By Brian Pokrywka
Ohio tort reform capped non-economic damages at the greater of $250,000, or three times economic loss (maximum of $350,000 per plaintiff).1 Unlike quantifiable economic damages such as medical bills or lost wages, non-economic damages include nebulous categories: pain and suffering, mental anguish, and emotional distress.2
Non-economic damages are “inherently subjective and susceptible to improper inflation,” which potentially create an “improper resolution of civil justice claims,” according to the Legislature, who advised Courts to “rigorously review pain and suffering awards to ensure that they properly serve compensatory purposes and are not excessive.” 3
Certain serious catastrophic injuries were excluded from tort reform caps such as loss of a limb, bodily organ system, or not being able to perform life sustaining functions.4 The final and most litigated exception is a “permanent and substantial physical deformity,” which is undefined with varied interpretations depending on the facts, which will be the focus of this article.
Future anticipated surgery, advanced degeneration, and limitations with household chores are unlikely to trigger the exception.
A future neck surgery that would cause a permanent scar and accelerated spinal degeneration failed to meet the deformity exception in Weldon v. Presley, No. 1:10 CV 1077, 2011 U.S. Dist. LEXIS 95248 (N.D. Ohio 2011). Plaintiff alleged she was unable to run a vacuum, re-arrange furniture, or perform yardwork. The court explained that a physical deformity “must be severe and objective” and a surgical scar is an “incidental scar” similar to scars that many people have “from childhood roughhousing or surgery” and that a small scar was not severe disfigurement. See also Sheffer v. Novartis Pharmaceuticals Corp., No. 3:12-cv-238, 2014 U.S. Dist. LEXIS 184614, at *5 (S.D. Ohio July 14, 2014) (deformity exception did not apply for a broken jaw bone that “would never be perfect” with ongoing pain that required plaintiff to avoid hard, crunchy, or chewy foods).
In Hetrick v. Edward, No. 12CVC07-9190, 2014 Ohio Misc. LEXIS 8921 (C.P. May 9, 2014), the court noted that “deformity” was undefined and cited the dictionary, which suggested “injuries constituting or resulting in objective, visible alterations of the body, especially those affecting a person’s outward appearance.” Plaintiff’s doctor opined she had a 27% partial impairment rating, including “permanent findings” on her spine imaging related to fractures and continued symptoms that would result in “permanent and disabling pain, discomfort, and physical limitations.” The court applied the damages cap and held that “[i]f the legislature meant to exempt injuries resulting in partial impairments or permanent pain and disability from the limitations on non-economic damages, it would have done so.”
Complete loss of vision may meet the deformity exception, if permanent, while diminished vision, eye dryness, or irritation is less likely to meet the exception.
Courts have differed on whether loss of vision constitutes a permanent and substantial deformity. One court deferred to the jury on whether complete blindness in one eye, a “lazy eye,” and a possible future surgery would meet the exception in Lopez v. Brinkman, No. 14CV-11782, 2015 Ohio Misc. LEXIS 14016, at *13-15 (C.P. Sep. 15, 2015) (“complete loss of vision in an eye is most certainly a severe and traumatic injury.”); But see Williams v. Bausch & Lomb Co., No. 2:08-cv-910, 2010 U.S. Dist. LEXIS 62018, 2010 WL 2521753 (S.D. Ohio 2010) (issue of whether loss of eyesight caused permanent functional injury not submitted to jury because evidentiary threshold not met); see also Thompson v. Knobeloch, No. 14CV-4879, 2016 Ohio Misc. LEXIS 6364, at *5-6 (C.P. Aug. 30, 2016) (permanent eye dryness did not constitute a substantial physical deformity).
Several cases have deferred to the jury on whether alleged injuries constituted a permanent and substantial deformity.
The Eighth District recently noted the “inconsistencies amongst the federal cases” in applying the deformity exception in Torres v. Concrete Designs, Inc., 2019-Ohio-1342, 134 N.E.3d 903, ¶ 79 (8th Dist.). The court deferred to the jury on whether the exception applied where plaintiff had an open skull fracture and sinus fracture with several operations. Plaintiff was blind in her eye, had diminished senses, and a brain injury. See also Matzke v. I-Transport, No. CV-2016-02-1008, 2018 Ohio Misc. LEXIS 2834, at *14 (Sep. 6, 2018) (whether an incident “caused [plaintiff] to suffer permanent consequences, such as cognitive and memory deficits, or resulted in a traumatic brain injury, is not for this Court to decide as a matter of law.”).
Severe scarring may create an issue of fact for the jury on whether the deformity exception applies. See Bransteter v. Moore, No. 3:09-CV-2, 2009 U.S. Dist. LEXIS 6692 (N.D. Ohio 2009) (perforated bowel and surgical scar); Cawley v. Eastman Outdoors, Inc., No. 1:14-CV-00310, 2014 U.S. Dist. LEXIS 148194, at *20 (N.D. Ohio Oct. 17, 2014) (scar on the plaintiff’s left hand and thumb, with other surgical scars); White v. Bannerman, 5th Dist. No. 2009CA00221, 2010-Ohio-4846 (surgery to remove glass imbedded in hands and face with anticipated future plastic surgery to eliminate scarring, although tendons in hands were severed with loss of use).
Hardware and metal fixation for orthopedic injuries may create an issue of fact for the jury. See Ross v. Home Depot USA Inc., No. 2:12-cv-743, 2014 U.S. Dist. LEXIS 133507 (S.D. Ohio Sep. 23, 2014) (injuries to knee and shoulder that required hardware to be implanted into plaintiff’s body); Ohle v. DJO, Inc., No. 1:09-cv-02794, 2012 U.S. Dist. LEXIS 140020 (N.D. Ohio Sept. 28, 2012) (Plaintiff lost nearly all her shoulder cartilage, bone had been replaced with a prosthesis, and she had large scars); Sparks v. Meijer, Inc., No. 15CVC-1413, 2016 Ohio Misc. LEXIS 18018, at *6 (C.P. Aug. 9, 2016) (leg injury with three metal rods affixed to plaintiff’s hip with ongoing pain requiring a walker or scooter).
Conclusion
Whether the permanent and substantial deformity exception to the non-economic damages cap applies will depend on the facts of the case. A permanent injury is the starting point but classifying whether injuries are a “substantial deformity” is less clear from current case law. Absent clarity from the legislature, it seems most courts are deferring to the jury.
From the defense perspective, Plaintiffs inherently make subjective complaints to their doctors, which are incorporated into the medical records and amplified at depositions. Determining residual pain versus a permanent injury is no easy task. Moreover, with increased concussion litigation, subjective complaints of memory loss, cloudy thinking, blurred vision, ringing in the ears, and cognitive issues should be critically viewed when alleged by incentivized personal injury plaintiff-patients, absent some objective diagnoses using reliable methodology.
On the other hand, the counter-argument is if “catastrophic injuries” are limited to scaring or subjective complaints, then the jury’s damages award may reflect a reduced damages award consistent with the injuries if they do not believe plaintiff suffered a permanent and substantial deformity.
In the end, courts are left with the challenge of essentially performing a gatekeeping role consistent with tort reform while balancing what may seem like a permanent and substantial injury from the plaintiff’s personal connection to his or her injuries.
Brian Pokrywka is a partner with Lewis, Brisbois, Bisgaard & Smith, where his litigation practice is focused on the defense of personal injury and wrongful death claims related to transportation, product liability, and premises liability.
1 R.C. 2315.18.
2 R.C. 2315.18(A)(4).
3 R.C. 2315.18, advisory committee notes.
4 R.C. 2315.18(B)(3).