Article I, Section 16 of the Ohio Constitution guarantees every person the right to a “remedy by due course of law” and “for an injury done him in his land, goods, person, or reputation.” For many years (decades), this provision was used to protect the ability of an injured person to the full compensation that a judge or jury determined they were entitled to, based on evidence presented in court in individual cases. Sometimes those injuries are small, but sometimes they are devasting, catastrophic, and permanent, and sometimes immeasurable in terms of monetary value – like the long-term trauma that can result from the most serious of harms, and which does not always result in measure loss, like a medical bill or a loss of earnings can be measured. Citizen juries make that determination – or should.
But many years ago, starting at least as far back as 1975, and continuing into 1987 or so, the Ohio General Assembly (which was reputed at the time to be overly-influenced if not controlled by pro-business, even pro-insurance interests), on the heels of so-called “runaway juries,” and described under the umbrella of so-called “tort reform” (a term used to take determinations of fair justice away from citizen juries, and put it in the hands of elected politicians), passed multiple laws, and including Ohio Revised Code 2315.18, which in part limited how much compensation a judge or a jury can award, even based on evidence, and even for the most serious of injuries to individual persons in individual cases. That Statute specifically provided that full compensation for “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,” is capped – maxed out, no judge or jury can go over that, no matter how serious the mental trauma might be — “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.” (The amounts changed over the years). These are random arbitrary numbers that have no connection to the actual cases, or to the injured person, and override a citizen jury’s role in deciding if an individual is harmed severely enough that “full and fair compensation” might be more. The limits were inapplicable 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.” Meaning, that a person who is not necessarily seriously hurt on the outside, is potentially (and regularly) denied full compensation for the harms on the inside.
For years, that “cap” was challenged as being in violation of the Constitution. But, the Ohio Supreme Court (also at the time reputed by some to be overly influenced by pro-business, pro-insurance interest), in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, and again in Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122 (sex abuse committed by a pastor), decided that it was not unconstitutional for the General Assembly to pass laws that deny a citizen jury or even a judge the ability to decide, based on evidence and an individual person’s harm, and perfectly legal for the elected representatives in the General Assembly to make up a maximum number, applicable to everyone, no matter how serious their harms suffered might be. For decades, persons with the most severe personal trauma were denied full and fair compensation, because the General Assembly said, without even knowing them or what happened to them, what was enough compensation, for anyone and everyone. Of course, that saved many a business and many an insurance company from having to pay fully for the most serious harms they or their insured persons did to others.
That has now changed. In Brandt v. Poppa, 2022-Ohio-4525, decided December 16, 2022, the Ohio Supreme Court reversed Arbino and Simpkins (at least in part), and reinstated a jury verdict in a truly devasting case and found the arbitrary limits imposed by the Ohio General Assembly were in fact unconstitutional as applied to this particular victim.
As the Ohio Supreme Court described what happened:
“In 2006, Pompa [the defendant] 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. The court sentenced Pompa to life in prison.”
That is the kind of person Ohio’s “tort reform” and “damages caps” protect.
Brandt filed a civil suit for compensation, including for the severe trauma caused by Poppa, including dissemination of child pornography involving the victim. At a trial, the jury heard from family, expert clinical psychologists, and others. The circumstances of what Poppa, a family friend, did to this child is horrendous, including drugging her with “treats” at sleepovers in order to facilitate repeated and devastating sexual abuse of the worst kind imaginable for anyone, recording it, and disseminating it. The testimony at a trial to a jury described her, before the abuse, as a “pretty normal kid,” a “beautiful, happy-go-lucky friend to everyone,” and had dreams and hopes all children of that age have. After the abuse, she did not want to leave home, became a recluse, was full of anxiety, anger, suffered from panic attacks, could not attend or participate in family functions, could not sleep, experienced frequent and ongoing nightmares. After getting through high school, she lost jobs for not being able to keep up, turned to drugs to help her cope, became an addict – and with help, recovered and established sobriety – but was also homeless for approximately a year. She attempted suicide, overdoses, and hospitalizations. At the time of trial, she had been in counseling for 14 years, and “could not foresee a time when she would not need counseling.” She had continuing difficulty being in crowds, being touched, and could not freely engage in normal life activities.
That is the kind of person Ohio’s “tort reform” and “damages caps” hurt.
After hearing the evidence of her particular case, a jury found that full and fair compensation for her lifetime of harm caused to her was a combined $34 million in compensatory damages, and $100 million in punitive damages. But, because of Ohio’s “tort reform” and “damages caps” laws, the judge was required to, and did, reduce that to the random numbers assigned by the General Assembly, to $250,000.00, the maximum allowed by Ohio law, and the Court of Appeals agreed, based on the existing Ohio Supreme Court precedent.
But after years of litigation and exceptional hard work and perseverance, by Ms. Brandt and her hard-working dedicated attorneys (including John K. Fitch, Kirstin A. Peterson, Stephen C. Fitch, Robert S. Peck, and others), justice for Ms. Brandt, and others like her was achieved. In an opinion by (retiring) Chief Justice Maureen O’Connor, and joined by Justices Donnely, Stewart, and Brunner, Brant v. Poppa, the Court of Appeals and the trial court were reversed, the citizen jury’s determination of what was fair and full compensation for Ms. Brandt was reinstated, and the approval of the random and arbitrary caps created by the General Assembly were ruled unconstitutional, reversing Arbino and Simpkins. The Court wrote:
“Subjecting this group to the compensatory-damages caps for noneconomic loss has little to no connection to improving the tort system in Ohio. This group comprises victims who are entitled to the full range of constitutional remedies, regardless of whether their severe injuries are physical or psychological.”
As a result:
“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.”
Justices Kennedy, Fischer, and DeWine, disagreed, and would have upheld the random numbers assigned by the General Assembly.
So, at least for some, there is now an open door for full and fair compensation for the worst of those harms caused by wrongdoers. It remains to be seen if this ruling will be applied or expanded to other psychologically-traumatized victims, who maybe are not child victims, or not necessarily victims of convicted criminals. Will it be applied or expanded to adult victims of similar kinds of harm? Will it be applied or expanded to those who have escaped criminal conviction, that perhaps police or prosecutors did not, could not, or would not pursue, due to no fault of the victims? Those questions will be litigated by other hard-working dedicated trial lawyers like those who did this work. Those questions might also be addressed by future General Assemblies, which efforts at re-legislation are currently underway. Those questions are also likely to be addressed in future cases, by other judges, and by the Ohio Supreme Court. One would be wise to consider that in how they consider exercising their own rights to communicate with our elected representatives, and how votes are cast for them and for judges, and justices.
For further reading the Brandt case can be found at:
This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:
I hope readers find this information helpful and interesting.
Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.