- The Washington Times - Tuesday, January 7, 2003

Grand larceny without judicial robes is felonious.But with judicial trappings, at least in the Ohio Supreme Court, grand larceny is de rigueur. What its 4-to-3 ruling in Dardinger vs. Anthem Blue Cross & Blue Shield (Dec. 20, 2002) lacked in legality was more than compensated by its outrance audacity. The decision filched $20 million of a $30 million punitive damage award from a grieving widower to make a votive offering to a cancer research fund at Ohio State University (OSU) adored by the four justice majority. At least Robin Hood stole from the rich to give to the poor.

The Ohio Constitution empowers the State House of Representatives and Senate by concurrent resolution supported by two-thirds majorities to remove a judge upon complaint. A persuasive case can be made that the four Ohio Supreme Court Justices who perpetrated the Dardinger grand larceny so brazenly usurped nonjudicial powers as to justify their ousters from judicial office.

In 1996, Esther Dardinger was diagnosed with metastatic brain tumors. The following year, the director of neuro-oncology at an OSU cancer hospital inaugurated interarterial chemotherapy (IAC) to shrink the tumors. Three treatments proved promising. All were paid by Anthem Blue Cross & Blue Shield without quarrel. It jibbed, however, at a fourth scheduled treatment. Anthem's reasons changed like the seasons, from the alleged experimental nature of IAC to its in-patient rather than out-patient administration to a failure of IAC to meet medical policies concerning "Off-Label Use of Drugs," i.e., a use which the federal Food and Drug Administration had not certified as both safe and effective.

Esther Dardinger, nevertheless, underwent a fourth IAC expecting that Anthem would confess error during an intramural appeal. But she and her husband encountered endless bureaucratic delays and Kafkaesque obtuseness. Mrs. Dardinger thus deferred scheduling a fifth IAC treatment because she was worried by the potential of more than $100,000 in medical bills if Anthem denied coverage. Instead, she and her doctor opted for a toxically dangerous intravenous therapy (IC) for which Anthem would pay in hopes of stabilizing the tumors until the IAC dispute was resolved. The IC treatment, however, caused Mrs. Dardinger's resistance to plunge, tumors to grow, and pain and agony to intensify. She died approximately seven weeks after IC commenced.

Mr. Dardinger sued Anthem for breach of contract, bad faith, and punitive damages. A jury returned a verdict of $1,350 on the contract claim, $2.5 million for Anthem's bad faith culpability, and $49 million in punitive damages. The Ohio Supreme Court affirmed generally, but with a surprise O. Henry ending.

The court correctly upheld the constitutionality of the $49 million award under the due process clause as expounded by the United States Supreme Court in BMW of N. America Inc. vs. Gore (1996). Anthem's reprehensible malfeasance and nonfeasance jeopardized the life of Esther Dardinger. The 20-to-1 ratio of punitive to compensatory damages was comfortably within the 500-to-1 ratio in BMW that the high court hinted was a constitutional ceiling. Finally, Anthem could forfeit its Ohio insurance license because of the misconduct proved in Dardinger, a civil penalty far more crippling to its viability than a $49 million judgment.

But the Ohio Supreme Court majority felt restive over that constitutional disposition and sum. They ached to make the world of punitive damages a better place. If the law balked, too bad for the law. Thus, the court slashed Mr. Dardinger's award to $30 million. Writing for the majority, Justice Paul E. Pfeifer declared that Ohio's common law of punitive damages condemned $49 million as excessive. The justice observed that the amount was unprecedented in Ohio and constituted a substantial percentage of the annual profits of the defendants. Further, according to Justice Pfeifer's stargazing, $49 million was greater than necessary to deter second editions of Esther Dardinger's agonizing tragedy by the likes of Anthem or sister insurance companies. The justice summoned neither experience nor intuition to substantiate that judicial prophecy.

Arbitrarily shaving $19 million of Mr. Dardinger's $49 million punitive damages judgement to $30 million stretched the limits of judicial power. But what the Ohio Supreme Court did next flagrantly encroached on the legislative domain.

Justice Pfeifer ordered that $20 million of Mr. Dardinger's $30 million judgment "go to a cancer research fund, to be called the Esther Dardinger Fund, at the James Cancer Hospital and Solove Research Institute at Ohio State University." Such filching by court decree was unprecedented under Ohio's common law. It marked a galactic, not a molecular, policy change. As Justice Pfeifer himself tacitly acknowledged, punitive damages reform is a legislative task.

Thus, legislation in some jurisdictions divide a punitive damages award between the plaintiff and a state general or special fund. These laws give fair warning to plaintiffs about potential recoveries. They upset no settled property rights expectations. The division vindicates a legitimate state policy of pinching punitive damages to retain industries or professions threatening to leave because of skyrocketing liability insurance premiums.

Justice Pfeifer, however, stole a march on the Ohio legislature and $20 million from Mr. Dardinger. The justice boldly pronounced that the Ohio Supreme Court would divide punitive damage awards in Mr. Dardinger's case and in the future whenever its divinations indicated "significant societal statements" were implicated. Pfeifer was clueless about how to recognize such an implication, reminiscent of Supreme Court Justice Potter Stewart's definition of obscenity as, "I know it when I see it," or how to select the beneficiaries of the court ordered largess.

The Dardinger decree took $20 million of Mr. Dardinger's property in violation of the 14th Amendment. It crowned the Ohio Supreme Court with unconstrained legislative or executive discretion to divide punitive damage judgments to fuel its social agenda. Doesn't such extreme judicial adventurism warrant removal of the offending Justices by the Ohio legislature? If judges stray miles beyond the bounds of judging, can respect for the courts escape corrosion?

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