Arbino v. Johnson & Johnson

Decision Date27 December 2007
Docket NumberNo. 2006-1212.,2006-1212.
CourtOhio Supreme Court
880 N.E.2d 420
116 Ohio St.3d 468
No. 2006-1212.
Supreme Court of Ohio.
Submitted May 1, 2007.
Decided December 27, 2007.

[880 N.E.2d 424]

Burg, Simpson, Eldredge, Hersh & Jardine, Janet G. Abaray, Calvin S. Tregre Jr., and Melanie S. Bailey, Cincinnati; and Center for Constitutional Litigation, P.C.,

[880 N.E.2d 425]

Robert S. Peck, and Stephen B. Pershing, Washington, DC, for petitioner.

Tucker, Ellis & West, L.L.P., Irene C. Keyse-Walker, Benjamin C. Sasse, and Julie A. Callsen, Cleveland, for respondents Johnson & Johnson, Ortho-McNeil Pharmaceutical, Inc., and Johnson & Johnson Pharmaceutical Research & Development, L.L.C.

Marc Dann, Attorney General, Stephen Carney, State Solicitor, and Sharon. A. Jennings and Frank M. Strigari, Assistant Attorneys General, for respondent state of Ohio.

Volkema Thomas, L.P.A., and Michael S. Miller, Columbus; Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland; Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Anthony E. Turley, Toledo, and Kathleen J. St. John, Cleveland; Kitrick & Lewis Co., L.P.A., and Mark Kitrick, Columbus, for amicus curiae Ohio Academy of Trial Lawyers, in support of petitioner.

Bernard K. Bauer Co., L.P.A., and Bernard K. Bauer, Findlay, for amicus curiae Ohio. Chapter of the American Board of Trial Advocates, in support of petitioner on Certified Question No. I.

Gittes & Schulte, Frederick M. Gittes, and Kathaleen B. Schulte, Columbus, for amici curiae Ohio Employment Lawyers Association, Ohio NOW Education and Legal Defense. Fund, Committee Against Sexual Harassment, Ohio Conference of the NAACP, and Columbus NAACP, in support of petitioner.

Arthur, O'Neil, Mertz & Michel Co., L.P.A., and Dan Michel; Kirby, Thomas, Brandenburg & D'Amico and Michael R. Thomas; Linton & Hirshman and Robert F. Linton Jr., Akron; and Behnke, Martin & Schulte, Richard W. Schulte, and Stephen D. Behnke, Dayton, for amicus curiae Mothers Against Drunk Driving, in support of petitioner.

Micah Berman and Canis Post, for amicus curiae Tobacco Public Policy Center at Capital University Law School, in support of petitioner.

Kenneth R. Sheets, Xenia, for amicus curiae Donna Ulliman, in support of petitioner.

Porter, Wright, Morris & Arthur, L.L.P., Joseph W. Ryan Jr., and Colleen L. Marshall, Columbus, for amicus curiae International Association of Defense Counsel, in support of respondents.

Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and Christopher E. Appel, Washington, DC, for amici curiae National Federation of Independent Business Legal Foundation, Chamber of Commerce of the United States of America, National Association of Manufacturers, American Tort Reform Association, National Association of Mutual insurance Companies, Property Casualty Insurers Association of America, and American Chemistry Council, in support of respondents.

Bricker & Eckler, Kurtis A. Tunnell, Anne Marie Sferra, and Vladimir P. Belo, Columbus, for amicus curiae Ohio Alliance for Civil Justice, in support of respondents.

Porter, Wright, Morris & Arthur, L.L.P., Carolyn A. Taggart, Cincinnati, and J.H. Huebert, Columbus; Weston Hurd, L.L.P., Ronald A. Rispo, and Daniel A. Richards, Cleveland, for amicus curiae Ohio Association of Civil Trial Attorneys, in support of respondents.

Bricker & Eckler, L.L.P., Catherine Ballard, Columbus, and Lana Knox, Cleveland, for amid curiae Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association, in support of respondents.

[880 N.E.2d 426]

Dinsmore & Shohl, L.L.P., Frank. C. Woodside III, Mark L. Silbersack, and Melissa L. Korfhage, Cincinnati, for amicus curiae Product Liability Advisory Council, Inc., in support of respondents.


I. Introduction

{¶ 1} Petitioner Melisa Arbino initiated a product-liability action against respondents Johnson & Johnson, Ortho-McNeil Pharmaceutical, Inc., and Johnson

116 Ohio St.3d 469

& Johnson Pharmaceutical Research & Development, L.L.C. (collectively, "Johnson & Johnson") in 2006. She alleges that she suffered blood clots and other serious medical side effects from using the Ortho Evra Birth Control Patch, a hormonal birthcontrol medication that Johnson & Johnson created.

{¶ 2} The case was filed in the United States District Court for the Southern District of Ohio. Arbino's complaint contains challenges to the constitutionality of four tort-reform statutes implemented by Am. Sub.S.B. No. 80 of the 125th General Assembly ("S.B. 80") and made effective on April 7, 2005. Arbino then filed a motion for partial summary judgment on these challenges, leading respondent state of Ohio to intervene in the matter. While this motion was pending, the federal Judicial Panel on Multidistrict Litigation consolidated the case with other claims relating to the Ortho Evra patch before Judge David A. Katz in the United States. District Court for the Northern District of Ohio, Western Division.

{¶ 3} Judge Katz certified four questions of state law for review pursuant to S.Ct.Prac.R. XVIII. We accepted three1 of the questions:

{¶ 4} 1. "Is Ohio Revised Code § 2315.18 [limiting noneconomic damages in tort actions], as amended by Senate Bill 80, effective, April 7, 2005, unconstitutional on the grounds as stated by the Plaintiffs?"

{¶ 5} 2. "Is Ohio Revised Code § 2315.20 [admissibility of collateral-benefit evidence in tort actions], as amended by Senate Bill 80, effective, April 7, 2005, unconstitutional on the grounds as stated by the Plaintiffs?"

{¶ 6} 3. "Is Ohio Revised Code § 2315.21 [limiting punitive damages in tort actions], as amended by Senate Bill 80, effective, April 7, 2005, unconstitutional on the grounds as stated by the Plaintiffs?" 110 Ohio St.3d 1462, 2006-Ohio-4288, 852 N.E.2d 1212.

{¶ 7} Arbino argues that these statutes violate several provisions of the Ohio Constitution: the right to trial by jury in Section 5, Article I; the right to a remedy and the right to an open court in Section 16, Article I; the right to due process of law in Section 16, Article I; the right to equal protection of the laws in Section 2, Article I; the separation of powers, specifically the prohibition on the General Assembly exercising general judicial powers in Section 32, Article II; and the single-subject rule in Section 15(D), Article II.

{¶ 8} For the following reasons, we hold that R.C. 2315.18 and 2315.21 are facially constitutional. However, we decline to review R.C. 231520 because Arbino lacks standing to challenge that statute.

116 Ohio St.3d 470
II. Tort Reform in Ohio and Stare Decisis

{¶ 9} Before engaging in a specific analysis of these issues, it is necessary to briefly review the major tort-reform laws

880 N.E.2d 427

enacted by the General Assembly in recent history. Doing so provides the proper context for our decision and frames the necessary discussion of stare decisis.

{¶ 10} Since 1975, the General Assembly has adopted several so-called tort-reform acts, which were inevitably reviewed by this court. In the course of this review, we have examined several specific provisions that are similar in language and perpose to those at issue here; all of these similar statutes have been declared unconstitutional.

{¶ 11} The first reform provision we reviewed was former R.C. 2307.43, which was passed in the Ohio Medical Malpractice Act of 1975, Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 2809 ("H.B. 682"). This statute placed a $200,000 cap on general medical-malpractice damages not involving death, with no exceptions for those suffering severe injuries. See Morris v. Savoy (1991), 61 Ohio St.3d 684, 686-687, 576 N.E.2d 765. The General Assembly passed this legislation to combat a perceived malpractice-insurance crisis. Id.

{¶ 12} Although it took several years for a challenge to be raised, we ultimately held that R.C. 2307.43 violated the due-process protections of. the Ohio Constitution. We specifically noted. that "`[i]t is irrational and arbitrary to impose the cost of the intended benefit to the general public solely upon a class consisting of those most severely injured by medical malpractice.'" Id. at 691, 576 N.E.2d 765, quoting Nervo v. Pritchard (June 10, 1985), Stark App. No. CA-6560, at 8.

{¶ 13} The General Assembly's next major enactment was the Tort Reform Act of 1987, Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661 ("H.B. 1"), which sought to change civil-justice and insurance law to alleviate another "insurance crisis." See Sorrell v. Thevenir (1994), 69 Ohio. St.3d 415, 419-420, 633 N.E.2d 504,

{¶ 14} In Sorrell, we examined one facet of this law, R.C. 2317.45, which placed a significant limitation on the collateralsource rule adopted in Pryor v. Webber (1970), 23 Ohio St.2d 104, 52 O.O.2d 395, 263 N.E.2d 235. The H.B. 1 version of R.C. 2317.45 required the trial court to subtract certain collateral benefits from a plaintiffs final award of compensatory damages. Former R.C. 2317.45(B)(2)(c)(i), 142 Ohio Laws, Part I, 1696 (effective Jan. 5, 1988). We held that this mandatory deduction of collateral benefits violated the right to a jury trial, due process, equal protection, and the right to a remedy. See Sorrell, 69 Ohio St.3d 415, 633 N.E.2d 504, syllabus.

{¶ 15} In Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 644 N.E.2d 298, we reviewed former R.C. 2323.57, another tort-reform statute. This statute required trial courts to order awards of future damages in excess of

116 Ohio St.3d 471

$200,000 in medical-malpractice actions to be paid in a series of periodic payments upon the motion of any party. Former R.C. 2323.57(C), 142 Ohio Laws, Part II, 3333 (effective Oct. 20, 1987). We deemed that statute unconstitutional as a violation of the right to a jury trial and of the Due Process Clause of the Ohio Constitution. Id., paragraph one of the syllabus.

{¶ 16} We returned to our review of H.B. 1 in Zoppo v. Homestead Ins. Co. (1994), 71 Ohio...

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