Thought Leadership

Earlier this year, the 10^th District and the 8^th District in Lyon v. Riverside Methodist Hospital, 2025-Ohio-2991 (10^th Dist.) and Paganini v. Cataract Eye Center of Cleveland, 2025-Ohio-275 (8^th Dist.), respectively, held that Ohio’s medical malpractice non-economic damages cap is unconstitutional as applied to the plaintiff-appellees. Ohio’s 6^th District in its case, McNalley v. Keiser, 2025-Ohio-5561 (6^th Dist.), held that the plaintiff did not meet its burden of showing that the non-economic damages cap was unconstitutional as applied.

McNalley sued radiologist Dr. Keiser and his employer after Keiser allegedly failed to diagnose a blood clot, resulting in extensive bowel loss and short-gut syndrome. At trial, a jury awarded McNalley approximately $5.15 million, including $4.5 million in non-economic damages. Dr. Keiser moved to apply the statutory cap on non-economic damages for medical claims, which limits recovery to $500,000 for plaintiffs who suffer catastrophic injuries. Mr. McNalley opposed the motion, arguing that the statute violated both due process and equal protection as applied to him, although the 6^th District noted that the substance of McNalley’s arguments suggested he was arguing that the statute was unconstitutional on its face. The trial court denied the motion, holding the cap unconstitutional as applied to McNalley, but declined to find the statute unconstitutional on its face.

On appeal, the Sixth District emphasized the critical distinction between facial and as-applied constitutional challenges. In a rational basis analysis, as used here, to show that a statute is unconstitutional on its face, the movant must show beyond a reasonable doubt that there is no set of circumstances under which the statute may be valid. To show a statute as unconstitutional as applied, a movant must show clear and convincing evidence of a presently existing set of facts that makes the statute unconstitutional when those facts are applied. Although McNalley framed his argument as an as-applied due process challenge, the court found that he failed to present clear and convincing, case-specific facts showing that the statute was unreasonable or arbitrary as applied to him. Instead, his arguments—like those relied upon by the trial court—amounted to a broader attack on the statute’s treatment of all catastrophically injured medical malpractice plaintiffs, which constitutes a facial challenge, and he did not meet the heightened standard.

The court was not persuaded by the holding in Paganini, going so far as to indicate that they would have agreed with the defendants that the challenge in Paganini was actually a facial challenge and would have held differently. Correspondingly, the court held that the holding in Lyon was appropriately found, based upon articulated and specific facts as applied to the plaintiff. In this case, the court noted that both parties’ arguments were nearly devoid of facts, thereby only allowing it to view the challenge as a facial challenge.

Because McNalley did not meet the heightened burden required for a facial challenge, and because the record lacked specific factual findings supporting an as-applied challenge, the 6^th District concluded that the statutory cap must be enforced. The Sixth District reversed the trial court’s judgment and remanded the case with instructions to apply the noneconomic damages cap under R.C. 2323.43(A)(3), reinstating the statutory limitation on McNalley’s recovery. The Ohio Supreme Court is scheduled to hear oral arguments in Paganini on February 10, 2026. The decision in Lyon has not been appealed to the Ohio Supreme Court.