Briefs and decisions in the Arbino case

DECEMBER 27, 2007 UPDATE. On December 27, 2007, the Ohio Supreme Court ruled in the Arbino case and found:

• The cap on noneconomic damages is constitutional and does not violate right to jury, right to due process, right to remedy, right to open court, or right to equal protection.

• The cap on noneconomic damages does not violate the separation of powers or the single subject rule.

• The cap on punitive damages is constitutional and does not violate the right to jury, the right to due process, the right to remedy, the right to open court, or the right to equal protection.

• The cap on punitive damages does not violate the separation of powers or the single-subject rule.

The Court did not rule on the challenge to the collateral source provision as it found the plaintiff did not have standing to challenge the provision.

Full text of the Court's decision

Summary of the Ohio Supreme Court's Decision in Arbino
December 31, 2007

Background on the Arbino Case

On August 23, 2006 the Ohio Supreme Court certified questions relating to the constitutionality of three provisions of Ohio Senate Bill 80 (“S.B. 80”) – Ohio’s tort reform bill that became effective in 2005.

S.B. 80 enacted tort reform measures applicable to general tort actions (as opposed to S.B. 281’s tort reform measures specific to medical malpractice claims). Hundreds, if not thousands, of cases have been filed in which a plaintiff has challenged the constitutionality of one or more provisions of S.B. 80. In most of these cases, the constitutional “challenges” are only allegations in the complaint and the trial courts have not yet addressed the issue of constitutionality of any specific statute.

A recent development in Arbino v. Johnson & Johnson (Case No. 2006-1212) has resulted in the Ohio Supreme Court agreeing to address the constitutionality of three important provisions of S.B. 80, possibly before any trial court decision on this subject.

The Arbino case, which involves the Ortho Evra Birth Control Patch, is before Judge Katz (U.S. District Court for the Northern District of Ohio) pursuant to a multi-district litigation order that transferred hundreds of cases based on alleged defects of this product to Judge Katz. Plaintiff Arbino filed a motion for partial summary judgment in federal district court seeking a ruling on the constitutionality of several provisions of S.B. 80. In lieu of deciding the motion, Judge Katz entered a certification order asking the Ohio Supreme Court to decide the constitutionality of the provisions at issue.

The Ohio Supreme Court agreed to address the following provisions:

The non-economic damages limitation included in ORC §2315.18;

The collateral source provision included in ORC §2315.20; and

The punitive damages limitations included in ORC §2315.21.

Plaintiff and her amici filed their briefs on October 24, 2006. The Johnson & Johnson defendants and their amici filed briefs on December 18, 2006. The Ohio Attorney General, on behalf of the State of Ohio, filed briefs on January 8, 2007 and the plaintiff's reply brief was filed January 25, 2007. Oral argument before the Court was held May 1, 2007.

An archived video of the oral argument is available on the Ohio Supreme Court archived arguments page under May 1, 2007.

For more information regarding this case, contact Anne Marie Sferra chair of the Bricker & Eckler appellate group. The Bricker & Eckler appellate group serves as counsel to amici curiae Ohio Alliance For Civil Justice, Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association.