How a Cleveland Jury's $42 Million Truck-Crash Verdict Survived Ohio's Damage Caps

Published May 7, 2019 · Ohio Appeals Courts · Verdicts & Settlements

Ohio law puts a ceiling on pain-and-suffering damages in most injury cases, and insurance companies count on that ceiling when they decide what a case is worth. But the ceiling has an exception for the most catastrophic injuries. Last month, an Ohio appeals court showed exactly how that exception works, upholding more than $42 million in jury verdicts for two young people injured when a commercial dump truck and their car collided in Cleveland.

The crash and the verdicts

The case is Torres v. Concrete Designs, Inc., 2019-Ohio-1342, decided April 11, 2019, by the Eighth District Court of Appeals on reconsideration of an earlier decision.

According to the opinion, early on the morning of November 15, 2010, Kiara Torres and Joshua Rojas were passengers in a car that collided with a dump truck driven by Brian English, an employee of Concrete Designs, Inc. The passengers claimed the truck cut their car off while changing lanes. The truck driver claimed the car rear-ended him. Notably, the police report and an accident reconstruction obtained by the trucking company's insurer, Westfield, blamed the driver of the car.

The jury saw it differently. After a trial in 2014, it found the truck driver and his company solely at fault and found the car's driver not liable at all. It awarded:

• Joshua Rojas: $8.2 million in economic damages and $26.4 million in noneconomic damages, a total of $34.6 million.
• Kiara Torres: $1.8 million in economic damages and $6 million in noneconomic damages, a total of $7.8 million.

Ms. Torres was 16 years old when she was hurt. The court described an open skull fracture with bleeding in the brain, a fractured frontal sinus, several surgeries, blindness in her right eye, a diminished sense of taste and smell, a scarred and indented forehead, and lasting cognitive and behavioral limitations. A clinical neuropsychologist testified that she will never be able to work or live independently.

Ohio's cap on noneconomic damages

"Noneconomic damages" are the damages for losses that do not come with a receipt: pain and suffering, disfigurement, mental anguish, and the loss of the ability to live the life you had. Economic damages, by contrast, are medical bills, lost wages, and lost earning capacity.

Under R.C. 2315.18(B)(2), in most Ohio injury cases noneconomic damages are limited to the greater of $250,000 or three times the economic loss, up to $350,000 per plaintiff and $500,000 per occurrence. Economic damages are not capped. The jury is never told about the cap; the judge applies it after the verdict. I explained the basic structure in an earlier post on the cap and its catastrophic-injury exception.

But R.C. 2315.18(B)(3) removes the cap entirely when the noneconomic losses are for "permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system," or for a permanent functional injury that prevents the person from caring for himself and performing life-sustaining activities.

If the cap had applied, each passenger's noneconomic award would have been cut to no more than $350,000. That is why the trucking company and its insurer made the cap a central issue on appeal.

How the court applied the exception

The court treated the two plaintiffs separately.

Ms. Torres: a jury question, decided by the jury. The defense argued that her forehead scar had healed well enough that there was no "permanent and substantial physical deformity." The court noted that the statute does not define the phrase and that federal courts applying it had reached inconsistent results. It held that once a plaintiff presents enough evidence, whether an injury qualifies is a question for the jury. Here the jury had answered a specific written question, and every juror said yes. Given her skull fracture, brain injury, surgeries, loss of vision in one eye, and the visible dent in her forehead, the court found sufficient evidence to support that finding.

Mr. Rojas: the defense conceded it. When the trial judge asked whether the cap issue was disputed, defense counsel told the judge that Mr. Rojas's injuries did amount to a permanent and substantial physical deformity, while disputing it for Ms. Torres. The appeals court held that this was a binding stipulation and the defense could not take it back on appeal.

The court also rejected the argument that the awards were simply too large. It reviewed the verdicts independently against verdicts for comparable injuries, as R.C. 2315.19 allows, and concluded they were not excessive given the severity of the injuries. It upheld Ms. Torres's $1.8 million in economic damages based on the neuropsychologist's testimony that her brain injury would keep her from ever working.

What the court took away

The verdicts were not affirmed in every respect, and it is important to be precise about that. The trial court had added roughly $3.5 million in prejudgment interest, a remedy available when a defendant fails to make a good-faith effort to settle. The appeals court vacated that award, finding that the insurer had a reasonable, good-faith belief that its driver was not at fault, based largely on the police report and its own reconstruction.

One of the three judges also wrote separately. He would have ordered a new trial on damages, questioning whether the defense had truly stipulated to Mr. Rojas's deformity and whether the evidence supported all of Ms. Torres's economic award. The majority's decision is the court's judgment, but readers should know the panel was not unanimous on every point.

And a verdict is not the same as money in hand. This post describes what the court decided, not what anyone has collected.

Lessons for families after a serious truck crash

The police report is not the final word. The report and the insurer's reconstruction both blamed the car's driver. A jury that heard all the evidence put 100 percent of the fault on the truck driver and his company. Truck cases are won with evidence, which is why we move fast to preserve it, as I described in last month's post on electronic logging devices.

The cap question starts on day one. Whether an injury is a "permanent and substantial physical deformity" is proven through medical testimony, surgical records, photographs, and the injured person's own testimony about how life has changed. Brain injuries in particular require careful documentation by the right specialists; I have written about concussions and traumatic brain injury after a crash. Building that record is not something to start a month before trial.

The size of the defendant matters. A commercial carrier's insurance policy is often far larger than an individual driver's. In Torres, the policy limit was $2 million, and the plaintiffs had offered to settle within it before trial.

What this means for you

Ohio's damage caps are real, but they are not the end of the story for the most seriously injured. When a crash causes a permanent and substantial deformity, the loss of a limb or body system, or an injury that takes away a person's independence, a jury's full award for pain and suffering can stand. Our truck accident and car and truck crash practices are built around proving exactly those injuries.