Pair of Ohio tort reform cases set for argument on same day

John O'Brien Apr. 9, 2007, 4:00pm

COLUMBUS - May 1 may be an important -- and crowded -- day in the Ohio Supreme Court.

That's the day oral arguments will be heard in two cases that could shape the future of consumer protection lawsuits in the state.

Twenty-four organizations filed amicus curiae briefs in the case of Arbino v. Johnson & Johnson, et al., and another eight did the same in the General Assembly's suit against Secretary of State Jennifer Brunner.

Melisa Arbino is seeking an advisory ruling on the constitutionality of 2005's Senate Bill 80, a tort reform law that puts a cap on non-economic damages. She seeks more than what is allowed, though her case has not yet been decided.

The General Assembly is suing over the veto of Senate Bill 117, another tort reform bill that prevents cities from being able to sue over certain matters. Some say it barred Attorney General Marc Dann from recently filing a public nuisance lawsuit against 10 companies that previously manufactured lead paint, found to be toxic in 1978.

"Both of these cases just happen to be before the Court for oral arguments on the same day," said Ryan Augsburger, Managing Director of Public Policy Services for the Ohio Manufacturers' Association. "It's uncanny."

Arbino's case, Augsburger said, is the first major challenge to Senate Bill 80, which he says helped turn the state from one of the 10 worst for businesses into one of the 10 best based on information collected by the Pacific Research Institute.

Arbino, of Cincinnati, alleges in her complaint that her use of the birth control patch Ortho Evra caused four blood clots by the time she was 24. Blood clots, she says, were not an expressed side effect of the patch.

With liability not yet determined, Arbino's attorneys already want to test the amount of damages she can recover.

"Specifically, by purporting to limit the amount of compensatory damages for noneconomic injury that may be awarded in a non-catastrophic case, Senate Bill 80 infringes upon the right to trial by jury, unconstitutionally empowers a court to reexamine a jury's award, interferes with the constitutional right to a remedy, and violates due process," the complaint says before making the same point regarding punitive damages.

The Ohio Manufacturers' Association took part in one of the 24 friend of the court briefs, joining the Ohio Alliance for Civil Justice's brief that argued Senate Bill 80 passes constitutional muster.

A couple other factors are at work in the General Assembly's suit regarding Senate Bill 117, which would have prevented lawsuits against lead paint manufacturers. It also restricted claims for the costs of cleaning up lead paint in older buildings.

It was passed by the General Assembly shortly before former Gov. Bob Taft left office to make way for new Gov. Ted Strickland.

The Assembly says Taft did not act on the bill during the 10-day period after it was passed by the Legislature, effectively making the bill a law when it was sent to Brunner's office.

However, the two sides are arguing on when that 10-day period started. Strickland claims he still had time to veto the bill when he took office.

Strickland did veto the bill in January, and was congratulated by Dann, who filed his public nuisance lawsuit against the paint companies last week.

"(The Assembly is) fighting to preserve what they enacted and the former Governor made permanent," Augsburger said. "I do feel the Court understands the business climate that the policymakers try to obtain, and they will uphold the legislation and prerogatives they've taken in their policymaking. I'm very optimistic about the outcome."

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