What’s On Their Minds? The Constitutionality of the Mandatory Bifurcation Provision of R.C. 2315.21(B). Havel v. Villa St. Joseph.

Update: On February 18, 2012 the Supreme Court of Ohio issued a merit decision in this case.  Read that post here.

On September 21 the Ohio Supreme Court heard argument in the case of Havel v. Villa St. Joseph, case #2010-2148. At issue in the case is the constitutionality of 2315.21(B), the mandatory bifurcation provision of the punitive damages statute. The Court accepted the case on conflict certification.  The conflict between appellate districts is whether the statute conflicts with Civ. R. 42(B), which gives the judge discretion on bifurcation.  For a further overview, please see the oral argument preview in this case.

Where a conflict arises between a rule and a statute, the court’s rule will control for procedural matters; the legislature’s statute will control for matters of substantive law. So a two part determination is necessary.  First, does a conflict exist between the rule and the statute?  If so, is the statute substantive or procedural?

At argument, the Assistant Attorney General took most of the appellant’s time, which it shared with counsel for Villa St. Joseph.  The AG apparently no longer challenged the fact that the rule and the statute were in conflict, focusing solely on the issue of whether the statute was substantive or procedural. The state argued that while the statute appears superficially procedural, under that “procedural wrapping” is an important substantive right—the right to be free from an unjust judgment, untainted by  inappropriate evidence, such as malice, or a defendant’s deep pockets.

Counsel for appellee Havel made a very practical, rather than a theoretical argument. He emphasized how essential it was to leave the trial court with discretion in this area. Civil Rule 42(B) did just that, with the trial judge exercising discretion over whether to bifurcate a trial or an issue.  The bifurcation statute, on the other hand, creates unworkable burdens on everyone—the courts, counsel, and the parties, and creates significant evidentiary difficulties. While technically not part of this appeal, Havel’s counsel  suggested that it would be helpful if the Court were to interpret Civil Rule 42 as not requiring two separate trials with separate juries (which the language of the rule now seems to require) when a trial judge exercises the discretion to bifurcate under the rule.

Counsel for Villa St. Joseph was combinative in the very brief time allocated to him in rebuttal. He argued the plaintiffs bar had feverishly and regularly opposed bifurcation under the rule because plaintiffs routinely wanted evidence of wrongdoing and malice in their cases in chief.

Are We Talking Two Different Juries or the Same Jury in Separate Proceedings?

The justices  were definitely very concerned about practicalities, both under Civil Rule 42(B) and the statute. They struggled to understand how the proceedings would work under each. They were clearly concerned about logistics, and about judicial economy.

Justice Pfeifer said he thought the rule clearly contemplated two different juries.

Justice Stratton picked up on the AG’s analogy to a capital trial in which guilt is determined first, then sentencing—asking whether under the statute evidence from the first trial could just be incorporated into the second.

Justice Cupp asked, if the rule required separate juries, and the statute says the same jury, but different phases, whether that itself was a conflict?  He later asked if the statute requires two phases, and the rule separate trials, how they could be read together. He asked whether it wouldn’t be more advantageous to a practitioner to have bifurcation, trying one phase, then continuing with the same jury with a punitive damages trial.

Justice Pfeifer, who has been very hard on the attorney general’s office recently (see the post in the ACS case) pressed the state about the interplay between the rule and the statute. He asked how this all actually works in practice rather than in theory. He asked the assistant AG if she was advocating that each case be tried twice.  He later mused that the state argued only about the due process rights of the defendant, but weren’t the plaintiff’s due process rights affected by the statute as well?

Justice O’Donnell asked if the Court agreed that in some instances it would be good to have a single proceeding, but in others two, how could the Court write a blanket rule that would tell trial judges what to do.  Chief Justice O’Connor also asked the late Chief Justice Moyer’s favorite question—what rule would you have us write?

Exactly What Kind of Evidence Should be Excluded in the First Trial Under the Statute?

Under the statute, in the first phase of the trial, no party may present evidence that relates “solely” to the issue of whether the plaintiff is entitled to recover punitive damages.  No evidence of malice or reckless disregard is permitted during the compensatory damages phase of the trial.  If a plaintiff wins compensatory damages, then the plaintiff gets a second, punitive damage phase of the trial. 

Justice Pfeifer asked what evidence was “solely” on the issue of punitive damages. Isn’t wrongdoing part of the plaintiff’s case in chief?

Chief Justice O’Connor asked whether some kinds of evidence that is proper in the punitive damages phase inevitably will be included in the first phase.  She wondered, too, whether a less than unanimous verdict in the compensatory damages phase would poison the well in the next phase.

Justice Lanzinger asked whether when push comes to shove, wasn’t the only evidence that has to be kept out of the first phase is how much the defendant can afford to pay?

Substantive or Procedural?

Justice Cupp asked the state whether its argument was that a person has a substantive right to a trial on liability and compensatory damages free of evidence applicable to punitive damages. He then asked whether the admission or exclusion of evidence was substantive or procedural.

Justice O’Donnell asked whether there is a substantive right to prosecute a case without all the punitive evidence coming in.

Justice Pfeifer, noting that the U.S. Supreme Court has decided an unusual number of punitive damages cases, asked whether there was any U.S. Supreme Court authority holding that there is a due process right to bifurcation on punitive damages in every tort case? (answer—there is none).

Who’s In Charge Here?

Justice McGee Brown asked about the authority of the Court under the modern courts amendment to set procedures for trial courts. Justice O’Donnell later asked if the Court should declare the statute unconstitutional because it conflicts with the Modern Courts Amendment.

 Mandatory v. Discretionary

Chief Justice O’Connor wanted to be sure there was no discretion if the motion were made under the statute.  She asked if there would ever be a time when the defendant would want both kinds of damages issues tried in the same case. She also asked how trial judges were now ruling on motions to bifurcate under Rule 42.

A Moment of Levity

Counsel for Havel was asked if he wanted the Court just to strike down the mandatory bifurcation provision, or the entire punitive damage statute.  He answered that while he thought he was a very fine lawyer, he didn’t think he had a prayer of striking down the entire statute.

How Things Look From the Bleachers

I’m not sure there is unanimity here, but I think a majority may favor striking down the statute .

While this Court is especially deferential to the legislature, it is also very protective of its own turf, which includes rule-making authority.  It tends to favor judicial discretion.  Several justices seemed to be picking up the fact that the use of the rules of evidence could keep improper punitive damages evidence out of a tort action.

The Court was curiously non-inquisitive about whether the statute was substantive or procedural, not pressing much on the state’s argument that this was a substantive statute wrapped in procedural packaging.  Clearly, this Court has not been one to strike down tort reform. But in Sheward, it did refer to a nearly identical version of the statute as procedural, albeit in passing.

The Court seemed especially concerned with the practical consequences both under the statute and under the rule.

 Most negligence cases don’t warrant punitive damages at all.  To ban any evidence of malice or reckless disregard in the first phase of a trial, and then to allow a second phase simply because a jury awards compensatory damages in the first phase, as this statute requires, seems like a very impractical and burdensome way to handle tort claims. But of course, as the justices are wont to say, the wisdom of a statute is not the Court’s concern.

 In the end, the discretion provided for in Civil Rule 42, coupled with a trial court’s power to exclude inappropriate evidence should really cover this matter.


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