Oral Argument Preview: Is the Statutory Cap on Non-Economic Damages Unconstitutional As Applied to a Minor Sex Abuse Victim? Simpkins v. Grace Brethren Church of Delaware, Ohio

Update: On December 14, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument in this case here.

On December 15, 2015, the Supreme Court of Ohio will hear oral argument in the case of  Simpkins v. Grace Brethern Church of Delaware, Ohio, 2014-1953. At issue in the case is the constitutionality of the non-economic damages cap set forth in R.C. 2315.18, as applied to the case of a fifteen year-old sexual assault victim. Also at issue is whether separate and distinct injuries constitute multiple “occurrences” for the purposes of the damages cap imposed by R.C. 2315.18.

Case Background

In 2008, Jessica Simpkins (Simpkins), then fifteen years old, was forced to engage in oral and vaginal intercourse with Pastor Brian Williams (Williams) during a counseling session at church. At the time, Williams had been serving as the senior pastor of Sunbury Grace Brethren Church (Sunbury Grace) and had been placed in that position by Delaware Grace Brethren Church (Delaware Grace).

Previously, while serving as a youth pastor at Delaware Grace, Williams twice engaged in sexual misconduct involving young girls. In the early 1990s, Williams supervised a youth trip where he engaged in inappropriate sexual conduct with a young girl. Shortly after the trip, the girl and her mother reported the incident to the elder board at Delaware Grace. Delaware Grace took no action. Then, in 2001, Williams inappropriately touched and made sexual comments to a young girl he was counseling. Again, the incident was reported, and again, Delaware Grace took no action. In 2004, Delaware Grace selected Williams to be the senior pastor at Sunbury Grace.

After incriminating himself on a phone tap with Simpkins, Williams pled guilty to two counts of sexual battery, and was sentence to two consecutive four year prison terms.

In 2013, Simpkins’ and her father’s claim against Delaware Grace for negligence in the hiring, retention and supervision of Williams went to trial. The jury found Delaware Grace negligent and awarded Simpkins $3,651,378.85 and her father Gene $75,000 for loss of consortium.

Applying Ohio’s damage cap in R.C. 2315.18, the trial court reduced Simpkins’ award for past and future non-economic damages to $350,000, leaving her with a total judgment of $500,000. Gene Simpkins’ award remained at $75,000.

The trial court then denied Delaware Grace’s motions for judgment notwithstanding the verdict and new trial, but did grant a remittitur, reducing Simpkins’ future economic damages to $60,000. As a result, Simpkins’ total judgment was reduced to $311,378.32.

Both parties appealed to the Fifth District. Pertinent to this appeal, in an opinion authored by Judge Gwin and joined by Judges Farmer and Delaney, the Fifth District overruled Simpkins’ assignment of error on the as applied constitutional challenges to the damages cap in R.C. 2315.18 by primarily relying the decision in Arbino, which rejected a facial challenge to R.C. 2315.18. Additionally, the Fifth District held that Simpkins suffered only one “occurrence” under the statute, as the assaults occurred within the same period of time and space, and without intervening factors.

In issues not before the high court in this appeal, the appeals court also agreed with Delaware Grace that the trial court had erred in failing to submit to the jury the issue of apportionment of liability between Delaware Grace and Williams, and agreed with Simpkins that the trial court had erred in not submitting the issue of punitive damages to the jury.

Key  Statutes and Precedent

R.C. 2315(A)(5) (“Occurrence” means all claims resulting from or arising out of any one person’s bodily injury.)

R.C. 2315.18 (B)

(2) Except as otherwise provided in division (B)(3) of this section, the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action under this section to recover damages for injury or loss to person or property shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the economic loss, as determined by the trier of fact, of the plaintiff in that tort action to a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum of five hundred thousand dollars for each occurrence that is the basis of that tort action.

(3) There shall not be any limitation on the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action to recover damages for injury or loss to person or property if the noneconomic losses of the plaintiff are for either of the following:

(a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system;

(b) Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.

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

Article I, Section 5 of the Ohio Constitution (The right of trial by jury shall be inviolate)

Article I, Section 16 of the Ohio Constitution (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.)

Arbino v. Johnson& Johnson, 116 Ohio St.3d 468 (2007) (Court rejected a facial challenge to R.C. 2315.18 in which the plaintiff alleged it violated the constitutional guarantees of due process, equal protection, trial by jury,  open courts and right to a remedy.)

Harrold v. Collier, 107 Ohio St.3d 44 (2005) (an as applied challenge to a statute recognizes that a statute might operate unconstitutionally under some plausible set of circumstances without rendering it wholly invalid.)

Madvad v. Russell, 9th Dist. Lorain No. 96CA006652 (1997) (there is no separate cause of action for sexual abuse in Ohio, and therefore, each instance of abuse is treated as an assault and battery.)

State v. Murphy, 2011-Ohio-3686 (where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each to each the defendant may be convicted of each separate offense.)

State v. Talty, 103 Ohio St. 3d 177 (2004) (a court has traditionally not decided constitutional issues unless and until absolutely necessary.)

Simpkins’ Argument

Simpkins’ primary argument is grounded in four, as applied, constitutional challenges to the damages cap in R.C. 2315.18. In particular, Simpkins argues that the non-economic damages cap, as applied to minors who are victims of sexual abuse, violates their rights to due process, equal protection, trial by jury, open courts and right to a remedy guaranteed by the Ohio Constitution.

Essentially, Simpkins argues that the cap on noneconomic damages unfairly discriminates against young tort victims who suffer no real economic losses, and no permanent physical injuries, but who suffer severe permanent non-economic injuries.

As a preliminary matter, Simpkins details the disproportionate effect of rape and sexual assault on young adults, as well as the special status of children in Ohio tort law. Simpkins then argues that the damages cap, as applied to minor victims of sexual abuse, violates the due process guarantee by failing to be rationally related to the public’s health, safety or welfare and is unreasonable and arbitrary.

Simpkins also asserts that the distinction between victims of sexual abuse and those tort claimants exempt from the cap violates her right to equal protection of the laws. While the Arbino court acknowledged that R.C. 2315.18 applies differently to different classes of injuries, it justified such a distinction on the basis that the injuries exempt from damage caps are catastrophic, and thus, present greater indicia of noneconomic damages. Simpkins argues, however, that simply because the victim of a sexual assault lacks significant, physical injury, does not mean her injury is any less catastrophic.

In claiming that the damage cap also violates her right to a jury trial, Simpkins states that the holding in Arbino on this issue was wrongly decided. In light of the large amount of damages awarded by the jury in her case, Simpkins argues that the jury clearly found her injuries to be permanent and catastrophic. By applying the damages cap, the jury’s fact finding function is rendered meaningless.

In her final as applied constitutional challenge, Simpkins argues that R.C. 2315.18 violates her right to open courts and to a remedy. While the jury had originally awarded her a sum fit to compensate her for her injuries, it has been reduced to 1/10th this amount by the damage cap. Then, it was reduced even further by both remittitur and seven years of litigation expense. As such, Simpkins argues, she has been denied a meaningful remedy.

Simpkins concludes by arguing that even if the damage cap in R.C. 2315.18 is constitutional as applied to her, she should be able to recover for two “occurrences” under the statute.  Just as two separate and distinct accounts of sexual battery constitute two separate criminal counts, it follows that they be treated as two separate tort actions, or occurrences.

Delaware Grace’s Argument

The main thrust of Delaware Grace’s argument is that the issues raised by Simpkins are matters of public policy, and as such, should be left to the discretion of the legislature, not the courts.

Building off this foundational separation of powers argument, Delaware Grace argues that Simpkins’ constitutional challenges should be dismissed because resolution of those issues may not resolve this case. After all, the Fifth District’s reversal of both the trial court’s decisions to not allow the jury to apportion fault between Delaware Grace and Williams, and to not allow Simpkins’ claim on punitive damages means that the case will go back to trial on both liability and damages, regardless of the Supreme Court of Ohio’s decision.

However, Delaware Grace also refutes Simpkins’ as applied constitutional challenges to the damages cap in R.C. 2315.18 by relying on the Supreme Court of Ohio’s decision in Arbino v. Johnson & Johnson. Noting that the Court has already rejected a facial challenge to R.C. 2315.18 in Arbino based on each of the constitutional provisions asserted by Simpkins, Delaware Grace argues that the Court should similarly reject Simpkins’ as applied challenge since Simpkins’ damages are “nearly identical” to those suffered by other tort claimants. While Delaware Grace rebuts each of Simpkins’ as applied constitutional challenges, it does so primarily by reiterating the holdings set forth in Arbino.

Finally, Delaware Grace argues that for purposes of the damages cap imposed by R.C. 2315.18, Simpkins’ rape by Williams constituted a single “occurrence.” While Simpkins was forced to engage in both oral and vaginal intercourse, the entire incident occurred within the same confined area and within a very short time, thus causing a single, indivisible injury.

Simpkins Proposed Proposition of Law 1

R.C. 2315.18 violates the constitutional rights to due process of law, equal protection of the laws, trial by jury, and open courts and a remedy guaranteed by the Ohio Constitution as applied minors who are victims of sexual abuse.

Simpkins Proposed Proposition of Law 2

Separate and distinct acts of sexual battery constitute separate “occurrences” for purposes of applying the damages cap for non-economic losses in R.C. 2315.18.

Delaware Grace’s Proposed Counter Proposition of Law 1

A court should decide issues of constitutional law only when absolutely necessary to resolve the case before it. State v. Talty, 103 Ohio St. 3d 177, 2004-Ohio-488, 814 N.E.2d 1201, approved and followed.

Delaware Grace’s Proposed Counter Proposition of Law 2

When a court is asked to find a legislative enactment unconstitutional on an “as applied” basis, there must be an adequate factual record to support that challenge.

Delaware Grace’s Proposed Counter Proposition of Law 3

R.C. 2315.18 is not unconstitutional “as applied” to a minor victim of sexual assault who suffers emotional trauma which does not permanently prevent her from being able to independently care for herself or perform life-sustaining activities.

Delaware Grace’s Proposed Counter Proposition of Law 4

For purposes of the damages cap imposed by R.C. 2315.18, it is the conduct of the Defendant toward the Plaintiff that determines the number of “occurrences,” not the number of separate and distinct injuries sustained by the Plaintiff.

Delaware Grace’s Proposed  Counter Proposition of Law 5

In a case where the Plaintiff is a victim of two separate instances of sexual penetration, both of which occur within a very short period of time, in a confined geographic space and without any intervening factor, there is but one “occurrence” for purposes of the limitation on damages imposed by R.C. 2315.18.

Amici In Support of Simpkins

Amicus, National Center for Victims of Crime (NCVC), is a nonprofit organization dedicated to improving the lives of victims of crime, their families, and communities. Like Simpkins, NCVC stresses the arbitrariness of  the statute’s distinction between tort claimants exempt from damage caps and victims of sexual assault who suffer similarly catastrophic injuries.

Amicus, Ohio Association for Justice (OAJ), is a statewide association of lawyers dedicated to protecting constitutional rights and preserving access to the civil justice system. OAJ likewise stresses the irrationality of the damage cap as applied to minor victims of sexual abuse by focusing on its increasing prevalence and the pervasive, life-long damage it inflicts.

Both NCVC and OAJ endorse the Simpkins’ two proposed propositions of law.

Amici In Support of Delaware Grace

Amicus, Academy of Medicine of Cleveland and Northern Ohio (AMCNO), is a nonprofit, medical association of physicians in northern Ohio. AMCNO argues that while Simpkins presents her challenge to R.C. 2315.18 as an “as applied” challenge, she is really making a facial challenge. Since the facial challenge to R.C. 2315.18 was already rejected in Arbino, there is no new issue presented here. Moreover, AMCNO argues that even if a valid as applied challenge is presented, the analysis is essentially the same and so the constitutional challenge of R.C. 2315.18, as applied to Simpkins, should also be rejected. AMCNO puts forth the following proposed counterpropositions of law:

AMCNO Proposed Counter Proposition of Law 1

A challenge to a statute on an as-applied basis employs the same constitutional tests as those applied to facial challenges and because R.C. 2315.18 has already been found to be constitutional on its face, the only grounds that remain for an as-applied challenge are those based on due process and equal protection.

AMCNO Proposed Counter Proposition of Law 2

Separate acts that are part of a continuing course of negligent conduct and result in any one plaintiff’s bodily injury are one occurrence under R.C. 2315.18(B)(2).

Amici, Ohio Alliance for Civil Justice and Ohio Association of Civil Trial Attorneys, both organizations dedicated to comprehensive tort reform measures, filed a joint brief in support of Delaware Grace. Amici urge that Simpkins’ as applied constitutional challenge is an attempt to circumvent the legislative process by creating a new exception to the damages cap. Like Delaware Grace, Amici argues that Simpkins’ constitutional rights have not been violated by the cap and point to the statute’s legislative history and Arbino to support its argument.

Student Contributor: Danielle List

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