HAVE THE WINDS OF CHANGE ARRIVED AT THE SUPREME COURT OF OHIO? Colleen A. Mountcastle cmountcastle@gsfn.

com The following is a discussion of selected cases decided by the Supreme Court in the last decade which, when they were decided, represented significant changes or re-direction in Ohio law. Some of the cases, but not all, were decided by a slim 4-3 vote. With recent changes in the composition of the justices sitting on the Ohio Supreme Court, it may be possible to secure modification (if not a reversal) to some of these controversial decisions. I. Summary Judgment - Legal Malpractice Claims A. In Vahila v. Hall (1997), 77 Ohio St.3d 421, the Ohio Supreme Court made it more difficult for lawyers to obtain summary judgment in their favor on legal malpractice claims. In Vahila, the trial court and court of appeals determined that the defendant-attorneys were entitled to summary judgment because the clients failed to establish that they sustained any damages proximately caused by the alleged negligent acts and/or omissions of the attorneys or the law firm. In granting summary judgment in favor of the lawyers, the trial court further determined that the plaintiffs failed to establish that, but for the negligence of their attorneys, they would have been successful in the underlying actions. On appeal, the Ohio Supreme Court held that the attorneys and the law firm were not entitled to summary judgment in their favor. The clients were not required to establish that they would have been successful in the underlying civil, criminal, and administrative matters giving rise to the malpractice action. The Ohio Supreme Court determined that the plaintiffs filed appropriate evidentiary materials in opposition to the motion for summary judgment, including affidavits from two expert witnesses, which stated that the experts had reviewed the events surrounding the malpractice action and had determined that the defendant-attorneys had breached various duties owed to the plaintiffs and that such negligence had been the direct and proximate cause of plaintiffs alleged damage. The Ohio Supreme court determined that these affidavits effectively raised triable issues of fact not susceptible to summary judgment.

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(Opinion by Douglas, Resnick;, F.E. Sweeney and Pfeifer and Lundberg Stratton concur; Moyer and Cook dissent.) II. Summary Judgment - Appeal of Denial Following Trial A. In Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, the Ohio Supreme Court held: Any error by a trial court in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made. In Continental, an employee was involved in an accident while operating a van owned by his employer. The passengers were injured, and the employer's insurer denied coverage. The passengers filed suit against the insurer, and the insurer filed a motion for summary judgment. The trial court denied the motion for summary judgment. At trial, genuine issues of material fact were presented as to whether the employee had acted outside the scope of the permission his employer gave him for use of the van. Had he not had permission, the insurance policy would have excluded coverage. The jury returned a verdict in favor of the passengers, and the insurer appealed. The appellate court reversed on the ground that the summary judgment motion should have been granted, finding that it could only review the denial taking into consideration the evidence before the trial judge when the motion was made. The court disagreed and found that, when later evidence presented at trial clearly established a genuine issue of material fact, the earlier denial of the summary judgment motion was harmless error. Thus, the court found that the judgment of the trial court in favor of the passengers should have been reinstated. (Opinion by Douglas; Moyer, A.W. Sweeney, F.E. Sweeney, Pfeifer, and Resnick concur; Wright dissents). III. Summary Judgment - Affidavit Conflicting w/Prior Deposition Testimony A. In Turner v. Turner (1993), 67 Ohio St.3d 337, 617 N.E.2d 1123, the Ohio Supreme Court held that: When a litigants affidavit in support of his or her motion for summary judgment is inconsistent with his or her earlier deposition

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testimony, summary judgment in the partys favor is improper because there exists a question of credibility which can be resolved only by the trier of fact. Id. at paragraph one of syllabus. This bright-line rule with respect to affidavits has been criticized with respect to its failure to take into account the sincerity of affidavits. See, i.e., Cleve. Clinic Foundation v. Commerce Group Benefits, Inc., 2002 Ohio 1414. Thus, this issue may be ripe for review. (Opinion by Moyer; A.W. Sweeney; Douglas, Pfeifer, F.E. Sweeney and Resnick concur; Wright concurs in part and dissents in part.) IV. Premises Liability - The Open and Obvious Doctrine A. The long standing open and obvious doctrine was challenged by the Ohio Supreme Court in Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677. Prior to Texler, if a defect was obvious enough for a reasonable person to observe, the land owner was not required to warn of the defect because it was so obvious. Thus, the injured party would not have a claim for injury because there was no duty. The issue of causation need not be reached under this doctrine, thus, summary judgment was readily granted to premises owners. In Texler, a pedestrian was injured when she tripped over a bucket which a store owner placed on a public sidewalk to prop open the door leading to his shop. The Texler court applied a comparative negligence standard and found that summary judgment in favor of the store owner was inappropriate unless the trier of fact found that the pedestrian was more than fifty percent negligent. In Schindler v. Gales Superior Supermarkets (2001), 142 Ohio App.3d 146, the Eighth Appellate District expanded the holding of the Ohio Supreme Courts decision in Texler, and determined that a comparative negligence standard applied to a premises liability action. The Schindler court determined that summary judgment should not be granted pursuant to the open and obvious doctrine until after a determination is made that the plaintiffs negligence in disregarding the hazard is greater than that of the premises owners negligence in creating the hazard. In Armstrong v. Best Buy Co. 2001 Ohio 1934, the Ninth Appellate District denounced the Schindler decision, and relying on the open and obvious doctrine, upheld summary judgment in favor of a store owner on facts almost identical to the Schindler case. (Both Schindler and Armstrong involved on premises injuries,

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where the plaintiffs tripped over low railings which were used to corral shopping carts.) The Ohio Supreme Court has accepted the appeal of Armstrong and will soon be determining whether Texler abrogates the open and obvious doctrine as a complete bar to recovery and instead requires a comparative negligence standard be applied in premises-owner cases.1 V. Premises Liability - Attractive Nuisance Doctrine Applied to Adult Rescuer A. In Bennett v. Stanley (2001), 92 Ohio St.3d 35, 748 N.E.2d 41, the Supreme Court adopted the doctrine of attractive nuisance in Restatement of the Law 2d, Torts (1965), 339: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to After these materials were completed, the Ohio Supreme Court on June 4, 2003 decided in Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573 that the open and obvious doctrine remains viable in Ohio. The holding follows existing Ohio law (see Sidle v. Humphrey (1968), 13 Ohio St.2d 45), and settles the issue of whether the open-and-obvious doctrine is a complete bar to plaintiffs recovery or whether it can be considered only in the context of a plaintiffs comparative negligence. The Court decided that where a danger is open-and-obvious, a landowner owes no duty of care to individuals lawfully on the premises. Justice Francis E. Sweeney, a traditional liberal, wrote the opinion. He was joined by Chief Justice Moyer, and Justices Resnick, Wise (from the 5th Appellate District, sitting by assignment for Justice Cook who has ascended to the U.S. Court of Appeals for the Sixth Circuit), Lundberg, Stratton and OConnor.
1

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children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. The Supreme Court further ruled that while the doctrine is not ordinarily applicable to adults, it may be used by an adult who is injured while rescuing a child from the attractive nuisance. (Opinion by Pfeifer; Douglas, Resnick and Sweeney concur; Moyer concurs in part and dissents in part; Cook and Stratton dissent). V. Excluding Workplace Intentional Torts from Coverage under Commercial Liability Insurance Policies: A. In Wedge Products, Inc. v. Hartford Equity Sales Co., 31 Ohio St.3d 65, 509 N.E.2d 74 (1987), the Ohio Supreme Court found that when a policy defines an occurrence as an accident neither expected nor intended from the standpoint of the Insured, coverage for Ohio substantial certainty workplace intentional torts is precluded under the policy. Since the holding in Wedge, courts have found that the definition of occurrence as an accidental happening or an accident without any modifying language, is sufficient to preclude coverage for Ohio substantial certainty workplace intentional torts. However, other courts have found that applying the more recent Harasyn v. Normandy Metals, 49 Ohio St. 3d 173, 551 N.E. 2d 962 (1990), creates the opposite result. In Harasyn, the Ohio Supreme Court determined that public policy does not preclude employers from obtaining insurance for substantial certainty workplace intentional torts. The Harasyn court then distinguished the Wedge Products decision, and found coverage under the employers insurance policy. The policy language at issue in Harasyn afforded coverage for bodily injury by accident or disease sustained by any employee of the Insured arising out of and in the course of employment by the Insured ***. However, the Harasyn policy did not include the neither expected nor intended from the standpoint of the Insured language found in the Wedge Products case. Further, unlike the Wedge Products policy, which specifically excluded coverage for claims by employees arising out of the course of their employment, the Harasyn policy specifically covered injuries sustained while in the course of employment. The result of Wedge Products and Harasyn has been inconsistent lower appellate court decisions. Harasyn has been applied to find coverage for substantial

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certainty intentional torts under employers policies, despite the fact that policy definitions defining covered occurrences as accidents cannot logically include intentional torts. See, Sifco Industries Inc. v. Safety Natl Casualty, 2002 Ohio 6511. On the other hand, Wedge Products has been applied to find that the terms accidental event and accidental happening have preclude coverage for employer intentional torts. Sanborn Plastics Corp. v. St. Paul Fire & Marine Ins. Co., 84 Ohio App.3d 302, 616 N.E.2d 988 (1993) and Constantin Budacov, et al. v. Thomarios Painting Co., Inc., et al.,(July 16, 1995), Summit County No. 16962, 1995 Ohio App. LEXIS 3035, discretionary appeal denied, 74 Ohio St. 3d 1476, 657 N.E.2d 783. We have filed a motion to certify a conflict and memorandum in support of jurisdiction with the Ohio Supreme Court on this issue in Sifco Industries Inc. v. Safety Natl Casualty, 2002 Ohio 6511. The Ohio Supreme Court has recently accepted this case for review. VI. Damages on Bad Faith Claims A. In Motorist Mutual Ins. Co. v. Said (1992), 63 Ohio St.3d 690, the Ohio Supreme Court added the element of intent to the tort of bad faith. Specifically, the Said court held that [a] cause of action arises for the tort of bad faith when an insurer breaches its duty of good faith by intentionally refusing to satisfy an insured's claim where there is either (1) no lawful basis for the refusal coupled with actual knowledge of that fact or (2) an intentional failure to determine whether there was any lawful basis for such refusal. Intent that caused the failure may be inferred and imputed to the insurer when there is a reckless indifference to facts or proof reasonably available to it in considering the claim. See Id. at paragraph 3 of syllabus (emphasis added.) The Court further determined that [n]o lawful basis for the intentional refusal to satisfy a claim means that the insurer lacks a reasonable basis in law or fact for refusing to satisfy the claim. Where a claim is fairly debatable the insurer is entitled to refuse the claim as long as such refusal is premised on a genuine dispute over either the status of the law at the time of the denial or the facts giving rise to the claim. See Id. at paragraph 4 of syllabus. Justice Douglas, who is no longer a member of the Ohio Supreme Court, authored a dissent, arguing that the bad faith standard set forth by the majority was too strict, and that the standard should be that [a]n insurance company fails to exercise good faith in the processing of a claim of its insured when its refusal to pay the claim is not predicated upon circumstances that furnish reasonable justification for such refusal. See Id. at 702. Justice Douglas also argued that the insured should be

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entitled to his litigation costs due to the finding of bad faith. Two years later in Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, Said was overruled. The reasonable justification standard was adopted, and the element of intent was removed from the tort of bad faith. See Id. at paragraph 1 of syllabus. Further, the Zoppo court determined that R.C. 2315.21(C)(2), the statute requiring the trial court to set the amount of punitive damages, even in jury trials, violates the right to trial by jury under Section 5, Article I of the Ohio Constitution. See Id. at paragraph 2 of syllabus. (Opinion by F.E. Sweeney; Resnick and Douglas concur; A.W. Sweeney concurs in the syllabus and judgment only, Pfeifer concurs in part and dissents in part; Moyer and Wright dissent). VI. Scope of Discovery in Bad Faith Actions A. In a 4-3 split decision authored by Justice Douglas, the Ohio Supreme Court held in Boone v. Vanliner Ins. Co. (2001), 91 Ohio St.3d 209, that [i]n an action alleging bad faith denial of insurance coverage, the insured is entitled to discover claims file materials containing attorney-client communications related to the issue of coverage that were created prior to the denial of coverage. Id. at syllabus. The Boone decision was an expansion of Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St. 3d 638, (Douglas, J.), in which, after receiving a substantial jury award for a medical malpractice claim, the plaintiffs sought prejudgment interest as authorized by R.C. 1343.03(C). R.C. 1343.03(C) requires the prevailing party of the underlying case to prove, among other things, that the opposing party did not make a good faith effort to settle the case. With regard to this prong of R.C. 1343.03(C), Moskovitz sought to clarify the extent of a plaintiff's right to discovery of the malpractice insurer's claims file in light of the attorney-client privilege and the workproduct doctrine. The Moskovitz court stated that "documents and other things showing the lack of a good faith effort to settle by a party or the attorneys acting on his or her behalf are wholly unworthy of the protections afforded by any claimed privilege." Id. at 661. Thus, Moskovitz held that in an R.C. 1343.03(C) proceeding for prejudgment interest, neither the attorney-client privilege nor the so-called work product exception precludes discovery of the contents of an insurer's claims file. The only privileged matters contained in the file are those that go directly to the theory of defense of the underlying case in which the decision or verdict has been rendered." Id. at paragraph three of the syllabus.

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The Boone decision did note that bifurcation may be appropriate in cases where the insurers would suffer prejudice absent bifurcation. Specifically, the Ohio Supreme Court stated that if the trial court finds that the release of the claims file will inhibit the ability of the insurer to defend itself on the underlying UM/UIM claim, then the trial court may issue a stay of the bad faith claim and related production of discovery pending the outcome of the underlying claim. (Opinion by Douglas; Sweeney, Pfeifer, and Resnick concur; Moyer, Cook and Lundberg Stratton dissent). VII. Medical Malpractice - Agency by Estoppel A. In a 4-3 decision in Clark v. Southview Hospital and Family Health Center (1994), 68 Ohio St. 3d 435; 628 N.E.2d 46, the Ohio Supreme Court set forth a two part test for agency by estoppel as follows: A hospital may be held liable under the doctrine of agency by estoppel for the negligence of independent medical practitioners practicing in the hospital when: (1) it holds itself out to the public as a provider of medical services; and (2) in the absence of notice or knowledge to the contrary, the patient looks to the hospital, as opposed to the individual practitioner, to provide competent medical care. (Albain v. Flower Hospital (1990), 50 Ohio St.3d 251, 553 N.E.2d 1038, paragraph four of the syllabus overruled). 68 Ohio St. 3d 435 (syllabus). The Clark court overruled paragraph four of the Albain syllabus which had been decided a mere four years prior to the Clark decision. In order for a hospital to be held liable for the negligence of independent contractors, Albain required a plaintiff to show that the hospital made representations leading the plaintiff to believe that the physician was an agent of the hospital, and that the plaintiff relied on this agency relationship. Albain, 50 Ohio St.3d 251, at paragraph four of syllabus. Justice Moyer wrote a strongly worded dissent, arguing that the Clark decision swung the pendulum so far to the otherside as to make a hospital the virtual insurer of its independent physicians. (Opinion by Resnick; Douglas, F.E. Sweeney and Pfeifer concur; Moyer, A.W. Sweeney and Wright dissent).

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VII.

Medical Malpractice - Lost Chance of Survival A. The loss of chance of survival theory allows a plaintiff, who was already suffering from some disease or disorder at the time the malpractice occurred, to recover for his or her "lost chance" even though the possibility of survival or recovery is less than probable. In Cooper v. Sisters of Charity of Cincinnati, Inc. (1971) 27 Ohio St.2d 242, Ohio rejected the loss-of-chance theory in favor of adhering to the traditional standard of causation, which requires proof, in terms of probability, that defendant's conduct proximately caused plaintiff's injuries or death. However, in a 4-3 split decision, the Supreme Court of Ohio overruled the Cooper decision and adopted the loss of chance theory of recovery in Roberts v. Ohio Permanente Medical Group, Inc., (1996), 76 Ohio St.3d 483, 484, 668 N.E.2d 480, holding at syllabus: 1. In order to maintain an action for the loss of a less-than-even chance of recovery or survival, the plaintiff must present expert medical testimony showing that the health care providers negligent act or omission increased the risk of harm to the plaintiff. It then becomes a jury question as to whether the defendants negligence was a cause of the plaintiffs injury or death. The amount of damages recoverable by a plaintiff in a lossof-chance case equals the total sum of damages for the underlying injury or death assessed from the date of the negligent act or omission multiplied by the percentage of the lost chance. To ascertain the amount of damages in a case of lost chance of survival or recovery, the trial court must instruct the trier of fact to consider the expert testimony presented and (1) determine the total amount of damages from the date of the alleged negligent act or omission, including but not limited to lost earnings and loss of consortium; (2) ascertain the percentage of the patients lost chance of survival or recovery; and (3) multiply that percentage by the total amount of damages.

2.

3.

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(Opinion by Sweeney; Douglas, Pfeifer, and Resnick concur; Moyer concurs in part and dissents in part; Cook and Stratton dissent). VII. Parent-Child - Loss of Consortium A. Gallimore v. Childrens Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 617 N.E.2d 1052 Jo Ann Gallimore brought suit against Children's Hospital Medical Center on behalf of her 11-month-old son, Joshua, for alleged medical malpractice causing her son to become permanently deaf in both ears. She also brought a claim on her own behalf for the loss of consortium of her child. At trial, Joshua was awarded damages for his own personal injuries and Gallimore was awarded damages for the loss of the society of her child. The Court of Appeals affirmed in part, reversed in part, and remanded for a new trial. In a 4-3 split decision authored by Justice Douglas, the Supreme Court granted jurisdiction to specifically decide whether the parents of a minor child who is injured by a third-party tortfeasor may recover damages in a derivative action of loss of filial consortium. The Court held that parents do have such a right and that this cause of action has never been barred by the courts of Ohio. The Court then went to overrule High v. Howard, 64 Ohio St. 3d 82 (1992), and held that a minor child has a cause of action for loss of parental consortium against a third-party tortfeasor who negligently or intentionally causes physical injury to the child's parent. Id. at paragraph two of syllabus. (Opinion by Douglas; A.W. Sweeney, F.E. Sweeney, and Pfeifer concur; Moyer, Wright and Wolfe dissent). VIII. Prejudgment Interest on Settlements In Hartmann v. Duffey, 95 Ohio St.3d 456, 2002-Ohio-2486, 768 N.E.2d 1170, the Ohio Supreme Court was asked to construe Ohio. Rev. Code Ann. 1343.03(A), (B) and determine whether a plaintiff who entered into a confidential settlement agreement that was not reduced to judgment was entitled to interest on the settlement, and, if so, when that interest began to accrue. The Hartmann case was based upon a confidential settlement agreement that was reached on the first day of trial in a medical malpractice case. In Hartmann there was no question raised by any party as to when the final terms of the settlement were agreed upon.

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The defendant-doctor argued that Ohio. Rev. Code Ann. 1343.03(B) was controlling and since no judgment, decree, or order was rendered, the patient was precluded from obtaining interest. The Hartmann court rejected this argument. Finding that based upon the plain language of the statute, a settlement that had not been reduced to judgment clearly fell within the purview of 1343.03(A). Thus, the patient was entitled to interest. As such, 1343.03(B) had no application to the case. From the language of 1343.03(A), the date of settlement was the accrual date for interest to begin to run. At that point, a settlement debt was created, and a plaintiff became a creditor entitled to the settlement proceeds. Thus, the plaintiff was entitled to be compensated for the lapse of time between accrual of that right (the date of settlement) and payment. (Opinion by Sweeney; Moyer, Douglas, Pfeifer, Resnick concur; Cook and Stratton dissent). In Cohara v. Consol. Rail Corp., 96 Ohio St. 3d 1511; 2002 Ohio 4950, our office argued to the Ohio Supreme Court that the holding in Hartmann be clarified because the Hartmann decision does not give guidance to lower courts in situations where the plaintiff causes the delay in the distribution of settlement proceeds. A decision has not yet been rendered. IX. Product Liability - Subsequent Remedial Measures The issue in McFarland v. Bruno Mach. Corp. (1994), 68 Ohio St.3d 305, 626 N.E.2d 658 was whether Evid. R. 407, prohibiting evidence of subsequent remedial measures, is applicable in an action for strict liability in tort. The Court held that Rule 407 does not apply and distinguished an action based on strict liability in tort from an action based on negligence. The court held that, by its very terms, Ohio R. Evid. 407 excluded evidence of subsequent remedial measures only when "negligence" or "culpable conduct" was alleged. Since negligence was not an issue in strict liability cases, the court reasoned that the rule had no applicability. Thus, the court held that Rule 407 was not applicable to products liability actions premised upon strict liability in tort. (Opinion by Douglas; A.W. Sweeney, F.E. Sweeney, Moyer, Pfeifer, and Resnick concur; Wright dissents). X. Statute of limitations - Discovery Rule In Norgard v. Brush Wellman, Inc., 95 Ohio St.3d 165, 2002-Ohio-2007, 766 N.E.2d 977, Mr. Norgard was diagnosed with chronic beryllium disease in 1992, as a result of his workplace exposure to the chemical beryllium. The Industrial Commission and Bureau of Workers Compensation permanently disabled him due to this condition. In 1995, after conducting his own research, Mr. Norgard learned the basis of prior claims that had been

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brought against his former employer, Brush Wellman Inc. He filed suit within two years of learning this information in 1995. The trial court and Court of Appeals both granted summary judgment in favor of Brush Wellman, based on the R.C. 2305.10 Statute of Limitations. The Supreme Court of Ohio reversed, holding that even though he knew he was sick in 1992, the statute of limitations did not begin to run until Mr. Norgard learned of the facts necessary to prove the employer intentional-tort claim in 1995. This holding significantly altered how the two-year Statute of Limitations is calculated in employer intentional-tort cases. (Opinion by F.E. Sweeney; Douglas, Pfeifer, and Resnick concur; Moyer, Cook and Lundberg Stratton dissent). XI. Tort Reform Legislation - Constitutional Challenges A. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062 Relators, lawyers' association, labor union, and an Ohio citizen, filed an action in prohibition and mandamus against respondent judges in their official and representative capacities. Relators asserted claims challenging the constitutionality of Am. Sub. H.B. 350 (Ohio 1997). The court allowed the suit to proceed as a public action where the object of the action was to procure the enforcement or protection of a public right. Next, the court ruled that the civil justice reform legislation was unconstitutional. In accordance with its duty to preserve judicial integrity and independence, the court found that the legislation intruded upon judicial power by declaring itself constitutional, by reenacting legislation struck down as unconstitutional, and by interfering with the court's power to regulate court procedure. As a result, the legislation violated the Ohio constitutional doctrine of separation of powers. Furthermore, the court held that the legislation was unconstitutional in that it violated the one-subject provision of the Ohio Const. art. II, 15(D) and that severability was not appropriate. Thus, the court declared the act unconstitutional in toto. B. Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d 421, 644 N.E.2d 298 The plaintiff filed a medical malpractice action and obtained a unanimous jury verdict in the amount of $2,781,710. (The jury awarded $800,000 as past damages, $1,396,125 compensatory damages for pain and suffering, and $585,585 for lost wages.) The defendants filed a motion for periodic payment of future damages

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pursuant to R.C. 2323.57(C). However, the trial court overruled defendant's motion and found R.C. 2323.57 unconstitutional. The appellate court unanimously affirmed the trial court's judgment. The Supreme Court ruled that R.C. 2323.57(C) required a court to order that any future damages award exceeding $200,000 be paid in periodic installment payments, rather than as a lump sum, upon entry of judgment. Moreover, R.C. 2323.57(F) provided that the total amount paid under this division shall not exceed the amount of the judgment. In Ohio, a plaintiff is entitled to an award of damages to compensate him for losses which he is reasonably certain to incur in the future. However, Ohio common law requires that future damage awards must be reduced to present value. Thus, a jury's verdict represents the present value of a plaintiff's actual damages. The application of R.C. 2323.57 results in the trial court further reducing a jury's award and depriving a plaintiff of the benefits of investing. This application invades the province of the jury to determine damages and violates Section 5, Article I of the Ohio Constitution. Further, this application is inconsistent with Section 16, Article I of the Ohio Constitution which guarantees every person who suffers a legally compensable injury "remedy by due course of law." C. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504 In Sorrell, 69 Ohio St. 3d 415 (1994), the Ohio Supreme Court held that R.C. 2317.45 violated the Ohio Constitution, and was unconstitutional in toto. Id. at 427. The court first examined the statute in light of Article I, Section 5 of the Ohio Constitution which provides the right to a jury trial. Id. at 421-22. The court noted that "consistent with R.C. 2317.45, [courts may] enter judgment in disregard of the jury's verdict and thus violate the plaintiff's right to have all the facts determined by the jury, including damages." (i.e., pain and suffering damages could be awarded by the jury, which would be eliminated due to the receipt of workers' compensation benefits even though workers' compensation does not provide for pain and suffering). Id. at 422. Therefore, the court held that "O.R.C. 2317.45 encroaches upon the fundamental and inviolate right to trial by jury, and therefore is unconstitutional under Section 5, Article I of the Constitution." Id. The court then analyzed R.C. 2317.45 in light of Article I, Section 16 of the Ohio Constitution which provides that every person who sustains a legal injury "shall have remedy by due course of law." Id. at 422-24. Any impairment of a plaintiff's remedy

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will be considered unconstitutional "unless it is shown to be necessary to promote a compelling governmental interest." Id. at 423. The court expressed doubt as to whether R.C. 2317.45 addressed its goal of "reducing the causes of the so called insurance crisis ... given the paucity of credible empirical evidence that a crisis existed...." Id. Additionally, the means employed to attain the goal of eliminating double recovery were "irrational and arbitrary" since the statute failed to "take into account whether the collateral benefits to be deducted [were] within the damages actually found by the jury." Id. at 423-24. Therefore, the court held that R.C. 2317.45 violated Article I, Section 16 of the Ohio Constitution in that it did not accord due process to tort victims. Id. at 424. Finally, the court analyzed R.C. 2317.45 under the Equal Protection Clause of Ohio's Constitution. Id. at 424-26. Specifically the court looked at 2317.45 in light of R.C. 2305.27 which provides a different collateral source rule for medical malpractice claims. Id. Because the two statutes treated "similarly situated people differently based upon an illogical and irrational basis" the court held that R.C. 2317.45 also violated Article I, Section 2 of the Ohio Constitution. Id. at 425-26. D. Morris v. Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d 765 In reviewing the certified questions, the court held that Ohio Rev. Code Ann. 2307.43 was unconstitutional because it set a $ 200,000 cap on general damages that could be awarded for medical malpractice. Regardless of the intent of the statute, there was no evidence that the damage cap had been a factor in medical malpractice insurance rate setting, that is, there was no reasonable relationship to the statue and the legislative intent. The court found it irrational and arbitrary to impose the cost of the intended benefit to the general public solely upon a class consisting of those most severely injured by medical malpractice. Having found the statute unconstitutional on due process grounds, the court stopped short of finding an equal protection defect despite disparate treatment within the class, because the "any conceivable set of facts" test supported a rational-basis argument for the distinctions made for that statute. Ohio Rev. Code Ann. 2305.27, regarding limits on the collateral source rule, was constitutional and 2305.27 was intended to reach certain future payments regarding worker's compensation that were capable of being calculated with reasonable certainty.

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