On December 16, in Brandt v. Pompa, a divided 4-3 Ohio Supreme Court found the state’s cap on noneconomic damages in personal injury cases to be unconstitutional as applied to a claim by a victim of childhood sexual assault against the convicted perpetrator. In prior cases, the court held the cap constitutional on its face.  Plaintiff interests had hoped the heinous facts in Brandt would lead the court to invalidate the cap in its entirety, possibly even with sweeping language that plaintiff lawyers could utilize to try to strike down other civil justice reforms. That did not happen. The court’s ruling is much narrower, though the extent of a new court-created exemption to the statutory limit will be clarified in future cases.

Plaintiff was sexually abused at ages eleven and twelve by the defendant, a family friend, who was convicted of multiple felonies involving her and other victims. In the civil suit, plaintiff obtained a verdict including $14 million in compensatory damages for abuse she suffered before the cap took effect, $20 million in noneconomic damages for abuse after the cap took effect, and $100 million in punitive damages. Ohio’s noneconomic damages cap exempts specified permanent physical injuries, but does not exempt severe psychological harms. The trial court, following precedent, reduced the capped portion of the noneconomic damage award to $250,000. The Ohio Supreme Court restored the $20 million noneconomic damage award.

The majority opinion, written by Chief Justice Maureen O’Connor, said that allowing full recoveries by individuals with permanent and substantial physical injuries, while capping awards for a plaintiff such as Brandt with “catastrophic psychological injury,” violates the due-course-of-law guarantee of the Ohio Constitution. In both situations, individuals have experienced pain and suffering that is “traumatic, extensive, and chronic.” The majority opinion concludes, however, with a statement that tightly confines the circumstances under which the cap is unconstitutional as applied. The court held the cap 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.

(Emphasis in original).

Plaintiff interests are likely to argue that the statutory cap can no longer apply to permanent and severe psychological injuries. The court’s reasoning and its conclusion, however, suggest that the decision may be confined to “extremely uncommon” circumstances in which: (1) the plaintiff was a child at the time of injury; (2) the defendant was convicted of an intentional criminal act; and (3) the plaintiff experienced a permanent and severe psychological injury as a result of the intentional criminal act.

Strong dissenting opinions argued that the majority invaded the province of the General Assembly by judicially exempting a category of cases from the cap’s application. Justices Sharon Kennedy, Patrick Fischer, and R. Patrick DeWine said in their dissent:

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 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.

The Ohio Supreme Court will likely be more restrained beginning in 2023. Chief Justice O’Connor leaves the court on December 31, 2022. Age limits blocked her from seeking reelection. Chief Justice O’Connor has sided with Democrats on key issues in recent years, including in Brandt. In November, Republican Justice Kennedy won her bid to be the next Chief Justice; incumbent Republican Justices Fischer and DeWine won their bids for reelection. When Justice Kennedy moves up to Chief Justice, Governor Mike DeWine will likely appoint a Republican to serve the remainder of her current term. That means that Republicans will continue to have a 4-3 majority on the court, including a new justice who may vote with Justices Kennedy, Fischer, and DeWine with respect to the cap (in contrast to Chief Justice O’Connor). The new majority may take a restrained approach to broadly exempting psychological injury claims from the cap.

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