Application of Damage Caps and Comparative Fault – Which Comes First?

Posted on October 1st, 2014 by sutteroconnell

An Ohio court of appeals has addressed for the first time the interplay between Ohio R.C. 2323.43 (the damage-cap statute) and Ohio R.C. 2315.35 (the comparative negligence statute).

In Philip Guiliani v. Wagih M. Shehata, M.D., the trial court reduced a jury’s noneconomic damages award of $1,000,000 to $700,000, based on the Plaintiff’s 30 percent comparative fault.  The court then capped Plaintiff’s damages at $250,000 pursuant to R.C. 2323.43.  Both parties appealed.  Plaintiff argued, among other things, that the trial court erred by failing to apply the higher damage cap of $500,000.  Defendant argued the trial court erred by applying the comparative-fault statute before applying the damage-cap provision, and by permitting certain expert testimony.

In affirming the trial court’s award, the First District looked to the plain language of the statute, federal case law and Ohio’s Pattern Jury Instructions (“OJI”).  Because R.C. 2323.43(C)(1) provides that the catastrophic damage limits are applied “only after the jury has made its factual findings and determination of damages”, a jury interrogatory is necessary for the higher cap to apply.  This finding is consistent with federal case law interpreting the general tort-cap statute, which has a similar two-tiered damage cap limitation.  See Ohle v. DJO, Inc., No. 1:09-cv-02794, 2012 U.S. Dist. LEXIS 140020, *3 (N.D. Ohio Sept. 28, 2012); Bransteeter v. Moore, No. 3:09 CV 2, 2009 U.S. Dist. LEXIS 6692, *2 (N.D. Ohio Jan. 21, 2009).  OJI also supports the conclusion that the jury, not the judge, must decide the issue of the nature of a plaintiff’s injury in order for the higher cap to apply.  Id.; see also OJI-Civil 315.01(6).

Additionally, the First District determined that the adjustment for Plaintiff’s comparative negligence must be made before, not after, the cap is applied.  R.C. 2315.35 states that after the jury returns its general verdict and answers to interrogatories, the court must diminish the total amount of compensatory damages “that would have been recoverable” by an amount that is “proportionally equal to the percentage of tortious conduct”.  When read together with R.C. 2323.43(A)(2), which states that the court shall not instruct the jury with respect to damage caps, the jury award “that would have been recoverable” therefore represents the uncapped amount of compensatory damages.

Finally, on appeal the Defendant, a radiation oncologist, argued that Plaintiff’s expert testimony should have been excluded at trial because he had no special training or residency in radiation oncology, had no experience in the procedure generating the report at issue, and did not work with radiation oncologists prior to the patient undergoing surgery.  The Supreme Court of Ohio has previously held “a witness need not practice in the exact same specialty as that of the defendant-physician; rather, it is the scope of the witness’s knowledge and not the artificial classification by title that should govern the threshold question of his qualifications.” Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 160 (1978).  Although the First District agreed that it might have reached a different conclusion with respect to the expert’s qualifications in the case, the admission of the testimony was not an abuse of discretion.

The full text of the opinion can be found here.