cross posted from The Tortellini:
Much of the media coverage of the nasty state judicial elections in recent years has focused on the millions of dollars in campaign contributions that have come from parties appearing before the courts. But reporters and watchdog groups, I think, are often asking the wrong questions about what the donors get for their money. While it's certainly unseemly when, as the New York Times' Adam Liptak reported (sub req), judges vote with their contributors in big cases, state supreme courts are also legal policy making bodies. Their decisions affect cases that never get heard in their chambers, as well as the fate of legislation, most notably, bills enacting tort reform. The fate of such laws can affect not just one defendant but entire industries.
So it's no surprise that the states with the most expensive judicial elections in recent years are those where the courts previously have struck down, or would likely strike down, tort reform laws, for violating constitutional protections guaranteeing equal treatment, access to the courts, and the right to a civil jury trial. (These include Illinois, Mississippi, West Virginia, Georgia and Ohio.)
Now that the U.S. Chamber of Commerce has succeeded in most of its attempts to stack state supreme courts with pro-tort reform judges, we're seeing the cynical results. Take the case of Ohio.
In 1996, the Ohio state legislature passed a law capping noneconomic damages in most tort cases at $500,000 per plaintiff. Three years later, the Ohio supreme court struck down the law as unconstitutional. The decision prompted national business groups to pour money into Ohio's judicial elections, using vicious attack ads to swing the court from more moderate to extremely conservative.
In 2004, knowing full well that it would be unconstitutional, the legislature nonetheless passed a bill that was virtually identical to the 1996 law, except it was more restrictive than the old one, with a $350,000 cap on noneconomic damages in most tort cases. But legislators seemed pretty confident that the new business-friendly Supreme Court would let it fly, even though doing so would overturn years of established precedent in the state. (The state supreme court had also struck down a cap on med-mal damages in 1991.)
Trial lawyers have challenged the new law in a lawsuit over injuries from Johnson & Johnson's Ortho Evra birth control patch. The plaintiff, Melisa Arbino, landed in the hospital in 2005 suffering with life-threatening blood clots in her brain and lungs. One of the clots remains lodged in her brain, with potentially life-threatening complications, just the kind of thing that noneconomic damages are supposed to compensate for. Arbino alleges that the patch, which had much higher levels of estrogen than regular birth control pills, caused her injuries. A federal court recently kicked the case back to the state, where the new pro-tort reform judges will get a shot at it.
This is a huge case, and practically every major industry group has filed briefs in the case. Poor Arbino is up against all of corporate America: big Pharma, the National Association of Manufacturers, the U.S. Chamber of Commerce, the American Chemistry Council, the American Tort Reform Association, the National Association of Independent Business, numerous insurance industry and hospital and medical groups, and a handful of other well-funded tort reform groups have all weighed in.
Coming to Arbino's aid, besides the Ohio Academy of Trial Lawyers, is the Ohio chapter of the National Organization of Women, the NAACP, and that big-money group, Mothers Against Drunk Driving.
What are the odds that the new court will stick by the old precedent and find the tort reform law unconstitutional? Not much, I'm afraid. According to Liptak, Ohio plaintiff's lawyers won only 17 percent of their cases after the conservative takeover, compared with 64 percent before 2003. If the new damage cap is allowed to stand, most of those cases probably won't even make it to the court to lose there. The chamber's money will certainly look like a wise investment indeed.