In 1995, tort "reformers" knew the time was ripe to push their entire wish list through the Ohio General
Assembly. Over a 20-month period, they organized their coalition, lined up testimony, drafted a bill, and constantly
expanded its reach at the urging of other special interest groups also seeking immunity from lawsuits. The result was
H.B. 350, a 246-page tort "reform" behemoth, which eclipsed the previous record holder, Illinois's 68-page omnibus
bill, by a nearly four-to-one margin. It was the tort "reform" bill to end all tort "reform" bills.
In enacting the bill, with a January 1997 effective date, the legislature endorsed the yearnings of the habitually
negligent and the intentionally irresponsible. It did so without apology, caution, or good and sufficient reason and in
disregard of the rulings and constitutional duties of the Ohio courts. The new law was nothing less than a bold assault
on the authority, responsibilities, and prerogatives of the judiciary that also substantially interfered with the rights of
injured people to seek access to the courts. Fortunately, on August 16, 1999, the Ohio Supreme Court, 4-3, held the
entire law unconstitutional.
The impact of the law on consumer rights was devastating. In one fell swoop, it made it more difficult and
expensive to seek redress for injuries caused by another's wrongdoing, while limiting a plaintiff's ability to recover
full compensation. The law recast the administration of justice in its political patrons' image by (1) changing rules of
civil procedure and rules of evidence; (2) changing the amount and apportionment of damages available; (3) partially
abrogating joint and several liability and adding an "empty chair" defense; (4) jettisoning the collateral source rule;
(5) skewing jurisdictional rules; (6) imposing more stringent and unfair statutes of limitation and repose; (7) revising
the rules governing comparative fault and contributory negligence; (8) establishing new, defendant-friendly legal
presumptions; (9) adding new obstacles to medical malpractice claims; and (10) eviscerating much of the ability to
pursue products liability claims, including applying comparative fault to strict liability actions.
As a consequence, potential plaintiffs were grievously disadvantaged and often foreclosed entirely from pursuing
remedies in the courts. Meritorious claims were rendered more expensive to pursue and more difficult to prove,
while recoveries were diminished for those who prevailed. The law was nothing less than a hostile takeover of the
civil justice system in the service of tortfeasors and to the detriment of the consuming public.
Testimony at the legislative stage in support of the law was devoid of empirical evidence. The testimony often had
no connection whatsoever with Ohio.
For example, two proponents of the law urged passage on the basis of distorted renderings of the New Mexico
"McDonald's hot coffee" case. [FN1] The Ohio representative for the National Federation of Independent Businesses
urged passage on the basis of the alleged size of the Illinois Girl Scout Council's liability premiums and a supposedly
outrageous verdict won in Texas. [FN2] Only once did he invoke an Ohio case, which involved a contract claim, not
one sounding in tort, which was what H.B. 350 concerned. The only other Ohio anecdotes offered *67 by this
witness were unidentifiable or involved other nontort cases. [FN3]
Other witnesses did no better. Most offered hypothetical horrors or speculated about the liability records of others.
Proponents also demonstrated a mysterious ability to contradict each other. Two, for example, trotted out the old
chestnut that a "tort tax" adds to the cost of a "typical $30 ladder in your neighborhood hardware store," but differed
as to whether that "tax" was $20 or $2.70. [FN4] Similarly, the Ohio Farm Bureau reported that obstetricians had
become scarce in 36 rural Ohio counties. This assertion was contradicted by the Ohio Medical Association, which
said there was no problem in Ohio but pointed to one in Missouri. [FN5]
Committees that conducted hearings usually made no findings but reached conclusions on the basis of incredibly
weak testimony. One subcommittee forthrightly acknowledged that "on a number of issues, proponents did not
provide a compelling rationale to link a proposed change in H.B. 350 with a specific problem in existing law. On
some troubling proposals, the subcommittee specifically asked for such a rationale to be provided, without any
response from proponents." [FN6] Nonetheless, the subcommittee approved the proposals. Certainly, neither H.B.
350's published findings nor the testimony the legislature received justified the bill's deforestation of the redwoods of
the civil justice system.
With the playing field tilted so acutely against plaintiffs, the Ohio Academy of Trial Lawyers immediately resolved
to bring a case challenging the law's constitutionality. Doing so was entirely consistent with the academy's founding
objectives, which include promoting the administration of justice for the public good, protecting the adversary
system and trial by jury, and advancing the cause of those injured and who must seek redress. The academy recruited
the Ohio AFL-CIO as an additional challenging party.
While a constitutional challenge committee was established and began researching the best arguments to make, the
Ohio Academy contacted ATLA's Legal Affairs Department, which had established a constitutional litigation
program for precisely these purposes [see sidebar]. ATLA's legal team recommended a broad-based approach, using
the full range of weapons available through the Ohio Constitution, and signed on as counsel in the case, joining past
academy president Don Iler and Ohio AFL-CIO lawyers Stewart Jaffy and Marc Jaffy.
Arguments
After an intense research period, the case was crafted. The means chosen to accomplish an efficient review of the
law's constitutionality was the Ohio Supreme Court's original jurisdiction over writs of mandamus and prohibition.
The writs, dating back to the 12th and 13th centuries and engrafted into the Ohio Constitution, were designed to
enable the Ohio Supreme Court to exercise its superintending authority over the lower courts and further justice.
By seeking writs against trial judges in Cuyahoga, Franklin, and Montgomery counties, the complaint ensured that
only the Supreme Court had appropriate jurisdiction, for no other single court had superintending authority over
those judges. In addition to the academy and the Ohio AFL-CIO, two officers of the organizations joined the
challenge as taxpayers.
The case, filed in November 1997, was framed in terms of separation of powers, asserting that the General
Assembly had exercised authority that the constitution assigned exclusively to the judiciary. As a result of H.B. 350,
trial judges were instructed to rule in a fashion contrary to the binding constitutional decisions of the Ohio Supreme
Court; the court's common law rulings for which the legislature provided no adequate alternative; and the rules of
procedure and evidence promulgated by the high court, which, constitutionally, could not be overruled by the
legislature.
In addition, invoking the court's ancillary jurisdiction to decide other constitutional issues raised by the new law,
the complaint set out causes of action based on the one-subject rule, the right to trial by jury, the right to a remedy,
the guarantee of full compensation in wrongful death cases, the guarantees of due process and equal protection, and
the rule against retroactive legislation.
The attorney general immediately intervened and moved to dismiss the action. While challenging the assertion of
original jurisdiction in the Supreme Court, the attorney general's most sustained attack was on the standing of the
petitioners.
In response, the petitioners argued that, when acting as a private attorney general in support of important public
rights, no individualized injury was necessary under the approach that the Supreme Court itself had adopted in 1832,
relying on old English precedent, and had never overruled. Contemporary scholarship on the purposes and uses of
writs of mandamus and prohibition supported that ancient ruling.
As an alternative ground for upholding standing, the academy and the Ohio AFL-CIO showed they had suffered
concrete financial injury. The academy lost members who found that the new law rendered uneconomic the practice
of personal injury law, and the labor union had additional burdens placed on its health and welfare funds because of
reduced recoveries available through the legal system.
In late February 1998, the Ohio Supreme Court accepted the case, setting in motion an intense and abbreviated
evidentiary and briefing schedule. By mid- March, the challenging parties filed their evidence, even while fending
off discovery motions that violated the academy's constitutional rights.
The attorney general, attempting to renew her motion to dismiss, sent subpoenas to academy employees, seeking to
depose them about membership records, as well as seeking a list of all members who had not renewed and minutes of
all board meetings where tort "reform" had been *68 discussed. The academy successfully opposed discovery,
challenging the motion to compel largely on First Amendment freedom of association grounds.
The petitioners' evidence consisted of four affidavits. University of Wisconsin law professor Marc Galanter filed an
affidavit that authenticated his law review article, Real World Torts, which argues that there is no credible empirical
evidence of a need for tort "reform" legislation and that nothing in his extensive study of the issue suggests otherwise
about the state of Ohio. [FN7]
American Bar Foundation scholars Stephen Daniels and Joanne Martin filed an affidavit that recounted their
research about tort "reform" and about jury verdicts in Ohio. They concluded that no empirical studies or evidence
exist to substantiate the factual assertions and legislative findings that H.B. 350 attempts to rely on. They further
indicated that those few studies mentioned by the legislature "were either misread or of doubtful relevance or
validity." [FN8]
Former Georgia Insurance Commissioner Tim Ryles filed an affidavit that stated tort "reform" was unnecessary,
because insurance regulations are designed to ensure insurance company profitability. He also attached a study to his
affidavit that showed that insurance company profitability in Ohio was higher than the national average and that
medical malpractice premiums for the nation's largest insurer had steadily decreased in Ohio, again by a greater rate
than nationwide. [FN9]
Last, Columbus attorney Stephen Chappelear filed an affidavit that described his 12-year study of every jury verdict
rendered in demographically typical Franklin County, Ohio. His studyshowed that jury verdicts were not increasing
and that punitive damage awards were infrequently awarded and seldom large enough to trigger the bill's caps on
these awards. [FN10]
In response, the attorney general provided very little evidence. Most telling, however, was where that evidence
came from. Rather than produce Ohio's insurance commissioner to refute the Ryles affidavit on insurance rates, the
attorney general instead filed an affidavit from Edward Muhl, an insurance industry consultant who had served as the
insurance commissioner in both Maryland and New York. Muhl attempted to dismiss the Ryles affidavit by stating
that there might be other explanations for the health of Ohio's insurance industry.
The merit brief in support of the constitutional challenge noted that the General Assembly's own Legislative Service
Commission found at least 13 different constitutional infirmities in the bill that its supporters chose to ignore. A law
professor who supported the bill had also conceded *70 that in some areas, "most notably statutes of repose and
limitations on damages, the government need is weak, the effect drastic, and the likelihood of defending against
constitutional attack is minimal." [FN11] These constitutional flaws, however, barely scratched the surface.
Original intent
Before proceeding with the legal argument in the case, the brief took advantage of the court's original-intent
orientation by recalling the events that led to the framing of Ohio's constitution. The first state constitution was a
response to a dictatorial, territorial governor.
To avoid a concentration of power in another individual, the 1802 constitution gave unchecked authority to the
legislature. It appointed both the vetoless governor's cabinet as well as the judges. Judges who ruled against the
legislature were swiftly removed from office.
It was not long before rapacious businesspeople saw the concentration of power in the legislature as an invitation to
plunder the treasury and win advantages ensconced in law. Legislators proceeded "to haggle, dicker, and bargain to
secure individual and special advantages and privileges for those who had sent them." [FN12] The situation was so
bad that "any man, who could think of a scheme by which to forcibly take tribute from his fellow citizens, could
secure the legal right to do so by applying to the legislature." [FN13]
Railroads conspired with the legislature to secure private property at nominal prices; businesses received exemption
from various forms of liability; and taxpayers were required to foot the bill for infrastructure improvements that
inured to the benefit of companies, which then charged tolls for private profit to the very taxpayers who had financed
the roads, canals, and railroads. This last event, resulting from the passage of an 1837 law that became popularly
known as the "plunder law," helped accelerate public pressure for a new constitution that would curb legislative
power and invigorate the judiciary with a responsibility for checking legislative excesses.
At the constitutional convention, anti-corporate sentiment was in abundant evidence. One convention delegate, R.P.
Ranney, later a justice of the Ohio Supreme Court, declared that the "people had been handed over to [the
corporations'] tender mercies." He added that "one of the most crying evils connected with corporate privileges was
... exemption from individual liability for the payment of their debts." [FN14]
It was plain from this history that the Ohio Constitution was specifically designed to prevent the General Assembly
from exercising arbitrary power at the behest of corporate interests, especially when that exercise undermines the fair
administration of justice. In enacting H.B. 350 for its corporate patrons, the General Assembly had brought into
being a new "plunder law."
After establishing that consonant with the underpinnings of the constitution legislative largesse at the behest of
corporate interests should be viewed suspiciously, the brief noted just how fully the legislature had trespassed onto
judicial ground. For example, H.B. 350 overrode three rules of civil procedure and seven rules of evidence, all of
which worked to the detriment of plaintiffs. Although this might not seem a remarkable act of legislative
aggrandizement, the Ohio Constitution vests the promulgation of all rules governing practice and procedure
exclusively in the supreme court and further provides that "all laws in conflict with such rules shall be of no further
force or effect after such rules have taken effect." [FN15]
In addition, the legislature challenged rulings of the court that had held previous tort "reform" efforts
unconstitutional by reenacting those provisions. These included a cap on noneconomic damages, a cap on punitive
damages, a prerequisite of a "certificate of merit" from a medical expert before filing a medical malpractice case, the
abrogation of the collateral source rule, and a shortened statute of repose.
Such action against precedent amounted to the legislature appropriating a new power of cancellation over judicial
review, an institution whose pedigree was well established even before there was a state called Ohio.
Finally, the legislature asserted a plenary power to alter the administration of justice and to revise the common law.
The brief, however, noted that such power was contrary to constitutional assumptions. As early as 1922, the Ohio
Supreme Court had noted that the administration of justice was "a matter for which the judges are answerable to the
people, and not to the General Assembly of Ohio." [FN16] The court later said the judiciary's discharge of its duties
"cannot be impeded by the other branches of the government in the exercise of their respective powers" and must
remain "free and untrammeled." [FN17]
Moreover, the Ohio Supreme Court had long recognized its special custodianship of the common law. In 1896, it
noted that authority to administer the common law had been an inherent power of the courts and "within every
conception of a judicial court." [FN18] Protecting the common law from wholesale revision by the legislature
without either a showing of compelling necessity or the creation of a reasonable alternative remedy for those who
seek redress through the courts remains a constitutional mandate for the courts.
Single subject
At a global level, the lawsuit argued that the mammoth tort "reform" bill violated the state constitutional
requirement that bills embrace no more than a single subject. The single-subject rule was developed to ensure that
legislative policy would be developed in full public view and that controversial provisions could not be masked from
public input by the legislation's sheer volume.
H.B. 350 provided a textbook example of *71 how that could occur. The bill, 143 pages in length when first
introduced, grew to 257 pages by the time it passed the House. The final measure's 246 pages covered such diverse
topics as trial evidence and procedure, court jurisdiction and authority, domestic relations, statutes of limitation, jury
instructions, attorney misconduct and ethics, comparative fault and contributory negligence, apportionment of
damages, wrongful death, the standard of care for agricultural producers, products liability, commercial regulation,
medical malpractice, public employment and whistleblower protections, public utility rates, and the appropriation
and allocation of state funds. If all these subjects could constitutionally constitute the single subject of tort "reform,"
the brief argued, any bill could pass constitutional muster under the rubric of "law."
While the brief went on to demonstrate why particular provisions in H.B. 350 violated specific constitutional
language, the court found it unnecessary to go beyond the separation of powers and single-subject rule arguments. It
held that H.B. 350 constituted "an attack on the judiciary as a coordinate branch of government." [FN19]
In the court's view, the legislation marked "the first time in modern history that the General Assembly has openly
challenged this court's authority to prescribe rules governing the courts of Ohio and to render definitive
interpretations of the Ohio Constitution binding upon the other branches." [FN20]
Like the petitioner's brief, the court recalled the history that led to the writing of the Ohio Constitution. That review,
the court concluded, placed a special duty on the court to patrol the constitutional excesses of the legislature. It then
concluded, consistent with precedents over the previous century, that an Ohio citizen did not need to demonstrate a
concrete injury to challenge the constitutionality of a legislative aggrandizement of power, particularly when that
power was exercised to diminish the checks and balances of constitutional government.
The majority reviewed the myriad constitutional holdings that H.B. 350 intentionally attempted to overrule. These
included decisions striking down statutes of repose, certificate-of-merit requirements, set-offs against collateral
benefits, various forms of damages caps, standards for summary judgment in toxic tort cases, and bars on the
admissibility of evidence of a common insurer.
The legislature's knowing overrule of these decisions made plain the constitutional violation. The court said that
H.B. 350 was "no ordinary piece of legislation." [FN21] Instead, it was a declaration whereby the General Assembly
sought to
circumvent our mandates, while attempting to establish itself as the final arbiter of the validity of its own
legislation. It has boldly seized the power of constitutional adjudication, appropriated the authority to establish rules
of *73 court and overrule judicial declarations of unconstitutionality, and, under the thinly veiled guise of declaring
"public policy," establishing "jurisdiction," and enacting "substantive" law, forbade the courts the province of
judicial review. [FN22]
Addressing the one-subject violation, the court noted that H.B. 350 combined in one bill "the wearing of seat belts
with employment discrimination claims, class actions arising from the sale of securities with limitations on agency
liability in actions against a hospital, recall notification with qualified immunity for athletic coaches, actions by a
roller skater with supporting affidavits in a medical claim, and so on." [FN23] The subjects, the court held, were "so
blatantly unrelated that, if allowed to stand as a single subject, this court would be forever left with no basis upon
which to invalidate any bill, no matter how flawed." [FN24]
The court concluded that H.B. 350 raised issues of such fundamental public importance that it had to be addressed
as the decision did. Any other course, the court wrote, would have made the judiciary "a willing participant in
divesting the courts of judicial power and a coconspirator in the abdication of fundamental individual rights and
liberties contained in our constitution." [FN25]
Framework for government
Like the framers of the constitutions of most states, the framers of Ohio's constitution were concerned about the
exercise of power by the government. They established a framework for governing that limited those powers and
recognized individual rights, while simultaneously putting their trust in bodies such as the judiciary to effectuate their
design.
Tort "reform" of the type enacted in Ohio could not stand if the courts were to remain open for the redress of
injuries caused by powerful political forces and if juries were to remain the means by which we resolve disputes. It
could not stand if the actual language of the Ohio Constitution, the conditions that called that language into being,
and existing precedent were observed. Fortunately, the Ohio Supreme Court vindicated these timeless principles.
[FNa1]. Robert S. Peck is ATLA's senior director for Legal Affairs and Policy Research. He was primarily
responsible for preparing and arguing the Ohio challenge.
[FN1]. Civil Justice Reform: Hearings on Am. Sub. H.B. 350 Before the Senate Select Comm. on Tort Reform,
121st Ohio General Assembly 2 (Apr. 18, 1996) (statement of Ralph B. Hoffman, professional engineer, Hoffman
Engineering Co.); Civil Justice Reform: Hearings on Am. Sub. 350 Before the Subcomm. on Limitation of Damages
of the House Select Comm. on Civil Justice Reform, 121st Ohio General Assembly 4 (July 18, 1995) (statement of
Roger R. Geiger, State Director, National Federation of Independent Business/Ohio (NFIB/Ohio) and president of
the Ohio Alliance for Civil Justice. The Ohio Alliance is a business coalition that pushed H.B. 350 through to
passage.).
[FN2]. Statement of Mr. Geiger, NFIB/Ohio, supra note 1, at 4-5.
[FN3]. Id. at 4.
[FN4]. Compare statement of Mr. Geiger, NFIB/Ohio, supra note 1, at 5 ($20), with Senate Tort Reform Hearing 2
(Mar. 27, 1996) (statement of John Hatfield, President, Archbold Ladder Co.) ($2.70).
[FN5]. Compare House Select Comm. on Civil Justice Reform Hearings 4 (July 26, 1995) (statement of Larry R.
Gearhardt, Ohio Farm Bureau) with Civil Justice Reform: Hearings on H.B. 350 Before the House Select Comm. on
Civil Justice Reform, 121st Ohio General Assembly 2 (July 18, 1995) (statement of Claire V. Wolfe, M.D.,
Immediate Past President, Ohio State Medical Association).
[FN6]. Report of Subcomm. One, House Select Comm. on Tort Reform 1 (Oct. 5, 1995).
[FN7]. Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996).
[FN8]. Relators' Joint Presentation of Evidence and Index, Affidavit of Stephen Daniels and Joanne Martin, State ex
rel. Ohio Academy of Trial Lawyers v. Sheward, No. 97-2419 (filed Mar. 17, 1998).
[FN9]. Id., Affidavit of Tim Ryles.
[FN10]. Id., Affidavit of Stephen E. Chappelear.
[FN11]. Stephen J. Werber, Ohio Tort Reform Versus the Ohio Constitution, 69 TEMPLE L. REV. 1155, 1199-
1200 (1996).
[FN12]. ISAAC PATTERSON, THE CONSTITUTIONS OF OHIO 16-17 (1912).
[FN13]. Id. at 21.
[FN14]. I Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State
of Ohio, 1850-51, at 371 (1851; reprinted 1933) (remarks of R.P. Ranney).
[FN15]. OHIO CONST. art. IV, 5(B).
[FN16]. Schario v. State, 138 N.E. 63, 64 (Ohio 1922).
[FN17]. State ex rel. Johnston v. Taulbee, 423 N.E. 2d 80, 83 (Ohio 1981).
[FN18]. Hale v. State, 45 N.E. 199, 200 (Ohio 1896).
[FN19]. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, No. 97- 2419, 1999 WL 617856, at *2 (Ohio
1999).
[FN20]. Id. at *3.
[FN21]. Id. at *27.
[FN22]. Id.
[FN23]. Id. at *32.
[FN24]. Id.
[FN25]. Id. at *35.
