In Ohio, we have been waiting for our Supreme Court’s decision in Luri v. Republic Services, Inc. for quite some time. And now we have it. And there was much rejoicing.
Luri was a retaliation case arising under Ohio’s state discrimination laws. The case went to a jury trial, and jury awarded Mr. Luri more than $46 million in compensatory and punitive damages. Importantly for purposes of the endless briefing that was to come, prior to the trial, the trial judge had denied the company’s motion to “bifurcate” the punitive damages phase of the trial from the remainder of the trial – (in other words, the company wanted to have a separate trial on the question of whether or not it should be punished for its wrongdoing by a punitive damage award, rather than have those issues commingled with the remainder of the trial).
The trial court’s denial of the motion to bifurcate the punitive damages phase of the trial is what the parties in Luri have been fighting over for nearly five years now.
The company argued to the Court of Appeals that bifurcation of the punitive damages award was mandatory because of the following Ohio statute (Ohio Rev. Code 2315.21(B)):
In a tort action that is tried to a jury and in which a plaintiff makes a claim for compensatory damages and a claim for punitive or exemplary damages, upon the motion of any party, the trial of the tort action shall be bifurcated as follows… [Ed. note – emphasis is mine].
Seems simple enough. And yet the Court of Appeals said no, the trial judge retained discretion whether or not to bifurcate, because of Ohio Civil Rule 42(B):
The court, after a hearing, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial … [Ed. note – again, the emphasis is mine]
What about the statute that purports to make bifurcation mandatory? The Court of Appeals resolved (?) the rather obvious conflict between the statute and Rule 42(B) by holding that the statute was “an unconstitutional usurpation of the judiciary’s ability to control procedural matters.”
Turns out, the Court of Appeals got that wrong. Earlier this year, in a different case (Havel v. Villa St. Joseph), the Ohio Supreme Court had held that R.C. 2315.21(B) “creates a substantive right to bifurcation in tort actions when claims for compensatory and punitive damages have been asserted” [emphasis is mine].
Havel was not an employment case. But Luri is. Today, the Ohio Supreme Court, in two short sentences, reversed the Court of Appeals’ decision and remanded the case back to the Court of Appeals “for application of Havel v. Villa St. Joseph.”
So, what does all this mean?
What it means for the actual litigants in Luri is probably a complete re-do of their entire trial, once the Court of Appeals gets around to applying Havel. If the old trial was tainted by all this extraneous evidence pertinent only to punitive damages, and the right to bifurcation of those issues is a substantive one, I see no way around a do-over, unless I’m missing something. Insert heavy sigh here. Interestingly, if a new trial does happen, it probably won’t be before the same trial judge, who is, as of this writing, in a federal penitentiary (for reasons that local readers of this blog will know well.)
What it means for the rest of us, however, is that mandatory bifurcation of punitive damages should now be the rule in virtually all Ohio statutory discrimination, retaliation, and harassment cases, all of which arise under the same statute that was at issue in Luri. Why bother ordering the Court of Appeals to apply Havel to the Luri case unless the same substantive right to mandatory bifurcation was at issue? (This is especially so, given that the Court of Appeals in Luri, when holding the statute to be unconstitutional, had expressly relied on its own earlier decision in the Havel case where it had held the same thing–the same Havel decision that the Supreme Court would later reverse.) This is the first time that the Supreme Court has acknowledged, if only obliquely, that R.C. 2315.21(B)’s mandatory bifurcation scheme does indeed apply in statutory discrimination cases arising under Ohio law. (As long as the employer asks for it, that is.)
Even more interestingly, it appears implicit in the Supreme Court’s Luri decision that Ohio statutory retaliation cases must be “tort actions” within the meaning of R.C. 2315.21(B), since the bifurcation statute by its terms applies only “in a tort action”. This is significant, because there are other provisions of Chapter 2315 that apply in “tort actions,” most notably the caps on non-economic compensatory damages in Section 2315.18, and the caps on punitive damages elsewhere in Section 2315.21. The Ohio Supreme Court has never previously held that these caps apply in statutory discrimination, retaliation, or harassment cases arising under Ohio law. (The Court of Appeals in Luri itself had reduced the punitive damage award, pointing to the caps, but the entirety of the Court of Appeals opinion has now been reversed for a do-over.)
Now, the Supreme Court has apparently spoken definitely on the “tort action” question. Maybe.
Stay tuned. This is likely not the last we will hear of these issues.
The Personnel Files 