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Civil Trial & ADR

Is the Supreme Court of Ohio Set to Reform Tort Reform?

By Joseph A. Barton Esq. | Faruki PLL | jbarton@ficlaw.com

Despite seemingly improbable odds, the Supreme Court of Ohio recently agreed to hear yet another challenge to Ohio's tort reform legislation.

First enacted in 2005, tort reform was intended to deter frivolous lawsuits, eliminate unpredictability and disparity in jury verdicts, and promote Ohio's economic growth. A key but controversial feature of tort reform, codified at R.C. 2315.18, is the imposition of limits, or caps, on certain kinds of damages.

Caps on Compensatory Damages for Noneconomic Loss

R.C. 2315.18 distinguishes between "economic loss" – e.g., lost wages, medical bills – and "noneconomic loss" such as pain and suffering, loss of consortium, and "any other intangible loss." While the statute provides no limits on the amount of recoverable damages for economic loss, it does impose caps on the recovery of noneconomic damages. Nor does the statute limit the recovery of punitive damages.

The cap on noneconomic loss, however, does not apply to noneconomic losses caused by "permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system" or "permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities."

Previous Challenges to Damage Caps

The caps on noneconomic loss have not gone unchallenged. The Supreme Court has twice reviewed the statute against claims that the caps unconstitutionally infringe the right to trial by jury, the right to a remedy, due process, and equal protection.

First, the Court rejected an argument that the statute was facially unconstitutional in a 2007 products liability case called Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420.

Then, in a 2016 negligent supervision case called Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio8118, 75 N.E.3d 122, a divided Court again ruled that the caps were constitutional as applied to minor victims of sexual assault. The majority opinion did state, however, that "there may exist a set of facts under which application of the statutory damage caps would prove unconstitutional." Simpkins, 2016-Ohio-8118 at ¶ 51.

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An Unlikely Acceptance

Last July the Court once again agreed to hear a challenge of the statutory cap. This most recent appeal, captioned Brandt v. Pompa, Case No. 2021-0497, involves horrific, repeated acts of sexual assault Plaintiff Brandt was subjected to as a minor at the hands of her friend's father. A jury awarded plaintiff $20 million in noneconomic damages, but the award was subsequently reduced to $250,000 as a result of the statutory cap. Though her damages for non-economic damages were capped, Brandt was also awarded over $100 million in punitive and other damages. Brandt contends that the statutory cap is both facially unconstitutional (like in Arbino) and unconstitutional as applied to minor victims of sexual assault (like in Simpkins).

That the Court would agree to hear another challenge to the statutory cap, especially one so similar to the relatively recent Simpkins case, is surprising. More interesting is the fact that Republican Chief Justice Maureen O'Connor, who voted to dismiss Simpkins as having been improvidently accepted, voted with the Court's three Democrats to accept the case. Finally, it bears noting that Simpkins was authored by thenJustice Judith French, a Republican who was subsequently unseated in 2020 by Democrat Jennifer Brunner, who is now running to replace Chief Justice O'Connor who cannot seek another term because of the Court's mandatory retirement age

Reading Tea Leaves

The Court heard oral argument in Brandt on Wednesday, March 30. The justices' questions indicated that the Court remains closely divided upon ideological lines, making Chief Justice O'Connor the likely decisive vote. Chief Justice O'Connor's only questions during the oral argument, directed at respondent, suggested that she views the facts underlying this case as meaningfully different than those in Simpkins – perhaps indicating that O'Connor views Brandt as the case, foreshadowed in Simpkins, with "facts under which application of the statutory damage caps would prove unconstitutional." Simpkins, 2016-Ohio-8118 at ¶ 51.