[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Brandt v. Pompa , Slip Opinion No. 2022-Ohio-4525.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2022-O HIO -4525

B RANDT , A PPELLANT , v . P OMPA , A PPELLEE , ET AL
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Brandt v. Pompa , Slip Opinion No. 2022-Ohio-4525.] Civil law—Damages—R.C. 2315.18—As-app lied constitutional challenge—Due process of law—Article I, Section 16, Ohio Constitution—Statutory cap on awards of compensatory damages for noneconomic losses set forth in R.C. 2315.18 is arbitrary and unreasonable and therefore unconstitutional as applied to plaintiff and similarly situated plaintiffs who were child victims of intentional criminal conduct, such as sexual abuse, 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 for plaintiffs who have suffered permanent and severe psychological injuries—Judgment r eversed—Jury verdict on damages
reinstated. (No. 2021-0497—Submitted March 30, 2022—Decided December 16, 20 22.)

A PPEAL from the Court of Appeals for Cuyahoga County,S UPREME C OURT OF O HIO

2 No. 109517, 2021-Ohio-845.

__________________ O’C ONNOR , C.J. {¶ 1} In this appeal, we determine whe ther the compensatory-damages c aps for noneconomic loss in R.C. 2315.18 are unconstitutional as ap plied to appellant, Amanda Brandt. A jury found that Brandt was entitled to a tota l-damages award that included $20 million in compensatory damages for noneconom ic loss against appellee, Roy Pompa, who sexually abused Brandt when she was a child. The trial court applied the sta tutory damages cap in R.C. 2315.18 and lim ited the award for noneconomic loss to $250,000. We find the statutory cap as app lied to this portion of Brandt’s award to be arbitrary and unreasonable and thus in violation of the duecourse-of-law guarantee of the Ohio Constitution. See Article I, Section 16, Ohio
Constitution. We therefore hold that R.C. 2315.18 is unconstit utional as applied to
Brandt.
I. RELEVANT BACKGROUND {¶ 2} In 2006, Pompa was arrested and charged with, among other thing s, 17 counts of rape, 5 counts of k idnapping, 55 counts of panderi ng sexually oriented matter involving a minor, and 21 counts of gross sexual imposit ion. Pompa was accused of committing these acts ag ainst Brandt and other victi ms. Brandt was 11 and 12 years old when the incidents occurred. {¶ 3} A jury found Pompa guilty of over 90 counts, 34 of which involv ed acts against Brandt. 1 The court sentenced P ompa to life in prison.

1. The offenses committed against Brandt for which Pompa was f ound guilty occurred on seven different occasions in 2004 and 2 005 and included 18 counts of gross sexual imposition, 8 counts of rape, 3 counts of kidnapping, 4 counts of pandering sexually oriented matter involving a minor under 13 years of age, and 1 count of illegal use of a minor in nudity-oriented material.January Term, 2022

3 {¶ 4} In 2018, Brandt filed a civil complaint against Pompa 2 in the Cuyahoga County Court of Common Pleas for intentional criminal wrongdoing, knowing dissemination of child por nography, and intentional inf liction of
emotional distress. She also asked the trial court for a decla ratory judgment holding R.C. 2315.18 unconstitutional as applied to her case. The tria l court held that based
on the verdicts in the criminal case and Pompa’s admissions, th ere was no genuine issue of material fact as to Pompa’s liability in the tort acti on. A jury trial was commenced solely to determine th e type and amount of Brandt’s d amages. {¶ 5} At the damages trial, the jury learned of the 34 criminal offen ses committed against Brandt for which Pompa was convicted, and the jury viewed Pompa’s testimony from a videotaped deposition. The jury also heard testimony from Brandt and Brandt’s mother, as well as expert testimony fr om a clinical psychologist. {¶ 6} Brandt testified that Pompa was a friend of the Brandt family a nd that one of Pompa’s daughters was he r childhood best friend. Brandt frequently attended sleepovers at Pompa’s re sidence, just a mile away from her home. Brandt recalled that before going to bed at the sleepovers, Pompa woul d offer her a juice box, iced tea, or water. She said that although it did not str ike her at the time, “there was not a morning [after a sleepover] that [she] didn’t wake up a little blurry, fuzzy feeling, * * * groggy.” The Eighth District Court of Appeals f ound that “[o]n many occasions, Pompa put illicit subs tances in Brandt’s drinks befo re she went to sleep in order to commit sexual acts against her without her knowing or being fully aware.” 2021-Ohio-845, 169 N.E.3d 285, ¶ 2. But Brandt was aw are. Brandt testified that she recalled occasions of abuse at the Pompa res idence, particularly, being woken up at night at the f eeling of being touched and rea lizing it was someone touching her all over and under her underwear. Eventua lly, Brandt no

2. Brandt also filed her complaint against Pompa’s ex-wife, bu t those claims were settled before trial.S UPREME C OURT OF O HIO

4 longer wanted to go to the Pompa residence. She realized that “something was not right” there, and she felt “ver y panicked at the idea of going over” there. She said, “I tried very hard to not get put back into that home.” {¶ 7} Pompa admitted the sexual abuse involved him masturbating on Brandt, ejaculating on her, including on her face, and abusing her with a dildo or vibrator. The Eighth District found that Pompa recorded his se xual abuse of Brandt on at least eight occasions. Id. at ¶ 6. Pompa also admitted using a “spy cam” to view his daughter’s friends w hen they visited the house. {¶ 8} Brandt told the jury she “was a pretty normal kid” until the ab use. Her mother described Brandt prior to the abuse as follows:

She was a beautiful, happy-go-lu cky friend to everyone. She wanted to conquer the world, love d to travel, loved to go place s, had big dreams, was involved in a lot of school activities. You kn ow, she was friends with sports people. She was friends with drama people. She was friends with * * * honor students * * *. She was, like, a friend to everyone. She was involved in church. She w ent [on] all kinds of mission trips. S he just had a big heart and was very outgoing.

{¶ 9} Brandt’s mother testified that her daughter became a recluse af ter the abuse: “Her anxiety level was huge . She never wanted to go any where. We saw this beautiful, outgoing child tur n into someone that didn’t wa nt to leave. She just
wanted to be alone.” Brandt’s m other said that her daughter be came angry and had sleeping problems. These issues prompted Brandt’s mother to ta ke Brandt to see a therapist twice a week, even though the therapist was not close to their home.
Brandt’s mother testified that t he abuse had “totally changed” her daughter. She explained, “I do not have the sa me daughter anymore. She has a lot of anger, hasJanuary Term, 2022

5 a lot of anxiety issues. She can ’t handle being at a lot of fa mily functions. She has to go to another room w hen everyone is the re. She just is not the same kid that we knew growing up and eve n now in her adulthood.” {¶ 10} Brandt also testified to the cha nges she experienced as a resul t of the abuse. She started having nightmares after the first time Pomp a sexually abused her, and she continues to have nightmares, including ones in wh ich Pompa appears. Brandt told the jury that she became a “very angry kid” after t he abuse started. She read for the jury a statement she had prepared for Pompa’s sent encing in the criminal case. In that statement, she described having been in volved in clubs, community service, and social activities before the abuse. She wrote about losing her relationship with her best friend, Pompa’s daughter. She d escribed having difficulty sleeping and having serious emotional problems. “Mo st of the time I don’t know what to feel,” she wro te. “When I do, it’s always a nger.” She also wrote about not being able to re member anything at school, whic h caused her grades to suffer and affected w hich classes she was able to tak e in high school. {¶ 11} Brandt testified that after the abuse stopped, she graduated fr om high school and moved out of her parent s’ home into an apartment, bu t she had trouble keeping a job. About her first full-time job, she explained, “ [M]y anxiety had been getting worse at that point and after a couple of years there, I was no longer able to meet my requirements and I ende d up getting terminated from tha t job because I could no longer do the things r equired.” She eventually found a door-to-door-sales job, which was worked i n pairs. Her coworke r offered her heroi n, assuring Brandt
that she “would feel better” if she tried it. Brandt did try i t and became addicted. She told the jury that at that time, she was “desperate for any thing that would make [her] feel okay.” {¶ 12} At the beginning of her drug a ddiction, Brandt lost her apartme nt and became homeless for approx imately a year. Brandt testified about continuing to have panic attacks and not being able to sleep during that t ime. She said sheS UPREME C OURT OF O HIO

6 “was at a really low point in [her] mental health and there was no break.” She eventually sought help and ret urned to her parents’ home. {¶ 13} Brandt testified that while living with her parents and trying to get sober, her “mental health conti nued to get worse.” She testifi ed about attempting suicide and spending time in the hospital after an intentional heroin overdose. After her time in the hospital, she moved in with her parents and was able to stop using heroin. She told the jury that she had been sober for more tha n six years as of the
time of the trial. {¶ 14} At the time of the trial, Brandt was married and had two young children. She explained that she was still having nightmares a bout Pompa, which affected her sleep and her ability to function the next day des pite her taking prescription medication to try to control them. She worked par t-time as a server in the food industry, working Mondays and Tuesdays to avoid the bu sier shifts and crowds, and was trying to get her real-estate license. {¶ 15} Brandt began attending counseling immediately after her parents
learned of the abuse. As of the date of the hearing on damages , she had been in counseling 14 years, and she tes tified that she could not fores ee a time when she would not need counseling. She explained, “I’ve seen multiple different counselors in multiple different areas a nd gone through multiple different treatment plans. Every counselor I’ve seen has agreed on the diagnosis of [postt raumatic stress disorder (“PTSD”)] and anxiety di sorder.” Brandt also describe d her use of medication not only to prevent n ightmares but also to treat dep ression and PTSD. She testified that one of the prescribed medications had improv ed her ability to sleep uninterrupted, but it wa s unsuccessful at stopping all th e nightmares. She testified that her anxiety, including difficulty being in crowd s and not liking to be touched, still prevents her from enjoying social activities and taking part in community service and that it affects her ability to perform da ily activities like grocery shopping.January Term, 2022

7 {¶ 16} Dr. Patrick Yingling, a psychologi cal expert, testified in a vi deo deposition about his evaluation of Brandt. Dr. Yingling testif ied that Brandt described for him her experience s with the abuse and with her m ental health following the abuse. He noted that Brandt described “her exper ience of developing panic attacks and agoraphobia in 2014.” He said she recalled s taying locked in a bedroom for a “large chunk of mont hs.” Dr. Yingling testified that Brandt described continuing to experi ence nightmares, thoughts about h er own death, and anxiety leading to “meltdowns.” He also testified that Brandt described her panic attacks as “weirdly physical,” including uncontrollable crying, blurry vision, and ringing in her ears, and “[f]eeling like [she had] barbed wire around [her] chest.”
He said Brandt noted that she ha d tried to fix the meltdowns bu t that she was still experiencing them. Brandt provi ded Dr. Yingling with specific instances of anxiety attacks, for example, when not being allowed to be with her dau ghter at her ballet class, when considering having to go back to work, and on some occasions, when
her husband reached out to touch her. {¶ 17} Based on his evaluation of Brandt , including the tests administ ered and the records reviewed, Dr. Yingling opined that Brandt suffe red from PTSD as a result of being sexually assaulte d by Pompa and that her symp toms would persist to some degree over a significant period of time. He opined th at Brandt would benefit from ongoing psychotherapy as well as psychiatric medic ation. {¶ 18} On cross-examination, Pompa’s c ounsel questioned Dr. Yingling about whether Brandt’s symptoms were conclusively causally link ed to the sexual abuse or whether they were, in stead, brought on or exacerbated by other factors,
like Brandt’s addiction or homel essness. Dr. Yingling explaine d that the criteria for a PTSD diagnosis requires exposure to actual or threatened death, serious injury, or sexual violence, and he acknow ledged that an overdose or a s uicide attempt
could cause or contribute to a diagnosis of PTSD.S UPREME C OURT OF O HIO

8 {¶ 19} At the close of the evidence, t he trial-court judge instructed the jury on its duty to determine what damages, if any, Brandt was entit led to. The trial court included the following speci fic instructions on awarding compensatory damages:

You will decide by the greater weight of the evidence an amount of money that will reasonably compensate the Plaintiff f or the actual injury directly cause d by the conduct of the Defenda nt, Roy Pompa. In deciding this amount, you will consider the Plaintiff’s loss directly caused by the Plaintiff’s actual injury. The Plaintiff seeks compensation for non-economic loss only. She does not seek compensation for economic loss such as
medical bills and so forth.
“Noneconomic loss” means harm other than economic loss
that results from the Plainti ff’s injury, including, but not li mited to, pain and suffering; disfiguremen t; mental anguish; and any othe r intangible loss. “Intangible loss” refers to loss that does no t have a physical presence. The Plaintiff also claims that the injury or loss is permanent. As to such claims, no compensation or damages may be found except that which is reasonably certain to exist as a direct ca use of
the Defendant’s conduct. “Reasona bly certain” means probably, that is, more likely to occur than not. If you find that Plaintiff failed to prove by the greater weigh t of the evidence any amount of da mages, you may award Plaintiff nominal damages. “Nominal” means trifling or small.January Term, 2022

9 MATHEMATICAL FORMULA. Any suggestion of counsel in argument that you us e a mathematical formula to compensate for pain and suffe ring and disability cannot be considered as evidence. There is no recognized mathematical formula for pain and suffering. Compensation for pain and suff ering and disability is solely wit hin your province to decide.

{¶ 20} The jury awarded Brandt (1) $14 million in compensatory damages for the abuse she suffered before April 6, 2005, when the damag es caps in R.C. 2315.18 went into effect, (2) $20 million in compensatory damag es for the abuse she suffered after R.C. 2315.18 went into effect, and (3) $100 million in punitive damages. {¶ 21} In a posttrial brief, Pompa requested that the court limit the noneconomic damages that were awarded for the period after the effective date of
R.C. 2315.18. His sole assertion was that the reduction in dam ages was required under R.C. 2315.18. Brandt opposed the request and again asked the trial court to find that R.C. 2315.18 was unconstitutional as applied to her. The trial court granted Pompa’s request, denied Brandt’s request for declarator y relief, and reduced Brandt’s $20 million nonec onomic-damages award to $250, 000. {¶ 22} Brandt appealed. The Eighth Di strict applied the reasoning and
rationale set forth in Simpkins v. Grace Brethren Church of Delaware, Ohio , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122 (lead opinion), a nd finding no meaningful difference between Simpkins and Brandt’s case, affirmed the trial court’s judgment. {¶ 23} We accepted discretionary review of Brandt’s appeal. 163 Ohio St.3d 1501, 2021-Ohio-2307, 170 N.E.3d 891.S UPREME C OURT OF O HIO

10 II. ANALYSIS A. R.C. 2315.18’s cap on noneconomic damages {¶ 24} R.C. 2315.18 describes how compe nsatory damages may be
awarded in tort claims for ec onomic loss and noneconomic loss. Relevant here is noneconomic loss, which includes “pain and suffering, loss of s ociety, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or educati on, disfigurement, mental angu ish, and any other intangible loss.” R.C. 2315.18(A)(4). 3 R.C. 2315.18(B)(2) provides that the amount of compensatory damages for noneconomic loss is capped a nd “shall not exceed the greater of [$250,000] or an amount that is equal to three times the economic loss, as determined by the trier of fact, of the plain tiff in that tort action to a maximum of [$350,000] for each plaintiff in that tort acti on or a maximum of [$500,000] for each occurrence that is the basis of that tort a ction.” R.C. 2315.18(B)(3)(a) and (b) explain that there is no limit on dama ges for noneconomic loss, however, if the loss is for “[p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system” or “[p ]ermanent physical functional injury that permanently prevents the injured person from being able to independently care for self a nd perform life-sustaining activit ies.”

3. By contrast, R.C. 2315.18 (A )(2) defines “economic loss” as

any of the following types of pecuniary harm: (a) All wages, salaries, or other compensation lost as a result of an injury or loss to person or property th at is a subject of a tort actio n; (b) All expenditures for medical care or treatment, rehabilitat ion services, or other care, treatment, services, products, or acco mmodations as a result of an injury or loss to person or property that is a sub ject of a tort action; (c) Any other expenditures incurred as a result of an injury or loss to person or property that is a subject of a tort action, other th an attorney’s fees incurred in connection with that action.January Term, 2022

11 {¶ 25} These caps on damages for nonec onomic loss became effective Apr il 7, 2005. 4 See Am.Sub.S.B. No. 80, Section 3, 150 Ohio Laws, Part V, 7915, 802 4- 8031 (“S.B. 80”). S.B. 80 was not the General Assembly’s first effort to enact tort reform, but previously enacted tor t-reform statutes had been su ccessfully challenged in courts as being unconstitutional. See Morris v. Savoy , 61 Ohio St.3d 684, 686, 690-691, 576 N.E.2d 765 (1991) (Ohio Medical Malpract ice Act of 1975, enacted by Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 280, 28 13, violated the right to due process); Sorrell v. Thevenir , 69 Ohio St.3d 415, 418-420, 633 N.E.2d 504 (1994) (former R.C. 2317.45, enacted by Am.Sub.H.B. No. 1, 142 Ohio Laws, Part 1, 1661, 1694, as part of the Tort Reform Act of 1987, vio lated the rights to a jury trial, due process, and equal protection and the right to a remedy); Galayda v. Lake Hosp. Sys., Inc. , 71 Ohio St.3d 421, 644 N.E.2d 298 (1994), paragraph one of the syllabus (former R.C. 2323.57 violated the rights to a jury trial and due process); Zoppo v. Homestead Ins. Co. , 71 Ohio St.3d 552, 644 N.E.2d 397 (1994), paragraph two of the syllabus (former R.C. 2315.21(C)(2) violated the rig ht to a jury trial); State ex rel. Ohio Academy of Trial Lawyers v. Sheward , 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999), paragraphs two and three of the syllabus (A m.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, violated the separation-of-p owers doctrine and the one-subject rule). {¶ 26} But in Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007- Ohio-6948, 880 N.E.2d 420, this court concluded that R.C. 2315. 18 was
constitutional on its face.

4. This section of the Revised Code became effective April 7, 2005. It was amended by the General Assembly, effective April 15, 2021, by 2020 Sub.H.B. No. 352, b ut the amendments do not affect Brandt or the question of her entitlement to the amount of none conomic damages awarded to her by the jury.S UPREME C OURT OF O HIO

12 B. Standard of review {¶ 27} Unlike the challenge to R.C. 2315.18 in Arbino , Brandt has presented a claim that the statute is unconstitutional as appli ed to the facts of her case. In an as-applied constitutional challenge, “the party ma king the challenge bears the burden of presenting clear and convincing evidence of a presently existing set of facts that [makes the statute] unconstitutional and void when applied to those
facts.” Groch v. Gen. Motors Corp. , 117 Ohio St.3d 192, 2008-Ohio-546, 883
N.E.2d 377

, ¶ 181, quoting Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 38. Thus, the constitutional claim that thi s court addressed in

Arbino differs from Brandt’s constitutional claim here. To establish a constitutional violation through a facial challe nge, Arbino was required to de monstrate “that there [was] no set of circumstances in which [R.C. 2315.18] would be valid.” Arbino at ¶ 26, citing Harrold at ¶ 37, citing United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). To establish a constitution al violation through a facial challenge, it is not e nough “ ‘that a statute might op erate unconstitutionally under some plausible set of circumstances.’ ” Id. , quoting Harrold at ¶ 37. C. Due-course-of-law challenge {¶ 28} Article I, Section 16 of the Ohi o Constitution guarantees every person the right to a “remedy by due course of law” “for an inj ury done him in his land, goods, person, or reputation.” In Arbino , one asserted basis of the facial
constitutional challe nge to R.C. 2315.18 was that the damages c aps in that statute violated the “due course of law” provision of the Ohio Constitu tion. Arbino at ¶ 7, 48. In addressing that question, this court applied the ration al-basis test under which a statute is deemed valid “ ‘ “[1] if it bears a real and substantial relation to the public health, safety, morals or general welfare of the pub lic and [2] if it is not unreasonable or arbitrary.” ’ ” (Brackets added in Mominee .) Id. at ¶ 49, quoting
Mominee v. Scherbarth , 28 Ohio St.3d 270, 274, 503 N.E.2d 717 (1986), quoting Benjamin v. Columbus , 167 Ohio St. 103, 146 N.E.2d 854 (1957), paragraph fiveJanuary Term, 2022

13 of the syllabus. Considering th e second prong of that test, th is court noted its concern that in previous efforts to cap tort damages, the Gener al Assembly had “imposed the cost of the intende d benefit to the public solely upon those most severely injured.” Id. at ¶ 59, citing Savoy , 61 Ohio St.3d at 690-691, 576 N.E.2d 765, and Sheward , 86 Ohio St.3d at 490, 715 N.E.2d 1062. But we noted that “R. C.
2315.18 alleviates this concer n by allowing for limitless econo mic damages for those suffering catastrophic injuries.” Arbino at ¶ 60, citing R.C. 2315.18(B)(3)(a) and (b). We also noted that the General Assembly had “found th at the benefits of noneconomic-damages limits could be obtained without limiting t he recovery of individuals whose pain and sufferi ng is traumatic, extensive, a nd chronic, and by setting the limits for thos e not as severely i njured at either $250,000 or $350,000.”

Id. at ¶ 61. We concluded that the legislature’s policy decision was “tailored to maximize benefits to the pub lic while limiting da mages to litig ants,” and that such “logic [was] neither unreasonable nor arbitrary.” Id

. {¶ 29} This court also rejected Arbino’s equal-protection challenge wi th similar reasoning, employing the r ational-basis test and conclu ding as follows:

The distinctions the legislature drew in refusing to limit cert ain injuries were rational and base d on the conclusion that catastr ophic injuries offer more concrete evidence of noneconomic damages an d thus calculation of those damage s poses a lesser risk of being tainted by improper external considerations.

Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 72. {¶ 30} A significant distinction stands out between the facts presente d in

Arbino and the facts of this case. Psy chological injuries are not in cluded in the permanent-injury exception to the compensatory-damages caps for noneconomic loss provided in R.C. 2315.18(B)(3 )(a) and (b). Those statutor y provisions exceptS UPREME C OURT OF O HIO

14 “[p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system” or “[p]ermanent physical functional injury that permanently prevents the injured person from being able to independently ca re for self and perform life-sustaining activities.” (Emphasis added.) Id. Arbino originated in federal court as a p roduct-liability action against the compani es that had created a
hormonal-birth-contro l medication that allegedly caused the pla intiff’s blood clots
and other serious medical side effects. Id. at ¶ 1. We were not presented with facts of psychological injuries in that case, nor were we asked to op ine on the reason for
their exclusion from the statute. {¶ 31} But here, in light of the unavailability of the exception to th e compensatory-damages caps for the most severely and permanently psychologically injured, we cannot say, as we did in Arbino , that R.C. 2315.18 allows “for limitless noneconomic damages for those suffering c atastrophic injuries,” Arbino at ¶ 60, because those suffering catastrophic psychological injury are excluded from that class of injured plaintiffs. Thus, the rational basis of the statute found by this court in Arbino is eliminated as applied to Brandt and similarly situated plaintiffs. For this limited class of litigants—peopl e like Brandt who were victimized at a very young age and who bring civil actions to r ecover damages from the persons who have been found guilty of those intentional cri minal acts—the constitutional guarant ee of due course of law is unjustly withh eld. {¶ 32} Other legislative justifications cited by this court in Arbino also fail when considered in light of R.C. 2315.18’s application, without exception, to catastrophic psychological injuries as a result of victimizatio n as a child. For example, in Arbino , we acknowledged the Genera l Assembly’s concern that “noneconomic damages are inheren tly subjective and thus easily tainted by
irrelevant considerations.” Id. , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 55. But other statutory safeguards exist to address that concern. For example, R.C. 2315.18(C) expressly prohibits the trier of fact (i.e., the jury in a juryJanuary Term, 2022

15 trial) from considering (1) a defendant’s wrongdoing, misconduc t, or guilt, (2) a defendant’s wealth or financial resources, or (3) evidence offe red for the purpose of punishing the defendant, when determining the amount of comp ensatory damages to award for noneconomic loss. And if a defendant chal lenges an award of compensatory damages for none conomic loss as excessive, R.C. 2315.19 instructs the trial court to consider, among other things, whet her the evidence “inflamed the passion or prejudice of the trier of fact.” Give n the adequate safeguards in place to ensure that an award in a specific case is not “tainted by irrelevant considerations,” see Arbino at ¶ 55, coupled with the trial court’s authority to review an allegedl y excessive award on a case-by-c ase basis, the General Assembly’s caps on damages as applied to a plaintiff su ch as Brandt seem arbitrary. It is unclear how application of the caps on damage s in R.C. 2315.18 to a plaintiff like Brandt who is not entitled to an exception to the caps for severe psychological injury serves, in a ny manner other than an arbitr ary one, to address the General Assembly’s concerns that noneconomic damages are in herently subjective and easily tainte d by irrelevant considerations. {¶ 33} In Arbino , we also noted that the General Assembly’s stated justification for enacting tort reform through R.C. 2315.18 was its “ ‘interest in making certain that Ohio has a fair, predictable system of civi l justice that preserves the rights of those who have been harmed by negligent behavior, while curbing the number of frivolous lawsuits, which increases the cost of doing business, threatens Ohio jobs, drives up costs to consumers, and may stifle innovat ion.’ ” Arbino at ¶ 68, quoting S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024. But Brandt was harmed by intentional , not negligent, behavior. And it cannot be said that Brandt’s lawsuit against Pompa is frivolous, given that his cri minal liability for abusing Brandt has alr eady been determined. {¶ 34} The General Assembly’s concern about the “cost of doing busines s,” S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024, as it relates to the costS UPREME C OURT OF O HIO

16 of general-liability-insurance policies that businesses purchas e is unrealistic because coverage for the types of injuries that Brandt sustaine d in this case is extremely uncommon and, even if a business’s liability-insuranc e policy were in play, most policies now contain exclusions for intentional cond uct committed by the insured and, specifically, for abuse or molestation. See, e.g. , World Harvest Church v. Grange Mut. Cas. Co. , 148 Ohio St.3d 11, 2016-Ohio-2913, 68 N.E.3d 738. Thus, the only beneficiary of the General Assembly’s dama ges cap in this case is Brandt’s abuser, not t he public and not the insurance i ndustry. {¶ 35} This court noted in Arbino that the General Assembly’s policy decision “to achieve a public good” was based on a finding that “the benefits of noneconomic-damages limits could be obtained without limiting the recovery of individuals whose pain and suffering is traumatic, extensive, and chronic .” (Emphasis added.) Id. , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 61. We concluded that this po licy decision was “tailored to maximize benefits to the public while limiting damages to litigants” and was based o n logic that was “neither unreasonable nor arbitrary.” Id. What we now know, given Brandt’s case, is that some who fit within this category—those “whose pain and suffering is traumatic, extensive, and chronic,” id.

— are subject to limited recovery simply because their injuries are psychological, as opposed to physica l, in nature. Thus, in concluding in Arbino that the General Assembly’s decision to enact compensatorydamages caps for noneconomic l oss was not arbitrary on its face , we overlooked a small class of plaintiffs who are arbitrarily excluded from recovering the full amount of compensatory damages f or noneconomic loss that was aw arded by the jury. While policy decisions are t he purview of the legislatur e, it is the judiciary’s purview to determine whether t hose policy decisions violate the constitutional protections guaranteed to all Ohioans. See Article IV, Section 2(B)(2)(ii), Ohio
Constitution.January Term, 2022

17 {¶ 36} When viewing the damages caps set forth in R.C. 2315.18 in ligh t of the facts of this case, the words of one of the dissenting just ices in Arbino are persuasive:

There is no rational reason to “improve” the tort system in Ohi o at the sole expense of a small group of people who are able to pro ve that they suffered damage signi ficant enough to exceed the dama ges caps imposed by the General Asse mbly. Whatever improvement the tort system in Ohio needs, the Ohio Constitution should remain inviolate, unless properly amended.

Arbino at ¶ 185 (Pfeifer, J., dissenting). Brandt represents an even smaller group of people than that contemplat ed by the dissenting justice quot ed above—namely, those child victims who suffer traumatic, extensive, and chroni c psychological injury as a result of intentional criminal acts and who sue the ir abusers for civil damages. Subjecting this group to the compensatory-damages cap s for noneconomic loss has little to no connection to improving the t ort system in Ohio. 5 This group comprises victims w ho are entitled to the full range of constitutional remedies, regardless of whether their severe injuries are physi cal or psychological. {¶ 37} These concerns leave sufficient doubt that Arbino correctly
determines the constitutiona lity of R.C. 2315.18 as applied to Brandt and similarly

5. The General Assembly’s justification for enacting tort-refo rm legislation, including R.C. 2315.18, was to balance the rights of victims of negligent behavior against the problems caused by an allegedly unpredictable civil-justice system. See S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024. The General Assembly’s policy choice appears to pr esume that some level of harm caused by negligent acts (e.g., au tomobile accidents, defective consumer products, imperfect medicine, human error) is tolerable in society on balance for i nstitutions and businesses that need predictability for liability for this kind of conduct. But the sexual abuse of children is never tolerated. Accordingly, it make s no sense to credit the Genera l Assembly with a policy decision to protect an abuser from being subject to a damages award that is meant to compensate a victim of childhood sexual abuse.S UPREME C OURT OF O HIO

18 situated plaintiffs. In fact, because the rationale supporting Arbino falls away when applied to the facts of this case, and given the facts below, w e conclude that Brandt has shown by clear and convincing evidence that R.C. 2315.18 is unconstitutional as applied to her under the due-c ourse-of-law provision in Arti cle I, Section 16 of
the Ohio Constitution. {¶ 38} The Eighth District relied largely on Simpkins , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, in rejecting Brandt’s as-applied challenge. But Simpkins was a plurality opinion, and the reasoning from Simpkins that the court of appeals relied on when reviewing t his case was the viewpoint of only two justices. Thus, the Simpkins analysis is not controlling here. {¶ 39} Turning to the facts of this case, there is no question that Br andt has suffered severely as a victim of Pompa’s intentional criminal a cts. There is no dispute that the jury found th at Brandt should be awarded compe nsatory damages for noneconomic loss in the amount of $20 million for the abuse that she suffered
after R.C. 2315.18 became effective. The trial court’s instruc tions to the jury explained that Brandt sought com pensation only for noneconomic loss, and the instructions defined “noneconomic loss” and “intangible loss.” The instructions also explained that Brandt claimed that the injury or loss she suffered was permanent. The instructions pr ovided: “There is no recognized mathematical formula for pain and suffering. Compensation for pain and suff ering and disability is solely within your province to decide.” 6 The record also shows that the jurors submitted questions to the trial court during Brandt’s testimon y, inquiring about other possible causes of Brandt’s injuries. Charged with the t rial court’s instructions and with answers to their questions, the jurors un animously awarded

6. R.C. 2315.18(F)(2) states: “If the trier of fact is a jury, the court shall not instruct the jury with respect to the limit on compensa tory damages for noneconomic lo ss described in division (B)(2) of this section, and neither counsel for any party nor a witness s hall inform the jury or potential jurors of that limit.”January Term, 2022

19 Brandt $20 million in compensatory da mages for permanent noneco nomic loss for the period in question. {¶ 40} Pompa’s sole argument to the trial court in his posttrial brief on damages was that the court shoul d calculate the amount of damag es pursuant to the damages caps in R.C. 2315.18. He did not challenge the evidenc e by arguing, for example, that the award was excessive, that the evidence had in flamed the passion or prejudice of the jury, that t he jury improperly considered h is misconduct, or that the award was in excess of verdicts awarded to similarly situat ed plaintiffs. See R.C. 2315.19(A)(1) and (2). {¶ 41} The Eighth District characterized the evidence regarding whethe r “all of [Brandt’s] mental health issues and symptoms can be att ributed to the sexual abuse” as “equivocal.” 2021-Ohio-845, 169 N.E.3d 285, at ¶ 50. But the jury here (i.e., the trier of fact) did not. Indeed, the jury instructio ns were clear regarding the jury’s ability to award Brandt damages based on her claims that the injury or loss that she suffered was permanent: “[N]o compensation or damages may be found except that which is reasonably certain to exist as a direct ca use of the Defendant’s conduct.” And the jury was instr ucted that it could award nomi nal damages if it
found that Brandt had failed to prove any amount of damages by the greater weight of the evidence. Nonetheless, t he jury found a significant mon etary award to be appropriate. Notwithstanding the application of the compensato ry-damages caps, the fact-finding function of the jury to determine the amount o f damages to be awarded is not to be intruded upon or ignored or replaced by an other body’s findings. Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 37.
Trial courts are authorized to review an award that “the defend ant has challenged as excessive,” R.C. 2315.19(A), and appellate courts may conduc t a de novo review of such an award on appeal, R.C. 2315.19(C), but it is the duty of the trier of fact to ascertain the amount of the plaintiff’s loss, see R.C. 2315.18(B)(2) and (C). Here, the jury was in the best position to weigh the credibilit y of Brandt’s testimonyS UPREME C OURT OF O HIO

20 and that of the other witnesses. In doing so, the jury determi ned that Brandt suffered permanent noneconomic l oss severe enough to warrant a $20 million
award for the abuse that she s uffered after R.C. 2315.18 went i nto effect. Thus, the court of appeals’ equivocation regarding the evidence is unpers uasive because it appears that the court was substituting its own view of the evi dence for the jury’s findings. {¶ 42} Because R.C. 2315.18(B)(3) does not include an exception for severe and permanent psychological injuries in its caps on dama ges for noneconomic loss and because the trial court applied R.C. 2315. 18 to reduce Brandt’s $20 million award to $250,000, we hold that Brandt has established, by clear and convincing evidence, a s et of facts that make the sta tute unconstitutional as applied to her case. D. Recoverability is irrelevant {¶ 43} Pompa argues that because Brandt received a judgment “exceeding $114 million, [she] cannot credibly be heard to argue that she has been prevented or foreclosed from securing meani ngful relief.” Some of the am ici in support of Pompa argue a similar refrain. The issue we address, however, is the constitutionality of a single statute or, stated more specifica lly, the constitutionality of the caps on damages for non economic loss in R.C. 2315.18 as applied to Brandt.
It is immaterial that some of the abuse in this case occurred b efore R.C. 2315.18’s caps on damages became effective, thereby entitling Brandt to u ncapped damages
for noneconomic loss that she su ffered from acts that occurred during that time. {¶ 44} Nor should the jury’s award of punitive damages affect the consideration of the compensator y damages awarded to Brandt. T he question of punitive damages, which serve a different function in our legal system, is irrelevant here. “The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct.” Moskovitz v. Mt. Sinai Med. Ctr. , 69 Ohio St.3d 638, 651, 635 N.E.2d 331 (1994). Add itionally, “punitive damag es are separateJanuary Term, 2022

21 and apart from any remedy for a plaintiff’s injuries,” Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 98, and under R.C. 2315.21, a plaintiff may be entitled to both. Nothing in the relevant statutory scheme requires that compensatory damages be limited or reduced based on a separate award of punitive damages. Thus, there is no reason to consider these separate a wards of damages together here. {¶ 45} Additionally, the question whether Brandt can ultimately recove r any portion of the total-damages award from Pompa is irrelevant to determining whether R.C. 2315.18 is unconstitutional as applied to Brandt a nd similarly situated plaintiffs. Any suggestion othe rwise serves to prejudice the r eader and should be
seen for what it is: a distrac tion from the legal question befo re this court.
III. CONCLUSION {¶ 46} For the foregoing reasons, we hold that R.C. 2315.18 is unconstitutional as applied to Brandt and similarly situated pl aintiffs (i.e., people
like Brandt who were child victims of intentional criminal cond uct and who bring civil actions to recover damage s 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. The judgment of the Eighth District Court of Appeals is rev ersed, and we reinstate the jur y’s verdict on damages. Judgment reversed.

D ONNELLY , S TEWART , and B RUNNER , JJ., concur.

K ENNEDY , F ISCHER , and D E W INE , JJ., dissent, with an opinion.

F ISCHER , J., dissents, with an opinion.

_________________ K ENNEDY , F ISCHER , and D E W INE , JJ., dissenting.S UPREME C OURT OF O HIO

22 {¶ 47} Appellee Roy Pompa’s abuse of a ppellant, Amanda Brandt, is appalling, and there is no doubt tha t Brandt has suffered as a result. However, as
members of the third branch of government, we must “temper our empathy” and resolve legal matters within the confines of the law. See Collins v. Sotka , 81 Ohio St.3d 506, 512, 692 N.E.2d 581 (1998) (Moyer, C.J., dissenting) . Because the majority opinion fails to do so, w e must respectfully dissent. {¶ 48} Although this case has been litigated on the questions whether the caps on compensatory noneconomic damages enacted in R.C. 2315.1 8 violate the Ohio Constitution’s guarantees of due process of law, equal pro tection, trial by jury, open courts, and a remedy, the ma jority opinion today finds onl y a due-process
violation of Article I, Section 16 of the Ohio Constitution. I t does that by applying rational-basis review, a standa rd that presupposes that R.C. 23 15.18 does not implicate a fundamental constitu tional right. The majority opi nion holds that R.C. 2315.18 violates Article I, Secti on 16 solely because it believ es that the statute is arbitrary and unreasonable. This dissent, then, is limited to addressing that single
issue. For the reasons that follo w, we disagree with the deter mination made by the majority opinion that R.C. 2315.18 vi olates due-process protect ions. I. R.C. 2315.18 and the cap on noneconomic damages {¶ 49} The General Assembly enacted R.C. 2315.18 as part a tort-reform bill that restructured the tort-damages-award system in Ohio to ensure a “fair, predictable system of civil ju stice.” Am.Sub.S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, 7915, 8024 (“S.B. 80”). In restructuring the tor t-damages-award system, the General Assembly placed no cap on readily provable compensatory damages that represented an ec onomic loss—e.g., pecuniary harms like lost wages, costs of medical care and treatment, and other measurable expen ditures. See R.C. 2315.18(A)(2) and (B)(1). However, it generally capped compens atory damages for noneconomic loss—e.g., nonpecuniary harms like pain and suf fering, mental anguish, and other inta ngible losses. See R.C. 2315.18(A)(4) and (B)(2).January Term, 2022

23 {¶ 50} The legislature justified the caps on noneconomic-damages award s because it had found that noneconomic losses are difficult to q uantify since they “are inherently subjective.” S.B. 80, Section 3(A)(6)(d), 150 Ohio Laws, Part V, at 8028; see also Simpkins v. Grace Brethren Church of Delaware, Ohio , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, ¶ 6. The legislature wanted to ensure
that those awards were intended to compensate a person for his or her loss. Id. Additionally, the legislature be lieved that windfalls awarded t o plaintiffs “ ‘create[d] an improper resolution of civil justice claims,’ l eading to increased litigation costs and insurance premiums.” Simpkins at ¶ 6, quoting S.B. 80, Section 3(A)(6)(e), 150 Ohio Laws, Part V, at 8028. The legislature ma de no distinction between wrongful conduct that w as negligent and wrongful conduc t that was intentional—the caps were enacted to apply to the types of dama ges that often varied significantly based on subjective valuations. See S.B. 80, Section 3(A)(4) and (6), 150 Ohio Laws, P art V, at 8024-8028. {¶ 51} The General Assembly did, however, provide exceptions to the ca p on compensatory noneconomic d amages. R.C. 2315.18(B)(3); see also S.B. 80, Section 3(A)(6)(c), 150 Ohio L aws, Part V, at 8027-8028. The c ap does not apply when the victim has sustained (1) an injury that resulted in “[ p]ermanent and substantial physical deformity,” ( 2) an injury that resulted in “loss of use of a limb,” (3) an injury that resulted in “ loss of a bodily organ system,” or (4) a “[p]ermanent physical functional injury that pe rmanently prevents the person from being able to independently care for [him or her]self and perform life-sustai ning activities.” R.C. 2315.18(B)(3). So unless the victim has suffered from an injur y that falls under one of the exceptions listed in R.C. 2315.18(B)(3), the victim’ s compensatory noneconomic-damages award w ill be capped under R.C. 2315.18(B)( 2). {¶ 52} In Arbino v. Johnson & Johnson , we summarized the General Assembly’s evidence and findi ngs as they pertained to R.C. 2315 .18:S UPREME C OURT OF O HIO

24 In an uncodified section of S.B . 80, [the General Assembly] fou nd that the current state of the civil litigation system “represen ts a challenge to the economy of the s tate of Ohio.” S.B. 80, Secti on 3(A)(1), 150 Ohio Laws, Part V, 8024. This finding was supporte d by (1) a National Bu reau of Economic Res earch study showing tha t states adopting tort reforms experienced growth in employment, productivity, and total output , (2) a 2002 White House Council on Economic Advisors study equating the cost of tort litigation to a 2.1 percent wage and salary tax, a 1.3 percent personal-consumption tax, and a 3.1 percent capital-i nvestment-income tax, (3) a Har ris
Poll of 928 senior cor porate attorneys showing that the litigat ion environment in a state greatly a ffected the business decisions of their companies, (4) a Tillinghast–Towers Perrin study showing that t he tort system failed to return even 50 cents for every dollar to injured plaintiffs and that the cost of t he national tort system grew a t a record rate in 2001, with a cost equivalent to a five percent tax on w ages, and (5) testimony from Ohio Department of Development Director Bruce Johnson on the rising costs of the tort system, which he believed were putting Ohio busin esses at a disadvantage and hindering development. S.B. 80 at Section 3(A)(3)(a) through (f ), 150 Ohio Laws, Part V, [8024-8025].

116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 53. II. R.C. 2315.18, as applied to Brandt , does not violate her ri ght to due process of law under Article I , Section 16 of the Ohio Constitu tion

{¶ 53} In an as-applied challenge, Brandt argues that the cap imposed on her noneconomic-damages award under R.C. 2315.18 violates her r ight to due process. To prevail, Brandt mus t prove by clear and convincing evidence that theJanuary Term, 2022

25 statute is unconstitutional when applied to her particular set of facts. See Harrold
v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37-38. She simply cannot meet this burden. {¶ 54} In reviewing this constitutional claim, we must remember that legislative enactments enjoy a strong presumption of constitutionality. See State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. This cour t does not consider the “policy or wisdom of a statute”
in these determinations. State ex rel. Bishop v. Bd. of Edn. of Mt. Orab Village School Dist., Brown Cty. , 139 Ohio St. 427, 438, 40 N.E.2d 913 (1942). Our “sole
function” is to determine whethe r the statute “transcends the l imits of legislative power.” Id. {¶ 55} The right to due process of law in Ohio exists under Article I, Section 16 of the Ohio Constitution: “[E]very person, for an injury don e him in his land, goods, person, or reputation, shall have remedy by due course of law * * *.” (Emphasis added.) It has been c onsidered the functional equiva lent of the “due process of law” protections in the United States Constitution. Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 48. {¶ 56} The standard of review we apply when reviewing the constitutionality of a statute on due-process grounds depends o n whether the legislation restricts a fundamental right. Arbino at ¶ 49. By applying rational-basis review, the majority opinion has implicitly decided that R.C. 2 315.18 does not implicate a fundamental right. W e agree that rational-basis re view is the appropriate test to be applied in these circumstances—that is t he conclusion this
court reached in Arbino

. See id. {¶ 57} R.C. 2315.18 is afforded “a strong presumption of validity” and will survive a due-process challenge if it is rationally related to a legitimate government

purpose. Heller v. Doe , 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). “This deferential rationa l-basis standard is ‘a paradi gm of judicialS UPREME C OURT OF O HIO

26 restraint,’ Fed. Communications Comm. v. Beach Communications, Inc. , 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), and ‘not a li cense for courts to judge the wisdom, fairness, or l ogic of legislative choices,’ id. at 313, 113 S.Ct.
2096.” State v. Bevly , 142 Ohio St.3d 41, 2015-Ohio-475, 27 N.E.3d 516, ¶ 35 (French, J., dissenting). Our s ystem of government presumes th at the democratic process will rectify bad policy decisions and that “judicial in tervention is generally unwarranted no matter how unwisely we may think a political bra nch has acted.” Vance v. Bradley , 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). {¶ 58} Therefore, a statute does not violate due process under the rat ionalbasis test if the statute (1) “bears a real and substantial rel ation to the public health, safety, morals or general welfar e of the public,” and (2) “is n ot unreasonable or arbitrary.” Benjamin v. Columbus , 167 Ohio St. 103, 146 N.E.2d 854 (1957), paragraph five of the syllabus. “Whether an exercise of the po lice power does bear
a real and substantial relation to the public health, safety, m orals or general welfare of the public and whether it is unreasonable or arbitrary are q uestions which are
committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on tho se questions appear to be clearly erroneous, the courts will not invalidate them.” Id . at paragraph six of the syllabus; see also Simpkins , 149 Ohio St. 3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 47, quoting State v. Williams , 88 Ohio St.3d 513, 531, 728 N.E.2d 342 (2000) (we grant “ “substantial de ference’ ” to the General Ass embly’s determination).

A. R.C. 2315.18(B) bears a real and subst antial relation to the general welfare of the public {¶ 59} The General Assembly enacted S .B. 80 to protect the Ohio econom y from the increasing number of tort claims being filed and the i ncreasing amounts of the damages being awarded in those claims, both of which wer e negatively impacting the cost of doing busine ss in the state, threatening Ohio jobs, driving upJanuary Term, 2022

27 consumer costs, and stifling innovation. S.B. 80, Section 3(A) (3), 150 Ohio Laws, Part V, at 8024. Part of the issue was the cost of the tort sy stem—it had grown significantly, and attorneys benefitted more from the system th an those who had been injured. S.B. 80, Section 3(A)(3)(a) through (f), 150 Ohi o Laws, Part V, at 8024-8025. The General Assembly also noted the significant pro blem with damages, specifically noneconomic damages and punitive damages. S.B. 80, Section 3(A)(4) and (6), 150 Ohio Laws, Part V, at 8025-8028. The General Assembly was concerned about “[i]n flated damage[s] awards,” i.e ., windfalls that a person could derive from aw ards of both punitive and nonecono mic damages. S.B. 80, Section 3(A)(6)(e), 150 O hio Laws, Part V, at 8027. {¶ 60} Noneconomic-damages awards, like the one at issue here, were intended to compensate an injured person for a loss, not to pun ish the defendant. S.B. 80, Section 3(A)(6)(a), 150 Ohio Laws, Part V, at 8027. T he General Assembly noted, however, that these damages, which have “no pre cise economic value,” id. , are inherently subjective and may be influenced by “improper
consideration of evidence of w rongdoing,” S.B. 80, Section 3(A) (6)(d), 150 Ohio Laws, Part V, at 8027. It is the se inflated noneconomic-damage s awards that contributed to the problems in our civil-justice system. See S.B. 80, Section 3(A)(6)(e), 150 Ohio Laws, Part V, at 8028. Thus, the General Assembly capped noneconomic-damages awards at “the greater of [$250,000] or an amount that is equal to three times the economic l oss, as determined by the tr ier of fact,” but not exceeding $350,000 for each plaintiff in the tort action or $50 0,000 for each
occurrence that is the basi s of the action. R.C. 2315.18(B)(2)

. {¶ 61} The majority opinion never says t hat reforming the tort system to advance the goal of preventing inflated and improperly punitive noneconomicdamages awards bears no real and substantial relation to the pu blic health, safety, morals, or general welfare of the public. Nor can it. This co urt has already found
that S.B. 80 “bears a real and s ubstantial relation to the gene ral welfare of theS UPREME C OURT OF O HIO

28 public.” Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 58. Reducing the cost of doing business in this state, ensuring job growth, reducing costs to consumers, and promoti ng innovation plainly have a rea l and substantial relation to the general welfare of the public and the economic health of this state. {¶ 62} Brandt argues, however, that the economic research on which the General Assembly based its decision to enact R.C. 2315.18 was f lawed. In Arbino , this court rejected that argument, finding that the General Ass embly had made several findings of fact based on its own research. Arbino at ¶ 53. We explained that in determining whether a st atute bears a real and substant ial relation to legitimate governmental interests, “ ‘it is not the function of the courts to substitute their evaluation of legislative f acts for that of the legislatu re.’ ” Id. at ¶ 58, quoting Minnesota v. Clover Leaf Creamery Co ., 449 U.S. 456, 470, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). The General Assembly, with the research av ailable to it, made the decision to enact these cap s to protect the Ohio economy. There is no doubt
that this statute bears a real a nd substantial relation to a le gitimate government purpose, even under Brandt ’s circumstances. {¶ 63} “[T]he status of the plaintiff [as a victim of sexual assault] does not
diminish either the economic benefits of limiting noneconomic d amages, as found by the General Assembly, or the substantial relationship that w e found in Arbino between the statutory limitations and the benefits to the gener al public welfare.” Simpkins , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 38. Therefore, the first element of the rational-basis test—that the challenge d statute bears a real and substantial relation to the general public welfare—is satis fied. See Arbino at ¶ 55. B. R.C. 2315.18 is not unreasonable or arbitrary, and there is a rational basis for its creation of two classes of victims {¶ 64} As for whether the cap on nonec onomic damages is unreasonable o r arbitrary as applied to Brandt, or whether there is no rational basis forJanuary Term, 2022

29 distinguishing between victims who have suffered (1) an injury resulting in “[p]ermanent and substantial phys ical deformity,” (2) an injury resulting in “loss of use of a limb,” (3) an injury resulting in “loss of a bodily or gan system” or (4) a “[p]ermanent physical functional injury that permanently preven ts the person from being able to independently care for [him or her]self and perfo rm life-sustaining activities,” R.C. 2315.18(B)(3), from those who have not, those arguments too must fail. {¶ 65} The majority opinion concludes that the statutory scheme is unreasonable. The majority opini on discusses how the statute d oes not consider psychological injuries at all and how R.C. 2315.18(B)(3) is lim ited to physical “catastrophic injuries.” Major ity opinion, ¶ 31. The majority opinion maintains
that this distinction is unreasona ble given the trauma that Bra ndt has endured, evidenced by the jury’s high-dollar award for her noneconomic d amages and the fact that no one has argued that this award was excessive for r easons other than its exceeding the statutory cap. T he majority opinion concludes th at “unavailability of the exception to the compensat ory-damages caps for the most severely and permanently psychologically injured” creates a due-process problem. (Emphasis sic.) Id. {¶ 66} But in enacting tort-reform legislation, the General Assembly w as required only to be rational and unarbitrary. This is a low ba r. And here, the legislature sought to limit inflat ed and subjective awards that it found to be both
unfair to defendants and harmful to the state’s economy. It al so created categories of injury that, it believed, did not raise the same concerns fo r runaway verdicts and subjective awards, because the nat ure of the injury would assur e that the damages award would not be based on impr oper considerations and could b e more objectively valued by a jury. In order to effectively enact le gislation that solves the problems that the General Assembly found to exist, the legislat ure was required to
draw lines somewhere. As this court said in Arbino , “the General Assembly isS UPREME C OURT OF O HIO

30 charged with making the difficult policy decisions on such issu es and codifying
them into law. This court is not the forum in which to second- guess such legislative choices * * *.” 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 71. {¶ 67} R.C. 2315.18 draws distinctions b etween the types of injured claimants, but those distincti ons are not arbitrary or irration al. The statute prohibits caps from being imposed on those who have suffered (1) an injur y resulting in “[p]ermanent and substantial phys ical deformity,” (2) an injury resulting in the “loss of use of a limb,” (3) an injury resulting in the “loss o f a bodily organ system,” or (4) a “[p]ermanent physical functional injury that permanent ly prevents the person from being able to independe ntly care for [him or her]se lf and perform lifesustaining activities.” R.C. 2315.18(B)(3). There are two cat egories of plaintiffs: those who fall into one of the four exceptions set forth in R.C . 2315.18(B)(3) and
those who do not. The classificati on remains the same regardle ss of the age of the
victim and the nature of the tort. Simpkins , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 50. The statute does not treat Brandt or o ther victims of sexual assault any differently than othe r tort victims who have not ex perienced one of the four types of inj uries listed above. {¶ 68} The majority opinion and Brandt seem to emphasize that a minor
victim of sexual assault could never fall into one of these cat egories. This is simply untrue. We need not speculate, but it is apparent that a victi m of sexual assault could experience an injury of the sort covered under R.C. 2315. 18(B)(3)—e.g., an injury caused by the violence of the assault, a resulting sexua lly transmitted disease, complications of a pregnancy occasioned by the assault that res ult in the “loss of a bodily organ system,” or another injury that results in a “per manent physical functional injury that permanen tly prevents the person from bei ng able to independently care for [him or her]self and perform life-sustai ning activities.” See,

e.g ., Ozmun v. Customer Engineering Servs., L.L.C. , Cuyahoga C.P. No. CV 14 824745, 2015 WL 13238578 (July 31, 2015) (allowing the jury to determineJanuary Term, 2022

31 whether the damages cap applied after a plaintiff offered an ex pert report finding that her posttraumatic stress di sorder was a physical, function al injury because it caused physical harm, including brain-cell damage and atrophy t o the hippocampal gyrus and other areas of the brain); see also Giebel v. Lavalley , N.D.Ohio No. 5:12- CV-750, 2013 WL 6903784, *2 (genuine issue of material fact whe ther the plaintiff who suffered depression and suicida l thoughts as a result of a brain injury suffered an injury under R.C. 2315.18(B)(3)(b) that exempted her from th e cap on noneconomic damages). No one is denying that Brandt’s experien ce was traumatic and that she suffers from psyc hological issues, but her injurie s do not fall within one of the categories of injurie s identified by the General Ass embly as being exempt from the caps on noneconomic damages. If they did, then Brandt would not be subject to a cap on her aw ard of noneconomic damages. T his is the same for any other claimant whose injurie s do not rise to the extent spe cified by the legislature. {¶ 69} As the General Assembly recognize d, damages for things like pai n and suffering and mental anguish are inherently subjective. Th ey are difficult to determine and quantify. See Leininger v. United States , 499 F.Supp.3d 973, 997 (D.Kan.2020) (“non-economic damages are notoriously difficult t o quantify”). The General Assembly had a substantial interest in protecting our c ivil-justice system and our economy when it enacted t he statute that set a cap on n oneconomic damages as a means to limit the awards for injuries that are ei ther difficult to prove or the extent of which is difficult to quantify without evidenc e of some physical component. This is a reasonable and legitimate government inte rest, and the General Assembly has not arbitr arily selected w inners and loser s under the statute. Thus, R.C. 2315.18(B) does not vio late due process merely becau se it caps the noneconomic-damages award issued to Brandt in the same way that it would cap damages for every other injured person who does not fall into o ne of the four categories for which caps are exempted.S UPREME C OURT OF O HIO

32 {¶ 70} “ ‘[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations eve n when there is an imperfect f it between means and
ends. A classification does not f ail rational-basis review bec ause “ ‘ “ ‘it is not made with mathematical nicety or because in practice it results in some inequality.’ ” ’ ” Am. Assn. of Univ. Professors, Ce nt. State Univ. Chapter v. Cent.

State Univ. , 87 Ohio St.3d 55, 58, 717 N.E.2d 286 (1999), quoting Heller , 509 U.S. at 321, 113 S.Ct. 2637, 125 L.Ed.2d 257, quoting Dandridge v. Williams , 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), quoting Lindsley v. Natural
Carbonic Gas Co ., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911). That th e distinctions drawn may not be perfect does not make them irrati onal or arbitrary. And the majority opinion does not dispute that lines must be dr awn—it simply disagrees with how the Gener al Assembly drew them. {¶ 71} The majority opinion argues that by finding the noneconomicdamages cap constitutional, Brandt’s abuser, Pompa, would be th e only winner here. The majority opinion also emphasizes that denying Brandt the full amount of her noneconomic-damages award in this case is unreasonable sinc e the award does not impact the insurance industry, because most insurance polic ies now contain
exclusions that restrict covera ge for criminal conduct such as Pompa’s. This rationale is flawed for two reasons. First, noneconomic-damage s awards are not meant to punish the defendant, S.B. 80, Section 3(A)(6)(a), 150 Ohio Laws, Part V, at 8027; the fact that one bad person might benefit from cap s on noneconomic damages does not make the statut e, taken as a whole, irrational or arbitrary. Second, the majority opinion’s policy rationale does not belong in a constitutionality analysis at all; policy decisions are reserve d for the General Assembly. See Cleveland , 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, at ¶ 40. It is up to the General Assembly to change the statut e if it is no longer in line with public interest. We can only bring the issue to the attention of the General Assembly; we cannot “i nvade the province of the legislature” an d “violate theJanuary Term, 2022

33 separation of powers” doctrine to rewrite the statute in the ma nner we find most appropriate. Pratte v. Stewart , 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 54. We “must leave it to the General Assembly to rewrit e the statute if it deems necessary.” Id. {¶ 72} Minor sex-abuse victims are worthy of protection and compensati on. But it is not our role as members of the judicial branch to det ermine what compensation is necessary or adequate. The General Assembly is the ultimate arbiter of public policy. Cleveland at ¶ 40. If the General Assembly would like to create another exception beyond those listed in R.C. 2315.18(B) (3), then it should
do so. See Pratte at ¶ 54. If the people would like another exception added to the statute, then they should go to their legislators or pursue a r eferendum under Article II, Section 1b or 1c of the Ohio Constitution. But that is a f ar cry from the determination in the majority opi nion that if legislation tackl es problems in the tort system, it must treat the survivors of sexual abuse the same as it treats peop le who have, for example, lost an organ or a limb. The General Assemb ly could rationally decide that the types of injur ies described in R.C. 2315.18(B)( 3) do not present the same problems for ensuring that noneconomic-damages awards are not windfalls or are not inherently subjective . That is all the Constitution requires.
III. Conclusion {¶ 73} No one denies that child abuse is horrific. And no one will de ny that Brandt has suffered. But it is not our job as members of the j udicial branch to overreach and invade the province of the General Assembly. Bad facts make bad law, as it does today. {¶ 74} By resolving the merits of this case, the majority opinion impr operly involves the judiciary in matters that belong exclusively and f undamentally to the General Assembly. It is this t ype of result-oriented judicial activism that blurs the line in the public’s eye about whi ch branch of government is tr uly responsible for the policies of this state. It erodes the public’s confidence in the judiciary to resolveS UPREME C OURT OF O HIO

34 problems within the confines of the law and places an unrealist ic expectation on the members of the Ohio judiciary to r esolve all society’s problems . Policy-making is not our job. If policy changes ar e desired, then the members o f the majority opinion can take the short walk to Capitol Square to speak with their l egislators—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 s o. This activism from the be nch needs to stop. {¶ 75} Brandt has not demonstrated that R.C. 2315.18(B) is unconstitutional as applied to her . Thus, we must respectfully dissent.

_________________ F ISCHER , J., dissenting. {¶ 76} The majority opinion abandons thi s court’s role as impartial ju rist and exceeds the scope of its authority to hold that R.C. 2315.1 8(B)(2) is unconstitutional as applied to appellant, Amanda Brandt, and si milarly situated victims. What happened to Brandt is horrific and deeply sadden ing, as are the stories of every child victim—really any victim—of sexual assau lt. But that reality does not bestow upon this court the constitutional authority to invade the purview of the General Assembly by questioning its policy decisions and fashioning
remedies for victims we deem wor thy. While these types of case s turn our stomachs and tug on our heartstrings, we are still tasked with resolving these matters within
the confines of the law. {¶ 77} As discussed in the joint dissent, I fully agree that Brandt ca nnot demonstrate that the caps on noneconomic damages in R.C. 2315.1 8(B)(2), as applied to her, violate her ri ght to due process under Article I, Section 16 of the Ohio Constitution. I write separat ely to address Brandt’s othe r arguments that go unresolved by the majority opi nion, and I reach the conclusion that Brandt cannot
demonstrate that R.C. 2315.18 is unconstitutional on its face o r as applied to her. Thus, I would affirm the judgment of the Eighth D istrict Court of Appeals.January Term, 2022

35 I. Standard of Review {¶ 78} It is important to address the applicable standards of review i n this case given that the majority opi nion seems to have forgotten ho w to apply them. Constitutional challenges fall into one of two categories: (1) facial challenges that claim a statute as a whole is unconstitutional, and (2) as-appl ied challenges that
claim a statute is unconstituti onal as applied t o a particular set of facts. In re D.B. , 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, ¶ 12; Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. {¶ 79} In a facial challenge, the party must prove beyond a reasonable doubt
that “there exists no set of circumstances under which the stat ute would be valid.”

Id. ; see also State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus; State v. Mason , 153 Ohio St.3d 476, 2018- Ohio-1462, 108 N.E.3d 56, ¶ 5 (same). But for an as-applied ch allenge, the party must prove by clear and convinci ng evidence that the statute is unconstitutional when applied to a particular set of facts. Harrold at ¶ 38; Belden v. Union Cent. Life Ins. Co. , 143 Ohio St. 329, 55 N.E.2d 629 ( 1944), paragraph six of the syllabus. II. Presumption of C onstitutionality {¶ 80} When evaluating these constitutional challenges, we must rememb er that legislative enactments enjoy a strong presumption of constitutionality.

Dickman at paragraph one of the syllabus. While this presumption has b een subject to some limited criticism in the past, see Ohio Grocers Assn. v. Levin , 123 Ohio St.3d 303, 2009-Ohio-4872, 916 N.E.2d 446, ¶ 70, (Pfeifer, J., dissenting), it is firmly based on the General Assembly’s plenary power to legisla te, and it serves to discourage courts from overruling legislation based on the cour t’s own policy preferences. See League of Women Voters of Ohio v. Ohio Redistricting Comm. , 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, ¶ 339 (Fische r, J., dissenting). Indeed, this court has applied this presumption since our state hood and has affirmed this presumption even through the various amendments to our sta te constitution.S UPREME C OURT OF O HIO

36 To show how deeply rooted this presumption is in our judicial s ystem, a brief history is necessary. {¶ 81} The Ohio Constitution of 1803, drafted consistently with Jeffersonian principles, concentr ated much of the state’s power in the General Assembly. See Utter, Judicial Review in Early Ohio, The Mississippi Valley Historical Review, Vol. XIV, No. 1 (June 1927) 3-24. The legis lature controlled the makeup of the judiciary. Id. at 4, 6-7. And the legisl ature believed that the court had no right at all to decl are its enactments unconstitut ional. Id. {¶ 82} However, the Ohio Supreme Court determined in Rutherford v.
M’Faddon (1807), that it had the authority to review the constitutionality of legislative acts. Pollack, Ohio Unreported Judicial Decisions Prior to 1823 , Part II, 71-105 (1952) In Rutherford , the court expressed that t he judiciary’s duty is to

“ expound, construe and declare the law,” which includes declaring a law unconstitutional. (Emphasis sic.) Id. at 72-73. And in discharging that duty, the court “compare[s] the legislative act with the constitution ,” and if it is determined that the legislative act is contrary to the Constitution or pro hibited by the Constitution, then it is void. (Emphasis sic.) Id. at 73. The court emphasized that its role is to support the Constitution. Id. at 74. {¶ 83} The judiciary continued to exe rcise its authority, but it provi ded deference to the General Assembly in its legislative decisions: “It is never to be forgotten, that the presumption is always in favor of the valid ity of the law; and it is only when manifest assumpti on of authority, and a clear inco mpatibility between the constitution and the law appear, that the judicial power ca n refuse to execute it. Such interference can never be permitted in a doubtful case.” Cincinnati, Wilmington and Zanesville, RR. Co. v. Clinton Cty. Commrs. , 1 Ohio St. 77, 82 (1852); see also Downes, Judicial Review Under the Ohio Constitution of 1802, Northwest Ohio Quarterly (October 1946) 145.January Term, 2022

37 {¶ 84} This shift, however, was not due to a fear of impeachment by th e General Assembly nor the court deciding to give up its authorit y; this shift was founded in the court’s recogniti on that legislators took an “oa th to support the constitution,” and they considered that oath when crafting legi slation. Cincinnati, Wilmington and Zanesville, RR. Co. , at 83; Downes at 145. If the court were to entertain declaring a law unconstitutional “while [also] entert aining doubts upon the subject,” then it would pres ent a separation of powers prob lem and “make the dubious constructions of the judici ary[] outweigh the fixed con clusions of the General Assembly.” Id. The court noted that “ ‘it is not on slight implication and vague conjecture’ ” that it woul d pronounce that the General As sembly had “ ‘transcended its powers’ ” and declared its acts void. Cincinnati, Wilmington and Zanesville, RR. Co. at 84, quoting Fletcher v. Peck , 10 U.S. 87, 128, 3 L.Ed. 162 (1810). {¶ 85} Even as the Ohio Constitution was amended to distribute power more equally among the three branches of government in 1851, th is court still gave a strong presumption to the constitutionality of statutory enac tments. See, e.g. , Ex parte Bushnell , 9 Ohio St. 77, 96 (1859) (“No court will hold a law to be
unconstitutional unless its unc onstitutionality is clear beyond a doubt”). And by 1894, it was a settled rule that the court presumed constitutio nality in favor of the validity of the challenged statute. State ex rel. Poe v. Jones , 51 Ohio St. 492, 503, 37 N.E. 945 (1894). In reaffirming this rule, this court again emphasized that the presumption is necessary due to the General Assembly’s plenary power to legislate: “The legislative power of the sta te is vested in the general as sembly, and whatever limitation is placed upon the exercise of that plenary grant of power must be found in a clear prohibition by the constitution.” Id. When “the constitutionality of the law is involved in doubt, that doubt must be resolved in favor of the legislative power.” Id.S UPREME C OURT OF O HIO

38 {¶ 86} The presumption of constitutiona lity remained strong even after the Ohio Constitution was revised in 1912 to provide the judiciary with more, yet still limited, power to review legislative enactments. See Dickman , 164 Ohio St. 142, 128 N.E.2d 59, at paragraph one of the syllabus; Article IV, Se ction 2, Ohio Constitution (1912) (amended to allow the Supreme Court to find a statute unconstitutional by a majority of all but one vote). This cour t ruled still that legislative enactments were presumed to be constitutional and w ould only be deemed unconstitutional if proven so beyond a reasonable doubt. Dickman at 147- 151; Williams v. Scudder , 102 Ohio St. 305, 131 N.E. 481 (1921), paragraph four of the syllabus; Xenia v. Schmidt , 101 Ohio St. 437, 130 N.E. 24 (1920), paragraph one of the syllabus. {¶ 87} Even after the people of Ohio adopted the Modern Courts Amendment in 1968, which eliminated the restriction on this cou rt’s ability to find a statute unconstitutional by a certain majority, see Euclid v. Heaton , 15 Ohio St.2d 65, 66, 238 N.E.2d 790 (1968), and provided this court with app ellate jurisdiction involving constitutional questions , Article IV, Section2(B)(2)( a)(ii), Ohio Constitution, the presumption of a statute’s constitutional val idity still reigned. This is because the presumption was always meant to ensure the separation of powers and to support the Genera l Assembly’s plenary power to l egislate, a power that was not altered by the Modern Courts Amendment. See Village of Monroeville
v. Ward , 27 Ohio St.2d 179, 182, 271 N.E.2d 757, 759 (1971) , rev. on other grounds by Ward v. Monroeville , 409 U.S. 57, 93 Sc.D. 80, 34 L.Ed.2d 267 (1972), citing
State ex rel. Poe at 503; see generally Fischer et al., The Modern Courts Amendment at 50, Ohio Lawyer (Oct.-Dec. 2019) 12-15; O’Connor, The Ohio
Modern Courts Amendment: 45 Year s of Progress, 76 Alb.L.Rev. 19 63 (2012- 2013); Milligan & Pohlman, The 1968 Modern Courts Amendment to the Ohio Constitution, 29 Ohio St.L.J. 811 (1968).January Term, 2022

39 {¶ 88} This presumption of constitutionality has been affirmed time an d again since 1968. Ohio Pub. Interest Action Group, Inc. v. Pub. Util. Comm. , 43 Ohio St.2d 175, 331 N.E.2d 730 (1975), paragraph four of the sy llabus (“The question of the constitutionality of every law being first dete rmined by the General Assembly, every presumption is in favor of its constitutionalit y, and it must clearly appear that the law is in direct conflict with inhibitions of t he Constitutio n before a court will declare it unconstitutional”), following State Bd. of Health v. Greenville , 86 Ohio St.1, 98 N.E. 1019 (1912); State ex rel. Swetland v. Kinney , 69 Ohio St.2d 567, 576, 433 N.E.2d 217 (1982) (the sanctity of legislative en actments is firmly entrenched in our judicial system); State v. Warner , 55 Ohio St.3d 31, 43, 564 N.E.2d 18 (1990) (recognizing that the presumption of constitut ionality is based on the legislature’s plenary power); see also State ex rel. Horner v. Anderson , 41 Ohio St.2d 166, 172, 324 N.E.2d 572 (1975); State ex rel. Taft v. Campanella, 50 Ohio St.2d 242, 246, 364 N.E.2d 21 (1977); State v. Renalist, Inc ., 56 Ohio St.2d 276, 278, 383 N.E.2d 892 (1978); Cincinnati City School Dist. Bd. of Edn. v. Walter , 58 Ohio St.2d 368, 376, 390 N.E.2d 813 (1979); State v. Saurman , 64 Ohio St.2d 137, 138, 413 N.E.2d 1197 (1980); State v. Dorso , 4 Ohio St.3d 60, 61, 446 N.E.2d 449 (1983); Ewing v. Lindley , 23 Ohio St.3d 222, 224, 492 N.E.2d 435 (1986); State v. Stambaugh , 34 Ohio St.3d 34, 35, 517 N.E.2d 526 (1987); Doyle v. Ohio Bur. of
Motor Vehicles , 51 Ohio St.3d 46, 47, 554 N.E.2d 97 (1990); Conley v. Shearer , 64 Ohio St.3d 284, 289, 595 N.E.2d 862 (1992); Sorrell v. Thevenir , 69 Ohio St.3d 415, 418, 633 N.E.2d 504 (1994); Beagle v. Walden , 78 Ohio St.3d 59, 61, 676 N.E.2d 506 (1997); Hughes v. Ohio Bur. of Motor Vehicles , 79 Ohio St.3d 305, 307, 681 N.E.2d 430 (1997); Desenco, Inc. v. Akron , 84 Ohio St.3d 535, 538, 706 N.E.2d 323 (1999); State ex rel. Haylett v. Ohio Bur. of Workers’ Comp ., 87 Ohio St.3d 325, 328, 720 N.E.2d 901 (1999); Klein v. Leis , 99 Ohio St.3d 537, 2003- Ohio-4779, 795 N.E.2d 633, ¶ 4; Yajnik v. Akron Dept. of Health, Hous. Div ., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16; McCrone v. Bank OneS UPREME C OURT OF O HIO

40 Corp. , 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 20; State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn. , 111 Ohio St.3d 568, 2006- Ohio-5512, 857 N.E.2d 1148, ¶ 20; State v. Carswell , 114 Ohio St.3d 210, 2007- Ohio-3723, 871 N.E.2d 547, ¶ 6-7; Toledo v. Tellings , 114 Ohio St.3d 278, 2007- Ohio-3724, 871 N.E.2d 1152, ¶ 22; Ohio Apt. Assn. v. Levin , 127 Ohio St.3d 76, 2010-Ohio-4414, 936 N.E.2d 919, ¶ 56; Cleveland v. State , 128 Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d 370, ¶ 6; State ex rel. Zeigler v. Zumbar , 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 24; Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd. , 137 Ohio St.3d 257, 2013-Ohio-4654, 998 N.E.2d 1124, ¶ 13; Haight v. Minchak , 146 Ohio St.3d 481, 2016-Ohio-1053, 58 N.E.3d 1135, ¶ 11; State v. Noling , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 10; Toledo v. State , 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257. ¶ 17-18. Even this year, this court drew on this presumpt ion to evaluate the constitutionality of challenged statutes. See Newburgh Hts. v. State , ___ Ohio St.3d ___, 2022-Ohio-1642, ___ N.E.3d ___, ¶ 19; State v. Grevious , ___ Ohio St. ___, 2022-Ohio-4361, ___ N.E. ___, ¶ 9. Indeed, this presumption is consistent with the General Assembly’s statement that it enacts statutes with t he Ohio and United
States Constitutions in mind. See R.C. 1.47(A). {¶ 89} This deeply-rooted presumption is vital to maintaining separati on of

powers. See Cincinnati, Wilmington and Zanesville, RR. Co. v. at 83-84; State ex
rel. Poe , 51 Ohio St. at 503, 37 N.E. 945; Ohio Pub. Interest Action Group, Inc. at paragraph four of the syllabus; State ex rel. Swetland at 576; Warner at 43. The presumption not only recognizes t he General Assembly’s plenary power to legislate—to enact laws consistent with the will of the people— it ensures that judges do not replace the legislature’s views with their own pe rsonal views. See League of Women Voters of Ohio , 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, at ¶ 339 (Fischer, J., dissenting); The Federalist No. 78, at 468-469 (AlexanderJanuary Term, 2022

41 Hamilton) (Clinton Rossiter Ed.1961); see also Holeton v. Crouse Cartage Co ., 92 Ohio St.3d 115, 135, 748 N.E.2d 1111 (2001) (Moyer, C.J., disse nting). {¶ 90} Thus, when evaluating constitutional claims, we must make every reasonable presumption and resolve any doubt as to the statute’s constitutionality in favor of the validity of the statue. Dickman , 164 Ohio St. at 149, 128 N.E.2d 59; see State ex rel. Doerfler v. Price , 101 Ohio St. 50, 53, 128 N.E. 173 (1920). Policy considerations raised by members of the judicial branch have no place in this analysis. State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn. , 139 Ohio St. 427, 438, 40 N.E.2d 913 (1942). III. We have already held that R.C. 2315.18 is constitutional o n its face {¶ 91} This court held that R.C. 2315.18 was constitutional on its fac e in
Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 114. Brandt maintains that this court’s decision in Arbino was wrong; she argues that R.C. 2315.18 violates due process, equal protection , and the right to trial by jury and is therefore unconstitutional on its face. T hough the majority opinion declines to address this issue, its silence and use of the rational-basis test is
confirmation that Arbino should be affirmed. Indeed, stare decisis demands that
we affirm and follow Arbino

. {¶ 92} Stare decisis “dictates adherence to prior judicial decisions.” State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 38. It provides constancy and consistency in the law necessary to ensure that t he value of law in society is not diminished. Scott v. News-Herald , 25 Ohio St.3d 243, 249, 496 N.E.2d 699 (1986). So generall y, we are “institutionally bound to uphold our prior decisions where time has vindicated the logic utilized to rende r the holding.” Id. {¶ 93} We can, of course, reverse our precedent under the right circumstances: “(1) the decisi on was wrongly decided at that ti me, or changes in circumstances no longer justify continued adherence to the deci sion; (2) the decision defies practical worka bility; and (3) abandoning the p recedent would notS UPREME C OURT OF O HIO

42 create an undue hardship for those who have relied upon it.” Westfield Ins. Co. v.
Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragrap h one of the syllabus. If we apply the test set forth in Galatis , Brandt plainly cannot satisfy the third element, because Arbino is the foundation of many decisions and abandoning it would clearly create an undue hardship for those who have relied on
it. {¶ 94} Over the past 15 years, we have reaffirmed and relied on Arbino numerous times. Besides supporting the holding in Simpkins v. Grace Brethren Church of Delaware , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 49,

Arbino has formed the legal foundation for affirming legislative limi ts on allowable damages in many constitutional claims. See, e.g. , Groch v. Gen. Motors Corp . 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 23 ( Arbino is “useful in setting the stage” to provide “extensive background” and establishing “ some important concepts that play a significan t role” in resolving questions r egarding the constitutionality of R.C. 2305.10, a products-liability statute of repose); Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership , 123 Ohio St.3d 278, 2009-Ohio5030, 915 N.E.2d 1205, ¶ 7-16 (relying on Arbino to affirm the constitutionality of R.C. 2744.05(C)(1), a statute that limits noneconomic damages i n suits against political subdivisions); Kaminski v. Metal & Wire Prods. Co. , 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 58-97 (relying on Arbino to determine that R.C. 2745.01, which limits an employer’s liability for intentio nal torts, is constitutional); Stetter v. R.J. Corman Derailment Servs., L.L.C ., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 33-93 (same); Flagstar Bank, F.S.B. v. Airline Union’s Mtge. Co ., 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 29 (citing Arbino to conclude that the Ohio Constitution’s right-to-remedy clause protects only against laws that completely foreclose a cause of action for injured plaintiffs or otherwise eliminate their ability to receive a me aningful remedy).January Term, 2022

43 {¶ 95} Arbino also helps explain and emphasi zes the importance of stare
decisis in Ohio. See, e.g. , State v. Bodyke , 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 33. And Arbino properly sets forth the role of this court as an arbiter of legal issues, not as a policymaker. See, e.g. , Cincinnati City School Dist. Bd. of Edn. v. Conners , 132 Ohio St.3d 468, 2012-Ohio-2447, 974 N.E.2d 78, ¶ 17;

Pratte v. Stewart , 125 Ohio St.3d 473, 2010-Ohio-1860, 929 N.E.2d 415, ¶ 54. To
overrule Arbino would be to destroy the very foundation on which these decisio ns stand—a fact acknowledged by Bra ndt’s counsel at oral argument. {¶ 96} Furthermore, Arbino was not wrongly decided. The crux of Brandt’s argument is that R.C. 2315.18 violates her right to trial by ju ry under Article I, Section 5 of the Ohio Constitution. She argues that the statut e requires the trialcourt judge to disregard the jury’s noneconomic-damages award, thereby rendering her jury award meaningless. Her a rgument, however, is based on a misunderstanding about the jury’s right to determine damages as a matter of fact
and the court’s abilit y to review and modify a damages award as a matter of law. {¶ 97} Under Article I, Section 5 of t he Ohio Constitution, the right to a jury trial “shall be inviolate.” We have determined that the r ight is fundamental
and cannot be invaded or violate d by legislative act or judicia l order. Shimko v.
Lobe , 103 Ohio St.3d 59, 2004-Ohio-4202, 813 N.E.2d 669, ¶ 28; Gibbs v. Girard , 88 Ohio St. 34, 102 N.E. 299 (1913) , paragraph two of the sylla bus. But the right is limited in that it exists only as it did when the Ohio Const itution was adopted. Stolz v. J & B Steel Erectors, Inc ., 155 Ohio St.3d 567, 2018-Ohio-5088, 122 N.E.3d 1228, ¶ 15. {¶ 98} The right to a jury trial applies in this case. See Kneisley v. LattimerStevens Co ., 40 Ohio St.3d 354, 357, 533 N.E.2d 743 (1988) (Article I, Se ction 5 applies to intentional-tort acti ons). And the right to a jury trial includes the right to have a jury determin e all questions of fact, including the amou nt of damages that the plaintiff may be entitled to as result of the injury. Galayda v. Lake Hosp. Sys.,S UPREME C OURT OF O HIO

44 Inc ., 71 Ohio St.3d 421, 425, 644 N.E.2d 298 (1994); Sorrell , 69 Ohio St. 3d at 422, 633 N.E.2d 504 (1994). However, the jury’s authority to d etermine the damages award at common law has never been unchecked, either by the General Assembly or the trial court. {¶ 99} The General Assembly has the power to alter the common law, which includes limiting the remedies available. See Ruther v. Kaiser , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, ¶ 14 (the legislatur e has the right to
determine causes of acti on recognized under the law); Groch , 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, at ¶ 150 (the General Assembly c an limit remedies for injuries under the l aw). This power held by the l egislature, to limit remedies, existed when Article I , Section 5 was adopted. That fact is made apparent when we consider the adopti on of Article I, S ection 19a of the Ohio Constitution. {¶ 100} Article I, Section 19a was adopt ed in 1912, the same year that Article I, Section 5 was amende d to allow verdicts that are not unanimous in civil jury trials. Article I, Section 19a of the Ohio Constitution s tates, “The amount of damages recoverable by civil action in the courts for death cau sed by the wrongful act, neglect, or default of another, shall not be limited by law .” (Emphasis added.) By its plain language, the provi sion means that neither the Gen eral Assembly nor the judiciary may impose a cap on total damages recoverable for wrongful death. See Kennedy v. Byers , 107 Ohio St. 90, 96, 140 N.E. 630, 632 (1923). But the provision also supports t he conclusion that th e General Assembl y has the power to limit noneconomic damages for tort injuries that do not result in death. See Gibbon v. Young Women’s Christian Assn. of Hamilton , 170 Ohio St. 280, 285, 164 N.E.2d 563 (1960). Since Brandt’s claim is not for wrongful death, th e General Assembly has the right to limit her damages. {¶ 101} But even if we do not consider the General Assembly’s right to dictate remedies under the common law, R.C. 2315.18 still does not violate the right to trial by jury. It is true that “it is the function of the j ury to assess the damagesJanuary Term, 2022

45 and, generally, it is not for a t rial or appellate court to sub stitute its judgment for
that of the trier of fact.” Villella v. Waikem Motors, Inc. , 45 Ohio St.3d 36, 40, 543 N.E.2d 464 (1989). But once the jury has resolved the facts an d assessed the damages in its verdict, the constitutional right is satisfied. Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 37; Galayda , 71 Ohio St.3d at 436, 644 N.E.2d 298 (Moyer, C.J., dissenting). Therefore, a jury’s dam ages award is not impervious to outside interference after the jury’s duties are complete. Arbino at ¶ 35. {¶ 102} Prior to the adoption of Article I, Section 5, trial courts com monly questioned Ohio jury verdicts. See Hamden Lodge No. 517, Independent Order of
Odd Fellows v. Ohio Fuel Gas Co ., 127 Ohio St. 469, 481, 189 N.E. 246(1934) (“from time immemorial the court has had and exercised the powe r to regulate the jury’s action, at least to the extent of seeing that such actio n is not wholly unreasonable”). This court, consistent with our precedent, has upheld a trial court’s modification of a jury verdict when that verdict cannot be sust ained as a matter of law. Indeed, we have upheld re mittiturs that reduce a jury’s a ward when the trial court deems the amount excessive based on the facts found by th e jury. See Wightman v. Consol. Rail Corp ., 86 Ohio St.3d 431, 444, 715 N.E.2d 546 (1999) (noting, though, that the successful plaintiff must consent to such an order). And we have upheld the constitutionality of a trial court’s decisio n to grant a motion for judgment notwithstanding the verdict prior to the announcement that the court could not weigh the evidence. Likes v. Van Dike , 17 Ohio 454 (1848). Additionally, we have not found that awarding a plaintiff doubl e or treble damages as required by statute violates the right to trial by jury. See, e.g. , R.C. 319.58 (double damages awarded to a pla intiff harmed by a person’s use of false weights and measures); see also Arbino at ¶ 39 (listing statutes allowing treble damages). So long as the trial court does not intrude upon the jury’s fin dings of fact, the court may amend the jury award as a matter of law, whether that is be cause the verdict isS UPREME C OURT OF O HIO

46 not supported by sufficient evidence or because a statute requi res it. Id. at ¶ 37; Simpkins , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 24; see also Gasperini v. Ctr. for Humanities, Inc ., 518 U.S. 415, 442, 116 S.Ct. 2211, 135 L.Ed.2d 659, (1996) (Stevens, J., dissenting); Walker v. New Mexico & S. Pacific

RR. Co , 165 U.S. 593, 596, 17 S.Ct. 421, 41 L.Ed. 837 (1897) (so long as the jury
determines issues of fact and the court determines issues of la w, “the procedure by which this result shall be reached is wholly within the discret ion of the legislature”) {¶ 103} Here, the General Assembly det ermined that caps on noneconomic damages in certain situations are necessary, and it enacted R.C . 2315.18(B)(2) to change the common law accordingly. See Stolz , 155 Ohio St.3d 567, 2018-Ohio5088, 122 N.E.3d 1228, at ¶ 15. The General Assembly did not f orce the trial court to invade the province of the jur y; it required the trial court to modify the noneconomic-damages award only if the jury’s award exceeded a c ertain amount and the plaintiff’s injuries were not those exempted from caps under R.C. 2315.18(B)(3). See Galayda at 436 (Moyer, J., dissenting) (the trial court does not invade the province of the jur y’s fact-finding process when it reduces the damages award, because the statute does not apply until after the jury has completed its assigned function). Therefore, the General Assembly’s modifica tion of the
remedies available for common-la w torts in R.C. 2315.18(B)(2) a nd the trial court’s compliance with that provision do not violate the right to a ju ry trial guaranteed by Article I, Section 5 of t he Ohio Constitution. {¶ 104} This view is not unique. Other state supreme courts have also found that caps on damages are constitutional so long as the ju ry award is not
altered as a matter of fact but rather as a matter of law. See Evans ex rel. Kutch v. State, 56 P.3d 1046, 1051 (Alaska 2002); Kirkland ex. Rel. Kirkland v. Blaine Cty.
Med. Ctr. , 134 Idaho 464, 467, 4 P.3d 1115 (2000); Murphy v. Edmonds , 325 Md. 342, 372-374, 601 A.2d 102 (1992); McClay v. Airport Mgt. Servs., L.L.C. , 596 S.W.3d 686, 696 (Tenn.2020); Etheridge v. Med. Ctr. Hosps ., 237 Va. 87, 95, 376January Term, 2022

47 S.E.2d 525 (1989); Horton v. Oregon Health & Science Univ ., P.C. , 359 Or. 168, 244-245, 376 P.3d 998; Gourley ex rel. Gourley v. Nebraska Methodist Health Sys.,

Inc ., 265 Neb. 918, 947, 663 N.W.2d 43 (2003); Tam v. Eighth Judicial Dist. Court , 131 Nev. 792, 796, 358 P.3d 234 (2015); Judd ex rel. Montgomery v. Drezga , 2004 UT 91, 103 P.3d 135, ¶ 35; Phillips ex rel. Hervey v. Mirac, Inc ., 470 Mich. 415, 419, 685 N.W.2d 174 (2004); Wright ex rel. Green v. Colleton Cty. School Dist ., 301 S.C. 282, 290, 391 S.E.2d 564 (1990). But see Atlanta Oculoplastic Surgery,
P.C. v. Nestlehutt , 286 Ga. 731, 738, 691 S.E.2d 218 (2010); Hilburn v. Enerpipe
Ltd. , 309 Kan. 1127, 1147, 442 P.3d 509 (2019); Moore v. Mobile Infirmary Assn. , 592 So.2d 156, 164 (Ala.1991); Watts ex rel. Watts v. Lester E. Cox Med. Ctrs , 376 S.W.3d 633, 648 (Mo.2012); Sofie v. Fibreboard Corp. , 112 Wash.2d 636, 638, 771 P.2d 711 (1989). {¶ 105} And though the United States Supreme Court has yet to rule on t he issue, it is likely that it too would conclude that statutory c aps on damages awards implemented by the cou rt as a matter of law do not violate the right to trial by jury
under the Seventh Amendment to the U.S. Constitution. See Arkansas Valley Land
& Cattle Co. v. Mann , 130 U.S. 69, 74, 9 S.Ct. 458, 32 L.Ed. 854 (1889) (court is within its authority to set asid e excessive verdict and order a new trial); Gasperini , 518 U.S. at 442, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (Steven s, J., dissenting) (precedent supports the conclusi on that the right to a jury tri al is not violated when a trial court reduces an award as a matter of law, whether that be due to a cap on damages, an unsupported verdi ct, or excessiveness); Estate of Sisk v. Manzanares , 270 F.Supp.2d 1265, 1277-1278 (D.Kan.2003). {¶ 106} R.C. 2315.18 does not offend the right to a trial by jury under Article I, Section 5 of the Ohi o Constitution. Therefore, the Arbino court properly applied the rational-basis test to the jury-trial, due-process, and equal-protection claims. We should reject Bra ndt’s proposition of law challengi ng this court’sS UPREME C OURT OF O HIO

48 holding in Arbino and reaffirm our holding that R.C. 2315.18 is facially
constitutional.

IV. The caps on damages in R. C. 2315.18(B)(2) are not unconstit utional as applied to Brandt and si milarly situated victims {¶ 107} Brandt argues that her reduced noneconomic-damages award violates her rights to a jury tr ial, to open courts, to a remed y, to due process, and to equal protection. To prevail, B randt must prove by clear and c onvincing evidence that R.C. 2315.18(B)(2) is unconstitutional when applied to he r particular set of
facts. Harrold , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, at ¶ 37-3 8. As discussed in the joint disse nt, Brandt cannot demonstrate th at R.C. 2315.18(B)(2) violates her right to due process. And it is als o clear that Brandt cannot establish that R.C. 2315.18(B )(2) violates her rights to a jury trial, to open courts, to a remedy, or to equal protection. Like the plaintif f in Simpkins , 149 Ohio St.3d 307, 2016-Ohio-118, 75 N.E.3d 122, Brandt cannot meet her burden. A. Brandt cannot demonstrate that as applied to her circumstances, R.C. 2315.18(B)(2) violates her right to a jury trial {¶ 108} Brandt argues that her right to trial by jury was violated beca use the jury valued her psychological injuries at $20,000,000 and the t rial court’s reduction of that award to $250,000 pursuant t o the statutory cap intrude s on and ignores the jury’s fact-finding process and renders it meaningless. But as discussed earlier, R.C. 2315.18(B)(2) does not prevent the jury from determining i ssues of fact. Nor does it allow the judge to subs titute his or her findings for t hose of the jury. See Simpkins at ¶ 23. Rather, the General Assembly, through its right to a lter the common law, requires the trial court to alter the award as a ma tter of law after the jury has rendered its verdict. Thus, R.C. 2315.18(B)(2) and th e trial court’s compliance with that statute do not violate Brandt’s right to t rial by jury under Article I, Section 5 of the Ohio Constitution. Simpkins at ¶ 27; Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 37.January Term, 2022

49 B. Brandt cannot demonstrate that as applied to her circumstances, R.C. 2315.18(B)(2) violates her rights to open courts and to a remedy {¶ 109} Brandt argues that R.C. 2315.18(B )(2) violates her right to ope n courts and to a remedy under Artic le I, Section 16 of the Ohio Constitution. Under our precedent and understanding of “meaningful remedy,” Brandt cannot demonstrate by clear and convinc ing evidence that her rights to open courts and to a remedy has been violated. {¶ 110} Article I, Section 16 of the Ohio Constitution provides, “All c ourts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have reme dy by due course of law, and shal l have justice
administered without denial or d elay.” “The constitutional rig ht to a remedy ‘requires an opportunity granted a t a meaningful time and in a meaningful
manner.’ ” Simpkins , 149 Ohio St.3d 307, 2016-Ohio-118, 75 N.E.3d 122, at ¶ 29, quoting Hardy v. VerMeulen , 32 Ohio St.3d 45, 47, 512 N.E.2d 626 (1987), overruled on other grounds by Ruther , 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291. But a plain reading of the provision “reveals that it does not provide
for remedies without limitation.” Ruther at ¶ 12. Article I, Section 16 prohibits “statutes that effectively prevent individuals from pursuing re lief for their injuries.”

Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 44. {¶ 111} The General Assembly has a right to alter the common law, wheth er that be by abolishing an acti on, defining an action, placing a statutory limitation on the action, or determining the re medies that may be afforded un der an action.

Ruther at ¶ 14; Groch , 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, at ¶ 150. The General Assembly has limited the amount of compensa tory noneconomic damages that a plaintiff may recover under R.C. 231 5.18(B)(2), but it has not “wholly den[ied] pers ons a remedy for their injuries .” Simpkins at ¶ 30, citing Arbino at ¶ 45. The limit imposed by the General Assembly on nonecon omic damages is not nominal—R.C. 2315.18(B)(2) caps noneconomic dama ges atS UPREME C OURT OF O HIO

50 $250,000 in this situation. Also, there are other remedies ava ilable in addition to an award of noneconomic damages, like an award for unlimited ec onomic damages under R.C. 2315.18(B)(1) and an aw ard for punitive damages unde r R.C. 2315.21. Though a several-million-dollar re duction in Brandt’s noneconom ic-damages award is significant, we cannot say that an award of $114,250,0 00—the award Brandt would receive once the statutory cap is applied in this case—is not a meaningful remedy. {¶ 112} Brandt’s complaint is really that the cap in R.C. 2315.18(B)(2) is insufficient to compensate her as a minor victim of sexual abus e. Citing Clarke v. Oregon Health Sciences Univ., P.C., 343 Or. 581, 175 P.3d 418, Brandt argues that the award is merely an emasculated version of the remedy that w as available at
common law. In Clarke , the Oregon Supreme Cour t held that under Oregon’s Constitution, the state legislatur e is free to “modify both the form and measure of recovery for an injury, as long as it does not leave the injure d party with an ‘emasculated’ version of the remedy that was available at commo n law.” Id. at 606;
see also Horton , 359 Or. at 220, 376 P.3d 998 (“the substantiality of the legi slative remedy can matter in determining whether the remedy is consiste nt with the remedy clause”). In Ohio, we have not limited the General Assembly’s right to modify damages for torts at common law. And our Constitution seems t o allow the General Assembly to alter the remedies, especially considering Article I, Section 19a. But even if the General Assembly’s ability to modify common-law rem edies was limited in that it could not substantially modify the award tha t was available at common law, Brandt does not provi de any evidence that a monetar y award for noneconomic damages greater tha n $250,000 was available at comm on law. {¶ 113} The determination of a meaningful remedy is a policy decision t hat must remain in the purview of the General Assembly. See Groch , 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, at ¶ 150; Cleveland v. State , 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 40. R.C. 2315.18(B)(2) does not denyJanuary Term, 2022

51 Brandt a meaningful remedy unde r the law; it limits one of many available remedies, and that limitation does not result in a nominal reme dy. Therefore,
Brandt cannot demonstrate that R.C. 2315.18(B)(2) violates her rights to open courts and to a remedy as guarant eed under Article I, Section 1 6 of the Ohio
Constitution. C. R.C. 2315.18(B)(2) as applied to Brandt does not violate her right to equal protection under Article I, Section 2 of the Ohio Constitution {¶ 114} Brandt argues that, as applied to her circumstances, R.C. 2315.18(B)(2) violates her right to equal protection under Arti cle I, Section 2 of the Ohio Constitution. This argument too is without merit. {¶ 115} Article I, Section 2 of the Ohio Constitution guarantees equal protection under the laws: “All political power is inherent in the people. Government is instituted for their equal protection and benefit * * *.” This clause “requires that individuals be treated in a manner similar to ot hers in like
circumstances.” McCrone , 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, at ¶ 6. {¶ 116} A statutory classification does not violate equal protection if it “bears a rational relationship to a legitimate government inter est” and does not involve a suspect class or fundamental right. Id. at ¶ 8. Because R.C. 2315.18(B)(2) does not implicate a fundamental right, because i t does not violate the right to a jury trial or the rights to open courts and to a remedy, and because
Brandt does not maintain that R.C. 2315.18(B)(2) affects a susp ect class, rational basis is the appropriate test. See Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 49; McCrone at ¶ 8. {¶ 117} To prevail on this claim, Brandt must demonstrate “ ‘either tha t there was no rational basis for the creation of the class itsel f or that those within the class are not being treated equally in the furtherance of a leg itimate governmental
interest.’ ” Simpkins, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 48,S UPREME C OURT OF O HIO

52 quoting Morris v. Savoy , 61 Ohio St.3d 684, 691, 576 N.E.2d 765 (1991). “A
classification does not fail rati onal-basis review because it i s not made with mathematical nicety or because in practice it results in some i nequality.” (Cleaned up.) Am. Assn. of Univ. Professors, Cent. St ate Univ. Chapter v. Cent. State Univ ., 87 Ohio St.3d 55, 58, 717 N.E.2d 286, 290 (1999). This court w ill set aside legislative classifications only if they are “ ‘based solely on reasons totally unrelated to the pursuit of the S tate’s goals and only if no gr ounds can be conceived to justify them.’ ” Simpkins at 48, quoting Clements v. Fashing , 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). {¶ 118} Brandt argues that R.C. 2315.18(B) creates four classes of pers ons distinguished by their injuries : (1) persons who have suffered catastrophic physical injuries, (2) persons who hav e suffered noncatastrophic physica l injuries, (3) persons who have suffered catas trophic nonphysical injuries, an d (4) persons who have suffered noncatastrophic nonphysical injuries. While Bran dt is correct that there are four injury classifica tions, they are not the ones th at she lists. R.C. 2315.18(B)(3) does not create classe s of plaintiffs based on wh ether they suffered “catastrophic injuries.” The term “catastrophic injury” appear s nowhere in the

statute. {¶ 119} Rather, the Arbino court coined the term “catastrophic injury” to easily describe the injuries that were exempt from capped damag es in R.C. 2315.18(B)(3). Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 47, 60-61, 72. And this court further complicated matters in Simpkins when we distinguished “catastrophic physi cal injuries” from “catastroph ic nonphysical injuries.” Simpkins at ¶ 41. The majority opinion continues with this distinction , holding that plaintiffs suffering from “catastrophic psychologi cal injuries” are wrongfully subjected to the caps on damages in R.C. 2315.18(B)( 2) in violation of due process.January Term, 2022

53 {¶ 120} While the “catastrophic” distinc tion was seemingly harmless and appeared to be useful when this court decided Arbino and Simpkins , this description has led to some confusion and allowed litigants and courts to r eframe the injuries described in R.C. 2315.18(B)(3) in a manner that the General As sembly did not adopt. See Poteet v. MacMillan , 12th Dist. Warren No. CA2021-08-071, 2022- Ohio-876, ¶ 17; Torres v. Concrete Designs, Inc. , 2019-Ohio-1342, 134 N.E.3d 903, ¶ 77 (8th Dist.) (using Arbino ’s description of injuries as “catastrophic” to inform its view of “permanent and substantial physical deformit y” in the context of R.C. 2315.18(B)(3)). The use of the term “catastrophic” has wr ongly encouraged litigants and courts to place their own value judgments on plai ntiffs’ injuries instead of following the langua ge in the statute. {¶ 121} The fault is our own. By using the term “catastrophic” to characterize the types of injuries exempted from the caps on da mages, we placed words in the statutory scheme that do not appear there and rein forced the wrong idea that “catastrophic” is an element of the injuries listed i n R.C. 2315.18(B)(3). Because “catastrophic” appears now here in the statute, the “cat astrophic”
distinction should not be use d or developed further. {¶ 122} We must return to the plain language of the statute. The excep tions to limits on noneconomic compens atory damages in R.C. 2315.18(B )(3) apply to a person who has sustained (1) an injury resulting in “[p]ermanen t and substantial physical deformity,” (2) an inj ury resulting in “loss of use of a limb,” (3) an injury resulting in “loss of a bodily organ system,” or (4) a “[p]erma nent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activit ies.” Anyone who experiences one of these four t ypes of injuries is exempt from the noneconomicdamages caps. See R.C. 2315.18(B)(3). Anyone who has not experienced one of these types of injuries is not so exempt. R.C. 2315.18(B)(2). And it must be emphasized again that the “classification remains the same rega rdless of the age ofS UPREME C OURT OF O HIO

54 the victim and the nature of [the] tort.” Joint dissenting opi nion, ¶ 67. R.C. 2315.18
does not treat Brandt nor other victims of sexual assault diffe rently from other tort
victims who do not suffer from one of the four types of injurie s listed above. {¶ 123} As discussed in the joint dissent, a minor victim of sexual ass ault might reasonably fall into one o f these categories. And contra ry to the majority opinion’s argument, it is not tha t mental health is not conside red in the statute—an exemption for it is just not as obviously available and easy to obtain. “The General Assembly had a substantial interest in protecting our civil-jus tice system and our economy when it enacted the statue that set a cap on noneconomi c damages as a means to limit the awards for injuries that are either difficul t to prove or the extent of which is difficult to quantify without evidence of some phys ical component. This is a reasonable and legitima te government interest, and th e General Assembly has not arbitrarily selected winne rs and losers under the statu te.” Joint dissenting opinion at ¶ 69. Indeed, Brandt may have fallen into one of th e exempted categories of injuries due to her mental illnesses—had she made the argume nt. See, e.g ., Ozmun v. Customer Engineering Servs., L.L.C. , Cuyahoga C.P. No. CV 14 824745, 2015 WL 13238578 (July 31, 2015) (allowing the jury to determin e whether the damages cap applied after a plai ntiff offered an expert report finding that her posttraumatic stress disorder (“P TSD”) was a physical, function al injury because it caused physical harm, including brain-cell damage and atrophy t o the hippocampal gyrus and other areas of the brain). {¶ 124} Thus, Brandt cannot demonstrate by clear and convincing evidenc e that her capped damages award vi olated equal protection, becaus e R.C. 2315.18(B)(2) serves a legitimate gove rnmental interest and the re was a rational
basis for the creation of the two classes—victims who fall into one of the four categories under R.C. 2315.18( B)(3) and those who do not.January Term, 2022

55 D. The majority opinion’s due-process anal ysis is wrong and will cause chaos in our judicial system {¶ 125} I agree fully with the joint dissent that the majority opinion is wrong in both its due-process analysis and its holding that the cap o n noneconomic damages under R.C. 2315.18 as applied to Brandt is unconstituti onal. And the majority opinion’s misinterpretation of our due-process jurispr udence is not only wrong, it creates chaos within our judicial system. {¶ 126} The majority opinion’s holding in this case applies not only to Brandt but to similarly situated victims. But that holding can not be construed as a blanket prohibition against caps on damages for all minor sex-a buse victims. Rather, those victims will have to demonstrate that they are “s imilarly situated” to Brandt and her “extremely uncommon” case. Majority opinion, ¶ 34. This will prove to be difficult, especially considering this court’s hold ing in Simpkins , 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, in which this co urt held that caps on damages were constitutional as applied to a different minor victim of sexual assault; this court had rejected Simpkins’s as-applied due-proc ess challenge to R.C. 2315.18—the same argument that was raised by Brandt in this cas e. See Simpkins at ¶ 1. Under the majority opinion’s decision here, courts are now left to compare whether a child victim is more similar to Simpkins, a 15-year-o ld girl who was raped by her pastor during two counseling sessions at her churc h, or to Brandt, a girl who, between the ages of 11 and 12, was raped numerous tim es by her friend’s
father while she was dru gged or asleep at his home. {¶ 127} Courts may ask: Did the victim have PTSD, anxiety, depression, trust issues with men, nightmares, and fear of the dark like Si mpkins? Or did the victim have PTSD, anxiety, nightmares, difficulties sleeping, a nd agoraphobia like
Brandt? Did the vic tim graduate high school , engage in sports, do well in college, and have a job, like Simpkins? O r did the vic tim graduate high school, have a job, get an apartment, but lose everything after falling victim to d rug abuse andS UPREME C OURT OF O HIO

56 addiction, which led to a suici de attempt and ho melessness, lik e Brandt? Do we need to consider the victim’s suffering in light of when the ab use occurred and when the tort action was pursu ed in order to be tter understand the victim’s injuries and responses? Does it matter that a victim has had more time to reflect on how the abuse has affected his or her life? If this process seems difficult, that’s because it is. And this analysis will become ever more difficult as ti me goes on and more child-abuse cases are plotted on t his arbitrary grid created by the majority opinion. {¶ 128} The majority opinion, through its due-process analysis, forces trial courts to engage in their own po licy and value determinations i n analyzing whether a victim has suffered “catastrophi c psychological injuries,” a term not even used in the statutory scheme. Then the majority opinion requires trial courts to compare abuse horror stories to determine whether the victim is relieve d from caps on damages. This nightmare could ha ve been avoided had the majori ty opinion simply applied the objective constitutional analysis that was used in Simpkins and left these policy considerations for the General Assembly.
V. Conclusion {¶ 129} Should the General Assembly revisit its decision to cap damage awards, especially in cases like Brandt’s? Perhaps. But it is not the role of this court to rewrite statutes or make judicial decisions based on o ur preferred policy preference. As the late United S tates Supreme Court Justice Ru th Bader Ginsburg stated, “Judges must be mindful o f what their place is in this system and must always remember that we live in a democracy that can be destroy ed if judges take it upon themselves to rule as Platonic guardians.” Schweitzer, Ruth Bader Ginsburg, Wise Legal Giant , 37 Touro L.Rev. 533, 537 (2021). The majority opinion clearly does not hee d these wise words. {¶ 130} If the cap on damages awards is to be modified or eliminated, i t should be done through one of the mechanisms supported by our C onstitution, likeJanuary Term, 2022

57 legislative amendment, legis lative referendum, or constitutiona l referendum. It
should not be modified in the ma nner chosen by the majority opi nion today. {¶ 131} Because Brandt cannot demonstrate that R.C. 2315.18 is unconstitutional on its face or as applied to her, this court s hould hold that the cap on her noneconomic-damages awar d is constitutional. Because it does not do so, I must respectfully dissent. {¶ 132} In addition, over my objection, the court did not follow the re gular and orderly internal rules of operation and practice in this ca se due to others’ seeming concerns about voting on any motion for reconsideration . Hence, my time on this case was aberrantly and improperly limited. Thus, I mo st humbly apologize to the citizens of Ohio that my individual dissent is not of th e quality that I have come to deliver and that the public expects. This case involve s many constitutional
issues that deserve to be more c ompletely analyzed and debated so that they may be resolved appropria tely. The litigants deserve full and fair consideration of their case, which has been shortcha nged here. We should do better.

_________________ The Fitch Law Firm, John K. Fitch, and Kirstin A. Peterson; Taf t, Stettinius & Hollister, L.L.P., and Stephen C. Fitch; and Center for Const itutional Litigation, P.C., and Robert S. P eck, for appellant. Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Litt le Jr., and Francesca R. Boland, for appellee. Rittgers & Rittgers and Konrad Kircher, urging reversal for ami ci curiae Child USA, Ohio Crime Victim Justice Center, Coalition for Chil dren, and Crime Victims Center, Inc. The Law Offices of Pamela J. Miller and Pamela J. Miller, urgin g reversal
for amicus curiae American Pro fessional Society on the Abuse of Children.S UPREME C OURT OF O HIO

58 Paul W. Flowers Co., L.P.A., Louis E. Grube, and Paul W. Flower s; and Cooper & Elliott, L.L.C., and Charles H. Cooper Jr., urging rev ersal for amici
curiae Ohio Association for Jus tice and American Association fo r Justice. Camille M. Crary, urging reversal for amicus curiae Ohio Allian ce to End
Sexual Violence. Shook, Hardy & Bacon, L.L.P., Vict or E. Schwartz, Mark A. Behre ns, and Cary Silverman, urging affirmance for amici curiae Chamber of C ommerce of the United States of America, NFIB Small Business Legal Center, Ame rican Tort Reform Association, Coalition for Litigation Justice, Inc., and American Property Casualty Insurance Association. Dinsmore & Shohl, L.L.P., Frank C. Woodside III, Peter J. Georg iton, and Brady R. Wilson, urging affirmance for amicus curiae Product Li ability Advisory Counsel, Inc. Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor Gen eral, and Michael J. Hendershot, Chief De puty Solicitor General, urging a ffirmance for amicus curiae Ohio Attorney General Dave Yost. Calfee, Halter & Griswold, L.L.P ., Jason J. Blake, and Gretchen L. Whaling, urging affirmance for a micus curiae David Goodman, for mer chairman of the Ohio Senate Judiciary Committee for Civil Justice. Bricker & Eckler, L.L.P., Anne M arie Sferra, and Daniel C. Gibs on, urging
affirmance for amicus curiae Ohio Alliance for Civil Justice. Tucker Ellis, L.L.P., Benjamin C. Sassé, and Elisabeth C. Arko, urging
affirmance for amicus curiae Oh io Association of Civil Trial At torneys.

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