Ohio Capital Journal [Columbus OH]
November 1, 2021
By Jake Zuckerman
State Supreme Court agrees to hear second challenge to law
Placing limits on the money juries can award to lawsuit winners was “urgently needed to restore balance, fairness and predictability” into Ohio’s court system, the authors of 2005 “tort reform” legislation wrote.
The absence of such maximums, they said, would hold the door for open runaway juries demanding corporations pay outrageous sums in legal disputes. Ohio businesses would face a competitive disadvantage to foreign competition, stifling development.
In the 15 years since Ohio lawmakers passed the tort reform legislation, the law yielded an unexpected use: stripping child rape victims of millions of dollars in legal damages.
Jessica Simpkins was 15 when her priest, who Delaware Grace Brethren Church knew had twice engaged in inappropriate sexual behavior with young women, raped her twice.
She filed a lawsuit against the church, and a jury awarded her $3.65 million. However, after applying the tort reform law, her $3.5 million in “noneconomic damages” was reduced to the statutory maximum — in this case, $350,000. She walked away with about $500,000, about 14% of what the jury said she deserved. The Ohio Supreme Court upheld the reduced judgment in a late 2016 decision.
Amanda Brandt hit the same brick wall. Starting when she was 11, her friend’s father, Roy Pompa, began to drug her, rape her, and record the dozens of instances of abuse over roughly 18 months for which he was criminally convicted, court records state.
Brandt — after wrestling with PTSD, addiction, a suicide attempt and homelessness — filed suit against Pompa. She was awarded $20 million in noneconomic damages for the abuse that occurred after the tort reform law took effect.
It was reduced to $250,000. Brandt still won millions in punitive damages (only available above the cap if the perpetrator is convicted of a felony) and noneconomic damages connected to abuse that occurred before the tort reform law took effect, but the precedent is daunting for other abuse survivors.
“The law in Ohio has the practical impact of basically limiting the tort recovery of minors who were sexually assaulted to $250,000 and whatever medical bills they have,” said Lucinda Finley, a law professor at the University of Buffalo who researches how damage caps affect women. “It has a huge, huge impact on that particular type of victim.”
The Ohio Supreme Court earlier this summer accepted the Brandt case for review.
The plain text of the 2005 law doesn’t mention sexual assault, and it’s unclear whether the law’s effect on child rape victims is the product of design or oversight. The 2005 law’s lead sponsor, Steve Stivers — now CEO of the Ohio Chamber of Commerce after service in Congress and the state legislature — declined interview requests through a spokeswoman.
Four co-sponsors of the 2005 bill still serve as lawmakers, all of whom declined to comment: Republican Sens. Jay Hottinger, Kirk Schuring and Tim Schaffer, and Rep. Jean Schmidt.
Only one current lawmaker who sponsored the 2005 law, Rep. Jim Hoops, R-Naploean, agreed to an interview. He said lawmakers passed the bill at the time out of fear that businesses wouldn’t want to relocate to Ohio given its legal climate. He said he thinks the law’s effect on child rape victims is product of an oversight but denied that supporters erred.
“I’m sure there’s instances that we were wrong, but to say it was a mess up or a screw up, I can’t say that,” he said.
‘The children are watching’
For Simpkins, tort reform was used against her twice.
First, it ripped millions of dollars from what the jury, who heard the evidence in court, determined she deserved.
Secondly, it determined she was only raped once.
Her attorneys argued, given that tort reform would likely max out her judgement at $350,000, that she was raped twice: orally and vaginally, both in the same interaction with her priest. Thus, she should at least be able to receive the maximum amount of damages for each occurrence.
Then-Ohio Supreme Court Justice Judith French, writing for the court’s majority, upheld lower court rulings and said a plain reading of the tort reform law undercuts Simpkins’ argument.
“Even if the vaginal and oral penetrations gave rise to separate tort claims, they would nevertheless both be part of a single occurrence under [the law] — as claims arising out of Simpkins’s indivisible injury,” French, now the director of the state Department of Insurance, wrote.
The court, citing an earlier ruling in a landmark product injury lawsuit, found that limiting victims’ potential awards doesn’t infringe on their constitutional right to trial by jury.
John Fitch, a Columbus attorney who represented Simpkins and now represents Brandt, disagreed.
“If the caps were a dollar, do you still have a right to a jury trial?” he said in an interview. “[Brandt] went from $20 million to $250,000. You don’t think that affects the right to a jury trial?”
In a blistering dissenting opinion, then-Supreme Court Justice Bill O’Neill said the law in this context is forcing a teenage rape victim into a “preordained formula” for damages. It removes power from juries, who know what victims suffered, and gives it to lawmakers, who do not.
“This child was raped in a church office by a minister, and a duly empaneled jury established an appropriate level of compensation for the loss of her childhood innocence,” he said. “We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing.”
Ohio’s tort reform law makes exemption to the maximum lawsuit winnings for people who are permanently deformed or disabled by an injury, or who become unable to care for themselves.
These exemptions, according to a three-judge panel in the Eighth District Court of Appeals ruling earlier this year, do not apply to Brandt because of her repeated sexual abuse. Her perpetrator was convicted of 17 counts of rape, five counts of kidnapping, 55 counts of pandering sexually oriented material involving a minor, and 21 counts of gross sexual imposition. Brandt was the victim in 34 of the counts, according to court documents. Recordings later obtained by police depicted Pompa masturbating and ejaculating on Brandt, and abusing her with a sex toy.
The court acknowledged Brandt’s ongoing PTSD, depression, anxiety and nightmares. It also noted her previous bouts with heroin addiction, attempted suicide and homelessness.
However, Brandt is now married, works as a waitress, and is working on obtaining a real-estate license. Given her apparent independence and what the court found to be a lack of clarity connecting Brandt’s current issues with her abuse, the court refused to waive the noneconomic damages ceiling.
“It is not clear that all of [Brandt’s] mental health issues and symptoms can be attributed to the sexual abuse,” the appellate judges wrote. “Because the evidence is equivocal, we cannot find that Brandt’s injuries meet the ‘extreme qualifications’ the law requires in order to avoid the operation of the damage caps.”
As lawyers for the Ohio Association to End Sexual Violence wrote in a supporting court brief, the law puts judges in the “unenviable and morally fraught” position of holding the subsequent success of rape victims against them in court.
Brandt is still entitled to the $14 million the jury awarded for abuse that occurred before tort reform took effect. And because her perpetrator was convicted of a felony, she’s entitled to the full $100 million in punitive damages, which are otherwise capped at twice the value of compensatory damages ($500,000 unless the victim is deformed or disabled by the injury).
The other $20 million was slashed down to a $250,000 judgement.
If the Supreme Court upholds the Brandt case, future child rape victims whose perpetrators escape criminal convictions are unlikely to ever wind up with more than $250,000 in court.
In October, Pompa hired as an attorney Marion Little, a fairly high-profile defense attorney who has recently defended a charter school and pharmacy benefit manager against claims of fraud from the state. Neither he nor a previous attorney representing Pompa responded to emails.
Reforming tort reform?
Rep. Kristin Boggs, D-Columbus, has tried since the Simpkins decision to eliminate the caps on damages for survivors of sexual violence. Her bills to that effect have gone nowhere.
The legislation has enemies in insurers who don’t want to risk higher payouts, business interests, and the Catholic Church (which has its own history of sexual abuse), several interviewed for this article said.
“My god, give these victims access to justice,” Boggs said in an interview.
Finley, a law professor, said, while she doesn’t know the specifics of how tort reform passed in 2005, its effect on rape victims is likely an oversight. Lawmakers were listening to big business and insurers fretting about products liability and medical malpractice.
However, she said citing any such kind of business interest in failing to change the law is simply offensive.
“There can’t be any rational connection between protecting pedophiles and creating a better business climate,” she said. “To even suggest that anyone would think there could be a connection between that is appalling.”
Fitch declined an interview with his clients, citing their exhaustion with years of appeals and media attention. He said the problem in the law has been clear since the Simpkins case was decided, yet lawmakers have opted against fixing it.
“Since 2013, they’ve known this is how the law works,” he said. “So why hasn’t there been a change?”
“Tort reform supposedly means improvement. That’s what reform means, improvement in the legal system. I don’t personally believe there’s any improvement here. It’s just special interest legislation to help big businesses and the insurance industry make more money.”