Thursday, February 16, 2012

Ohio Supreme Court Decision Protects Drunk Drivers And Other Miscreants In Lawsuits

The world is full of miscreants. Hopefully most of us will not cross their paths, but it's a long (and growing) list: pharmaceutical companies and product manufacturers who market and sell dangerous drugs and products and who are slow to recall them even though they know they are harmful. Nursing homes that injure or kill elderly patients and then alter records in an effort to bury their mistakes. Trucking companies who hire incompetent drivers with extensive criminal or accident histories in order to put a body in an idle truck. More commonly, every day drunk, impaired, and distracted drivers maim or kill innocent Ohioans.

Every one of these bad actors and their insurance companies were just cut a huge break by our Ohio Supreme Court with a recent decision. This week, The Ohio Supreme Court upheld a "tort reform" law passed by The Ohio Legislature in 2005 that prohibits introducing evidence of a defendant's willful or bad conduct during the initial phase of a lawsuit. How does this decision work in the real world and why should you care?

Imagine being creamed by a drunk driver. He puts you in the hospital, and you're left with long term injuries, surgeries, therapy lasting months or years, lost wages, and a life that is now not normal. After getting jerked around for months on your own by his insurance company, they make you an insulting offer.

You hire a competent personal injury lawyer who files a lawsuit on your behalf. The insurance company lawyer files an answer denying that their driver was drunk. Time and money is spent in litigation proving that the driver was in fact drunk. The insurance company continues to take a hard line stand, and the case goes to trial.

On the day of trial, the insurance company lawyer admits the driver was at fault but makes no mention of the fact that his client was drunk. Common sense, logic, and simple fairness would dictate that you can introduce evidence of the driver's intoxication for the jury's consideration in determining your damages, right?

Wrong. Not in Ohio. Not any more. According to this recent decision, your trial is now chopped up or "bifurcated" into two parts. In the first phase, the jury hears no evidence of the driver's intoxication. For all the jury knows, the driver was a responsible citizen heading home from church or the grocery store. They're not allowed to hear that the driver had consumed 8 beers and had bought another 12 pack when he left the store. And they're not shown the police videotape of him staggering and falling down on the berm of the road, or the toxicology report showing that he was two times over the legal limit.

After the jury determines your damages in the now sterile and non-transparent initial phase of the trial, only then can you introduce evidence of his intoxication, in order to determine "punitive" damages against him.

This is a HUGE victory for insurance companies who pushed for this law, as I wrote about here. Even more egregious, it gives a big break to drunk drivers, who can now sit at trial smugly, knowing that their awful choice to drive drunk will never see the light of day for most of the trial.

Imagine being a drunk driving victim and sitting in trial listening to an untrue and sterile version of the facts of your case. It's a slap in the face to all drunk driving victims, and it's no wonder I hear people frequently rail that our justice system makes no sense.

And this law and decision makes no sense. The Supreme Court passed on an opportunity to strike the law as unconstitutional as in conflict with Pre-2005 Rules Of Procedure that gave judges discretion to simply allow one trial and let all the evidence in at once, including evidence of intoxication.

Instead, The Supreme Court rubber stamped the law and essentially sent the message that "whatever The Ohio Legislature passes is fine with us." So much for The Constitution. Did they intend to protect these bad actors with this ruling? No. But this is the practical reality of their decision.

So how's all this "tort reform" working for you now that our system has seen fit to give a legal break to drunk drivers, medical institutions that alter records, a lot of other bad actors, and their insurance companies' bottom lines? Sorry but this one is hard to swallow. So much for fairness and a level playing field when you walk into court.

In the near future, I'll be getting a call from another drunk driving victim. Perhaps someone who was in favor of "tort reform" and "cracking down on all those frivolous lawsuits." And then I will try to explain this gem to them. And the reaction will be typical: "Well, that's not fair. My life has been changed by a drunk driver and these laws give a break to the drunk who hit me? How is that justice?"

My response is always the same. "It's not, but this is what you voted for." You know the old saying "Be careful what you wish for--you might just get it?" Well, you just got it.

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