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Tort Damage Caps Unconstitutional When Applied to Sexually Abused Children

A state law capping the amount of damages awarded for claims such as “pain and suffering” in a personal injury lawsuit is unconstitutional as applied to certain sexually abused children, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court ruled caps on “noneconomic damages” should not be imposed on judgments awarded to 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.” The Court upheld a Cuyahoga County Common Pleas Court jury award of $134 million to Amanda Brandt, including $20 million for noneconomic damages for the mental health injuries caused by Roy Pompa.

Pompa of Brook Park was convicted in May 2007 on 93 sexual abuse-related counts, including 17 counts of rape and 21 counts of gross sexual imposition. Pompa sexually abused Brandt when she was 11 and 12 during sleepovers with his daughter. He was sentenced to life in prison without parole.

Writing for the Court majority, Chief Justice Maureen O’Connor noted the Court previously ruled the 2005 state “tort reform” law’s provision capping losses for harder-to-prove noneconomic damages was constitutional because exceptions were allowed for those who suffered “permanent and substantial” physical injuries.

But Brandt was subjected to having her $20 million award of noneconomic damages capped at $250,000 because she suffered severe psychological injury, but no permanent physical injuries, from Pompa’s abuse. The Court today stated that the cap in the tort reform law is unconstitutional as applied to sexually abused children like Brandt because the law “overlooked a small class of plaintiffs who are arbitrarily excluded from recovering the full amount” of noneconomic damages awarded by a jury.

Justices Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined Chief Justice O’Connor’s opinion.

Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine issued  a dissenting opinion, jointly authored by the three justices. The dissenters said that the majority was improperly substituting its policy preferences for that of the General Assembly. They wrote that the legislature, after conducting research, recognized that “damages for things like pain and suffering and mental anguish are inherently subjective.” In responding to that problem, the General Assembly did not act arbitrarily or unreasonably because it had a substantial interest in protecting the civil justice system and the state economy by capping noneconomic damage for injuries that are difficult to prove or quantify “without evidence of a physical component,” they stated.

Justice Fischer also issued a separate dissenting opinion in which he stated, “[w]hile these types of cases turn our stomachs and tug on our heartstrings,” Brandt had not demonstrated the caps are unconstitutional. He also reiterated that it is up to the legislature, not the courts, to make any changes to the caps on jury awards.

Law Limits Damage Awards to Personal Injury Victims
The General Assembly has enacted several laws to limit the amount of compensation a plaintiff can recover in a personal injury lawsuit. In 2005, Senate Bill 80 was signed into law and included R.C. 2315.18, which describes how compensatory damages may be awarded for economic and noneconomic losses in a civil lawsuit.

Economic losses are described as lost wages and salaries, along with expenditures for medical care and treatment, rehabilitation, and other expenses incurred as a result of an injury or death.

Noneconomic loses are defined in R.C. 2315.18 as “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.”

The law caps the compensatory damages for noneconomic loss at $250,000, with some exceptions that extend the total to $500,000.

The law also removes the cap for noneconomic loss if the plaintiff suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ, or if the plaintiff is permanently prevented from being able to independently care for oneself.

The law’s cap on noneconomic damages was challenged shortly after its enactment. In Arbino v. Johnson & Johnson, the Supreme Court in 2007 rejected the argument that the law violated the “due-course-of-law guarantee” in Article I, Section 16 of the Ohio Constitution.

Lawsuit Challenges Application of Caps to Child Victims
Pompa drugged and raped girls ages 6 to 13 in his house and video recorded his activities. He raped and abused Brandt in 2004 and 2005.

As an adult, Brandt filed a civil lawsuit in 2018 against Pompa for intentional criminal wrongdoing, knowing dissemination of child pornography, and intentional infliction of emotional distress. Brandt also asked the trial court to declare the caps in R.C. 2315.18 unconstitutional as applied to her case.

The trial court found Pompa liable for Brandt’s injuries based on his criminal convictions and admissions to authorities. A jury trial was conducted solely to determine the type and amount of Brandt’s damages.

Brandt’s mother testified that, after the abuse, her daughter isolated herself and experienced severe anxiety and anger issues. Brandt testified about how, as an adult, she deals with posttraumatic stress disorder (PTSD), anxiety, and constant nightmares. After high school, she lost a job due to anxiety, self-medicated with heroin, was homeless for a period, and attempted suicide.

A psychologist testified that Brandt suffered from PTSD as a result of Pompa’s assaults and that her symptoms would persist for a significant period of time.

The jury was instructed on its duty to determine damages. It was told not to use any “mathematical formula” to determine compensation for pain and suffering and was told it was solely within the jury’s discretion to determine an amount of damages.

The jury determined that Brandt was entitled to $134 million in damages. $14 million represented compensatory damages for acts that occurred before April 2005, when S.B. 80 took effect. The jury awarded $20 million in compensatory damages for acts that occurred after April 2005, and $100 million in punitive damages.

Based on the new law, the trial court reduced the $20 million amount to $250,000.

Brandt appealed the reduction of her damages to the Eighth District Court of Appeals, which upheld the trial court’s decision. Brandt appealed to the Supreme Court of Ohio, which agreed to review the case.

Psychological Injuries Suffered By Children Different
Brandt noted that the law allows for unlimited recovery of damages for physical injuries or economic losses. While those are the type of injuries suffered by adults in most personal injury cases, child victims of sexual abuse differ. Children rarely have significant economic injuries and tend not to suffer from certain physical injuries, such as a permanent physical deformity, Brandt maintained. But the emotional and psychological injuries suffered by these victims is real, substantial, and catastrophic, and may also manifest physically, she argued.

Chief Justice O’Connor explained that in the Arbino case, the plaintiffs claimed the caps on noneconomic damages were unconstitutional in all circumstances. In this case, Brandt claimed the law was unconstitutional only as applied to her case and those of similarly situated abused children.

Supreme Court Analyzed Constitutional Rights
The Court noted that Article I, Section 16 states that every person has a right to a “remedy by due course of law” for an injury “done him in his land, goods, person, or reputation.” The opinion explained that the Court applied a “rational-basis test” to determine if the statute is constitutional. Under that test, the Court assesses whether a statute is “not unreasonable or arbitrary.”

In Arbino, the Court found the caps, along with the exception to the caps for severe physical injury, met the rational-basis test because the legislature concluded 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.”

Chief Justice O’Connor today wrote that the significant distinction between the facts in Arbino and in Brandt’s cases is that psychological injuries were not addressed in Arbino. The Court in Arbino addressed a claim regarding a medication that caused blood clots and other serious medical side effects. The Court majority today found there is no rational basis for capping damages for those suffering from “catastrophic psychological injury.”

“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,” the Court stated.

Justification for Tort Law Does Not Include Criminal Abuse
The opinion noted the General Assembly stated its justification for capping noneconomic damages 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.”

Brandt was not harmed by negligent behavior, the Court stated, but rather by Pompa’s intentional, criminal behavior. His conviction demonstrated that her lawsuit was not frivolous, the opinion noted.

The Court explained the legislature’s concern about the “cost of doing business” related to the costs of business liability insurance policies. The opinion stated the type of injuries Brandt sustained are extremely uncommon and that most business liability insurance policies now exclude coverage for intentional conduct such as abuse or molestation.

The Court concluded the only one who benefits from the cap on noneconomic damages for Brandt’s injuries is “Brandt’s abuser, not the public, and not the insurance industry.” The Court reversed the Eighth District’s decision and reinstated the jury verdict.

Activism from the Bench Needs to Stop, Dissenters Contend
“No one denies child abuse is horrific” and “that Brandt has suffered,” said the three dissenting justices. However, R.C. 2315.18(B)(3) exempts the noneconomic damages caps for only four specified types of injuries that do not include the issues suffered by Brandt, the dissent noted.

The General Assembly “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,” the dissent explained. And “[i]n order to effectively enact legislation that solves the problems that the General Assembly found to exist, the legislature was required to draw lines somewhere.”

“That the distinctions drawn may not be perfect does not make them irrational or arbitrary,” the dissent stated. “And the majority opinion does not dispute that the lines must be drawn – it simply disagrees with how the General Assembly drew them.”

The dissent acknowledged that the Court can bring to the legislature’s attention a statute that may no longer be in line with public interest, but it cannot “rewrite the statute in the manner [it] find[s] most appropriate.”

“Minor sex-abuse victims are worthy of protection and compensation. 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 arbitrator of public policy,” the dissent maintained.

“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,” the dissent continued. “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.”

“This activism from the bench needs to stop,” the dissent concluded.

Majority’s Analysis of Caps for Abuse Victims Will Create Chaos in Courts, Dissent Predicts
In his dissent, Justice Fischer explained that since the inception of statehood, Ohio legislative enactments were presumed to be constitutional, and the Court has repeatedly adopted the position that a law would be deemed unconstitutional only if proven so beyond a reasonable doubt. He wrote the Court ruled 15 years ago in Arbino that these caps are constitutional, and Brandt has not presented sufficient evidence to overturn that decision.

First, stare decisis and the court’s reliance on Arbino demanded affirmance, Justice Fischer maintained. And second, the right to a jury trial was not violated when the trial court amended the damage award consistently with R.C. 2315.18(B)(2) because the General Assembly has the right to determine remedies and the jury’s duties were complete upon their factual findings

Justice Fischer resolved the rest of Brandt’s arguments. He concluded that “Brandt cannot establish that R.C. 2315.18(B)(2) violates her rights to a jury trial, to open courts, to a remedy, or to equal protection.”  Brandt was not denied access to open courts or a meaningful remedy, especially considering that “meaningful remedies” are determined by the General Assembly. Additionally, Justice Fischer criticized the Court’s use of “catastrophic” to describe the injuries set forth in R.C. 2315.18(B)(3), because it “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).”

Justice Fischer also stated that applying today’s ruling “will create chaos within our judicial system.” The opinion does not place a blanket prohibition against caps on damages for all minor sex-abuse victims, meaning victims will have to demonstrate that they are “similarly situated” to Brandt and her “extremely uncommon” case, he stated. A difficult analysis, he maintained, due to the Court’s decision in Simpkins v. Grace Brethren Church of Delaware, Ohio.

Trial courts will have to “engage in their own policy and value determinations in analyzing whether a victim has suffered ‘catastrophic psychological injuries,’” and “compare abuse horror stories” to determine whether the victim’s damages should be capped, he concluded.

2021-0497. Brandt v. Pompa, Slip Opinion No. 2022-Ohio-4525.

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Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.