“It’s déjà vu all over again.” Yogi Berra.
On December 14, 2016, the Supreme Court of Ohio handed down a merit decision in Simpkins v. Grace Brethren Church, Slip Opinion No. 2016-Ohio-8118. At issue in the case was an as-applied constitutional challenge to the caps on noneconomic tort damages set out in R.C. 2315.18(B). In another fractured decision from the high court, in an opinion written by Justice French and joined in full only by Justice Kennedy, the court rebuffed the challenge and upheld the caps. The court also held the case involved only a single occurrence for purposes of applying the caps. Justice Lanzinger concurred in judgment only, with a separate opinion. Chief Justice O’Connor and Justice O’Donnell would dismiss the case as improvidently allowed. Justice Pfeifer dissented, with an opinion. Justice O’Neill also wrote a dissent, which Justice Pfeifer joined. The case was argued on December 15, 2015.
In March of 2008, when Jessica Simpkins was 15 years old, she was vaginally and orally raped during a counseling session by Brian Williams, in his office. Williams was then senior pastor at Sunbury Grace Brethren Church (“Sunbury Grace”). Williams ultimately pled guilty to two counts of sexual battery, and was sentenced to two consecutive four year prison terms.
Before he was named senior pastor of Sunbury Grace, Williams had been employed by Grace Brethren Church of Delaware Ohio (“Delaware Grace”) as a youth pastor and then as associate pastor. 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 from another Grace Brethren Church. While Williams denied any impropriety, he ultimately formally apologized to the girl and her mother, and his church superior felt the accusations against Williams had been resolved. Then in 2002, Williams inappropriately touched and made sexual comments to a young girl he was counseling. Darrell Anderson, Williams’ supervisor at the time, met with Williams to tell him how inappropriate his conduct was, but did not report Williams’ conduct to any Church higher-ups. In the fall of 2004, Williams became senior pastor of Sunbury Grace with the help of Delaware Grace.
Jessica Simpkins and Her Father File Suit
Jessica Simpkins (“Simpkins”) and her father Gene Simpkins (collectively, “appellants” or “the Simpkinses”) sued Sunbury Grace, Brian Williams, Delaware Grace, and Darrell Anderson in the Ross County Court of Common Pleas. The Simpkinses settled their claims against Sunbury Grace for $90,000, then dismissed their case without prejudice. They then re-filed their claims against Delaware Grace and Darrell Anderson in the Delaware County Court of Common Pleas. Their claims for negligent hiring, retention, and supervision of Brian Williams went to the jury, which found Delaware Grace negligent and awarded Simpkins $3,651,378.85 in compensatory damages, which included $1378.85 for past economic loss, $150,000 for future economic damages, $1.5 million for past noneconomic damages and $2 million for future noneconomic damages. Gene Simpkins was awarded $75,000 for loss of parental consortium.
Applying the Damages Cap to the Jury Verdict
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 Simpkins’ future economic damages, reducing them to $60,000, allowing Simpkins to accept or reject the remittitur after the appeals of the case are exhausted. Both sides appealed.
The Fifth District overruled the 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 v. Johnson & Johnson, which rejected a facial challenge to R.C. 2315.18. The Fifth District agreed with the Simpkinses 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 Jessica Simpkins suffered only one “occurrence” under the statute, as the rapes occurred within the same period of time and space, and without intervening factors.
The Supreme Court of Ohio accepted jurisdiction on two issues-the as-applied constitutional challenge to R.C. 2315.18(B)(2), and the question of whether two distinct acts of sexual battery constituted separate occurrences subject to separate damages caps.
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) (Compensatory Damages Caps)
(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.)
Benjamin v. Columbus, 167 Ohio St. 103, 146 N.E.2d 854 (1957), paragraph five of the syllabus (a legislative enactment will be deemed valid on due process grounds if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and if it is not unreasonable or arbitrary.)
Clements v. Fashing, 457 U.S. 957 (1982). (Legislative classifications for equal protection analysis are set aside 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.)
Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377 (A party raising an as-applied constitutional challenge must prove by clear and convincing evidence that the statute is unconstitutional when applied to an existing set of facts.)
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.)
Morris v. Savoy, 61 Ohio St.3d 684, 576 N.E.2d 765 (1991). (Finding there to be no rational connection between damage awards in excess of caps and malpractice-insurance rates and thus concluding that statutory caps on general damages in medical claims, enacted as a means of reducing soaring malpractice-insurance rates, violated due course of law.)
Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291 (The General Assembly has the authority to determine what causes of action the law will recognize, to alter the common law by abolishing, defining or limiting those causes of action, and to determine what remedies are available.)
State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156. (The Ohio Constitution provides a juvenile a broader right to counsel than that afforded by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.)
State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512 (Unless a law challenged on due-process grounds restricts the exercise of a fundamental right, courts apply a rational-basis test, and the law is constitutional if it is reasonably related to a legitimate governmental interest.)
State v. Mole, 2016-Ohio-5124 (The Ohio Equal Protection Clause affords broader protections than the federal Equal Protection Clause for certain sexual battery offenses.)
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus (A prior decision of the Supreme Court may be overruled where (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 create an undue hardship for those who have relied upon it.)
As Justice O’Donnell put it in one of his comments during argument, “[b]ut Arbino has already gone through the rational basis test and has said this statute is constitutional as to everyone.”
The lead opinion rejected the as-applied constitutional challenge to the noneconomic damages cap, for the same reasons as the court rejected the facial challenge in Arbino, with some additional analysis on the due course of law challenge. And the lead opinion found the assault on Simpkins was one occurrence, not two, for the application of the cap. Justice O’Neill did not dissent on this point, and Justice Pfeifer joined his dissent, so the “one occurrence” issue commands a majority.
Appellants argued that as applied to minors who are victims of sexual assault, R.C. 2315.18 violated the constitutional rights to trial by jury, open courts and a remedy, due process, and equal protection. Although their propositions of law mention both the U.S. and the Ohio Constitutions, their arguments related solely to the Ohio Constitution.
Lead opinion author French begins by noting that the court has already rejected facial challenges to R.C. 2315.18 on the same grounds the appellants alleged in their as-applied challenges. Nevertheless, for 29 paragraphs, French painstakingly goes through and rejects each challenge.
The jury trial challenge was summarily rejected on the basis of Arbino. French notes that appellants “do not offer any basis for avoiding stare decisis.” It is worth mentioning here that in Arbino, Justice O’Donnell dissented from the majority view on the jury trial issue, writing, “I am of the view that the cap on noneconomic damages established by R.C. 2315.18 violates the right to a jury trial as provided by Section 5, Article I of the Ohio Constitution.” But in this case, he voted to dismiss the case as improvidently accepted.
Open Courts and Right to Remedy
As to open courts and right to a remedy, French notes that many types of damages are still available to plaintiffs—unlimited economic damages, up to $350,000 in noneconomic damages, and punitive damages—all meaningful remedies. “As with their right to trial by jury, appellants do not demonstrate that R.C. 2315.18 affects Simpkins differently than it does any other tort plaintiff,” French wrote. The statute does not prevent her from pursuing a claim, nor does it wipe out her jury verdict.
Due Course of Law
Due Process is a French favorite, and she spends the most time on this challenge. This is the most significant argument appellants made, which their lawyer had a very hard time articulating at oral argument, and needed help from his opponent in making clear. The Simpkinses argue that the cap on noneconomic damages as applied to minors who are victims of sexual assault (or any other minor victims, for that matter) unfairly discriminates against this class of torts victims. First of all, minor victims rarely have significant economic injuries (which are not capped). But the gist of the Simpkins’ argument here is that while there is no cap on noneconomic damages for those suffering catastrophic physical injuries as defined in R.C. 2315(B)(3), (and which Simpkins clearly did not have), there is no comparable exception to the cap for equivalent nonphysical injuries, such as those Simpkins alleges that she suffered.
French rejects the due process argument. First, since no fundamental right is involved, rational basis review is required. French defers to the previous legislative findings that noneconomic damages are subjective and “easily tainted by irrelevant considerations,” and harm the economy. So the caps bear a real and substantial relation to the general welfare of the public. We’ve been through all this before.
The second prong of rational-basis review asks whether the challenged statute is arbitrary or unreasonable. French notes that when statutory caps on general damages in medical claims were invalidated in Morris v. Savoy, finding it arbitrary and irrational to impose the costs of the intended public benefit on those most severely injured, the legislature addressed that concern by allowing unlimited noneconomic damages for those suffering catastrophic physical injuries. The court already said in Arbino that it was ok to distinguish between plaintiffs who suffered catastrophic physical injuries and those who suffered other kinds of injuries. “In the end, R.C. 2315.18 does not affect Simpkins any differently than it affects any other victim whose injuries do not fall within the R.C. 2315.18(B)(3) exceptions to the damage caps,” wrote French.
The Fifth District Court of Appeals acknowledged in its decision that “there may be nonphysical injuries the effects of which approximate those listed in R.C. 2315.18(B)(3),” and that it might be arbitrary and unreasonable to subject all nonphysical injuries to a damages cap. But French notes that, while not downplaying them, the record showed that Simpkins’ noneconomic injuries did not rise to that level. “While we do not doubt the reality and seriousness of Simpkins’ emotional and psychological injuries as a result of Williams’ conduct, Simpkins’ noneconomic injuries do not meet the “extreme qualifications” the law requires in order to avoid the operation of the damages caps in R.C. 2315.18(B)(2),” French concluded.
No go here, either. Addressing the same arguments under equal protection rational-basis review, French again finds the physical/nonphysical injury classification rationally related to the legitimate government interest of “improving the state’s civil justice system and its economy.”
French wrote, “Even if we accept appellants’ characterization of Simpkins’s injuries as catastrophic, the General Assembly’s determination that the types of physical injuries listed in R.C. 2315.18(B)(3) offer more concrete evidence of noneconomic damages provides a rational basis for limiting noneconomic damages that are not accompanied by those types of serious physical injuries.”
French acknowledges that there may be a case in which application of the statutory damages cap would prove unconstitutional, but it isn’t this one.
Only One Occurrence, So Only A Single Cap Applies
The court also found that the two rapes were a single occurrence under the plain language of the statute, because they occurred within a short period of time, in a confined space, with no intervening factors, and no separate criminal intent or separate injury. Thus a single damages cap was properly applied.
Only Justice Kennedy agreed with the entire opinion in full.
Justice Lanzinger’s Separate Concurrence: The Battle of New Judicial Federalism Continues
In the lead opinion, in discussing the Ohio Constitution’s Due Course of Law provision, Justice French noted that the court had recently “…held that the Ohio Constitution’s “due course of law” provision afforded a juvenile broader right to counsel than that afforded by the Due Process Clause of the United States Constitution,” citing State v. Bode. Bode was authored by Justice Lanzinger, and Justice French wrote a blistering dissent in that case. French notes that Simpkins did not try and argue for greater protections under the Ohio Constitution than under the federal due process clause, and had acknowledged that the two clauses are equivalent. And likewise, in the section on Equal Protection, French noted that in Arbino the court had interpreted Article I Section 2 of the Ohio Constitution to be the equivalent of the federal Equal Protection Clause, but that recently, in State v. Mole,(authored by the Chief) the court had found greater protection under the Ohio Equal Protection clause than under the federal analogue. French again notes that Simpkins did not argue for greater protection under the Ohio Constitution.
In her separate concurrence, Lanzinger wrote that she respectfully declined to “join the court’s constitutional analysis.” She seemed to feel the lead opinion was dismissive of Bode’s finding of greater protection under Ohio’s due course of law provision. She re-emphasized the now totally settled view that the Ohio Constitution contains additional protections not found in the U.S. Constitution, citing Arnold v. Cleveland, the 1993 case in which Ohio joined the new judicial federalism movement. Lanzinger then went on to cite examples of greater protections under the Ohio Constitution for warrantless minor misdemeanor arrests, self-incrimination, eminent domain, and protection for juveniles against double jeopardy. In the end, the reason she joined the judgment of the lead opinion, is because she did not find that the appellants had presented a compelling argument for greater protections for minors asserting tort claims than exists under federal law. Of course, most tort law is state law, notes the retired torts prof.
Justice Pfeifer’s Dissent.
What a shame that the court is losing this unique voice:
“Tort reform,” however misguided and unconstitutional, was designed to protect doctors and corporate interests. See Arbino v. Johnson & Johnson, 116 Ohio St.3d. 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 163 (Pfeifer,J., dissenting). Today, we learn that “tort reform,” not surprisingly, had unintended consequences. It turns out that “tort reform” (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of the damages they cause—even if they rape a child. It is past time for the General Assembly (and this court) to reconsider “tort reform” and return the authority to determine damages to juries, where it rightfully and constitutionally belongs.”
Justice O’Neill’s Dissent
Justice O’Neill believes only a jury can decide the amount of damages in a tort case. The legislature does not have the power to limit damages set by a jury—only the people can do that by amending the Constitution. Justice Pfeifer found the same thing in his dissent in Arbino, which O’Neill quotes from. O’Neill would reinstate the damages awarded by the jury in this case, with no caps applied. Justice Pfeifer joined this dissent.
None. This seems to be the new normal.
After the argument, I wrote that it looked “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?”
Once the court held the tort reform statute facially constitutional in Arbino, Jessica Simpkins had an almost impossible task cut out for herself. I think she has a valid general point that it isn’t fair to cap noneconomic damages for a catastrophic nonphysical injury when certain physical catastrophic injuries aren’t capped. But as traumatic as what happened to Simpkins was, the record seems to suggest that fortunately, she has not had any counseling since 2008, has gotten good grades in college, and is employed full time—that she was getting on with her life pretty well despite it all. Who knows if that is actually true, but that is the record evidence, which is all the court can go by. But I think with a different set of facts, with injuries equivalent to those in R.C. 2315.18(B)(3), the cap on noneconomic damages could be struck down, as the Fifth District suggested.