When it comes to state constitutional rights, medical malpractice and other personal injury lawsuits might not be the first things that come to mind. But state efforts at tort reform, such as capping damages or changing limitations periods, have prompted hundreds of state constitutional challenges over several decades — and laws in many states have ultimately been struck down or limited. These lawsuits also come against the backdrop of a fascinating and high-stakes political story: how battles over tort reform transformed judicial elections and the composition of state courts across the country.

Appellate courts in Ohio and North Carolina recently came to different conclusions in challenges to legal caps on noneconomic damages (such as pain and suffering) in medical malpractice cases. The cases give a good sense of how courts have grappled with tort reform questions, and hint at some of the political story too.

In Lyon v. Riverside Methodist Hospital, an Ohio appellate court ruled that Ohio’s damages cap violated the state constitution’s due process and equal protection clauses when applied to the plaintiff. At issue was $2.2 million in noneconomic damages, awarded by a jury to Lyon after her health care providers failed to diagnose her thiamine deficiency, resulting in a brain condition and severe neurological injury. Under the relevant damages cap, Lyon could only receive $965,527.

The law was facially constitutional, the court explained, because the legislature had determined that the cap would help address rising health care costs and there were circumstances where applying it would be reasonable. But given the size of Lyon’s award and the “extreme and lasting harm” from her injuries, the court ruled that applying the cap in her case would violate her rights.

First, the cap reduced Lyon’s damages by more than 57 percent — effectively putting the cost of a public benefit (lower insurance costs) on Lyon’s shoulders. Such a substantial reduction was unreasonable and arbitrary, the court concluded, violating Lyon’s due process rights. The law also treated Lyon differently than victims of other torts because it only applied to malpractice cases; had Lyon’s damages stemmed from a car accident, she would have received the full award. Treating Lyon “differently based on the nature of her victimization” in this way, the court held, also denied her the equal protection of the law.

In a second case, Mohebali v. Hayes, a North Carolina appellate court rejected a challenge to a similar law under a different legal theory. Mohebali had brought a negligence case against her obstetrician, who allowed her pregnancy to advance well beyond the normal 40-week gestation period, resulting in fetal death. A jury awarded her $7.5 million in noneconomic damages, which was reduced to $656,730 under the state’s cap. Mohebali argued that the law violated her right to a jury trial by intruding on the jury’s determination of what compensation she was owed to redress her injuries.

It was an issue of first impression for North Carolina but not for state courts elsewhere. The court identified five state supreme courts that had ruled that capping a plaintiff’s noneconomic damages violates their right to a jury trial (Alabama, Georgia, Kansas, Missouri, Washington) and nine that had rejected such claims (Alaska, Idaho, Massachusetts, Maryland, Michigan, Nebraska, Utah, Virginia, West Virginia). Looking to the state constitution, the North Carolina court rejected the claim, emphasizing case law that found that the legislature generally has the power to determine when a remedy is legally cognizable.

These two cases illustrate some of the legal theories that have been used to challenge tort reform statutes, as well as the financial and emotional stakes of these cases. But the legal story is also intertwined with a political one: It was a series of state supreme court rulings striking down tort reform laws in the 1990s that precipitated the transformation of state supreme court elections from sleepy, low-cost races into highly politicized contests with major attention from special interests.

While there were a handful of high-profile supreme court election fights in the 1990s, the modern election environment took shape in 2000. After sweeping tort reform laws were struck down by the Illinois Supreme Court in 1997 and the Ohio Supreme Court in 1999, the U.S. Chamber of Commerce announced in 2000 that it was amping up its involvement in state supreme court elections, committing up to $10 million in seven states. An arms race followed. From 2000 to 2009, average candidate fundraising doubled as compared to the prior decade as both business interests and plaintiff-side trial lawyers dramatically boosted their spending. Several states saw more business-friendly supreme court majorities take root.

Indeed, you can see this story play out in the Ohio Supreme Court cases cited in Lyon. Throughout the 1990s, the court repeatedly struck down laws limiting damages. But in 2007, the court distinguished prior cases and upheld a new cap on noneconomic damages against a facial challenge because it had a carveout for people suffering catastrophic injuries. What changed? The membership of the court, which had shifted after a series of multimillion-dollar elections in the 2000s, including $4.4 million spent by the Chamber of Commerce on the 2000 Ohio Supreme Court election.

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State v. McLain, Maine Supreme Court
Unanimously held that the state constitution’s privilege against self-incrimination provides greater protection than the federal Fifth Amendment with respect to waiving that privilege, including requiring any such waiver to be clear and unequivocal and, if the waiver is ambiguous, requiring the officer to stop and clarify whether the individual is waiving the privilege. The court noted that multiple other states have held similarly. // Maine Public

State v. McFarland, Connecticut Supreme Court
A majority of the court, across three opinions, held that the state constitution’s due process provisions require a more protective balancing test for pre-arrest delay than the approach adopted by the majority of federal circuits under the federal due process clause. Because the government satisfied its burden of showing legitimate investigative reasons for the 32-year delay between the crime and the arrest that outweighed the defendant’s prejudice, however, the court concluded his claim failed that balancing test.

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.