One of the most precious rights enjoyed by Americans is the right to a trial by a jury of one’s peers. Before there was such a right, historically a person’s dispute, or fate, might be in the hands of a single person, a magistrate, justice of the peace, judge, or king, and if they had a bad day, or didn’t like where you came from, or what you did, you had no recourse and were at that single person’s mercy.
People though became civilized, decided that instead or rule-by-one, a jury, made up of random citizens from all walks of life, should hear a dispute and decide, using their common sense and collective life experiences and wisdom, what the result should be. This right is engrained in the Magna Carta. The denial of the right to a jury was one of the grievances enumerated by Thomas Jefferson in the Declaration of Independence, as a reason to leave the rule of England. It became part of the Bill of Rights in the Seventh Amendment to the United States Constitution, and also is in the Ohio Constitution.
The United States Supreme Court noted in Railroad Company v. Stout, 84 U.S. 657 (1873), that when it comes to deciding a fair and reasonable result, it is not a judge but a jury that “can draw wiser and safer conclusions.” Juries have long been called “the conscience of the community” in administering justice. Jury nullification (the concept that a jury can render a verdict that in fact does not follow, but ignores, a law deemed unjust) is a fact, although not cared for by judges (and in Ohio can’t even be argued in court).
Decades ago though, certain interests (generally, corporations, businesses, insurance companies, fostered by chambers of commerce) rebelled against the jury system. They railed against so-called “runaway juries,” giving allegedly “unfairly” large verdicts for compensation or even punitive damages. Such concerns are based almost entirely on anecdotal evidence, as each case stands on its own. A jury of citizens that hears evidence, sees the harm caused and what caused it, and determines a fair result, is not “running away,” but doing its job. But these business interests picked cases of notoriety to argue that verdicts are essentially, too high, and that juries don’t know how to be fair, or at least can be excessive. A favorite is the infamous “McDonald’s Hot Coffee” case, where a verdict was rendered for a plaintiff burned by McDonald’s coffee. The business interests complaining argued that everyone knows coffee is hot, that she burned herself, and that a reportedly large verdict was wrong. They omitted that McDonald’s knowingly and intentionally served its coffee at that time at a temperature too high to safely drink, on the theory that their customer wanted to take it home or to the office to drink and wanted it to stay hot the entire time; that the person who was burned had her skin between her legs literally melted it was so hot; and that the award was approximately one day’s profit from coffee sales. Further information on that case and others like it is presented in the documentary “Hot Coffee,” and is indeed eye opening.
So the businesses wanted to do something about juries who arguably were doing nothing other holding people who hurt other people accountable. They did so in an effort that became known as “tort reform” (also derisively called “tort deform” by consumer and victim advocates). This took the form of massive advertising campaigns, to try to make people think that there were too many lawsuits, too many frivolous lawsuits, and too many “high” verdicts. They argued that high verdicts cost jobs, raised other people’s insurance, closed businesses, etc. There are ample sources of empirical data that proves otherwise. But the efforts were perceived by many to have poisoned many people who then sat on juries, to be skeptical, if not outright critical, of those who came to court for redress of injuries caused by someone else’s fault.
But “tort reform” also took political steps. Business interests invested heavily in state judicial campaigns, funding and supporting pro-business or anti-consumer/victim candidates for judges; and also in state legislatures for the same ends. There was passed in many states so-called “tort reform” legislation, to curb perceived jury verdict abuse, by business-friendly legislatures, constitutional challenges to which would then be passed upon by perceived business-friendly judges. These laws included reducing statutes of limitations or statutes of repose, which limited how long an injured person could make a claim – sometimes before they even knew they had a claim; placing extra burdens on proving negligence, particularly against the health care professions; and expanding defenses and immunities from suit for particularly interests. These laws were challenged as a violation of the rights in the Constitutions, including the right to a remedy and to a jury to determine such things as who was right and who was wrong and what the proper result should be. Indeed, in more “conservative” or “business friendly” jurisdictions, the protections of possible wrongdoers were more often than not victorious over the interests of person injured by them.
One of the most prevalent laws passed, including in Ohio (Ohio Revised Code Section 2315.18) are “damage caps,” that in one way or the other place a maximum amount of compensation that a jury can award to an injured person – no matter what happened to them. Exceptions are built in based on the seriousness of a physical injury, or the amount of “economic loss” suffered (lost wages, or medical bills). So persons injured or killed but without large medical bills, or who have no income (mostly babies, children, homemakers, or the elderly) are less likely to be able to avoid the “caps.” In most cases, it is those that are hurt the most that are hurt the most by damage caps, and those who do the most harm that are benefited the most by it.
These laws were professed to limit how much a civil defendant could be made to pay for hurts they cause, because it might cost jobs, raise insurance rates, close businesses, etc. The fact of the matter is, that when the wrongful party isn’t held accountable for the harm they cause, the responsibility falls on the injured person, or more often everyone other than the person who caused the harm – in the form of higher medical costs for everyone else, and higher taxes due to the government having to take care of those seriously in need of care. So these laws worked to protect businesses and insurance companies across the board from being required to compensate someone they hurt, by limiting what a jury, the conscience of the community, could find was fair and reasonable in any individual case. It is a way of saying that the government can’t trust the citizens to determine what is just.
The harm that is caused by not allowing a jury to be the one to make that determination came to a horrible but obvious head in a recent case heard by the Ohio Supreme Court. In Simpkins v. Grace Brethren Church, a 15 year old girl went to a pastor at their family’s church for counseling regarding poor grades at school and issues with her parents’ separation. What happened to her in that office is too terrible to discuss in polite company. The “pastor” forced the girl to perform oral sex on him, and then when she tried to run away, he trapped her in the room, pushed her to the ground, and then forced vaginal intercourse on the girl. In the course of investigation of the “pastor,” it was discovered he had been involved in “questionable” activities with other teenage girls in church activities in the past, more than once. The church that hired him knew or had reason to know of those issues when it installed him in the position that allowed him to rape this girl, and cause probably a lifetime of trauma that most of those reading this cannot imagine.
A jury of that county heard the case and found the fair compensation to be $3,651,378.85, including $3,500,000.00 for her past and present and future “noneconomic” harm, or pain, suffering, and emotional damages. But she only had incurred actual costs (so far) of $1,378.85 in treatment/counseling, and no lost wages (she was only 15 years old). As a result, the “caps” passed by the Ohio General Assembly politicians (to protect from alleged “runaway juries”) applied to override the judgment of the jury, and the court was forced to take away all of her compensation from the verdict for the non-economic damages except for the maximum the “tort reform” allowed — $350,000.00, coincidentally 1/10th of what a jury thought it should be in her particular case.
The child’s counsel argued vigorously against the caps, arguing that it was an unconstitutional infringement of her right to a jury trial, that it was a violation of her constitutional right to a remedy for harm caused to her, that it denied her due process of law (to arbitrarily and randomly decide that the harm to her was only worth a randomly selected number), and that due to her age and circumstances it was a denial of her right to equal protection of the law. But the Ohio Supreme Court upheld the politicians’ “judgment” of what a jury should be able to award to this girl, this victim repeatedly raped by her “pastor” after her church appointed him to the position that allowed him to do it, when they should have known better. Here was the effect of business-sponsored “tort deform” successfully influence on the legislature and the courts to take the determination of a jury and turn it into a math problem, and completely remove the human conscience.
Obviously, the result is tragic. The two Justices of the Ohio Supreme Court (Justice Pfeiffer and Justice O’Neill) who disagreed with the other five justices knew that. As Justice Pfeiffer said:
“‘Tort reform,’ however misguided and unconstitutional, was designed to protect doctors and corporate interests. . . . Today, we learn that ‘tort reform,’ not surprisingly, had unintended consequences. It turns out that ‘tort reform’ (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of the damages they cause—even if they rape a child. It is past time for the General Assembly (and this court) to reconsider ‘tort reform’ and return the authority to determine damages to juries, where it rightfully and constitutionally belongs.”
And as Justice O’Neill said:
“I cannot accept the proposition that a teenager who is raped by a pastor fits into a preordained formula for damages. Are we really ready to affirm the legislature’s decision to say to a future victim, ‘we don’t know you, we don’t know the facts of your case, and we don’t know what a duly empaneled jury is going to say, but your damages are a maximum of $500,000?’ No parent of a teenage daughter would accept that outcome as being just.
“The only way to bypass the Ohio Constitution and make changes to the tort system in Ohio would be by constitutional amendment. Unless and until that happens, arbitrary caps on damages are unconstitutional.
“This child was raped in a church office by a minister, and a duly empaneled jury established an appropriate level of compensation for the loss of her childhood innocence. We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing.”
This child cannot be helped any further by the political and judicial system, who in great part turned its back on her. She and her parents will now have to rely on their mental health professionals, their faith, and their family. But others, like us, can help maybe the next persons in such a situation. We can express to our state senators and representatives our displeasure when they take the side of the corporate interests, and in this case a child rapist, by allowing laws like this, over the rest of us. We can participate in elections, by finding out, knowing, and acting, regarding those who profess that “tort reform” by politicians, or by judges, is better than the jury system. In other words: become educated as to who are making these decisions, and let them know how you feel, both by contact to them directly, and by voting in the next and every election. And, don’t be afraid of, and be a willing and active participant when called for jury service, as it might be you or your child or loved one who needs a jury to help them someday.
For further reading the Simpkins case can be found at:
More information about the documentary exposing “tort reform,” “Hot Coffee,” can be found at:
This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:
I hope readers find this information helpful and interesting.
Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.