Tort Reform 10 Years Later: Is It Working?

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It's been 10 years since Ohio legislators passed sweeping tort reform laws. Supporters say the laws help the economy and reduce frivolous suits. But critics say it let's wrong-doers off the hook.(Photo: Flickr / SalFalko)
It's been 10 years since Ohio legislators passed sweeping tort reform laws. Supporters say the laws help the economy and reduce frivolous suits. But critics say it let's wrong-doers off the hook.(Photo: Flickr / SalFalko)

A decade ago, Ohio passed so-called tort reform laws which severely limited jury awards in negligence and malpractice cases. Supporters say the laws have helped Ohio’s economy; victims say it lets wrong-doers off the hook. Here’s the story of one woman affected by the legislation.

It was during a Bible study that Jess said she met Brian Williams, the new minister of Sunbury Grace Brethren Church in Delaware. She was 15 years old. Williams was 42.

“My grades were falling at school, and my guidance counselor thought it was because of unresolved issues at home,” Jess said. “So she advised me to go talk to my pastor at church because she knew I was big into church.”

During that meeting, Williams raped Jess.

Because Jess is a sexual assault victim, we’re only using her first name.

Williams pleaded guilty to two counts of sexual battery. He’s serving an 8-year prison term.

Jess sued the Sunbury Church where Williams was the pastor and where they rape occurred. Jess settled that case for $90,000.

She also sued another church, the Delaware Grace Brethren Church, which recommended Williams for the Sunbury position.

In that case, a Delaware jury awarded her more than $3.6 million. The bulk of the award came in pain and suffering. But state law caps non-economic losses, in most cases, to $250,000.

A judge reduced Jess’ total award to $310,000.

John Fitch is Jess’ attorney.

“To me it’s something that’s very disturbing. I’ve called it a moral outrage,” Fitch said. “And I continue to feel it’s a moral outrage. We don’t need to cap the damages of children who are raped in this state.”

Tort reform has been described as a pendulum; in whose favor it swings depends on which political party controls the legislature.

Ten years ago, then-Governor Bob Taft, a republican, signed two major tort reform provisions into law. One capped pain and suffering awards in medical malpractice cases; the other limited non-economic awards in other cases.

“There was a big thrust to try to improve the economy of Ohio,” Columbus attorney Terrance Miller said.

Miller has defended businesses sued in product liability cases. He said the laws provide predictability for companies.

“And not just big businesses, and certainly not just insurance companies, small business owners,” he said. “Anybody who could be subjected to a very large award in a tort suit which could have the effect of crippling or terminating their business.”

The National Federation of Independent Business in Ohio played a role limiting awards. The NFIB’S Chris Ferruso said tort reform is critical to small business owners because, again, it provides predictability.

“That’s been reflective through an increase in certainly carriers in the state willing to write liability insurance for small business owners. And I think we can all agree competition drives price down. It is a cost of doing business,” Ferruso said.

Doctors pushed hard for the limits. The Ohio State Medical Association’s Tim Maglione said large civil awards drove up malpractice insurance rates and caused some doctors, particularly specialists, to quit their practices.

“It really became an access to care issue.”

Maglione said the legislation is working. He said insurance premiums have dropped by more than 25 percent.

“We are not hearing from physicians today, like we did 10 years ago, that they are having to stop providing services to their patients because they can’t get affordable liability coverage,” Maglione said.

But Jess’ attorney John Fitch said the arguments are bunk.

“The spin they put on it sounds good, but the reality is cases like this where very deserving victims have their awards slashed and profits, as in this case, flow directly to the insurance industry,” Fitch said.

Attorney Terrance Miller, who supports tort reform, admits the policies are not perfect, especially as they relate to arbitrary limits.

“I do understand the concerns about how this applies in certain individual situations,” Miller said. “And it may be that there would need to be further thought about an additional exception to the cap, although I think it would be very difficult to implement that.”

Jess continues to move forward with life. She expects to finish college in January and has hopes to attend the Police Academy. But her past looms in the shadows in the form of an on-going appeals process and nightmares.

“I just wish I could get over it and not let it affect me at all,” she said.

  • Sharon Montgomery

    There is a lot the public needs to know about these “reform” laws, esp. the behind-the-scenes manipulations that led to the passage of the 2nd one, SB 80, which extended the limits beyond malpractice cases. The most important thing people need to understand, though, is that these pre-determined limits undermine a basic tenet of our justice system. Each case is supposed to be heard and decided on its own merits. Not even part of the outcome should be set in advance, before the case is even heard in court.

  • Darren McKinney

    Setting aside reporter Mandie Trimble’s curious need to tell a story about Ohio tort reforms by resorting instead to that of a Delaware rape victim, let me politiely suggest that, unless Jess’s rapist had a history and/or criminal record of sexual assault that either or both churches knew about or should have known about (Ms. Trimble does not report on this crucial element of the story), it wasn’t at all fair to go after the churches in this tragic case in the first place. What could they have done to anticipate or prevent the pastor’s presumably unexpected criminal outburst?

    Police and prosecutors did their jobs by sending the rapist to prison. And though eight years seems like a rather light sentence to an observer without all the facts, Jess nonetheless has, after two lawsuits, $400,000 — tax-free — that many rape victims would surely be glad to have. Granted, she likely has to pay her attorney a third of that, but she might have a better chance of otherwise leaving this horrible experience behind her if she contented herself with the more than a quarter-of-a-million dollars that are hers to keep, dispense with further appeals, and throw herself into a new life at the Police Academy. After all, her lawyer is really the only one at this point who stands to benefit from an appeals process that continues dredging up painful events.

    In any case, here’s wishing Jess the best for a bright and hopeful future. Don’t let a terrible person victimize you anymore.

    -Darren McKinney, American Tort Reform Association, Washington, D.C.

    • Sharon Montgomery

      Mr. McKinney considers the award determined by the jury who heard the facts of Jess’s case to be “arbitrary.” Black’s Law Dictionary says an “arbitrary” decision is “founded on prejudice or preference rather than on reason or fact.” The reduced award, in accordance with the tort “reform” law, was based on a prejudgment of the case–before the tort even occurred–rather than on the facts of that case. The reduced award is the one that is arbitrary.

      Mr. McKinney believes that the appeals process will dredge up painful events. Jess’s painful memories of being victimized by the offender will always be with her; they won’t need to be “dredged up.” Now she’ll also have the painful memory of being victimized by the justice system.

      It sounds like Mr. McKinney is one of the lucky ones who hasn’t been victimized by any offense and again by the justice system, so he isn’t able to know what it’s like. Jess and I and many others are not that lucky.

    • Michael C. Duff

      Justice, in fact, is the interest of the stronger. Enjoy your season of strength, Mr. McKinney. The tribune cometh.

  • John Fitch

    I am the attorney for the victim. Mr. McKinney’s view reflects his ignorance of the case. The church had two prior victims and covered it up, directly leading to the rape of this child. His view also reflects his ignorance of the law. The client in this case must bear her own litigation costs of $25,000 (and mounting) and her own attorney fees. My colleagues and I have worked for five years on the case. This means this child will get little out of the case after years of litigation, due to the fact that Republicans have chosen to restrict the rights of sexually abused children, and protect sexual predators and those who conceal their misdeeds. Furthermore, this child was raped twice and is still subject to one cap under this law, meaning if she were raped 50 times, she would get $5000 per rape. The law is an embarrassment to Ohio’s legal system. The State of Ohio pays wrongfully incarcerated prisoners $42,000 per year for what is essentially the emotional distress of being incarcerated. My client will suffer permanent trauma, per the undisputed testimony at trial, and will be lucky to $2000 per year. In my opinion, his comments reflect cruelty towards, and ignorance of the, devastating effects of child sexual abuse. John Fitch

  • Admiral Akbar

    Tort Reform…..”IT’S A TRAP”