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Punting on punitive damages

The Supreme Court's decision last week in Barnes v. University Hosp. dealt with two widely disparate subjects, at least one of which will probably not matter to the great majority of the people in this state.  It does provide an interesting look at how the court works, though, and how it deals with certain issues.  Or doesn't deal with them, as the case may be.

The first aspect of the case involved private judges under RC 2701.10.  The statute, passed in 1984 and never since amended, allows parties try their cases to a retired judge.  It costs some coin, and therefore its use is limited cases in which the parties have a lot of money, and a lot more of it is on the line.  But the advantage is that you get your own personal judge:  when you strap the bulging briefcase and four boxes of trial exhibits onto one of your associates' backs and march him Sherpa-like to the courthouse, you do so content in the knowledge that you're not going to get over there only to find that your case has been kicked for the umpteenth time because the judge has to start a kiddy-rape case before speedy trial time runs.

The first issue in Barnes is who can serve as a private judge.  The statute specifies that only a "retired judge" can do so, and the definition of that term provided by the Supreme Court rules is a judge who had at some point been elected to the bench.  This one hadn't; he'd been appointed twice, but never elected.  The court nonetheless decided that he could, in a reasoning process interesting only to those former appointed judges who got bounced the first time they stood for election, and are now looking for a new income stream.  A sidelight of the decision on that subject was the court's apparent conclusion that a private judge can conduct a jury trial as well, despite the fact that the statute clearly provides for no such thing, as the court concluded two years ago in State ex rel. Russo v. McDonnell

Much more interesting was the court's treatment of the 2nd issue raised in Barnes:  punitive damages.  The case was a medical malpractice suit, and a nasty one at that:  Natalie, the plaintiff's decedent, was a 24-year-old who suffered from both mental retardation and epilepsy.  The short version is that she died because her medical aide, who'd been hired by MedLink, one of the defendants, to make sure Natalie didn't pull at her catheter, spent three hours walking around the hospital during Natalie's dialysis.  Natalie, of course, pulled out the catheter during that time, suffered an air embolism, cardiac arrest, and massive brain damage, in that order.  She was eventually taken off life support and died. 

Oh, and then there's the part where the aide wasn't qualified to be one under the MedLink's criteria, because she didn't have a high school diploma, and did have a felony record.  Needless to say, all this didn't impress the jury, so they hit up MedLink for $3 million in punitives, as well as $3 million in compensatory damages.  MedLink took this up, arguing that the award violated its constitutional rights.

Just last week I did a post on the US Supreme Court's decisions on the constitutional ramifications of punitive damages, and if you've got a case involving those, go back and read that post.  As the 2nd syllabus of Barnes makes clear, that's now the law in Ohio:

A court reviewing an award of punitive damages for excessiveness must independently analyze (1) the degree of reprehensibility of the party's conduct, (2) the ratio of the punitive damages to the actual harm inflicted by the party, and (3) sanctions for comparable conduct. (BMW of N. Am., Inc. v. Gore (1996), 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809, applied.)

The court then reversed and remanded the case back to the court of appeals for consideration of the Gore factors.  Justice Pfeiffer dissented on the latter point and argued that it should be assumed that the court of appeals considered Gore.  The only basis for this assertion is that the appellate opinion begins with the usual incantation about the court having made "a thorough review of the record, the briefs, and the arguments of all parties," and Pfeiffer's position is further undercut by the fact that the opinion doesn't even address any of the constitutional arguments, let alone mention any of the Supreme Court decisions.

Still, the court might have been better off resolving the issue itself, rather than kicking it back to the court of appeals.  There's a natural tendency of appellate courts, especially ones at the top of the food chain, to kick things back down to give the lower courts an opportunity to reconsider their decision in light of the higher court's new pronouncement.  The US Supreme Court does that all the time.  In that situation, though, there are issues of federal-state comity; those don't exist hereThe punitive damages issue in Barnes isn't something that has to be further developed in the record, or in the briefings of the parties.  There's no reason to believe that the 8th District Court of Appeals is any more capable of addressing the issue than the Ohio Supreme Court, and having the latter court address it has the added advantage of clarifying the law that the lower courts will now be expected to apply.

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