel for Petitioner Melissa Arbino

Irene Keyse-Walker, Esq.

(COUNSEL OF RECORD)

Benjamin C. Sasse, Esq.Julie A. Callsen, Esq.TUCKER ELLIS & WEST L.L.P.1150 Huntington Building925 Euclid AvenueCleveland, OH 44115Phone: (216) 696-2286Fax: (216) 592-5009Counsel for Respondents Johnson & Johnson, et al.

The Hon. Jim Petro, Attorney GeneralStephen P. Carney, State Solicitor

(COUNSEL OF RECORD)Sharon Jennings, Esq.Holly J. Hunt, Esq.Frank M. Strigari, Esq.OHIO ATTORNEY GENERAL'S OFFICE30 East Broad Street, 17th FloorColumbus, OH 43215Phone: (614) 466-2872Fax: (614) 728-7592Counselfor Respondent State of Ohio

Case No. 06-1212

U.S. District Court CaseNo. 3:06 CV 40010

I309325v43638fi-1

TABLE OF CONTENTS

Pame

TABLE OF CONTENTS...... - ---....... ............................................. -.......... -........... --............ ------------ '

TABLE OF AUTHORITIES ..... ........................ .............. ................................................ ............. iv

I. INTEREST OF AMICUS CURIAE ..........................---------............................................--- I

11. BACKGROUND................................................................................................................. 3

A. Product manufacturers often suffer excessive punitive damage awards thatviolate their due process rights ........................................................................... ..... 3

B. The R.C. 2315.21 punitive damage caps prevent excessive awards ....................... 6

III. ARGUMENT ...................................................................................................................... 7

A. Plaintiff must prove "beyond a reasonable doubt" that the R.C. 2315.21punitive damage caps are "clearly incompatible" with the Ohio Constitution ....... 7

B. U.S. Supreme Court decisions - including two since Sheward- support statelegislation to cap punitive damages ... ..........................°.......................................-. 8

1. The Due Process Clause protects civil defendants from arbitrary andexcessive punitive damage awards ..............................................................9

2. State legislatures may enact punitive damage caps...................................12

C. S.B. 80 brings reasonableness, efficiency, and justice to punitive damageclaims in product liability cases, striking a delicate balance among the rightsof plaintiffs, defendants, and society .....................................................................14

1. The General Assembly has the power to enact punitive damage caps...... 14

2. The R.C. 2315.21 punitive damage caps meet U.S. Supreme Courtdue process requirements .................................. ........................................ 15

3. The R.C. 2315.21 punitive damage caps are particularly appropriatein product liability cases ............................................................................ 19

D. The R.C. 2315.21 punitive damage caps do not violate the right to jury trial ------ 20

1. Legislation setting limits on punitive damages does not violate theright to jury trial -----------------------------.......................................................... 21

a. Ohio and U.S. Supreme Court cases support such action ............. 21

b. Other states have rejected similar objections .......... ----------- 22

c. The trial judge's action enforcing a cap leaves inviolate thejury's role as the fact-finder ..........................................................22

TABLE OF CONTENTS(Continued)

PaQe

2. Sheward is not controlling on this issue .................................................... 24

a. Sheward involved different facts .................................................. 25

b. Shei, ard's comments on jury trial are mere dicta ......................... 25

c. Sheward's dicta lack logic and legal reasoning ............................26

d. Dardinger undermines Sheward's dicta .. ..................................... 28

e. Sheward did not address the legal issues presented here ..............29

3. The right to a jury trial does not preclude the General Assembly fromestablishing caps on punitive damages in product liability cases ............. 29

a. The General Assembly has the power to create a statutoryclaim and establish the maximum civil penalties for violationsthereof .................................................................................---------. 30

The caps do not invade the province of the jury as "finder offact ' ........................................ ..................-................................... 32

c. RC 2315.21 actually allows the jury to set the amount ofpunitive damages in most cases .................................................... 33

d. R.C. 2315.21 allows uncapped punitive damages to somecases ......... -................... ................................................................. 33

4. The doctrine of stare decisis does not require that the R.C. 2315.21punitive damage caps be invalidated ......................................................... 34

E. The R.C. 2315.21 caps do not violate the Constitution's "right to a remedy,"-due process,'° and "equal protection" provisions .................................................36

l. The R.C. 2315_21 punitive damage caps do not violate Article 1,Section 16 ["right to a remedy" and "due process"] ................................. 36

a. Punitive damages is not a "remedy" to which plaintiffs have a""ght............................................ -...........-----................................. 36

b. R.C. 2315.21 must be evaluated under the "rational basis"standard, is presumed constitutional, and may be invalidatedonly if Plaintiff shows beyond a reasonable doubt that there isno set of circumstances under which it can be validly applied .....37

c. Instituting punitive damage caps is a reasonable means toprotect the due process rights of tort defendants and tomaintain an efficient and credible system of civil justice............. 38

11

TABLE OF CONTENTS(Continued)

PaQe

(1) The legislative intent is to achieve legitimate goals.......... 38

(2) The overall legislative judgment is not clearlyerroneous ................. .....................................---------------... 39

(3) R.C. 2315.21 promotes judicial efficiency andcredibility .......................................................................... 41

(4) R.C.23I5.21 provides "fair notice" to prospectivewrongdoers ...............................-------°--------°--°---°---°-----. 42

(5) R.C. 2315.21 protects defendants from ruinouspuni shm ent ------.................................................. -----°--. 42

(6) R.C.2315.21 provides sufficient punishment anddeterrence .........................................°---------°----°-°---........ 44

(7) R.C. 2315.21 protects consumers from the loss ofproducts and innovation and from artificiallyincreased prices ......................................................... ........46

2. The R.C. 2315.21 punitive damage caps do not violate Article 1,Section 2 [equal protection] ..................................................................... 47

a. R.C. 2315.21 must be evaluated under the "rational basis"standard and is presumed constitutional .......................................47

b. R.C. 2315.21 `s punitive damage caps do not create anydisparate treatment of plaintiffs which would violate equalprotection guarantees ..... -....... ------ ..........................:........------..... 48

c. The R.C. 2315.21 punitive damages caps are necessary......... ......49

IV. CONCLUSION ..... ............................................................................................................ 50

APPENDIX A

APPENDIX B

CERTIFICATE OF SERVICE

III

TABLE OF AUTHORITIES

Page

FEDERAL CASES

BMW ofN America, Inc. v. Gore (1996), 517 U.S. 559,116 S.Ct. 1589 ................. .................. 6, 9, 10, 11, 12, 13, 16, 17, 27, 28, 31, 34, 39, 44, 45, 46, 50

Boyd v. Bulala (4th Cir. 1989), 877 F.2d 1191 .............................................................................22

Browning-Ferris Industries v. Keleo Disposal, Inc. (1989), 492 U.S. 257,109 S.O. 2909 ...... ................................................................................ -.............................. 5, 21, 42

Carroll v. Otis Elevator Co. (7th Cir. 1990), 896 F.2d 210 ..........................................................17

Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), 532 U.S. 424,121 S.Ct.. 1678 ....................................................................9,10,13,21,22,23,30,31,33,34,46

Fed. Communications Comm- v- Beach Communications (1993), 508 U.S. 307,l 13 S.Ct.. 2096................................................................. -.-....----------............................°.....----.....41

Gasperini v. CenterforHumanities, Inc. (1996), 518 U.S. 415, 116 S.Ct.. 2211 ....................6, 21

Pacifzc Mutual Life Ins. Co. v. Haslip (1991), 499 U.S. 1,111 S.Ct.. 1032 ...... ................... -.................................................................. 9, 12, 18, 19, 31, 33, 50

Heller v. Doe (1993), 509 U.S. 312, 113 S.Ct.. 2637 ...................................................................41

Hohn v. U.S. (1998), 524 U.S. 236, 118 S-Ct.. 1969 ....................................................................34

Honda Motor Co., Ltd. v. Oberg (1994), 512 U.S. 415, 114 S.Ct.. 2331 ............... 9, 18, 21, 28, 44

Smith v. Wade (1983), 461 U.S. 30,103 S.Ct.. 1625 ....................................................................23

State Farm Mut. Auto. Ins- Co. v. Campbell (2003), 538 U.S. 408,123 S.Ct.. 1513 ..................................5, 9, 10, 117 12, 13, 15, 16, 17, 23, 27, 31, 36, 39, 42, 45, 50

United States v. Salerno (1987), 481 U.S. 739, 107 S.Ct.. 2095 ..................................................38

Village ofHoffnan Estates v- Flipside, Hoffnzan Estates, Inc. (1982), 455 U.S. 489,102 S.Ct.. 1186..................... -• ......................................-----.-----.--.......------.--.................................. 38

STATE CASES

Arnesano v. State (Nev. 1997), 942 P.2d 139 ...............................................................................22

Barnett v. Turbonzeca Engine Corp. (Mo. App. 1998), 963 S.W.2d 639 .....................................44

iv

TABLE OF AUTHORITIES(Continued)

Page

Benjamin v. Columbus (1957), 167 Ohio St. 103, 146 N.E.2d 854 ..............................................37

Buckley v. Wilkins (2005), 105 Ohio St.3d 350, 2005-Ohio-2166; 826 N.E.2d 811 ......................8

Central Ohio Transit Authority (COTA) v. Transport Workers Union ofAmerica (1988),37 Ohio St.3d 56, 524 N.E.2d 151 ...---- -•-•--• ......................................................--...15

City ofRocky River v. State Employment Relations Bd. (1989), 43 Ohio St.3d 1,539 N.E.2d 103 ............... .............................................................................................................. 35

Columbus Metropolitan Housitig Authority v. Thatcher (1942), 140 Ohio St. 38,42 N.E.2d 437 ... .............................................................................................................................. 8

Cooper Tire & Rubber Co. v. Tuckier (Miss. 2002), 826 So. 2d 679 ...........................................44

Crowe v. Owens Corning Fiberglas (1999), 87 Ohio St.3d 204, 1999-Ohio-16,

718 N.E.2d 923 ..............--...-.-----...---°---.......--•-----°------°.-------------°----...----.---°..°.----°---°----..26, 44

Dardinger v. Anthem Blue Cross & BlueShield (2002), 98 Ohio. St.3d 77,2002-Ohio-7113, 781 N.E.2d 121 .............................................6, 14, 18, 23, 24, 28, 29, 36, 37, 42

Daugherty v. Wallace (2nd Dist. 1993), 87 Ohio App. 3d 228, 621 N.E.2d 1374 .......................40

DeSenco, Inc. v. City ofAkron (1999), 84 Obio St.3d 535, 706 N.E.2d 323 ..................................8

Evans ex. rel. Kutch v. State (Alaska 2002), 56 P.3d 1046 ...........................................................22

Exparte Apicella (Alabama 2001), 809 So. 2d 865 ..................................................................... 22

Fassig v. State, ex rel. Turner (1917), 95 Ohio St. 232,116 N.E. 104 ......................................... 27

Finstad v- W.R. Grace & Co- (Mont. 2000), 301 Mont. 240 ........................................................43

Galavda v. Lake Hospital Systems, Inc. (1994), 71 Ohio St.3d 421, 1994-Ohio-64,644 N.E.2d 298, 308, reconsideration denied, 71 Ohio St.3d 1467,644 N.E.2d 1839, cert. denied, 516 U.S. 810, 116 S.Ct. 57 .............................................23, 30, 33

Gallimore v. Children's Hosp. Med. Center (1993), 67 Ohio St.3d 244,1993-Ohio-205, 617 N.E.2d 1052 .................................................. .......... ............ ........................ 35

Gordon v. State ofFlorida (Fla. 1992), 608 So. 2d 800 ...............................................................22

Gregoiy v. Flower (1972), 32 Ohio St.2d 48, 29 N.E.2d 181 .......................................................31

Holeton v. Crouse Cartage Co. (2001), 92 Ohio St3d 115, 2001-Ohio-109,748 N.E.2d 1 I I I ......... ................... •.......................................................................................... --..38

v


Paize

Inglis v. American Motors Corp. (1965), 3 Ohio St.2d 132, 209 N.E.2d 583 ................................ 3

Leavitt v. Morrow (1856), 6 Ohio St. 71 ............................. .............. -.................................... ....... 28

Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 218 N.E.2d 185 ................................. 3

Lyle Construction, Inc_ v. Ohio Dept. ofNat. Res. (1987), 34 Ohio St.3d 22, 516 N.E.2d 209 ... 48

Mack Trucks, Inc. v_ Conkle (Ga. 1993), 263 Ga. 539 ..................................................................43

Madjorous v. State (1925), 113 Ohio St. 427 ...............................................................................15

McCrone v. Bank One Corp. (2005), 107 Ohio St.3d 272, 2005-Ohio-6305, 839 N.E.2d 1........37

MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 572 N.E.2d 661 .................................25

Morris v_ Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d 765.... ................................................... 47

Mrozka v. Archdiocese of St. Paul & Minneapolis (Minn. App. 1992), 482 N.W.2d 806 ........ ...44

Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174 .............................................23, 36

Pulliam v. Coastal Emergency Servs. ofRichmond, Inc. (Va. 1999), 509 S.E.2d 307 .................32

Rhvne v. K-Mart Corp. (N.C. 2004), 594 S.E.2d I .................................................................22, 32

Roberts v. Mason (1859), 10 Ohio St. 277 ........................................................ 7, 14, 21, 27, 29, 31

Rogers v. Toni Home Permanent Co. (1958), 167 Ohio St. 244, 147 N.E.2d 612 .........................3

Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 374 N.E.2d 411 ......................................................4

Saberton v. Greenwald ( 1946), 146 Ohio St. 414, 66 N.E.2d 224 ......................... 7, 14, 21, 271 31

Scott v. News Herald, et al. ( 1986), 25 Ohio St.3d 243, 496 N.E.2d 699 .....................................28

Smith v. New York Rd_ Co. ( 1930), 122 Ohio St. 45, 170 N.E. 637 .............................................. 31

Smith v. Printup (Kan. 1993), 254 Kan. 315, 866 P.2d 985 ...................................................22, 44

Sorrell v. Thevenir ( 1994), 69 Ohio St.3d 415, 1994-Ohio-38, 633 N.E.2d 504 ..........................37

St. Ann's Hospital u Arnold ( 10th Dist: 1996), 109 Ohio App. 3d 562, 672 N.E.2d 743............44

State ex reL Bishop v. Board ofEd. of Mt. Orab Village School Dist:,Broi4n County ( 1942), 139 Ohio St. 427, 40 N.E.2d 913 .........................................................8. 44

vi


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State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59 ..................... 8,38

State ex rel. E. Cleveland Fire Fighters' Assn., Local 500, IAFF v. Jenkins (2002),96 Ohio St.3d 68, 2002-Ohio-3527, 771 N.E.2d 251 ............ ......................................................... 8

State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66 .........................................40

State ex rel. Jacknzan v. Court of Common Pleas of Cuyahoga County (1967),9 Ohio St.2d 159, 224 N.E.2d 906................... .......:............-...---...................................................8

State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451,1999-Ohio-123, 715 N.E.2d 1062 ...................1, 8, 9, 10, 15, 20, 22, 24, 25, 26, 27, 28, 29, 34, 35

State v. Beasley (1984), 14 Ohio St.3d 74, 471 N.E.2d 774 .........................................................15

State v. Beckley (1983), 5 Ohio St.3d 4, 448 N.E.2d 1147 ...........................................................38

State v. Morris (1978), 55 Ohio St.2d 101, 378 N.E.2d 708 ...................................................15, 31

State v. Sinito (1975), 43 Ohio St.2d 98, 330 N.E.2d 896 .......................................:......................7

State v_ Thompkins (1996), 75 Ohio St.3d 558, 1996-Ohio-264, 664 N.E.2d 926 .......................37

State v WillianTs (2000), 88 Ohio St.3d 513, 2000-Ohio-428, 728 N.E.2d 342 ...........................37

State v. Wilson (1979), 58 Ohio St.2d 52, 388 N.E.2d 745 ...........................................................25

Stern Enterprises v. Plaza Theatres I and II, Inc_, et aL (11 th Dist. 1995),105 Ohio App. 3d 601, 664 N.E.2d 981........................................................................................ 49

Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267 .....................................3

Toole v. Richardson-Merrell, Inc. (1967), 251 Cal. App. 2d 689 ...................................................4

United States RR. Retirement Bd. v. Fritz ( 1980), 449 U.S. 166, 101 S.Ct.. 453 .........................41

Villella v. Waikem Motois Inc. ( 1989), 45 Ohio St.3d 36, 543 N.E.2d 464 .................5, 18, 23, 42

Virmani v. Presbyterian Health Services Corp. (N.C. 1999), 515 S.E.2d 675 .............................32

W.R. Grace & Company-Conn. v. Waters (Fla. 1994), 638 So. 2d 502 .......................................43

Walker v. Citv orCincinnati ( 1871), 21 Ohio St. 14 ................................................................°.....8

WestJield Ins. Co. v. Galatis (2003), 100 Ohio St.3d 216, 2003-Ohio-5849,797 N.E.2d 1256 .......................................................... ---.......__...................---..----.------...........34. 35

vv


Page

Whitaker v. M. T. Automotive, Inc., 1 I I Ohio St.3d 77, 2006-Ohio-548I ....................................36

Wightman v. Consolidated Rail Corp. (1999), 86 Ohio St.3d 431, 1999-Ohio-119,

725 N.E.2d 546 ....................-----.----.---..---.----.......-----.---•-.----------..-•--..----•.-.-----.--•------..---.......---...---6

Williams v. Ward (6th Dist. 1969), 18 Ohio App. 2d 37, 246 N.E.2d 780 ....................... ..... 34, 35

Williams v. Aetna Fin. Co. (1998), 83 Ohio St.3d 464, 700 N.E.2d 859 ..........................25, 27, 28

Zoppo, et al. v. Homestead Insurance Company (1994), 71 Ohio St.3d 552,1994-Ohio-461, 644 N.E.2d 397, reconsideration denied,71 Ohio St.3d 1467, 644 N.E.2d 1389, cert. denied,516 U.S. 809, 116 S.Ct. 56 ............................................5,18, 20, 23, 24, 26, 29, 30, 32, 33, 35, 36

UNREPORTED CASES

Gilbert v. Security Finance Corp. (Okla. 2006), 2006 WL 1836019 . ..........................................43

Phillip Mot-ris USA v. Mavola Williams, Dkt. No. 05-1256 (U.S. Sup. Ct.) ................................13

Stalker v. Industrial Committee of Ohio, et al. (Ohio App. 10th District), 2004 WL 45945........41

RULES AND STATUTES

AK ST § 9.17.20 ...........................................................................................................................17

AL ST § 6-11-21 ......................................... ............................................................................ 17, 18

CO ST § 13-21-102............................................................................................. .................... ...... 17

CT ST § 52-901-52.240b ....................--.-.---..---°-----°---°---°--°----...............................................17

ID ST § 6-1604.-.....----------- ----------------- -- --------------------- ......... ...--......................... ........................... 17

IN ST § 34-51-3 .--...............................---...-.-----...---...-•------..-------------•---.-•----....---..---.----.-•--.........17

KS ST § 60-3701 ..............................----................................--.-.--.•-.---.......---................--.--.-------....18

MS ST § 11-1-65 ..............................................................................................-----....---.--------------18

MT ST § 27-1-220 ............. ................................................ ....................... .............................. -----18

NC ST § 1 D-25 ................-.-----.-----..........................---..............................................--.------.--•---.17

ND ST § 32-03.2 ...........................................................................................................................17

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OK § 23-9.1 ............. ...................................................................... --................................... ...........17

Ohio Constitution ........................................................ 1, 7, 8, 15, 23, 26, 29, 30, 35, 36, 37, 39, 40

Ohio Consumer Sales Practices Act ..................................... ......°.-•........................................ 17, 31

Ohio House Bill 350 ..... ... ......................................................°---•------------...----..................24, 25, 26

Ohio Jury Instruction 23.71 .............................................. ................................................... ........... -5

Ohio Product Liability Act ........................................................ --.................................................... 3

Ohio Senate Bill 80.........6, 7, 13, 14, 15, 18, 19, 20, 27, 30, 32, 38, 39, 41, 42, 43, 44, 48, 49, 50

Restatement ( Second) of Torts § 402A...--- ................................... ................................................. 3

Restatement ( Second) of Torts § 980 comment d(1979) . ............................................................ 23

Revised Code 901.51 ....................................................................................................................17

Revised Code 1302.31 ............. ....................... ....... -----...... -•--...................................................... -.. 3

Revised Code 1331.08 .................................... ............... ........................... .................................... 17

Revised Code 1333.63 ...................................................... ............................................................ 17

Revised Code 1335.11 ..................................................................................................................17

Revised Code 1345.09 ............................................................................................................16, 31

Revised Code 2307.61 .................................... ----.... ------------ ----..................................................... 17

Revised Code 2307.71-80 ..................-.........-.....-.-..-...............-.-.................3, 5, 6, 7, 18, 19, 20

Revised Code 2315.21 ............................... ........1, 2, 6, 7, 8, 14, 15, 16, 17, 18, 19,20, 26, 28, 29,............................. ......------------- 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50

Revised Code 2741.07 ........................................ ..................................°--------...---------...-------•----.17

Revised Code 292334(F) .............................................................. ........ ..... --...... -......................... 17

Revised Code 4549-49 .............................................................--------•---------...------------...............17

Revised Code 4719.15 .......................................... ........................ -........... ---.... ---.......................... 17

Revised Code 4905.61 .......... ...................................................................... --------------- -................. 17

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Rule 1, Ohio Rules of Civil Procedure.............. ......-.-.................................................................40

Telephone Consumer Protection Act ........... .................. ............................................................... 17

U.S. Constitution, Fourteenth Amendment ...........................................................................6, 9, 11

U.S. Constitution, Seventh Amendment .......................... ..................................................... ....... .10

MISCELLANEOUS

ABA, Business Torts and Unfair Competition Handbook (2"d Ed.), 200 (2006) .... .......................4

Blatt, et al., Punitive Damages: A State by State Guide to Law and Practice § 1.2 (1991) ........... 4

Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation 59 (1992) .................... 17

Committee on Commerce, Science, and Transportation report for S. 565, Product LiabilityFaimess Act (April 5, 1995) ....................................... --.... ---....... -............................................ 46, 47

Congressional Budget Office, The Economics of U.S. Tort Liability: A Primer,Chapter Four: The Costs of the Tort System ( October 2003) .................................................43, 47

Council of Economic Advisers, "Who Pays for Tort Liability Claims? An EconomicAnalysis of the U.S. Tort Liability System" (April 2002) ............................................................47

Ellis, °Fairness and Efficiency in the Law of Punitive Damages," 56 S. Cal. L. Rev. 1(1982) ..... ............................................................. ................... ................................................... 4, 16

Faris, "Small-Business Focus: Freedom from Lawsuit Abuse: A New NationalHoliday?" (7/9/2004) ....................................................................................................................43

Governor Taft , "The Jobs Agenda," State of the State Address, Januaiy 28, 2004 ......................43

Hastie, et al., "Looking Backward in Punitive Judgments: 20-20 Vision7; — in Sunstein , et al.,Punitive Damages: Hoil: Juries Decide 96 (2002) ........................................................................18

Jeffries, "A Comment on the Constitutionality of Punitive Damages,"72 Va. L. Rev. 139 (1986) ..................... .---------- -..................................................... -........................ 4

Mahoney and Littlejohn, "Innovation on Trial: Punitive Damages Versus New Products,"Volume 246, Issue 4936, Science,1395-1399 (December 1989) ..................................................47

MAPI / Manufacturers Alliance, I Pay, You Pan, We All Pay: How the GrowingTort Crisis Undermines the U.S. Econontv and the American System of Justice.vi-vii, ed. Frederick T. Stocker (May 2003) .................................................................................47

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Niemeyer, "Awards for Pain and Suffering: The Irrational Centerpiece of Our TortSystem," 90 Va. 1. Rev. 1401 (2004) ..................................... .............. ......................................... 16

Ohio Businesses for Legal Reform, Senate Bill 80 Fact Sheet .....................................................43

Owen, "A Punitive Damages Overview: Functions, Problems and Reform," 39 Vill.L. Rev. 363 ( 1994) ............ ............................................................................................................ 16

Pendell, "Liability Costs for Small Business'' (June 8, 2004) ......................................................43

Sales, "The Emergence of Punitive Damages in Product Liability Actions: A FurtherAssault on the Citadel," 14 St. Mary's L.J. 351 (1983) ..................................................................4

Schwartz, "Reining in Punitive Damages `Run Wild': Proposals For Reform By Courts andLegislatures," 65 Brook. L. Rev. 1003 (1999) ............................................... -----------........... .......... 4

U.S. Dept. of Commerce, Census Bureau, Statistics of U.S. Businesses, 2002-2003 ..................42

U.S. House of Representatives Small Business Subcommittee, Small Business Facts ................43

United States Small Business Administration, Small Business Profile: OHIO ............................42

Viscusi, "The Social Costs of Punitive Damages against Corporations in Environmentaland Safety Torts," 87 Geo. L.J. 285 ( 1998-1999) .........................................................................47

xi

I. INTEREST OF AMICUS CURIAE

Pursuant to Rule VI, Section 5 of the Ohio Supreme Court Rules of Practice, the Product

Liability Advisory Council, Inc. ("PLAC") submits this brief as amicus curiae in support of

Respondents. PLAC urges the Court to hold that R.C. 2315.21 (establishing caps on punitive

damages) is constitutional under the Ohio Constitution.

PLAC is a non-profit association with about 130 corporate members representing a broad

cross-section of domestic and intemational product manufacturers. These firms seeks to contribute

to the improvement of law in the United States and elsewhere, with emphasis on the law goveming

the liability of product manufacturers. PLAC's perspective is derived from the experiences of its

diverse members, who span many industries.' In addition, several hundred of the leading product

liability defense attorneys in the country are non-voting members of PLAC. Since 1983, PLAC has

filed over 700 briefs as amicus curiae in both state and federal courts, including this Court, seeking

faimess and balance in the application and development of the law as it affects product liability.

The questions presented in this case are not unique to Respondents_ Plaintitfs routinely seek

punitive damages in product liability cases. PLAC members live with the constant threat that ajury

will convert a routine case into a crisis by making a massive punitive damage award_ Virtually all

manufacturers are vulnerable to arbitrary and excessive punitive damages when juries are given

inadequate instructions and reviewing courts give undue deference to the jury s verdict. Ultimately,

the impact is felt by the consumer. PLAC has a unique understanding of the effects of excessive

awards and the need for clarification of this Court`s ruling in Slaeivard.

Product manufacturers must make countless decisions in designing and marketing their

products. Such decisions, although objectively reasonable when made, become subject to second-

I A list of PLAC's corporate members is attached in Appendix A.

I

guessing many years later, when someone exposed to a product suffers an injury and seeks to

recover damages. The trend in product liability law is to provide full coinpensation for the injured

party. At the same time, however, there has also been a trend for juries to make highly unpredictable

and extremely large punitive damage awards, not as compensation to the individual plaintiff, but to

serve a state's interest in punishing the defendant and deterring future similar conduct.

The U.S. Supreme Court has cautioned states about the danger of violating defendants' due

process rights by permitting runaway jury awards of punitive damages. Many states have responded

to this risk by enacting measures to avoid excessive awards. For example, a key due process

"guidepost" established by the U.S. Supreme Court is the requirement that there be a reasonable

relationship between compensatory and punitive damages_ A number of states have adopted a

legislatively-set ratio (for example, as here, two times the amount of compensatory damages) to

assure compliance with this requirement.

Plaintiff and her amici argue that the caps on punitive damages in R.C. 2315.21 are

unconstitutional. PLAC urges that the caps be upheld. PLAC's members have a direct interest in

supporting laws that set appropriate limits on punitive damages - for example, by inaking them

proportionate to the individual plaintiffs losses. PLAC's members also have an interest in

supporting laws that protect individual or small business defendants froin crippling punitive damage

awards. Finally, it is not unusual for product manufacturers to be sued by hundreds or even

thousands of plaintiffs over a single product, in jurisdictions all around the country. In such cases,

they face the risk of multiple punitive damages awards - even when plaintiffs' claims have no merit

- and PLAC's members have an interest in laws that prevent the imposition of such duplicative

penalties. PLAC urges this Court to uphold the R.C. 2315.21 caps.

2

H. BACKGROUND

A. PRODUCT MANUFACTURERS OFTEN SUFFER EXCESSIVE PUNITIVE DAMAGE

AWARDS THAT VIOLATE THEIR DUE PROCESS RIGHTS.

As a result of dramatic changes in product liability and punitive damages law in the last

several decades, product manufacturers face a "perfect storm" - generous substantive standards for

"product liability" plus broad jury discretion in awarding unlimited punitive damages. The modern

Ohio "product liability" claim did not exist at common law. It is a recent judicial creation:

In Ohio the law in the field of products liability has had a slow, orderly andevolutionary development.. In 1958, [Rogers v. Toni Honte Permanent Co.(1958), 167 Ohio St. 244, 147 N.E.2d 612] established an action in tort basedupon an express warranty for the recovery of personal injuries. In 1962, the OhioGeneral Assembly enacted the Uniform Commercial Code ... [R.C. 1302.31 ], asection of the Commercial Code, provides for extending a seller's warrantywhether express or implied to any natural person [in] the fatnily or household ofhis buyer, or who is a guest in his home, if it is reasonable to expect that suchperson may use, consume or be affected by the goods and who is injured inperson by breach of the warranty. The result of this section is to ... [extend] anexpress or implied warranty, arising out of a contract sale, to the additionalpersons designated in that section. In 1965, in Inglis v. American Motors Corp.(1965), 3 Ohio St.2d 132, 209 N.E.2d 583, an action in tort based upon anexpress warranty was established allowing recovery for property damage.2

In Syllabus I of its 1966 Lonzrick decision, this Court eliminated the traditional requirement

of "privity "- i.e., a direct contractual relationship between manufacturer and plaintiff- and thereby

created the modem "product liability" claim in Ohio. Then in 1977, the Court adopted Section 402A

of the Restatement of Torts 2d, making a manufacturer subject to liability to an injured consumer

even though it has exercised all possible care in designing and manufacturing its product.'

Eventually, all these developments were codified in R.C. 2307.71-80, the Ohio Product Liability

Act.

2 Lonzrick v. Repablic Steel Corp. ( 1966), 6 Ohio St.2d 227, 239, 218 N.E.2d 185, 194.

Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. 321-22 364 N.E.2d 267, 270.

3

Similarly, modem punitive damages differ dramatically from their common law origin.

Historically, punitive damages were first recognized in England in the mid-18°i century. They were

only awarded in a narrow category of torts where intentional harrn was inflicted by one person on

another. In such cases, it was simple for juries to assess whether punitive damages were warranted.

They were used both as a"helper' to the criminal justice system4 and to permit recovery for certain

harms (e.g., mental suffering) which were disregarded at common law but are now a part of

compensatory damages.5 They were usually modest in amount, typically only a little more than

compensatory damages.6 In the 1960s courts began to depart from the historical model, particularly

in the area of product liability law.7 Punitive damages were imposed for acts that were not

intentional, but merely reckless, wanton, willful or gross,8 and multiple punitive damage awards

were imposed for a single product or decision.9 The size of such awards sky-rocketed. In short,

there was an explosion of punitive damage awards to unprecedented numbers.10 Thus, punitive

damages as they existed from the 18't' century through the mid-20`s century (i.e., a few modest

penalties for intentional harm) share only a name with the contemporary practice ofmaking multiple

large awards based on less-than-intentional causation ofharm.

° See Schwanz. "Reining in Punitive Damages'Run Wild': Proposals For Reform By Couttsand Legislatures." 65Brook. L. Rev. 1003 1007 (1999). citin Sales, "The En ergence of Punitive Damages in Product Liability Actions: AFurtherAssault on the Citadel," 14 St. Mary's L.J. 351, 355 (1983)

5 See ABA, Business Torts and Unfair Competition Handbook (2nd Ed.), 200 (2006).

°See Ellis_ "Faimess and Efficiency in the Law ofPunitive Damages" 56 S. Cal. L. Rev. 1, 2(1982) ("likely to besmall in amount.-'): Blatt, et al.. Punitire Damages: A State by State Guide to Law and Pr-actice § 1.2 at 5(1991)_

' See, e.g., Toole u Richardson-Merrell, Inc_ (1967), 251 Cal. App.2d 689.

See Rubeck v. Hujfman (1978), 54 Ohio St.2d 20, 23, 374 N.E.2d 411, 413.

'See Schwartz_'Reining in Punitive Damages `Run Wild': Proposals For Reforzn By Courts and Legislatures; 65Brook. L. Rev. 1003.. 1008 (1999).

10 Id. at 1009, cit^ Jeffries, "A Comment on the Constitutionality ofPunitive Damages,- 72 Va. L. Rev. 139. 142(1986)_

4

As a result, product manufacturers nowadays are frequently forced to try cases where the

possibility of a punitive damage award puts at stake absolutely enormous sums of money- enough

even to bankrupt the defendant. A sympathetic plaintiff tries to convince jurors that they should

take money from the defendant's deep pockets based on post-accident "second-guessing" that the

risk of injury exceeded benefits accorded by a product's design. Since any manufacturer who is not

wholly irresponsible will likely have identified the risk (however small) during its design process,

the plaintiff can almost always seek punitive damages based on the theory notion that the defendant

"consciously disregarded" the possibility that some user's safety would be compromised.

Further, juries are usually given very vague instructions about how to set the amount of

punitive damages. Consider, for example, the model Ohio Jury Instruction on punitive damages in

product liability actions: "AMOUNT. If you award punitive damages, the amount should be fair and

reasonable under all the facts and circumstances. It should neither be excessive nor influenced by

passion, sympathy, or prejudice." OJI 23.71. As Justice Brennan once said about a similar

instruction: "Guidance like this is scarcely better than no guidance at all.i1' This Court in effect

invalidated the only legislative attempt to in Ohio address the issue - i.e., R.C.2307.80(B),

specifying the factors a trial court should consider in setting the amount of punitive damages-when

it mooted that provision by holding that only the jury can assess such damages.12 As a result, it is

fairly common for trial courts just to tell jurors to use their discretion in setting the amount, after

permitting plaintiffs' counsel to argue (often in a bifurcated second trial phase focusing solely on

" Browning-Ferris Industries v. Keleo Disposal, Ine. (1989), 492 U.S. 257, 281, 109 S.Ct. 2909, 2923(concurring). See also State Farm Mett. Auto. Ins. Co. v. Campbell (2003). 538 U.S. 408, 418, 123 S.Ct. 1513, 1520("Vague instructions ._. do little to aid the' the jury), and Villella v. Waikem Motot-s Inc. (1989), 45 Ohio St.3d 36, 43,543 N.E.2d 464, 472 (Brown, J_, concurring) ("The problem is that juries are given little or no guidance with respect tothe measure ofpunitive damages: ')

1' Zoppo, etal. v. Homestead Insm-ance Compatn, 71 Ohio St.3d 551 1994-Ohio-461, 644 N.E.2d 397,reconsideration denied, 71 Ohio St.3d 1467, 644 N.E.2d 1389, cert. denied, 516 U.S. 809, 116 S.Ct. 56.

5

punitive damages) about how egregious the defendant's behavior was and how substantial its wealth

is - a guaranteed recipe for a tremendously large number!

This system, which evolved willy-nilly over the last few decades, is an open invitation to

grossly excessive punitive damages There has been explosive growth of blockbuster awards. The

courts have tried, case by case, to avoid gross injustice through tria] court review (via remittitur if an

award is against the weight of the evidence or a new trial ifthere is undue jury passion or prejudice)

and, if that fails, appellate review. Such "excessiveness'' proceedings are now common.

Unfortunately, their success in protecting the defendant is uncertain. Further, they provide but a

partial and very wasteful remedy for "mistakes" caused by a system that is broken at the trial level.

As this Court has said, "[t]he Due Process Clause ofthe Fourteenth Amendment prohibits a

State from imposing a"`grossly excessive' punishment on a tortfeasor. "' 13 And, "[fJor rights that

are state-created, state law govems the amount properly awarded as punitive damages, subject to an

ultimate federal constitutional check for exorbitancy."14 Finally, some awards not so "grossly

excessive" as to violate the Due Process clause may nonetheless be "excessive" under Ohio law.15

B. THE R.C. 2315.21 PUNITIVE DAMAGE CAPS PREVENT EXCESSIVE AWARDS.

The ultimate goal of S.B. 80 is "to restore balance, fairness, and predictability to the civil

justice system." § 3(A)(4)(a). In the product liability area, this entails modifying both the substance

of the claims available to plaintiffs and the damages recoverable from defendants. S.B. 80 abrogates

all common law causes of action and replaces them with a set of generous statutory claims.

R.C. 2307.71(B). With respect to "design defect" cases (the most common product liability claim),

" BMW of N. America, Inc v. Gore (1996), 517 U.S. 559, 562, 116 S.Ct. 1589, 1592; see Wightnman v.Consolidated Rail Corp., 86 Ohio St3d 431, 439, 1999-Ohio-119. 725 N.E.2d 546,553 .

"Gasperini v. Centet-jorHumanities, lnc. (1996), 518 U.S.415.431_ 116 S.Ct. 2211, 2221 n.12.

"Dat dingerv. Anthem Blue Cross & BlueShield, 98 Ohio St.3d 77. 97-98, 102, 2002-Ohio-7113 at¶ 151 and 177,781 N_E_2d 121, 140, 144.

6

it codifies a fotm of strict liability in which a product is considered defective ifthe jury finds that its

design exceeds the benefits associated with that design. R.C. 2307.75(A). At the same time, the

General Assembly has established limits on punitive damages to give them a"rational connection to

the wrongful actions or omissions of the tortfeasor." § 3(A)(4)(b)(ii). The caps are as follows:

• In general, punitive damages for a defendant may be no more than two times theamount of compensatory damages awarded against that defendant.

• However, if the defendant is an individual or small employer, the cap is the lesserof two times compensatory damages or 10% of the defendant"s net worth (up to amaximum award of $350,000).

• Punitive damages may not be awarded against a defendant who has already paidpunitive damages based on the same conduct in an amount exceeding the cap.16

Thus, the General Assembly has created generous statutory claims for persons injured by

defective products but made clear that punitive damages on such claims will be capped. Plaintiff

here asks this Court to leave the statatory claims in place but eliminate the caps. This would, in

effect, destroy the "balance [and] faimess" S.B. 80 was intended to create.

III. ARGUMENT

A. PLAINTIFF MUST PROVE "BEYOND A REASONABLE DOUBT" THAT THE

R.C. 2315.21 PUNITIVE DAMAGE CAPS ARE "CLEARLY INCOMPATIBLE"

WITH THE OHIO CONSTITUTION.

It has long been the law of Ohio that the General Assembly may alter how punitive

dan:ages are awarded.17 Any such change is presumptively constitutional'ft and must be upheld

unless "beyond a reasonable doubt ... the legislation and constitutional provisions are clearly

" However, punitive damages may nonetheless be awarded if a plaintiff proves (a) previously undiscoveredadditional similar misconduct, or (b) the prior punitive damages were "totally insufficiem"to punish and deter thedefendant. In addition, all the caps are inapplicable i€a defendant has been convicted of an offense that is the basis ofthe tort action and that involved acting with "one or more of the culpable mental states of purposelv and knowingly."

"Roberts r. Mason ( 1859), 10 Ohio St. 277, 280; Saberton v. Greemwald (1946),146 Ohio St. 414. 424,66 N.E.2d224.229.

" State v. Sinito (1975), 43 Ohio St.2d 98, 101. 330 N.E.2d 896, 898.

7

incompatible."t 9 The power to nullify a law is exercised with great caution and only in the clearest

of cases.20 Every reasonable presumption is made in favor of a statute's validity, and it is the court's

duty to sustain legislation where possible.Zt It may not assume that legislators intend to violate a

constitutional limitation 22 Nor may it consider the wisdom of a statute- that is the exclusive role of

the legislative branch?3 Judges must disregard their own views of what the Constitution generally

requires or "what is for the public good °'24 The legislature is the final arbiter of public policy.25

Thus, this Court may not invalidate the R.C. 2315.21 caps unless they are proven beyond a

reasonable doubt to be clearly incompatible with a specific provision of the Ohio Constitution.

B. U.S. SUPREME COURT DECISIONS - INCLUDING TWO SINCE SHEWARD -

SUPPORT STATE LEGISLATION TO CAP PUNITIVE DAMAGES.

In enacting R.C. 2315.21, the General Assembly has heeded important constitutional law

developments in a series of recent cases where the U.S. Supreme Court has wamed that state courts

may not impose punitive damages that violate defendants' "due process" rights and said that state

legislatures can act to prevent such injustice - e.g., by enacting caps limiting punitive damages to a

small multiple of compensatory damages. Most significantly, two of the Court's recent decisions-

'' State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59 (Syllabus I); State ex rel.Jackrttan v. Court ofCommon Pleas ofCuyahoga County (1967), 9 Ohio St.2d 159, 161.224 N.E.2d 906, 909; DeSeneo,hu. r. Crtc ofAkron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323, 328.

'0 Bucklev v. Wilkins, ] 05 Ohio St.3d 350, 353, 2005-Ohio-2 ] 66 at ¶ I87 826 N.E.2d 811, 815.

't Dicknian, 164 Ohio St. at 149.

" Columbus Metropolitan Housing Authority v. Thatcher (1942), 140 Ohio St. 38, 42, 42 N.E.2d 437. 439.

"State ex re1. Bishop v. Board ofEd. qfMt. Orab Village SchoolDist., Brown County (1942)7 139 Ohio St. 427,438, 40 N.E.2d 913, 919.

" H•alker v. City ofCincinnati (I 871), 21 Ohio St. 14,20 ("To do so would be to arrogate the power of making thecoactitution what the court may think it ought to be, instead of simply declaring what it is. The exercise of such a powerwould make the court sovereign over both constitution and people, and convert the govemment into a judicialdespolism.')

'' State ex rel_ E. Cleveland Fire Fighters' Assn., Local 500, IAFF v. Jenkins (2002), 96 Ohio St.3d 68, 71,2002-Ohio-3527, at 1 12, 771 N.E.2d 251, 254.

8

Cooper and State Farm26 - post-date this CouWs Sheward decision27 and knock out its

underpinnings. The General Assembly's request that this Court reconsider Sheward in the light of

these developments is an invitation that the Court should not refuse.

1. The Due Process Clause protects civil defendants from arbitrarvand excessive punitive damap_e awards.

In 1994 the Supreme Court held that the Due Process Clause ofthe Fourteenth Amendment

imposes a substantive limit on the level of punitive damages and that state courts must safeguard

against "excessive" awards.28 Then, in its 1996 BMW decision, the Court for the first time held a

punitive damage award to be unconstitutional. Although noting that states enjoy "considerable

flexibility" in awarding punitive damages to further "legitimate interests in punishing unlawful

conduct and deterring its repetition," the Court said that state courts must give defendants fair notice

ofthe potential severity ofpunishment. The Court described three "guideposts" for states to follow:

[ 1 ] the degree of reprehensibility of the [wrongdoing]; [2] the disparity betweenthe harm or potential harm suffered by [plaintiff] and his punitive damagesaward; and [3] the difference between this remedy and the civil penaltiesauthorized or imposed in comparable cases 29

The Court emphasized that punitive damages must bear a'`reasonable relationship" to compensatory

damages, and quoted a prior opinion stating that an award of "more than 4 times the amount of

compensatory damages" might be "close to the line" of constitutional impropriety.30 And Justice

Breyer observed for three concurring justices:

26 Cooperlndustries, Inc. r. Leathernran Tool Group, Inc. (2001). 532 U.S. 424, 121 S.Ct. 1678; State Fatm Mut.Auto. Ins. Co. r. Cumpbetl (2003), 538 U.S. 408, 123 S.Ct. 1513.

"Siate ey rel. Ohio Acadenal- ofTriat Lawyers v. Sheward (1999), 86 Ohio St.3d 451,1999-Ohio-123, 715 N.E.2d1062.

's Honda Motor Co., Ltd. r. Oberg (1994), 512 U.S. 415_ 114 S.Ct. 2331 _

''BMW ofN. Anverica, Inc. v. Gore (1996), 517 U.S. 559, 568. 574-75, 116 S.Ct. 1589, 1595, 1598-1599.

30 Id. at 580 and 581. citine PaciTc Mutua] Life Ins. Co. r. Haslip (1991), 499 U.S. 1, 23, 111 S.Ct. 1032, 1046 .

9

"[U]nlimited jury discretion - or unlimited judicial discretion for that matter- inthe fixing of punitive damages may invite extreme results that jar one'sconstitutional sensibilities." *** Requiring the application of law, rather than adecision-maker's caprice, does more than simply provide citizens notice of whatactions may subject them to punishment; it also helps to assure the uniformgeneral treatment of similarly situated persons that is the essence of law itself31

The Court's first major post-Sheward punitive damages decision was Cooper, which holds

that, when an appellate court reviews the trial court's determination whether a punitive damages

award is unconstitutionally excessive, it must use a de novo standard of review. Cooper is important

for two reasons. First, the Court began its legal analysis with this helpful description of the

fundamental difference between compensatory and punitive damages:

Although compensatory damages and punitive damages are typically awarded atthe same time by the same decisionmaker, they serve distinct purposes. Theformer are intended to redress the concrete loss that the plaintiffhas suffered byreason ofthe defendant's wrongful act. The latter, which have been described as"quasi-criminal," operate as "private fines" intended to punish the defendant anddeter future wrongdoing. A jury's assessment ofthe extent of a plaintiffs injuryis essentially a factual determination, whereas its imposition ofpunitive damagesis an expression of its moral condemnation.3'

Second, the Court rejected an argument that de novo review of the amount of punitive damages is

inconsistent with the Seventh Amendment:

"Unlike the measure of actual damages suffered, which presents a question ofhistorical or predictive fact, ..., the level ofpunitive damages is not really a fact''tried' by the jury. " Because the jury's award of punitive damages does notconstitute a finding of "fact," appellate review of the District Court's

detennination that an award is consistent with due process does not implicate theSeventh Amendment concems raised by respondent and its amicus.33

In its most recent punitive damages case, State Farm, the Court again reversed a large award,

summarizing its punitive damages jurisprudence as follows:

517 U.S. at 587 ( emphasis added; citations omitted).

Cooper, 532 U.S. at 432; 121 S.Ct. at 1683 (citations omitted).

Cooper. 532 U.S. at 437, 121 S_Ct. at 1686 (citations omitted; emphasis added).

10

[Iln our judicial system compensatory and punitive damages ... serve differentpurposes. Compensatory damages are intended to redress the concrete loss thatthe plaintiff has suffered by reason of the defendant's wrongful conduct. Bycontrast, punitive damages serve a broader function; they are aimed at deterrenceand retribution. ***

While States possess discretion over the imposition of punitive damages, it is

well established that there are procedural and substantive constitutionallimitations on these awards. The Due Process Clause of the Fourteenth

Amendment prohibits the imposition of grossly excessive or arbitrarypunishments on a tortfeasor. This constitutional concem, itselfharkeningback to

the Magna Carta, arises out of the basic unfaimess of depriving citizens of life,

liberty, or property, through the application, not of law and legal processes, butof arbitrary coercion. The reason is that elementary notions offaimess enshrinedin our constitutional jurisprudence dictate that a person receive fair notice not

only of the conduct that will subject him to punishment, but also of the severity

of the penalty that a State may impose. Despite the broad discretion that Statespossess with respect to the imposition of criminal penalties and punitivedamages, the Due Process Clause of the Fourteenth Amendment to the FederalConstitution imposes substantive limits on that discretion. To the extent an

award is grossly excessive, it furthers no legitimate purpose and constitutes anarbitrary deprivation of property. Punitive damages are a powerful weapon.

Imposed wisely and with restraint, they have a potential to advance legitimatestate interests. Imposed indiscriminately, however, they have a devastatingpotential for harm. Regrettably, common-law procedures for awarding punitivedamages fall into the latter category.

Although these awards serve the satne purposes as criminal penalties, defendantssubjected to punitive damages in civil cases have not been accorded theprotections applicable in a criminal proceeding. This increases our concerns overthe imprecise manner in which punitive damages systems are administered. Wehave admonished that punitive damages pose an acute danger of arbitrarydeprivation of property. Jury instructions typically leave the jury with widediscretion in choosing amounts, and the presentation of evidence of a defendant'snet worth creates the potential that juries will use their verdicts to express biasesagainst big businesses, particularly those without strong local presences.34

The Court then applied the three BM W"guideposts"to the State Farm award and held that it

violated the defendant's due process rights. Of significance here is its discussion of the second

guidepost - the relationship between punitive damages and the harm suffered by the plaintiff. The

Court said that "in practice, few awards exceeding a single-digit ratio between punitive and

34 Siate Farm. 538 U.S. at 416-18. 123 S.Ct. at ] 5] 9-I 520 (citations and quotation marks omitted).

11

compensatory damages, to a significant degree, will satisfy due process," and repeated itsHaslip and

Gore statements that "an award of more than four times the amount ofcompensatory damages might

be close to the line of constitutional impropriety"' and also referred to "a long legislative history ...

providing for sanctions of double, treble, or quadruple damages to deter and punish." Finally, the

Court stated that "[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only

equal to compensatory damages, can reach the outermost limit of the due process guarantee."35

2. State legislatures may enact punitive damage caps.

The U.S. Supreme Court has also made very clear that there is no federal constitutional

reason why state legislatures may not cap punitive damages in their states. Concurring in Haslip

(1991), Justice Scalia said that "[s]tate legislatures ... have the power to restrict or abolish the

common-law practice ofpunitive damages, and in recent years have increasingly done so." He cited

a Florida law limiting punitive damages to three times compensatory damages and a Virginia law

limiting punitive damages to $350,000.36 In BMW (1996), the Court explained that "[s]tates

necessarily have considerable flexibility in determining the level of punitive damages that they will

allow."37 Concurring, Justice Breyer commented favorably on "legislative enactments ... that ...

impose quantitative limits that would significantly cabin the fairly unbounded discretion created by

the absence of constraining legal standards," citing a Connecticut law limiting punitive damages to

twice compensatory damages in product liability cases and a Georgia law setting a $250,000 cap in

certain actions.38 In.dissenting opinions, Justice Scalia said that he would "leave it with the state

legislatures" what level of punitive damages to impose, while Justice Ginsburg not only supported

'` State Farar, 538 U.S. at 425, 123 S.Ct. at 1524.

;6 Haslip, 499 U.S. at 39_ 111 S.Ct. at 1054.

;1 BMW, 517 U.S. at 568, 116 S.Ct. at 1595.

38 BMW, 517 U.S. at 595, 116 S.Ct. at 1609.

12

"reform measures recently adopted or currently under consideration in legislative arenas," but also

attached an appendix to illustrate such legislation, including a number of caps on punitive

damages.39 She repeated that "damages-capping legislation may be altogether fitting and proper" in

her opinion in State Farm (2003).40 Finally, in Cooper (2001), the Court again commented

favorably on such developments:

As in the criminal sentencing context, legislatures enjoy broad discretion inauthorizing and limiting permissible punitive damages awards. *** A goodmany States have enacted statutes that place limits on the permissible size ofpunitive damages awards 41

Indeed, in his brief to the U.S. Supreme Court in the recently argued Williams case, one of

Plaintiffls lead counsel in this case (Mr. Peck) summarized the present state of the law as follows:

This Court "`accord[s] substantia] deference' to legislative judgments concerrtingappropriate sanctions for the conduct at issue," BMW, 517 U.S. at 583 (citationomitted), and has repeatedly recognized that "[s]tates necessarily haveconsiderable flexibility in determining the level of punitive damages that theywill allow in difference classes of cases and in any particular case." Id. See also,State Fann, 538 U.S. at 422 (each state "may make its own reasoned judgment"about the scope and measure of punitive datnages). States have treated punitivedamages in varying ways, with five states barring them for all or most claims andothers imposing limits on their amounts. *** Due Process does not prohibit anyof these state policy preferences t-

In short, as even Plaintiff's counsel has admitted elsewhere, U.S. Supreme Court opinions

have repeatedly blessed state laws intended to assure that state courts comply with federal Due

Process standards as elaborated by the Court. In its review of S.B. 80 (and, specifically, its punitive

damage caps), this Court should not interpret our State Constitution so as to hamstring the General

Assembly's ability to likewise protect against Due Process violations in our courts.

'9Id. at 602 (Scalia), 607 (Ginsburg), and 615 (Appendix).

40 538 U.S. at 431, 123 S.Ct. at 1527 (dissenting opinion).

91 532 U.S. at 433, 121 S.Ct. at 1683-1684, citine Justice Ginsburg's dissent in BMN' and Ohio's cap on punitivedamages in R.C. 2315.21.

42 Brief for Respondent, Phillip Monzs USA ,. Mm-ola 6i'illiams. Dkt. No. 05-1256. at 20-21 (U.S. Sup. Ct.)(footnotes omitted).

13

C. S.B. 80 BRINGS REASONABLENESS, EFFICIENCY, AND JUSTICE TO PUNITIVE

DAMAGE CLAIMS IN PRODUCT LIABILITY CASES, STRIKING A DELICATE

BALANCE AMONG THE RIGHTS OF PLAINTIFFS, DEFENDANTS, AND SOCIETY.

The legislative findings relating to R.C. 2315.21 show the Legislature's desire to balance the

rights of all interested parties. It sought to "preserve[] the rights of those who have been hatmed by

negligent behavior." § 3(A)(3). But it also sought to assure "a fair, predictable system of civil

justice," id.; to reflect a defendant's due process rights as laid out by the U.S. Supreme Court,

§ 3(A)(4)(c); to avoid multiple awards of punitive damages, § 3(A)(4)(d); to protect individuals and

small businesses from financial ruin, § 3(A)(4)(b); to prevent increasing litigation costs brought on

by inflated damage awards, § 3(A)(6)(e); and to meet the needs of Ohio's consumers, § 3(A)(3).

1. The General Assembly has the power to enact punitive dama2e caps.

As previously explained, the U.S. Supreme Court has clearly indicated that state legislatures

may cap punitive damages. Despite protestations to the contrary by Plaintiff, Ohio law actually

supports the same conclusion. There is a line of Ohio Supreme Court case law that clearly approves

legislative changes to how punitive damages are awarded. In Roberts v. Mason (1859), after first

noting that allowing a jury to award punitive damages was °settled" law, the Chief Justice in the

very same paragraph also stated: "If an alteration of the rule were deemed desirable, ... it 14 ould

come more properly from the legislature than from us.i43 This could hardly be a clearer indication

that the General Assembly has the power to modify the awarding of punitive damages by juries:14

The same point was reinforced by the statement in Saberton v. Greenx-ald (1946) that punitive

damages "require alteration to come from the legislature rather than from the judiciary."45

°' 10 Ohio St. at 280 (emphasis added).

"' While the quoted sentence might be considered dictum (as it was omitted from the syllabus), it was clearlvessential to the Court's holding.

45 146 Ohio St. at 424, 66 N.E.2d at 229 (quoting 13 O.lur. "Damages § 137 (1930); emphasis added). C1:Dardingerv. Anthem Blue Cross d Btue Shield, Ine., 98 Ohio St.3d 77. 107 2002-Ohio-7113 at ¶ 200,781 N.E.2d 121.

14

Thus, this Court has recognized over the past century and a half that the General Assembly

may alter punitive damages. Such power encompasses setting a maximum amount of punishment,

which it may do by means of a limit on trial court jurisdiction. As this Court said many years ago:

The Constitution of Ohio creates courts of common pleas, but does not definetheir jurisdiction. That subject is cared for in section 4 of article 4 of theConstitution, as follows: "The jurisdiction of the courts ofcommon pleas, and ofthe judges thereof shall be fixed by law." It should require no argument toshow that, if the jurisdiction can be either conferred or withheld by theLegislature, that jurisdiction can also be limited or controlled by conditions atthe will of the legislative power. 46

Chief Justice Moyer has described the pertinent legal principles as follows: "[T]he courts of common

pleas possess only that jurisdiction explicitly conferred on them by the Ohio General Assembly. This

is settled law beyond doubt.... [T]he General Assembly...placed these limitations on the courts of

common pleas... [and] the General Assembly had a right to do[so].' 47 And it may exercise this right

via statutes specifying the penalties that courts can impose in their judgments 48

2. The R.C. 2315.21 punitive damage caps meet U.S. SupremeCourt due process requirements.

The General Assembly crafted the punitive damages caps to meet due process mandates, laid

out in the U.S. Supreme Court's post-Sheward cases, to protect defendants from excessive and

arbitrary punitive damages. The legislative intent could not be more explicit: "The limits on punitive

or exemplary damages as specified in section 2315_21 of the Revised Code, as amended by this act,

are based on guidance recently provided by the United States Supreme Court in State Farm Mt+tnal

148 (Moyer, C.J., dissenting) ("I do not consider the General Assembly to be precluded from modifying the common lawof punitive damages by the enactment of legislation.").

°b Madjorous v. State (1925), 113 Ohio St. 427, 430-431 ( emphasis added).

47 Central Ohio Ti-ansit Anthority- (COTA) v. Transpor! 4Vorkers Union ofAmerica (1988). 37 Ohio St.3d 56. 63_524 N.E.2d 151, 157 (Wright, J., concurring).

°R See, e.g., State v. Morris (1978), 55Ohio St.2d 101, 112.378 N.E.2d 708,715 (the power to define crimes andestablish penalties rests with the General Assembly alone); State v. Beasley (1984), 14 Ohio St.3d 74. 75. 471 N.E.2d774,775 ( the sentencing discretion of a trial cotut in a criminal case is limited and circumscnbed byparameters imposedby the legislature).

15

Insurance v. Campbell (2003), 123 S.Ct. 1513." S.B. 80 § 3(A)(4)(c). The Court's "due process"

decisions including State Farm have clearly invited state legislatures to enact punitive damage caps,

and many of them have done so. The General Assembly's legitimate concern about tort defendants'

due process rights is valid and commendable. The caps it has enacted in R.C. 2315.21 provide

constitutionally required fair notice to prospective defendants, proportionality to compensatory

damages, consistency of punishment, and equal treatment ofwrongdoers.

The various caps comply with the Supreme Court's mandates. First, R.C. 2315.21(D)(2)(a)

establishes that the trial court in tort cases may not enter judgment for punitive damages in excess of

two times compensatory damages. This provides "fair notice" to potential miscreants as to the

severity of the penalty that the State will impose, punishment that is tied directly to the amount of

harm they cause. In cases ofserious harm, it imposes a significant level of punishment. Moreover,

it is a fitting response to the mandate that punitive damages be "both reasonable and proportionate to

the amount of harm to the plaintiff and to the general damages recovered."49 It is 50% of the ratio

that would be "close to the line" of impropriety; but it is double the ratio appropriate in cases of

substantial compensatory damages.'° It is within the range of awards that was typical at common

law until very recently.51 It is identical to numerous Ohio statutory civil penalties covering a wide

a9 State Farm, 538 U.S. at 426, 123 S.Q. at 1524.

`0 Id.

" State Farm, 538 U.S_ at 425, 123 S.Ct. at 1524 ("a long legislative history ... providing for sanctions of double_treble. or quadmple damages to deter and punish''). See also BMW, 517 U.S. at 581 _ 116 S.Ct_ at 1601 ("some 65different enactments during the period between 1275 and 1753 provided for double, treble, or quadmple damages"):Owen. "A Punitive Damages Overview: Functions. Problems and Reform," 39 Vill. L. Rev. 363, 368 (1994) (as early as1275. double and treble damages were allowed): Ellis. "Faimess and Efficiency in the Law of Punitive Damages," 56 S.CAL. L. REV. 1. 2(1982) (at common law, punitive damages were rarely assessed and likely to be small in amount): andNiemeyer, "Awards for Pain and Suffering: The Irrational Centerpiece of OurTort System,° 90 Va. L. Rev. 1401, 1407(2004) (typically, punitive damages only slightly exceeded compensatory damages).

16

variety of misconduct.52 And it is similar to the caps enacted in other states, upon which the U_S_

Supreme Court has commented favorably.s3

Thus, the 2-to-I ratio in R.C. 2315.21 clearly is intended to and does comply with the

teachings of BMW and State Farm. Further, it is particularly appropriate in the products liability

context, where plaintiffs often receive large compensatory damages awards (frequently containing a

large non-economic damages component). In these circumstances, as the Supreme Court has stated,

even a 1-to-1 ratio can impose a severe sanction - indeed, so severe that anything more might cross

the line into unconstitutionality.54 In addition, the defendant's level of reprehensibility is often low.

Many cases involve an alleged defect that is not readily apparent (even at trial) or a reasonable

disagreement over a good faith design judgment. The jury is asked to decide whether a product

creates "too much risk" versus its benefits. They do so, neither prospectively (as the defendant had

to) nor in the abstract, but in an individual case of a tragic injury, using hindsight, on the basis of a

highly technical record and usually conflicting opinions of scientists and engineers.55. And their

52 See e.g., R.C. 901.51 (treble damages for injuries caused during the reckless destrnction of timber or crops);R.C. 1331.08 (treble damages for harm resulting from antitrust violations); R.C. 1333.63 (punitive damages notexceeding three times compensatory damages for misappropriation of tmde secrets); R.C. 1335.11 (exemplary damagesnot to exceed three times commissions wrongfully withheld); R.C. 1345.09 (consumers may recover three times theiractual damages for a transaction violatinfl the Consumer Sales Practices Act); R.C. 2307.61 (liquidated damages at threetimes the value of damaged or stolen property); R.C. 2923.34(F) (treble damages for violations of Ohio "little RICOact); R.C. 2741.07 (treble damages for unauthorized use ofplaintiff s persona for a commercial purpose); R.C. 4549.49(three times actual damages for motor vehicle odometer rollbacks); R.C. 4719.15 (treble damages for violation of theTelephone Consumer Protection Act): R.C. 4905.61 (treble damages for harm caused by a public utility or railroad).[Note: Treble damages are equal to compensatory damages plus two times compensatory damages.]

5' For Supreme Court comments on such state laws, see discussion intra. See also AK ST § 9.17.20 (greater ofthree times compensatory damages. or $500,000); AL ST § 6-11-21 (greater of three times compensatory damages or$500,000, for non-physical injury cases, as opposed to $1.5 million for physical injury cases); CO ST § 13-21-102(punitive damages may not exceed compensatory damages); CT ST § 52-901-52.240b (punitive damages may not exceedtwo times compensatory damages for product liability actions); ID ST § 6-1604 (greater of three times compensatorydamages or $250,000); IN ST § 34-51-3 (greater of three times compensatory damages or $50,000); NC ST § 1 D-25(greater of three times compensatory damages or $250,000); ND ST $ 32-03.2 (greater of two times compensatorydamages or $250.000); OK § 23-9-1 (greater of compensatory damages or $100,000, if defendant acted with recklessdisregard; or greater of $500.000 or two times compensatory damages, if defendant acted intentionallyand with malice).

59 State Fann. 538 U.S. at 425, 123 S.Ct. at 1524

s` See Breyer, Breaking the Vicious Cit-cle: Toward Ejjective Risk Regulation 59 (1992); Carroll v. Otis EleratorCo. (7`" Cir. 1990). 896 F.2d 210. 215-16.

17

verdict may be unduly influenced by factors impossible to identify post-trial, such as "hindsight

bias" or bias against wealthy out-of-state companies.56 The statutory cap ameliorates all these risks.

Second, the R.C. 2315_21(D)(2)(b) cap for individuals and small employers - i.e., 10% of

their net worth or $350,000 maximum - is intended to take into account a defendant's "economic

capacity" as well as its "impact [on] the community at large."57 This additional cap - similar to

those previously adopted in other statess8 - serves several desirable objectives. It protects against

financial disaster. The Legislature has directed courts to consider a defendant's finances,59 and

members of this Court have suggested that the jury do likewise.60 This is proper because:

the focus of the award should be the defendant, and the consideration should bewhat it will take to bring about the twin aims ofpunishment and deterrence as tothat defendant. We do not require, or invite, financial ruination of a defendantthat is liable for punitive damages. *** The law requires an effective punishment,not a draconian one.61

In short, punitive damages may punish but must not destroy a defendant.bZ S.B. 80 meets this goal

by setting numerical limits so as to constrain the punishment imposed on defendants most vulnerable

to financial collapse.

Third, with respect to the credit for prior punitive damages payments established by

R.C. 2315.21(D)(5); the U.S. Supreme Court has suggested since its 1991 Haslip decision that states

s6 See, e.g., Hastie, et al., "Looking Backward in Punitive Judgments: 20-20 Vision?," in Sunstein , et aL, PunitiveDamages: HowJuries Decide 96,108 (2002) ("hindsight bias is almost inevitable"); Oberg, 512 U.S. at 432, 114 S.Ct-at 2341 ("biases against big businesses').

S.B. 80 at § 3(A)(4)(b).

5$ See, e.g., AL ST § 6-11-21 (10"/0 of net worth): KS ST § 60-3701 (defendant's annual gross income); MS ST§ 11-1-65 (2"/0 of net worth); MT ST § 27-1-220 (3% of net worth).

59 R_C. 2307_80(B)(6). Zoppo did not address this instruction to considera defendant's financial condition. 71 OhioSt.3d 552, 1994-Ohio-461, 644 N.E.2d 397.

0 See, e.g., Villella, 45 Ohio St.3d at 43, 47-48, 543 N.E.2d at 472,475 (Brown, J. and Holmes, J., concurring).

61 Dardinger, 98 Ohio St.3d at 102, 2002-Ohio-7113 at 1178,781 N.E.2dat 144 (finding ajury award between 1/4and 1/3 of a defendant's annual net profit to be excessive).

°'- Id ("We do not require, or invite, financial ruination of a defendant that is liable for punitive damages.");Villella, 45 Ohio St.3d at 43,543 N.E.2d at 472 (Brown, concurring) ("The purpose of punitive damages is to punish anddeter, not to vanquish or annihilate the defendant.").

18

can take the existence of prior civil awards against a punitive damages defendant into account in

determining whether yet another award is excessive.63 Again, the General Assembly has simply

taken action to prevent Ohio courts from imposing penalties which may be unconstitutional.

3. The R.C. 2315.21 punitive damage caps are particularlyappropriate in product liability cases.

One major flaw in Plaintiffs and her amici's arguments is that they often look at the

R.C. 2315.21 caps in isolation. Their validity must be judged in context - particularly with respect

to product liability litigation. They are interrelated with other product liability provisions in S.B. 80.

All the following sections should be considered:

• R.C. 2307.71(B) abrogates all common law product liability causes of action,including negligence and strict liability. Only the statutory claims set forth inR.C. 2307.71-.80 are now viable in Ohio.

• R.C. 2307.75(A) is atnended to provide a single test for finding a design defect -i.e., whether a design's foreseeable risks exceed its benefits.

• R.C. 2315.21(D)(1) provides that "the trier of fact shall determine the liability ofany defendant for punitive ... damages and the amount of those damages."

• R.C. 2315.21(D)(2)(a) caps punitive damages for a defendant at two times theamount of compensatory damages awarded against that defendant.

• R.C. 2315.21(D)(2)(b) provides that, if a defendant is an individual or smallemployer, the cap is the lesser oftwo times compensatory damages or 10% of thedefendant's net worth (up to a maximum of $350,000).

• R.C. 2315.21 (D)(5) provides that punitive damages may not be awarded against adefendant who can show that it has already paid punitive damages, based on thesame misconduct, exceeding the (D)(2) cap.

• R.C. 2315.21(D5-6) provide several exceptions to the caps.

In enacting these closely related provisions, the General Assembly has struck a delicate

balance among the right of a person hamied wbile using a product to a fair recovery, the right of a

defendant to be free from arbitrary punishment, and the societal interest in a level of deterrence that

63 499 U.S_ at 22. 111 S.Ct. at 1045.

19

does not unduly stifle product innovation and economic development. Plaintiff would have this

Court destroy that balance by leaving in place the generous standards benefiting claimants while

removing the protections provided to defendants and the general public. This Court should reject

such a myopic approach.

The General Assembly could hardly have been more clear about its intent to "preserve a fair,

predictable system of civil justice that preserves the rights of those who have been harmed" while

also reforming punitive damages to "restore balance [and] faimess" and meet the due process

"guidance" provided by the U.S. Supreme Court. S.B. 80 at §§ 3(A)(3), (4)(a), 4(c). The

amendments to R.C. 2307 simplify litigation ofplaintiffs' product liability claims and allow the jury

to award compensatory damages whenever foreseeable risks of a product exceed its benefits. Thus,

the General Assembly confirmed that modern legal standards would apply to both the underlying

product liability claim and the punitive damages claim; followed this Court's ruling in Zoppo that the

jury should decide whether punitive damages are appropriate and (within certain limits) their

amount; provided for predictable amounts of punitive damages which would be paid to plaintiffs

without the need for lengthy "excessiveness" reviews delaying payments to plaintiffs; and assured

compliance with the due process limits established in controlling U.S. Supreme Court case law to

protect defendants. This Court should reject Plaintiff s request to gut the overall package of product

liability law reform in S.B. 80 by invalidating only the portions thereof that she dislikes.

D. THE R.C. 2315.21 PUNITIVE DAMAGE CAPS DO NOT VIOLATE THE RIGHT TO

JURY TRIAL.

Plaintiff primarily attacks the punitive damage caps by arguing that they are barred by the

1999 Sheward opinion, particularly its statement that they violate thejury's right to set the amount of

punitive damages. This argument, however, disregards Ohio and Supreme Court authority while

relying on weak dicta in Sheward that have little or no precedential value.

20

1. Leeislation setting liniits on punitive damages does not violate theright to iury trial.

a. Ohio and U.S. Supreme Court cases support such action.

This Court's Roberts and Saberton decisions and many U.S. Supreme Court opinions support

the authority of this State's legislature to limit (or even eliminate) punitive damages. In none of

these decisions is there even the sligbtest hint that enacting caps would violate the right of trial by

jury. Since at least 1989 the U.S. Supreme Court's members have suggested that states can establish

"statutory ... standards for the determination of how large an award of punitive damages is

appropriate in a given case."64 In addition, several U.S. Supreme Court opinions undercut the theory

that the right to jury trial applies to fixing the amount of punitive damages. The Court held in 1994

in Oberg that a state constitutional amendment denying review of the size ofjury punitive damages

awards violated defendants' due process rights. One argument advanced to support the state-s law

was that it was "consistent with the jury's historic role in ourjudicial systetn." The Court rejected

the proposition "that there is a historic basis for making the jury the f:nal arbiter of the amount of

punitive damages."65 Then, more recently, the Court's opinion in Cooper v. Leatherman went right

to the heart of this matter. In the course of holding that appellate courts should apply a de novo

standard of review when considering the "excessiveness" of punitive damages awards, the Court

made clear that determining the amount ofpunitive damages in a particular case is not an exercise in

jury fact-Jinding at all.66 Rather, as three Justices had explained in an earlier opinion: "Unlike the

measure of actual damages suffered, which presents a question of historical or predictive fact, the

level of punitive damages is not really a`fact' `tried' by the jury."67

Btrou-ning-Fenis, 492 U.S. at 281. 109 S.Ct. at 2923 ( Brennan, J., concuning; emphasis added).

as Oberg, 512 U.S. at 432, 434, 114 S.Ct. at 2341 (emphasis added).

61532 U_S. at 437. 121 S.Ct. at 1686.

67 Gaspet-ini, 518 U.S. at 459,116 S.Ct.at 2235 ( Scalia, J., dissenting) ( intetnal citation otnitted).

21

b. Other states have rejected similar objections.

Many states have now imposed statutory caps on punitive damages - usually in the form of a

multiple of compensatory damages or a set maximum amount. Where the constitutionality of such

statutes has been chailenged, their validity has been upheld. In none ofthose states is it thought that

the right to jury trial precludes enactment of such caps.68 As far as we can tell, Ohio stands alone on

this point - i.e., it is the onlv state whose Supreme Court has said (in the Sheward dicta) that the

right to jury trial prohibits a legislative cap on punitive damages.

c. The trial judge's action enforcing a cap leaves inviolatethe jury's role as the fact-finder.

A judge's determination whether punitive damages are excessive involves the independent

determination of a legal - not a fact - question. For example, comparing the ratio between punitive

and compensatory damages is an expost process. While a jury makes its award based on state law

(without addressing many of the issues pertinent to later excessiveness review), the trial or appellate

court must answer the separate question whether the jury's award comports with due process. The

essence of this review is judicial decision-making on legal grounds. Thus, when a state legislature

spells out how a judge is to reconsider a punitive damage award so as to ensure compliance with

federal due process standards, it does not invade the province of the jury to find facts, but rather

provides standards for how judges should decide what punishment is appropriate.

As the U.S. Supreme Court observed in Cooper, this is closely akin to routine practice in

punishing defendants convicted in criminal trials. State legislatures define the crime and set the

range of pennissible punishment for each offense. After a guilty verdict, the trial judge imposes

°F Ex parte Apicella (Alabama 2001), 809 So.2d 865; ; Evans ex. rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002);

Gordon v. State ofFlorida (Fla. 1992). 608 So.2d 800; Rhyne v. K-Mail Corp., 594 S.E.2d 1(N.C. 2004). See also.

Smith r Printup (Kan. 1993). 254 Kan_ 315_ 866 P.2d 985 (statute requiring court to determine amount of punitivedamages does not violate right to.iury trial): Arnesano v. State (Nev. 1997), 942 P.2d 139 (cap on damages in actionsaeainst the state does not violate the rigght to jury trial); Boyd v. Bulala (4th Cir. 1989), 877 F.2d 1191 (Virginia cap on

damages does not violate state or federal right to jury trial).

22

punishment "within these legislatively-enacted guidelines."69 In doing so, the judge does not violate

any jury trial rights.

Likewise, where a state has set limits on punitive damages, the trial court can impose the

prescribed level of punishment without invading the jury's province. Any objection that cutting

back the jury's award to a legislatively-set limit violates a plaintiff's right to ajury trial is founded

on a fundamental misconception of the nature of punitive damages, which are intended

not to compensate the plaintiff, but rather to punish the defendant *** [and set]him up as an example to others that they might be deterred from similarconduct.* ** As such, punitive damages are outside the underlying purpose of atort action and the essential role of the jury. *** In addition, plaintiffs have nogeneral "right" to punitive damages.70

Since a plaintiff can be completely deprived of a punitive damage award (without affecting the

recovery of tort damages), partial elimination of such an award presents no problem.

Further, that the jury's punitive damage award is not "inviolate" is readily seen in the long

history of judicial post-verdict reductions ofjury verdicts. As Chief Justice Moyer has written:

The majoritv misconstrues the scope of Section 5, Article I of the OhioConstitution. I agree with the majority that the right to a trial by jury includes adetennination by the jury of all questions of fact, as well as the amount ofcompensatory damages to which the plaintiff is entitled. Once the jury hasresolved the facts and assessed the damages, however, the constitutional right issatisfied. The inviolate right to trial by jury does not mean the award ofdamagesis inviolate. Surely, if the rationale used by the majority to support its judgment isextended beyond this case, judges should no longer be authorized to enterjudgments notwithstanding the verdict or order remittiturs of a jury`sdetermination of damages.7l

°" 532 U.S. at 432, 121 S.Ct.. at 1683 ( emphasis in original).

70 Zoppo. 71 Ohio St.3d at 561. 644 N.E.2d at 404 (Wright, J., dissenting). See also Dardinger, 98 Ohio St.3d at102,2002-Ohio-7113 at !1,178. 781 N.E.2d at 144; Preston v. Murty (1987), 32 Ohio St.3d 334, 335,512 N.E_2d 1174,1176; Villella. 45 Ohio St.3 d at 43. 543 N.E.2d at 472 (Brown, J . concurring); Cooper, 532 U.S. at 439, 121 S_Ct. at1687; State Farm, 538 U.S. at 416. 123 S.Ct. at 1519. Accord Smith v. Wade (1983), 461 U.S. 30, 52, 103 S.Ct 1625,1638; Restatement (Second) of Torts \^ 980 comment d (1979).

'' Galqrda r. Lake Nrnpital Sr.rtems, Inc. (1994). 71 Ohio St.3d 421. 436, 1994-Ohio-64, 644 N.E.2d 298, 308,reconsideration denied. 71 Ohio St.3d 1467. 644 N.E.2d 1839, cert. denied, 516 U.S. 810, 116 S.O. 57 (Moyer, C.J.,dissenting).

23

This distinction is especially important for punitive damages, where "excessiveness" review

is common. The jury makes its award, then trial and appellate judges decide whether various factors

-including some that the jury never looked at - show that the award should be reduced. Indeed, the

jury's verdict can be reduced simply to bring it "more in line with the history of punitive damages

awards in Ohio."72 In short, punitive damage awards are often reduced. Plaintiff may argue that

reduction of a punitive damage award via remittitur is different from reduction via a cap. But the

effect is identical: in each case, the jury's award is not 100% "inviolate." Whether a plaintiff

consents is irrelevant, as is the reason for the reduction. Regardless, ajudge takes away part of the

amount given to the plaintiff by the jury.

2. Skeward is not controlling on this issue.

It is important to recall exactly what Sheward said about caps. First, after mentioning

Zoppo's holding that the jury sets the amount of punitive damages, Justice Resnick noted that H.B.

350 would let a jury assess such damages but then stop the trial judge from entering judgment in

excess of a cap. She asserted: "[A] statute that allows the jury to determine the amount of punitive

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

instance."73 Second, she ridiculed one specific cap (denying punitive damages once a defendant

pays punitive damages in excess of the cap) as transforming punitive damages into a`9ottery prize"

going to those who collect them first, while other plaintiffs "lose their constitutional right to a jury

trial as to punitive damages.r74 Third, she asserted (without support) that the General Assembly had

"found" that punitive damages in excess of the H.B. 350 caps (a 3:1 ratio or $250,000) are

"Dardinger_ 98 Ohio St.3d at 104. 2002-Ohio-7113 at ¶ 185, 781 N.E.2d at 145.

86 Ohio St3d at 485. 715 N.E.2d at 1091.

'' 1d

24

unconstitutional, a conclusion inconsistent with the Court's prior approval in the 6Villiams case of a

$1.5 million punitive damages award that was 100 times compensatory damages.7s

a. Sheward involved different facts.

There are several reasons why such comments in Sheward are not controlling here. First,

H.B. 350 involved a different statute, with different punitive damages caps, supported by different

legislative findings, and enacted at a time when a defendant's due process rights relating to punitive

damages were less well defined. "Adoption of a statute similar to one already struck down does not

contradict a prior judgment of this court invalidating the first statute."76

b. Sheward's comments on jury trial are mere dicta.

H.B. 350 was invalidated in toto under (1) the separation-of-powers doctrine and (2) the one-

subject rule.77 There was no syllabus stating that the punitive damages caps were unconstitutional.

Since 1858, this Court has said that the points of law decided in a case are those located within its

syllabus.78 Where a justice assigned to write the majority opinion discusses matters on questions

mentioned not in a syllabus, the language is merely the personal opinion of the writer.79 Thus, given

that the discussion in Slzetaat-d of punitive damage caps was unnecessary in light of the Court's

holdings and was excluded from the Court's syllabi, it is mere dictum expressing the personal

opinions of the author, which this Court is now free to disregard. As a member of this Court has

subsequently commented about one H.B. 350 punitive damage cap:

75 86 Ohio St.3d at 485 715 N_E.2d at 1091, referring to Williams ie Aetna Fin. Co. (1998), 83 Ohio St.3d 464,479-80, 700 N.E2d 859, 870-71.

76 Sheward, 86 Ohio St.3d at 528. 715 N.E.2d at 1120 (Moyer, C.J., dissenting).

77Id. at Syllabi 2-3.

78 See, e.g., MTD Products, Inc. r. Robatin (1991), 61 Ohio St.3d 66. 70. 572 N.E.2d 661, 665 ("In Ohio, thesyllabus of a Supreme Court case states the law:') (Resnick. J., dissenting). She ra I. 86 Ohio St.3d at 537,715 N.E.2dat 1113 (Moyer_ CJ., dissentine).

'9 State v. Wilson (1979), 58 Ohio S1.2d 52, 60.

25

R.C. 2315.21(D)(3)(a) seeks to protect a defendant from being subjected tosubsequent punitive damage awards for conduct once the defendant has satisfieda punitive damages award for the same conduct beyond a threshold amount. Thisis an important issue that should have been considered on its own merits with fullbriefing and oral argument. But the majority's wholesale dismantling ofAm.Sub.H.B. No. 350, under the pretext of a violation of the one-subject rule,will forever preclude this court from individually considering important issueslike the one presented in this case.80

In short, this Court did not in Sheward hold "beyond a reasonable doubt" that legislative

enactment of punitive damage caps was "clearly incompatible" with any provision in the Ohio

Constitution, including the right to trial by jury. Any dicta on this issue may be disregarded.

c. Sheward's dicta lack logic and legal reasoning.

The Sheward opinion actually provided no factual or legal analysis whatsoever to support

condemning punitive damage caps, but relied on Delphic pronouncement and pejorative rhetoric.

The opinion's first dictum cited only Zoppo's directive that juries set the amount of punitive

damages. But it does not necessarily flow from that proposition that the amount of punitive damages

cannot be limited by the legislature. That is a very different legal issue as to which the opinion

provides no legal analysis. Indeed, the Court's ipse dixit conclusion is patently false because, if true,

any change of substantive law with respect to matters previously tried byjuries would be impossible.

Common sense alone rejects this odd notion. For example, if at common law a horse thief could be

tried and, upon conviction, hanged, the legislature could not eliminate capital punishment for this

crime, because to do so would take away from the jury the right to impose as strict a penalty as

existed at common law. As another example, at common law a defendant could establish an

absolute defense to liability on a negligence claim if the plaintiff was guilty of any negligence;

applying Sheward's dictum, the comparative fault law violates tort defendants- jury trial rights.

80 Crowe v. Owens Corning Fiberglas, 87 Ohio St.3d 204_ 205-06, 1999-Ohio-16. 718 N.E. 2d923 . 924 (Lundberg

Stratton, J., dissenting).

26

To elevate the jury trial right to the level of an absolute bar to any change of law as it

allegedly existed in Meny Old England is nonsensical. For obvious reasons, this has never been the

law of Ohio, as shown in this Court's prior statements in Roberts and Saberion that the General

Assembly can, if it wishes, alter jury awards of punitive damages. Decisions in the U.S. Supreme

Court and in other states also support such legislative authority. As this Court once said: "No one

has a vested right in rules of the common law. *** [T]he law itself as a rule of conduct may be

changed at the will of the legislature unless prevented by constitutional limitations. The great office

of statutes is to remedy defects in the common law as they are developed, and to adapt it to new

circumstances."$' This nicely describes how the General Assembly has tried through the reforms in

S.B. 80 to remedy defects that have developed over time in how punitive damages are awarded.

Sheward's second dictum - about the cap on multiple penalties - suffers from the same lack

of supportive logic. Ohio law is replete with well established principles exemplifying the basic

concept that the State should punish a defendant only once for his wrongdoing (eg., the rule against

double jeopardy). Labeling a law as a"lottery' hardly substitutes for persuasive legal analysis.

There is nothing inherently odious about lotteries - the State of Ohio itself runs them.

Third, Sheward's citation to Williams is also less than persuasive. That case involved a

conspiracy to defraud, not a "tort action." Further, the Court in Williams gave a very narrow reading

to BMW "excessiveness" review82 - an approach shown by State Farnn to have been far too

restrictive. Instead of fully applying the mandatory BMW due process guideposts. the Court simply

deferred to the jury in finding the verdict to be constitutional. As one Justice objected: "It is the

81 Fassig v. State, ex rel. Turner (1917), 95 Ohio St. 232, 248, I 16 N.E. 104. 108 (holding that an etnplover sued byan employee for the amount fixed by statute as due on a worker's compensation claim had no rieht to iurv trial as to theamount of the award).

F' 83 Ohio Sc.3d at 479, 700 N.E.2d at 871.

27

court's duty to independently evaluate the jury's award in relation to the BMW guideposts."83

Appellate courts may not "defer"to the jury.84 Such an opinion neither deserves stare decisis effect

nor provides a sound basis for invalidating a new statute.85

d. Dardinger undermines Sheward's dicta.

This Court has itself backed away from Sheward. In the 2002 Dardinger case, the jury had

awarded $49 million in punitive damages. This Court held that such an award was "excessive under

Ohio law" and should be reduced to $30 million (via a remittitur). So much for the overly expansive

Sheward notion that a jury's punitive damage award is constitutionally °inviolate."86

Further, the primary rationale for the $19 million reduction was that the "focus" of punitive

damages is on the specific defendant and "what it will take to bring about the twin aims of

punishment and deterrence as to that defendant"87 In other words, the reduction was appropriate

because the defendant had already been sufficiently punished and deterred. This necessarily implies

that any later punitive damage awards would be over-punishment and over-deterrence, and therefore

excessive. Thus, in deciding that $30 million was the maximum penalty for Anthem to pay - which

as a practical matter barred punitive damages awards to other potential plaintiffs - this Court created

a "lottery" won by the Dardingers. So much for the "lottery" rationale.

In addition, Dat-dinger applied financial reasoning akin to that used in R.C. 2315.21. The

Court decided that an award equaling "one-sixth of [defendant's] annual net earnings" would be

13 83 Ohio St.3d at 485, 700 N.E.2d at 874 (Lundberg Stratton. J., concumng).

s' Oberg, 512 U.S. at 434-35. 114 S.Ct. at 2341.

85 See Scott r. tVe M1-s Herald, et aL (1986), 25 Ohio St.3d 243. 249-50, 496 N.E.2d 699. 705, citing Leavirt r.Mwrow (1856)_ 6 Ohio St. 717 78 ("A legal principle [precedent], to be well settled, must be founded on soured reason....***[1]t is the reason and justice of the law which give to it its vita7itn.")

S0 98 Ohio St.3d at 102-03, 2002-Ohio-7113 at ¶¶ 177-83, 781 N.E2d at 143-45.

s' Id.

28

"appropriate."S$ Conceptually, this is just like the legislative judgment call in R.C. 2315.21 (D)(2)(b)

to limit punitive damages for individuals and small defendants to 10% of their net worth.

e. Sheward did not address the legal issues presented here.

Finally, Sheward is not controlling because it did not address the key issues presented here,

particularly in the area of product liability law:

1. whether the General Assembly can create a statutory claim and specify themaximum civil penalty to be imposed on those who fail to meet the standardsof conduct laid down in that statute;

2. whether basing a punitive damage award on the compensatory damagesawarded by the jury gives sufficient recognition to the jury's role; and

3. whether it is a permissible exercise of the General Assembly's lawmakingpower to restrict the award of uncapped punitive damages to certain cases.

Despite Plaintiff s broad contentions that Ohio law prohibits punitive damage caps, neither Sheward

not its predecessor Zoppo answers any of these issues that are key to determining whether the right

to a jury trial is constitutionally incompatible with the R.C. 2315.21 caps_

3. The right to a jury trial does not preclude the General Assemblyfrom establishine caps on punitive damat=es in product liability cases.

Zoppo and Sheward should be clarified so as to make clear that the enactment of punitive

damage caps does not violate the right to trial by jury. What Plaintiffdescribes as "settled, long-

accepted, uniform interpretations" of the Ohio Constitution are instead one fairly recent

questionable decision in Zoppo, followed by dicta in Sheward extending Zoppo well beyond

anything that can be justified on the basis of law or logic.

In Zoppo. the majority based its holding on the Roberts case, whieh correctly noted the jury's

traditional role in "deterntining punitive damages."89 However, the Roberts opinion nowhere said

$S 98 Ohio St.3d at 104, 2002-Ohio-7113 at 1185, 781 N.E2d at 145.

89 Zoppo, 71 Ohio S0d at 556-557, 644 N.E.2d at 397. citing Roberts, 10 Ohio St. at 225.

29

that the Ohio Constitution requires that only the jury may determine the amount of such damages.

That was a new conclusion to which the Zoppo majority leaped, without even attempting to resolve

any of the objections to that notion. As the Zoppo dissent commented, the majority "simply fail[ed]

to come to grips with" the issue.90 The jurytrial right attaches only to matters that are "fundamental

and essential to the jury system," such as making factual findings on liability and compensatory

damages.91 By contrast, assessing punitive damages is "not a fundamental element of a trial," but

rather "a remedy in the nature of a penalty" imposed for societal purposes.92 As the Zoppo dissent

recognized and the U.S. Supreme Court has now made clear in Cooper, the jury's role as fact finder

does not include setting the amount ofpunitive damages. That task involves a much broader inquiry

that delves into not only the facts of the case at hand, but also a number of other factors that the jury

never considers, including public policy and due process concems.93

While Zoppo may have been wrongly decided, it need not be overturned here, since the

General Assembly has in S.B. 80 assigned the initial assessment of punitive damages to the jury.

Rather, this Court need only consider whether Zoppo must be extended to bar the legislature from

setting limits on the amount the jury can award. That is logically a different issue which this Court

has never actually decided.

a. The General Assembly has the power to create a statutoryclaim and establish the maximum civil penalties forviolations thereof.

No prior Ohio case has held that the jury trial right is violated if the legislature creates a

statutory claim and at the same time specifies the maximum civil penalty which will serve the

90 Id., 71 Ohio St.3d at 559, 644 N.E.2d at 403 (Wright, J. and Moyer, C.J., dissenting).

'1 Id.

1' Id..71 Ohio St.3d at 561,644 N.E.2d at 404_

9s Id

30

interests of the State of Ohio by condemning, punishing, and deterring those who fail to meet the

standard of conduct laid down therein. To the contrary, prior Ohio and U.S. Supreme Court case law

indicates that such legislative action is pelmissible.

The General Assembly has the power to specify what damages are recoverable on a

statutorily created cause of action. Here, it has created the "products liability" claim, which did not

exist at common law, and decided that, while a plaintiff may recover the full amount of

compensatory damages, punitive damages will be limited on such a claim. To make such decisions

falls within the constitutional role of the legislature.94 This Court has certainly never held to the

contrary, nor is there anything in the common law supporting such a dubious proposition.

In the criminal law context, the legislature creates and modifies penalties all the time; it

routinely determines the punishment the trial judge can impose after liability is found by thejury. In

the civil context, the legislature likewise creates new statutory claims and provides for remedies with

a punitive aspect. For example, the Consumer Sales Practices Act provides for treble damages95 -

and Plaintiff presumably would concede that allowing judgments greater than what juries would

award as compensatory damages does not violate a defendant's jury trial rights.

In the specific context of punitive damages, this Court has clearly said that the General

Assembly may "alterl punitive damages.96 And as Justice Scalia has noted, federal constitutional

law accords "[s]tate legislatures ... the power to restrict or abolish punitive damages."97 The power

`9 See Gregory v_ Flower (1972), 32 Ohio St.2d 48, 53_ 29 N.E.2d 181, 185_ quoting Smith v. New York Rd. Co.(1930), 122 Ohio St. 45, 48, 170 N_E_2d 637, 638 ("...the Legislature has power to make, amend, and repeal lawsrelatingto the remedy). Cf State v. Morris (1978), 55 Ohio St.2d 101, 112, 378 N.E.2d 708, 715 (the power to definecrimes and establish penalties rests with the legislature). See al.so Haslip. 499 U.S. at 39. 111 S.Ct. at 1054; BMW, 517U.S. at 568, 592, 607, 615, 116 S.Ct. at 1595, 1607, 1614, 1618; Cooper. 532 U.S. at 432, 121 S.Ct. 1683; and StateFarm, 538 U.S. at 417, 123 S.Ct. at 1520.

" R.C. 1345.09 (A)- (C). "Treble damages" isjust another name for compensatory damages plus a penalty oftwicethe amount of such compensatory damages.

96 Roberts, 10 Ohio St. at 280; Saberton, 144 Ohio St. at 424, 66 N.E.2d at 229.

97 Pacifrc Mut. Life Ins. v. Hastip (1991), 499 U.S. 1, 39, 111 S.Ct. 1032. 1054).

31

to abolish a claim for damages entirely necessarily implies the power to limit it,98 and other state

supreme courts have so held.99

Thus, it seems clear that the General Assembly, which could abolish punitive damages in all

product liability cases, can limit the amount thereof that can be awarded in individual such cases.

Here, it has correctly concluded that establishing penalties (i_e., punitive damages) for "product

liability" misconduct is akin to defining a criminal violation and setting forth a range of appropriate

punishment to be imposed by the trial court based upon jury findings.10° It has spelled out the

punishable wrongdoing, let the jury decide whether punishment is necessary and (in most cases)

decide the amount thereof, and even let plaintiffs argue that a higher degree ofpunishment is needed

in some cases. The Legislature was well within its power in enacting the RC 2315.21 caps.

b. The caps do not invade the province of the jury as "finderof fact."

No Ohio case law holds that the General Assembly cannot set a maximum penalty to be

imposed by a trial judge, especially where this does not invade the jury s role as "finder of fact,"

does not deprive a plaintiff of any compensation for injuries suffered, provides fair notice to

potential wrongdoers ofthe severity ofpunishment they can expect, avoids inconsistent results, and

keeps punitive damages within reasonable bounds so as to avoid due process violations without the

need for costly "excessiveness" review.

The Legislature acts within its constitutional authority in setting a limit on punitive damages,

and such action does not encroach upon the fact-finding function of the jury. As the U.S. Supreme

See Zoppo, 71 Ohio St.3d at 561, 644 N.E.2d at 404 (Wright_ J., dissenting)_

^ Rhyne. 594 S.E.2d at 9; Pulliam v. Coastal Emergencv Servs. ofRichmond, Inc. ( V a. 1999), 509 S.E.2d 307, 314;see also. Virmani u Presbyterian Health Servs. Corp. (N.C. 1999),. 515 S.E.2d 675. 691 (General Assembly has thepower to modify and repeal common law).

10° S.B. 80 at § 3(A)(4)(b)(1)_

32

Court has expressed, juries are "fact finde>-s."10' As Chief Justice Moyer has explained in Galayda,

the jury's role is to resolve the facts.102 By contrast, setting the amount of punitive damages is not a

fundamental element of trial,103 but rather "an expression of moral condemnatiori'10'4 outside the

fact-finding province of the jury.'05 Penalties for wrongful conduct are more appropriately assessed

by a legislative body capable of taking into consideration factors never mentioned during a trial.

c. RC 2315.21 actually allows the jury to set the amount ofpunitive damages in most cases.

In most cases, the jury will determine the amount of punitive damages, even when a cap

applies. Where there is a large defendant, the jury determines the amount of punitive damages by

deciding the amount of compensatory damages. For example, if the jury assesses $3 million in

compensatory damages, it is this jury finding that actually sets the upper limit on punitive damages

(i_e., $6 million). Even ifthe jury's punitive damage award is higher and is reduced bythetrial court

because of the cap, nonetheless it is the jury that has itself determined the amount of punitive

datnages the defendant will pay.

d. R.C. 2315.21 allows uncapped punitive damages to some cases.

By creating exceptions to the statutory caps, the General Assembly has allowed the award of

unlimited punitive damages in appropriate cases. For example, although R.C.2315.21(D)(5)(a) bars

another award where a defendant has paid punitive damages exceeding the cap, sub-section

(D)(5)(b) negates this protection from duplicative punishment if there is previously undiscovered

evidence of additional bad behavior or the trial court concludes that the previous awards are

101 Haslip, 499 U.S. at 39, 111 S_Ct. at 1054.

10 Galayda, 71 Ohio St.3d at 436, 644 N.E.2d at 308 (Moyer, C.J., dissenting).

° Zoppo, 71 Ohio St3d at 561, 644 N.E.2d at 404 (Wright, J., dissenting).

" Cooper, 532 U.S. at 432, 121 S.Ct. at 1683.

10` Zoppo, 71 Ohio St_3d at 561, 644 N.E_2d at 404 (Wright, J., dissenting).

33

insufficient to punish and deter wrongdoing. Further, under sub-section (D)(6), none of the caps

apply where a plaintiff s injury has resulted from conduct of a defendant who has acted "purposely

and knowingly" and been found guilty of a felony offense involving such a mental state. These

provisions raise questions about caps that Plaintiff has not addressed - i.e., whether a legislature can

specify elements that a plaintiff must show in order to obtain punitive damages over a capped

amount. As the U.S. Supreme Court has said, state "legislatures enjoy broad discretion in

authorizing and limiting permissible punitive damages awards."106 Since they have "considerable

flexibility in determining the level of punitive damages that they will allow in different classes of

cases and in any particular case,"107 allowing uncapped punitive damages for a limited class of cases

is within the General Assembly's lawmaking power. Certainly, Plaintiff points to no authority in

Ohio or elsewhere establishing that such legislative action is improper.

4. The doctrine of stare decisis does not require that theR.C. 2315.21 punitive damage caps be invalidated.

Plaintiff argues that stare decisis requires that Sheward be followed. But that doctrine is a

"pri nciple of policy," not an "inexorable command."108 It is often inapplicable. For instance, it

"does not attach ... mere dicta" 109 - such as the "jury trial" dicta relied on by Plaintiff. In any event,

as Justice O'Connor has written, the "court not only has the right, but is entrusted with the duty to

examine its fonner decisions and, when reconciliation is impossible, to discard its former errors.***

[O]ur precedents are not sacrosanet.""110 Indeed, stare decisis receives less honor in cases of

constitutional import than in cases of pure judge-made or statutory law, because:

106 Cooper. 532 U.S. at 433, 121 S.Ct.. at 1683.

10' BM6Y7. 517 U.S. at 568. 116 S.Ct. at 1589.

f0S Nolrn r. U.S. (1998), 524 U.S. 236, 251, 118 S.Ct. 1969, 1977.

109 See, e.g., Williams v. iVard (6`" Dist_ 1969), 18 Ohio App.2d 37, 40, 246 N.E.2d 780, 782.

H0 43%es{Te1d hus. Co. -. Galatis, 100 Ohio St.3d 216, 226, 2003-Ohio-5849, ¶¶ 43-44, 797 N.E.2d 1256. 1267.

34

It is generally beyond the power of the legislature to change or "correct" judicialinterpretation of the Constitution. This is the main justification for taking a moreflexible attitude toward overruling precedent in such cases. *** Given theinability of the legislature to override judge-made law in this area, it is clear thatwhen an earlier decision is demonstrably wrong..., it is incumbent on the court tomake the necessary changes and yield to the force of better reasoning. *** Whatwe do today, in reconsidering [prior case law], is not some forbidden aberration.It is, in fact, the fulfillment of our constitutional responsibilities.I I'

The constitutionality of the R.C. 2315.21 punitive damage caps should not be controlled by

the Zoppo and Sheward opinions. Certainly, they are not binding on issues beyond their holdings. ' iZ

Further, this Court is not irrevocably bound by such cases, since they may be abandoned if (1)

changes in circumstances no longer justify continued adherence to them, (2) they defy practical

workability, and (3) abandoning them would create no hardship for anyone who relied on them.113

Fundamental changes in the law conceming defendants' due process rights and the nature of the

jury's role in awarding punitive damages have occurred since such cases, as well as changes in the

economic and litigation environment of this State; such developments justify adopting the caps.

Further, the procedures for jury awards of punitive damages and for judicial review of such awards

have become increasingly unworkable. Finally, caps will not create any undue hardship. Further,

the caps actually serve the goals that the stare decisis is intended to serve - i.e., consistency in

application of the law and avoidance ofwasteful litigation.114

Cirr qfRocAy River v. State Employment Relations Bd. (1989), 43 Ohio St.3d I. 13-14, 539 N.E.2d 103, 108.

° II'ilfiams, 18 Ohio App.2d at 40, 246 N.E.2d at 782.

" Galmis, 100 Ohio St.3d at 216, 2003-Oho-58497 797 N.E.2d at 1259 (Syllabus 1).

"' See Gallimore r. Chitdren's Hosp. Med. Center ( 1993), 67 Ohio St.3d 244. 257_ 1993-Ohio-205, 617 N.E.2d1052. I062 ( Moyer, C.I., dissenting) (stare decisis providespredictability and stability in the law, which is important forsocial policy and an essential part of American jurisprudence).

35

E. THE R.C. 2315.21 CAPS DO NOT VIOLATE THE CONSTITUTION'S "RIGHT TO

A REMEDY," "DUE PROCESS," AND "EQUAL PROTECTION" PROVISIONS.

Plaintiff also argues that the R.C. 2315.21 punitive damages caps violate several other

provisions of the Ohio Constitution - to wit, the "right to a remedy" [with due process] clause in

Article 1, Section 161 15 and the "equal protection" clause in Article 1, Section 2.116

1. The R.C. 2315.21 punitive dama2e caps do not violate Article 1,Section 16 ["rieht to a remedy" and "due process"]•

a. Punitive damages is not a "remedy" to which plaintiffshave a "right."

Plaintiff argues that Article 1, Section 16 provides her with a constitutional "right to a

remedy" that includes punitive damages. However, this clause only protects her ability to recover

for harm done to her - a remedy which the punitive damages caps do not touch. The award of

punitive damages is discretionary. Plaintiff has no right to receive them.t 37 There is no explicit or

implicit guarantee in the Constitution of such an alleged "right," which is unrelated to recovery of

compensatory damages for harm done. As this Court has recently said, "punitive damages are not

'actual damages'."t 18 Punitive damages serve a very different purpose - i.e., to meet the State's

goals of condemnation, punishment, and deterrence.119 In effect, a plaintiff acts as a self-appointed

"private Attorney GeneraF - a proxy for State authority - in seeking punitive damages to pursue

these goals on behalf of the State of Ohio. Punitive damages are awarded only after a plaintiff first

"" "[E]very person, for an injury done to him..., shall have remedy by due course of law....°

116"All political power is inherent in the people. Government is instituted for theirequal protection and benefit...

11' Preston v. Murn' (1987). 32 Ohio St.3d 334, 335, 512 N.E.2d 1174, 1175 ("Ohio courts ... have atloioed

punitive damages to be awarded'-) (emphasis added); see also Zoppo. 71 Ohio St.3d at 560, 644 N.E.2d at 404

(dissenting opinion) ("punitive dantages are permissive')_

"g 6['hitaker v. M.T Autoniotirr, Inc., 11 I Ohio St.3d 77, 2006-Ohio-5481 !^23 (emphasis added).

"9 See Dardinger, 98 Ohio St.3d at 102, 2002-Ohio-7113 at ¶ 178, 781 N.E.2d at 144 ("The purpose of punitivedamages is not to compensate a plaintiff. but to punish and deter certain conduct. ^). See also, State Farm, 538 U.S. at

416, 123 S.Ct. at 1519 (`Compensatory damages 'are intended to redress the concrete loss that the plaintiffhas sufferedby reason of the defendant's wronofal conduct.' By contrast, punitive damages ... are aimed at deterrence andretribution.").

36

obtains an award of compensatory damages. Thus, before punitive damages are even at issue, a

plaintiff has already recovered whatever damages the jury has assessed as the full compensation to

which he is entitled. In other words, he already has the "remedy by due course of law" for the

"injury done to him" guaranteed by Article 1, Section 16- Any punitive damages award is a

windfall.120 The constitutional "right to a remedy" does not include a "right to a windfall."

b. R.C. 2315.21 must be evaluated under the "rational basis"standard, is presumed constitutional, and may beinvalidated only if Plaintiff sliows beyond a reasonabledoubt that there is no set of circumstances under which itcan be validly applied.

Plaintiff also makes a "due process" objection based on Article I, Section 16. A statute thus

attacked is upheld under the "rational basis" test if it bears a real and substantial relation to the

public health, safety, morals, or general welfare, provided that it is not arbitrary or unreasonable.12'

Statutes carry a strong presumption of constitutionality.1'`' If they do not involve a suspect

classification or fundamental right, they are presumed to be rationally related to legitimate goals, and

the Court must grant substantial deference to the legislature"s judgment.123

Almost every exercise of the police power will necessarily... involve an injuryto a person within the meaning of Section 16 of Article I of that Constitution.*** Whether an exercise of the police power does bear a real and substantialrelation to the public health, safety, morals or general welfare of the public andwhether it is unreasonable or arbitrary are questions which are committed in thefirst instance to the judgment and discretion of the legislative body, and, unlessthe decisions of such legislative body on those questions appear to be clearlyerroneotrs, the courts will not invalidate them.1'"'

120 See Dardinger. 98 Ohio St.3d at 104, 2002-Ohio-7I 13 at ¶ 188- 781 N.E.2d at 145 ("There is a philosophicalvoid between the reasons we award punitive damages and how the damages are distributed. The community makes thestatement, while the plaintiff reaps the monetary award:')

"' State v. Williams. 88 Ohio St.3d 513, 524-525- 531, 2000-Ohio-428, 728 N.E.2d 342, 355; 360.

112 Sorn ell v. Thevenir (1994), 69 Ohio St.3d 415 418-419, 1994-Ohio-38, 633 N.E.2d 504, 508; State v. Thompkins

(1996), 75 Ohio St.3d 558, 560, 1996-Ohio-264. 664 N-E.2d 926. 928.

13 McCrone r. Bank One Corp., 107 Ohio S1.3d 272. 278. 2005-Ohio-6505 at 130, 839 N.E.2d 1. 8.

t'-' Benjamin r. Columbus (1957),167 Ohio St. 103.110- 146 N.E.2d 854, 860 (citations omitted, emphasis added).

37

A party may challenge a statute as unconstitutional on its face or as applied to particular

facts. Here, Plaintiffmakes a facial attack on the punitive damage caps. To succeed, she must prove

a "due process" defect with proof beyond a reasonable doubt.125 Further, she must establish that

there exists no set of circumstances under which any cap would be valid.lZ6 Before striking

R.C. 2315.21 in toto, the Court must do more than simply find that it operates improperly in some

situations. 127

Thus, each cap must be upheld unless the presumption of constitutionality is overcome by

proofbeyond a reasonable doubt that the decision to adopt it was clearly erroneous and that there is

no set of circumstances where its application (1) bears a substantial relation to the public welfare (2)

without being unreasonable or arbitrary. This burden has not been met here. In particular, many

arguments advanced by Plaintiff or her amici pertain to specific situations where they say particular

parts of S.B. 80 may be invalid. But they fail to show that the caps are invalid in all cases. Their

arguments concerning, for example, drunk driving or employment disetimination do not prove that

caps are unconstitutional in routine product liability cases.

c. Instituting punitive damage caps is a reasonable means toprotect the due process rights of tort defendants and tomaintain an efficient and credible system of civil justice.

(I) The legislative intent is to achieve legitimate goals.

It is important to start with the reasons advanced by the General Assembly for adopting caps

on punitive damages. According to its legislative findings, the caps were enacted

"` State ea-rel. Dickman v. DefenGacher (1955). 164 Ohio St. 142, 128 N.E.2d 59 (Syllabus 1)_

1"' Holeton v. Crouse Cartage Co. (2001) 92 Ohio S0d 115, 139-141. 2001-Ohio-109, 748 N.E.2d 1111,1132-1134 (Cook and Lundberg Stratton, D. dissenting) (a court must "hold that under no reasonable set ofcircumstances" could the statute operate constitutionally), citing State r. Beckler (1983), 5 Ohio St.3d 4, 7, 69, 448

N.E.2d 1147,1149; see also, Uniled States r. Salenvo (1987). 481 U.S. 739.. 745. 107 S.Ct. 2095, 2100.

"' Village ofHoffman Estates r. Flipside, Hqginan Estates, ILx. (1982). 455 U.S. 489. 494-497, 102 S.Ct. 1186,

1191-1193.

38

• "to restore balance, faimess, and predictability" to the civil justice system

• to comply with "guidance recently provided by the United States SupremeCourt" in State Farm and Gore v. BMW

• to lessen the "cost of the ... tort system" under which only 22% of victims arereimbursed for the economic loss they have sustained

• to avoid "[i]nflated damage awards ... increased ... cost of litigation ... higherprices"

• to prevent litigation "which increases the cost of doing business, threatens Ohiojobs, drives up costs to consumers, and may stifle innovation"

•"to punish a tortfeasor for certain wrongful actions or omissions"

• to avoid "occasional multiple awards ofpunitive or exemplary damages that haveno rational connection to the wrongful actions or omissions of the tortfeasor."128

Thus, the caps are intended to assure that lawsuits provide ( I) as full a level ofcompensation

as is possible to claimants, (2) protection to defendants- due process rights, (3) appropriate

punishment and deterrence of wrongdoers, and (4) resolution of litigation in a less costly and more

predictable manner. All these purposes relate to the public morals and general welfare and are

clearly proper. Some may, in individual cases, be in tension with others. It is the duty of the

General Assembly to resolve such tensions.

(2) The overall legislative judgment is not clearly erroneous.

Plaintiff's argument suffers from tunnel vision_ It focuses only on a few of the General

Assembly's goals in enacting R.C. 2315.21. Such an approach ignores the controlling question: is

this provision, viewed overall, a clearly erroneous exercise of legislative judgment, particularly as

applied to product liability cases?

There is no doubt that Article 1, Section 16 requires an Ohio court to provide Plaintiff with a

remedy for harm done to her. To uphold that right ),ras one of the stated legislative goals. Plaintiff

18 S.B. 80 § 3(A)(4)(a), (4)(c), (3)(d)7 (6)(e)7 (3), (4)(b)(i). and (4)(b)(ii)_ respectively.

39

may pursue her claim for compensatory damages unimpeded by the punitive damage caps. Indeed,

implementing caps is likely to speed up receipt of such damages. Just as important, the Constitution

also protects a tort defendant's right to due process,129 including the right not to be subjected to

arbitrary and excessive punitive damage awards. So some balancing between the respective due

process rights ofplaintiffs and defendants is necessary. R.C. 2315.21 provides that balance - while

meeting many other legitimate state purposes as well. For example, the State has traditionally made

punitive damages available in private litigation in order to condemn, punish, and deter wrongdoing.

Of course, the higher the award, the greater its effect. But too high an award leads to

"excessiveness" problems which the State has a legitimate interest in resolving in a just, timely, and

cost-efficient manner. See Civil Rule 1(B). The General Assembly has made a judgment that

setting caps on punitive damages is a reasonable way to balance all these goals.

Plaintiff and her amici advance no support whatsoever for their (implicit) arguments that the

Legislature has struck the overall balance improperly. They never even try to demonstrate that the

legislativejudgment striking a balance among all of its stated goals was "clearly en-oneous." Rather,

they take issue with various legislative findings, arguing that specific studies cited by the General

Assembly are invalid or contradicted by other "facts" cited in their briefs. Such contentions are

inappropriate:

When plausible reasons for the legislature's action are apparent, a statute'sconstitutionality is validated, and it is constitutionally irrelevant whether thereasoning actually prompted the enactment. Importantly, a state has noobligation whatsoever to produce evidence to sustain the rationality of a statutoryclassification- [A] legislative choice is not subject to courtroom factfinding and

"9 The due process provision in the Ohio Constitution is substantially the same as its federal counterpart, and U.S.Supreme Court rutings on due process issues are persuasive authority in intetpreting Ohio due process rights. Daagkern-

v Wallace (2nd Dist. 1993), 87 Ohio App.3d 228, 236. 621 N.E.2d 1374, 1380, citing State es rel. Heller r. Miller

(1980). 61 Ohio St.2d 6_ 8, 399 N.E.2d 66,67.

40

may be based on rational speculation unsupported by evidence or empiricaldata.13o

In short, the well-supported reasons for adopting punitive damage caps cannot be subjected to nit-

picking criticism. They must be recognized and given deference by this Court in reviewing S.B. 80.

(3) R.C. 2315.21 promotes judicial efficiency and credibility.

Plaintiff's Brief entirely ignores weighty arguments favoring the imposition of caps. First,

the caps create substantial increases in judicial efficiency by avoiding "excessiveness reviews' by

trial and appellate courts. Such post-verdict proceedings are difficult, expensive, and time-

consuming. Yet they are sometimes ineffective as a means of protecting a defendant's due process

rights. They often prolong the ultimate resolution of the dispute (which, inter alia, delays a victim's

receipt of compensation). They cause repetitive litigation when an award is vacated as excessive or

a remittitur is refused. Caps can cure all these ills.

Second, the absence of established maximum civil penalties leads to wildly varying awards

that are in fact (or appear to be) arbitrary - thus undermining the credibility of and regard for the

judicial system. Caps create consistent punishments proportionate to the harm caused and the

defendant's resources. Such proportionality is a hallmark - indeed, an essential component - of

justice in punishing wrongdoing. Proportionality is readily understood by a people in whom is

inbred the fundamental fairness concept that punishment should fit the crime.

Third, without established caps, defendants are at risk that a renegade jury can in effect

overtum favorable defense verdicts rendered by juries in multiple prior cases involving the same

alleged product defect. No one would seriously argue that every jury "gets it right." We can live

"0 Stalker r. Industrial Comm. of Ohio, et aL (Ohio App. 10'h Dist.), 2004 WL 45945, °3. quoting United States

RR. Retirement Bd. v. Frita (1980), 449 U.S. 166, 179, 101 S.Ct- 453, 461; Neller r. Doe (1993). 509 U.S. 312, 320,113S.Ct. 2637. 2643; and Fed. Comniunication.s' Comm. v. Beach Communications (1993), 508 U.S. 3077 315, 113 S.Ct.2096 2102.

41

with a system of justice where occasional mistakes are made. By capping punitive damages, the

General Assembly has prevented such a mistake from ruining a defendant manufacturer or driving a

worthwhile product from the market - while honoring defense verdicts by other juries.

(4) R.C. 2315.21 provides "fair notice" to prospectivewrongdoers.

As previously noted, the U.S. Supreme Court in a series of cases culminating in State Farm

has announced that state courts must as a matter of basic due process provide potential wrongdoers

with fair notice of the types of misconduct that will give rise to punitive damages and the severity of

such punishment. R.C. 2315.21 meets this mandate. For larger defendants (who can probably afford

to pay large judgments), it sets the maximum award at two times the amount of compensatory

damages. Most defendants can make a reasonable estimate of the range of such penalties.

(5) R.C.2315.21 protects defendants from ruinouspunishment.

The caps also protect defendants from losses that cripple theirbusinesses.13t. The law has

traditionally.aimed at punishing and deterring wrongdoers, but not destroying them. As this Court

has said: "We do not require, or invite, financial ruination of a defendant "132 But current practice

prior to S.B. 80 did little to prevent such a result. To avoid that risk, R.C. 2315.21 protects

individual and small business defendants from awards that jeopardize their solvency. Small

businesses provides the foundation for Ohio's economic growth. Virtually all of the new jobs created

each year come from small firms.133 They are the powerhouses of our economic system..134 Yet in

13' Browning-Fen-is, 492 U.S. at 281., 109 S.Ct. at 2923 (Brennan, J., concurring) (punitive damages can be"potentially devastating).

t3' Dardinger, 98 Ohio St.3d at 102, 2002-Ohio-7113 at ¶ 178,781 N.E.2d at 144.. See also Yillella, 45 Ohio St.3d

at 43, 543 N.E.2d at 472 (Brow-n, J., concurring).

"; See United States Small Business Administration (SBA), Small Business Profile: OHIO_ arailable a

httn:,?wwtiv.sba. eoviadvo,research%profiles; 06oh.pdF, citing U.S. Dept. of Cotnmerce, Census Bureau, Statistics of U. S.

Businesses, 2002-2003 (207.082 employer firms with fewer than 500 employees in Olno in 2003, provide 2,351.579 jobs

42

the last three years, Ohio has lost 190,000 manufacturing jobs, and tort litigation (one in every three

small Ohio businesses has been sued) is a major threat to such jobs.135 The typical American small-

business owner eams less than $50,000 a year, and a lawsuit that goes to trial costs about

$100,000.t36 Even ifthe case is frivolous, court costs can force a firm to close or lay offworkers.137

Threats of litigation and punitive damages create unpredictable indirect costs, as consumers choose

not to buy goods or services due to liability-induced price increases.138 Simply put, excessive

punitive damages hurt the economy and prevent the creation of new jobs.

Further, before S.B. 80, a defendant could be forced to pay multiple large punitive damage

judgments based on the same wrongful act. The effect could be disastrous for a firm of limited

financial means. Again, R.C. 2315.21 makes a reasonable effort to avoid such harm. Other states

have adopted similar limits which their courts have upheld,' 39 and both the U.S. Supreme Court and

a member of this Court have suggested that this is an important factor.140

in the State, represent 98.3% of the employer businesses_ and have 49.3% of the State's non-farm private sectorworkforce; between 2002 and 2003, total small business net newjobs amounted to 56,013); see also GovernorTaft, "TheJobs Agenda," State of the State Address, January 28, 2004, available athttn://govemor.ohio.aov/MaiorSoeechec'012804so=addre>s.htm ("In fact, small business is big business in Ohio,employing half of our workforce and growing 80 percent of our new jobs."); see also U.S. House of RepresentativesSmall Business Subcommittee. Small Business Facts, available athttp:i/w^vc.house.gov/smbiz.%smallBusinessPact,:>mal1B usinessFacts.asn (nationally, small businesses create 2/3 to3/4of net new jobs).

134 See Pendell, "Liability Costs for Small Business" (June 8, 2004), available at

bt!p://www.instituteforleealrefomt.com/pdfsi Small'Si,2013usiness4-o20Studv.odL

135 Ohio Businesses for Legal Reform (OBLR). Senate Bill 80 Fact Sheet, available at

htto://w-,,N,Aoohiochantber.con OBLR'PDFs;Senate'3-b2OBill^o2080.pdf.

130 Faris; "Small-Business Focus: Freedom from Lawsuit Abuse: A NewNational Holiday?" (7/9/2004), available

at httn://w^zv.ntib.corn'objecdlO 16602.htm1.

137 OBLR, Senate Bill 80 Fact Sheet, available at

http://www.ohiochamber.cont/OBLRTDFs Senate"s,2OBill".62080.ndf

"% See Congressional Budget Office. The Econontics of U.S. Tort Liability: A Primer, Chapter Four: The Costs of

the Tort System (October 2003), available at htto:w^1AN.cbo.Lov'sho\vdoc.cfm?index=4641&sequence=5.

t39 See Gilbert v. Security Finance Coip. (Okla. 2006), 2006 WL 1836019 (requiring trial court to reduce juryaward by amount of punitive damages awards previouslv paid); Mack Trucks, Ine. v. Conkle (Ga. 1993), 263 Ga. 539

(allowing only one punitive damages award in product liabilitv case); W.R. Grace & Company-Conn. v. Watev-s (Fla.

1994), 638 So.2d 502, 506 (permitting multiple awards only if later plaintiff shows prior awards insufficient to punishdefendant). Cf. Finstad v. W.R. Grace & Co.(Mont. 2000). 301 Mont. 240 (providing that prior awards must be

43

Finally, under pre-S.B. 80 law, potential jury instructions and post-verdict "excessiveness"

review allowed punitive damages to be based, not just on the harm done to an individual plaintiff,

but on all the harm that could have resulted from a defendant's acts. This penalized a defendant for

totally speculative injuries to non-plaintiffs who were never even harmed. Again, the financial

consequences could be disastrous. R.C. 2315.21 eliminates this risk by tying punitive damages to

the harm actually suffered by the specific plaintiff.

(6) R.C. 2315.21 provides sufficient punishment anddeterrence.

The General Assembly has determined that the punitive damage caps provide sufficient

punishment and deterrence to meet the State's interests. Any disagreement with this policy

judgment should fall on deaf ears. "This court will not sit in judgment of the wisdom of legislative

enactments. [A] court has nothing to do with the policy or wisdom of a statute. That is the exclusive

concern ofthe legislative branch ofthe govemment. [W]here the [matter] is the subject oflegitimate

debate, the choice made by the General Assembly reflects a societal policy which must be adhered to

by the courts "t4i

These policy judgments of the General Assembly are clearly supportable. They aim at

legitimate goals and pursue such goals with reasonable means. That the means are reasonable is

considered); Smith v. Printup (Kan. 1993), 254 Kan. 315, 866 P.2d 985 (requiring all damages awarded againstdefendant to be considered); Mrozka v. Archdiocese ofSt. Paul &.Minneapolis (Minn. App. 1992), 482 N_W.2d 806(requiring consideration of other punitive damages awards)_ Cooper Tire & Rubbet- Co. v. Tuckier (Miss. 2002), 826So.2d 679 (requiring fact-finder and trial court to consider other awards); Barnett v. Turbonteca Engine Corp. (Mo. App.1998), 963 S.W.2d 639 (requiring reviewing court to consider priorjudgments).

140 See Oberg, 512 U.S. at 440-43. 114 S.Ct. at 2345 (jury properly instructed to consider other punishmentimposed on defendant); BMW, 517 U.S. at 613. 116 S.Ct. at 1617,. n. 4(Ginsburg, l._ dissenting) (appellate court shouldconsider this factor in reviewing jury award); Crot+-e v. Owens Corning Fibetglas (1999), 87 Ohio St.3d 204, 206, 718N.E.2d 923, 924 (Lundberg Stratton, J., dissenting) (whether a defendant should be protected from multiple punitivedamages is an "important issue").

141 St. Ann's Hospital v. Arnold (10" Dist. 1996), 109 Ohio App.3d 562, 568-569 672 N.E.2d 743, 747, quotingState ex rel. Bishop v Board ofEd. ofMt. Orab Y'illage School Dist. (1942), 139 Ohio St. 427, 438, 40 N.E.2d 913, 919,andState v. Babcock (10`h Dist. 1982), 7 Ohio App_3d 104, 107, 454 N.E.2d 556, 561.

44

demonstrated by the facts that the caps (1) tie punitive damages to a plaintiff s actual injury, while

also taking into account limits imposed by a defendant's financial condition; (2) are in line with

punishments typical at common law; (3) are similar to other civil penalties for wrongdoing; and (4)

are much like caps enacted in other states, with the U.S. Supreme Court's blessing. In terms of

federal due process principles, the caps thus ensure compliance with BMW "guideposts '#2 and #3.

But it is asserted that the caps give insufficient weight to a defendant's "reprehensibility"

(BMW"guidepost" # 1) and that ajury and reviewing courts are better able to consider this factor in

assessing punishment on a case-by-case basis. For several reasons, this criticism is less persuasive

than it appears at first glance. First, "reprehensibility" involves a multi-factor analysis:

We have instructed courts to determine the reprehensibility of a defendant byconsidering whether: the harm caused was physical as opposed to economic; thetortious conduct evinced an indifference to or a reckless disregard of the health orsafety of others; the target ofthe conduct had financial vulnerability; the conductinvolved repeated actions or was an isolated instance; and the harm was the resultof intentional malice, trickery, or deceit, or mere accident. The existence of anyone of these factors weighing in favor of a plaintiff may not be sufficient tosustain a punitive damage award; and the absence of all of them renders anyaward suspect. It should be presumed a plaintiff has been made whole for hisinjuries by compensatory damages, so punitive damages should ordybe awardedif the defendant's culpability, after having paid compensatory damages, is soreprehensible as to warrant the imposition of further sanctions to achievepunishment or deterrence.142

In the product liability context, the claim will often involve only the first element (physical harm),

and will only rarely be based on conduct "so reprehensible' as to warrant a large award after a

plaintiff has been made whole with a substantial award of cotnpensatory damages. It is thus not

unreasonable for the General Assembly to conclude that caps on punitive damages in such cases are

unlikely to allow wrongdoers to escape needed "further sanctions"

142 State Farm, 538 U.S. at 419, 123 S.Ct. at 1521 (citations omitted).

45

Second, all the BMWguideposts are intended to give a potential wrongdoer fair notice of the

severity of punishment that the State may impose. Because of the uncertainty attendant to allowing

lay juries (who are prone to emotional appeals and mistaken findings on scientific issues) to award

punitive damages based on vague notions of "reprehensibility," product manufacturers may be over-

deterred (stopping development and sale of innovative products to consumers) or over-insured

(raising consumer prices unnecessarily). Punitive damage caps correct for this inherent shortcoming

of the present system. The prospective wrongdoer knows that punishment will be tied directly to the

harm that his misconduct does - the greater the harm, the more severe the punishment.

Third, the argument that trial and appellate court review can be relied upon to make awards

commensurate with wrongdoing surely overstates the case. The perils and costs of "excessiveness"

review are easily recognized. Deference to the jury, and then to the trial judge, is natural but often

wrong. Elected judges may be reluctant to vacate jury awards to injured citizens, the standard for

deciding whether an award is unconstitutionally excessive is vague,143 it is difficult for appellate

courts to determine the basis on which the jury set the amount of its award (and thus difficult to

reject it), and the present system is in the end a poor way to achieve finality.

(7) R.C. 2315.21 protects consumers from the loss ofproducts and innovation and from artificiallyincreased prices.

Punitive damages caps also promote consumer welfare. The potential for high awards leads

firms to not offer goods or services because of liability concems, or to sell at liability-inflated

prices.t44 Sellers must also insure against potential harm, further inflating prices.145 And punitive

1" Cooper 532 U.S. at 434, 121 S.Ct_ at 1684 ( it "cannot be articulated with precision").

''" Committee on Commerce, Science, and Transportation report for S. 565, Product Liability Faimess Act (April 5,1995) ("An inefficient and inequitable product liability system burdens consumers with higherprices and deprives themof needed products. It ladens businesses with unnecessary costs that injure their intemational competitiveness andsacrifices quality American jobs_ Excessive punitive damages awards are harmful to businesses and to consumers ofproducts when price reflects the risk of such awards."), available at http: /'thomas.loc.eov^cgi-

46

damages stifle innovation, as firms forego developing new products because of the risks they present

compared to older technology, or withdraw from the market altogether.146 In short, without caps, the

litigation risk will cause a continuation of business practices that negatively affect Ohio consumers.

2. The R.C. 2315.21 punitive damage caps do not violate Article 1,Section 2 [egual protection].

a. R.C. 2315.21 must be evaluated under the "rational basis"standard and is presumed constitutional.

Under Article I, Section 2, the State's govemment is "instituted for [the] equal protection and

benefit" of the people of Ohio. Plaintiff and her amici argue that punitive damage caps violate this

provision. Plaintiff incorrectly cites Morris v_ Savoy as support for this argument. In Morris, this

Court found that a cap on medical malpractice damages did not violate equal protection principles.

After noting that it "must defer to the legislature on the issue of constitutionality," the Court applied

a rational basis standard of review and held: "we stop short of finding the statute defective on equal

protection grounds."147

bincnauen.'T?&renort==sr069&dbnanie=104&; Congressional Budget Office Study ("CBO study") for the SenateBudget Committee, "The Economics of U.S. Tort Liability: A Primer" at x (October 2003), available athttn''hx>ww cbo eov/showdoc.cfm'?index=4641 &seguence=0&fmm=0#anchor_

"` CBO study, at 11: see generally Council of Economic Advisers, "Who Pays for Tort Liability Claims? AnEconomic Analysis of the U.S. Tort Liability System" (April 2002), available athttp: i- wNwnv.ohiochamber.com/OBLR, PDFS/ WhiteHouse%20Studv.udL

14b Viscusi, "The Social Costs of Punitive Damages against Corporations in Environmental and Safety Torts-— 87Geo_ L.J_ 285. 325-326 (1998-1.999); see also Mahoney and Littlejohn, "Innovation on Trial: Punitive Damages VersusNew Products," Volume 246, Issue 4936, Science,l395-1399 (December 1989) ("Innovation, scientific discoverytransformed into valuable products, is a powerful asset for the United States in today's global economy, but it is beingput on trial by the U.S. product liability system. Because a high level of legal uncertainty and scientific innovationcannot coexist, new, safe products may be kept off the market and the scope of research and development restricted:'):Committee on Commerce, Science. and Transportation report for S. 565, Product Liability Faimess Act (April 5. 1995).available at httn: i/thomas.loc.Qovdcei-bin/ cpguerv/T?&report=sr069&dbname=104& ("The sheer unpredictability of thecurrent system hasresulted in overdeterrence and has had a chilling effect on product innovation. °*r` [F]ear of liabilitysuits had prompted 36 percent of the firms to discontinue a product and 30 percent to decide against introducing a newproduct: '); MAPI / Manufacturers Alliance, I Pay, You Pay, We All Pay: How the Growing Tort Crisis Undermines rlreU.S. Economy and theAmerican Sr.rtem ofJustrce, vi-vii, ed. Frederick T. Stocker (May 2003) ("[T)he proliferation ofproducts liability cases pose threats to innovation as largeverdicts sap the financial strength and willingness offirms andentrepreneurs to take risks on new products and production processes.").

18' Morris v. Savoy (1991).. 61 Ohio St.3d 684, 692, 576 N.E.2d 765, 772.

47

In the absence of a fundamental right or suspect classification, the "rational basis" test

applies. 148 Plaintiff asserts that two fundamental rights are implicated - the right to trial by jury and

the right to a remedy. As previously explained, caps in fact infringe neither such right. Thus, the

"rational basis" test applies unless there is a suspect class. But S.B. 80 creates no classes of

claimants: all race, creed, gender and age groups are treated exactly the same when seeking punitive

damages.

b. R.C. 2315.21's punitive damage caps do not create anydisparate treatment of plaintiffs which would violateequal protection guarantees.

Plaintiff and her amici argue that S.B. 80 affords preferential treatment to some categories of

claimants, thereby violating the equal protection clause. But the R.C. 2315.21 caps are neutral -

they apply equally to all claimants. Any differences in outcome flow primarily from the merits of

the individual plaintiffs claim. Every claimant may seek punitive damages up to the capped

amount. R.C. 2315.21 creates no distinction between them. While two claimants may, due to their

own unique facts, obtain very different monetary recoveries for their injuries and thus, derivatively,

different punitive damages, the differences do not stem from any legislative act. The caps provide

an "equal benefit to each - e_g., two times compensatory damages.

Objecting to the cap for individuals and small employers and that on multiple punishments,

Plaintiff and her amici contend that these caps create arbitrary categories - i.e., those who sue small

versus those who sue large employers, or those who sue first versus those who come to the bar later.

Such arguments suffer from the same faulty logic as their attack on the "two times" cap. Individual

plaintiffs have no personal `right' to punitive damages. The State affords an opportunity to seek a

14'Lvle Con.struction, Inc. v. Ohio Dept. of Nat. Res. (1987). 34 Ohio St_3d 22, 27516 N.E.2d 209. 213.

48

civil penalty based on a legislative judgment that a certain a level of punishment is appropriate.

Once the maximum statutory penalty is imposed, there is no right to receive more.

Harkening back to statements by this Court criticizing prior tort reforms as penalizing most

the claimants who are most seriously injured, Plaintiff asserts that the S.B. 80 caps should be

condemned for the same reason. The underlying premise is wrong. All claimants, regardless of

degree of injury, are treated equally under the caps. Because punitive damages vary directly with

compensatory damages, in most cases the most seriously injured, since they are likely to have the

highest compensatory damages, will have the highest punitive damage awards.

It is also asserted that the caps disproportionately affect groups such as women, children,

minorities, and the elderly, who are allegedly at a disadvantage because they traditionally are

awarded less in economic damages (due to having lower lost wages). This argument simply does not

apply to the R. C. 2315.21 punitive damage caps, which have no such disproportionate effects on any

category of claimants in product liability cases.

Finally, Plaintiff argues that defendants are given discriminatory treatment because S.B. 80

takes away the right to ask for an additur while preserving the right to seek a remittitur. However,

plaintiffs have never been allowed to ask for a punitive damage additur in Ohio.149

c. The R.C. 2315.21 punitive damages caps are necessary.

Plaintiff and her amici suggest that the legislative purpose for R.C. 2315.21 is a sham

because the risk of excessive punitive damages is fictional or exaggerated. Obviously, they have

paid insufficient attention to verdicts in Ohio and elsewhere. ' 50 The U.S. Supreme Court disagrees.

It has overturned several punitive damages awards, described a nationwide problem with run-away

149 See Stern Enterprises v. Plaza Theatres I andll, Inc., et a1. (11' Dist.1995), 105 Ohio App.3d 601, 610, 664NE2d 981, 987.

150 See Appendix B, listing some such awards.

49

juries, and criticized skyrocketing awards.157 The Court is worried that "unlimited jury discretion -

or unlimited judicial discretion for that matter - in fixing punitive damages may invite extreme

results that jar one's constitutional sensibilities."152 Responding to such concerns, the General

Assembly has acted to avoid such problems in Ohio.

IV. CONCLUSION

The punitive damage caps adopted in S.B. 80 and codified in RC 2315.21 serve the goals of

proportionality, consistency, equal treatment, fair notice, and just and efficient resolution of claims

without violating any provision of the Ohio Constitution. The caps should be upheld.

Respectfully submitted,

I n,.^, d c. Wiv+Ga.cds. 1!L iv I"G3^14'

Frank C. Woodside, III, Esq. (000 636) {oo7tsqc^Mark L. Silbersack, Esq. (0013288) Pe^ qU-TH/Melissa L. Korfhage, Esq. (0072967)DINSMORE & SHOHL LLP

Chemed Center, Suite 1900225 East Fifth StreetCincinnati, OH 45202Phone: (513) 977-8200

Fax: (513) 977-8141frank.woodsidena,dinslaw.com

lsi BMW, 517 U.S. at 596-597, 116 S.Ct. at 1609, and State Farm, 538 U.S. at 429,123 S.Ct.. at 1526.

52 Haslip, 499 U.S. at 18, 111 S.Ct. at 1043.

50


Melissa Arbino,

Petitioner,

On Questions Certified by the UnitedStates District Court for the NorthernDistrict of Ohio, Western Division

V.


Respondents.

Case No. 06-1212


APPENDIX A

TO

BRIEF OF AMICUS CURIAEPRODUCT LIABILITY ADVISORY COUNCIL, INC.

IN SUPPORT OF RESPONDENTS

THE PRODUCT LIABILITY ADVISORY COUNCILCORPORATE MEMBERS

Appendix A - Page 1

Corporate Members of theProduct Liability Advisory Council

as of 12/6/2006

3MA.O. Smith CorporationAltec IndustriesAltria Corporate Services, Inc.American Suzuki Motor CorporationAmgen Inc.Anheuser-Busch CompaniesAppleton Papers, hic.Arai Helmet, Ltd.Astec IndustriesBASF CorporationBayer CorporationBell SportsBeretta U.S.A Corp.BIC CorporationBiro Manufacturing Company, Inc.Black & Decker (U.S.) Inc.BMW of North America, LLCBoeing CompanyBombardier Recreational ProductsBP America Inc.Bridgestone Americas Holding, Inc.Briggs & Stratton CorporationBrown-Forman CorporationCARQUEST CorporationCaterpillar Inc.Chevron CorporationContinental Tire North America, Inc.Cooper Tire and Rubber CompanyCoors Brewing CompanyCrown Equipment CorporationDaimlerChrysler CorporationThe Dow Chemical CompanyE & J Gallo WineryE.I. DuPont De Nemours and CompanyEaton CorporationEli Lilly and CompanyEmerson Electric Co.Engineered Controls Intetnational, Inc.Estee Lauder CompaniesExxon Mobil CorporationFord Motor CompanyFreightliner LLCGenentech, Inc.General Electric CompanyGeneral Motors CorporationG1axoSmithKlineThe Goodyear Tire & Rubber CompanyGreat Dane Limited Partnership

Guidant CorporationHarley-Davidson Motor CompanyThe Heil CompanyHonda North America, Inc.Hyundai Motor AmericaICON Health & Fitness, Inc.Illinois Tool Works, Inc.Intemational Truck and Engine CorporationIsuzu Motors America, Inc.Jarden CorporationJohnson & JohnsonJohnson Controls, Inc.Joy Global Inc., Joy Mining MachineryKawasaki Motors Corp., U.S.A.Kia Motors America, Inc.Koch IndustriesKolcraft Enterprises, Inc.Komatsu America. Corp.Kraft Foods North America, Inc.Lincoln Electric CompanyMagna Intemational Inc.Masco CorporationMazda (North America), Inc.Medtronic, Inc.Mercedes-Benz of North America, Inc.Merck & Co., Inc.Michelin North America, Inc.Microsoft CorporationMine Safety Appliances CompanyMitsubishi Motors North America, Inc.Nintendo of America, Inc.Niro Inc.Nissan North America, Inc.Novartis Consumer Health, Inc.Novartis Pharmaceuticals CorporationOccidental Petroleum CorporationPACCAR Inc.PanasonicPentair, Inc.Pfizer Inc.Porsche Cars North America, Inc.PPG Industries, Inc.Purdue Pharma L.P.Putsch GmbH & Co. KGThe Raymond CorporationRaytheon Aircraft CompanyRemington Arms Company, Inc.Rheem ManufacturingRJ Reynolds Tobacco Company

Appendix A - Page 2

Corporate Members of theProduct Liabifity Advisory Council

as of 12/6/2006

Sanofi-AventisSchindler Elevator CorporationSCM Group USA Inc.Shell Oil CompanyThe Sherwin-Williams CompanySmith & Nephew, Inc.St. Jude Medical, Inc.Sturny Ruger & Company, Inc.Subaru of America, Inc.Synthes (U.S.A.)Terex CorporationTextron, Inc.TK Holdings Inc.The Toro CompanyToshiba America Incorporated

Toyota Motor Sales, USA, Inc.TRW AutomotiveTyson Foods, Inc.UST (U.S. Tobacco)Venneer Manufacturing CompanyVolkswagen of America, Inc.Volvo Cars of North America, Inc.Vulcan Materials CompanyWater Bonnet Manufacturing, Inc.Watts Water Technologies, Inc.Whirlpool CorporationWyethYamaha Motor Corporation, U.S.A.Yokohama Tire CorporationZimmer, Inc.

Appendix A - Page 3



On Questions Certified by the UnitedStates District Court for the NorthemDistrict of Ohio, Westem DivisionV.


Respondents.

Case No. 06-1212


)

APPENDIX BTO

BRIEF OF AMICUS CURIAEPRODUCT LIABILITY ADVISORY COUNCIL, INC.


PUNITIVE DAMAGE AWARDSNational Awards

$28 billion

$4.8 billion

$3.0 billion

$400 million

$246 million

$229 million

$145 million

$124.5 million

Bullock v. Philip Morris, Inc., 2002 WL 31749553 (Cal. Sup. Ct., October 2,2002) (product liability claim by smoker with lung cancer).

Anderson v. General Motors Corp., JVR No. 374188, 1999 WL 1894106(Los Angeles County, California 1999) (product liability claim for injuriessustained in automobile gas tank explosion).

Boeken v. Phillip Morris, Inc., 2001 WL 1005955 (Cal. Sup. Ct., June 6,2001) (product liability claim by smoker with lung cancer).

Cassoutt v. Cessna Aircraft Co., 2001 WL 1712620 (Fla. Cir. Ct., August 15,2001) (product liability claim for injuries caused by defective aircraft seat).

Bell-Wilson v. Ford Motor Co., 2004 WL 1969958 (Cal. Sup. Ct. June 3,2004) (product liability claim by driver paralyzed in Ford Explorer rollover).

Ernst v_ Merck & Co., Cause No. 19961 *BH02 (Dist. Ct. ofBrazoria County,Tex., Aug. 19, 2005) (product liability claim in first Vioxx trial).

State Farm Mut. Auto. Ins. Co. v. Canipbell, 538 U.S. 408 (U.S. 2003)(insurance bad faith claim).

Proctor v. Upjohn Co., 1991 WL 1289888 (Cook County, I11., October 1991)(product liability claim for injuries caused by the drug Depo-Medrol).

Appendix B - Page 1

$100 million

$ 4.5 million

Ohio Awards

$250 million

$49 million

$30 million

$25 million

$25 million

$15.3 million

$11 million

$l0 million

$l0 million

$6 million

$3 million

Jernigan v. General Motors Corp., 2002 WL 32831973 (Ala. Cir. Ct., May 2,2002) (product liability claim for injuries suffered as a result of a defectivevehicle occupant compartment).

Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424 (U.S. 2001) (falseadvertising claim by hand tool manufacturer against competitor).

Burns v. Prudential Securities, Inc., No. 99CV0438, 2002 WL 32107360(Ohio Com. Pl. 2002) (professional services class action involvingunauthorized trades by brokerage firm).

Dardinger v. Anthem, Inc., No. 98CV00134, 1999 WL 33241977 (OhioCom. Pl. 1999) (bad faith denial of health insurance).

Frederickson v. Olsten Health Services Corp., No. 98CV1937, 2000 WL

33313382 (Ohio Com. Pl. 2000) (wrongful termination / age discrimination

action).

Wightman v. Consolidated Rail Corp., 86 Ohio St.3d 431, 1999-Ohio-119,715 N.E.2d 546 (wrongful death involving freight train and automobileaccident).

Jelinek v. Abbott Laboratories, No., 96CV097505, 2002 WL 3127582 (OhioCo. Pl. 2002) (age discrimination suit).

Seelke v. Buckeye Egg Farm, LLP, No. 99CV365, 2001 WL 1817792 (OhioCorn. Pl: 2001) (nuisance / trespass action).

Coal Resources, Inc. v. Gulf & Western Industries, lnc. (C.A.6 (Ohio) 1992),954 F.2d 1263, 1265 (action forbreach of acquisition contract, common-lawfraud, and violations of federal securities laws).

Amei-ican Trim, LLC, v. Oracle Co)p., No. 3:99CV7265, 2002 WL 31254434(N.D. Ohio 2002) ( fraud / negligent misrepresentation).

Yardley v. Colliflower, No. CVC-10-8286, 2002 WL 1354067 (Ohio Com.Pl. 2002) (wrongful death / intentional infliction of emotional distress).

Gollihue v. Consolidated Rail Corp. (3d Dist. 1997), 120 Ohio App.3d 378,697 N.E.2d 1 109 (wrongful death and personal injury associated with trainand automobile accident).

Moskovitz v. Mt. Sinai Med Ctr. (1994), 69 Ohio St.3d 638; 635 N.E.2d 33I(bad faith involving medical malpractice action).

Appendix B - Page 2



)))))))

On Questions Certified by the UnitedStates District Court for the NorthemDistrict of Ohio, Westem DivisionV.


Respondents.

Case No. 06-1212


)

CERTIFICATE OF SERVICE OF BRIEF OFAMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNCIL, INC.


The undersigned hereby certifies that a copy of the foregoing Amicus Curiae Brief of the

Product Liability Advisory Council, Inc., has been served upon the following by first class United

States mail this 15`h day of December, 2006.

Janet G. Abaray, Esq. (0002943)BURG, SIMPSON, ELDREDGE, HERSH & JARDINE

312 Walnut Street, Suite 2090

Cincinnati, OH 45202Phone: (513) 852-5600Fax: (513) 852-5611Counsel for Petitioner Melissa Arbino

Robert S_ Peck, Esq.Stephen B. Pershing, Esq.CENTER FOR CONSTITUTIONAL LITIGATION, P.C.

1050 31 s` Street, NWWashington, DC 20007Phone: (202) 944-2874Fax: (202) 965-0920Counsel for Petitioner Melissa Arbino

Paul W. Flowers, Esq.PAUL W. FLOWERS, CO_, L-P.A.

50 Public Square, Suite 3500Cleveland, OH 44113Phone: (216) 344-9393Fax: (216) 344-9395

Counsel for Amicus CuriaeOhio Acadenry of Trial Lawyers

Irene Keyse-Walker, Esq.Benjamin C. Sasse, Esq.

Julie A. Callsen, Esq.TUCKER ELLIS & WEST L.L.P.

1150 Huntington Building925 Euclid Avenue

Cleveland, OH 44115

Phone: (216) 696-2286

Fax: (216) 592-5009

Counsel for Respondents,Johnson & Johnson, et aL

The Hon. Jim Petro, Attomey GeneralStephen P. Camey, State SolicitorSharon Jennings, Esq.Holly J. Hunt, Esq.Frank M. Strigari, Esq.OHIO ATTORNEY GENERAL S OFFICE

30 East Broad Street, 17i° Floor

Columbus, OH 43215

Phone: (614) 466-2872Fax: (614) 728-7592Counsel for Respondent State of Ohio

Certificate of Service - Page I

Anthony E. Turley, Esq.405 Madison Avenue, Suite 1600Toledo, OH 43604Phone: (419) 243-2100Fax: (419) 243-7119Counsel for Amicus CuriaeOhio Academy of Trial Lawyers

Michael S. Miller, Esq.VOLKEMA, THOMAS, LPA140 East Town Street, Suite 1100Columbus, OH 43215Phone: (614) 221-4400Fax: (614) 221-6010Counsel forAmicus CuriaeOhio Academy of Trial Lawyers

Frederick M. Gittes, Esq.Kathaleen B. Schulte, Esq.G1TTES & SCHULTE723 Oak StreetColumbus, OH 43205Phone: (614) 222-4735Fax: (614) 221-9655Counsel for Amicus CuriaeOhio Employer Lawyers Association et aL

Michael R. Thomas, Esq.KIRBY, THOMAS, BRANDENBURG & D'AMICO

4 Sycamore Creek Drive

Springboro, OH 45066

Phone: (937) 748-1004

Fax: (937) 748-2390

Counsel for Amicus CuriaeMothers Against Drunk Driving

Kenneth R. Sheets, Esq.46 S. Detroit StreetXenia, OH 45385Phone: (937) 376-3548Fax: (937) 372-8287Counsel for Amicus Curiae Donna Ulliman

Mark M. Kitrick, Esq.Mark Lewis, Esq.KITRICK & LEWIS CO., L.P.A.

515 East Main Street, Suite 575

Columbus, OH 43215Phone: (614) 224-7711Fax: (614) 225-8985Counsel for Amicus CuriaeOhio Academy of Trial Lawyers

Kathleen J. St. John, Esq.NURENBURG, PARIS, HELLER &

MCCARTHY, CO., L.P.A.

1370 Ontario Street, Suite 1100Cleveland, OH 444113Phone: (216) 621-2300Fax: (216) 771-2242Counsel forAmicus CuriaeOhio Academy of Trial Lawyers

Micah Berman, Esq.TOBACCO PUBLIC POLICY CENTER AT

CAPITAL UNIVERSITY LAW SCHOOL

300 East Broad Street

Columbus, OH 43215Phone: (614) 236-6770Fax: (501) 636-3864Counsel forAmicus Curiae TobaccoPublic Policy Center at CapitalUniversity Law School

Dan Michel, Esq.ARTHUR, O'NEIL, MERTZ &

MICHEL Co., LPA

901 Ralston AvenueP.O. Box 871Defiance, OH 43215Phone: (419) 782-9881Fax: (419) 782-4377Counsel forAmicus CuriaeMothers Against Drunk Driving

Certificate of Service - Page 2

Robert F. Linton, Jr., Esq.LINTON & HERSHMAN

700 W. St. Claire, Suite 300Cleveland, OH 44113Phone: (216) 771-5800Fax: (216) 771-5803Counsel for Amicus CuriaeMothers Against Drunk Driving

Frank C. Woodside, III, Esq.

Certificate of Service - Page 3

in the supreme court of ohio in the supreme court of ohio melissa arbino, petitioner,))))) on...

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