Unexpected Shift on Tort Reform May Foreshadow a Changing Ohio Supreme Court

tort reform_jbartonContrary to the predictions of most observers, the Supreme Court of Ohio has once again agreed to consider a constitutional challenge to a key provision of Ohio's tort reform regime.

Enacted in 2005, Senate Bill 80 instituted a host of tort reforms which legislators hoped would deter frivolous lawsuits, eliminate unpredictability and disparity in jury verdicts, and promote Ohio's economic growth.  A key feature of the reforms was the imposition of a limit, or "cap," on compensatory damages for noneconomic loss – what many people refer to as "pain and suffering" damages.  While there is no cap on the amount of purely economic losses a plaintiff can recover, Ohio plaintiffs are limited to recovering between $250,000 and $500,000 in noneconomic damages (though there are other exceptions to the cap where a plaintiff suffers certain kinds of physical injuries).

The Supreme Court of Ohio has twice accepted constitutional challenges to the caps on noneconomic damages. In both cases, the caps were upheld as constitutional.

In 2007, the Court rejected an argument that the statutory cap was facially unconstitutional in a products liability case called Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420.  More recently, in a negligent supervision case called Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, a divided Court again ruled that the caps were constitutional as applied to minor victims of sexual assault.  Both Arbino and Simpkins had argued that the cap violated the Ohio Constitution by infringing the right to trial by jury, the right to a remedy, due process, and equal protection.

In a move that surprised many, in July 2021 the Court agreed to accept an appeal once again challenging the constitutionality of the statutory cap.  The appeal was accepted with the bare minimum four votes, comprised of the Court's three Democratic justices and Republican Chief Justice Maureen O'Connor.  Republican justices Pat DeWine, Pat Fischer, and Sharon Kennedy each dissented.

This most recent appeal, captioned Brandt v. Pompa, Case No. 2021-0497, details gut-wrenching facts about the horrific, repeated acts of sexual assault Plaintiff Brandt was subjected to as a minor at the hands of her friend's father.  A jury awarded plaintiff $20 million in noneconomic "pain and suffering" damages, but the award was subsequently reduced to $250,000 as a result of the statutory cap.  Though her damages for non-economic damages were capped, Brandt was also awarded over $100 million in punitive and other damages.  Like Arbino and Simpkins, Brandt now argues that the cap violated her right to a trial by a jury, the right to a remedy, Ohio's due process clause, and Ohio's equal protection clause.  Brandt contends that the statutory cap is both facially unconstitutional and unconstitutional as applied to her and other minor victims of sexual assault.

The Brandt case is one to watch for a number of reasons. Most obviously, a decision that the statutory cap is unconstitutional could upend what has now become a well-settled framework for civil litigation in Ohio, thus exposing civil defendants to unpredictable, and potentially larger jury verdicts.

The Brandt case is also worth watching, however, because of what it might reveal about the balance and future of the Court.  Between the high number of appeals each year, the Court's traditional deference to precedent and historically pro-business bent, and the fairly recent decisions in similar cases Arbino and Simpkins, the decision to accept the Brandt case at all is surprising at first glance. Even more intriguing is the fact that Chief Justice O'Connor, who voted to dismiss the Simpkins case as having been improvidently accepted in 2016, voted with the Court's three Democrats to accept Brandt.  The evolving makeup of the Court is also worth noting here. Simpkins was authored by then-Justice Judith French, a Republican who was subsequently unseated in 2020 by Democrat Jennifer Brunner, who is now running to replace term-limited Chief Justice O'Connor.

With oral argument in Brandt scheduled for March 30, 2022, all eyes – including ours – will be on the Court for any sign of an impending shift on tort reform and, perhaps, the future jurisprudence of the Ohio Supreme Court.  Look for future blog posts where Faruki will continue to explain developments in the case.

About The Author

Joseph Barton | Faruki Attorney