What’s On Their Minds: 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.

“But Arbino has already gone through the rational basis test and has said this statute is constitutional as to everyone,” Justice O’Donnell, to plaintiffs’ counsel.

On December 15, 2015, the Supreme Court of Ohio heard 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, 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, Appellant Jessica Simpkins, then fifteen years old, was forced by Pastor Brian Williams to engage in oral and vaginal intercourse with him during a counseling session at church. At the time, Williams had been serving as the senior pastor of Sunbury Grace Brethren Church and had been placed in that position by Appellee 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 sentenced 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 parental consortium.

After setting off an amount related to the settlement with Sunbury Grace, the trial court applied Ohio’s damage cap in R.C. 2315.18, and 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. In response to post-trial motions, the judge granted a remittitur on Jessica’s future economic damages, reducing them to $60,000, allowing Jessica to accept or reject the remittitur after the appeals of the case are exhausted.  Both sides appealed.

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 on the decision in Arbino, which rejected a facial challenge to R.C. 2315.18. The Fifth District agreed with Simpkins that the trial court had erred in not submitting the issue of punitive damages to the jury. The Fifth District 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. Finally, the Fifth District held that Simpkins suffered only one “occurrence” under the statute, as the rapes occurred within the same period of time and space, and without intervening factors.

Only the as-applied challenge to R.C. 2315.18, and the number of occurrences are involved in this appeal.  The court did not accept jurisdiction on the other issues. Read the oral argument preview here.

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.

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.)

At Oral Argument

Justice Pfeifer was absent from the oral argument, but the Chief announced he will be participating in the decision in the case.  Given the way the argument unfolded, I suspect plaintiff’s counsel would have been happier had he been there, given his dissent in Arbino.

Arguing Counsel

John K. Fitch, the Fitch Law Firm, Columbus, for Appellants Jessica and Gene Simpkins

William C. Curley, Weston Hurd LLP, Columbus, for Appellee Delaware Grace Church

Simpkins’ Argument

Although both Jessica Simpkins and her father are appellants, as used here, Simpkins, or the plaintiff, will refer to Jessica.

The noneconomic damages cap is unconstitutional as applied to plaintiff and minor victims of sex abuse. The statute violates several constitutional provisions, including due course of law and due process, equal protection, right to a remedy, and right to trial by jury. Applying the rational basis test, the state has no legitimate public interest in protecting those who would rape a child, or those who act in concert with, aid and abet and conceal that misconduct. There is simply no basis to support the notion that somehow capping damages for sexually abused minor children relates to the economy of the state of Ohio or somehow fosters economic growth.

Arbino is not precedent for this particular set of facts. This court has historically recognized special consideration be given to children, and that sex abuse is a profound and devastating issue in our society. The nature and character of sexual abuse of a child is different from other tort claims.

The court of appeals improperly acted as a super jury and disregarded the findings of the jury. Any new trial here should be limited solely to the apportionment of damages. Issues of liability, causation, and damages have already been determined. And the plaintiff must still determine whether to accept the remittitur on future economic damages.  Finally, by statute, the question of punitive damages must be by separate trial.

Alternatively, if the court finds that the statutory damage cap does apply, the court should find that two rapes occurred here, and apply two separate damages caps.

Church’s Argument

First, this court should reaffirm the well-established principle that cases should not be decided on constitutional grounds unless that is necessary to determine the outcome of the case. In the procedural posture this case is in, that is unnecessary. If the court does address the constitutional challenge, it should be rejected for several reasons. The record in the case does not support an as-applied challenge. Most of the issues raised in that challenge have already been decided in the Arbino case.  With respect to the due process and equal protection arguments, the only ones that can legitimately be made, plaintiffs have not met the burden of proving unconstitutionality.

The legislature had a number of legitimate reasons for enacting caps on non-economic damages. They are unpredictable, difficult to evaluate, and in some cases they lead to consideration of improper factors, such as the reprehensibility of the defendant’s conduct. The Church believes that is what happened with this verdict, and believes that it is entitled to a new trial on all issues in this case, in order to be able to apportion damages properly between the pastor and the church as the appeals court ordered.

There may be a case in which a plaintiff who suffers a nonphysical injury can show that it is catastrophic, and that it would be an equal protection violation not to apply the exception to the damages cap in that circumstance, but that was not this plaintiff. There was no evidence Simpkins could not care for herself. She played basketball, attended college and got good grades. There is certainly no evidence that she cannot perform life sustaining activities. The appellants have not laid out a proper record to support an as applied challenge, which is very much factually dependent.

Finally, the court should interpret the occurrence language in R.C. 2315.18 so as not to allow Jessica Simpkins to recover double damages.

What Was On Their Minds

Didn’t We Decide all this in Arbino?

Weren’t all the issues raised in the constitutional challenge decided in Arbino, asked Justice O’Donnell? Including due process and equal protection issues? Is this case a collateral attack on Arbino? Is it res judicata based on Arbino? Is there some other set of facts that Arbino doesn’t cover? He added that it seemed to him that sex abuse tort claims were covered by the statute.

The arguments being made for the unconstitutionality of the treatment of the plaintiff are basically the same type of arguments that were addressed in Arbino, commented Chief Justice O’Connor.

The Legislature’s Role

Didn’t the legislature take into account the reasons for imposing caps on noneconomic damages, asked Chief Justice O’Connor, in a key question of the day. Is there any proof they did not?

This court has said that the General Assembly has determined there is a financial benefit to Ohio in having this cap, and there is a legitimate government interest in that. That has been determined by this court, commented Justice O’Donnell.

Later, a lengthy, very sharp exchange occurred between Justice O’Donnell and Simpkins’ counsel. Here is a sample:

Justice O’Donnell:

“Aren’t you really better off making your argument to members of the General Assembly, and saying we know you have damage caps, but you should carve out an exception for this category of individuals, rather than have us try to do it under the umbrella of the Ohio Constitution?”

Plaintiff’s Counsel:

“I don’t believe so, your honor.”

Justice O’Donnell:

Wasn’t a legislative determination made in this instance?

Plaintiff’s Counsel:

“The legislature determines policy, your honor.”

Justice O’Donnell:

“Yes and the policy they’ve set is that damage caps apply to every tort claim, and if you want something not to apply, we can’t take it out.”

Plaintiff’s Counsel:

“Actually, they don’t apply to every tort claim, your honor. There are exceptions within the statute.”

Justice O’Donnell:

“Precisely. And this isn’t one of them.”

Plaintiff’s Counsel

“That’s correct, it is not one of them.”

Justice O’Donnell:

You need to go to the General Assembly and have them incorporate that into the exceptions in that statute. Isn’t that a more reasonable approach? Then we’re not legislating from the bench.”

Plaintiff’s Counsel:

“I disagree your honor. Jessica Simpkins, as all citizens of the state, have constitutional rights. The legislature decides policy. I agree with your honor on that issue. But where there is a violation of the constitution, it is this court’s right and duty to so declare the statute unconstitutional. And that’s our argument.”

Unconstitutional As Applied to Whom?

When talking about an “as applied” challenge, what is the category that the plaintiff fits into from a constitutional standpoint that segregates the plaintiff from all other claimants, asked Justice O’Donnell, as part of his relentless, staccato series of questions to Simpkins’ counsel. Unconstitutional as applied to whom? Since there are no constitutional categories for victims of rape, what is the constitutional basis of the category the plaintiff fits into? O’Donnell later asked defense counsel similar questions.

Application of the Damages Cap in this Case

Didn’t the court of appeals say it was not deciding that there could never be a case where the damage cap might not apply to a nonphysical injury, but in this case the evidence showed that despite there being the limited physical injury, when you look forward at how it affected her life, her ability to participate in sports, to go to college, they weren’t seeing a long-term injury, asked Justice French, in another key question of the day. Later she asked, why is it constitutional to require a physical injury?

You are arguing over damages, commented Chief Justice O’Connor. Was the plaintiff saying there is a constitutional reason why this case should fall outside of the cap statute? (answer: yes). But this does not fall within the statutory exception which would allow for the caps to be lifted, for extraordinary damages, she noted.

Was there a remittitur in the case, asked Justice O’Donnell? (answer: yes, to the future economic damages, which affects the calculation of noneconomic damages.) What happened to the remittitur, he later asked. (answer: plaintiff hasn’t made her choice on that yet.)

The Apportionment Issue

Didn’t the trial judge declare this statute unconstitutional, sua sponte, asked Justice O’Neill?

What Was Remanded?

In ordering the case to go back for apportionment, the amount of damages wouldn’t change, would it, asked Justice French? Later she asked if the appeal should simply be dismissed as improvidently accepted.

Justice O’Neill took strong issue with the assertion by defense counsel that the Church was entitled to a complete new trial, noting that while the appeals court held damages should have been apportioned, it said nothing about a complete new trial. Later, he asked whether anything was going back other than apportionment and punitive damages. (answer: possibly future economic loss.)

Was the Church arguing it was entitled to a complete new trial on liability or just the apportionment of damages, asked Chief Justice O’Connor? (the former, argued defense counsel.) Following up on this, Justice Lanzinger noted that the appeals court had only reversed in part, commenting that did not sound like a new trial on liability. But in the rebuttal portion of the argument, she asked plaintiff’s counsel how apportionment could be done without consideration of other issues in the case.

One or Two Occurrences?

Did the plaintiff ask the jury for two separate awards, one for each separate occurrence, asked Justice French? (answer: court would not allow that)

How it Looks from the Bleachers

To Professor Bettman

Like a win for the Church on the as applied constitutional challenge and the single occurrence issue.

Honestly, I’m not sure why the court took this case. It seems to me that all of this was hashed out in Arbino, which I, with my plaintiff’s heart, believe was wrongly decided, but where does that get us? For the record, the vote to take this case in was 4-3, with Justices O’Donnell, (no surprise there, after listening to his questions), Lanzinger and Kennedy voting nay.

This was a painful argument to watch.  While I am sure Simpkins’ lawyer is a fine trial lawyer, and clearly feels passionately for his client, he was not effective as an appellate advocate.  He would have been better letting amicus OAJ argue. In a brutal and protracted series of questions from Justice O’Donnell, Simpkins’ lawyer was unable to articulate the class of people to whom he felt the statute was unconstitutional as applied. He kept insisting the category was sexually abused minors, and Justice O’Donnell kept insisting that wasn’t a category. Later, in the defense portion of the argument, and in a moment of admirable professionalism, defense counsel answered that question, stating he’d like to help plaintiff’s lawyer out a bit.  He suggested it could be argued that it was a violation of due process and equal protection to make the distinction between catastrophic physical and emotional injuries for the purposes of applying the damages cap. (And I think this is a good argument still to be made some day,  in a case where  the record demonstrates a catastrophic emotional injury.)  Yet he did this without in any way compromising the position of his client, making two points that I think a majority of the justices are going to buy. First, because of unpredictability and difficulty of evaluation of noneconomic damages, the legislature had valid reasons for treating those without physical injury differently from those with physical injury, and the court accepted this in Arbino. Second, which may be the point around which the justices coalesce, this record simply does not demonstrate that Jessica Simpkins suffered a catastrophic, permanent emotional injury.  To the contrary, it demonstrates that she is doing well.

There was virtually no argument at all on the issue of whether this incident was one occurrence or two, but I think the court will consider this only one.

On the other hand, it isn’t going to be a perfect win for the Church.  The court of appeals ruled, in issues that weren’t before the court in this appeal, but will matter on remand, that damages had to be apportioned between Williams and the Church, and that the issue of punitive damages should have been submitted to the jury.  By statute, as plaintiff’s counsel pointed out in rebuttal, the latter must be tried separately.  But I don’t think the Church is going to get a complete new trial as defense counsel argued it should.  Technically, since the only issues before the court are the as-applied constitutional challenge and the occurrence issue, the court wouldn’t have to decide what happens on remand.  But from this argument, it is apparent the parties sharply disagree.  If the court decides to help with this, I think it will hold that the Church has already been found negligent and the amount of damages has been set, and the only thing that must happen is the apportionment of those damages.  Of course, that question cannot be answered in a vacuum—any jury will have to hear some evidence on that question in order to be able to make the apportionment. But the same will be true in the punitive damages trial.  It will probably be left to the trial court to decide how to handle this, but with a clear mandate that it is not to proceed with a whole new trial.

To Student Contributor Danielle List

Between talking over the justices and his generally seemingly disrespectful attitude, Simpkins’ counsel was very difficult to watch. With the exception of a single question by Justice French as to whether the jury was able to consider the number of occurrences, the rest of the argument related to the constitutional attacks on the non-economic damages cap.

Simpkins’ counsel’s bold statement that the legislature simply didn’t take sexually abused children into account when it adopted the damages cap spurned several questions from the bench. Justice O’Donnell, in particular, expressed his concern that Simpkins was asking for the court to override the legislature’s policy decision and legislate from the bench. In an extended and circular exchange, Justice O’Donnell valiantly tried to discern from Simpkins’ counsel the basis for the as applied constitutional challenge.  While counsel’s responses were indirect and confusing, it seems that his argument was essentially that the lack of a constitutionally protected class for sexually abused children has no bearing on the ability to maintain an as applied challenge.  Justice O’Donnell was clearly not convinced, though Simpkins’ counsel’s conclusory remarks didn’t give him much reason to think otherwise.

Delaware Grace’s counsel presented several lines of argument to the court, but spent the bulk of his time defending his argument that, given the procedural posture of the case, resolution of the constitutional issue is not necessary.  Several justices objected to the very premise of this argument by questioning whether the Fifth District remanded the case for a new trial, including liability, or just apportionment of damages between Williams and Delaware Grace. Despite several of the justices indicating that they thought otherwise, defense counsel was adamant that the Fifth District’s remand on apportionment also requires a new trial on liability.

Once the substance of the constitutional issues were addressed, it became clear that many of the justices agreed that this case was just a reiteration of Arbino. Delaware Grace received some pushback from Justice French as to why it is constitutional to require a physical injury in order to be exempt from the cap, but defense counsel’s response regarding legislative discretion seemed well taken by the bench. While he conceded that a distinction between catastrophic physical and non-physical injuries could potentially raise an equal protection issue (which was probably a better articulation of Simpkins’ argument than Simpkins’ counsel himself gave), he argued that such a problem is not present here as Simpkins has not suffered life-sustaining injuries.

Looks like a win for Delaware Grace. To use Justice O’Donnell’s characterization, it is likely the court will view this as a collateral attack to Arbino and simply apply stare decisis. In other words, Simpkins would have better luck pleading her case to the General Assembly.


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