Ohio's Damage Caps Just Cut a Rape Victim's Verdict by More Than $3 Million: What It Means for You (Simpkins)

Published December 28, 2016 · Ohio Supreme Court

In March 2008, a 15-year-old girl went to her pastor's office for counseling about her grades and her parents' separation. He raped her there. He later pleaded guilty to two counts of sexual battery and went to prison. The church that had trained him, financed his new congregation and known about two earlier incidents of sexual misconduct went to trial, and a Delaware County jury found it negligent for hiring, retaining and supervising him. The jury awarded Jessica Simpkins $3,651,378.85, almost all of it for the pain, fear and loss she will carry for the rest of her life.

The trial judge then did what Ohio law required him to do. He reduced her noneconomic damages from $3.5 million to $350,000 and entered judgment for $500,000. On December 14, 2016, the Supreme Court of Ohio let that result stand. Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118.

I wrote about this case when the court of appeals ruled in 2014, in a post on the appellate decision. The Supreme Court's decision ends the appeal, and every injured person in Ohio should understand what it means.

How the caps work

Since 2005, R.C. 2315.18 has limited what an injured person can recover for noneconomic loss, which the statute defines to include pain and suffering, mental anguish, disfigurement, loss of companionship and "any other intangible loss." Economic damages, meaning medical bills and lost income, are not capped.

Under R.C. 2315.18(B)(2), noneconomic damages are limited to the greater of $250,000 or three times the plaintiff's economic loss, up to a maximum of $350,000 per plaintiff and $500,000 per "occurrence." The jury is never told about the cap; the judge applies it after the verdict.

The cap does not apply to the catastrophic injuries listed in R.C. 2315.18(B)(3): permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or a permanent physical injury that prevents the person from caring for herself. Note the word that appears in every one of those exceptions: physical. The statute also does not apply to wrongful-death claims, which are governed by a separate chapter. I explained the framework in an earlier post on Ohio's pain-and-suffering caps.

What the Court decided

Ms. Simpkins did not ask the Court to strike down the cap for everyone. The Court had already rejected that challenge in Arbino v. Johnson & Johnson in 2007. She argued that the cap was unconstitutional as applied to her: a minor victim of sexual assault whose injuries are catastrophic but psychological, and who therefore can never qualify for the physical-injury exceptions.

The lead opinion, by Justice French, rejected each argument. On the right to a jury trial, it held that the cap does not disturb the jury's findings; the court "simply apply[s] the limits as a matter of law to the facts found by the jury." On the right to a remedy and open courts, it held that $350,000 in noneconomic damages, plus unlimited economic damages and the possibility of punitive damages, is a meaningful remedy. On due process and equal protection, it held that the legislature had a rational basis for treating permanent physical injuries differently from psychological ones, because physical injuries "offer more concrete evidence of noneconomic damages." The opinion acknowledged the "reality and seriousness" of her post-traumatic stress disorder, anxiety and fear, and then held that those injuries do not meet the "extreme qualifications" the exceptions require.

The Court also rejected her argument that the two separate rapes were two "occurrences" with two caps. Under R.C. 2315.18(A)(5), an occurrence means all claims arising out of one person's bodily injury, and the Court found a single, indivisible injury.

The vote deserves attention. Only two justices joined the lead opinion in full; a third concurred in the judgment only. Chief Justice O'Connor and Justice O'Donnell would have dismissed the appeal without deciding it. Justices Pfeifer and O'Neill dissented. Justice O'Neill wrote that no parent of a teenage daughter would accept the result as just, and that a legislature which can cap a child's damages at $500,000 could as easily cap them at one dollar. Justice Pfeifer added that tort reform "ensured that rapists and those who enable them will not have to pay the full measure of the damages they cause."

Why this is wrong, and who it hurts

This is an unjust result. The jurors heard the evidence, looked at this young woman, and decided what her suffering was worth. A statute written by people who never met her overruled them.

The injustice is not random. The caps fall hardest on exactly the people whose injuries are least visible and most severe: survivors of sexual abuse, victims of assault and false imprisonment, people with permanent psychological trauma, and people whose physical injuries are serious but fall just short of the statute's list. A broken back that heals is capped. A lifetime of nightmares is capped. The caps also fall hardest on children, retirees and stay-at-home parents, whose economic losses are small and whose "three times economic loss" calculation therefore produces nothing above the $250,000 floor.

And the caps protect the wrong people. The defendant in Simpkins was not the rapist. It was an institution with insurance, whose leaders knew what he had done before and put him in charge of a congregation anyway.

What survivors and families can still do

Several doors remain open.

Economic damages are unlimited. Every dollar of past and future treatment, counseling, medication, lost earnings and reduced earning capacity is recoverable in full. Documenting those losses thoroughly, with treating professionals and vocational experts, is how a capped case is still made whole.

Punitive damages are separate. The cap in R.C. 2315.18 applies to compensatory damages. Punitive damages, available when a defendant acted with malice or conscious disregard for the safety of others, are governed by a different statute with its own limits, and in Simpkins the court of appeals had already sent the punitive claim back for trial. I wrote earlier this year about the Supreme Court's decision that punitive damages survive even a wrongdoer's death. An institution that ignores known warnings is a candidate for them.

Multiple plaintiffs. Each plaintiff has a separate cap. A parent's loss-of-consortium claim, as in Simpkins, is a separate claim with its own cap.

Physical injuries. Where an assault or abuse causes permanent physical harm that meets the (B)(3) exceptions, the cap does not apply.

Claims the caps do not reach. Wrongful-death claims are not subject to this cap. Nor are certain claims against the state in the Court of Claims, which have their own rules.

Every responsible party. The attacker, the employer, the property owner who ignored prior incidents, the organization that vouched for him. Each is a separate defendant with separate insurance, and our premises liability and personal injury practices look at all of them.

What this means for you

If you or your child was harmed by someone an institution should never have trusted, your case is still worth bringing, and bringing well. The caps make careful work on economic damages, punitive damages and the identity of every defendant the difference between a token recovery and a meaningful one. They also make the choice of a lawyer who understands the statute, and who will take the case to a jury, more important than ever.