Update: read what happened on remand here.
“We hold that under the plain language of R.C. 2315.18(A)(7), defamation is a ‘civil action for damages for injury or loss to person.’”
Justice Fischer, majority opinion
“Defamation is an injury or loss to reputation, not to person, and therefore the caps on damages in R.C. 2315.18 do not apply when a person is defamed.”
Chief Justice O’Connor, dissenting opinion
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”
Othello Act 3, scene 3
On December 7, 2018, the Supreme Court of Ohio handed down a merit decision in Wayt v. DHSC, L.L.C., 2018-Ohio-4822. In a 5-2 opinion written by Justice Fischer, in which Justice DeGenaro concurred in judgment only, and Chief Justice O’Connor dissented, joined by Justice O’Donnell, the court held that the statutory damage cap for noneconomic loss applies to compensatory damages awarded in a defamation action. The case was argued August 1, 2018.
Case Background
Appellee Ann Wayt was employed as a nurse by Appellant DHSC, LLC, which does business as Affinity Medical Center (“Affinity Medical”). Wayt was accused of neglect of duty and falsifying a medical record, and was fired, following an investigation. Following Wayt’s termination, the head nurse at Affinity Medical sent a complaint to the Ohio Board of Nursing which included an accusation that Wayt had engaged in patient neglect.
After she was fired, Wayt applied for many nursing jobs, but received only two interviews and could not obtain a permanent nursing position.
The National Nurses Organization Committee, a union of registered nurses, filed charges against Affinity Medical with the National Labor Relations Board (“NLRB”), claiming that Wayt had been fired because of her involvement with the union, which the hospital had refused to bargain with. The NLRB found in favor of the nurses’ union. The NLRB’s ruling was affirmed by the U.S. District Court for the Northern District of Ohio. Affinity Medical was ordered to reinstate Wayt to her former position, and to retract its report to the Ohio Board of Nursing. Wayt did return to her old job, but was belittled by another Affinity Medical employee, who, in front of several nurses allegedly stated that just because she won in court did not mean Wayt deserved to get her job back or that she was a good nurse.
Wayt filed a lawsuit in the Stark County Court of Common Pleas, alleging that she had been defamed by Affinity Medical and its employees. The jury found that Wayt had been defamed, and awarded her $800,000 in compensatory damages and $750,000 in punitive damages.
Affinity Medical filed a post-trial motion to have the court apply the cap on noneconomic damages set forth in R.C. 2315.18(B)(2) and the cap on punitive damages in R.C. 2315.21(D) to reduce the jury award. The trial court ruled that the statutory caps did not apply to injuries to reputation, and that the cap on punitive damages is twice the amount of compensatory damages awarded, not twice the amount of compensatory damages as capped.
On appeal, the Fifth District Court of Appeals unanimously affirmed the decision of the trial court.
Read the oral argument preview of the case here and the analysis of the argument here.
Key Precedent
Ohio Constitution Article I, Section 16 (All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation shall have remedy by due course of law . . .)
R.C. 2315.18 (Compensatory Damages in Tort Actions)
(A)(4) “Noneconomic loss” is categorized as any nonpecuniary harm to a person or property and can include, but is not limited to, pain and suffering, loss of society, consortium, companionship, care, and other nontangible losses.
(A)(5) “Occurrence” means all claims resulting from or arising out of any one person’s bodily injury.
(A)(7) “Tort action” means a civil action for damages for injury or loss to person or property. “Tort action” includes a civil action upon a product liability claim or an asbestos claim. “Tort action” does not include a civil action upon a medical claim, dental claim, optometric claim, or chiropractic claim or a civil action for damages for a breach of contract or another agreement between persons.)
(B)(2) (specifies caps to be applied in tort actions for compensatory noneconomic damages.)
R.C. 2315.21 (Punitive or Exemplary Damages)
(D)(2)(a) Punitive damages shall not be awarded in excess of two times the compensatory damages awarded to the plaintiff.)
Smith v. Buck, 119 Ohio St. 101 (1928) (syllabus) (1. The words “personal injury” as defined by lexicographers, jurists and text writers, and by common acceptance, denote an injury either to the physical body of a person or to the reputation of a person, or to both. 2. The words “personal injury” by “wrongful act,” of Section 11519, General Code, comprehend, among other injuries to the person, injury by libel or slander.)
Nadra v. Mbah, 2008-Ohio-3918 (“Bodily injury” covers all actions whose purpose is to recover for an injury to the person whether based in tort, contract, or statute.)
Dunbar v. State, 2013-Ohio-2163 (Legislative intent is not considered when determining whether a statute is ambiguous.)
Tisdale v. Eubanks, 180 N.C. 153 (1920) (One’s reputation is part of one’s person, and injury to reputation, therefore, is injury to person.)
Times Democrat Publishing Co. v. v. Mozee 136 F. 761 (5th Cir. 1905) (At common law, libel and slander constitute personal injuries or injuries to a person.)
Merit Decision
Proposition Accepted for Review
Does the damages cap in R.C. 2315.18(B)(2) that applies to tort actions for noneconomic loss as a result of alleged injury or loss to person or property also apply to compensatory damages awarded for defamation?
Short answer: yes.
R.C. 2318.15’s statutory caps broadly apply to tort actions seeking noneconomic loss as a result of an alleged injury or loss to person or property, which necessarily captures the tort of defamation.
Position of the Parties
Affinity Medical
Affinity Medical argues that the language in R.C. 2315.18 is plain and unambiguous, needs no interpretation, and clearly caps compensatory damages in defamation actions.
Wayt
Wayt agrees that the language in R.C. 2315.18 is controlling, but argues that language applies only to injuries to person or property, not reputation, which is distinct from injuries to person, as set forth in Article I, Section 16 of the Ohio Constitution. Defamation is an injury to reputation and thus is different from an injury to person.
Arguments Made But Not Addressed
Affinity Medical argued that the caps on punitive damages in R.C. 2315.21(D) applies, so the amount of punitive damages awarded in this case by the jury must be reduced accordingly.
Wayt argued that without a jury interrogatory which would show that the jury awarded noneconomic rather than economic damages, which Affinity Medical failed to request, the trial court could find the damages awarded were all economic, and thus the statutory cap would not apply. Wayt also argued that she was defamed on more than one occasion, so that even if the cap in R.C. 2315.18(B) were to apply, the amount awarded should not be reduced and she should get the maximum allowed for each instance of defamation.
The majority does not address any of these arguments because they were deemed beyond the scope of the issues accepted for review by the court.
Analysis
Is Defamation an Injury to Person?
Smith v. Buck Says Yes, and is Still Good Law
R.C. 2315.18(A)(7) defines a tort action as a civil action for damages for injury or loss to person (or property, which isn’t relevant here). Citing Smith v. Buck, the majority notes the court has held for 90 years that defamation (slander in that case) is an injury to a person. Nor is there any difference between personal injuries and injuries to a person. The majority rejects Wayt’s argument that by including the phrase “bodily injury” in R.C. 2315.18 in the definition of an “occurrence,” the legislature intended only to cap damages resulting from physical injuries. Rather, under the plain language of R.C. 2315.18(B)(7), defamation falls under the definition of a “civil action for damages for injury or loss to person.”
Furthermore, the legislature is presumed to be aware of the court’s holding in Buck, could have drafted the statute by adding “defamation” to the list of actions in (A)(7)to which the caps do not apply, and did not do so.
But What About That Language in the Ohio Constitution?
The language in Article I Section 16 distinguishes injury to reputation from injuries to person, lands and goods, and Wayt argues that the statutory phrase “injury or loss to person” must be interpreted in light of that Constitutional language. But, says the majority, that is not dispositive here, for the court still must decide if the legislature drew a distinction in R.C. 2315.18 like that which appears in the Constitution. In doing so, the court does not examine external sources to define statutory terms. R.C. 2315.18 uses more general terms than the Constitution, and the statutory term “loss to person” encompasses both injuries to a person and a person’s reputation.
Legislative Intent
Wayt argued that the statement of findings and intent in S.B. 80 show that the legislature intended for the caps to apply only to negligence cases, which means it should not apply in this intentional tort case. Again, the majority notes that it need not determine the intent of an unambiguous statute, but even if it were to review S.B. 80 to determine legislative intent, Wayt’s argument fails. While some provisions in the bill reference negligent behavior, other parts speak to conduct of a higher degree of culpability. Thus, Wayt is incorrect in arguing that the legislature’s sole intent when passing S.B. 80 was to remedy negligent behavior, and would require the court to add the word “negligence” to the definition of “tort actions” in R.C. 2315.18(A)(7).
The Chief’s Dissent
Executive Summary
Injury to reputation and injury to person are two separate harms, and damages for the former are not capped.
Defamation is an Injury or Loss to Reputation, Not to Person
The Chief begins by criticizing the majority’s reliance on 90-year-old Smith v. Buck and some other very old cases from outside the jurisdiction that interpret injury to reputation in the context of the common law instead of in the context of Ohio’s constitutional and statutory scheme. The majority’s reliance on those cases, she notes, means it has not relied on the plain meaning of the statute as it claims. To her, it is clear that the plain language of the statute does not include loss of reputation. Injury to person means a physical injury that needs medical attention and healing.
I love this quote from the Chief’s dissent:
“…a person’s reputation is separate from her or his body, and the person has little control over it—reputation exists entirely in the hearts and minds of others. The lack of control over one’s own reputation is one reason that the tort of defamation is so menacing….there is no well-defined solution for piecing reputation back together or even for determining the damage. A reputation damaged by defamation is not fixed by mending it…”
The Ohio Constitution Clearly Distinguishes Between Person and Reputation
The Chief agrees with the majority that given the plain language of R.C. 2315.18 no statutory interpretation is necessary. She begins with the language in the Ohio Constitution which “reinforces the distinction between person and reputation.” And she criticizes the majority for failing to explain why the legislature was presumed to be aware of the court’s decisions in Buck and Nadra, but not the Ohio Constitutional language.
What Is and Isn’t Covered in R.C. 2315.18
The legislature chose to include both land and goods under the single category of “property.” But “person” and “reputation” are not joined together, and in fact, reputation isn’t mentioned at all in the statute.
“The Constitution authorizes the courts to remedy four kinds of injuries, and the General Assembly included only three of them in R.C. 2315.18. The only conclusion I can reach is that the General Assembly did not wish to cap damages for people who are defamed,” wrote the Chief.
Misplaced Reliance on Smith v. Buck
The Chief really gets down in the weeds in this section of the dissent. Her main criticism is that the majority should have relied on the clear Ohio Constitutional provision that establishes that injury to reputation and injury to person are two separate harms, and not on the 1928 interpretation of the term “personal injury” in Smith v. Buck.
Defamation is Different
In a defamation action, damages are presumed. And it is in a separate category in the Ohio Constitution.
“…Ohio’s Constitution specifically answers the question ‘where does [reputation] belong?’ by recognizing a middle class of injuries and creating an entirely separate action for loss or injury to reputation that supplants the common law’s less differentiated protections. Because the Ohio Constitution recognizes injury to reputation as separate from injury to person, the court is amiss in relying on cases depending on common-law causes of action,” O’Connor wrote.
Justice O’Donnell joined the Chief’s dissent. During oral argument he seemed persuaded by the separate treatment of reputational harm in the Ohio Constitution.
Case Disposition
The appeals court judgment was reversed and the case remanded to the trial court for further proceedings. This does not necessarily mean the arguing is over, given the issues the court decided were beyond the scope of what it accepted for review (see arguments made but not addressed section). Wayt could still argue that there was more than one instance of defamation and that there were no noneconomic damages since the jury verdict was undifferentiated. And there will likely be an argument about whether the punitive damages cap applies to the capped or uncapped compensatory damages award. The blog will continue to follow this on remand.
Case Syllabus
None
Concluding Observations
First off, compliments to student contributor Paul Taske for calling this case correctly. I did not. Here’s what I wrote after oral argument, which I still believe:
“While I think this should be a win for Wayt, the bench was so cold it is hard to say that it will be. I think damage to reputation, as set forth in its own category in Article I Section 16 the Ohio Constitution, is different, and not subject to the damages cap of injuries to person or property set forth in R.C. 2318.15. I find that a very powerful argument. Justice O’Donnell seemed to be buying that argument, as did the Chief. Justice DeWine, on the other hand, did not seem to be. No hints from the others, although Justice French, asked a few questions about the state of the record on economic loss.
“I just don’t think R.C. 2318.15 applies to intentional torts, and I think the statement of findings and intent in Section 3 of SB 80 support that interpretation. This was a defamation per se case, in which damages are presumed, which further complicates the matter. It doesn’t seem right to apply a cap to undifferentiated damages, especially for an intentional tort like this one. The very essence of defamation is an intangible injury to one’s self worth, which to me, is very different from noneconomic damages in a negligence action.”
As both Paul and I noted, the bench was surprisingly cold during this argument, while the court’s opinion was long and detailed. I found the majority opinion, which very closely mirrors the argument made by Mr. Fawaz on behalf of Affinity Medical, unpersuasive, especially the section where the legislature is presumed to have full knowledge of the court’s opinions but can somehow disregard the language of the Ohio Constitution, which clearly draws a distinction between injuries to a person and to reputation. Justice Fischer wrote that in interpreting the language of a statute, the first step is to interpret its plain language, adding, “we do not begin the analysis by examining external sources in order to define the terms used in the statute.” C’mon—this isn’t just any old external source. It is the state’s Constitution, after all!