Posts Tagged ‘Ohio’

Tort reform in action: rapist wins back $3.1 million from his victim

August 12, 2013

“Tort reform” is a phrase used to describe legislated control over the amount of money that plaintiffs are allowed to recover in civil suits. Operating on the presumption that state legislative bodies know more about justice than the actual victims of injustice or physical harm do, many states, like Ohio, have worked to limit plaintiffs’ recoveries, confined mostly to either certain types of actions (medical malpractice, suits against municipalities, etc.) or certain types of harm (emotional distress is usually the big loser in tort reform).

Now, tort reform is a great thing for a lot of people. If you’re a large insurance company that wants to screw over the insureds under your care, tort reform is a really good idea. If you’re a drunk, incompetent, or negligent doctor or lawyer, tort reform is probably going to save you a lot of money some day. If you’re a manufacturer or retailer and you want to be able to get away with lax safety standards or other general disregard for the public health and safety, tort reform is likely near the top of your lobbying agenda. And, in Ohio, tort reform is apparently now working out like gangbusters for sexual predators:

A jury decided in June that a 21-year-old woman, sexually assaulted by her pastor when she was 15, should get upwards of $3.6 million for the post-traumatic stress she’d endured in the years since he attacked her.

Because of a state law that went into effect in 2005, though, she’ll get less than a sixth of that amount.

A judge ruled in Delaware County Common Pleas Court this week that the woman could receive no more than $500,000 because of the state’s limit on compensatory damages for emotional stress in civil cases. The limit was a key element of an effort to rein in lawsuits, a priority of Republicans’ in the state legislature in the mid-2000s.

In short, a jury of Ohioans came to the deliberated-upon conclusion that a woman’s years of suffering, including post-traumatic stress disorder after being raped during a counseling session by her pastor, was worth $3.6 million dollars in compensation. But the good Republicans of Ohio’s state legislature have decided that it would ultimately be injurious to the public good to permit juries to even contemplate damages in excess for $500,000 for such frivolous touchy-feely claims as “emotional distress” for victims of savage sexual abuse. Essentially, the rapist was given back $3.1 million of a $3.6 million debt he owed to the victim of his aggression because the state of Ohio feels that the suffering of such victims is never worth more than $500,000.

The overarching problem with tort reform is that it could only ever be good for people who lose lawsuits, and bad for everybody else. That tort reform is good for negligent, reckless, or just downright dangerous defendants is a no-brainer: the incompetent doctor, the drunk driver, the “lemon” dealer, the careless manufacturer, the discriminatory hirer and firer, the stingy landlord, everyone who could benefit from injuring the public stands to gain from tort reform. Even when damages are limited just to specific harms like emotional distress, the unjust will still find a way to win: in short, the state legislature of Ohio does not value the emotional well-being of its citizens, at least not enough to permit juries to even contemplate their value over $500,000.

The rapist’s political champion, Republican state representative Kirk Schuring, is quoted with the traditional red herring of tort reform:

I don’t know how you assign a dollar amount to emotion. … There’s probably never going to be an adequate dollar amount. And $500,000 is not a small sum of money. … And who’s to say that $3.6 million is enough? Why not $36 million?

Who is to say that $3.6 million is enough? A jury of your peers is. That is the system contemplated by the Constitution, the system that Schuring is supposed to serve. If the damages are generally not worth that much, if the claim is truly frivolous, then it is up to the jury, the trier of fact, to make that determination in a flexible, organic, case-by-case process, not just writ large from above. And yet, despite his professed agnosticism on the question of how much emotional damages are worth, Schuring seems to be 100% certain that they are never worth more than $500,000. Who’s to say that $500,000 is always enough?

Tort reform is often proposed a protection for businesses – and in a sense, it certainly is. Businesses facing unnaturally-limited damages have a clear picture of how much (and how little) they need to care for the safety of others. The grand purpose of civil liability is to provide economic disincentives for bad behavior. Removing a disincentive to behave badly (for example, limiting emotional damages that sexual predators and their principals can suffer) is the same as incentivizing such behavior. The only thing that keeps businesses from behaving negligently is the prospect of successful plaintiffs’ recoveries for harms they suffer, as valued by juries. But now, in Ohio, businesses, governments, and individuals know that any harms they inflict on plaintiffs’ emotions are relatively cheap now, compared to what prior to tort reform would have been liability that actually scales to the harm done to the plaintiff.

The next big area of focus for tort reform is medical malpractice. With the healthcare industry’s rapid changes in the last few years, combined with the new pressures insurance companies face thanks to proscriptions against denying coverage based on pre-existing conditions and other provisions of the Affordable Care Act, the heat is on to cut costs wherever possible and tort liability is certainly up there. Unfortunately for the friends of the negligent and the reckless, tort reform is empirically known not to cause decreases in insurance premiums. All that it changes is that insurance companies and doctors are faced with fewer reasons to monitor and improve their safety procedures. When a medical malpractice judgment can cost millions of dollars just to settle, you have millions of reasons to make sure your doctors don’t commit malpractice; the hospital, being a much cheaper cost-avoider than patients, is properly responsible for policing its own internal safety procedures and for compensating the public when it fails to do so. Artificial limitation of malpractice recovery instead shifts the costs of malpractice onto the public: limiting recovery to, say, $500,000 for medical malpractice, would shift all harms from medical malpractice in excess of $500,000 to the victim.

Whether it’s a rape victim having to pick up the tab for almost 80% of the damage done to her by a sexual predator, or the victim of medical negligence having recovery limited by the dedicated ideologues of big business lobbying interests, tort reform is bad for victims, and good for the negligent and the reckless. The sad case of the Ohio rape victim is the logical result of tort reform: juries have less freedom, victims have less compensation, and wrongdoers laugh all the way to the bank.

Obergefell v. Kasich: small but important gay marriage victories keep rolling in

July 24, 2013

“This is not a complicated case.” – Judge Black, in Obergefell

When last month’s big gay marriage wins came down, I was of course quite pleased but not delighted. Between the two of them, Windsor and Hollingsworth dealt a powerful victory to marriage equality, forbidding the federal government from denying marital benefits based on sexual orientation, but otherwise doing little to deal with the real obstacle to equality, which is state-level bans on gay marriage.

Specifically citing to Hollingsworth, a court in Ohio has created some important precedent in dealing with the state-level bans. Obergefell v. Kasich, handed down by Ohio’s Judge Timothy Black yesterday, quickly and decisively decides the question of whether or not Ohio will recognize gay marriages solemnified by states other than Ohio:

This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot…

Judge Black’s fairly pointed ruling incorporates gay marriage into both ancient precedent and Constitutional guarantee that the state of Ohio must recognize the judicial determinations of other states, including marriages. As Judge Black observes in his ruling, it has forever been the case that marriages that meet, say, the age requirements or familial restrictions of their native jurisdictions but not Ohio’s must still be treated as full and legal marriages under Ohio law. While this is clearly a victory for gay Ohioans, there are at least three very good reasons that this is a crucial victory for marriage equality nation-wide.

The first is that most states follow precedents about extra-jurisdictional marriages virtually identical to those in Ohio, and all of them are bound by the Full Faith and Credit Clause, requiring total acknowledgment of the official acts of other states. In this sense Obergefell merely reiterates the clear fact that marriages are such official acts and, ipso facto, Ohio is not free to deny their existence within its own borders.

The second, related reason is that this builds a new argument against gay marriage bans, which is that they are simply useless: Ohio has a state-level ban on gay marriage whose ostensible goal is to deny marital rights to gay couples, but instead all it does now is impose upon them the relatively minor inconvenience of traveling to Massachusetts, Maryland, DC, or any of the other jurisdictions that recognize gay marriage, get married, and come home. The illegitimate and discriminatory purposes of state-level marriage bans are simply impossible, for the simple reason that no state has the power to ban marriages of any kind – only to determine what kinds of marriages can be performed within its own borders. This has practical significance as well as constitutional significance – a discriminatory law that cannot really be enforced, or that is truly useless beyond purely-symbolic discriminatory rhetoric, retains the constitutional defect of in-fact discrimination, but lacks the constitutional virtue of serving a legitimate governmental function (since a useless law serves no function whatsoever).

Thirdly, Judge Black graciously decided to expand beyond the very minimal ground he needed in order for him to make his ruling. It would have been enough for him to say “gay marriage, interracial marriage, cousin marriage, turtle marriage, doesn’t matter – if another state says it’s OK, then we have to recognize it.” And that would have achieved all of the ends that are relevant to Ohio’s gay couples. But Judge Black also went on to build a strong Constitutional case on top of his decision to accept extra-jurisdictional gay marriages, citing directly to WindsorHollingsworth, and the mid-90s Romer v. Evans, which struck down a Colorado state ban on all legal recognition of gay couples:

In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated…

The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: “to impose inequality” and to make gay citizens unequal under the law. See Windsor…. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association…

This elegantly establishes every important point of a constitutional case against state-level gay marriage bans, which are of course the next logical phase of the gay marriage equality movement. Obergefell is an important win in the next round, which will require more than the harsh constitutional regime under which the federal government operates. What the equality movement needs is robust precedent extending the doctrines that undergird Hollingsworth onto the states, and even obvious arguments like the Full Faith arguments that decided Obergefell go a long way towards de-fanging the existing gay marriage bans.