Ohio Supreme Court upholding bifurcated civil tort provisions

The Ohio Supreme Court last Wednesday upheld the state’s 2005 tort reform provision that requires state courts hearing civil tort actions to grant requests for “bifurcation” of trials into two separate stages where claims for compensatory and punitive damages have been asserted. [ See Havel v. Villa St. Joseph, Slip Opinion No. 2012-Ohio-552 ]

The case, a medical malpractice/ wrongful death action, involving a violation of the Ohio Nursing Home Patients’ Bill of Rights stemming from an incident in which a resident recuperating from hip surgery had developed skin ulcers that also required surgery, contracted a bacterial infection of those ulcers following that surgery, and had died several months later as a result of complications from that infection. Plaintiff’s complaint had sought both compensatory and punitive damages, to which he defendants moved to bifurcate the trial into two stages pursuant to ORC. 2315.21(B): an initial stage relating only to the presentation of evidence and determination by the jury as to the recovery of compensatory damages, and, if necessary, a second stage involving the presentation of evidence and determination by the jury with respect to the recovery of punitive damages. Trial court denied the motion to bifurcate without stating a reason.

On appeal, the 8th District Court of Appeals, affirmed the judgment of the trial court, holding ORC. § 2315.21(B) was unconstitutional because it conflicted with Civ.R. 42(B), in violation of the separation of powers required by the Ohio Constitution, Article IV, Section 5(B) and certifying its decision to the Supreme Court as being in conflict with a 2009 decision of the 10th District Court of Appeals, Hanners v. Ho Wah Genting Wire & Cable, 2009 Ohio 6481, in which that court upheld ORC. 2315.21(B) as constitutional.

In its decision Justice Terrence O’Donnell noted that: “...R.C. 2315.21(B) does more than set forth the procedure for the bifurcation of tort actions: it makes bifurcation mandatory. ... By eliminating judicial discretion, R.C. 2315.21(B) creates a concomitant right to bifurcation: because the court cannot deny a request for bifurcation under the specified circumstances, the statute turns a request into a demand for or an entitlement to bifurcation by controlling the outcome. We have previously recognized that a statute may create a right when it contains mandatory language and restricts judicial or agency discretion.”

The Court’s summary continued, “Citing prior court decisions including this Court’s 2006 holding in State ex rel. Loyd v. Lovelady, 2006 Ohio 161, Justice O’Donnell wrote that when the language of a statute does not plainly indicate whether the legislature intended it to be substantive or procedural,it is appropriate for courts to look to uncodified language enacted by the legislature, if any, to determine intent. In this case, he wrote, “(T)he statements made by the General Assembly in the uncodified language of S.B. 80 compel the conclusion that although R.C. 2315.21(B) may be ‘packaged in procedural wrapping,’ it is a substantive law because it creates a right to ‘address potential injustice.’”