On March 30, 2022, the Supreme Court of Ohio heard 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. The trial judge 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.

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.  

Read the oral argument preview in the case here.

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.”)

*Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) (holding that the Seventh Amendment “right to a jury trial includes the right to have a jury determine the amount of statutory damages,” and that “it has long been recognized that ‘the jury are judges of the damages.’”). 

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.”).  

*cited by counsel at argument

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.

At Oral Argument

Arguing Counsel

Robert S. Peck, Center for Constitutional Litigation, P.C. Washington, D.C. for Appellant Amanda Brandt

Marion H. Little, Jr., Zeiger, Tigges & Little LLP, Columbus, for Appellee Roy Pompa

Brandt’s Argument

Under the Ohio Constitution, the right to trial by jury is not qualified.  The framers of Ohio’s 1802 constitution said that this right was categorical and was not weighed against other types of rights.  Under the historical analysis, jurors decide damages and when the jury makes a damages assessment, that is encompassed in the right to trial by jury. The U.S. Supreme Court has unanimously held as such in Feltner v. Columbia Pictures Television Inc. Irrespective of the type of damages at issue, the framers left that constitutional task to the jury, not the legislature or a judge. In effect, damage caps such as R.C. 2315.18 override that role of the jury.  

To agree with Brandt’s position in this case, the Court would admittedly have to overrule Arbino and Simpkins, but it can distinguish other cases that can remain good law going forward. Arbino incorrectly interpreted those earlier cases and thus, they do not have to be overruled.

The $114 million outstanding verdict that Brandt has should not factor heavily into the Court’s analysis. Regardless of whether Pompa is judgment proof or if he will eventually get an inheritance, why would he have moved the trial court to lower the damages in the first place? Rather, the proper inquiry this Court should focus on is that the jury decided that $20 million would adequately compensate her injuries, yet the damage cap overrode that. This case is about a matter of principle that the damage cap improperly assumes the role of the jury.

If the Court feels it is too far to overrule the cap facially, Brandt’s case is precisely the egregious case Simpkins envisioned would be unconstitutional as-applied. Whereas the victim in Simpkins was only molested once, Brandt was molested thirty-four times and has suffered catastrophic, life-altering injuries. Just because her injuries are not physical does not mean they are any less real.  In fact, this highlights precisely why the damage cap is unconstitutional as applied to Brandt—the jury heard the evidence, weighed the credibility of that evidence, and decided that $20 million would make her whole again, yet the statute reduced that to $250,000. If the statute does not make exception for victims like Brandt, the Constitution does.

Pompa’s Argument

In Simpkins this Court acknowledged that there could be a set of circumstances in which application of the statutory damages cap would prove unconstitutional. Those circumstances were not present in Simpkins, nor are they present in this case. The $114 million judgment the plaintiff has in this case demonstrate why. It cannot be denied that Ms. Brandt had her day in court or that she has a meaningful remedy. This is the kind of case in which the legislature intended for there to be no cap on the punitive damages, and she had her day in court to show that. She’s also had a jury deliberate. And that jury in fact gave her the remedy that the legislature prescribed. In fact, that judgment is perhaps one of the largest ever awarded.

It was for the trial court in the first instance to decide whether or not the plaintiff had presented a case that would render this statute unconstitutional as applied. The trial court record reflects only a very modest attempt to do so. While there are many studies cited in the briefs of the plaintiff and her amici, none of those studies are in the record. Whether this is viewed as a facial or an as applied challenge, it was incumbent upon counsel in the first instance to present this material to the trial court and counsel failed to do so.

After analyzing the record, the Eighth District agreed that the plaintiff had been harmed but there were substantial issues as to whether the current health issues that she is experiencing were proximately caused by the defendant’s conduct or really were the results of other stressors in her life. 

Ohio law is clear that the trial court is presumed to know and follow the law. In this particular case we must assume that the trial court considered this Court’s prior decision in Simpkins and in Arbino, and concluded that the plaintiff had failed to establish by clear and convincing evidence that there was some type of unconstitutional result under these particular facts. Furthermore, there were no jury interrogatories in the case on that issue.

Rather, what the record does reflect is a tremendous amount of evidence suggesting that there were other acts voluntarily taken by the plaintiff that were impacting her life today, whether it was a decision to basically be homeless, to be in an abusive relationship with her boyfriend, or ultimately go down a path that resulted in drug addiction.  All those were factors the court of appeals said the record showed were equivocal. And the evidence must be unequivocable to support the plaintiff’s claim.

If there was ever a case supporting tort reform, this is the case. In Arbino, in support of tort reform, the Court emphasized consistency in judgments, not having subjective results, and making sure that a result was not the product of improper influences.  While it is a delicate task to try and draw a comparison between rape cases, consider the verdict in this case in comparison to Simpkins. The numbers are staggering in terms of the differentials. Take out the punitive damages and we’re talking about $40 million here versus $3 million in Simpkins. And in this case, the victim was unconscious or asleep for most of the incidents. It is difficult for the Court to try and balance that. And in each case the victims had successfully recovered in material respects and were living appropriate lives moving forward.

In this particular case the plaintiff had in fact successfully moved beyond the trauma that she sustained. Even her testifying expert could not say that her continued issues are associated with Pompa’s actions. The expert doesn’t even know to what extent she is going to continue to receive these treatments in the future.  When considering these issues, we look at whether the person is working, has a family, or has children. When we consider those types of factors, they all favorably suggest that the plaintiff has in fact recovered. In this particular case the plaintiff should be applauded for the success she has made moving forward as was the case with the plaintiff in the Simpkins case. Both of them have moved forward in a very productive and successful fashion, and thus this case is not the egregious case Simpkins hypothetically forecasted.

What Was On Their Minds

Simpkins Case

Was the injury to Ms. Simpkins not catastrophic, asked Justice Fischer? Should we be comparing rape victims?

Where’s the factual comparison here that we should say Simpkins wouldn’t say that this case is one that we should consider, asked Justice Brunner?

Isn’t there’s an argument to be made that the distinction between Brandt and Simkins is what happened to both victims, asked Chief Justice O’Connor, who added, the consequences are distinguishable, one from the other.

As Applied Challenge

What should the Court be considering in a challenge as applied to minor victims of sexual abuse, asked Justice Brunner? What is outside the record that the defense thinks the Court is considering? Why can’t the Court consider what the jury did in looking at the factual basis of the as-applied challenge?

What test are we going to apply, asked Chief Justice O’Connor?

What if the compensatory damages were significantly less, asked Justice Stewart? Assuming this is an as-applied argument, do we consider the judgment as a factor for whether this statute is unconstitutional as applied to this person based on the injuries, the damages, the lifelong results that this will have? 

Jury Trial Right

Did the people who adopted the jury trial right in 1802 mean for that provision to be different than the one in the federal constitution, asked Justice DeWine? Is the U.S. Supreme Court wrong then in its understanding of the history?

Jury’s Verdict in this Case

Isn’t there 134 million in the original verdict, asked Justice Fischer? And under the judgment its 114 million, 250,000, isn’t it? Was there a judgment debtor exam done? Is this man judgment proof? Is this all a moot point? There is a final judgment, correct?

Was there a bond issued, asked Justice DeWine? Has there been any effort to collect? The plaintiff could try to collect 114 million dollars now, right? Why wouldn’t you go ahead and try and get that? Isn’t this all theoretical because the plaintiff hasn’t tried to collect?

Can’t we leave the issue of which injuries were caused by the defendant’s conduct up to the jury, asked Justice Brunner? The jury made a decision that the plaintiff was injured and to what extent. Why do we have to reexamine that issue if the jury made that decision? What is an appropriate life going forward? Is it a question of resiliency?

Tort Reform Precedent

How many cases would we have to overrule to affirm the plaintiff, asked Justice Fischer? In addition to Arbino and Simpkins? Groch, Oliver, Kaminski, and Stetter? Should we allow the legislature to create these exceptions to the damages caps?

How it Looks from the Bleachers?

To Professor Emerita Bettman

I don’t think the Court is going to overrule Arbino or other cases upholding tort reform caps, but I think this case may be the one alluded to in Simpkins where there should be no cap on the noneconomic damages. I predict a split court will buy Brandt’s as-applied challenge. 

To Student Contributor Brandon Bryer

Half of this case seems easy to predict; the other half is difficult to gauge. First, the easy prediction: I don’t believe the Court will overrule any precedent nor declare the damage cap facially unconstitutional. The difficult prediction is in the as-applied argument. Justices Kennedy, DeWine, and Fischer dissented from the Court’s acceptance of this appeal. Chief Justice O’Connor voted to accept it. I find it hard to believe that the Chief would vote to hear this case if she didn’t think there was something there. In fact, she pressed counsel for Pompa on a few issues, particularly about the role of the jury in fact finding. I get the sense that enough justices believe this case is the egregious case Simpkins envisioned as unconstitutional, as-applied.   

I thought it was a good strategic move for Brandt’s counsel to focus on the jury right argument. Ironically, counsel for Pompa inadvertently made Brandt’s argument even better. In effect, Pompa’s argument was simply re-litigating the trial and criticizing the jury’s award of damages as not adequately supported by the facts. True enough, that is part of the Simpkins standard and some of the facts are arguable—for example, experts couldn’t say whether Pompa alone caused Brandt’s life-long trauma. But not only were those issues for the jury to decide, the jury actually decided that she should get $20 million dollars as compensation. Yet the damage cap lowered that to $250,000. Cutting through the extra arguments and shock value of this case, that is the core of Brandt’s best argument. I wouldn’t be surprised if four justices agree. Personally, I share Justice DeWine’s (and probably Justices Fischer and Kennedy’s) opinion that Brandt’s $114 million verdict that she has not attempted to collect should factor into the analysis. If the Court finds for Pompa, it will be on that basis. But my prediction is that the Court will uphold R.C. 2315.18 as facially constitutional but hold it unconstitutional as applied to Brandt’s particular facts.