When the Ohio legislature enacted its latest batch of tort reforms in 2005, it must have had in mind Einstein’s definition of insanity:  repeatedly performing the same act with the expectation of different results.  Thirty years before, and then again in 1987 and 1997, the General Assembly had passed a variety of supposed “reforms,” only to see them held unconstitutional by the Ohio Supreme Court.  But that was then, this is now:  last week, in Arbino v. Johnson & Johnson, the Supreme Court sustained the two biggest items, limits on non-economic and punitive damages, deferring ruling on the third — collateral source benefits — because the plaintiff lacked standing to argue it.

I’m not going to get into the merits of tort reform, because that’s more a political question than a legal one.  Unless you happen to be in the group of plaintiffs’ lawyers who, with some regularity, win “pain and suffering” awards of more than $350,000 — a subset of the legal profession which, alas, does not include me — your views on the subject are shaped by your politics.

I’m not even going to get into the details of the opinion.  Sure, there are some weak points, like the argument that if the legislature can provide for treble damages for violations of the Consumer Sales Practices Act, there’s no problem with the legislature limiting damages.  The difference between expanding damages for a legislatively-created cause of action, and limiting damages for a common-law cause of action, should be evident.  Still, if we were discussing the case in a vacuum, one could make an argument that tort reform is a policy dispute best left to the legislature, and those aggrieved by the result should seek their remedy at the polls, not in the courts. 

But we’re not discussing this is in a vaccum.  Back in 1997, the legislature passed a series of “reforms” containing caps for non-economic and punitive damages virtually identical to those passed in 2005.  In State ex rel. OATL v. Sheward, the Court threw all of them out. 

Five years ago, in Westfield Ins. v. Galatis, the Court established a test for determining whether a prior decision should be overruled:

(1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.

So how does the Arbino Court apply Galatis to justify overruling Sheward?  It doesn’t.  Galatis is never mentioned, for the obvious reason that the decision in Sheward would not meet those criteria.  In fact, Sheward isn’t overruled; the Court fluffs off the entire debate about stare decisis with the statement that “the statutes before us here are sufficiently different from the previous enactments so as to avoid the blanket application of stare decisis and to warrant a fresh review of their individual merits,” without any further mention whatsoever of what those differences might be.  Again, for good reason:  the statutes upheld last weeek, in their aim, their effect, and even in much of their language, are indistinguishable from the ones struck down in 1999. 

Since the Sheward decision, business groups have spent millions of dollars on Supreme Court races.  During the 2006 election, for example, candidates for the two Supreme Court seats received over $2 million in campaign contributions, with a quarter of that money coming from the health and insurance industries.  Chief Justice Moyer has of late lamented that state of affairs, acknowledging that it creates the appearance of justice being for sale.  Moyer wrote the majority opinion in Arbino; almost a decade earlier, he had written the dissent in Sheward.  By 2006, three of the four justices who’d been in the majority in Sheward had been replaced; all three voted with the majority in Arbino.

One might suggest that Chief Justice Moyer’s concerns about the willingness of contributors to throw money at Supreme Court candidates might be solved if those contributors did not believe that the Court’s decisions in a particular area like tort reform could be reversed simply by changing the composition of the Court.  The lip service the Court paid to stare decisis last week did nothing to dissuade anyone from that belief.