Handing Down Help
In Ohio, ‘Curative Damages’ Are
Embraced by Tort Plaintiffs and the Supreme Court
ABA Journal
October, 2005
By: Molly McDonough
Vicky and Denny Moore never dreamed
they would someday hear a jury place a dollar amount on the
value of their son’s
life. It’s not cliché to say that no money in
the world would fill the void left by the death of their youngest
child, 16-year-old Ryan.
So in 1997, little prepared the Salineville, Ohio, couple
for the $10 million award meant to compensate them and punish
the railroad for that fatal day in 1995 when a Conrail freight
train collided with the car their son was riding in.
It was a devastating event. And, in
many respects, the money only added to the pain. “We did not want to take that
money and gain personally,” Vicky Moore says. Her husband
agrees. “We couldn’t have bought a house or a car,” he
says. “It’s blood money. It’s nothing you
can enjoy.”
So what did the Moores do with their
award? On the suggestion of their lawyer, they turned it
over to a foundation to improve railroad safety. The Angels
on Track Foundation--with the slogan “Bad
crossings kill good drivers”--has since spent hundreds
of thousands of dollars to improve more than a dozen railroad
crossings and to pay for public service announcements on radio
and billboards.
What’s peculiar about this case is that the jury got
to hear about the Moore family’s spending plans. Sandusky,
Ohio, lawyer Tom Murray, who represented the Moores, has dubbed
the concept “curative damages.” The idea is that
damage awards are used to “cure” a problem rather
than provide punitive relief in the traditional sense. It’s
an idea that promotes more constructive interaction between
a negligent defendant and harmed individuals.
Professor David T. Link of University
of Notre Dame Law School is a fan of Murray’s and of curative damages. He says
curatives are often part of an “apology hearing.” “What
the plaintiff really wants is not so much money as they want
an apology,” says Link, who heads the International Centre
for Healing and the Law in Kalamazoo, Mich.
In those instances, sometimes before
any litigation has ensued, a company might say, “We’re really sorry this has
happened, and we’re happy to put some of this money into
a fund to prevent it from happening again,” he explains.
While curative arrangements may be more common outside of
court, Ohio allows jurors to learn that part of a punitive
damages award will go into a trust fund or public charity.
Clearing the Path for a New Approach
It was another fatal train car collision
case--one in 1989 that killed 16-year-old friends Michelle
Wightman and Karrie Wieber--that first led Murray down this
path. In 1996, as Murray prepared for the punitive damages
phase of a protracted bifurcated trial against Conrail, he
approached Wightman’s mother,
now Darlene M. Lowery, with the idea to create a foundation
to which most of any punitive damages award, including a portion
of his legal fees, would go. The jury did not hear about the
foundation, but the trial judge allowed the organization to
intervene in the case so long as it did not participate.
Murray, emboldened by the Wightman experience,
brought the concept to the Moores soon after. This time,
the judge allowed him to tell the jury about the Angels on
Track Foundation. After the jury’s damage award, the
railroad appealed on other grounds, and the state Supreme
Court declined review.
Yet the Moore family’s push to create a lasting legacy
for their son struck a chord with one member of the court.
Justice Paul E. Pfeifer wrote about the case in a March 1998
op ed column distributed to newspapers, praising the concept
of curative damages. While punitives can sometimes appear “selfish
and vindictive,” he wrote, there was “nothing greedy
or vindictive” about the Moores.
“There may not always be something good that comes out
of every hurtful situation,” Pfeifer concluded, “but
the Moores have done their best to see that the lives lost
on that track were not wasted.”
Then in late 2002, the Ohio Supreme Court did something truly
unprecedented. In a majority opinion written by Pfeifer, the
court upheld $30 million of a $49 million bad faith verdict
against Anthem Blue Cross and Blue Shield. In doing so, the
court, on its own, directed that a portion of the award go
to the creation of a memorial cancer research fund at Ohio
State University. The court further ordered the fund be named
for Esther Dardinger, who died from a brain tumor in 1997 after
her insurance carrier stopped paying for an experimental chemotherapy
treatment. Dardinger v. Anthem, 781 N.E.2d 121.
Citing Wightman, the Dardinger court
noted that Michelle Wightman’s
mother directed more than half her punitive damage award to
a charity. The court awarded $10 million plus interest to Dardinger’s
widower, Robert Dardinger. The remaining $20 million was to
be held to pay attorney fees and court costs, with any remaining
money going to the memorial foundation.
“The final net amount remaining after the prescribed
payments should go to a place that will achieve a societal
good, a good that can rationally offset the harm done by the
defendants in this case,” Pfeifer wrote. “Due to
the societal stake in the punitive damages award, we find it
most appropriate that it go to a state institution.”
Should Courts Create Charities?
While a portion of Chief Justice Thomas
Moyer’s separate
opinion supported the punitive award, he objected to the court
creating a charity without legislative authority. Philadelphia
defense attorney Ralph G. Wellington, who handled the appeals
in the Wightman and Moore cases, couldn’t agree more.
“The concept of using punitive damages for social good,
not just for personal wealth, is something I would applaud,” says
Wellington, who adds that these out of court arrangements may
even lead to increased payouts from defendants. But the decision,
he argues, should be private and not one for a jury. “It
is severely prejudicial to defendants to have the avowed unbinding
potential use of punitive damages before a jury,” he
says.
After all, Wellington says, punitive
damages exist to punish the wrongdoer and deter future bad
conduct. They are not there so that juries can “reallocate resources for the benefit
of those not before the court.” Plus, he questions how
the foundations would be monitored to be sure plaintiffs spent
the money the way they promised.
“It adds the dynamic in trial that can only increase
damage awards,” Wellington says. “Who can argue
against a foundation’s public use of money?”
Other jurisdictions take Wellington’s point of view.
In 1990, the Oregon Supreme Court ruled in Honeywell v. Sterling
Furniture Co., 797 P.2d 1019, that jurors shouldn’t be
told anything about the distribution of a punitive damages
award. The Oregon court especially objected to the part of
a jury instruction indicating that part of any punitive award
would go to the state’s Criminal Injuries Compensation
Account.
Similarly, in 1993, the 8th U.S. Circuit
Court of Appeals at St. Louis overturned an Iowa Supreme
Court decision in part because jurors were told that a portion
of punitive damages could be paid into a trust managed by
the court. Burke v. Deere & Co.,
6 F.3d 497.
Georgia then weighed in with its 1996
decision in Ford v. Uniroyal Goodrich Tire Co., 476 S.E.2d
565. In that case, the Georgia Supreme Court reversed a decision
that allowed jurors to know that 75 percent of a $25 million
punitive damage award would be deposited in the state treasury.
The court reasoned that, “by instructing the jury on the statutory scheme
for allocating a punitive damages award, the trial court improperly
shifted the jury’s focus from the critical question of
the defendant’s conduct to the inappropriate question
of the plaintiff’s compensation.”
But Murray says judges and jurors ought
to be able to consider the information. “It occurred to me, years ago, that
this idea of punishing a defendant in a civil case could be
improved upon by addressing what has historically been the
most persuasive arguments against punitive damages, namely
that it represents a windfall for the plaintiff who has already
been compensated,” Murray says.
In reality, he and many others say,
it’s often not about
the money for those who are injured, but rather about holding
defendants accountable, or about a plaintiff seeking a sense
of justice.
“It wasn’t about money for us, and it isn’t
about money for a lot of us,” Vicky Moore says. “But
that’s the only thing you can use in the courts. That’s
the only option--to sue for a monetary judgment.”
For the Moores and Darlene Lowery, their
foundations have helped them heal. “By having a foundation and knowing
that if she were still alive, she would be doing so much for
other people,” Lowery says, “it kind of makes you
feel like you’ve got part of her here.”
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