The Catastrophic Injury Exception
In 2005, Ohio legislators decided to restrict the ability of personal injury victims to seek damages in court. Under the Ohio Tort Reform Act (OTRA) passed that year, “non-economic losses” arising from a defendant’s negligence was capped. These refer to damages such as pain and suffering that cannot be precisely quantified in monetary terms.
The OTRA limits non-economic damages in most cases to either $250,000 or three times the economic losses awarded by the court, whichever is greater. So for instance, if a jury determined a car accident victim sustained $100,000 in economic losses, the award of non-economic damages could not exceed $300,000.
However, the OTRA also includes an exception to the cap on non-economic damages for cases where the victim suffered a catastrophic injury, which the Act defines as either:
- a “[p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system;” or
- a “[p]hysical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.”
Judge in Long-Running DuPont Litigation Sends Injury Exception Issue to Jury
In many personal injury cases it is obvious the victim has suffered an injury that qualifies for the exception, such as someone who lost a leg. But in other cases it may not be so clear. And given the benefits of the OTRA caps, defendants will make every effort to argue a particular injury does not fall under the catastrophic injury exception.
For example, in a long-running mass tort against chemical manufacturing giant DuPont, the company asked a federal judge in Ohio to rule the OTRA’s catastrophic injury exception did not apply to a female plaintiff’s kidney damage. The judge declined to issue such a ruling, reserving the issue for an upcoming jury trial.
The litigation itself involves DuPont’s decades-long contamination of the drinking water surrounding one of its plants in West Virginia. In 2017, DuPont settled more than 3,500 personal injury claims brought by people who drank the contaminated water. But since the settlement, even more victims stepped forward and filed their own lawsuits, which have been consolidated before U.S. Chief District Judge Edmund A. Sargs, Jr. of the Eastern District of Ohio.
The case at issue here involves a woman who developed kidney disease, allegedly as a result of drinking the water contaminated by DuPont. More precisely, the plaintiff developed kidney cancer. This required a surgeon to permanently remove about one-third of the plaintiff’s kidney. This left the plaintiff with “permanent Stage II chronic kidney disease” and an increased risk of developing cancer again in the future.
Judge Sargus noted judges presiding over similar cases have held “this type of evidence [is] sufficient for submission to a jury to determine whether it constitutes permanent and substantial physical injury.” He therefore declined to apply the OTRA caps on non-economic damages at this time.
Contact a Personal Injury Lawyer Today
Well-funded corporate defendants are eager to invoke the OTRA’s damage caps. This is why it is critical to work with an experienced Cleveland personal injury lawyer who can review the facts of your case and advise you on whether an exception may apply. Contact Tittle & Perlmuter at (216) 438-9647 to schedule a consultation with one of our attorneys today.
