On March 30, 2022, the Supreme Court of Ohio will hear oral argument in Brandt v. Pompa, 2021-0497. At issue in this case is whether Ohio’s statutory cap on non-economic damages, codified in R.C. 2315.18, is unconstitutional as applied to the facts in this sexual assault case. Also at issue is whether R.C. 2315.18 is facially unconstitutional and if the Court should overrule its 2007 decision in Arbino v. Johnson & Johnson upholding the constitutionality of the statute.

Case Background

From May 2004 until November 2005, Amanda Brandt was molested thirty-four times by her best friend’s father, Roy Pompa. Brandt was only 11 years old when the molestations began. Pompa would sexually assault Brandt while she was spending the night at a sleepover. Sometimes he would slip illicit substances into her drinks before bedtime. Pompa even recorded some of the encounters. Brandt was not alone, as Pompa had molested numerous other young girls. Pompa was eventually tried, convicted, and sentenced to life in prison for his crimes.  

In 2018, Brandt, then 26-years-old, filed a civil complaint against Pompa. The complaint, among other things, asserted claims for intentional infliction of emotional distress and sought a declaratory judgment that, as applied to the facts of her case, Ohio’s statutory cap on non-economic damages is unconstitutional. The civil trial centered around the harmful, life-altering impacts that Pompa’s molestation had on Brandt. In addition to negatively impacting her demeanor as a child, Brandt detailed PTSD and anxiety diagnoses, reoccurring nightmares, an inability to keep jobs, a heroin addiction, a suicide attempt, and even being homeless for a year. At trial, expert witnesses could not say definitively if Brandt’s trauma was directly related to Pompa’s assaults or whether other intervening factors from her childhood contributed.

After consideration of all the evidence, the jury awarded Brandt a total judgment of $134 million—$14 million in non-economic damages incurred prior to 2005, $20 million in non-economic damages incurred after 2005, and $100 million in punitive damages. Pompa moved the trial court to reduce the post-2005 non-economic damages award to $250,000 per R.C. 2315.18. Judge Janet R. Burnside of the Cuyahoga County Court of Common Pleas granted the motion and reduced the $20 million post-2005 award. Brandt appealed arguing that R.C. 2315.18 violates her constitutional rights to open courts and a remedy, a jury trial, equal protection of the laws, and due process.

The Appeal

A unanimous panel of the Eighth District Court of Appeals affirmed the trial court’s reduction of the damage award and disagreed with all of Brandt’s constitutional arguments. Judge Kathleen Ann Keough authored the opinion. Judges Anita Laster Mays and Mary Eileen Kilbane concurred.

The Supreme Court of Ohio has rejected both as-applied (in Simpkins) and facial (in Arbino) challenges to the constitutionality of R.C. 2315.18. Despite language in Simpkins that R.C. 2315.18 might be unconstitutional under some factual scenarios, Brandt’s case is not one. First, R.C. 2315.18 does not deprive Brandt of a trial by jury, her right to open courts and a remedy, nor equal protection. On all three claims, Brandt raises the exact same arguments that were expressly rejected in Simpkins. Unless the Supreme Court of Ohio overrules Simpkins or Arbino, intermediate appellate courts must follow and apply direct precedent.

Second, the statute does not deprive Brandt of due process of law. Under a rational basis review, Ohio’s tort reform cap on non-economic damages is not arbitrary but rather bears a substantial relation to the general public welfare by ensuring that the civil litigation system is not negatively harming the economy. Although not identical to the facts of Simpkins, Brandt’s situation is not extreme enough to avoid the damages cap in R.C. 2315 (B)(2). Although she has suffered severe, life-long impacts from the assaults, the evidence also proves that Brandt is married, has children, has a strong career path, and can independently care for herself. It is also not clear that Brandt’s mental health issues are attributable to the sexual assaults alone. Thus, the trial court’s reduction in damages is affirmed and R.C. 2315.18 is not unconstitutional, either as applied or facially. Brandt appealed.  

Key Statutes and Precedent

Ohio Constitution, Article I, Section 2 (“All political power is inherent in the people. Government is instituted for their equal protection and benefit [. . .]”).

Ohio Constitution, Article I, Section 5 (“[t]he right of trial by jury shall be inviolate.”)

Ohio Constitution, Article I, Section 16 (“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.”)

R.C. 2315.18(B)(2) (“the amount of compensatory damages that represents damages for non-economic loss * * * shall not exceed the greater of two hundred fifty thousand dollars 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 three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum of five hundred thousand dollars for each occurrence that is the basis of that tort action.”)

R.C. 2315.18(B)(3) (excluding from the cap on non-economic damages “[p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system” or for “[p]ermanent physical functional injury that prevents the injured person from being able to independently care for self and perform life-sustaining activities.”)

Westfield Ins. Co. v. Galatis, 2003-Ohio-5849 (“[I]n Ohio, a prior decision of the Supreme Court may be overruled where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.”).

Arbino v. Johnson & Johnson, 2007-Ohio-6948 (rejecting a facial challenge to R.C. 2315.18. Held that the non-economic damages cap does not violate the right to trial by jury, the right to remedy and open court, right to due process of law, nor the right to equal protection of the law.).

Simpkins v. Grace Brethren Church of Delaware, 2016-Ohio-8118 (rejecting an as-applied challenge to R.C. 2315.18 brought by a minor who was the victim of sexual assault. Although the facts of this case were not extreme enough to be unconstitutional, the Court did “not consider whether there may exist any set of facts under which application of the statutory damage caps  would prove unconstitutional.”)

Wayt v. DHSC, 2018-Ohio-4822 (Court applying tort reform caps to intentional torts. R.C. 2315.18(B)(2) “unambiguously caps the noneconomic damages that can be recovered as a result of defamation.”).  

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices Brunner, Donnelly, and Stewart

No: Justices DeWine, Fischer, and Kennedy.

Brandt’s First Proposition of Law Accepted for Review

R.C. 2315.18, as applied to minor victims of sexual abuse that suffer severe and permanent injuries, violates constitutional rights to due process of law, equal protection of the laws, trial by jury, and open courts and a remedy as guaranteed by the Ohio Constitution.

Brandt’s Second Proposition of Law Accepted for Review

Arbino v. Johnson & Johnson, 2007-Ohio-6948, was (1) wrongly decided at the time, (2) circumstances have changed since the decision, (3) the decision defied practical workability, (4) abandoning the decision would not create an undue hardship for those who have relied upon it, and accordingly Arbino must be overruled.

Brandt’s Argument

Tort law is designed to compensate victims and deter future bad conduct. Ohio’s cap on non-economic damages in R.C. 2315.18 directly undermines one of these goals and severely hinders the other. Instead of making sexual assault victims like Amanda Brandt whole again, the damage cap only operates to protect sexual predators like Roy Pompa. This Court should hold that R.C. 2315.18, as applied to minor victims of sexual abuse who suffer severe and catastrophic injuries, violates numerous rights afforded them under the Ohio Constitution.

First, applying R.C. 2315.18 violates Amanda’s right to due process under the Ohio Constitution. Although the standard is rational basis, the statute is unreasonable and arbitrary as applied to Amanda and victims like her. There is no valid reason why minor victims of sexual abuse should be denied full compensation. This is especially so because the most common form of injury manifests itself in non-economic forms, specifically emotional distress, impaired relationships, and altered sense of self. It is arbitrary to deny adequate relief simply because there is no physical injury serious enough. Furthermore, it is unreasonable for R.C. 2315.18 to strip 98% of a damages award that a jury, after hearing all the evidence, determined was adequate to compensate a victim. The Ohio legislature has no rational basis to tell Amanda or victims like her that $250,000 is sufficient compensation for a lifetime of suffering.  

Second, R.C. 2315.18 violates Amanda’s right to equal protection. Again, Ohio’s cap on non-economic damages is unreasonable and arbitrary. The statute creates two classes of people: (1) those who suffer catastrophic physical injuries and (2) those who suffer catastrophic non-physical injuries. The statute then arbitrarily denies the second group full recovery simply because the damages are not physical. It makes little sense that if Amanda had incurred a scar or permanent physical injury from the sexual assaults that she would have been entitled to the full post-2005 $20 million judgment. The lack of physical injury does not make her PTSD, anxiety, depression, or nightmares any less real.

Third, by intruding on and ignoring the jury’s finding of fact, R.C. 2315.18 violates Amanda’s right to a jury trial under Ohio’s Constitution. The jury, not the legislature, sits through a trial and determines what damages will adequately compensate a victim. But through R.C. 2315.18, the legislature supplants the jury’s findings and says that no matter the facts of your case, you get no more than $250,000. This defeats the very purpose of tort law—to make the victim whole again.

Fourth, R.C. 2315.18 violates Amanda’s right to open courts and a remedy under Ohio’s Constitution. By ignoring a $20 million jury verdict to compensate Amanda for her injuries, the statute denies any “meaningful” remedy. And as other state supreme courts have so concluded, Ohio should hold that capping non-economic damages emasculates an individual’s right to a fair remedy.

Finally, in Simpkins, this Court expressly noted that there may exist a set of facts under which R.C. 2315.18 would be unconstitutional. Amanda’s case is that severe case. In Simpkins, the minor victim was subject to two instances of sexual abuse while Amanda suffered thirty-four. Amanda’s psychological and mental trauma are also of such an extreme nature that precluding relief is unconstitutional. Pompa’s assault took Amanda to the lowest points in her life, points so low that most individuals never experience. Amanda has been through drug addition, serious anxiety, suicide attempts, homelessness, and continued PTSD and anxiety. This case is not like Simpkins but rather presents precisely the extreme case that renders R.C. 2315.18 unconstitutional as applied.

Turing to the second proposition, this Court should also rule for Amanda by expressly overruling Arbino. First, Arbino wrongly concluded that R.C. 2315.18 did not deprive every Ohioan of a right to trial by jury. The Court, despite serious differences, improperly analogized R.C. 2315.18 to both a treble damage award and a remitter and also incorrectly relied on federal court analysis of the Seventh Amendment. The Arbino Court also improperly applied a rational basis test when it should have applied strict scrutiny to the due process and equal protection claims. Second, circumstances have changed since the 2007 Arbino decision. The tort reform cap on damages has not improved Ohio’s economy and in cases such as this, it only serves to shield sexual assault perpetrators from their grotesque intentional actions. Third, Arbino is no longer workable in light of new understandings on mental health injuries. Although Arbino dealt with physical injuries, society now better understands and recognizes that mental injuries can be just as chronic and traumatic. Finally, overruling Arbino would not create an undue hardship on those who have relied on it. Even giving strong weight to stare decisis, these factors all demonstrate why Arbino should be overruled.

Pompa’s Argument

As a threshold matter, the Court should dismiss this case as improvidently granted. All Brandt has done on appeal is pose a series of hypothetical constitutional law questions, that regardless of how the Court answers them, will make no material difference to her. Pompa is in prison for the rest of his life and is judgment proof. Whether the judgment is raised by another $20 million in this case, the judgment simply will not be satisfied. To answer Brandt’s hypotheticals in the abstract without any real-world relief would amount to an impermissible advisory opinion. Even if the Court continues to the merits, however, Brandt still loses.

First, Brandt has confused the distinction between and is attempting to advance a facial challenge disguised as an as-applied challenge. Facial challenges are extremely difficult to win, are disfavored, and begin with a presumption of constitutionality. Remarkably, Brandt then leads this truly-facial challenge on behalf of a de facto class of persons (minor victims of sexual abuse suffering severe and permanent injuries) whose claims are not even before this Court. This diverse, broad class of persons could suffer any range of damages and thus, this case cannot properly be an as-applied challenge.

Second, even if the Court believes this is an as-applied challenge, the courts below did not err in concluding this case was indistinguishable from Simpkins. In fact, the record here is equivocal, and although Simpkins warned that applying R.C. 2315.18 to an extreme set of facts could be unconstitutional, Brandt’s is not that case. Rather, in every material way, this case is the same as Simpkins. Because this case is indistinguishable, the Court can simply apply the Simpkins analysis and reject each of Brandt’s constitutional arguments. For the precise reasons in Simpkins, here, neither Brandt’s right to a jury trial, due process, equal protection, nor her right to open courts and a remedy have been violated. Brandt has never argued that Simpkins should be overruled, and it presents the Court with an easy disposition of this case.

Third, having rejected any possible as-applied challenge, the Court can return to  Brandt’s true facial challenge and reject it. Facial challenges are disfavored because it is the legislature, not private parties or courts, that weigh public policy concerns and enact legislation on behalf of Ohioans. R.C. 2315.18’s cap on non-economic damages embodies Ohio’s reasoned protection of its economy and desire to ensure jury verdicts are uniform and not improperly motivated by jury passion or biases. And contrary to Brandt’s contention, R.C. 2315.18 does not wholly deny a meaningful remedy—Ohio only caps non-economic damages, but permits unlimited punitive damages, economic damages, or physical non-economic damages. In fact, Brandt herself has an untouched $114 million judgment, so she is not being denied a remedy. Finally, to the extent Appellant is putting forth a facial challenge, her approach is flawed. Her entire argument is nothing but extreme, hypothetical fact patterns whereas the standard she needs to meet is that under no set of facts could R.C. 2315.18 be constitutional. Brandt cannot show that.

Finally, Arbino should not be overruled, but rather should be directly applied. Brandt’s main argument is that R.C. 2315.18 infringes on the right to a jury trial, but she misses the mark. Juries decide facts. Judges then apply the law as prescribed by statute or common law to those facts. R.C. 2315.18 does not intrude upon the factual findings of a jury but is simply the judge applying statutory limits that exist as a matter of law to those factual findings. Not only is that constitutional, but it is common throughout the law and is a judge’s constitutional duty. For the remainder of her constitutional arguments, Arbino provides the clear answer: R.C. 2315.18 does not deny a remedy, does not violate equal protection, nor does it affront the due process rights of plaintiffs. The only argument that remains is Brandt’s extreme contention that Arbino should be discarded entirely. However, circumstances have not changed, Arbino works well in practice, and throwing away such a long-standing precedent would violate stare decisis, upend the reliance Ohioans have placed on its holding, and would be a judicial usurpation of Ohio’s legislative tort reform goals. The Eighth District’s decision must be affirmed.

Amici in Support of Brandt

American Professional Society on the Abuse of Children, et al.

The American Professional Society on the Abuse of Children (APSAC), CHILD USA, the Ohio Crime Victim Justice Center (OCVJC), the Coalition for Children, the Crime Victims Center, Inc., and My Sister’s Place are all groups dedicated to ending child abuse and neglect and to enforce victim’s rights, both in Ohio and nationally.

Capping non-economic damages discourages victims from filing civil claims that would otherwise help identify predators and give the victim some relief, while also allowing for public education and scrutiny to prevent future abuse. Removing the cap allows for just compensation to shift the costs of abuse from the victim and society to the perpetrator of the abuse. Additionally, the cap on non-economic damages limits victims’ ability to access legal counsel, and thus seek meaningful redress.

The cap on non-economic damages has a disproportionate negative impact on child sexual abuse victims. Alternatively, the physical injury exception to Ohio’s non-economic damages cap should apply in this case, although this still limits a victim of child sexual abuse to recover adequately.

The Court should find R.C. 2315.18 unconstitutional, or in the alternative, apply the damages cap exception to this case.

Ohio Association for Justice and American Association for Justice

The Ohio Association for Justice and American Association for Justice are groups comprised of attorneys committed to strengthening the civil justice system.

R.C. 2315.18, as applied to child victims of sexual abuse with long-term PTSD, is unconstitutional, under both due process and equal protection concerns. Additionally, there lacks a substantial relationship between the legislative objectives and Brandt’s current case. There is no indication that there are frequently substantial non-economic damages awarded, nor that the legislative record indicates that limiting non-economic damages would have the economic benefits anticipated.

R.C. 2315.18 should be reviewed under strict scrutiny because it regulates the outcome of a jury trial, and thus infringes on a fundamental right.

The Court should reverse the Eighth District’s decision, and declare Ohio’s damage caps unconstitutional as applied in this case or remand for a strict scrutiny analysis of the statute.

Ohio Alliance to End Sexual Violence

The Ohio Alliance to End Sexual Violence (OAESV) is a statewide coalition to prevent sexual violence and advocate for survivors of sexual violence.

The plurality in Simpkins incorrectly applied R.C. 2315.18 by equating the victim’s injuries from childhood sexual abuse to that of other tort victims whose injuries do not meet the physical injury exception to the statute. The longevity and intensity of the injuries these victims experience are of a different sort, and thus cannot be equated. Additionally, since Simpkins was decided, circumstances have changed considerably, and we are aware of the pervasiveness of this abuse more than ever. Finally, Simpkins as a standard is unworkable in that the analysis a court must undergo to determine the injury by balancing factors is deeply flawed, and there are no reliance interests that justify upholding Simpkins.

In the alternative, the Court should find that as applied, R.C. 2315.18 violated Brandt’s constitutional rights.

OAESV’s Proposed Proposition of Law 1

OAESV urges this court to overturn Simpkins, as it was wrongly decided at the time, a change of condition demands reversal, it is practically unworkable, and overturning the decision will not create undue hardship for those who have relied upon it.

OAESV’s Proposed Proposition of Law 2

If this Court does not overturn Simpkins, it must find that R.C. 2315.18—as applied to Amanda Brandt—violates constitutional rights to due process of law and equal protection of the laws, as guaranteed to her by the Ohio Constitution.

Amici in Support of Pompa

Chamber of Commerce of the United States of America, et al.

The 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 are businesses, insurers, and others concerned with maintaining predictability and fairness in Ohio’s civil justice system.

Limits on non-economic damages were enacted in response to a growing number of pain and suffering awards and their unpredictability. Ohio has enacted a reasonable upper limit on non-economic damages in R.C. 2315.18, like many other states, which have been upheld by other state supreme courts.

The Court should reaffirm that R.C. 2315.18 is both facially constitutional, and constitutional as applied in this case.

Product Liability Advisory Council, Inc.

The Product Liability Advisory Council (PLAC) is a non-profit professional association of businesses representing product manufacturers in the U.S. and internationally, and seeks to contribute to the reform of liability law for manufacturers.

The Open Courts Clause in the Ohio Constitution is not violated by the non-economic damages cap in R.C. 2315.18 either facially or as applied, as Brandt has a meaningful remedy. Upholding the statute is consistent with the history and the origins of the clause.

The Court should uphold the non-economic damages caps in R.C. 2315.18, and reaffirm the sound reasoning of Arbino.

Ohio Attorney General Dave Yost

The State of Ohio has an interest in any case alleging a conflict between laws passed by the General Assembly and the Constitution.

The Ohio Constitution permits the General Assembly to cap damages for specific kinds of injuries. The cap does not violate the right to a remedy provision. The remedy language does not restrict legislative power.

The cap also does not violate the right to a jury provision. The jury guarantee in the Ohio Constitution is about process, not substance. It divides power between the judge and the jury in particular cases, but places no substantive limits on policy choices and available remedies. The jury functions as the fact-finder, and this is not limited by R.C. 2315.18. As such, R.C. 2315.18 offends no due process protections. In this context, the due process component of the Ohio Constitution imposes only rational-basis review. The statute rationally limits subjective awards, and distinguishes dissimilar plaintiffs. The statute also rationally promotes fairness to both parties, plaintiffs and defendants. The Court should affirm the Eighth District’s decision.

David Goodman

David Goodman is the former Chairman of the Ohio Senate Judiciary Committee for Civil Justice and was directly involved in the drafting and enactment of R.C. 2315.18. The statute is clear and unambiguous.

When enacted, the General Assembly had a legitimate purpose for R.C. 2315.18, based on the evidence that demonstrates that uncertainty in the civil litigation system, and the rising costs associated with it, harm the economy. Implementing caps on non-economic damages was meant to address this directly. The decision was a deliberate policy choice, including the exceptions included in the statute.

Brandt and other amici are attempting to usurp a legislative decision with a judicial one, and create nonexistent legal standards and evidentiary thresholds for the legislature. The Court should apply the statute as written, and affirm the appellate court’s decision.

Ohio Alliance for Civil Justice

The Ohio Alliance for Civil Justice (OACJ) is a group of companies and organizations dedicated to a balanced civil justice system that both awards fair compensation to injured persons, but also prevents the unjust penalty of defendants.

The non-economic cap itself, and the physical injury exception, survive strict scrutiny, which makes any constitutional analysis unnecessary. The cap serves compelling governmental interests by minimizing subjectivity in the award of damages. It is narrowly tailored to this interest. Similarly, the physical injury exception also serves a compelling governmental interest, and is narrowly tailored to that interest, by ensuring unlimited non-economic damages for the most objectively severe injuries, while minimizing the risk of runaway verdicts. But, this exception is not an open door, and is limited only to physical injuries.

None of Brandt’s constitutional rights are infringed by the non-economic damages cap, nor the exception for permanent physical deformity.

Arbino was correctly decided, and even if it were not, stare decisis does not warrant changing course. No circumstances have changed since Arbino, and since the decision, the damages cap has been applied without confusion or disruption. Thus, the reliance interests of Ohio’s citizens lean heavily against overturning Arbino.

Ohio Association of Civil Trial Attorneys

The Ohio Association of Civil Trial Attorneys (OACTA) is comprised of attorneys, executives, and claims professionals dedicated to the defense of tort litigation and civil disputes in Ohio.

Arbino was correctly decided, does not violate the right to a jury trial, and correctly applied rational basis review to the facial due process and equal protection challenges. There have been no changed circumstances that justify overruling Arbino. The standard in Arbino and R.C. 2315.18 are practically workable, and overruling Arbino would cause undue hardship by upending a decade of constitutional jurisprudence.

The Court should follow Arbino, and confirm R.C. 2315.18 is constitutional on its face, reject Brandt’s as-applied constitutional challenge, and affirm the decision of the Eighth District.

OACTA’s Proposed Counter Proposition of Law No. 1

Arbino correctly held that R.C. 2315.18 violates no fundamental right, is rationally related to a legitimate governmental interest, and is neither unreasonable nor arbitrary; these holdings stand under stare decisis.

OACTA’s Proposed Counter Proposition of Law No. 2

R.C. 2315.18, as applied to a minor victim of sexual assault who received a judgment over $100 million, violates no constitutional rights.

Student Contributors: Brandon Bryer and Liam McMillin