Ohio Supreme Court Strikes Damage Cap for Child Abuse Survivor: What Brandt v. Pompa Means for Injury Victims

Published January 26, 2023 · Ohio Supreme Court

A Cuyahoga County jury listened to a young woman describe how a family friend sexually abused her when she was 11 and 12 years old, and how that abuse shaped the next fifteen years of her life. The jury awarded her $20 million for her suffering. Then Ohio's damage-cap statute cut that award to $250,000.

On December 16, 2022, the Supreme Court of Ohio gave the jury's verdict back. In Brandt v. Pompa, Slip Opinion No. 2022-Ohio-4525, a 4-3 majority held that the cap is unconstitutional as applied to Amanda Brandt and others in her situation. On December 29, the Court denied the defendant's motion to reconsider. Since the Court upheld the cap in 2007, this is the first time an injured person has persuaded it that the cap cannot constitutionally be applied to her. Here is what the decision does, what it does not do, and why it matters to anyone with a serious injury claim.

The cap the Court was reviewing

Ohio law divides compensatory damages into two kinds. Economic damages are the losses with a receipt attached: medical bills, lost wages, future care. Noneconomic damages compensate for the human cost: pain and suffering, mental anguish, loss of enjoyment of life, disfigurement.

R.C. 2315.18(B)(2) caps noneconomic damages in most injury cases at the greater of $250,000 or three times the plaintiff's economic loss, with a ceiling of $350,000 per plaintiff and $500,000 per occurrence. The jury is never told about the cap; R.C. 2315.18(F)(2) forbids it. The judge simply reduces the award after the verdict.

There are two exceptions in R.C. 2315.18(B)(3). The cap does not apply when the injury is a "permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system," or a permanent physical functional injury that leaves the person unable to care for himself or herself. Notice the word "physical" in both. We explained those exceptions in our earlier post on the catastrophic-injury exception to Ohio's damage caps.

In 2007, in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, the Supreme Court upheld the cap as constitutional "on its face," meaning in general. A key reason was that the most catastrophically injured people fall within the exceptions and are not capped at all.

Amanda Brandt's case

Roy Pompa was convicted of more than 90 criminal counts, 34 of them involving Brandt, and sentenced to life in prison. Brandt later sued him. Because his guilt was established, the only trial question was damages.

The jury heard that Brandt went from an outgoing child to someone who struggled with nightmares, panic attacks, and severe anxiety; that she developed a heroin addiction and attempted suicide before getting sober; and that after 14 years of counseling she had been diagnosed with post-traumatic stress disorder and an anxiety disorder that her psychologist expected to persist. The jury awarded $20 million in noneconomic damages for the abuse that occurred after the cap took effect in April 2005 (along with separate awards for earlier abuse and punitive damages). The trial court applied the cap and reduced the $20 million to $250,000, and the Eighth District Court of Appeals affirmed. Our 2021 post on the appeals court decision described the case at that stage.

What the Supreme Court held

Writing for the majority, Chief Justice Maureen O'Connor focused on the gap in the statute. Brandt's injuries were catastrophic, but they were psychological, so she could not use the exceptions written for physical injuries. That removed the rationale Arbino had relied on. Because "those suffering catastrophic psychological injury" were left out, the Court could not say the law allowed full recovery for the most severely injured.

The Court went through the other justifications for the cap and found them lacking for this group. The legislature said the caps protect a system for handling claims of negligence and curb frivolous suits, but Brandt was hurt by intentional crimes, and a suit against her convicted abuser was anything but frivolous. As for business insurance costs, the Court observed that "the only beneficiary of the General Assembly's damages cap in this case is Brandt's abuser."

The holding is precise. R.C. 2315.18 violates the due-course-of-law guarantee of Article I, Section 16 of the Ohio Constitution as applied to people who were child victims of intentional criminal conduct and who sue the person found guilty of those crimes, to the extent the statute has no exception for permanent and severe psychological injuries. The jury's verdict was reinstated.

The Court also rejected the argument that Brandt's other awards, or the unlikelihood of collecting from a man serving a life sentence, made the cap harmless. Whether a judgment can be collected, the Court said, is irrelevant to whether the statute is constitutional.

What Brandt does not do

It is important to be straightforward about the limits. Brandt did not strike down the cap for everyone. In a typical car crash, fall, or other negligence case, R.C. 2315.18 still applies unless the injury fits one of the statutory exceptions. Three justices dissented, and the boundaries of the "similarly situated" group will be argued in future cases.

Some claims were never subject to this cap in the first place. Under R.C. 2315.18(H), the section does not apply to wrongful-death actions, to claims against the state in the Court of Claims, or to claims against political subdivisions (which have their own damages rules). Medical-malpractice claims fall outside this section too and are governed by separate law.

Why it still matters to injury victims

Brandt matters beyond its facts for three reasons.

First, caps are not untouchable. For fifteen years, insurers have treated R.C. 2315.18 as settled. The Supreme Court has now said that when a cap leaves a catastrophically injured person with a token recovery for reasons that do not hold up, the Ohio Constitution can override it.

Second, the jury's role was reaffirmed. The Court stressed that deciding the amount of damages is the jury's job, and it criticized the court of appeals for substituting its own view of the evidence.

Third, the record decides these issues. Brandt won because her lawyers built a detailed record: years of treatment history, an expert evaluation, and testimony from family about who she was before and after. Whether you are proving a statutory exception or a constitutional challenge, the evidence has to be developed from the start. Our guide chapter on what your case is worth explains how economic loss, permanence, and the cap exceptions drive the value of a claim.

What this means for you

If you or your child survived abuse, an assault, or another intentional crime, or if you suffered a permanent injury of any kind, do not assume an adjuster's "the cap limits you to $250,000" is the last word. Whether a cap applies, whether an exception fits, and whether the cap can be challenged at all are questions that depend on facts gathered early. That is one of the reasons we explain in why you should talk to a lawyer early. You can read more about the cases we handle on our personal injury page.