             OPINIONS OF THE SUPREME COURT OF OHIO

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Galayda, Appellee, v. Lake Hospital Systems, Inc., f.k.a. Lake
County Memorial Hospitals, Inc.; Damian et al., Appellants.
[Cite as Galayda v. Lake Hosp. Sys., Inc. (1994),       Ohio
St.3d     .]
Medical malpractice -- Judgment -- Payment of future damages --
      R.C. 2323.57 unconstitutional -- R.C. 1343.03(C) does not
      violate Due Process Clause or Right to Jury Trial Clause
      of Ohio Constitution.
1. R.C. 2323.57, which requires a trial court upon motion of a
          party to order that any future damages award
          in excess of $200,000 be paid in a series of
          periodic payments, is unconstitutional in
          that it violates the Right to Jury Trial
          Clause (Section 5, Article I) and the Due
          Process Clause (Section 16, Article I) of the
          Ohio Constitution.
2. R.C. 1343.03(C), which authorizes an award of prejudgment
          interest in a tort action against a
          defendant who failed to act in good faith to
          settle, does not violate either the Due
          Process Clause (Section 16, Article I) or
          the Right to Jury Trial Clause (Section 5,
          Article I) of the Ohio Constitution by
          imposing a penalty for exercise of that
          right.
      (No. 93-2276 -- Submitted September 21, 1994 -- Decided
December 30, 1994.
      Appeal from the Court of Appeals for Cuyahoga County, No.
63151.
      On the morning of June 18, 1988, plaintiff-appellee
Charles Galayda ("plaintiff") lost control of his minivan and
hit a tree. He was transported to Lake County Hospital East by
ambulance at 3:30 a.m.
      While at Lake County Hospital, plaintiff underwent three
operations which were performed by appellant, Dr. Armando B.
Damian. During each of these procedures Dr. Damian observed
bile staining within the abdominal cavity. On each of these
occasions, Dr. Damian visually examined the common bile duct by
performing a Kocher maneuver. However, at no time did Dr.
Damian order a cholangiogram, in which dye is injected into the
bile duct system, which is then X-rayed to find leaks or
injuries.
     After the third surgery on July 6, 1988, plaintiff
developed a high fever, gastrointestinal bleeding and adult
respiratory syndrome. On July 12, 1988, Dr. Damian transferred
plaintiff to Cleveland Metropolitan General Hospital, n.k.a.
Metro Health Medical Center, by Lifeflight helicopter.
Plaintiff was treated by Dr. Marc Eckhauser and Dr. Allen
Cohen, who found a large volume of blood in his stomach. On
July 13 and 14, 1988, Dr. Eckhauser performed two surgeries,
removing part of plaintiff's stomach and a substantial amount
of dead intestine. During the first of these operations, Dr.
Eckhauser observed bile staining in the area of the pancreas,
beneath the liver and around the bowel.
     On July 20, 1988, Dr. Cohen performed a cholangiogram and
discovered a leak in the common bile duct. Dr. Cohen bypassed
the leak in order to give the common bile duct time to heal
itself. Plaintiff was discharged from Cleveland Metro on
November 10, 1988, but without the use of his left eye. He was
rendered sightless in that eye as the result of infection which
originated in the area of his abdominal surgeries. In
addition, his surgeon, Dr. Eckhauser, described plaintiff as
being a potential "gastrointestinal cripple" as a result of the
removal of sections of his intestine and stomach.
     Plaintiff commenced an action for medical malpractice in
the Court of Common Pleas for Cuyahoga County on April 26, 1989
against Dr. Damian, Damian Clinic, Inc. ("defendants") and
several other medical care providers who are not parties to
this appeal. Following a trial in July 1991, the jury rendered
a unanimous verdict in favor of plaintiff in the total amount
of $2,781,710. In answering interrogatories submitted to it,
the jury specifically found that the defendants, Dr. Damian and
Damian Clinic, Inc., failed to meet the standards of care
required of them by failing to order a cholangiogram in any of
plaintiff's operations and by failing to transfer him to a
hospital capable of treating his injuries. The jury awarded
plaintiff $800,000 as past damages and $1,981,710 in future
damages, of which $1,396,125 was designated as compensation for
pain and suffering and $585,585 represented lost wages.1
     Defendants timely filed a joint motion for periodic
payments of future damages pursuant to R.C. 2323.57(C).
Contemporaneously, plaintiff filed a motion for prejudgment
interest pursuant to R.C. 1343.03(C). The trial court granted
plaintiff's motion for prejudgment interest. However, the
trial court found R.C. 2323.57, which provides for the periodic
payment of future damages, to be unconstitutional, and
therefore denied the defendants' motion.
     The Eighth District Court of Appeals, in a unanimous
opinion, affirmed the judgment of the trial court.
     This cause is now before this court pursuant to the
allowance of a motion to certify the record.
     Spangenberg, Shibley, Traci, Lancione & Liber, Peter H.
Weinberger, Robert V. Traci and James A. Marx, for appellee.
     Jacobsen, Maynard, Tuschman & Kalur, Janis L. Small and
Anthony P. Dapore; and Fritz Byers, for appellants.
     Jeffries, Kube, Forrest & Monteleone and J. Michael
Monteleone, urging affirmance for amicus curiae, Ohio Academy
of Trial Lawyers.
     Bricker & Eckler, James J. Hughes, Jr. and Catherine M.
Ballard, urging reversal for amici curiae, Ohio Hospital
Association and Ohio State Medical Association.

      A. William Sweeney, J.      R.C. 2323.572 mandates that,
upon timely motion of a party, awards of future damages in
excess of $200,000 be paid periodically rather than in a lump
sum in medical malpractice claims. R.C. 1343.03(C),3 Ohio's
prejudgment interest statute, provides for an award of interest
to be granted in favor of successful tort plaintiffs where the
trial court finds that the defendant failed to act in good
faith to achieve pretrial settlement of the dispute. We are
called upon in this case to determine the constitutionality of
each of these statutes. We affirm the findings of the lower
courts that R.C. 1343.03(C) survives a constitutional
challenge, while R.C. 2323.57 does not.
                                I
           Constitutionality of Ohio's Periodic Payment
                    of Future Damages Statute
      Both lower courts found that R.C. 2323.57 violates the
Right to Jury Trial Clause of Section 5, Article I and the Due
Process Clause of Section 16, Article I of the Ohio
Constitution. For the reasons which follow, we affirm.
      Section 5, Article I of the Ohio Constitution provides
that:
      "The right of trial by jury shall be inviolate, except
that, in civil cases, laws may be passed to authorize the
rendering of a verdict by the concurrence of not less than
three-fourths of the jury."
      It is well established that the right of trial by jury in
this state is a fundamental and substantial right guaranteed by
the Ohio Constitution. Sorrell v. Thevenir (1994), 69 Ohio
St.3d 415, 421, 633 N.E.2d 504, 510; Kneisley v.
Lattimer-Stevens Co. (1988), 40 Ohio St.3d 354, 356, 533 N.E.2d
743, 746; and Cleveland Ry. Co. v. Halliday (1933), 127 Ohio
St. 278, 284, 188 N.E. 1, 3. This court has held there is a
fundamental constitutional right to a trial by jury in
negligence actions. Sorrell, supra, 69 Ohio St.3d at 422, 633
N.E.2d at 510; Kneisley, supra, 40 Ohio St.3d at 357, 533
N.E.2d at 746. Included in that right is the right to have a
jury determine all questions of fact, including the amount of
damages to which the plaintiff is entitled. Sorrell, supra, 69
Ohio St.3d at 422, 633 N.E.2d at 510.
      R.C. 2323.57(C) requires a trial judge, upon timely motion
of any party, to order that any future damages award which
exceeds $200,000 be paid in periodic installments rather than
in a lump sum upon entry of judgment. Moreover, R.C.
2323.57(E)(2) provides, in pertinent part, that "[t]he total
amount paid under this division and the periodic payments plan
shall not exceed the amount of the judgment." R.C.
2323.57(F)(1) further mandates that, if a plaintiff dies prior
to the receipt of all of the periodic payments, all payments
for future medical expenses and for noneconomic loss, such as
pain and suffering, loss of consortium, disfigurement, mental
anguish and any other intangible loss, shall cease.
     In Ohio, a plaintiff is entitled to an award of damages to
compensate him for losses which he is reasonably certain to
incur in the future. Pennsylvania Co. v. Files (1901), 65 Ohio
St. 403, 407, 62 N.E. 1047; Roberts v. Mut. Mfg. (1984), 16
Ohio App.3d 324, 16 OBR 355, 475 N.E.2d 797. Under the common
law of Ohio, future damages must be reduced to present value,
and a defendant is entitled to a jury instruction to that
effect. Maus v. New York, Chicago & St. Louis Rd. Co. (1956),
165 Ohio St. 281, 59 O.O. 366, 135 N.E.2d 253, paragraph one of
the syllabus. Thus in Ohio, a jury is to return a verdict not
in an amount reflecting the actual damages it deems to be
reasonably certain to occur in the future, but rather in a
reduced amount representing the present value of those actual
damages.
     It is evident that application of R.C. 2323.57 to a jury
verdict does not merely mandate the manner in which a judgment
shall be paid; rather, it requires the trial court to further
reduce the jury's award of damages already once reduced to
present value. Application of the statute quite simply results
in a successful plaintiff receiving less than the jury awarded,
and deprives the most severely injured victims of the benefits
of investment.
     That R.C. 2323.57 regulates more than merely the manner in
which a judgment is paid and instead reduces the actual value
of the verdict can be illustrated by comparing two hypothetical
plaintiffs, both of whom receive future damages awards of
$1,000,000. Assume the first plaintiff receives his entire
judgment in a lump sum, but determines to use the proceeds to
purchase an annuity. Assume the second plaintiff is subjected
to application of R.C. 2323.57. Obviously the stream of income
produced by investment in an annuity by the first plaintiff of
the entire $1,000,000 will exceed the payout generated in the
second case, where the entirety of the judgment (except the
first $200,000) will be received in the future with no regard
for the effect of inflation and no interest or other investment
appreciation. This is assured by application of R.C.
2323.57(E)(2), which specifically provides that "[t]he total
[lump sum] amount paid under this division and the periodic
payments plan shall not exceed the amount of the judgment." It
is readily apparent that R.C. 2323.57 effectively reduces a
jury's award without the consent of the plaintiff.4
     For the foregoing reason we find that R.C. 2323.57(C)
invades the jury's province to determine damages, and that the
statute violates a plaintiff's right to trial by jury as
guaranteed by Section 5, Article I of the Ohio Constitution.
     Nor is R.C. 2323.57 consistent with the Due Process Clause
of the Ohio Constitution. Section 16, Article I of the Ohio
Constitution guarantees that every person who suffers a legally
compensable injury "shall have remedy by due course of
law.***" This provision is the equivalent of the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution. Direct Plumbing Supply Co. v. Dayton (1941), 138
Ohio St. 540, 544, 21 O.O. 422, 424, 38 N.E.2d 70, 72.
     The trial court found R.C. 2323.57 to be "unreasonable,
arbitrary, and [to have] no reasonable relationship to any good
which may have been perceived by the Legislature to benefit the
public health and welfare." The court of appeals concurred
that R.C. 2323.35 is unconstitutional based upon due process
grounds. We agree with the lower courts that R.C. 2323.57
violates the Due Process Clause of the Ohio Constitution for
the reasons set forth in Sorrell, supra. There is insufficient
evidence of a relationship between tort reform legislation and
the availability or affordability of medical malpractice
insurance. Id., 69 Ohio St.3d at 423, 633 N.E.2d at 511.
     Therefore, we hold that R.C. 2323.57, which requires a
trial court upon motion of a party to order that any future
damages award in excess of $200,000 be paid in a series of
periodic payments, is unconstitutional in that it violates the
Right to Jury Trial Clause (Section 5, Article I) and the Due
Process Clause of Ohio Constitution (Section 16, Article I).
                               II
            Constitutionality of Ohio's Prejudgment
                Interest Statute (R.C. 1343.03)
     This court recently analyzed Ohio's prejudgment interest
statute at length in Moskovitz v. Mt. Sinai Med. Ctr. (1994),
69 Ohio St.3d 638, 635 N.E.2d 331, but we were not in that
case called upon to consider the constitutionality of R.C.
1343.03. The defendants herein make essentially the same
argument we rejected in Kalain v. Smith (1986), 25 Ohio St.3d
157, 160, 25 OBR 201, 203, 495 N.E.2d 572, 574, i.e., that
imposing a "good faith effort to settle" requirement forces a
defendant to forgo the right of having a jury determine the
existence of his liability in tort.
     We reaffirm our holding in Kalain that "R.C. 1343.03(C)
does not infringe upon a party's right to a jury trial[.]" Id.
at 160, 25 OBR at 203, 495 N.E.2d at 574. It is true that a
defendant who chooses to try a case before a jury rather than
settle it risks the possibility that he may ultimately be found
liable for a larger total judgment if prejudgment interest is
awarded. However, the potential application of R.C. 1343.03 in
no way precludes a defendant from insisting on exercising his
right to trial by jury nor does it "create a financial barrier
that prevents a *** party from taking his case to a jury."
Kuenzer v. Teamsters Union Local 507 (1981), 66 Ohio St.2d 201,
203, 20 O.O.3d 205, 207, 420 N.E.2d 1009, 1011, fn. 6. The
defendant's right of access to a jury for determination of
factual issues remains unimpaired.
     We similarly reject defendants' contention that R.C.
1343.03 imposes a penalty upon defendants for having exercised
their right to a jury where prejudgment interest is awarded
against them. In Digital & Analog Design Corp. v. N. Supply
Co. (1992), 63 Ohio St.3d 657, 590 N.E.2d 737, we found such an
award to be compensatory in nature rather than punitive.
Writing for the majority, Justice Wright noted that "the
"prejudgment interest statute is designed to compensate the
aggrieved party for the delay encountered by the failure of the
tortfeasor to negotiate in good faith," and "ensures that just
compensation to the tort victim is not eroded by the dilatory
tactics of the tortfeasor. ***" Id. at 660-661, 590 N.E.2d at
746. In such a case the defendant "allow[s] the interest
monies on the [defendant's monetary reserves] to accumulate to
the benefit of the party required to pay and to the detriment
of the part to whom the money is to be paid ***." Dailey v.
Nationwide Demolition Derby, Inc. (1984), 18 Ohio App. 3d 39,
41, 18 OBR 108, 110, 480 N.E.2d 110, 112. Where a defendant
benefits monetarily as a result of failing to negotiate
possible settlement in good faith, R.C. 1343.03 does not
constitute a penalty, but, to the contrary, is wholly
compensatory, and indeed equitable, in nature.
     Similarly, it is the jury's function to determine the
amount of damages suffered by a plaintiff. Since determining
the amount of prejudgment interest awards is entirely separate
and distinct from determinations of the amount of damages
suffered by the plaintiff, and does not involve questions of
fact, R.C. 1343.03 does not violate the fundamental
constitutional right to trial by jury.
     Defendant's contention that R.C. 1343.03 violates the Due
Process Clause of the Ohio Constitution is unfounded.
Prejudgment interest statutes have consistently been found to
be constitutional by courts both in Ohio and elsewhere. See,
e.g., Hardiman v. Zep Mfg. Co. (1984), 14 Ohio App.3d 222, 14
OBR 250, 470 N.E.2d 941; Mills v. Dayton (1985), 21 Ohio App.
3d 208, 21 OBR 222, 486 N.E.2d 1209; Edgerson v. Cleveland
Elec. Illum. Co. (1985), 28 Ohio App. 3d 24, 28 OBR 34, 501
N.E.2d 1211. See, generally, Annotation, Validity and
Construction of State Statute or Rule Allowing or Changing Rate
of Prejudgment Interest in Tort Actions (1985), 40 A.L.R.4th
147. While this is not dispositive of our inquiry, we do agree
with the overwhelming weight of authority that prejudgment
interest statutes are rationally related to the legitimate
goals of encouraging prompt resolution of disputes, and
ensuring prompt payment of compensation to parties injured by
tortious conduct.
     For the foregoing reasons, we hold that R.C. 1343.03(C),
which authorizes an award of prejudgment interest in a tort
action against a defendant who failed to act in good faith to
settle, does not violate either the Due Process Clause (Section
16, Article I) or the Right to Jury Trial Clause (Section 5,
Article I) of the Ohio Constitution by imposing a penalty for
exercise of that right.
     The defendants further contend that the trial court
improperly applied the standards established in Kalain in
awarding prejudgment interest to plaintiff. The defendants
assert that prejudgment interest cannot be awarded if a motion
for summary judgment or directed verdict could not have been
appropriately granted in plaintiff's favor on the issue of
liability. Defendants contend that in such circumstances
reasonable minds could differ on the issue of liability,
thereby necessitating the conclusion that the defendant had a
good faith, objectively reasonable belief of nonliability and
was thus not required to make a monetary settlement offer or
counteroffer. The defendants base this argument on the last
sentence of the syllabus in Kalain which states: "If a party
has a good faith, objectively reasonable belief that he has no
liability, he need not make a monetary settlement offer." Id.,
25 Ohio St.3d 157, 25 OBR 201, 495 N.E.2d 572.
     We decline to impose summary judgment or directed verdict
analytical criteria into prejudgment interest proceedings.
Existence of a good faith, objectively reasonable belief of
nonliability does not excuse a defendant from the remaining
Kalain obligations to (1) fully cooperate with discovery, (2)
rationally evaluate risks and potential liability, and (3)
refrain from unnecessary delaying maneuvers. Id. at syllabus.
Moreover, the "good faith, objectively reasonable belief"
language of Kalain must be "strictly construed so as to carry
out the purposes of R.C. 1343.03." Moskovitz, 69 Ohio St.3d at
659, 635 N.E.2d at 348. The purposes of R.C. 1343.03 would not
be furthered by construing the evidence most favorably to the
party opposing a motion for prejudgment interest as a trial
court must do when ruling on a motion for directed verdict or
summary judgment, nor by limiting the examination of the
defendant's conduct to the time of the trial or the evidence
presented at trial. A defendant may well have fallen short of
the good faith requirement of R.C. 1343.03 even where a trial
court would have been justified in overruling a motion for
summary judgment prior to trial, or a motion for directed
verdict made during trial.
     We have reviewed the record established in the prejudgment
interest hearing held in the case at bar and find that the
trial court was well within its discretion in ordering
prejudgment interest pursuant to R.C. 1343.03. The trial court
found that the defendants had stated a position of "no offer
and no settlement in such unmistakably rigid terms" following
presentation of plaintiff's initial settlement demand that
plaintiff's presentation of any reduced demand would have been
"a vain act" and that the defendants had thereby "effectively
terminated all chance for good faith negotiation." The court
concluded that the defendants had "not rationally evaluate[d]
the essential risks of a plaintiff's verdict, and had failed to
respond in good faith" to a good faith offer from the
plaintiff. A trial court does not abuse its discretion in
awarding prejudgment interest where, as here, a defendant "just
says no" despite a plaintiff's presentation of credible medical
evidence that the defendant physician fell short of the
standard of professional care required of him, where it is
clear that the plaintiff has suffered injuries, and where the
causation of those injuries is arguably attributable to the
defendant's conduct. We find the trial court's determinations
on this issue wholly in accord with the purposes of R.C.
1343.03 and with the standards set forth in Kalain and
Moskovitz, supra.
                              III
                   Alleged Evidentiary Error
     The defendants argue that a defense expert's testimony
should not be deemed inadmissible merely because it is
expressed in terms of possibilities. In the case at bar, the
trial court sustained an objection to the testimony of defense
expert Dr. Donald Fry that "there are a host of blood vessels
that could be responsible" for a leak of blood into plaintiff's
stomach, advising the witness that "possibilities are not
admissible." The defendants further argue that the trial court
improperly precluded Dr. Fry from testifying that the
plaintiff's bile duct injury was more likely to occur during
gastrectomy surgery. Defendants suggest that this evidence
tended to prove that plaintiff's bile duct leak may have been a
result of surgery performed by Dr. Eckhauser after plaintiff
was transferred to Cleveland Metro, and not as a result of the
actions of defendants or of the automobile accident.
     The primary rule governing admissibility of expert
testimony provides: "If scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion or otherwise." Evid.R. 702. An analysis of an
expert's testimony in terms of whether it expresses a degree of
certainty in excess of fifty percent may not in every case be
conclusive of the admissibility of the expert's opinion.
Accord Stinson v. England (1994), 69 Ohio St.3d 451, 633 N.E.2d
532 (no error in allowing defense expert to testify, in effect,
that the event she believed had caused plaintiff's injuries was
more likely than cause propounded by plaintiff). Similarly,
the Rules of Evidence authorize exclusion of evidence,
including expert testimony, where the court finds in a sound
exercise of discretion that the probative value of the opinion
is outweighed by the danger of undue prejudice or confusion of
the issues (Evid. R. 403) or that the opinion is inadmissible
pursuant to some other Rule of Evidence. The question whether
any particular expert's testimony, standing alone, would
satisfy the burden of proof required of a party is a separate
and distinct issue which is decided according to criteria
different from those used to determine admissibility.
     Turning to the case at bar, we find that in answering the
interrogatories propounded to it, this jury found that
defendants failed to meet accepted standards of care based on
defendant Damian's failure to timely order a cholangiogram and
to transfer plaintiff to a hospital more capable of handling
his injuries. The jury did not find professional negligence on
the part of Dr. Damian in causing the bile duct leak. The
court's refusal5 to allow Dr. Fry to testify more extensively
concerning other possible causes of that leak would not have
affected the jury's ultimate findings of negligence. We find
on this record that error in limiting Dr. Fry's expert
testimony, if any, can only be considered harmless.
                                    Judgment affirmed.
     Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
     Moyer, C.J., and Wright, J., dissent.

FOOTNOTES:
     1 Plaintiff sought no compensation for future medical
expenses.
     2 R.C. 2323.57 provides, in part: "(C) *** [I]f the
total of the future damages described in division (B)(1)(b) of
this section exceeds two hundred thousand dollars, then, at any
time after the verdict or determination in favor of the
plaintiff in question is rendered by the trier of fact but
prior to the entry of judgment in accordance with Civil Rule
58, the plaintiff or the defendant in question may file a
motion with the court that requests the court to include an
order in the journal entry that the future damages in excess of
two hundred thousand dollars shall be paid in periodic payments
rather than in a lump sum. If such a motion is timely filed,
the court shall include in the journal entry an order that
includes all of the following:
     "(1) A requirement that the first two hundred thousand
dollars in future damages be paid in a lump sum ***;
     "***
     "(2) A requirement that the future damages in excess of
the two hundred thousand dollars paid in a lump sum *** be used
to fund a series of periodic payments over a period of time in
accordance with divisions (D), (E), and (F) of this section."
(Emphasis added.)
     The full text of R.C. 2323.57 is reproduced as an appendix
to this opinion.
     3 R.C. 1343.03(C) provides as follows:
     "Interest on a judgment, decree, or order for the payment
of money rendered in a civil action based on tortious conduct
and not settled by agreement of the parties, shall be computed
from the date the cause of action accrued to the date on which
the money is paid, if, upon motion of any party to the action,
the court determines at a hearing held subsequent to the
verdict or decision in the action that the party required to
pay the money failed to make a good faith effort to settle the
case and that the party to whom the money is to be paid did not
fail to make a good faith effort to settle the case."
     4 Legislatively imposed remittiturs may well violate the
doctrine of separation of powers. See Murphy v. Edmonds (Md.
1992), 325 Md. 342, 380, 601 A.2d 102, 120 (Chasanow, J.,
dissenting), citing Sofie v. Fibreboard Corp. (1989), 112
Wash.2d 636, 652-654, 771 P.2d 711, 720-721.
     5 In fact, the record shows that a great deal of "other
cause" testimony by Dr. Fry was eventually allowed by the trial
court.
                             APPENDIX
     R.C. 2323.57 provides as follows:
     "(A) As used in this section:
     "(1) 'Economic loss' means any of the following types of
pecuniary harm:
     "(a) All wages, salaries, or other compensation lost as a
result of an injury, death, or loss to person or property that
is a subject of a civil action upon a medical, dental,
optometric, or chiropractic claim;
     "(b) All expenditures for medical care or treatment,
rehabilitation services, or other care, treatment, services,
products, or accommodations as a result of an injury, death, or
loss to person or property that is a subject of a civil action
upon a medical, dental, optometric, or chiropractic claim;
     "(c) Any other expenditures incurred as a result of an
injury, death, or loss to person or property that is a subject
of a civil action upon a medical, dental, optometric, or
chiropractic claim, other than attorney's fees incurred in
connection with that action.
     "(2) 'Future damages' means damages that result from an
injury, death, or loss to person or property that is a subject
of a civil action upon a medical, dental, optometric, or
chiropractic claim and that will accrue after the verdict or
determination of liability by the trier of fact is rendered in
that action.
     "(3) 'Medical claim,' 'dental claim,' 'optometric claim,'
and 'chiropractic claim' have the same meanings as in division
(D) of section 2305.11 of the Revised Code.
     "(4) 'Noneconomic loss' means nonpecuniary harm that
results from an injury, death, or loss to person or property
that is a subject of a civil action upon a medical, dental,
optometric, or chiropractic claim, including, but not limited
to, pain and suffering, loss of society, consortium,
companionship, care, assistance, attention, protection, advice,
guidance, counsel, instruction, training, or education,
disfigurement, mental anguish, and any other intangible loss.
     "(5) 'Past damages' means damages that result from an
injury, death, or loss to person or property that is a subject
of a civil action upon a medical, dental, optometric, or
chiropractic claim and that have accrued by the time that the
verdict or determination of liability by the trier of fact is
rendered in that action.
     "(6) 'Trier of fact' means the jury or, in a nonjury
action, the court.
     "(B)(1) In any civil action upon a medical, dental,
optometric, or chiropractic claim that is tried to a jury and
in which a plaintiff makes a good faith claim against the
defendant in question for future damages that exceed two
hundred thousand dollars, upon motion of that plaintiff or the
defendant in question, the court shall instruct the jury to
return, and the jury shall return, a general verdict and, if
that verdict is in favor of the plaintiff, answers to
interrogatories that shall specify all of the following:
     "(a) The past damages recoverable by that plaintiff;
     "(b) The future damages recoverable by that plaintiff, and
the portions of those future damages that represent each of the
following:
     "(i) Noneconomic loss;
     "(ii) Economic loss;
     "(iii) Economic loss as described in division (A)(1)(a) of
this section;
     "(iv) Economic loss as described in division (A)(1)(b) of
this section;
     "(v) Economic loss as described in division (A)(1)(c) of
this section.
     "(2) In any civil action upon a medical, dental,
optometric, or chiropractic claim that is tried to a court and
in which a plaintiff makes a good faith claim against the
defendant in question for future damages that exceed two
hundred thousand dollars, upon motion of that plaintiff or the
defendant in question, the court shall make its determination
in the action and, if that determination is in favor of that
plaintiff, make findings of fact that shall specify damages as
provided in division (B)(1) of this section.
     "(C) If answers to interrogatories are returned or
findings of fact are made pursuant to division (B) of this
section and if the total of the future damages described in
division (B)(1)(b) of this section exceeds two hundred thousand
dollars, then, at any time after the verdict or determination
in favor of the plaintiff in question is rendered by the trier
of fact but prior to the entry of judgment in accordance with
Civil Rule 58, the plaintiff or the defendant in question may
file a motion with the court that requests the court to include
an order in the journal entry that the future damages in excess
of two hundred thousand dollars shall be paid in periodic
payments rather than in a lump sum. If such a motion is timely
filed, the court shall include in the journal entry an order
that includes all of the following:
     "(1) A requirement that the first two hundred thousand
dollars in future damages be paid in a lump sum on a pro rata
basis from among the amounts of damages awarded that represent
the following four types of loss:
     "(a) Noneconomic loss as specified pursuant to division
(B)(1)(b)(i) of this section;
     "(b) Economic loss as specified pursuant to division
(B)(1)(b)(iii) of this section;
     "(c) Economic loss as specified pursuant to division
(B)(1)(b)(iv) of this section;
     "(d) Economic loss as specified pursuant to division
(B)(1)(b)(v) of this section.
     "(2) A requirement that the future damages in excess of
the two hundred thousand dollars paid in a lump sum pursuant to
division (C)(1) of this section be used to fund a series of
periodic payments over a period of time in accordance with
divisions (D), (E), and (F) of this section.
     "(D)(1)(a) If any party to a civil action upon a medical,
dental, optometric, or chiropractic claim files a motion
pursuant to division (C) of this section requesting that the
future damages in excess of two hundred thousand dollars to be
received by a plaintiff in the action be paid in a series of
periodic payments, that plaintiff, within twenty days after the
motion if filed, shall submit a periodic payments plan to the
court. The plan may include, but is not limited to, a
provision for a trust or an annuity, and may be proposed by
that plaintiff alone or by that plaintiff and the defendant in
question.
     "(b) If that defendant and that plaintiff do not jointly
submit a periodic payments plan, then, within twenty days after
the motion requesting the payment of future damages in a series
of periodic payments is filed pursuant to division (C) of this
section, that defendant may submit to the court a periodic
payments plan. If the defendant does so, the plan may include,
but is not limited to, a provision for a trust of an annuity.
     "(c) If that defendant and that plaintiff do not jointly
submit a periodic payments plan and if that defendant does not
separately submit a periodic payments plan pursuant to division
(D)(1)(b) of this section, then, within ten days after that
plaintiff submits a periodic payments plan, that defendant may
submit to the court written comments relative to the periodic
payments plan of that plaintiff. If that defendant and that
plaintiff do not jointly submit a periodic payments plan and if
that defendant separately submits a periodic payments plan
pursuant to division (D)(1)(b) of this section, then, within
ten days after that defendant submits the plan, that plaintiff
may submit to the court written comments relative to the
periodic payments plan of that defendant.
     "(d) The court may modify, approve, or reject any
submitted periodic payments plan.
      "(e) After a periodic payments plan is approved, the
future damages that are to be received in periodic payments
shall be paid in accordance with the plan, including, if
applicable, payment over to a trust or annuity provided for in
the plan.
      "(2) If a motion requesting the payment of future damages
in a series of periodic payments is not filed pursuant to
division (C) of this section with respect to any plaintiff in
an action upon a medical, dental, optometric, or chiropractic
claim, all future damages awarded to that plaintiff shall be
paid in a lump sum.
      "(3) The court shall specify in the entry of judgment in
the civil action the terms of any approved periodic payments
plan.
      "(E)(1) The court shall include in any approved periodic
payments plan adequate security to insure that the plaintiff in
question will receive all of the periodic payments under the
approved plan. If the approved periodic payments plan includes
a provision for an annuity, the defendant in question shall
purchase the annuity from the following types of insurance
companies:
      "(a) An insurance company that the A.M. Best Company, in
its most recently published rating guide of life insurance
companies, has rated A or better and has rated XII or higher as
to financial size or strength;
      "(b)(i) An insurance company that the superintendent of
insurance, under rules adopted pursuant to Chapter 119. of the
Revised Code for purposes of implementing this division,
determines is licensed to do business in this state and,
considering the factors described in division (E)(1)(b)(ii) of
this section, is a stable insurance company that issues
annuities that are both safe and desirable;
      "(ii) In making determinations as described in division
(E)(1)(b)(i) of this section, the superintendent shall consider
the financial condition, general standing, operating results,
profitability, leverage, liquidity, amount and soundness of
reinsurance, adequacy of reserves, and the management of an
insurance company, shall consider any other relevant factors,
and shall be guided by the principle that the trier of fact in
a tort action should be presented only with evidence as to the
cost of annuities that are both safe and desirable for the
plaintiffs in such an action who are awarded damages. In
making such determinations, the superintendent also may
consider ratings, grades, and classifications of any nationally
recognized rating services of insurance companies.
      "(2) No plaintiff who is the subject of an approved
periodic payments plan shall receive a lump sum payment that is
less than the plaintiff's cost of litigation, including, but
not limited to, attorney's fees, plus two hundred thousand
dollars. The total amount paid under this division and the
periodic payments plan shall not exceed the amount of the
judgment.
      "(F) If a court orders a series of periodic payments of
future damages in accordance with this section, the following
rules shall govern those payments if the plaintiff in question
dies prior to the receipt of all of them:
      "(1) The liability for the portion of those payments that
represents future economic loss as specified pursuant to
division (B)(1)(b)(iv) of this section and future noneconomic
loss of that plaintiff as specified pursuant to division
(B)(1)(b)(i) of this section and that is not due at the time of
his death shall cease at that time;
     "(2) The liability for the portion of those payments not
described in division (F)(1) of this section shall continue,
but the payments shall be paid to the heirs of that plaintiff
as scheduled in and otherwise in accordance with the approved
periodic payments plan or, if the approved payments plan does
not contain a relevant provision, as the court shall order.
     "(G)(1) Nothing in this section precludes a plaintiff in
question and a defendant in question from mutually agreeing to
a settlement of the action.
     "(2) Except as provided in division (C)(2) or (F) of this
section, nothing in this section increases the time for filing
any motion or notice of appeal or taking any other action
relative to a civil action upon a medical, dental, optometric,
or chiropractic claim, alters the amount of any verdict or
determination of damages by the trier of fact in a civil action
upon a medical, dental, optometric, or chiropractic claim, or
alters the liability of any party to pay or satisfy any such
verdict or determination.
     "(H) This section does not apply to civil actions against
political subdivisions of this state that are commenced under
or are subject to Chapter 2744. of the Revised Code or to civil
actions against the state in the court of claims."
     Moyer, C.J., dissenting.    Once again, the majority has
declared unconstitutional an Act of the General Assembly that
is neither unconstitutional by any accepted standard of review
nor bad public policy.
     Consistent with my views in Morris v. Savoy (1991), 61
Ohio St.3d 684, 576 N.E.2d 765, and Sorrell v. Thevenir (1994),
69 Ohio St.3d 415, 633 N.E.2d 504 (dissenting), I would hold
that the periodic payment plan for future awards provided by
R.C. 2323.57 violates neither a plaintiff's right to trial by
jury nor his right to due process.
     In determining the constitutionality of any statute, the
analysis must begin with the well-established rule that all
legislative enactments enjoy a strong presumption of
constitutionality. Sorrell, supra, at 418-419, 633 N.E.2d at
508, citing State ex rel. Dickman v. Defenbacher (1955), 164
Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the
syllabus. Therefore, the party challenging the statute has the
burden of proving that it is unconstitutional, and if
reasonable doubt exists, the doubt must be resolved in favor of
the statute's validity. Moreover, it is not the function of
this court to assess the wisdom or policy of a statute but,
rather, to determine whether the General Assembly acted within
its legislative power. State ex rel. Bishop v. Mt. Orab
Village Bd. of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494,
498, 40 N.E.2d 913, 919.
     The majority misconstrues the scope of Section 5, Article
I of the Ohio Constitution. I agree with the majority that the
right to a trial by jury includes a determination by the jury
of all questions of fact, as well as the amount of compensatory
damages to which the plaintiff is entitled. Once the jury has
resolved the facts and assessed the damages, however, the
constitutional right is satisfied. The inviolate right to
trial by jury does not mean the award of damages is inviolate.
Surely, if the rationale used by the majority to support its
judgment is extended beyond this case, judges should no longer
be authorized to enter judgments notwithstanding the verdict or
order remittiturs of a jury's determination of damages. While
a party has a constitutional right to have a jury assess
damages for injury, the party has no right to have a jury
dictate the legal process by which the jury award is
satisfied. It is a startling new thought that the legislative
branch does not have the constitutional authority to create
that legal process. It is the province of the legislative
branch to determine policy issues relating to the method by
which jury awards are satisfied.
     R.C. 2323.57 does nothing more than provide a remedy in
the form of periodic payments of the award determined by the
jury or by a court in a bench trial. R.C. 2323.57 does not
infringe upon the right to a jury trial because the statute
does not apply until after the jury has completed its assigned
function in the judicial process. To hold otherwise runs
contrary to our common law and Rules of Civil Procedure which
provide the trial court with plenary control over judgments.
     The majority also finds that R.C. 2323.57 violates the due
process of law provision of Section 16, Article I of the Ohio
Constitution. Because no fundamental right or suspect class is
involved, our standard for review of the statute should be a
"rational basis" test. We have held that under this test "'[a]
legislative enactment will be deemed valid on due process
grounds "*** [1] if it bears a real and substantial relation to
the public health, safety, morals or general welfare of the
public and [2] if it is not unreasonable or arbitrary."'"
(Citations omitted.) Morris, 61 Ohio St.3d at 688-689, 576
N.E.2d at 769. Certainly, a statute designed to respond to the
growing concerns regarding the continued delivery of health
care to the citizens of Ohio at affordable costs survives such
minimal scrutiny. R.C. 2323.57 is simply an economic
regulation and is entitled to wide judicial deference.
     Because no fundamental right of the plaintiff has been
violated and periodic payment of future damages provided by
R.C. 2323.57 is a rational exercise of the General Assembly's
authority, I dissent from the majority's decision.
     Wright, J., concurs in the foregoing dissenting opinion.
