Brandt v. PompaBrandt v. Pompa
Case Information
*1
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Brandt v. Pompa
, Slip Opinion No.
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. LIP PINION N O . 2022-O -4525
B RANDT , A PPELLANT , v . P OMPA , A PPELLEE , ET AL .
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as
Brandt v. Pompa
, Slip Opinion No.
process of law—Article I, Section 16, Ohio Constitution—Statutory cap on awards of compensatory damages for noneconomic losses set forth in R.C. 2315.18 is arbitrary and unreasonable and therefore unconstitutional as applied to plaintiff and similarly situated plaintiffs who were child victims of intentional criminal conduct, such as sexual abuse, and who bring civil actions to recover damages from the persons who have been found guilty of those intentional criminal acts to the extent that it fails to include an exception for plaintiffs who have suffered permanent and severe psychological injuries—Judgment reversed—Jury verdict on damages reinstated.
(No. 2021-0497—Submitted March 30, 2022—Decided December 16, 2022.)
A PPEAL from the Court of Appeals for Cuyahoga County,
No. 109517,
__________________
O’C ONNOR , C.J. In this appeal, we determine whether the compensatory-damages caps
for noneconomic loss in R.C. 2315.18 are unconstitutional as applied to appellant, Amanda Brandt. A jury found that Brandt was entitled to a total-damages award that included $20 million in compensatory damages for noneconomic loss against appellee, Roy Pompa, who sexually abused Brandt when she was a child. The trial court applied the statutory damages cap in R.C. 2315.18 and limited the award for noneconomic loss to $250,000. We find the statutory cap as applied to this portion of Brandt’s award to be arbitrary and unreasonable and thus in violation of the due- course-of-law guarantee of the Ohio Constitution. See Article I, Section 16, Ohio Constitution. We therefore hold that R.C. 2315.18 is unconstitutional as applied to Brandt.
I. RELEVANT BACKGROUND In 2006, Pompa was arrested and charged with, among other things,
17 counts of rape, 5 counts of kidnapping, 55 counts of pandering sexually oriented matter involving a minor, and 21 counts of gross sexual imposition. Pompa was accused of committing these acts against Brandt and other victims. Brandt was 11 and 12 years old when the incidents occurred. A jury found Pompa guilty of over 90 counts, 34 of which involved
acts against Brandt. [1] The court sentenced Pompa to life in prison. 1. The offenses committed against Brandt for which Pompa was found guilty occurred on seven different occasions in 2004 and 2005 and included 18 counts of gross sexual imposition, 8 counts of rape, 3 counts of kidnapping, 4 counts of pandering sexually oriented matter involving a minor under 13 years of age, and 1 count of illegal use of a minor in nudity-oriented material.
2 In 2018, Brandt filed a civil complaint against Pompa [2] in the
Cuyahoga County Court of Common Pleas for intentional criminal wrongdoing, knowing dissemination of child pornography, and intentional infliction of emotional distress. She also asked the trial court for a declaratory judgment holding R.C. 2315.18 unconstitutional as applied to her case. The trial court held that based on the verdicts in the criminal case and Pompa’s admissions, there was no genuine issue of material fact as to Pompa’s liability in the tort action. A jury trial was commenced solely to determine the type and amount of Brandt’s damages. At the damages trial, the jury learned of the 34 criminal offenses committed against Brandt for which Pompa was convicted, and the jury viewed Pompa’s testimony from a videotaped deposition. The jury also heard testimony from Brandt and Brandt’s mother, as well as expert testimony from a clinical psychologist. Brandt testified that Pompa was a friend of the Brandt family and that
one of Pompa’s daughters was her childhood best friend. Brandt frequently
attended sleepovers at Pompa’s residence, just a mile away from her home. Brandt
recalled that before going to bed at the sleepovers, Pompa would offer her a juice
box, iced tea, or water. She said that although it did not strike her at the time, “there
was not a morning [after a sleepover] that [she] didn’t wake up a little blurry, fuzzy
feeling, * * * groggy.” The Eighth District Court of Appeals found that “[o]n many
occasions, Pompa put illicit substances in Brandt’s drinks before she went to sleep
in order to commit sexual acts against her without her knowing or being fully
aware.”
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longer wanted to go to the Pompa residence. She realized that “something was not right” there, and she felt “very panicked at the idea of going over” there. She said, “I tried very hard to not get put back into that home.” Pompa admitted the sexual abuse involved him masturbating on Brandt, ejaculating on her, including on her face, and abusing her with a dildo or vibrator. The Eighth District found that Pompa recorded his sexual abuse of Brandt on at least eight occasions. Id. at ¶ 6. Pompa also admitted using a “spy cam” to view his daughter’s friends when they visited the house. Brandt told the jury she “was a pretty normal kid” until the abuse. Her
mother described Brandt prior to the abuse as follows:
She was a beautiful, happy-go-lucky friend to everyone. She wanted to conquer the world, loved to travel, loved to go places, had big dreams, was involved in a lot of school activities. You know, she was friends with sports people. She was friends with drama people. She was friends with * * * honor students * * *. She was, like, a friend to everyone. She was involved in church. She went [on] all kinds of mission trips. She just had a big heart and was very outgoing. Brandt’s mother testified that her daughter became a recluse after the
abuse: “Her anxiety level was huge. She never wanted to go anywhere. We saw this beautiful, outgoing child turn into someone that didn’t want to leave. She just wanted to be alone.” Brandt’s mother said that her daughter became angry and had sleeping problems. These issues prompted Brandt’s mother to take Brandt to see a therapist twice a week, even though the therapist was not close to their home. Brandt’s mother testified that the abuse had “totally changed” her daughter. She explained, “I do not have the same daughter anymore. She has a lot of anger, has
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a lot of anxiety issues. She can’t handle being at a lot of family functions. She has to go to another room when everyone is there. She just is not the same kid that we knew growing up and even now in her adulthood.” Brandt also testified to the changes she experienced as a result of the
abuse. She started having nightmares after the first time Pompa sexually abused her, and she continues to have nightmares, including ones in which Pompa appears. Brandt told the jury that she became a “very angry kid” after the abuse started. She read for the jury a statement she had prepared for Pompa’s sentencing in the criminal case. In that statement, she described having been involved in clubs, community service, and social activities before the abuse. She wrote about losing her relationship with her best friend, Pompa’s daughter. She described having difficulty sleeping and having serious emotional problems. “Most of the time I don’t know what to feel,” she wrote. “When I do, it’s always anger.” She also wrote about not being able to remember anything at school, which caused her grades to suffer and affected which classes she was able to take in high school. Brandt testified that after the abuse stopped, she graduated from high school and moved out of her parents’ home into an apartment, but she had trouble keeping a job. About her first full-time job, she explained, “[M]y anxiety had been getting worse at that point and after a couple of years there, I was no longer able to meet my requirements and I ended up getting terminated from that job because I could no longer do the things required.” She eventually found a door-to-door-sales job, which was worked in pairs. Her coworker offered her heroin, assuring Brandt that she “would feel better” if she tried it. Brandt did try it and became addicted. She told the jury that at that time, she was “desperate for anything that would make [her] feel okay.” At the beginning of her drug addiction, Brandt lost her apartment
and became homeless for approximately a year. Brandt testified about continuing to have panic attacks and not being able to sleep during that time. She said she
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“was at a really low point in [her] mental health and there was no break.” She eventually sought help and returned to her parents’ home. Brandt testified that while living with her parents and trying to get
sober, her “mental health continued to get worse.” She testified about attempting suicide and spending time in the hospital after an intentional heroin overdose. After her time in the hospital, she moved in with her parents and was able to stop using heroin. She told the jury that she had been sober for more than six years as of the time of the trial. At the time of the trial, Brandt was married and had two young
children. She explained that she was still having nightmares about Pompa, which affected her sleep and her ability to function the next day despite her taking prescription medication to try to control them. She worked part-time as a server in the food industry, working Mondays and Tuesdays to avoid the busier shifts and crowds, and was trying to get her real-estate license. Brandt began attending counseling immediately after her parents
learned of the abuse. As of the date of the hearing on damages, she had been in counseling 14 years, and she testified that she could not foresee a time when she would not need counseling. She explained, “I’ve seen multiple different counselors in multiple different areas and gone through multiple different treatment plans. Every counselor I’ve seen has agreed on the diagnosis of [posttraumatic stress disorder (“PTSD”)] and anxiety disorder.” Brandt also described her use of medication not only to prevent nightmares but also to treat depression and PTSD. She testified that one of the prescribed medications had improved her ability to sleep uninterrupted, but it was unsuccessful at stopping all the nightmares. She testified that her anxiety, including difficulty being in crowds and not liking to be touched, still prevents her from enjoying social activities and taking part in community service and that it affects her ability to perform daily activities like grocery shopping.
6 Dr. Patrick Yingling, a psychological expert, testified in a video
deposition about his evaluation of Brandt. Dr. Yingling testified that Brandt described for him her experiences with the abuse and with her mental health following the abuse. He noted that Brandt described “her experience of developing panic attacks and agoraphobia in 2014.” He said she recalled staying locked in a bedroom for a “large chunk of months.” Dr. Yingling testified that Brandt described continuing to experience nightmares, thoughts about her own death, and anxiety leading to “meltdowns.” He also testified that Brandt described her panic attacks as “weirdly physical,” including uncontrollable crying, blurry vision, and ringing in her ears, and “[f]eeling like [she had] barbed wire around [her] chest.” He said Brandt noted that she had tried to fix the meltdowns but that she was still experiencing them. Brandt provided Dr. Yingling with specific instances of anxiety attacks, for example, when not being allowed to be with her daughter at her ballet class, when considering having to go back to work, and on some occasions, when her husband reached out to touch her. Based on his evaluation of Brandt, including the tests administered
and the records reviewed, Dr. Yingling opined that Brandt suffered from PTSD as a result of being sexually assaulted by Pompa and that her symptoms would persist to some degree over a significant period of time. He opined that Brandt would benefit from ongoing psychotherapy as well as psychiatric medication. On cross-examination, Pompa’s counsel questioned Dr. Yingling
about whether Brandt’s symptoms were conclusively causally linked to the sexual abuse or whether they were, instead, brought on or exacerbated by other factors, like Brandt’s addiction or homelessness. Dr. Yingling explained that the criteria for a PTSD diagnosis requires exposure to actual or threatened death, serious injury, or sexual violence, and he acknowledged that an overdose or a suicide attempt could cause or contribute to a diagnosis of PTSD.
7 At the close of the evidence, the trial-court judge instructed the jury
on its duty to determine what damages, if any, Brandt was entitled to. The trial court included the following specific instructions on awarding compensatory damages:
You will decide by the greater weight of the evidence an amount of money that will reasonably compensate the Plaintiff for the actual injury directly caused by the conduct of the Defendant, Roy Pompa.
In deciding this amount, you will consider the Plaintiff’s loss directly caused by the Plaintiff’s actual injury.
The Plaintiff seeks compensation for non-economic loss only. She does not seek compensation for economic loss such as medical bills and so forth.
“Noneconomic loss” means harm other than economic loss that results from the Plaintiff’s injury, including, but not limited to, pain and suffering; disfigurement; mental anguish; and any other intangible loss. “Intangible loss” refers to loss that does not have a physical presence.
The Plaintiff also claims that the injury or loss is permanent. As to such claims, no compensation or damages may be found except that which is reasonably certain to exist as a direct cause of the Defendant’s conduct. “Reasonably certain” means probably, that is, more likely to occur than not.
If you find that Plaintiff failed to prove by the greater weight of the evidence any amount of damages, you may award Plaintiff nominal damages. “Nominal” means trifling or small.
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MATHEMATICAL FORMULA. Any suggestion of counsel in argument that you use a mathematical formula to compensate for pain and suffering and disability cannot be considered as evidence. There is no recognized mathematical formula for pain and suffering. Compensation for pain and suffering and disability is solely within your province to decide.
{¶ 20} The jury awarded Brandt (1) $14 million in compensatory damages for the abuse she suffered before April 6, 2005, when the damages caps in R.C. 2315.18 went into effect, (2) $20 million in compensatory damages for the abuse she suffered after R.C. 2315.18 went into effect, and (3) $100 million in punitive damages. In a posttrial brief, Pompa requested that the court limit the
noneconomic damages that were awarded for the period after the effective date of
R.C. 2315.18. His sole assertion was that the reduction in damages was required
under R.C. 2315.18. Brandt opposed the request and again asked the trial court to
find that R.C. 2315.18 was unconstitutional as applied to her. The trial court
granted Pompa’s request, denied Brandt’s request for declaratory relief, and
reduced Brandt’s $20 million noneconomic-damages award to $250,000.
Brandt appealed. The Eight District applied the reasoning and
rationale set forth in
Simpkins v. Grace Brethren Church of Delaware, Ohio
, 149
Ohio St.3d 307,
St.3d 1501,
9
II. ANALYSIS
A. R.C. 2315.18’s cap on noneconomic damages R.C. 2315.18 describes how compensatory damages may be
awarded in tort claims for economic loss and noneconomic loss. Relevant here is
noneconomic loss, which includes “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.” R.C. 2315.18(A)(4).
[3]
R.C. 2315.18(B)(2) provides that the
amount of compensatory damages for noneconomic loss is capped and “shall not
exceed the greater of [$250,000] or an amount that is equal to three times the
economic loss, as determined by the trier of fact, of the plaintiff in that tort action
to a maximum of [$350,000] for each plaintiff in that tort action or a maximum of
[$500,000] for each occurrence that is the basis of that tort action.” R.C.
2315.18(B)(3)(a) and (b) explain that there is no limit on damages for noneconomic
loss, however, if the loss is for “[p]ermanent and substantial physical deformity,
loss of use of a limb, or loss of a bodily organ system” or “[p]ermanent physical
functional injury that permanently prevents the injured person from being able to
independently care for self and perform life-sustaining activities.”
3. By contrast, R.C. 2315.18 (A)(2) defines “economic loss” as
any of the following types of pecuniary harm:
(a) All wages, salaries, or other compensation lost as a result of an injury
or loss to person or property that is a subject of a tort action;
(b) All expenditures for medical care or treatment, rehabilitation
services, or other care, treatment, services, products, or accommodations as a
result of an injury or loss to person or property that is a subject of a tort action;
(c) Any other expenditures incurred as a result of an injury or loss to
person or property that is a subject of a tort action, other than attorney’s fees
incurred in connection with that action.
These caps on damages for noneconomic loss became effective April
7, 2005.
[4]
See
Am.Sub.S.B. No. 80, Section 3, 150 Ohio Laws, Part V, 7915, 8024-
8031 (“S.B. 80”). S.B. 80 was not the General Assembly’s first effort to enact tort
reform, but previously enacted tort-reform statutes had been successfully
challenged in courts as being unconstitutional.
See Morris v. Savoy
, 61 Ohio St.3d
684, 686, 690-691,
Ohio-6948, 880 N.E.2d 420, this court concluded that R.C. 2315.18 was constitutional on its face.
4. This section of the Revised Code became effective April 7, 2005. It was amended by the General Assembly, effective April 15, 2021, by 2020 Sub.H.B. No. 352, but the amendments do not affect Brandt or the question of her entitlement to the amount of noneconomic damages awarded to her by the jury.
B. Standard of review Unlike the challenge to R.C. 2315.18 in Arbino , Brandt has
presented a claim that the statute is unconstitutional as applied to the facts of her
case. In an as-applied constitutional challenge, “the party making the challenge
bears the burden of presenting clear and convincing evidence of a presently existing
set of facts that [makes the statute] unconstitutional and void when applied to those
facts.”
Groch v. Gen. Motors Corp.
, 117 Ohio St.3d 192,
C. Due-course-of-law challenge Article I, Section 16 of the Ohio Constitution guarantees every
person the right to a “remedy by due course of law” “for an injury done him in his
land, goods, person, or reputation.” In
Arbino
, one asserted basis of the facial
constitutional challenge to R.C. 2315.18 was that the damages caps in that statute
violated the “due course of law” provision of the Ohio Constitution.
Arbino
at ¶ 7,
48. In addressing that question, this court applied the rational-basis test under
which a statute is deemed valid “ ‘ “[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.” ’ ” (Brackets added in
Mominee
.)
Id.
at ¶ 49, quoting
Mominee v. Scherbarth
,
similar reasoning, employing the rational-basis test and concluding as follows:
The distinctions the legislature drew in refusing to limit certain injuries were rational and based on the conclusion that catastrophic injuries offer more concrete evidence of noneconomic damages and thus calculation of those damages poses a lesser risk of being tainted by improper external considerations.
Arbino
,
compensatory-damages caps for the most severely and permanently psychologically injured, we cannot say, as we did in Arbino , that R.C. 2315.18 allows “for limitless noneconomic damages for those suffering catastrophic injuries,” Arbino at ¶ 60, because those suffering catastrophic psychological injury are excluded from that class of injured plaintiffs. Thus, the rational basis of the statute found by this court in Arbino is eliminated as applied to Brandt and similarly situated plaintiffs. For this limited class of litigants—people like Brandt who were victimized at a very young age and who bring civil actions to recover damages from the persons who have been found guilty of those intentional criminal acts—the constitutional guarantee of due course of law is unjustly withheld. Other legislative justifications cited by this court in Arbino also fail
when considered in light of R.C. 2315.18’s application, without exception, to
catastrophic psychological injuries as a result of victimization as a child. For
example, in
Arbino
, we acknowledged the General Assembly’s concern that
“noneconomic damages are inherently subjective and thus easily tainted by
irrelevant considerations.”
Id.
,
justification for enacting tort reform through R.C. 2315.18 was its “ ‘interest in making certain that Ohio has a fair, predictable system of civil justice that preserves the rights of those who have been harmed by negligent behavior, while curbing the number of frivolous lawsuits, which increases the cost of doing business, threatens Ohio jobs, drives up costs to consumers, and may stifle innovation.’ ” Arbino at ¶ 68, quoting S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024. But Brandt was harmed by intentional , not negligent, behavior. And it cannot be said that Brandt’s lawsuit against Pompa is frivolous, given that his criminal liability for abusing Brandt has already been determined. The General Assembly’s concern about the “cost of doing business,”
S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024, as it relates to the cost
of general-liability-insurance policies that businesses purchase is unrealistic
because coverage for the types of injuries that Brandt sustained in this case is
extremely uncommon and, even if a business’s liability-insurance policy were in
play, most policies now contain exclusions for intentional conduct committed by
the insured and, specifically, for abuse or molestation.
See, e.g.
,
World Harvest
Church v. Grange Mut. Cas. Co.
,
decision “to achieve a public good” was based on a finding that “the benefits of
noneconomic-damages limits could be obtained
without limiting
the recovery of
individuals whose pain and suffering is
traumatic, extensive, and chronic
.”
(Emphasis added.)
Id.
,
the facts of this case, the words of one of the dissenting justices in Arbino are persuasive:
There is no rational reason to “improve” the tort system in Ohio at the sole expense of a small group of people who are able to prove that they suffered damage significant enough to exceed the damages caps imposed by the General Assembly. Whatever improvement the tort system in Ohio needs, the Ohio Constitution should remain inviolate, unless properly amended.
Arbino at ¶ 185 (Pfeifer, J., dissenting). Brandt represents an even smaller group of people than that contemplated by the dissenting justice quoted above—namely, those child victims who suffer traumatic, extensive, and chronic psychological injury as a result of intentional criminal acts and who sue their abusers for civil damages. Subjecting this group to the compensatory-damages caps for noneconomic loss has little to no connection to improving the tort system in Ohio. [5] This group comprises victims who are entitled to the full range of constitutional remedies, regardless of whether their severe injuries are physical or psychological. These concerns leave sufficient doubt that Arbino correctly determines the constitutionality of R.C. 2315.18 as applied to Brandt and similarly 5. The General Assembly’s justification for enacting tort-reform legislation, including R.C. 2315.18, was to balance the rights of victims of negligent behavior against the problems caused by an allegedly unpredictable civil-justice system. See S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024. The General Assembly’s policy choice appears to presume that some level of harm caused by negligent acts (e.g., automobile accidents, defective consumer products, imperfect medicine, human error) is tolerable in society on balance for institutions and businesses that need predictability for liability for this kind of conduct. But the sexual abuse of children is never tolerated. Accordingly, it makes no sense to credit the General Assembly with a policy decision to protect an abuser from being subject to a damages award that is meant to compensate a victim of childhood sexual abuse.
situated plaintiffs. In fact, because the rationale supporting
Arbino
falls away when
applied to the facts of this case, and given the facts below, we conclude that Brandt
has shown by clear and convincing evidence that R.C. 2315.18 is unconstitutional
as applied to her under the due-course-of-law provision in Article I, Section 16 of
the Ohio Constitution.
The Eighth District relied largely on
Simpkins
,
suffered severely as a victim of Pompa’s intentional criminal acts. There is no dispute that the jury found that Brandt should be awarded compensatory damages for noneconomic loss in the amount of $20 million for the abuse that she suffered after R.C. 2315.18 became effective. The trial court’s instructions to the jury explained that Brandt sought compensation only for noneconomic loss, and the instructions defined “noneconomic loss” and “intangible loss.” The instructions also explained that Brandt claimed that the injury or loss she suffered was permanent. The instructions provided: “There is no recognized mathematical formula for pain and suffering. Compensation for pain and suffering and disability is solely within your province to decide.” [6] The record also shows that the jurors submitted questions to the trial court during Brandt’s testimony, inquiring about other possible causes of Brandt’s injuries. Charged with the trial court’s instructions and with answers to their questions, the jurors unanimously awarded 6. R.C. 2315.18(F)(2) states: “If the trier of fact is a jury, the court shall not instruct the jury with respect to the limit on compensatory damages for noneconomic loss described in division (B)(2) of this section, and neither counsel for any party nor a witness shall inform the jury or potential jurors of that limit.”
Brandt $20 million in compensatory damages for permanent noneconomic loss for the period in question. Pompa’s sole argument to the trial court in his posttrial brief on
damages was that the court should calculate the amount of damages pursuant to the damages caps in R.C. 2315.18. He did not challenge the evidence by arguing, for example, that the award was excessive, that the evidence had inflamed the passion or prejudice of the jury, that the jury improperly considered his misconduct, or that the award was in excess of verdicts awarded to similarly situated plaintiffs. See R.C. 2315.19(A)(1) and (2). The Eighth District characterized the evidence regarding whether
“all of [Brandt’s] mental health issues and symptoms can be attributed to the sexual
abuse” as “equivocal.”
severe and permanent psychological injuries in its caps on damages for noneconomic loss and because the trial court applied R.C. 2315.18 to reduce Brandt’s $20 million award to $250,000, we hold that Brandt has established, by clear and convincing evidence, a set of facts that make the statute unconstitutional as applied to her case.
D. Recoverability is irrelevant Pompa argues that because Brandt received a judgment “exceeding
$114 million, [she] cannot credibly be heard to argue that she has been prevented
or foreclosed from securing meaningful relief.” Some of the amici in support of
Pompa argue a similar refrain. The issue we address, however, is the
constitutionality of a single statute or, stated more specifically, the constitutionality
of the caps on damages for noneconomic loss in R.C. 2315.18 as applied to Brandt.
It is immaterial that some of the abuse in this case occurred before R.C. 2315.18’s
caps on damages became effective, thereby entitling Brandt to uncapped damages
for noneconomic loss that she suffered from acts that occurred during that time.
Nor should the jury’s award of punitive damages affect the
consideration of the compensatory damages awarded to Brandt. The question of
punitive damages, which serve a different function in our legal system, is irrelevant
here. “The purpose of punitive damages is not to compensate a plaintiff, but to
punish and deter certain conduct.”
Moskovitz v. Mt. Sinai Med. Ctr.
, 69 Ohio St.3d
638, 651,
any portion of the total-damages award from Pompa is irrelevant to determining whether R.C. 2315.18 is unconstitutional as applied to Brandt and similarly situated plaintiffs. Any suggestion otherwise serves to prejudice the reader and should be seen for what it is: a distraction from the legal question before this court.
III. CONCLUSION For the foregoing reasons, we hold that R.C. 2315.18 is
unconstitutional as applied to Brandt and similarly situated plaintiffs (i.e., people like Brandt who were child victims of intentional criminal conduct and who bring civil actions to recover damages from the persons who have been found guilty of those intentional criminal acts) to the extent that it fails to include an exception to its compensatory-damages caps for noneconomic loss for plaintiffs who have suffered permanent and severe psychological injuries. The judgment of the Eighth District Court of Appeals is reversed, and we reinstate the jury’s verdict on damages.
Judgment reversed.
D ONNELLY , TEWART , and B RUNNER , JJ., concur.
K ENNEDY , F ISCHER , and D E W INE , JJ., dissent, with an opinion. F ISCHER , J., dissents, with an opinion.
_________________
K ENNEDY , F ISCHER , and D E W INE , JJ., dissenting. Appellee Roy Pompa’s abuse of appellant, Amanda Brandt, is appalling, and there is no doubt that Brandt has suffered as a result. However, as members of the third branch of government, we must “temper our empathy” and resolve legal matters within the confines of the law. See Collins v. Sotka , 81 Ohio St.3d 506, 512, 692 N.E.2d 581 (1998) (Moyer, J., dissenting). Because the majority opinion fails to do so, we must respectfully dissent. Although this case has been litigated on the questions whether the
caps on compensatory noneconomic damages enacted in R.C. 2315.18 violate the Ohio Constitution’s guarantees of due process of law, equal protection, trial by jury, open courts, and a remedy, the majority opinion today finds only a due-process violation of Article I, Section 16 of the Ohio Constitution. It does that by applying rational-basis review, a standard that presupposes that R.C. 2315.18 does not implicate a fundamental constitutional right. The majority opinion holds that R.C. 2315.18 violates Article I, Section 16 solely because it believes that the statute is arbitrary and unreasonable. This dissent, then, is limited to addressing that single issue. For the reasons that follow, we disagree with the determination made by the majority opinion that R.C. 2315.18 violates due-process protections.
I. R.C. 2315.18 and the cap on noneconomic damages The General Assembly enacted R.C. 2315.18 as part a tort-reform
bill that restructured the tort-damages-award system in Ohio to ensure a “fair,
predictable system of civil justice.” Am.Sub.S.B. 80, Section 3(A)(3), 150 Ohio
Laws, Part V, 7915, 8024 (“S.B. 80”). In restructuring the tort-damages-award
system, the General Assembly placed no cap on readily provable compensatory
damages that represented an economic loss—e.g., pecuniary harms like lost wages,
costs of medical care and treatment, and other measurable expenditures.
See
R.C.
2315.18(A)(2) and (B)(1). However, it generally capped compensatory damages
for noneconomic loss—e.g., nonpecuniary harms like pain and suffering, mental
anguish, and other intangible losses.
See
R.C. 2315.18(A)(4) and (B)(2).
The legislature justified the caps on noneconomic-damages awards
because it had found that noneconomic losses are difficult to quantify since they
“are inherently subjective.” S.B. 80, Section 3(A)(6)(d), 150 Ohio Laws, Part V,
at 8028;
see also Simpkins v. Grace Brethren Church of Delaware, Ohio
, 149 Ohio
St.3d 307,
on compensatory noneconomic damages. R.C. 2315.18(B)(3); see also S.B. 80, Section 3(A)(6)(c), 150 Ohio Laws, Part V, at 8027-8028. The cap does not apply when the victim has sustained (1) an injury that resulted in “[p]ermanent and substantial physical deformity,” (2) an injury that resulted in “loss of use of a limb,” (3) an injury that resulted in “loss of a bodily organ system,” or (4) a “[p]ermanent physical functional injury that permanently prevents the person from being able to independently care for [him or her]self and perform life-sustaining activities.” R.C. 2315.18(B)(3). So unless the victim has suffered from an injury that falls under one of the exceptions listed in R.C. 2315.18(B)(3), the victim’s compensatory noneconomic-damages award will be capped under R.C. 2315.18(B)(2). In Arbino v. Johnson & Johnson , we summarized the General Assembly’s evidence and findings as they pertained to R.C. 2315.18:
In an uncodified section of S.B. 80, [the General Assembly] found that the current state of the civil litigation system “represents a challenge to the economy of the state of Ohio.” S.B. 80, Section 3(A)(1), 150 Ohio Laws, Part V, 8024. This finding was supported by (1) a National Bureau of Economic Research study showing that states adopting tort reforms experienced growth in employment, productivity, and total output, (2) a 2002 White House Council on Economic Advisors study equating the cost of tort litigation to a 2.1 percent wage and salary tax, a 1.3 percent personal-consumption tax, and a 3.1 percent capital-investment-income tax, (3) a Harris Poll of 928 senior corporate attorneys showing that the litigation environment in a state greatly affected the business decisions of their companies, (4) a Tillinghast–Towers Perrin study showing that the tort system failed to return even 50 cents for every dollar to injured plaintiffs and that the cost of the national tort system grew at a record rate in 2001, with a cost equivalent to a five percent tax on wages, and (5) testimony from Ohio Department of Development Director Bruce Johnson on the rising costs of the tort system, which he believed were putting Ohio businesses at a disadvantage and hindering development. S.B. 80 at Section 3(A)(3)(a) through (f), 150 Ohio Laws, Part V, [8024-8025].
II. R.C. 2315.18, as applied to Brandt, does not violate her right to due
process of law under Article I, Section 16 of the Ohio Constitution
In an as-applied challenge, Brandt argues that the cap imposed on
her noneconomic-damages award under R.C. 2315.18 violates her right to due
process. To prevail, Brandt must prove by clear and convincing evidence that the
statute is unconstitutional when applied to her particular set of facts.
See Harrold
v. Collier
,
{¶ 54}
In reviewing this constitutional claim, we must remember that
legislative enactments enjoy a
strong presumption
of constitutionality.
See State
ex rel. Dickman v. Defenbacher
,
16 of the Ohio Constitution: “[E]very person, for an injury done him in his land,
goods, person, or reputation,
shall have remedy
by
due course of law
* * *.”
(Emphasis added.) It has been considered the functional equivalent of the “due
process of law” protections in the United States Constitution.
Arbino
, 116 Ohio
St.3d 468,
constitutionality of a statute on due-process grounds depends on whether the legislation restricts a fundamental right. Arbino at ¶ 49. By applying rational-basis review, the majority opinion has implicitly decided that R.C. 2315.18 does not implicate a fundamental right. We agree that rational-basis review is the appropriate test to be applied in these circumstances—that is the conclusion this court reached in Arbino . See id. R.C. 2315.18 is afforded “a strong presumption of validity” and will
survive a due-process challenge if it is rationally related to a legitimate government
purpose.
Heller v. Doe
, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257
(1993). “This deferential rational-basis standard is ‘a paradigm of judicial
restraint,’
Fed. Communications Comm. v. Beach Communications, Inc.
, 508 U.S.
307, 314,
A. R.C. 2315.18(B) bears a real and substantial relation to the general welfare
of the public The General Assembly enacted S.B. 80 to protect the Ohio economy
from the increasing number of tort claims being filed and the increasing amounts of the damages being awarded in those claims, both of which were negatively impacting the cost of doing business in the state, threatening Ohio jobs, driving up consumer costs, and stifling innovation. S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024. Part of the issue was the cost of the tort system—it had grown significantly, and attorneys benefitted more from the system than those who had been injured. S.B. 80, Section 3(A)(3)(a) through (f), 150 Ohio Laws, Part V, at 8024-8025. The General Assembly also noted the significant problem with damages, specifically noneconomic damages and punitive damages. S.B. 80, Section 3(A)(4) and (6), 150 Ohio Laws, Part V, at 8025-8028. The General Assembly was concerned about “[i]nflated damage[s] awards,” i.e., windfalls that a person could derive from awards of both punitive and noneconomic damages. S.B. 80, Section 3(A)(6)(e), 150 Ohio Laws, Part V, at 8027. Noneconomic-damages awards, like the one at issue here, were intended to compensate an injured person for a loss, not to punish the defendant. S.B. 80, Section 3(A)(6)(a), 150 Ohio Laws, Part V, at 8027. The General Assembly noted, however, that these damages, which have “no precise economic value,” id. , are inherently subjective and may be influenced by “improper consideration of evidence of wrongdoing,” S.B. 80, Section 3(A)(6)(d), 150 Ohio Laws, Part V, at 8027. It is these inflated noneconomic-damages awards that contributed to the problems in our civil-justice system. See S.B. 80, Section 3(A)(6)(e), 150 Ohio Laws, Part V, at 8028. Thus, the General Assembly capped noneconomic-damages awards at “the greater of [$250,000] or an amount that is equal to three times the economic loss, as determined by the trier of fact,” but not exceeding $350,000 for each plaintiff in the tort action or $500,000 for each occurrence that is the basis of the action. R.C. 2315.18(B)(2). The majority opinion never says that reforming the tort system to
advance the goal of preventing inflated and improperly punitive noneconomic-
damages awards bears no real and substantial relation to the public health, safety,
morals, or general welfare of the public. Nor can it. This court has already found
that S.B. 80 “bears a real and substantial relation to the general welfare of the
public.”
Arbino
,
diminish either the economic benefits of limiting noneconomic damages, as found
by the General Assembly, or the substantial relationship that we found in
Arbino
between the statutory limitations and the benefits to the general public welfare.”
Simpkins
,
B. R.C. 2315.18 is not unreasonable or arbitrary, and there is a rational basis for
its creation of two classes of victims As for whether the cap on noneconomic damages is unreasonable or
arbitrary as applied to Brandt, or whether there is no rational basis for distinguishing between victims who have suffered (1) an injury resulting in “[p]ermanent and substantial physical deformity,” (2) an injury resulting in “loss of use of a limb,” (3) an injury resulting in “loss of a bodily organ system” or (4) a “[p]ermanent physical functional injury that permanently prevents the person from being able to independently care for [him or her]self and perform life-sustaining activities,” R.C. 2315.18(B)(3), from those who have not, those arguments too must fail. The majority opinion concludes that the statutory scheme is
unreasonable. The majority opinion discusses how the statute does not consider psychological injuries at all and how R.C. 2315.18(B)(3) is limited to physical “catastrophic injuries.” Majority opinion, ¶ 31. The majority opinion maintains that this distinction is unreasonable given the trauma that Brandt has endured, evidenced by the jury’s high-dollar award for her noneconomic damages and the fact that no one has argued that this award was excessive for reasons other than its exceeding the statutory cap. The majority opinion concludes that “unavailability of the exception to the compensatory-damages caps for the most severely and permanently psychologically injured” creates a due-process problem. (Emphasis sic.) Id. But in enacting tort-reform legislation, the General Assembly was
required only to be rational and unarbitrary. This is a low bar. And here, the
legislature sought to limit inflated and subjective awards that it found to be both
unfair to defendants and harmful to the state’s economy. It also created categories
of injury that, it believed, did not raise the same concerns for runaway verdicts and
subjective awards, because the nature of the injury would assure that the damages
award would not be based on improper considerations and could be more
objectively valued by a jury. In order to effectively enact legislation that solves the
problems that the General Assembly found to exist, the legislature was required to
draw lines somewhere. As this court said in
Arbino
, “the General Assembly is
charged with making the difficult policy decisions on such issues and codifying
them into law. This court is not the forum in which to second-guess such legislative
choices * * *.”
victim of sexual assault could never fall into one of these categories. This is simply
untrue. We need not speculate, but it is apparent that a victim of sexual assault
could experience an injury of the sort covered under R.C. 2315.18(B)(3)—e.g., an
injury caused by the violence of the assault, a resulting sexually transmitted disease,
complications of a pregnancy occasioned by the assault that result in the “loss of a
bodily organ system,” or another injury that results in a “permanent physical
functional injury that permanently prevents the person from being able to
independently care for [him or her]self and perform life-sustaining activities.”
See,
e.g
.,
Ozmun v. Customer Engineering Servs., L.L.C.
, Cuyahoga C.P. No. CV 14
824745, 2015 WL 13238578 (July 31, 2015) (allowing the jury to determine
whether the damages cap applied after a plaintiff offered an expert report finding
that her posttraumatic stress disorder was a physical, functional injury because it
caused physical harm, including brain-cell damage and atrophy to the hippocampal
gyrus and other areas of the brain);
see also Giebel v. Lavalley
, N.D.Ohio No. 5:12-
CV-750,
and suffering and mental anguish are inherently subjective. They are difficult to
determine and quantify.
See Leininger v. United States
,
legislature’s generalizations even when there is an imperfect fit between means and
ends. A classification does not fail rational-basis review because “ ‘ “ ‘it is not
made with mathematical nicety or because in practice it results in some
inequality.’ ” ’ ”
Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent.
State Univ.
,
damages cap constitutional, Brandt’s abuser, Pompa, would be the only winner
here. The majority opinion also emphasizes that denying Brandt the full amount of
her noneconomic-damages award in this case is unreasonable since the award does
not impact the insurance industry, because most insurance policies now contain
exclusions that restrict coverage for criminal conduct such as Pompa’s. This
rationale is flawed for two reasons. First, noneconomic-damages awards are not
meant to punish the defendant, S.B. 80, Section 3(A)(6)(a), 150 Ohio Laws, Part
V, at 8027; the fact that one bad person might benefit from caps on noneconomic
damages does not make the statute, taken as a whole, irrational or arbitrary.
Second, the majority opinion’s policy rationale does not belong in a
constitutionality analysis at all; policy decisions are reserved for the General
Assembly.
See Cleveland
,
But it is not our role as members of the judicial branch to determine what compensation is necessary or adequate. The General Assembly is the ultimate arbiter of public policy. Cleveland at ¶ 40. If the General Assembly would like to create another exception beyond those listed in R.C. 2315.18(B)(3), then it should do so. See Pratte at ¶ 54. If the people would like another exception added to the statute, then they should go to their legislators or pursue a referendum under Article II, Section 1b or 1c of the Ohio Constitution. But that is a far cry from the determination in the majority opinion that if legislation tackles problems in the tort system, it must treat the survivors of sexual abuse the same as it treats people who have, for example, lost an organ or a limb. The General Assembly could rationally decide that the types of injuries described in R.C. 2315.18(B)(3) do not present the same problems for ensuring that noneconomic-damages awards are not windfalls or are not inherently subjective. That is all the Constitution requires.
III. Conclusion No one denies that child abuse is horrific. And no one will deny that
Brandt has suffered. But it is not our job as members of the judicial branch to overreach and invade the province of the General Assembly. Bad facts make bad law, as it does today. By resolving the merits of this case, the majority opinion improperly
involves the judiciary in matters that belong exclusively and fundamentally to the General Assembly. It is this type of result-oriented judicial activism that blurs the line in the public’s eye about which branch of government is truly responsible for the policies of this state. It erodes the public’s confidence in the judiciary to resolve problems within the confines of the law and places an unrealistic expectation on the members of the Ohio judiciary to resolve all society’s problems. Policy-making is not our job. If policy changes are desired, then the members of the majority opinion can take the short walk to Capitol Square to speak with their legislators—the people who are elected to create and set policy for Ohioans. Brandt’s situation is certainly sad, but we cannot provide her with compensation simply because it may be our personal policy preference to do so. This activism from the bench needs to stop. Brandt has not demonstrated that R.C. 2315.18(B) is unconstitutional as applied to her. Thus, we must respectfully dissent.
_________________
F ISCHER , J., dissenting. The majority opinion abandons this court’s role as impartial jurist and exceeds the scope of its authority to hold that R.C. 2315.18(B)(2) is unconstitutional as applied to appellant, Amanda Brandt, and similarly situated victims. What happened to Brandt is horrific and deeply saddening, as are the stories of every child victim—really any victim—of sexual assault. But that reality does not bestow upon this court the constitutional authority to invade the purview of the General Assembly by questioning its policy decisions and fashioning remedies for victims we deem worthy. While these types of cases turn our stomachs and tug on our heartstrings, we are still tasked with resolving these matters within the confines of the law. As discussed in the joint dissent, I fully agree that Brandt cannot
demonstrate that the caps on noneconomic damages in R.C. 2315.18(B)(2), as applied to her, violate her right to due process under Article I, Section 16 of the Ohio Constitution. I write separately to address Brandt’s other arguments that go unresolved by the majority opinion, and I reach the conclusion that Brandt cannot demonstrate that R.C. 2315.18 is unconstitutional on its face or as applied to her. Thus, I would affirm the judgment of the Eighth District Court of Appeals.
I. Standard of Review It is important to address the applicable standards of review in this
case given that the majority opinion seems to have forgotten how to apply them.
Constitutional challenges fall into one of two categories: (1) facial challenges that
claim a statute as a whole is unconstitutional, and (2) as-applied challenges that
claim a statute is unconstitutional as applied to a particular set of facts.
In re D.B.
,
that “there exists no set of circumstances under which the statute would be valid.”
Id.
;
see also State ex rel. Dickman v. Defenbacher
,
II. Presumption of Constitutionality When evaluating these constitutional challenges, we must remember
that legislative enactments enjoy a
strong presumption
of constitutionality.
Dickman
at paragraph one of the syllabus. While this presumption has been subject
to some limited criticism in the past,
see Ohio Grocers Assn. v. Levin
, 123 Ohio
St.3d 303,
Jeffersonian principles, concentrated much of the state’s power in the General Assembly. See Utter, Judicial Review in Early Ohio, The Mississippi Valley Historical Review, Vol. XIV, No. 1 (June 1927) 3-24. The legislature controlled the makeup of the judiciary. Id. at 4, 6-7. And the legislature believed that the court had no right at all to declare its enactments unconstitutional. Id. However, the Ohio Supreme Court determined in Rutherford v. M’Faddon (1807), that it had the authority to review the constitutionality of legislative acts. Pollack, Ohio Unreported Judicial Decisions Prior to 1823 , Part II, 71-105 (1952) In Rutherford , the court expressed that the judiciary’s duty is to “ expound, construe and declare the law,” which includes declaring a law unconstitutional. (Emphasis sic.) Id. at 72-73. And in discharging that duty, the court “compare[s] the legislative act with the constitution ,” and if it is determined that the legislative act is contrary to the Constitution or prohibited by the Constitution, then it is void. (Emphasis sic.) Id. at 73. The court emphasized that its role is to support the Constitution. Id. at 74. The judiciary continued to exercise its authority, but it provided
deference to the General Assembly in its legislative decisions: “It is never to be forgotten, that the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority, and a clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interference can never be permitted in a doubtful case.” Cincinnati, Wilmington and Zanesville, RR. Co. v. Clinton Cty. Commrs. , 1 Ohio St. 77, 82 (1852); see also Downes, Judicial Review Under the Ohio Constitution of 1802, Northwest Ohio Quarterly (October 1946) 145. This shift, however, was not due to a fear of impeachment by the
General Assembly nor the court deciding to give up its authority; this shift was
founded in the court’s recognition that legislators took an “oath to support the
constitution,” and they considered that oath when crafting legislation.
Cincinnati,
Wilmington and Zanesville, RR. Co.
, at 83; Downes at 145. If the court were to
entertain declaring a law unconstitutional “while [also] entertaining doubts upon
the subject,” then it would present a separation of powers problem and “make the
dubious constructions of the judiciary[] outweigh the fixed conclusions of the
General Assembly.”
Id.
The court noted that “ ‘it is not on slight implication and
vague conjecture’ ” that it would pronounce that the General Assembly had
“ ‘transcended its powers’ ” and declared its acts void.
Cincinnati, Wilmington
and Zanesville, RR. Co.
at 84, quoting
Fletcher v. Peck
,
more equally among the three branches of government in 1851, this court still gave
a strong presumption to the constitutionality of statutory enactments.
See, e.g.
,
Ex
parte Bushnell
, 9 Ohio St. 77, 96 (1859) (“No court will hold a law to be
unconstitutional unless its unconstitutionality is clear beyond a doubt”). And by
1894, it was a settled rule that the court presumed constitutionality in favor of the
validity of the challenged statute.
State ex rel. Poe v. Jones
,
Ohio Constitution was revised in 1912 to provide the judiciary with more, yet still
limited, power to review legislative enactments.
See Dickman
,
Amendment in 1968, which eliminated the restriction on this court’s ability to find
a statute unconstitutional by a certain majority,
see Euclid v. Heaton
, 15 Ohio St.2d
65, 66,
again since 1968.
Ohio Pub. Interest Action Group, Inc. v. Pub. Util. Comm.
, 43
Ohio St.2d 175, 331 N.E.2d 730 (1975), paragraph four of the syllabus (“The
question of the constitutionality of every law being first determined by the General
Assembly, every presumption is in favor of its constitutionality, and it must clearly
appear that the law is in direct conflict with inhibitions of the Constitution before a
court will declare it unconstitutional”), following
State Bd. of Health v. Greenville
,
86 Ohio St.1,
powers.
See Cincinnati, Wilmington and Zanesville, RR. Co. v.
at 83-84;
State ex
rel. Poe
,
{¶ 90}
Thus, when evaluating constitutional claims, we must make
every
reasonable presumption
and resolve any doubt as to the statute’s constitutionality
in favor of the validity
of the statue.
Dickman
,
III. We have already held that R.C. 2315.18 is constitutional on its face
This court held that R.C. 2315.18 was constitutional on its face in
Arbino v. Johnson & Johnson
,
v. Harper
,
numerous times. Besides supporting the holding in
Simpkins v. Grace Brethren
Church of Delaware
,
{¶ 95}
Arbino
also helps explain and emphasizes the importance of stare
decisis in Ohio.
See, e.g.
,
State v. Bodyke
,
Stevens Co
.,
which includes limiting the remedies available.
See Ruther v. Kaiser
, 134 Ohio
St.3d 408,
dictate remedies under the common law, R.C. 2315.18 still does not violate the right
to trial by jury. It is true that “it is the function of the jury to assess the damages
and, generally, it is not for a trial or appellate court to substitute its judgment for
that of the trier of fact.”
Villella v. Waikem Motors, Inc.
,
questioned Ohio jury verdicts.
See Hamden Lodge No. 517, Independent Order of
Odd Fellows v. Ohio Fuel Gas Co
.,
found that caps on damages are constitutional so long as the jury award is not
altered as a matter of fact but rather as a matter of law.
See Evans ex rel. Kutch v.
State,
issue, it is likely that it too would conclude that statutory caps on damages awards
implemented by the court as a matter of law do not violate the right to trial by jury
under the Seventh Amendment to the U.S. Constitution.
See Arkansas Valley Land
& Cattle Co. v. Mann
,
Article I, Section 5 of the Ohio Constitution. Therefore, the Arbino court properly applied the rational-basis test to the jury-trial, due-process, and equal-protection claims. We should reject Brandt’s proposition of law challenging this court’s holding in Arbino and reaffirm our holding that R.C. 2315.18 is facially constitutional.
IV. The caps on damages in R.C. 2315.18(B)(2) are not unconstitutional as
applied to Brandt and similarly situated victims Brandt argues that her reduced noneconomic-damages award
violates her rights to a jury trial, to open courts, to a remedy, to due process, and to
equal protection. To prevail, Brandt must prove by clear and convincing evidence
that R.C. 2315.18(B)(2) is unconstitutional when applied to her particular set of
facts.
Harrold
,
A. Brandt cannot demonstrate that as applied to her circumstances, R.C.
2315.18(B)(2) violates her right to a jury trial Brandt argues that her right to trial by jury was violated because the
jury valued her psychological injuries at $20,000,000 and the trial court’s reduction
of that award to $250,000 pursuant to the statutory cap intrudes on and ignores the
jury’s fact-finding process and renders it meaningless. But as discussed earlier,
R.C. 2315.18(B)(2) does not prevent the jury from determining issues of fact. Nor
does it allow the judge to substitute his or her findings for those of the jury.
See
Simpkins
at ¶ 23. Rather, the General Assembly, through its right to alter the
common law, requires the trial court to alter the award as a matter of law after the
jury has rendered its verdict. Thus, R.C. 2315.18(B)(2) and the trial court’s
compliance with that statute do not violate Brandt’s right to trial by jury under
Article I, Section 5 of the Ohio Constitution.
Simpkins
at ¶ 27;
Arbino,
116 Ohio
St.3d 468,
B. Brandt cannot demonstrate that as applied to her circumstances, R.C. 2315.18(B)(2) violates her rights to open courts and to a remedy Brandt argues that R.C. 2315.18(B)(2) violates her right to open courts and to a remedy under Article I, Section 16 of the Ohio Constitution. Under our precedent and understanding of “meaningful remedy,” Brandt cannot demonstrate by clear and convincing evidence that her rights to open courts and to a remedy has been violated. Article I, Section 16 of the Ohio Constitution provides, “All courts
shall be open, and every person, for an injury done him in his land, goods, person,
or reputation, shall have remedy by due course of law, and shall have justice
administered without denial or delay.” “The constitutional right to a remedy
‘requires an opportunity granted at a meaningful time and in a meaningful
manner.’ ”
Simpkins
,
insufficient to compensate her as a minor victim of sexual abuse. Citing
Clarke v.
Oregon Health Sciences Univ., P.C.,
C. R.C. 2315.18(B)(2) as applied to Brandt does not violate her right to equal
protection under Article I, Section 2 of the Ohio Constitution {¶ 114} Brandt argues that, as applied to her circumstances, R.C. 2315.18(B)(2) violates her right to equal protection under Article I, Section 2 of the Ohio Constitution. This argument too is without merit. Article I, Section 2 of the Ohio Constitution guarantees equal
protection under the laws: “All political power is inherent in the people.
Government is instituted for their equal protection and benefit * * *.” This clause
“requires that individuals be treated in a manner similar to others in like
circumstances.”
McCrone
,
“bears a rational relationship to a legitimate government interest” and does not
involve a suspect class or fundamental right.
Id.
at ¶ 8. Because R.C.
2315.18(B)(2) does not implicate a fundamental right, because it does not violate
the right to a jury trial or the rights to open courts and to a remedy, and because
Brandt does not maintain that R.C. 2315.18(B)(2) affects a suspect class, rational
basis is the appropriate test.
See Arbino
,
there was no rational basis for the creation of the class itself or that those within the
class are not being treated equally in the furtherance of a legitimate governmental
interest.’ ”
Simpkins,
distinguished by their injuries: (1) persons who have suffered catastrophic physical injuries, (2) persons who have suffered noncatastrophic physical injuries, (3) persons who have suffered catastrophic nonphysical injuries, and (4) persons who have suffered noncatastrophic nonphysical injuries. While Brandt is correct that there are four injury classifications, they are not the ones that she lists. R.C. 2315.18(B)(3) does not create classes of plaintiffs based on whether they suffered “catastrophic injuries.” The term “catastrophic injury” appears nowhere in the statute. Rather, the Arbino court coined the term “catastrophic injury” to
easily describe the injuries that were exempt from capped damages in R.C.
2315.18(B)(3).
Arbino
,
appeared to be useful when this court decided
Arbino
and
Simpkins
, this description
has led to some confusion and allowed litigants and courts to reframe the injuries
described in R.C. 2315.18(B)(3) in a manner that the General Assembly did not
adopt.
See Poteet v. MacMillan
, 12th Dist. Warren No. CA2021-08-071, 2022-
Ohio-876, ¶ 17;
Torres v. Concrete Designs, Inc.
,
characterize the types of injuries exempted from the caps on damages, we placed words in the statutory scheme that do not appear there and reinforced the wrong idea that “catastrophic” is an element of the injuries listed in R.C. 2315.18(B)(3). Because “catastrophic” appears nowhere in the statute, the “catastrophic” distinction should not be used or developed further. We must return to the plain language of the statute. The exceptions
to limits on noneconomic compensatory damages in R.C. 2315.18(B)(3) apply to a
person who has sustained (1) an injury resulting in “[p]ermanent and substantial
physical deformity,” (2) an injury resulting in “loss of use of a limb,” (3) an injury
resulting in “loss of a bodily organ system,” or (4) a “[p]ermanent physical
functional injury that permanently prevents the injured person from being able to
independently care for self and perform life-sustaining activities.” Anyone who
experiences one of these four types of injuries is exempt from the noneconomic-
damages caps.
See
R.C. 2315.18(B)(3). Anyone who has not experienced one of
these types of injuries is not so exempt. R.C. 2315.18(B)(2). And it must be
emphasized again that the “classification remains the same regardless of the age of
the victim and the nature of [the] tort.” Joint dissenting opinion, ¶ 67. R.C. 2315.18
does not treat Brandt nor other victims of sexual assault differently from other tort
victims who do not suffer from one of the four types of injuries listed above.
As discussed in the joint dissent, a minor victim of sexual assault
might reasonably fall into one of these categories. And contrary to the majority
opinion’s argument, it is not that mental health is not considered in the statute—an
exemption for it is just not as obviously available and easy to obtain. “The General
Assembly had a substantial interest in protecting our civil-justice system and our
economy when it enacted the statue that set a cap on noneconomic damages as a
means to limit the awards for injuries that are either difficult to prove or the extent
of which is difficult to quantify without evidence of some physical component.
This is a reasonable and legitimate government interest, and the General Assembly
has not arbitrarily selected winners and losers under the statute.” Joint dissenting
opinion at ¶ 69. Indeed, Brandt may have fallen into one of the exempted categories
of injuries due to her mental illnesses—had she made the argument.
See, e.g
.,
Ozmun v. Customer Engineering Servs., L.L.C.
, Cuyahoga C.P. No. CV 14 824745,
that her capped damages award violated equal protection, because R.C. 2315.18(B)(2) serves a legitimate governmental interest and there was a rational basis for the creation of the two classes—victims who fall into one of the four categories under R.C. 2315.18(B)(3) and those who do not.
D. The majority opinion’s due-process analysis is wrong and will cause chaos in
our judicial system I agree fully with the joint dissent that the majority opinion is wrong
in both its due-process analysis and its holding that the cap on noneconomic damages under R.C. 2315.18 as applied to Brandt is unconstitutional. And the majority opinion’s misinterpretation of our due-process jurisprudence is not only wrong, it creates chaos within our judicial system. The majority opinion’s holding in this case applies not only to
Brandt but to similarly situated victims. But that holding cannot be construed as a
blanket prohibition against caps on damages for all minor sex-abuse victims.
Rather, those victims will have to demonstrate that they are “similarly situated” to
Brandt and her “extremely uncommon” case. Majority opinion, ¶ 34. This will
prove to be difficult, especially considering this court’s holding in
Simpkins
, 149
Ohio St.3d 307,
trust issues with men, nightmares, and fear of the dark like Simpkins? Or did the victim have PTSD, anxiety, nightmares, difficulties sleeping, and agoraphobia like Brandt? Did the victim graduate high school, engage in sports, do well in college, and have a job, like Simpkins? Or did the victim graduate high school, have a job, get an apartment, but lose everything after falling victim to drug abuse and addiction, which led to a suicide attempt and homelessness, like Brandt? Do we need to consider the victim’s suffering in light of when the abuse occurred and when the tort action was pursued in order to better understand the victim’s injuries and responses? Does it matter that a victim has had more time to reflect on how the abuse has affected his or her life? If this process seems difficult, that’s because it is. And this analysis will become ever more difficult as time goes on and more child-abuse cases are plotted on this arbitrary grid created by the majority opinion. The majority opinion, through its due-process analysis, forces trial courts to engage in their own policy and value determinations in analyzing whether a victim has suffered “catastrophic psychological injuries,” a term not even used in the statutory scheme. Then the majority opinion requires trial courts to compare abuse horror stories to determine whether the victim is relieved from caps on damages. This nightmare could have been avoided had the majority opinion simply applied the objective constitutional analysis that was used in Simpkins and left these policy considerations for the General Assembly.
V. Conclusion Should the General Assembly revisit its decision to cap damage
awards, especially in cases like Brandt’s? Perhaps. But it is not the role of this court to rewrite statutes or make judicial decisions based on our preferred policy preference. As the late United States Supreme Court Justice Ruth Bader Ginsburg stated, “Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians.” Schweitzer, Ruth Bader Ginsburg, Wise Legal Giant , 37 Touro L.Rev. 533, 537 (2021). The majority opinion clearly does not heed these wise words. If the cap on damages awards is to be modified or eliminated, it
should be done through one of the mechanisms supported by our Constitution, like legislative amendment, legislative referendum, or constitutional referendum. It should not be modified in the manner chosen by the majority opinion today. Because Brandt cannot demonstrate that R.C. 2315.18 is unconstitutional on its face or as applied to her, this court should hold that the cap on her noneconomic-damages award is constitutional. Because it does not do so, I must respectfully dissent. In addition, over my objection, the court did not follow the regular
and orderly internal rules of operation and practice in this case due to others’ seeming concerns about voting on any motion for reconsideration. Hence, my time on this case was aberrantly and improperly limited. Thus, I most humbly apologize to the citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects. This case involves many constitutional issues that deserve to be more completely analyzed and debated so that they may be resolved appropriately. The litigants deserve full and fair consideration of their case, which has been shortchanged here. We should do better.
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The Fitch Law Firm, John K. Fitch, and Kirstin A. Peterson; Taft, Stettinius & Hollister, L.L.P., and Stephen C. Fitch; and Center for Constitutional Litigation, P.C., and Robert S. Peck, for appellant.
Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Francesca R. Boland, for appellee.
Rittgers & Rittgers and Konrad Kircher, urging reversal for amici curiae Child USA, Ohio Crime Victim Justice Center, Coalition for Children, and Crime Victims Center, Inc.
The Law Offices of Pamela J. Miller and Pamela J. Miller, urging reversal for amicus curiae American Professional Society on the Abuse of Children.
Paul W. Flowers Co., L.P.A., Louis E. Grube, and Paul W. Flowers, urging reversal for amici curiae Ohio Association for Justice and American Association for Justice.
Camille M. Crary, urging reversal for amicus curiae Ohio Alliance to End Sexual Violence.
Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and Cary Silverman, urging affirmance for amici curiae Chamber of Commerce of the United States of America, NFIB Small Business Legal Center, American Tort Reform Association, Coalition for Litigation Justice, Inc., and American Property Casualty Insurance Association.
Dinsmore & Shohl, L.L.P., Frank C. Woodside III, Peter J. Georgiton, and Brady R. Wilson, urging affirmance for amicus curiae Product Liability Advisory Counsel, Inc.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Michael J. Hendershot, Chief Deputy Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Calfee, Halter & Griswold, L.L.P., Jason J. Blake, and Gretchen L. Whaling, urging affirmance for amicus curiae David Goodman, former chairman of the Ohio Senate Judiciary Committee for Civil Justice.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Daniel C. Gibson, urging affirmance for amicus curiae Ohio Alliance for Civil Justice.
Tucker Ellis, L.L.P., Benjamin C. Sassé, and Elisabeth C. Arko, urging affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.
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