Transcript Damage Caps

Spangenberg Litigation
Institute 2016
Michael Hill – [email protected]
Stuart Scott – [email protected]

No Caps for Economic Damages

“Tort” Claims – R.C. 2315.18

“Medical” Claims – R.C. 2323.43

“Tort” Claims – R.C. 2315.18

Default Noneconomic Loss Cap of $250,000
 R.C. 2315.18(B)(2)

Increases to 3x Economic Loss but not to exceed
$350,000
 R.C. 2315.18(B)(2)

“Medical Claims” – R.C. 2323.43

Default Noneconomic Loss Cap of $250,000
 R.C. 2323.43(A)(2)

Increases to 3x Economic Loss but not to exceed
$350,000
 R.C. 2323.43(A)(2)

“Catastrophic Injuries”

Phrase appears no where in the law

Certain categories of injuries that change the damage
caps

Same categories of injuries for “tort” claims as
“medical” claims
1.
Permanent and Substantial Physical Deformity
2.
Loss of a Bodily Organ System
3.
Permanent Physical Functional Injury that
Permanently Prevents a Person from Being
able to Independently Care for Self and
Perform Life-Sustaining Activities
1.
Loss of the Use of a Limb

“Tort” Claims

Eliminates the noneconomic damages cap altogether
 R.C. 2315.18(B)(3)

“Medical” Claims

Increases the noneconomic loss cap to $500,000 per
plaintiff ($1 million per claim)

Permanent and Substantial Physical Deformity
(cont.)
Bransetter v. Moore, No. 3:09 CV 2, 2009 WL 152317
(N.D. Ohio Jan. 21, 2009)
 Plaintiff underwent surgery for a perforated bowel
and had scarring as a result.
 “Scarring may be so severe as to qualify as a serious
disfigurement.”
 The issue of whether a perforated bowel scar
qualified as a deformity was submitted to the jury.

Permanent and Substantial Physical Deformity
White v. Bannerman, 5th Dist. Nos. 2009CA00221,
20090CA00245, 2009CA00268, 2010-Ohio-4846
 Minor child who suffered injuries in a motor vehicle
collision resulting in glass being imbedded in her hands
and face.
 Required physical therapy for injuries to her hands, for
four days following the collision she was forced to have
her hands tied to metal bars while she remained in the
hospital, continued numbness in her hands, and had
scarring to her face that she would like to eliminate with
plastic surgery.
 In a bench trial, the court determined that the statutory
cap for noneconomic loss did not apply to the plaintiff’s
injuries.


Permanent and Substantial Physical Deformity
(cont.)
Ross v. Home Depot USA Inc., No. 2:12-CV-743, 2014 WL
4748434, at *6-7 (S.D. Ohio Sept. 23, 2014)
 Plaintiff tripped and fell on an extension cord while
shopping at Home Depot.
 Surgery that caused scarring and the implantation of
hardware. Plaintiff stated that the she “suffers from
multiple ‘misshapened,’ ‘unnatural’ and ‘distorted’
conditions in both her left knee and shoulder” and that
her treatment “has required a significant amount of
hardware to be implanted into her body,” facts which
Home Depot did not dispute.
 Submitted to jury for determination





Di v. Cleveland Clinic Found., 2016-Ohio-686, ¶ 1345
Failed cataract surgery left the patient with a
monocular vision, a condition in which the eyes
work independently and depth perception is lost.
Whether the plaintiff had suffered a “catastrophic
injury” was properly submitted to the jury.
The jury determined that the injury to the eye was
a permanent and substantial physical deformity.

Loss of a Bodily Organ System
Williams v. Bausch & Lomb Co., No. 2:08–cv–910, 2010 WL
2521753 (S.D.Ohio June 22, 2010)
 Court examined whether the plaintiff's “permanent loss
of vision in her right eye, combined with poor vision in
her left eye,” constituted “the loss of a bodily organ
system.”
 Court found that “the loss of vision in one eye does not
result in the loss of a bodily organ system, if the other eye
is functional.”
 Because the plaintiff had conceded that she had 20/70
vision in her left eye, the court found that she had not
experienced “the loss of a bodily organ system” as a
matter of law.


Permanent Physical Functional Injury that
Permanently Prevents a Person from Being Able to
Independently Care for Self and Perform LifeSustaining Activities
Giebel v. Lavalley, No. 5:12-CV-750, 2013 WL 6903784 (N.D.
Ohio Dec. 31, 2013)C
 Court determined that partial vision loss in both eyes did
not amount to loss of a bodily organ system (ocular
system) but did find that a question of fact existed on
whether suicidal ideations and depression following TBI
was a physical functional injury that prevented a person
from independently caring for oneself.


Permanent Physical Functional Injury that
Permanently Prevents a Person from Being Able to
Independently Care for Self and Perform LifeSustaining Activities (cont.)
Dillon v. OhioHealth Corp., 10th Dist. Nos. 13AP–467,
14AP–259, 2015-Ohio-1389, ¶ 56,
 Plaintiff who suffered a partial paralysis due to
negligence was entitled to have the jury determine
whether his injury met the higher cap.
 Evidence that Plaintiff needed assistance walking
significant distance, could dependably make his way into
the bathtub without assistance, cannot accomplish even
the most basic of homemaking tasks by himself, and
cannot even make it to the toilet every time without
having accidents.


Permanent and Substantial Physical Deformity

Commonly a question of fact for jury
 Ohle v. DJO, Inc., No. 1:09-cv-02794, 2012 WL 4505846 (N.D.
Ohio Sept. 28, 2012)
 Plaintiff underwent shoulder surgery, and a pain pump was
inserted for approximately 48 hours. Pain pump caused
cartilage deterioration.
 Plaintiff had full range of motion at the time the lawsuit was
filed.
 Whether partial implant in shoulder and had scarring on
shoulder was a permanent and substantial deformity was a
question of fact for the jury to consider.


Expert Testimony is Critical
Fact Witness Testimony is Equally Critical in
Proving a Deformity

Treating Physicians

Grief and Loss Counselors

Life Care Planners

Economists

“Minimum” Life Care Plan

Should be reduced to the essential minimums
 There should be a discernible harm to the plaintiff if the
plaintiff is not able to get any particular item on the
plan

Limited to Pain and Safety

“Minimum” Life Care Plan (con’t)

Edit the plan to find the cheapest prices available
 Ex., Walmart, Amazon.com, etc. . . .
 If there is a cheaper source available, use that
 Requires having the plan well in advance

The doctor’s plan

The doctor creates the plan

The LCP prices the plan

Every item on the life care plan should be
supported by witness testimony by someone
other than the client

Mini-stories

Defense can’t cross a mini-story


Don’t Rush the Testimony
Should already have fact witness testimony
illustrating the limitations

Demonstratives for each major item on the LCP

Actual items when available, but photos will suffice

LCP shows the jury how they are used (helps to
demonstrate the reality of the injuries)

Videos of equipment being used or the type of
therapy recommended are available on the internet

For each major item on the LCP:
1.
What it’s for;
2.
When it was invented and why (how widespread and serious a
problem it served);
3.
How it works;
4.
Why the plaintiff needs it;
5.
How much it costs (per each and over the term of the plan) and
why there’s no cheaper substitute;
6.
What happens if the plaintiff does not get it (focus on medical,
pain, and safety consequences)

Life Expectancy

Should be testimony by physician on life expectancy
by physician

Economist can bolster this with statistical tables

How Long did the Plaintiff Intend to Work?

Testimony from fact witnesses about the length of
time plaintiff intended to work

Testimony from coworkers and friends about
enjoyment and sense of purpose the plaintiff got
from working (more than just a paycheck)

Provides credible basis for Plaintiff’s request for
future wage claim

How Long did the Plaintiff Intend to Work?

Work-Life Expectancy
 Says nothing about your client
 If your client intended to work beyond that date, don’t
include it