Brandt v. Pompa

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Brandt v. Pompa, Slip Opinion No. 

.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                         SLIP OPINION NO. 

               BRANDT, APPELLANT, v. POMPA, APPELLEE, ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Brandt v. Pompa, Slip Opinion No. 

.]
Civil law—Damages—R.C. 2315.18—As-applied constitutional challenge—Due
        process of law—Article I, Section 16, Ohio Constitution—Statutory cap on
        awards of compensatory damages for noneconomic losses set forth in R.C.
        2315.18 is arbitrary and unreasonable and therefore unconstitutional as
        applied to plaintiff and similarly situated plaintiffs who were child victims
        of intentional criminal conduct, such as sexual abuse, 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 for plaintiffs who have suffered permanent and severe
        psychological injuries—Judgment reversed—Jury verdict on damages
        reinstated.
  (No. 2021-0497—Submitted March 30, 2022—Decided December 16, 2022.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                                 SUPREME COURT OF OHIO




                               No. 109517, 

.
                                   __________________
          O’CONNOR, C.J.
          {¶ 1} In this appeal, we determine whether the compensatory-damages caps
for noneconomic loss in R.C. 2315.18 are unconstitutional as applied to appellant,
Amanda Brandt. A jury found that Brandt was entitled to a total-damages award
that included $20 million in compensatory damages for noneconomic loss against
appellee, Roy Pompa, who sexually abused Brandt when she was a child. The trial
court applied the statutory damages cap in R.C. 2315.18 and limited the award for
noneconomic loss to $250,000. We find the statutory cap as applied to this portion
of Brandt’s award to be arbitrary and unreasonable and thus in violation of the due-
course-of-law guarantee of the Ohio Constitution. See Article I, Section 16, Ohio
Constitution. We therefore hold that R.C. 2315.18 is unconstitutional as applied to
Brandt.
                           I. RELEVANT BACKGROUND
          {¶ 2} In 2006, Pompa 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.
          {¶ 3} A jury found Pompa guilty of over 90 counts, 34 of which involved
acts against Brandt.1 The court sentenced Pompa to life in prison.




1. The offenses committed against Brandt for which Pompa was found guilty occurred on seven
different occasions in 2004 and 2005 and included 18 counts of gross sexual imposition, 8 counts
of rape, 3 counts of kidnapping, 4 counts of pandering sexually oriented matter involving a minor
under 13 years of age, and 1 count of illegal use of a minor in nudity-oriented material.




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        {¶ 4} In 2018, Brandt filed a civil complaint against Pompa2 in the
Cuyahoga County Court of Common Pleas for intentional criminal wrongdoing,
knowing dissemination of child pornography, and intentional infliction of
emotional distress. She also asked the trial court for a declaratory judgment holding
R.C. 2315.18 unconstitutional as applied to her case. The trial court held that based
on the verdicts in the criminal case and Pompa’s admissions, there was no genuine
issue of material fact as to Pompa’s liability in the tort action. A jury trial was
commenced solely to determine the type and amount of Brandt’s damages.
        {¶ 5} At the damages trial, the jury learned of the 34 criminal offenses
committed against Brandt for which Pompa was convicted, and the jury viewed
Pompa’s testimony from a videotaped deposition. The jury also heard testimony
from Brandt and Brandt’s mother, as well as expert testimony from a clinical
psychologist.
        {¶ 6} Brandt testified that Pompa was a friend of the Brandt family and that
one of Pompa’s daughters was her childhood best friend. Brandt frequently
attended sleepovers at Pompa’s residence, just a mile away from her home. Brandt
recalled that before going to bed at the sleepovers, Pompa would offer her a juice
box, iced tea, or water. She said that although it did not strike her at the time, “there
was not a morning [after a sleepover] that [she] didn’t wake up a little blurry, fuzzy
feeling, * * * groggy.” The Eighth District Court of Appeals found that “[o]n many
occasions, Pompa put illicit substances in Brandt’s drinks before she went to sleep
in order to commit sexual acts against her without her knowing or being fully
aware.” 

, 

. But Brandt was aware. Brandt
testified that she recalled occasions of abuse at the Pompa residence, particularly,
being woken up at night at the feeling of being touched and realizing it was
someone touching her all over and under her underwear. Eventually, Brandt no

2. Brandt also filed her complaint against Pompa’s ex-wife, but those claims were settled before
trial.




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longer wanted to go to the Pompa residence. She realized that “something was not
right” there, and she felt “very panicked at the idea of going over” there. She said,
“I tried very hard to not get put back into that home.”
       {¶ 7} Pompa admitted the sexual abuse involved him masturbating on
Brandt, ejaculating on her, including on her face, and abusing her with a dildo or
vibrator. The Eighth District found that Pompa recorded his sexual abuse of Brandt
on at least eight occasions. Id. at ¶ 6. Pompa also admitted using a “spy cam” to
view his daughter’s friends when they visited the house.
       {¶ 8} Brandt told the jury she “was a pretty normal kid” until the abuse. Her
mother described Brandt prior to the abuse as follows:


               She was a beautiful, happy-go-lucky friend to everyone. She
       wanted to conquer the world, loved to travel, loved to go places, had
       big dreams, was involved in a lot of school activities. You know,
       she was friends with sports people. She was friends with drama
       people. She was friends with * * * honor students * * *. She was,
       like, a friend to everyone. She was involved in church. She went
       [on] all kinds of mission trips. She just had a big heart and was very
       outgoing.


       {¶ 9} Brandt’s mother testified that her daughter became a recluse after the
abuse: “Her anxiety level was huge. She never wanted to go anywhere. We saw
this beautiful, outgoing child turn into someone that didn’t want to leave. She just
wanted to be alone.” Brandt’s mother said that her daughter became angry and had
sleeping problems. These issues prompted Brandt’s mother to take Brandt to see a
therapist twice a week, even though the therapist was not close to their home.
Brandt’s mother testified that the abuse had “totally changed” her daughter. She
explained, “I do not have the same daughter anymore. She has a lot of anger, has



                                          4
                                January Term, 2022




a lot of anxiety issues. She can’t handle being at a lot of family functions. She has
to go to another room when everyone is there. She just is not the same kid that we
knew growing up and even now in her adulthood.”
       {¶ 10} Brandt also testified to the changes she experienced as a result of the
abuse. She started having nightmares after the first time Pompa sexually abused
her, and she continues to have nightmares, including ones in which Pompa appears.
Brandt told the jury that she became a “very angry kid” after the abuse started. She
read for the jury a statement she had prepared for Pompa’s sentencing in the
criminal case. In that statement, she described having been involved in clubs,
community service, and social activities before the abuse. She wrote about losing
her relationship with her best friend, Pompa’s daughter. She described having
difficulty sleeping and having serious emotional problems. “Most of the time I
don’t know what to feel,” she wrote. “When I do, it’s always anger.” She also
wrote about not being able to remember anything at school, which caused her
grades to suffer and affected which classes she was able to take in high school.
       {¶ 11} Brandt testified that after the abuse stopped, she graduated from high
school and moved out of her parents’ home into an apartment, but she had trouble
keeping a job. About her first full-time job, she explained, “[M]y anxiety had been
getting worse at that point and after a couple of years there, I was no longer able to
meet my requirements and I ended up getting terminated from that job because I
could no longer do the things required.” She eventually found a door-to-door-sales
job, which was worked in pairs. Her coworker offered her heroin, assuring Brandt
that she “would feel better” if she tried it. Brandt did try it and became addicted.
She told the jury that at that time, she was “desperate for anything that would make
[her] feel okay.”
       {¶ 12} At the beginning of her drug addiction, Brandt lost her apartment
and became homeless for approximately a year. Brandt testified about continuing
to have panic attacks and not being able to sleep during that time. She said she




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“was at a really low point in [her] mental health and there was no break.” She
eventually sought help and returned to her parents’ home.
        {¶ 13} Brandt testified that while living with her parents and trying to get
sober, her “mental health continued to get worse.” She testified about attempting
suicide and spending time in the hospital after an intentional heroin overdose. After
her time in the hospital, she moved in with her parents and was able to stop using
heroin. She told the jury that she had been sober for more than six years as of the
time of the trial.
        {¶ 14} At the time of the trial, Brandt was married and had two young
children. She explained that she was still having nightmares about Pompa, which
affected her sleep and her ability to function the next day despite her taking
prescription medication to try to control them. She worked part-time as a server in
the food industry, working Mondays and Tuesdays to avoid the busier shifts and
crowds, and was trying to get her real-estate license.
        {¶ 15} Brandt began attending counseling immediately after her parents
learned of the abuse. As of the date of the hearing on damages, she had been in
counseling 14 years, and she testified that she could not foresee a time when she
would not need counseling. She explained, “I’ve seen multiple different counselors
in multiple different areas and gone through multiple different treatment plans.
Every counselor I’ve seen has agreed on the diagnosis of [posttraumatic stress
disorder (“PTSD”)] and anxiety disorder.” Brandt also described her use of
medication not only to prevent nightmares but also to treat depression and PTSD.
She testified that one of the prescribed medications had improved her ability to
sleep uninterrupted, but it was unsuccessful at stopping all the nightmares. She
testified that her anxiety, including difficulty being in crowds and not liking to be
touched, still prevents her from enjoying social activities and taking part in
community service and that it affects her ability to perform daily activities like
grocery shopping.



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                                January Term, 2022




       {¶ 16} Dr. Patrick Yingling, a psychological expert, testified in a video
deposition about his evaluation of Brandt. Dr. Yingling testified that Brandt
described for him her experiences with the abuse and with her mental health
following the abuse. He noted that Brandt described “her experience of developing
panic attacks and agoraphobia in 2014.” He said she recalled staying locked in a
bedroom for a “large chunk of months.”         Dr. Yingling testified that Brandt
described continuing to experience nightmares, thoughts about her own death, and
anxiety leading to “meltdowns.” He also testified that Brandt described her panic
attacks as “weirdly physical,” including uncontrollable crying, blurry vision, and
ringing in her ears, and “[f]eeling like [she had] barbed wire around [her] chest.”
He said Brandt noted that she had tried to fix the meltdowns but that she was still
experiencing them. Brandt provided Dr. Yingling with specific instances of anxiety
attacks, for example, when not being allowed to be with her daughter at her ballet
class, when considering having to go back to work, and on some occasions, when
her husband reached out to touch her.
       {¶ 17} Based on his evaluation of Brandt, including the tests administered
and the records reviewed, Dr. Yingling opined that Brandt suffered from PTSD as
a result of being sexually assaulted by Pompa and that her symptoms would persist
to some degree over a significant period of time. He opined that Brandt would
benefit from ongoing psychotherapy as well as psychiatric medication.
       {¶ 18} On cross-examination, Pompa’s counsel questioned Dr. Yingling
about whether Brandt’s symptoms were conclusively causally linked to the sexual
abuse or whether they were, instead, brought on or exacerbated by other factors,
like Brandt’s addiction or homelessness. Dr. Yingling explained that the criteria
for a PTSD diagnosis requires exposure to actual or threatened death, serious injury,
or sexual violence, and he acknowledged that an overdose or a suicide attempt
could cause or contribute to a diagnosis of PTSD.




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       {¶ 19} At the close of the evidence, the trial-court judge instructed the jury
on its duty to determine what damages, if any, Brandt was entitled to. The trial
court included the following specific instructions on awarding compensatory
damages:


               You will decide by the greater weight of the evidence an
       amount of money that will reasonably compensate the Plaintiff for
       the actual injury directly caused by the conduct of the Defendant,
       Roy Pompa.
               In deciding this amount, you will consider the Plaintiff’s loss
       directly caused by the Plaintiff’s actual injury.
               The Plaintiff seeks compensation for non-economic loss
       only. She does not seek compensation for economic loss such as
       medical bills and so forth.
               “Noneconomic loss” means harm other than economic loss
       that results from the Plaintiff’s injury, including, but not limited to,
       pain and suffering; disfigurement; mental anguish; and any other
       intangible loss. “Intangible loss” refers to loss that does not have a
       physical presence.
               The Plaintiff also claims that the injury or loss is permanent.
       As to such claims, no compensation or damages may be found
       except that which is reasonably certain to exist as a direct cause of
       the Defendant’s conduct. “Reasonably certain” means probably,
       that is, more likely to occur than not.
               If you find that Plaintiff failed to prove by the greater weight
       of the evidence any amount of damages, you may award Plaintiff
       nominal damages. “Nominal” means trifling or small.




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                               January Term, 2022




              MATHEMATICAL FORMULA.                   Any suggestion of
       counsel in argument that you use a mathematical formula to
       compensate for pain and suffering and disability cannot be
       considered as evidence.     There is no recognized mathematical
       formula for pain and suffering. Compensation for pain and suffering
       and disability is solely within your province to decide.


       {¶ 20} The jury awarded Brandt (1) $14 million in compensatory damages
for the abuse she suffered before April 6, 2005, when the damages caps in R.C.
2315.18 went into effect, (2) $20 million in compensatory damages for the abuse
she suffered after R.C. 2315.18 went into effect, and (3) $100 million in punitive
damages.
       {¶ 21} In a posttrial brief, Pompa requested that the court limit the
noneconomic damages that were awarded for the period after the effective date of
R.C. 2315.18. His sole assertion was that the reduction in damages was required
under R.C. 2315.18. Brandt opposed the request and again asked the trial court to
find that R.C. 2315.18 was unconstitutional as applied to her. The trial court
granted Pompa’s request, denied Brandt’s request for declaratory relief, and
reduced Brandt’s $20 million noneconomic-damages award to $250,000.
       {¶ 22} Brandt appealed. The Eighth District applied the reasoning and
rationale set forth in Simpkins v. Grace Brethren Church of Delaware, Ohio, 

, 

, 

 (lead opinion), and finding no
meaningful difference between Simpkins and Brandt’s case, affirmed the trial
court’s judgment.
       {¶ 23} We accepted discretionary review of Brandt’s appeal. 

, 

, 

.




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                                        II. ANALYSIS
                  A. R.C. 2315.18’s cap on noneconomic damages
        {¶ 24} R.C. 2315.18 describes how compensatory damages may be
awarded in tort claims for economic loss and noneconomic loss. Relevant here is
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.” R.C. 2315.18(A)(4).3 R.C. 2315.18(B)(2) provides that the
amount of compensatory damages for noneconomic loss is capped and “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.”                           R.C.
2315.18(B)(3)(a) and (b) explain that there is no limit on damages 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.”




3. By contrast, R.C. 2315.18 (A)(2) defines “economic loss” as

        any of the following types of pecuniary harm:
                  (a) All wages, salaries, or other compensation lost as a result of an injury
        or loss to person or property that is a subject of a tort action;
                  (b) All expenditures for medical care or treatment, rehabilitation
        services, or other care, treatment, services, products, or accommodations as a
        result of an injury or loss to person or property that is a subject of a tort action;
                  (c) Any other expenditures incurred as a result of an injury or loss to
        person or property that is a subject of a tort action, other than attorney’s fees
        incurred in connection with that action.




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                                    January Term, 2022




        {¶ 25} These caps on damages for noneconomic loss became effective April
7, 2005.4 See Am.Sub.S.B. No. 80, Section 3, 150 Ohio Laws, Part V, 7915, 8024-
8031 (“S.B. 80”). S.B. 80 was not the General Assembly’s first effort to enact tort
reform, but previously enacted tort-reform statutes had been successfully
challenged in courts as being unconstitutional. See Morris v. Savoy, 

, 

 (1991) (Ohio Medical Malpractice Act of 1975,
enacted by Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 280, 2813, violated the
right to due process); Sorrell v. Thevenir, 

, 

 (1994) (former R.C. 2317.45, enacted by Am.Sub.H.B. No. 1, 142 Ohio Laws,
Part 1, 1661, 1694, as part of the Tort Reform Act of 1987, violated the rights to a
jury trial, due process, and equal protection and the right to a remedy); Galayda v.
Lake Hosp. Sys., Inc., 

, 

 (1994), paragraph one of
the syllabus (former R.C. 2323.57 violated the rights to a jury trial and due process);
Zoppo v. Homestead Ins. Co., 

, 

 (1994), paragraph
two of the syllabus (former R.C. 2315.21(C)(2) violated the right to a jury trial);
State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 

, 

 (1999), paragraphs two and three of the syllabus (Am.Sub.H.B. No.
350, 146 Ohio Laws, Part II, 3867, violated the separation-of-powers doctrine and
the one-subject rule).
        {¶ 26} But in Arbino v. Johnson & Johnson, 

, 2007-
Ohio-6948, 

, this court concluded that R.C. 2315.18 was
constitutional on its face.




4. This section of the Revised Code became effective April 7, 2005. It was amended by the General
Assembly, effective April 15, 2021, by 2020 Sub.H.B. No. 352, but the amendments do not affect
Brandt or the question of her entitlement to the amount of noneconomic damages awarded to her by
the jury.




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                               B. Standard of review
       {¶ 27} Unlike the challenge to R.C. 2315.18 in Arbino, Brandt has
presented a claim that the statute is unconstitutional as applied to the facts of her
case. In an as-applied constitutional challenge, “the party making the challenge
bears the burden of presenting clear and convincing evidence of a presently existing
set of facts that [makes the statute] unconstitutional and void when applied to those
facts.” Groch v. Gen. Motors Corp., 

, 

, 

, ¶ 181, quoting Harrold v. Collier, 

, 

,

. Thus, the constitutional claim that this court addressed in
Arbino differs from Brandt’s constitutional claim here. To establish a constitutional
violation through a facial challenge, Arbino was required to demonstrate “that there
[was] no set of circumstances in which [R.C. 2315.18] would be valid.” 

, citing Harrold at ¶ 37, citing United States v. Salerno, 

, 

, 

 (1987). To establish a constitutional violation through
a facial challenge, it is not enough “ ‘that a statute might operate unconstitutionally
under some plausible set of circumstances.’ ” 

 quoting Harrold at ¶ 37.
                         C. Due-course-of-law challenge
       {¶ 28} Article I, Section 16 of the Ohio Constitution guarantees every
person the right to a “remedy by due course of law” “for an injury done him in his
land, goods, person, or reputation.” In Arbino, one asserted basis of the facial
constitutional challenge to R.C. 2315.18 was that the damages caps in that statute
violated the “due course of law” provision of the Ohio Constitution. 

. In addressing that question, this court applied the rational-basis test under
which a statute is deemed valid “ ‘ “[1] if it bears a real and substantial relation to
the public health, safety, morals or general welfare of the public and [2] if it is not
unreasonable or arbitrary.” ’ ” (Brackets added in Mominee.) Id. at ¶ 49, quoting
Mominee v. Scherbarth, 

, 

 (1986), quoting
Benjamin v. Columbus, 

, 

 (1957), paragraph five



                                          12
                                January Term, 2022




of the syllabus. Considering the second prong of that test, this court noted its
concern that in previous efforts to cap tort damages, the General Assembly had
“imposed the cost of the intended benefit to the public solely upon those most
severely injured.” Id. at ¶ 59, citing Savoy, 

, 

, and Sheward, 

, 

. But we noted that “R.C.
2315.18 alleviates this concern by allowing for limitless economic damages for
those suffering catastrophic injuries.” 

, citing R.C. 2315.18(B)(3)(a)
and (b). We also noted that the General Assembly had “found that the benefits of
noneconomic-damages limits could be obtained without limiting the recovery of
individuals whose pain and suffering is traumatic, extensive, and chronic, and by
setting the limits for those not as severely injured at either $250,000 or $350,000.”
Id. at ¶ 61. We concluded that the legislature’s policy decision was “tailored to
maximize benefits to the public while limiting damages to litigants,” and that such
“logic [was] neither unreasonable nor arbitrary.” Id.
       {¶ 29} This court also rejected Arbino’s equal-protection challenge with
similar reasoning, employing the rational-basis test and concluding as follows:


       The distinctions the legislature drew in refusing to limit certain
       injuries were rational and based on the conclusion 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.


Arbino, 

, 

, 

.
       {¶ 30} A significant distinction stands out between the facts presented in
Arbino and the facts of this case. Psychological injuries are not included in the
permanent-injury exception to the compensatory-damages caps for noneconomic
loss provided in R.C. 2315.18(B)(3)(a) and (b). Those statutory provisions except




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“[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.” (Emphasis added.) 

 Arbino originated in
federal court as a product-liability action against the companies that had created a
hormonal-birth-control medication that allegedly caused the plaintiff’s blood clots
and other serious medical side effects. Id. at ¶ 1. We were not presented with facts
of psychological injuries in that case, nor were we asked to opine on the reason for
their exclusion from the statute.
       {¶ 31} But here, in light of the unavailability of the exception to the
compensatory-damages        caps    for   the   most    severely   and    permanently
psychologically injured, we cannot say, as we did in Arbino, that R.C. 2315.18
allows “for limitless noneconomic damages for those suffering catastrophic
injuries,” 

, because those suffering catastrophic psychological injury
are excluded from that class of injured plaintiffs. Thus, the rational basis of the
statute found by this court in Arbino is eliminated as applied to Brandt and similarly
situated plaintiffs. 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.
        {¶ 32} Other legislative justifications cited by this court in Arbino also fail
when considered in light of R.C. 2315.18’s application, without exception, to
catastrophic psychological injuries as a result of victimization as a child. For
example, in Arbino, we acknowledged the General Assembly’s concern that
“noneconomic damages are inherently subjective and thus easily tainted by
irrelevant considerations.” 

, 

, 

. But other statutory safeguards exist to address that concern. For
example, R.C. 2315.18(C) expressly prohibits the trier of fact (i.e., the jury in a jury



                                          14
                                January Term, 2022




trial) from considering (1) a defendant’s wrongdoing, misconduct, or guilt, (2) a
defendant’s wealth or financial resources, or (3) evidence offered for the purpose
of punishing the defendant, when determining the amount of compensatory
damages to award for noneconomic loss. And if a defendant challenges an award
of compensatory damages for noneconomic loss as excessive, R.C. 2315.19
instructs the trial court to consider, among other things, whether the evidence
“inflamed the passion or prejudice of the trier of fact.” Given the adequate
safeguards in place to ensure that an award in a specific case is not “tainted by
irrelevant considerations,” see 

, coupled with the trial court’s
authority to review an allegedly excessive award on a case-by-case basis, the
General Assembly’s caps on damages as applied to a plaintiff such as Brandt seem
arbitrary. It is unclear how application of the caps on damages in R.C. 2315.18 to
a plaintiff like Brandt who is not entitled to an exception to the caps for severe
psychological injury serves, in any manner other than an arbitrary one, to address
the General Assembly’s concerns that noneconomic damages are inherently
subjective and easily tainted by irrelevant considerations.
       {¶ 33} In Arbino, we also noted that the General Assembly’s stated
justification for enacting tort reform through R.C. 2315.18 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.’ ” 

, quoting S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024. But Brandt
was harmed by intentional, not negligent, behavior. And it cannot be said that
Brandt’s lawsuit against Pompa is frivolous, given that his criminal liability for
abusing Brandt has already been determined.
       {¶ 34} The General Assembly’s concern about the “cost of doing business,”
S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024, as it relates to the cost




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of general-liability-insurance policies that businesses purchase is unrealistic
because coverage for the types of injuries that Brandt sustained in this case is
extremely uncommon and, even if a business’s liability-insurance policy were in
play, most policies now contain exclusions for intentional conduct committed by
the insured and, specifically, for abuse or molestation. See, e.g., World Harvest
Church v. Grange Mut. Cas. Co., 

, 

, 

. Thus, the only beneficiary of the General Assembly’s damages cap in this
case is Brandt’s abuser, not the public and not the insurance industry.
       {¶ 35} This court noted in Arbino that the General Assembly’s policy
decision “to achieve a public good” was based on a finding that “the benefits of
noneconomic-damages limits could be obtained without limiting the recovery of
individuals whose pain and suffering is traumatic, extensive, and chronic.”
(Emphasis added.) 

, 

, 

. We concluded that this policy decision was “tailored to maximize benefits to
the public while limiting damages to litigants” and was based on logic that was
“neither unreasonable nor arbitrary.” 

 What we now know, given Brandt’s case,
is that some who fit within this category—those “whose pain and suffering is
traumatic, extensive, and chronic,” id.—are subject to limited recovery simply
because their injuries are psychological, as opposed to physical, in nature. Thus, in
concluding in Arbino that the General Assembly’s decision to enact compensatory-
damages caps for noneconomic loss was not arbitrary on its face, we overlooked a
small class of plaintiffs who are arbitrarily excluded from recovering the full
amount of compensatory damages for noneconomic loss that was awarded by the
jury. While policy decisions are the purview of the legislature, it is the judiciary’s
purview to determine whether those policy decisions violate the constitutional
protections guaranteed to all Ohioans. See Article IV, Section 2(B)(2)(ii), Ohio
Constitution.




                                         16
                                     January Term, 2022




        {¶ 36} When viewing the damages caps set forth in R.C. 2315.18 in light of
the facts of this case, the words of one of the dissenting justices in Arbino are
persuasive:


        There is no rational reason to “improve” the tort system in Ohio at
        the sole expense of a small group of people who are able to prove
        that they suffered damage significant enough to exceed the damages
        caps imposed by the General Assembly. Whatever improvement the
        tort system in Ohio needs, the Ohio Constitution should remain
        inviolate, unless properly amended.

 (Pfeifer, J., dissenting). Brandt represents an even smaller group
of people than that contemplated by the dissenting justice quoted above—namely,
those 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.       Subjecting this group to the compensatory-damages caps for
noneconomic loss has little to no connection to improving the tort system in Ohio.5
This group comprises victims who are entitled to the full range of constitutional
remedies, regardless of whether their severe injuries are physical or psychological.
        {¶ 37} These concerns leave sufficient doubt that Arbino correctly
determines the constitutionality of R.C. 2315.18 as applied to Brandt and similarly


5. The General Assembly’s justification for enacting tort-reform legislation, including R.C.
2315.18, was to balance the rights of victims of negligent behavior against the problems caused by
an allegedly unpredictable civil-justice system. See S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part
V, at 8024. The General Assembly’s policy choice appears to presume that some level of harm
caused by negligent acts (e.g., automobile accidents, defective consumer products, imperfect
medicine, human error) is tolerable in society on balance for institutions and businesses that need
predictability for liability for this kind of conduct. But the sexual abuse of children is never
tolerated. Accordingly, it makes no sense to credit the General Assembly with a policy decision to
protect an abuser from being subject to a damages award that is meant to compensate a victim of
childhood sexual abuse.




                                                17
                                    SUPREME COURT OF OHIO




situated plaintiffs. In fact, because the rationale supporting Arbino falls away when
applied to the facts of this case, and given the facts below, we conclude that Brandt
has shown by clear and convincing evidence that R.C. 2315.18 is unconstitutional
as applied to her under the due-course-of-law provision in Article I, Section 16 of
the Ohio Constitution.
         {¶ 38} The Eighth District relied largely on Simpkins, 

,

, 

, in rejecting Brandt’s as-applied challenge. But
Simpkins was a plurality opinion, and the reasoning from Simpkins that the court of
appeals relied on when reviewing this case was the viewpoint of only two justices.
Thus, the Simpkins analysis is not controlling here.
         {¶ 39} Turning to the facts of this case, there is no question that Brandt has
suffered severely as a victim of Pompa’s intentional criminal acts. There is no
dispute that the jury found that Brandt should be awarded compensatory damages
for noneconomic loss in the amount of $20 million for the abuse that she suffered
after R.C. 2315.18 became effective. The trial court’s instructions to the jury
explained that Brandt sought compensation only for noneconomic loss, and the
instructions defined “noneconomic loss” and “intangible loss.” The instructions
also explained that Brandt claimed that the injury or loss she suffered was
permanent. The instructions provided: “There is no recognized mathematical
formula for pain and suffering. Compensation for pain and suffering and disability
is solely within your province to decide.”6 The record also shows that the jurors
submitted questions to the trial court during Brandt’s testimony, inquiring about
other possible causes of Brandt’s injuries.                   Charged with the trial court’s
instructions and with answers to their questions, the jurors unanimously awarded



6. R.C. 2315.18(F)(2) states: “If the trier of fact is a jury, the court shall not instruct the jury with
respect to the limit on compensatory damages for noneconomic loss described in division (B)(2) of
this section, and neither counsel for any party nor a witness shall inform the jury or potential jurors
of that limit.”




                                                   18
                                 January Term, 2022




Brandt $20 million in compensatory damages for permanent noneconomic loss for
the period in question.
        {¶ 40} Pompa’s sole argument to the trial court in his posttrial brief on
damages was that the court should calculate the amount of damages pursuant to the
damages caps in R.C. 2315.18. He did not challenge the evidence by arguing, for
example, that the award was excessive, that the evidence had inflamed the passion
or prejudice of the jury, that the jury improperly considered his misconduct, or that
the award was in excess of verdicts awarded to similarly situated plaintiffs. See
R.C. 2315.19(A)(1) and (2).
        {¶ 41} The Eighth District characterized the evidence regarding whether
“all of [Brandt’s] mental health issues and symptoms can be attributed to the sexual
abuse” as “equivocal.” 

, 

. But the jury here
(i.e., the trier of fact) did not. Indeed, the jury instructions were clear regarding the
jury’s ability to award Brandt damages based on her claims that the injury or loss
that she suffered was permanent: “[N]o compensation or damages may be found
except that which is reasonably certain to exist as a direct cause of the Defendant’s
conduct.” And the jury was instructed that it could award nominal damages if it
found that Brandt had failed to prove any amount of damages by the greater weight
of the evidence. Nonetheless, the jury found a significant monetary award to be
appropriate. Notwithstanding the application of the compensatory-damages caps,
the fact-finding function of the jury to determine the amount of damages to be
awarded is not to be intruded upon or ignored or replaced by another body’s
findings. Arbino, 

, 

, 

.
Trial courts are authorized to review an award that “the defendant has challenged
as excessive,” R.C. 2315.19(A), and appellate courts may conduct a de novo review
of such an award on appeal, R.C. 2315.19(C), but it is the duty of the trier of fact
to ascertain the amount of the plaintiff’s loss, see R.C. 2315.18(B)(2) and (C).
Here, the jury was in the best position to weigh the credibility of Brandt’s testimony




                                           19
                              SUPREME COURT OF OHIO




and that of the other witnesses. In doing so, the jury determined that Brandt
suffered permanent noneconomic loss severe enough to warrant a $20 million
award for the abuse that she suffered after R.C. 2315.18 went into effect. Thus, the
court of appeals’ equivocation regarding the evidence is unpersuasive because it
appears that the court was substituting its own view of the evidence for the jury’s
findings.
        {¶ 42} Because R.C. 2315.18(B)(3) does not include an exception for
severe and permanent psychological injuries in its caps on damages for
noneconomic loss and because the trial court applied R.C. 2315.18 to reduce
Brandt’s $20 million award to $250,000, we hold that Brandt has established, by
clear and convincing evidence, a set of facts that make the statute unconstitutional
as applied to her case.
                           D. Recoverability is irrelevant
        {¶ 43} Pompa argues that because Brandt received a judgment “exceeding
$114 million, [she] cannot credibly be heard to argue that she has been prevented
or foreclosed from securing meaningful relief.” Some of the amici in support of
Pompa argue a similar refrain.           The issue we address, however, is the
constitutionality of a single statute or, stated more specifically, the constitutionality
of the caps on damages for noneconomic loss in R.C. 2315.18 as applied to Brandt.
It is immaterial that some of the abuse in this case occurred before R.C. 2315.18’s
caps on damages became effective, thereby entitling Brandt to uncapped damages
for noneconomic loss that she suffered from acts that occurred during that time.
        {¶ 44} Nor should the jury’s award of punitive damages affect the
consideration of the compensatory damages awarded to Brandt. The question of
punitive damages, which serve a different function in our legal system, is irrelevant
here. “The purpose of punitive damages is not to compensate a plaintiff, but to
punish and deter certain conduct.” Moskovitz v. Mt. Sinai Med. Ctr., 

, 

 (1994). Additionally, “punitive damages are separate



                                           20
                                 January Term, 2022




and apart from any remedy for a plaintiff’s injuries,” Arbino, 

,

, 

, and under R.C. 2315.21, a plaintiff may
be entitled to both.     Nothing in the relevant statutory scheme requires that
compensatory damages be limited or reduced based on a separate award of punitive
damages. Thus, there is no reason to consider these separate awards of damages
together here.
       {¶ 45} Additionally, the question whether Brandt can ultimately recover
any portion of the total-damages award from Pompa is irrelevant to determining
whether R.C. 2315.18 is unconstitutional as applied to Brandt and similarly situated
plaintiffs. Any suggestion otherwise serves to prejudice the reader and should be
seen for what it is: a distraction from the legal question before this court.
                                III. CONCLUSION
       {¶ 46} For the foregoing reasons, we hold that 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. The judgment of the Eighth
District Court of Appeals is reversed, and we reinstate the jury’s verdict on
damages.
                                                                  Judgment reversed.
       DONNELLY, STEWART, and BRUNNER, JJ., concur.
       KENNEDY, FISCHER, and DEWINE, JJ., dissent, with an opinion.
       FISCHER, J., dissents, with an opinion.
                                _________________
       KENNEDY, FISCHER, and DEWINE, JJ., dissenting.




                                          21
                             SUPREME COURT OF OHIO




       {¶ 47} Appellee Roy Pompa’s abuse of appellant, Amanda Brandt, is
appalling, and there is no doubt that Brandt has suffered as a result. However, as
members of the third branch of government, we must “temper our empathy” and
resolve legal matters within the confines of the law. See Collins v. Sotka, 

, 

 (1998) (Moyer, C.J., dissenting). Because the
majority opinion fails to do so, we must respectfully dissent.
       {¶ 48} Although this case has been litigated on the questions whether the
caps on compensatory noneconomic damages enacted in R.C. 2315.18 violate the
Ohio Constitution’s guarantees of due process of law, equal protection, trial by jury,
open courts, and a remedy, the majority opinion today finds only a due-process
violation of Article I, Section 16 of the Ohio Constitution. It does that by applying
rational-basis review, a standard that presupposes that R.C. 2315.18 does not
implicate a fundamental constitutional right. The majority opinion holds that R.C.
2315.18 violates Article I, Section 16 solely because it believes that the statute is
arbitrary and unreasonable. This dissent, then, is limited to addressing that single
issue. For the reasons that follow, we disagree with the determination made by the
majority opinion that R.C. 2315.18 violates due-process protections.
             I. R.C. 2315.18 and the cap on noneconomic damages
       {¶ 49} The General Assembly enacted R.C. 2315.18 as part a tort-reform
bill that restructured the tort-damages-award system in Ohio to ensure a “fair,
predictable system of civil justice.” Am.Sub.S.B. 80, Section 3(A)(3), 150 Ohio
Laws, Part V, 7915, 8024 (“S.B. 80”). In restructuring the tort-damages-award
system, the General Assembly placed no cap on readily provable compensatory
damages that represented an economic loss—e.g., pecuniary harms like lost wages,
costs of medical care and treatment, and other measurable expenditures. See R.C.
2315.18(A)(2) and (B)(1). However, it generally capped compensatory damages
for noneconomic loss—e.g., nonpecuniary harms like pain and suffering, mental
anguish, and other intangible losses. See R.C. 2315.18(A)(4) and (B)(2).



                                         22
                                 January Term, 2022




       {¶ 50} The legislature justified the caps on noneconomic-damages awards
because it had found that noneconomic losses are difficult to quantify since they
“are inherently subjective.” S.B. 80, Section 3(A)(6)(d), 150 Ohio Laws, Part V,
at 8028; see also Simpkins v. Grace Brethren Church of Delaware, Ohio, 

, 

, 

. The legislature wanted to ensure
that those awards were intended to compensate a person for his or her loss. 

Additionally, the legislature believed that windfalls awarded to plaintiffs
“ ‘create[d] an improper resolution of civil justice claims,’ leading to increased
litigation costs and insurance premiums.” 

, quoting S.B. 80, Section
3(A)(6)(e), 150 Ohio Laws, Part V, at 8028. The legislature made no distinction
between wrongful conduct that was negligent and wrongful conduct that was
intentional—the caps were enacted to apply to the types of damages that often
varied significantly based on subjective valuations. See S.B. 80, Section 3(A)(4)
and (6), 150 Ohio Laws, Part V, at 8024-8028.
       {¶ 51} The General Assembly did, however, provide exceptions to the cap
on compensatory noneconomic damages. R.C. 2315.18(B)(3); see also S.B. 80,
Section 3(A)(6)(c), 150 Ohio Laws, Part V, at 8027-8028. The cap does not apply
when the victim has sustained (1) an injury that resulted in “[p]ermanent and
substantial physical deformity,” (2) an injury that resulted in “loss of use of a limb,”
(3) an injury that resulted in “loss of a bodily organ system,” or (4) a “[p]ermanent
physical functional injury that permanently prevents the person from being able to
independently care for [him or her]self and perform life-sustaining activities.” R.C.
2315.18(B)(3). So unless the victim has suffered from an injury that falls under
one of the exceptions listed in R.C. 2315.18(B)(3), the victim’s compensatory
noneconomic-damages award will be capped under R.C. 2315.18(B)(2).
       {¶ 52} In Arbino v. Johnson & Johnson, we summarized the General
Assembly’s evidence and findings as they pertained to R.C. 2315.18:




                                          23
                             SUPREME COURT OF OHIO




       In an uncodified section of S.B. 80, [the General Assembly] found
       that the current state of the civil litigation system “represents a
       challenge to the economy of the state of Ohio.” S.B. 80, Section
       3(A)(1), 150 Ohio Laws, Part V, 8024. This finding was supported
       by (1) a National Bureau of Economic Research study showing that
       states adopting tort reforms experienced growth in employment,
       productivity, and total output, (2) a 2002 White House Council on
       Economic Advisors study equating the cost of tort litigation to a 2.1
       percent wage and salary tax, a 1.3 percent personal-consumption
       tax, and a 3.1 percent capital-investment-income tax, (3) a Harris
       Poll of 928 senior corporate attorneys showing that the litigation
       environment in a state greatly affected the business decisions of their
       companies, (4) a Tillinghast–Towers Perrin study showing that the
       tort system failed to return even 50 cents for every dollar to injured
       plaintiffs and that the cost of the national tort system grew at a record
       rate in 2001, with a cost equivalent to a five percent tax on wages,
       and (5) testimony from Ohio Department of Development Director
       Bruce Johnson on the rising costs of the tort system, which he
       believed were putting Ohio businesses at a disadvantage and
       hindering development. S.B. 80 at Section 3(A)(3)(a) through (f),
       150 Ohio Laws, Part V, [8024-8025].

, 

, 

.
   II. R.C. 2315.18, as applied to Brandt, does not violate her right to due
     process of law under Article I, Section 16 of the Ohio Constitution
       {¶ 53} In an as-applied challenge, Brandt argues that the cap imposed on
her noneconomic-damages award under R.C. 2315.18 violates her right to due
process. To prevail, Brandt must prove by clear and convincing evidence that the



                                          24
                                  January Term, 2022




statute is unconstitutional when applied to her particular set of facts. See Harrold
v. Collier, 

, 

, 

. She
simply cannot meet this burden.
          {¶ 54} In reviewing this constitutional claim, we must remember that
legislative enactments enjoy a strong presumption of constitutionality. See State
ex rel. Dickman v. Defenbacher, 

, 

 (1955), paragraph
one of the syllabus. This court does not consider the “policy or wisdom of a statute”
in these determinations. State ex rel. Bishop v. Bd. of Edn. of Mt. Orab Village
School Dist., Brown Cty., 

, 

 (1942). Our “sole
function” is to determine whether the statute “transcends the limits of legislative
power.” 

          {¶ 55} The right to due process of law in Ohio exists under Article I, Section
16 of the Ohio Constitution: “[E]very person, for an injury done him in his land,
goods, person, or reputation, shall have remedy by due course of law * * *.”
(Emphasis added.) It has been considered the functional equivalent of the “due
process of law” protections in the United States Constitution. Arbino, 

, 

, 

.
          {¶ 56} The standard of review we apply when reviewing the
constitutionality of a statute on due-process grounds depends on whether the
legislation restricts a fundamental right. 

. By applying rational-basis
review, the majority opinion has implicitly decided that R.C. 2315.18 does not
implicate a fundamental right.         We agree that rational-basis review is the
appropriate test to be applied in these circumstances—that is the conclusion this
court reached in Arbino. See 

          {¶ 57} R.C. 2315.18 is afforded “a strong presumption of validity” and will
survive a due-process challenge if it is rationally related to a legitimate government
purpose. Heller v. Doe, 

, 

, 

(1993).     “This deferential rational-basis standard is ‘a paradigm of judicial




                                            25
                              SUPREME COURT OF OHIO




restraint,’ Fed. Communications Comm. v. Beach Communications, Inc., 

, 

, 

 (1993), and ‘not a license for courts to
judge the wisdom, fairness, or logic of legislative choices,’ 

, 

.” State v. Bevly, 

, 

, 

(French, J., dissenting). Our system of government presumes that the democratic
process will rectify bad policy decisions and that “judicial intervention is generally
unwarranted no matter how unwisely we may think a political branch has acted.”
Vance v. Bradley, 

, 

, 

 (1979).
        {¶ 58} Therefore, a statute does not violate due process under the rational-
basis test if the statute (1) “bears a real and substantial relation to the public health,
safety, morals or general welfare of the public,” and (2) “is not unreasonable or
arbitrary.” Benjamin v. Columbus, 

, 

 (1957),
paragraph five of the syllabus. “Whether an exercise of the police power does bear
a real and substantial relation to the public health, safety, morals or general welfare
of the public and whether it is unreasonable or arbitrary are questions which are
committed in the first instance to the judgment and discretion of the legislative
body, and, unless the decisions of such legislative body on those questions appear
to be clearly erroneous, the courts will not invalidate them.” 

 at paragraph six of
the syllabus; see also Simpkins, 

, 

, 

, quoting State v. Williams, 

, 

(2000) (we grant “ “substantial deference’ ” to the General Assembly’s
determination).
  A. R.C. 2315.18(B) bears a real and substantial relation to the general welfare
                                      of the public
        {¶ 59} The General Assembly enacted S.B. 80 to protect the Ohio economy
from the increasing number of tort claims being filed and the increasing amounts
of the damages being awarded in those claims, both of which were negatively
impacting the cost of doing business in the state, threatening Ohio jobs, driving up



                                           26
                               January Term, 2022




consumer costs, and stifling innovation. S.B. 80, Section 3(A)(3), 150 Ohio Laws,
Part V, at 8024. Part of the issue was the cost of the tort system—it had grown
significantly, and attorneys benefitted more from the system than those who had
been injured. S.B. 80, Section 3(A)(3)(a) through (f), 150 Ohio Laws, Part V, at
8024-8025.    The General Assembly also noted the significant problem with
damages, specifically noneconomic damages and punitive damages. S.B. 80,
Section 3(A)(4) and (6), 150 Ohio Laws, Part V, at 8025-8028. The General
Assembly was concerned about “[i]nflated damage[s] awards,” i.e., windfalls that
a person could derive from awards of both punitive and noneconomic damages.
S.B. 80, Section 3(A)(6)(e), 150 Ohio Laws, Part V, at 8027.
       {¶ 60} Noneconomic-damages awards, like the one at issue here, were
intended to compensate an injured person for a loss, not to punish the defendant.
S.B. 80, Section 3(A)(6)(a), 150 Ohio Laws, Part V, at 8027. The General
Assembly noted, however, that these damages, which have “no precise economic
value,” 

 are inherently subjective and may be influenced by “improper
consideration of evidence of wrongdoing,” S.B. 80, Section 3(A)(6)(d), 150 Ohio
Laws, Part V, at 8027. It is these inflated noneconomic-damages awards that
contributed to the problems in our civil-justice system. See S.B. 80, Section
3(A)(6)(e), 150 Ohio Laws, Part V, at 8028. Thus, the General Assembly capped
noneconomic-damages awards at “the greater of [$250,000] or an amount that is
equal to three times the economic loss, as determined by the trier of fact,” but not
exceeding $350,000 for each plaintiff in the tort action or $500,000 for each
occurrence that is the basis of the action. R.C. 2315.18(B)(2).
       {¶ 61} The majority opinion never says that reforming the tort system to
advance the goal of preventing inflated and improperly punitive noneconomic-
damages awards bears no real and substantial relation to the public health, safety,
morals, or general welfare of the public. Nor can it. This court has already found
that S.B. 80 “bears a real and substantial relation to the general welfare of the




                                        27
                              SUPREME COURT OF OHIO




public.” Arbino, 

, 

, 

.
Reducing the cost of doing business in this state, ensuring job growth, reducing
costs to consumers, and promoting innovation plainly have a real and substantial
relation to the general welfare of the public and the economic health of this state.
        {¶ 62} Brandt argues, however, that the economic research on which the
General Assembly based its decision to enact R.C. 2315.18 was flawed. In Arbino,
this court rejected that argument, finding that the General Assembly had made
several findings of fact based on its own research. 

. We explained
that in determining whether a statute bears a real and substantial relation to
legitimate governmental interests, “ ‘it is not the function of the courts to substitute
their evaluation of legislative facts for that of the legislature.’ ” Id. at ¶ 58, quoting
Minnesota v. Clover Leaf Creamery Co., 

, 

, 

 (1981). The General Assembly, with the research available to it, made
the decision to enact these caps to protect the Ohio economy. There is no doubt
that this statute bears a real and substantial relation to a legitimate government
purpose, even under Brandt’s circumstances.
        {¶ 63} “[T]he status of the plaintiff [as a victim of sexual assault] does not
diminish either the economic benefits of limiting noneconomic damages, as found
by the General Assembly, or the substantial relationship that we found in Arbino
between the statutory limitations and the benefits to the general public welfare.”
Simpkins, 

, 

, 

. Therefore,
the first element of the rational-basis test—that the challenged statute bears a real
and substantial relation to the general public welfare—is satisfied. See 

.
B. R.C. 2315.18 is not unreasonable or arbitrary, and there is a rational basis for
                         its creation of two classes of victims
        {¶ 64} As for whether the cap on noneconomic damages is unreasonable or
arbitrary as applied to Brandt, or whether there is no rational basis for



                                           28
                                January Term, 2022




distinguishing between victims who have suffered (1) an injury resulting in
“[p]ermanent and substantial physical deformity,” (2) an injury resulting in “loss of
use of a limb,” (3) an injury resulting in “loss of a bodily organ system” or (4) a
“[p]ermanent physical functional injury that permanently prevents the person from
being able to independently care for [him or her]self and perform life-sustaining
activities,” R.C. 2315.18(B)(3), from those who have not, those arguments too must
fail.
        {¶ 65} The majority opinion concludes that the statutory scheme is
unreasonable. The majority opinion discusses how the statute does not consider
psychological injuries at all and how R.C. 2315.18(B)(3) is limited to physical
“catastrophic injuries.” Majority opinion, ¶ 31. The majority opinion maintains
that this distinction is unreasonable given the trauma that Brandt has endured,
evidenced by the jury’s high-dollar award for her noneconomic damages and the
fact that no one has argued that this award was excessive for reasons other than its
exceeding the statutory cap. The majority opinion concludes that “unavailability
of the exception to the compensatory-damages caps for the most severely and
permanently psychologically injured” creates a due-process problem. (Emphasis
sic.) 

        {¶ 66} But in enacting tort-reform legislation, the General Assembly was
required only to be rational and unarbitrary. This is a low bar. And here, the
legislature sought to limit inflated and subjective awards that it found to be both
unfair to defendants and harmful to the state’s economy. It also 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. In order to effectively enact legislation that solves the
problems that the General Assembly found to exist, the legislature was required to
draw lines somewhere. As this court said in Arbino, “the General Assembly is




                                          29
                              SUPREME COURT OF OHIO




charged with making the difficult policy decisions on such issues and codifying
them into law. This court is not the forum in which to second-guess such legislative
choices * * *.” 

, 

, 

.
       {¶ 67} R.C. 2315.18 draws distinctions between the types of injured
claimants, but those distinctions are not arbitrary or irrational. The statute prohibits
caps from being imposed on those who have suffered (1) an injury resulting in
“[p]ermanent and substantial physical deformity,” (2) an injury resulting in the
“loss of use of a limb,” (3) an injury resulting in the “loss of a bodily organ system,”
or (4) a “[p]ermanent physical functional injury that permanently prevents the
person from being able to independently care for [him or her]self and perform life-
sustaining activities.” R.C. 2315.18(B)(3). There are two categories of plaintiffs:
those who fall into one of the four exceptions set forth in R.C. 2315.18(B)(3) and
those who do not. The classification remains the same regardless of the age of the
victim and the nature of the tort. Simpkins, 

, 

,

. The statute does not treat Brandt or other victims of sexual
assault any differently than other tort victims who have not experienced one of the
four types of injuries listed above.
       {¶ 68} The majority opinion and Brandt seem to emphasize that a minor
victim of sexual assault could never fall into one of these categories. This is simply
untrue. We need not speculate, but it is apparent that a victim of sexual assault
could experience an injury of the sort covered under R.C. 2315.18(B)(3)—e.g., an
injury caused by the violence of the assault, a resulting sexually transmitted disease,
complications of a pregnancy occasioned by the assault that result in the “loss of a
bodily organ system,” or another injury that results in a “permanent physical
functional injury that permanently prevents the person from being able to
independently care for [him or her]self and perform life-sustaining activities.” See,
e.g., Ozmun v. Customer Engineering Servs., L.L.C., Cuyahoga C.P. No. CV 14
824745, 

 (July 31, 2015) (allowing the jury to determine



                                          30
                                January Term, 2022




whether the damages cap applied after a plaintiff offered an expert report finding
that her posttraumatic stress disorder was a physical, functional injury because it
caused physical harm, including brain-cell damage and atrophy to the hippocampal
gyrus and other areas of the brain); see also Giebel v. Lavalley, N.D.Ohio No. 5:12-
CV-750, 

, *2 (genuine issue of material fact whether the plaintiff
who suffered depression and suicidal thoughts as a result of a brain injury suffered
an injury under R.C. 2315.18(B)(3)(b) that exempted her from the cap on
noneconomic damages). No one is denying that Brandt’s experience was traumatic
and that she suffers from psychological issues, but her injuries do not fall within
one of the categories of injuries identified by the General Assembly as being
exempt from the caps on noneconomic damages. If they did, then Brandt would
not be subject to a cap on her award of noneconomic damages. This is the same for
any other claimant whose injuries do not rise to the extent specified by the
legislature.
        {¶ 69} As the General Assembly recognized, damages for things like pain
and suffering and mental anguish are inherently subjective. They are difficult to
determine and quantify. See Leininger v. United States, 

, 997
(D.Kan.2020) (“non-economic damages are notoriously difficult to quantify”). The
General Assembly had a substantial interest in protecting our civil-justice system
and our economy when it enacted the statute that set a cap on noneconomic
damages as a means to limit the awards for injuries that are either difficult to prove
or the extent of which is difficult to quantify without evidence of some physical
component. This is a reasonable and legitimate government interest, and the
General Assembly has not arbitrarily selected winners and losers under the statute.
Thus, R.C. 2315.18(B) does not violate due process merely because it caps the
noneconomic-damages award issued to Brandt in the same way that it would cap
damages for every other injured person who does not fall into one of the four
categories for which caps are exempted.




                                          31
                             SUPREME COURT OF OHIO




       {¶ 70} “ ‘[C]ourts are compelled under rational-basis review to accept a
legislature’s generalizations even when there is an imperfect fit between means and
ends. A classification does not fail rational-basis review because “ ‘ “ ‘it is not
made with mathematical nicety or because in practice it results in some
inequality.’ ” ’ ” Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent.
State Univ., 

, 

 (1999), quoting Heller, 

, 

, 

, quoting Dandridge v. Williams, 

, 

, 

 (1970), quoting Lindsley v. Natural
Carbonic Gas Co., 

, 

, 

 (1911). That the
distinctions drawn may not be perfect does not make them irrational or arbitrary.
And the majority opinion does not dispute that lines must be drawn—it simply
disagrees with how the General Assembly drew them.
       {¶ 71} The majority opinion argues that by finding the noneconomic-
damages cap constitutional, Brandt’s abuser, Pompa, would be the only winner
here. The majority opinion also emphasizes that denying Brandt the full amount of
her noneconomic-damages award in this case is unreasonable since the award does
not impact the insurance industry, because most insurance policies now contain
exclusions that restrict coverage for criminal conduct such as Pompa’s. This
rationale is flawed for two reasons. First, noneconomic-damages awards are not
meant to punish the defendant, S.B. 80, Section 3(A)(6)(a), 150 Ohio Laws, Part
V, at 8027; the fact that one bad person might benefit from caps on noneconomic
damages does not make the statute, taken as a whole, irrational or arbitrary.
Second, the majority opinion’s policy rationale does not belong in a
constitutionality analysis at all; policy decisions are reserved for the General
Assembly. See Cleveland, 

, 

, 

,
at ¶ 40. It is up to the General Assembly to change the statute if it is no longer in
line with public interest. We can only bring the issue to the attention of the General
Assembly; we cannot “invade the province of the legislature” and “violate the



                                         32
                                 January Term, 2022




separation of powers” doctrine to rewrite the statute in the manner we find most
appropriate. Pratte v. Stewart, 

, 

, 

, ¶ 54. We “must leave it to the General Assembly to rewrite the statute if it
deems necessary.” 

        {¶ 72} 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
arbiter of public policy. Cleveland at ¶ 40. If the General Assembly would like to
create another exception beyond those listed in R.C. 2315.18(B)(3), then it should
do so. See Pratte at ¶ 54. If the people would like another exception added to the
statute, then they should go to their legislators or pursue a referendum under Article
II, Section 1b or 1c of the Ohio Constitution. But that is a far cry from the
determination in the majority opinion that if legislation tackles problems in the tort
system, it must treat the survivors of sexual abuse the same as it treats people who
have, for example, lost an organ or a limb. The General Assembly could rationally
decide that the types of injuries described in R.C. 2315.18(B)(3) do not present the
same problems for ensuring that noneconomic-damages awards are not windfalls
or are not inherently subjective. That is all the Constitution requires.
                                   III. Conclusion
        {¶ 73} No one denies that child abuse is horrific. And no one will deny that
Brandt has suffered. But it is not our job as members of the judicial branch to
overreach and invade the province of the General Assembly. Bad facts make bad
law, as it does today.
        {¶ 74} By resolving the merits of this case, the majority opinion improperly
involves the judiciary in matters that belong exclusively and fundamentally to the
General Assembly. 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. It erodes the public’s confidence in the judiciary to resolve




                                           33
                                 SUPREME COURT OF OHIO




problems within the confines of the law and places an unrealistic expectation on the
members of the Ohio judiciary to resolve all society’s problems. Policy-making is
not our job. 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. Brandt’s situation is certainly
sad, but we cannot provide her with compensation simply because it may be our
personal policy preference to do so. This activism from the bench needs to stop.
       {¶ 75} Brandt       has    not   demonstrated   that   R.C.   2315.18(B)    is
unconstitutional as applied to her. Thus, we must respectfully dissent.
                                  _________________
       FISCHER, J., dissenting.
       {¶ 76} The majority opinion abandons this court’s role as impartial jurist
and exceeds the scope of its authority to hold that R.C. 2315.18(B)(2) is
unconstitutional as applied to appellant, Amanda Brandt, and similarly situated
victims. What happened to Brandt is horrific and deeply saddening, as are the
stories of every child victim—really any victim—of sexual assault. But that reality
does not bestow upon this court the constitutional authority to invade the purview
of the General Assembly by questioning its policy decisions and fashioning
remedies for victims we deem worthy. While these types of cases turn our stomachs
and tug on our heartstrings, we are still tasked with resolving these matters within
the confines of the law.
       {¶ 77} As discussed in the joint dissent, I fully agree that Brandt cannot
demonstrate that the caps on noneconomic damages in R.C. 2315.18(B)(2), as
applied to her, violate her right to due process under Article I, Section 16 of the
Ohio Constitution. I write separately to address Brandt’s other arguments that go
unresolved by the majority opinion, and I reach the conclusion that Brandt cannot
demonstrate that R.C. 2315.18 is unconstitutional on its face or as applied to her.
Thus, I would affirm the judgment of the Eighth District Court of Appeals.



                                           34
                                 January Term, 2022




                               I. Standard of Review
       {¶ 78} It is important to address the applicable standards of review in this
case given that the majority opinion seems to have forgotten how to apply them.
Constitutional challenges fall into one of two categories: (1) facial challenges that
claim a statute as a whole is unconstitutional, and (2) as-applied challenges that
claim a statute is unconstitutional as applied to a particular set of facts. In re D.B.,

, 

, 

, ¶ 12; Harrold v. Collier,

, 

, 

.
        {¶ 79} In a facial challenge, the party must prove beyond a reasonable doubt
that “there exists no set of circumstances under which the statute would be valid.”
Id.; see also State ex rel. Dickman v. Defenbacher, 

, 

 (1955), paragraph one of the syllabus; State v. Mason, 

, 2018-
Ohio-1462, 

 (same). But for an as-applied challenge, the party
must prove by clear and convincing evidence that the statute is unconstitutional
when applied to a particular set of facts. Harrold at ¶ 38; Belden v. Union Cent.
Life Ins. Co., 

, 

 (1944), paragraph six of the syllabus.
                       II. Presumption of Constitutionality
       {¶ 80} When evaluating these constitutional challenges, we must remember
that legislative enactments enjoy a strong presumption of constitutionality.
Dickman at paragraph one of the syllabus. While this presumption has been subject
to some limited criticism in the past, see Ohio Grocers Assn. v. Levin, 

, 

, 

, (Pfeifer, J., dissenting), it is
firmly based on the General Assembly’s plenary power to legislate, and it serves to
discourage courts from overruling legislation based on the court’s own policy
preferences. See League of Women Voters of Ohio v. Ohio Redistricting Comm.,

, 

, 

 (Fischer, J., dissenting).
Indeed, this court has applied this presumption since our statehood and has affirmed
this presumption even through the various amendments to our state constitution.




                                          35
                              SUPREME COURT OF OHIO




To show how deeply rooted this presumption is in our judicial system, a brief
history is necessary.
        {¶ 81} The Ohio Constitution of 1803, drafted consistently with
Jeffersonian principles, concentrated much of the state’s power in the General
Assembly. See Utter, Judicial Review in Early Ohio, The Mississippi Valley
Historical Review, Vol. XIV, No. 1 (June 1927) 3-24. The legislature controlled
the makeup of the judiciary. Id. at 4, 6-7. And the legislature believed that the
court had no right at all to declare its enactments unconstitutional. Id.
        {¶ 82} However, the Ohio Supreme Court determined in Rutherford v.
M’Faddon (1807), that it had the authority to review the constitutionality of
legislative acts. Pollack, Ohio Unreported Judicial Decisions Prior to 1823, Part
II, 71-105 (1952) In Rutherford, the court expressed that the judiciary’s duty is to
“expound, construe and declare the law,” which includes declaring a law
unconstitutional. (Emphasis sic.) Id. at 72-73. And in discharging that duty, the
court “compare[s] the legislative act with the constitution,” and if it is determined
that the legislative act is contrary to the Constitution or prohibited by the
Constitution, then it is void. (Emphasis sic.) Id. at 73. The court emphasized that
its role is to support the Constitution. Id. at 74.
        {¶ 83} The judiciary continued to exercise its authority, but it provided
deference to the General Assembly in its legislative decisions: “It is never to be
forgotten, that the presumption is always in favor of the validity of the law; and it
is only when manifest assumption of authority, and a clear incompatibility between
the constitution and the law appear, that the judicial power can refuse to execute it.
Such interference can never be permitted in a doubtful case.”               Cincinnati,
Wilmington and Zanesville, RR. Co. v. Clinton Cty. Commrs., 

, 82
(1852); see also Downes, Judicial Review Under the Ohio Constitution of 1802,
Northwest Ohio Quarterly (October 1946) 145.




                                           36
                                January Term, 2022




       {¶ 84} This shift, however, was not due to a fear of impeachment by the
General Assembly nor the court deciding to give up its authority; this shift was
founded in the court’s recognition that legislators took an “oath to support the
constitution,” and they considered that oath when crafting legislation. Cincinnati,
Wilmington and Zanesville, RR. Co., at 83; Downes at 145. If the court were to
entertain declaring a law unconstitutional “while [also] entertaining doubts upon
the subject,” then it would present a separation of powers problem and “make the
dubious constructions of the judiciary[] outweigh the fixed conclusions of the
General Assembly.” 

 The court noted that “ ‘it is not on slight implication and
vague conjecture’ ” that it would pronounce that the General Assembly had
“ ‘transcended its powers’ ” and declared its acts void. Cincinnati, Wilmington
and Zanesville, RR. Co. at 84, quoting Fletcher v. Peck, 

, 

 (1810).
       {¶ 85} Even as the Ohio Constitution was amended to distribute power
more equally among the three branches of government in 1851, this court still gave
a strong presumption to the constitutionality of statutory enactments. See, e.g., Ex
parte Bushnell, 

, 96 (1859) (“No court will hold a law to be
unconstitutional unless its unconstitutionality is clear beyond a doubt”). And by
1894, it was a settled rule that the court presumed constitutionality in favor of the
validity of the challenged statute. State ex rel. Poe v. Jones, 

, 503,

 (1894). In reaffirming this rule, this court again emphasized that the
presumption is necessary due to the General Assembly’s plenary power to legislate:
“The legislative power of the state is vested in the general assembly, and whatever
limitation is placed upon the exercise of that plenary grant of power must be found
in a clear prohibition by the constitution.” 

 When “the constitutionality of the
law is involved in doubt, that doubt must be resolved in favor of the legislative
power.” 

                                         37
                             SUPREME COURT OF OHIO




       {¶ 86} The presumption of constitutionality remained strong even after the
Ohio Constitution was revised in 1912 to provide the judiciary with more, yet still
limited, power to review legislative enactments. See Dickman, 

,

, at paragraph one of the syllabus; Article IV, Section 2, Ohio
Constitution (1912) (amended to allow the Supreme Court to find a statute
unconstitutional by a majority of all but one vote). This court ruled still that
legislative enactments were presumed to be constitutional and would only be
deemed unconstitutional if proven so beyond a reasonable doubt. Dickman at 147-
151; Williams v. Scudder, 

, 

 (1921), paragraph four
of the syllabus; Xenia v. Schmidt, 

, 

 (1920), paragraph
one of the syllabus.
       {¶ 87} Even after the people of Ohio adopted the Modern Courts
Amendment in 1968, which eliminated the restriction on this court’s ability to find
a statute unconstitutional by a certain majority, see Euclid v. Heaton, 

, 

 (1968), and provided this court with appellate jurisdiction
involving constitutional questions, Article IV, Section2(B)(2)(a)(ii), Ohio
Constitution, the presumption of a statute’s constitutional validity still reigned.
This is because the presumption was always meant to ensure the separation of
powers and to support the General Assembly’s plenary power to legislate, a power
that was not altered by the Modern Courts Amendment. See Village of Monroeville
v. Ward, 

, 

 (1971), rev. on other grounds
by Ward v. Monroeville, 

, 93 Sc.D. 80, 

 (1972), citing
State ex rel. Poe at 503; see generally Fischer et al., The Modern Courts
Amendment at 50, Ohio Lawyer (Oct.-Dec. 2019) 12-15; O’Connor, The Ohio
Modern Courts Amendment: 45 Years of Progress, 76 Alb.L.Rev. 1963 (2012-
2013); Milligan & Pohlman, The 1968 Modern Courts Amendment to the Ohio
Constitution, 29 Ohio St.L.J. 811 (1968).




                                         38
                                January Term, 2022




       {¶ 88} This presumption of constitutionality has been affirmed time and
again since 1968. Ohio Pub. Interest Action Group, Inc. v. Pub. Util. Comm., 

, 

 (1975), paragraph four of the syllabus (“The
question of the constitutionality of every law being first determined by the General
Assembly, every presumption is in favor of its constitutionality, and it must clearly
appear that the law is in direct conflict with inhibitions of the Constitution before a
court will declare it unconstitutional”), following State Bd. of Health v. Greenville,
86 Ohio St.1, 

 (1912); State ex rel. Swetland v. Kinney, 

, 

 (1982) (the sanctity of legislative enactments is firmly
entrenched in our judicial system); State v. Warner, 

, 

 (1990) (recognizing that the presumption of constitutionality is based on
the legislature’s plenary power); see also State ex rel. Horner v. Anderson, 

, 

 (1975); State ex rel. Taft v. Campanella, 

, 

 (1977); State v. Renalist, Inc., 

, 

 (1978); Cincinnati City School Dist. Bd. of Edn. v. Walter, 

, 

 (1979); State v. Saurman, 

, 

 (1980); State v. Dorso, 

, 

(1983); Ewing v. Lindley, 

, 

 (1986); State v.
Stambaugh, 

, 

 (1987); Doyle v. Ohio Bur. of
Motor Vehicles, 

, 

 (1990); Conley v. Shearer,

, 

 (1992); Sorrell v. Thevenir, 

, 

 (1994); Beagle v. Walden, 

, 

 (1997); Hughes v. Ohio Bur. of Motor Vehicles, 

, 

 (1997); Desenco, Inc. v. Akron, 

, 

 (1999); State ex rel. Haylett v. Ohio Bur. of Workers’ Comp., 

, 

 (1999); Klein v. Leis, 

, 2003-
Ohio-4779, 

; Yajnik v. Akron Dept. of Health, Hous. Div., 

, 

, 

; McCrone v. Bank One




                                          39
                             SUPREME COURT OF OHIO




Corp., 

, 

, 

; State ex rel. Ohio
Congress of Parents & Teachers v. State Bd. of Edn., 

, 2006-
Ohio-5512, 

; State v. Carswell, 

, 2007-
Ohio-3723, 

, ¶ 6-7; Toledo v. Tellings, 

, 2007-
Ohio-3724, 

; Ohio Apt. Assn. v. Levin, 

,

, 

; Cleveland v. State, 

,

, 

, ¶ 6; State ex rel. Zeigler v. Zumbar, 

, 

, 

, ¶ 24;Mahoning Edn. Assn. of Dev.
Disabilities v. State Emp. Relations Bd., 

, 

, 

; Haight v. Minchak, 

, 

, 

, ¶ 11; State v. Noling, 

, 

, 

; Toledo v. State, 

, 

, 

. ¶ 17-18. Even this year, this court drew on this presumption to evaluate the
constitutionality of challenged statutes. See Newburgh Hts. v. State, ___ Ohio St.3d
___, 

, ___ N.E.3d ___, ¶ 19; State v. Grevious, ___ Ohio St. ___,

, ___ N.E. ___, ¶ 9. Indeed, this presumption is consistent with
the General Assembly’s statement that it enacts statutes with the Ohio and United
States Constitutions in mind. See R.C. 1.47(A).
       {¶ 89} This deeply-rooted presumption is vital to maintaining separation of
powers. See Cincinnati, Wilmington and Zanesville, RR. Co. v. at 83-84; State ex
rel. Poe, 51 Ohio St. at 503, 

; Ohio Pub. Interest Action Group, Inc. at
paragraph four of the syllabus; State ex rel. 

; 

. The
presumption not only recognizes the General Assembly’s plenary power to
legislate—to enact laws consistent with the will of the people—it ensures that
judges do not replace the legislature’s views with their own personal views. See
League of Women Voters of Ohio, 

, 

, 

 (Fischer, J., dissenting); The Federalist No. 78, at 468-469 (Alexander




                                         40
                                 January Term, 2022




Hamilton) (Clinton Rossiter Ed.1961); see also Holeton v. Crouse Cartage Co., 

, 

 (2001) (Moyer, C.J., dissenting).
        {¶ 90} Thus, when evaluating constitutional claims, we must make every
reasonable presumption and resolve any doubt as to the statute’s constitutionality
in favor of the validity of the statue. Dickman, 164 Ohio St. at 149, 

;
see State ex rel. Doerfler v. Price, 

, 53, 

 (1920). Policy
considerations raised by members of the judicial branch have no place in this
analysis. State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn., 

, 

 (1942).
   III. We have already held that R.C. 2315.18 is constitutional on its face
        {¶ 91} This court held that R.C. 2315.18 was constitutional on its face in
Arbino v. Johnson & Johnson, 

, 

, 

. Brandt maintains that this court’s decision in Arbino was wrong; she
argues that R.C. 2315.18 violates due process, equal protection, and the right to
trial by jury and is therefore unconstitutional on its face. Though the majority
opinion declines to address this issue, its silence and use of the rational-basis test is
confirmation that Arbino should be affirmed. Indeed, stare decisis demands that
we affirm and follow Arbino.
        {¶ 92} Stare decisis “dictates adherence to prior judicial decisions.” State
v. Harper, 

, 

, 

. It provides
constancy and consistency in the law necessary to ensure that the value of law in
society is not diminished. Scott v. News-Herald, 

, 

 (1986). So generally, we are “institutionally bound to uphold our prior
decisions where time has vindicated the logic utilized to render the holding.” 

        {¶ 93} We can, of course, reverse our precedent under the right
circumstances: “(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




                                           41
                             SUPREME COURT OF OHIO




create an undue hardship for those who have relied upon it.” Westfield Ins. Co. v.
Galatis, 

, 

, 

, paragraph one of
the syllabus. If we apply the test set forth in Galatis, Brandt plainly cannot satisfy
the third element, because Arbino is the foundation of many decisions and
abandoning it would clearly create an undue hardship for those who have relied on
it.
       {¶ 94} Over the past 15 years, we have reaffirmed and relied on Arbino
numerous times. Besides supporting the holding in Simpkins v. Grace Brethren
Church of Delaware, 

, 

, 

,
Arbino has formed the legal foundation for affirming legislative limits on allowable
damages in many constitutional claims. See, e.g., Groch v. Gen. Motors Corp. 

, 

, 

, ¶ 23 (Arbino is “useful in setting
the stage” to provide “extensive background” and establishing “some important
concepts that play a significant role” in resolving questions regarding the
constitutionality of R.C. 2305.10, a products-liability statute of repose); Oliver v.
Cleveland Indians Baseball Co. Ltd. Partnership, 

, 2009-Ohio-
5030, 

 (relying on Arbino to affirm the constitutionality of
R.C. 2744.05(C)(1), a statute that limits noneconomic damages in suits against
political subdivisions); Kaminski v. Metal & Wire Prods. Co., 

,

, 

, ¶ 58-97 (relying on Arbino to determine that
R.C. 2745.01, which limits an employer’s liability for intentional torts, is
constitutional); Stetter v. R.J. Corman Derailment Servs., L.L.C., 

, 

, 

, ¶ 33-93 (same); Flagstar Bank, F.S.B. v.
Airline Union’s Mtge. Co., 

, 

, 

,
¶ 29 (citing Arbino to conclude that the Ohio Constitution’s right-to-remedy clause
protects only against laws that completely foreclose a cause of action for injured
plaintiffs or otherwise eliminate their ability to receive a meaningful remedy).




                                         42
                                 January Term, 2022




        {¶ 95} Arbino also helps explain and emphasizes the importance of stare
decisis in Ohio. See, e.g., State v. Bodyke, 

, 

,

. And Arbino properly sets forth the role of this court as an
arbiter of legal issues, not as a policymaker. See, e.g., Cincinnati City School Dist.
Bd. of Edn. v. Conners, 

, 

, 

, ¶ 17;
Pratte v. Stewart, 

, 

, 

, ¶ 54. To
overrule Arbino would be to destroy the very foundation on which these decisions
stand—a fact acknowledged by Brandt’s counsel at oral argument.
        {¶ 96} Furthermore, Arbino was not wrongly decided. The crux of Brandt’s
argument is that R.C. 2315.18 violates her right to trial by jury under Article I,
Section 5 of the Ohio Constitution. She argues that the statute requires the trial-
court judge to disregard the jury’s noneconomic-damages award, thereby rendering
her jury award meaningless.            Her argument, however, is based on a
misunderstanding about the jury’s right to determine damages as a matter of fact
and the court’s ability to review and modify a damages award as a matter of law.
        {¶ 97} Under Article I, Section 5 of the Ohio Constitution, the right to a
jury trial “shall be inviolate.” We have determined that the right is fundamental
and cannot be invaded or violated by legislative act or judicial order. Shimko v.
Lobe, 

, 

, 

; Gibbs v. Girard,

, 

 (1913), paragraph two of the syllabus. But the right
is limited in that it exists only as it did when the Ohio Constitution was adopted.
Stolz v. J & B Steel Erectors, Inc., 

, 

, 

.
        {¶ 98} The right to a jury trial applies in this case. See Kneisley v. Lattimer-
Stevens Co., 

, 

 (1988) (Article I, Section 5
applies to intentional-tort actions). And the right to a jury trial includes the right to
have a jury determine all questions of fact, including the amount of damages that
the plaintiff may be entitled to as result of the injury. Galayda v. Lake Hosp. Sys.,




                                           43
                               SUPREME COURT OF OHIO




Inc., 

, 

 (1994); Sorrell, 

, 

 (1994). However, the jury’s authority to determine the
damages award at common law has never been unchecked, either by the General
Assembly or the trial court.
       {¶ 99} The General Assembly has the power to alter the common law,
which includes limiting the remedies available. See Ruther v. Kaiser, 

, 

, 

 (the legislature has the right to
determine causes of action recognized under the law); Groch, 

,

, 

, at ¶ 150 (the General Assembly can limit
remedies for injuries under the law). This power held by the legislature, to limit
remedies, existed when Article I, Section 5 was adopted. That fact is made apparent
when we consider the adoption of Article I, Section 19a of the Ohio Constitution.
       {¶ 100} Article I, Section 19a was adopted in 1912, the same year that
Article I, Section 5 was amended to allow verdicts that are not unanimous in civil
jury trials. Article I, Section 19a of the Ohio Constitution states, “The amount of
damages recoverable by civil action in the courts for death caused by the wrongful
act, neglect, or default of another, shall not be limited by law.” (Emphasis added.)
By its plain language, the provision means that neither the General Assembly nor
the judiciary may impose a cap on total damages recoverable for wrongful death.
See Kennedy v. Byers, 

, 96, 

, 632 (1923). But the
provision also supports the conclusion that the General Assembly has the power to
limit noneconomic damages for tort injuries that do not result in death. See Gibbon
v. Young Women’s Christian Assn. of Hamilton, 

, 285, 

 (1960). Since Brandt’s claim is not for wrongful death, the General Assembly
has the right to limit her damages.
       {¶ 101} But even if we do not consider the General Assembly’s right to
dictate remedies under the common law, R.C. 2315.18 still does not violate the right
to trial by jury. It is true that “it is the function of the jury to assess the damages



                                          44
                                January Term, 2022




and, generally, it is not for a trial or appellate court to substitute its judgment for
that of the trier of fact.” Villella v. Waikem Motors, Inc., 

, 

 (1989). But once the jury has resolved the facts and assessed the
damages in its verdict, the constitutional right is satisfied. Arbino, 

, 

, 

; Galayda, 

, 

 (Moyer, C.J., dissenting). Therefore, a jury’s damages award is not
impervious to outside interference after the jury’s duties are complete. 

.
        {¶ 102} Prior to the adoption of Article I, Section 5, trial courts commonly
questioned Ohio jury verdicts. See Hamden Lodge No. 517, Independent Order of
Odd Fellows v. Ohio Fuel Gas Co., 

, 

(1934)
(“from time immemorial the court has had and exercised the power to regulate the
jury’s action, at least to the extent of seeing that such action is not wholly
unreasonable”). This court, consistent with our precedent, has upheld a trial court’s
modification of a jury verdict when that verdict cannot be sustained as a matter of
law. Indeed, we have upheld remittiturs that reduce a jury’s award when the trial
court deems the amount excessive based on the facts found by the jury. See
Wightman v. Consol. Rail Corp., 

, 444, 

 (1999)
(noting, though, that the successful plaintiff must consent to such an order). And
we have upheld the constitutionality of a trial court’s decision to grant a motion for
judgment notwithstanding the verdict prior to the announcement that the court
could not weigh the evidence.         Likes v. Van Dike, 

 (1848).
Additionally, we have not found that awarding a plaintiff double or treble damages
as required by statute violates the right to trial by jury. See, e.g., R.C. 319.58
(double damages awarded to a plaintiff harmed by a person’s use of false weights
and measures); see also 

 (listing statutes allowing treble damages).
So long as the trial court does not intrude upon the jury’s findings of fact, the court
may amend the jury award as a matter of law, whether that is because the verdict is




                                          45
                             SUPREME COURT OF OHIO




not supported by sufficient evidence or because a statute requires it. Id. at ¶ 37;
Simpkins, 

, 

, 

; see also
Gasperini v. Ctr. for Humanities, Inc., 

, 

, 

, (1996) (Stevens, J., dissenting); Walker v. New Mexico & S. Pacific
RR. Co, 

, 

, 

 (1897) (so long as the jury
determines issues of fact and the court determines issues of law, “the procedure by
which this result shall be reached is wholly within the discretion of the legislature”)
       {¶ 103} Here, the General Assembly determined that caps on noneconomic
damages in certain situations are necessary, and it enacted R.C. 2315.18(B)(2) to
change the common law accordingly. See Stolz, 

, 2018-Ohio-
5088, 

. The General Assembly did not force the trial court
to invade the province of the jury; it required the trial court to modify the
noneconomic-damages award only if the jury’s award exceeded a certain amount
and the plaintiff’s injuries were not those exempted from caps under R.C.
2315.18(B)(3). See Galayda at 436 (Moyer, J., dissenting) (the trial court does not
invade the province of the jury’s fact-finding process when it reduces the damages
award, because the statute does not apply until after the jury has completed its
assigned function).    Therefore, the General Assembly’s modification of the
remedies available for common-law torts in R.C. 2315.18(B)(2) and the trial court’s
compliance with that provision do not violate the right to a jury trial guaranteed by
Article I, Section 5 of the Ohio Constitution.
       {¶ 104} This view is not unique. Other state supreme courts have also
found that caps on damages are constitutional so long as the jury award is not
altered as a matter of fact but rather as a matter of law. See Evans ex rel. Kutch v.
State, 

 (Alaska 2002); Kirkland ex. Rel. Kirkland v. Blaine Cty.
Med. Ctr., 

, 

 (2000); Murphy v. Edmonds, 

, 

 (1992); McClay v. Airport Mgt. Servs., L.L.C., 

, 696 (Tenn.2020); Etheridge v. Med. Ctr. Hosps., 

, 376



                                          46
                                January Term, 

 (1989); Horton v. Oregon Health & Science Univ., P.C., 

, 

; Gourley ex rel. Gourley v. Nebraska Methodist Health Sys.,
Inc., 

, 

 (2003); Tam v. Eighth Judicial Dist. Court,

, 796, 

 (2015); Judd ex rel. Montgomery v. Drezga, 

, 

; Phillips ex rel. Hervey v. Mirac, Inc., 

, 

 (2004); Wright ex rel. Green v. Colleton Cty. School Dist.,

, 

 (1990). But see Atlanta Oculoplastic Surgery,
P.C. v. Nestlehutt, 

, 

 (2010); Hilburn v. Enerpipe
Ltd., 

, 1147, 

 (2019); Moore v. Mobile Infirmary Assn.,

 (Ala.1991); Watts ex rel. Watts v. Lester E. Cox Med. Ctrs, 

 (Mo.2012); Sofie v. Fibreboard Corp., 

,

 (1989).
       {¶ 105} And though the United States Supreme Court has yet to rule on the
issue, it is likely that it too would conclude that statutory caps on damages awards
implemented by the court as a matter of law do not violate the right to trial by jury
under the Seventh Amendment to the U.S. Constitution. See Arkansas Valley Land
& Cattle Co. v. Mann, 

, 

, 

 (1889) (court is
within its authority to set aside excessive verdict and order a new trial); Gasperini,

, 

, 

 (1996) (Stevens, J., dissenting)
(precedent supports the conclusion that the right to a jury trial is not violated when
a trial court reduces an award as a matter of law, whether that be due to a cap on
damages, an unsupported verdict, or excessiveness); Estate of Sisk v. Manzanares,

 (D.Kan.2003).
       {¶ 106} R.C. 2315.18 does not offend the right to a trial by jury under
Article I, Section 5 of the Ohio Constitution. Therefore, the Arbino court properly
applied the rational-basis test to the jury-trial, due-process, and equal-protection
claims. We should reject Brandt’s proposition of law challenging this court’s




                                         47
                              SUPREME COURT OF OHIO




holding in Arbino and reaffirm our holding that R.C. 2315.18 is facially
constitutional.
 IV. The caps on damages in R.C. 2315.18(B)(2) are not unconstitutional as
                  applied to Brandt and similarly situated victims
       {¶ 107} Brandt argues that her reduced noneconomic-damages award
violates her rights to a jury trial, to open courts, to a remedy, to due process, and to
equal protection. To prevail, Brandt must prove by clear and convincing evidence
that R.C. 2315.18(B)(2) is unconstitutional when applied to her particular set of
facts. Harrold, 

, 

, 

.
As discussed in the joint dissent, Brandt cannot demonstrate that R.C.
2315.18(B)(2) violates her right to due process. And it is also clear 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. Like the plaintiff in Simpkins, 

, 

, 

, Brandt cannot meet her burden.
     A. Brandt cannot demonstrate that as applied to her circumstances, R.C.
                    2315.18(B)(2) violates her right to a jury trial
        {¶ 108} Brandt argues that her right to trial by jury was violated because the
jury valued her psychological injuries at $20,000,000 and the trial court’s reduction
of that award to $250,000 pursuant to the statutory cap intrudes on and ignores the
jury’s fact-finding process and renders it meaningless. But as discussed earlier,
R.C. 2315.18(B)(2) does not prevent the jury from determining issues of fact. Nor
does it allow the judge to substitute his or her findings for those of the jury. See
Simpkins at ¶ 23. Rather, the General Assembly, through its right to alter the
common law, requires the trial court to alter the award as a matter of law after the
jury has rendered its verdict. Thus, R.C. 2315.18(B)(2) and the trial court’s
compliance with that statute do not violate Brandt’s right to trial by jury under
Article I, Section 5 of the Ohio Constitution. Simpkins at ¶ 27; Arbino, 

, 

, 

.



                                          48
                                 January Term, 2022




     B. Brandt cannot demonstrate that as applied to her circumstances, R.C.
          2315.18(B)(2) violates her rights to open courts and to a remedy
         {¶ 109} Brandt argues that R.C. 2315.18(B)(2) violates her right to open
courts and to a remedy under Article I, Section 16 of the Ohio Constitution. Under
our precedent and understanding of “meaningful remedy,” Brandt cannot
demonstrate by clear and convincing evidence that her rights to open courts and to
a remedy has been violated.
         {¶ 110} Article I, Section 16 of the Ohio Constitution provides, “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.” “The constitutional right to a remedy
‘requires an opportunity granted at a meaningful time and in a meaningful
manner.’ ” Simpkins, 

, 

, 

,
quoting Hardy v. VerMeulen, 

, 

 (1987),
overruled on other grounds by Ruther, 

, 

, 

. But a plain reading of the provision “reveals that it does not provide
for remedies without limitation.” 

. Article I, Section 16 prohibits
“statutes that effectively prevent individuals from pursuing relief for their injuries.”
Arbino, 

, 

, 

.
         {¶ 111} The General Assembly has a right to alter the common law, whether
that be by abolishing an action, defining an action, placing a statutory limitation on
the action, or determining the remedies that may be afforded under an action.

; Groch, 

, 

, 

, at
¶ 150.     The General Assembly has limited the amount of compensatory
noneconomic damages that a plaintiff may recover under R.C. 2315.18(B)(2), but
it has not “wholly den[ied] persons a remedy for their injuries.” Simpkins at ¶ 30,
citing 

. The limit imposed by the General Assembly on noneconomic
damages is not nominal—R.C. 2315.18(B)(2) caps noneconomic damages at




                                          49
                             SUPREME COURT OF OHIO




$250,000 in this situation. Also, there are other remedies available in addition to
an award of noneconomic damages, like an award for unlimited economic damages
under R.C. 2315.18(B)(1) and an award for punitive damages under R.C. 2315.21.
Though a several-million-dollar reduction in Brandt’s noneconomic-damages
award is significant, we cannot say that an award of $114,250,000—the award
Brandt would receive once the statutory cap is applied in this case—is not a
meaningful remedy.
       {¶ 112} Brandt’s complaint is really that the cap in R.C. 2315.18(B)(2) is
insufficient to compensate her as a minor victim of sexual abuse. Citing Clarke v.
Oregon Health Sciences Univ., P.C., 

, 

, Brandt argues that
the award is merely an emasculated version of the remedy that was available at
common law. In Clarke, the Oregon Supreme Court held that under Oregon’s
Constitution, the state legislature is free to “modify both the form and measure of
recovery for an injury, as long as it does not leave the injured party with an
‘emasculated’ version of the remedy that was available at common law.” 

;
see also Horton, 

, 

 (“the substantiality of the legislative
remedy can matter in determining whether the remedy is consistent with the remedy
clause”). In Ohio, we have not limited the General Assembly’s right to modify
damages for torts at common law. And our Constitution seems to allow the General
Assembly to alter the remedies, especially considering Article I, Section 19a. But
even if the General Assembly’s ability to modify common-law remedies was
limited in that it could not substantially modify the award that was available at
common law, Brandt does not provide any evidence that a monetary award for
noneconomic damages greater than $250,000 was available at common law.
       {¶ 113} The determination of a meaningful remedy is a policy decision that
must remain in the purview of the General Assembly. See Groch, 

, 

, 

, at ¶ 150; Cleveland v. State, 

, 

, 

, ¶ 40. R.C. 2315.18(B)(2) does not deny



                                         50
                                 January Term, 2022




Brandt a meaningful remedy under the law; it limits one of many available
remedies, and that limitation does not result in a nominal remedy. Therefore,
Brandt cannot demonstrate that R.C. 2315.18(B)(2) violates her rights to open
courts and to a remedy as guaranteed under Article I, Section 16 of the Ohio
Constitution.
  C. R.C. 2315.18(B)(2) as applied to Brandt does not violate her right to equal
           protection under Article I, Section 2 of the Ohio Constitution
        {¶ 114} Brandt argues that, as applied to her circumstances, R.C.
2315.18(B)(2) violates her right to equal protection under Article I, Section 2 of the
Ohio Constitution. This argument too is without merit.
        {¶ 115} Article I, Section 2 of the Ohio Constitution guarantees equal
protection under the laws: “All political power is inherent in the people.
Government is instituted for their equal protection and benefit * * *.” This clause
“requires that individuals be treated in a manner similar to others in like
circumstances.” McCrone, 

, 

, 

.
        {¶ 116} A statutory classification does not violate equal protection if it
“bears a rational relationship to a legitimate government interest” and does not
involve a suspect class or       fundamental right.      Id. at ¶ 8.     Because R.C.
2315.18(B)(2) does not implicate a fundamental right, because it does not violate
the right to a jury trial or the rights to open courts and to a remedy, and because
Brandt does not maintain that R.C. 2315.18(B)(2) affects a suspect class, rational
basis is the appropriate test. See Arbino, 

, 

, 

; 

.
        {¶ 117} To prevail on this claim, Brandt must demonstrate “ ‘either that
there was no rational basis for the creation of the class itself or that those within the
class are not being treated equally in the furtherance of a legitimate governmental
interest.’ ” Simpkins,

, 

, 

,




                                           51
                               SUPREME COURT OF OHIO




quoting Morris v. Savoy, 

, 

 (1991). “A
classification does not fail rational-basis review because it is not made with
mathematical nicety or because in practice it results in some inequality.” (Cleaned
up.) Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ.,

, 

, 290 (1999). This court will set aside
legislative classifications only if they are “ ‘based solely on reasons totally
unrelated to the pursuit of the State’s goals and only if no grounds can be conceived
to justify them.’ ” Simpkins at 48, quoting Clements v. Fashing, 

,

, 

 (1982).
           {¶ 118} Brandt argues that R.C. 2315.18(B) creates four classes of persons
distinguished by their injuries: (1) persons who have suffered catastrophic physical
injuries, (2) persons who have suffered noncatastrophic physical injuries, (3)
persons who have suffered catastrophic nonphysical injuries, and (4) persons who
have suffered noncatastrophic nonphysical injuries. While Brandt is correct that
there are four injury classifications, they are not the ones that she lists. R.C.
2315.18(B)(3) does not create classes of plaintiffs based on whether they suffered
“catastrophic injuries.” The term “catastrophic injury” appears nowhere in the
statute.
           {¶ 119} Rather, the Arbino court coined the term “catastrophic injury” to
easily describe the injuries that were exempt from capped damages in R.C.
2315.18(B)(3). Arbino, 

, 

, 

. And this court further complicated matters in Simpkins when we
distinguished “catastrophic physical injuries” from “catastrophic nonphysical
injuries.” Simpkins at ¶ 41. The majority opinion continues with this distinction,
holding that plaintiffs suffering from “catastrophic psychological injuries” are
wrongfully subjected to the caps on damages in R.C. 2315.18(B)(2) in violation of
due process.




                                           52
                                January Term, 2022




       {¶ 120} While the “catastrophic” distinction was seemingly harmless and
appeared to be useful when this court decided Arbino and Simpkins, this description
has led to some confusion and allowed litigants and courts to reframe the injuries
described in R.C. 2315.18(B)(3) in a manner that the General Assembly did not
adopt. See Poteet v. MacMillan, 12th Dist. Warren No. CA2021-08-071, 2022-
Ohio-876, ¶ 17; Torres v. Concrete Designs, Inc., 

, 

, ¶ 77 (8th Dist.) (using Arbino’s description of injuries as “catastrophic” to
inform its view of “permanent and substantial physical deformity” in the context of
R.C. 2315.18(B)(3)). The use of the term “catastrophic” has wrongly encouraged
litigants and courts to place their own value judgments on plaintiffs’ injuries instead
of following the language in the statute.
       {¶ 121} The fault is our own.             By using the term “catastrophic” to
characterize the types of injuries exempted from the caps on damages, we 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).
Because “catastrophic” appears nowhere in the statute, the “catastrophic”
distinction should not be used or developed further.
       {¶ 122} We must return to the plain language of the statute. The exceptions
to limits on noneconomic compensatory damages in R.C. 2315.18(B)(3) apply to a
person who has sustained (1) an injury resulting in “[p]ermanent and substantial
physical deformity,” (2) an injury resulting in “loss of use of a limb,” (3) an injury
resulting in “loss of a bodily organ system,” or (4) a “[p]ermanent physical
functional injury that permanently prevents the injured person from being able to
independently care for self and perform life-sustaining activities.” Anyone who
experiences one of these four types of injuries is exempt from the noneconomic-
damages caps. See R.C. 2315.18(B)(3). Anyone who has not experienced one of
these types of injuries is not so exempt. R.C. 2315.18(B)(2). And it must be
emphasized again that the “classification remains the same regardless of the age of




                                            53
                             SUPREME COURT OF OHIO




the victim and the nature of [the] tort.” Joint dissenting opinion, ¶ 67. R.C. 2315.18
does not treat Brandt nor other victims of sexual assault differently from other tort
victims who do not suffer from one of the four types of injuries listed above.
       {¶ 123} As discussed in the joint dissent, a minor victim of sexual assault
might reasonably fall into one of these categories. And contrary to the majority
opinion’s argument, it is not that mental health is not considered in the statute—an
exemption for it is just not as obviously available and easy to obtain. “The General
Assembly had a substantial interest in protecting our civil-justice system and our
economy when it enacted the statue that set a cap on noneconomic damages as a
means to limit the awards for injuries that are either difficult to prove or the extent
of which is difficult to quantify without evidence of some physical component.
This is a reasonable and legitimate government interest, and the General Assembly
has not arbitrarily selected winners and losers under the statute.” Joint dissenting
opinion at ¶ 69. Indeed, Brandt may have fallen into one of the exempted categories
of injuries due to her mental illnesses—had she made the argument. See, e.g.,
Ozmun v. Customer Engineering Servs., L.L.C., Cuyahoga C.P. No. CV 14 824745,

 (July 31, 2015) (allowing the jury to determine whether the
damages cap applied after a plaintiff offered an expert report finding that her
posttraumatic stress disorder (“PTSD”) was a physical, functional injury because it
caused physical harm, including brain-cell damage and atrophy to the hippocampal
gyrus and other areas of the brain).
       {¶ 124} Thus, Brandt cannot demonstrate by clear and convincing evidence
that her capped damages award violated equal protection, because R.C.
2315.18(B)(2) serves a legitimate governmental interest and there was a rational
basis for the creation of the two classes—victims who fall into one of the four
categories under R.C. 2315.18(B)(3) and those who do not.




                                          54
                               January Term, 2022




D. The majority opinion’s due-process analysis is wrong and will cause chaos in
                                our judicial system
       {¶ 125} I agree fully with the joint dissent that the majority opinion is wrong
in both its due-process analysis and its holding that the cap on noneconomic
damages under R.C. 2315.18 as applied to Brandt is unconstitutional. And the
majority opinion’s misinterpretation of our due-process jurisprudence is not only
wrong, it creates chaos within our judicial system.
       {¶ 126} The majority opinion’s holding in this case applies not only to
Brandt but to similarly situated victims. But that holding cannot be construed as a
blanket prohibition against caps on damages for all minor sex-abuse victims.
Rather, those victims will have to demonstrate that they are “similarly situated” to
Brandt and her “extremely uncommon” case. Majority opinion, ¶ 34. This will
prove to be difficult, especially considering this court’s holding in Simpkins, 

, 

, 

, in which this court held that caps
on damages were constitutional as applied to a different minor victim of sexual
assault; this court had rejected Simpkins’s as-applied due-process challenge to R.C.
2315.18—the same argument that was raised by Brandt in this case. See Simpkins
at ¶ 1. Under the majority opinion’s decision here, courts are now left to compare
whether a child victim is more similar to Simpkins, a 15-year-old girl who was
raped by her pastor during two counseling sessions at her church, or to Brandt, a
girl who, between the ages of 11 and 12, was raped numerous times by her friend’s
father while she was drugged or asleep at his home.
       {¶ 127} Courts may ask: Did the victim have PTSD, anxiety, depression,
trust issues with men, nightmares, and fear of the dark like Simpkins? Or did the
victim have PTSD, anxiety, nightmares, difficulties sleeping, and agoraphobia like
Brandt? Did the victim graduate high school, engage in sports, do well in college,
and have a job, like Simpkins? Or did the victim graduate high school, have a job,
get an apartment, but lose everything after falling victim to drug abuse and




                                         55
                             SUPREME COURT OF OHIO




addiction, which led to a suicide attempt and homelessness, like Brandt? Do we
need to consider the victim’s suffering in light of when the abuse occurred and
when the tort action was pursued in order to better understand the victim’s injuries
and responses? Does it matter that a victim has had more time to reflect on how
the abuse has affected his or her life? If this process seems difficult, that’s because
it is. And this analysis will become ever more difficult as time goes on and more
child-abuse cases are plotted on this arbitrary grid created by the majority opinion.
       {¶ 128} The majority opinion, through its due-process analysis, forces trial
courts to engage in their own policy and value determinations in analyzing whether
a victim has suffered “catastrophic psychological injuries,” a term not even used in
the statutory scheme. Then the majority opinion requires trial courts to compare
abuse horror stories to determine whether the victim is relieved from caps on
damages. This nightmare could have been avoided had the majority opinion simply
applied the objective constitutional analysis that was used in Simpkins and left these
policy considerations for the General Assembly.
                                   V. Conclusion
       {¶ 129} Should the General Assembly revisit its decision to cap damage
awards, especially in cases like Brandt’s? Perhaps. But it is not the role of this
court to rewrite statutes or make judicial decisions based on our preferred policy
preference. As the late United States Supreme Court Justice Ruth Bader Ginsburg
stated, “Judges must be mindful of what their place is in this system and must
always remember that we live in a democracy that can be destroyed if judges take
it upon themselves to rule as Platonic guardians.”          Schweitzer, Ruth Bader
Ginsburg, Wise Legal Giant, 37 Touro L.Rev. 533, 537 (2021). The majority
opinion clearly does not heed these wise words.
       {¶ 130} If the cap on damages awards is to be modified or eliminated, it
should be done through one of the mechanisms supported by our Constitution, like




                                          56
                                January Term, 2022




legislative amendment, legislative referendum, or constitutional referendum. It
should not be modified in the manner chosen by the majority opinion today.
       {¶ 131} Because Brandt cannot demonstrate that R.C. 2315.18 is
unconstitutional on its face or as applied to her, this court should hold that the cap
on her noneconomic-damages award is constitutional. Because it does not do so, I
must respectfully dissent.
       {¶ 132} In addition, over my objection, the court did not follow the regular
and orderly internal rules of operation and practice in this case due to others’
seeming concerns about voting on any motion for reconsideration. Hence, my time
on this case was aberrantly and improperly limited. Thus, I most humbly apologize
to the citizens of Ohio that my individual dissent is not of the quality that I have
come to deliver and that the public expects. This case involves many constitutional
issues that deserve to be more completely analyzed and debated so that they may
be resolved appropriately. The litigants deserve full and fair consideration of their
case, which has been shortchanged here. We should do better.
                               _________________
       The Fitch Law Firm, John K. Fitch, and Kirstin A. Peterson; Taft, Stettinius
& Hollister, L.L.P., and Stephen C. Fitch; and Center for Constitutional Litigation,
P.C., and Robert S. Peck, for appellant.
       Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and
Francesca R. Boland, for appellee.
       Rittgers & Rittgers and Konrad Kircher, urging reversal for amici curiae
Child USA, Ohio Crime Victim Justice Center, Coalition for Children, and Crime
Victims Center, Inc.
       The Law Offices of Pamela J. Miller and Pamela J. Miller, urging reversal
for amicus curiae American Professional Society on the Abuse of Children.




                                           57
                            SUPREME COURT OF OHIO




       Paul W. Flowers Co., L.P.A., Louis E. Grube, and Paul W. Flowers; and
Cooper & Elliott, L.L.C., and Charles H. Cooper Jr., urging reversal for amici
curiae Ohio Association for Justice and American Association for Justice.
       Camille M. Crary, urging reversal for amicus curiae Ohio Alliance to End
Sexual Violence.
       Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and
Cary Silverman, urging affirmance for amici curiae 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.
       Dinsmore & Shohl, L.L.P., Frank C. Woodside III, Peter J. Georgiton, and
Brady R. Wilson, urging affirmance for amicus curiae Product Liability Advisory
Counsel, Inc.
       Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Michael J. Hendershot, Chief Deputy Solicitor General, urging affirmance for
amicus curiae Ohio Attorney General Dave Yost.
       Calfee, Halter & Griswold, L.L.P., Jason J. Blake, and Gretchen L.
Whaling, urging affirmance for amicus curiae David Goodman, former chairman
of the Ohio Senate Judiciary Committee for Civil Justice.
       Bricker & Eckler, L.L.P., Anne Marie Sferra, and Daniel C. Gibson, urging
affirmance for amicus curiae Ohio Alliance for Civil Justice.
       Tucker Ellis, L.L.P., Benjamin C. Sassé, and Elisabeth C. Arko, urging
affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.
                              _________________




                                        58