[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Brandt v. Pompa, Slip Opinion No. 2022-Ohio-4525.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 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. 

SLIP OPINION NO. 2022-OHIO-4525

BRANDT, APPELLANT, v. POMPA, APPELLEE, ET AL. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Brandt v. Pompa, Slip Opinion No. 2022-Ohio-4525.] 

Civil law—Damages—R.C. 2315.18—As-applied 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 reversed—Jury verdict on damages 

reinstated. 

(No. 2021-0497—Submitted March 30, 2022—Decided December 16, 2022.) 

APPEAL from the Court of Appeals for Cuyahoga County, 
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2

No. 109517, 2021-Ohio-845. 

__________________ 

O’CONNOR, C.J. 

{¶ 1} In this appeal, we determine whether the compensatory-damages caps 

for noneconomic loss in R.C. 2315.18 are unconstitutional as applied to appellant, 

Amanda Brandt. A jury found that Brandt was entitled to a total-damages award 

that included $20 million in compensatory damages for noneconomic loss against 

appellee, Roy Pompa, who sexually abused Brandt when she was a child. The trial 

court applied the statutory damages cap in R.C. 2315.18 and limited the award for 

noneconomic loss to $250,000. We find the statutory cap as applied 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 unconstitutional as applied to 

Brandt. 

I. RELEVANT BACKGROUND 

{¶ 2} In 2006, Pompa was arrested and charged with, among other things, 

17 counts of rape, 5 counts of kidnapping, 55 counts of pandering sexually oriented 

matter involving a minor, and 21 counts of gross sexual imposition. Pompa was 

accused of committing these acts against Brandt and other victims. Brandt was 11 

and 12 years old when the incidents occurred. 

{¶ 3} A jury found Pompa guilty of over 90 counts, 34 of which involved 

acts against Brandt.1

 The court sentenced Pompa to life in prison. 

1. The offenses committed against Brandt for which Pompa was found guilty occurred on seven 

different occasions in 2004 and 2005 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 Pompa2 in the 

Cuyahoga County Court of Common Pleas for intentional criminal wrongdoing, 

knowing dissemination of child pornography, and intentional infliction of 

emotional distress. She also asked the trial court for a declaratory judgment holding 

R.C. 2315.18 unconstitutional as applied to her case. The trial court held that based 

on the verdicts in the criminal case and Pompa’s admissions, there was no genuine 

issue of material fact as to Pompa’s liability in the tort action. A jury trial was 

commenced solely to determine the type and amount of Brandt’s damages. 

{¶ 5} At the damages trial, the jury learned of the 34 criminal offenses 

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 from a clinical 

psychologist. 

{¶ 6} Brandt testified that Pompa was a friend of the Brandt family and that 

one of Pompa’s daughters was her childhood best friend. Brandt frequently 

attended sleepovers at Pompa’s residence, just a mile away from her home. Brandt 

recalled that before going to bed at the sleepovers, Pompa would offer her a juice 

box, iced tea, or water. She said that although it did not strike 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 found that “[o]n many 

occasions, Pompa put illicit substances in Brandt’s drinks before 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 aware. Brandt 

testified that she recalled occasions of abuse at the Pompa residence, particularly, 

being woken up at night at the feeling of being touched and realizing it was 

someone touching her all over and under her underwear. Eventually, Brandt no 

2. Brandt also filed her complaint against Pompa’s ex-wife, but those claims were settled before 

trial. 
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longer wanted to go to the Pompa residence. She realized that “something was not 

right” there, and she felt “very 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 sexual abuse of Brandt 

on at least eight occasions. Id. at ¶ 6. Pompa also admitted using a “spy cam” to 

view his daughter’s friends when they visited the house. 

{¶ 8} Brandt told the jury she “was a pretty normal kid” until the abuse. Her 

mother described Brandt prior to the abuse as follows: 

She was a beautiful, happy-go-lucky friend to everyone. She 

wanted to conquer the world, loved to travel, loved to go places, had 

big dreams, was involved in a lot of school activities. You know, 

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 went 

[on] all kinds of mission trips. She just had a big heart and was very 

outgoing. 

{¶ 9} Brandt’s mother testified that her daughter became a recluse after the 

abuse: “Her anxiety level was huge. She never wanted to go anywhere. We saw 

this beautiful, outgoing child turn into someone that didn’t want to leave. She just 

wanted to be alone.” Brandt’s mother said that her daughter became angry and had 

sleeping problems. These issues prompted Brandt’s mother to take Brandt to see a 

therapist twice a week, even though the therapist was not close to their home. 

Brandt’s mother testified that the abuse had “totally changed” her daughter. She 

explained, “I do not have the same daughter anymore. She has a lot of anger, has 
January Term, 2022 

5

a lot of anxiety issues. She can’t handle being at a lot of family functions. She has 

to go to another room when everyone is there. She just is not the same kid that we 

knew growing up and even now in her adulthood.” 

{¶ 10} Brandt also testified to the changes she experienced as a result of the 

abuse. She started having nightmares after the first time Pompa sexually abused 

her, and she continues to have nightmares, including ones in which Pompa appears. 

Brandt told the jury that she became a “very angry kid” after the abuse started. She 

read for the jury a statement she had prepared for Pompa’s sentencing in the 

criminal case. In that statement, she described having been involved in clubs, 

community service, and social activities before the abuse. She wrote about losing 

her relationship with her best friend, Pompa’s daughter. She described having 

difficulty sleeping and having serious emotional problems. “Most of the time I 

don’t know what to feel,” she wrote. “When I do, it’s always anger.” She also 

wrote about not being able to remember anything at school, which caused her 

grades to suffer and affected which classes she was able to take in high school. 

{¶ 11} Brandt testified that after the abuse stopped, she graduated from high 

school and moved out of her parents’ home into an apartment, but 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 ended up getting terminated from that job because I 

could no longer do the things required.” She eventually found a door-to-door-sales 

job, which was worked in pairs. Her coworker offered her heroin, assuring Brandt 

that she “would feel better” if she tried it. Brandt did try it and became addicted. 

She told the jury that at that time, she was “desperate for anything that would make 

[her] feel okay.” 

{¶ 12} At the beginning of her drug addiction, Brandt lost her apartment 

and became homeless for approximately a year. Brandt testified about continuing 

to have panic attacks and not being able to sleep during that time. She said she 
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“was at a really low point in [her] mental health and there was no break.” She 

eventually sought help and returned to her parents’ home. 

{¶ 13} Brandt testified that while living with her parents and trying to get 

sober, her “mental health continued to get worse.” She testified 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 than 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 about Pompa, which 

affected her sleep and her ability to function the next day despite her taking 

prescription medication to try to control them. She worked part-time as a server in 

the food industry, working Mondays and Tuesdays to avoid the busier 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 testified that she could not foresee a time when she 

would not need counseling. She explained, “I’ve seen multiple different counselors 

in multiple different areas and gone through multiple different treatment plans. 

Every counselor I’ve seen has agreed on the diagnosis of [posttraumatic stress 

disorder (“PTSD”)] and anxiety disorder.” Brandt also described her use of 

medication not only to prevent nightmares but also to treat depression and PTSD. 

She testified that one of the prescribed medications had improved her ability to 

sleep uninterrupted, but it was unsuccessful at stopping all the nightmares. She 

testified that her anxiety, including difficulty being in crowds 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 daily activities like 

grocery shopping. 
January Term, 2022 

7

{¶ 16} Dr. Patrick Yingling, a psychological expert, testified in a video 

deposition about his evaluation of Brandt. Dr. Yingling testified that Brandt 

described for him her experiences with the abuse and with her mental health 

following the abuse. He noted that Brandt described “her experience of developing 

panic attacks and agoraphobia in 2014.” He said she recalled staying locked in a 

bedroom for a “large chunk of months.” Dr. Yingling testified that Brandt 

described continuing to experience nightmares, thoughts about her 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 had tried to fix the meltdowns but that she was still 

experiencing them. Brandt provided Dr. Yingling with specific instances of anxiety 

attacks, for example, when not being allowed to be with her daughter 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 administered 

and the records reviewed, Dr. Yingling opined that Brandt suffered from PTSD as 

a result of being sexually assaulted by Pompa and that her symptoms would persist 

to some degree over a significant period of time. He opined that Brandt would 

benefit from ongoing psychotherapy as well as psychiatric medication. 

{¶ 18} On cross-examination, Pompa’s counsel questioned Dr. Yingling 

about whether Brandt’s symptoms were conclusively causally linked to the sexual 

abuse or whether they were, instead, brought on or exacerbated by other factors, 

like Brandt’s addiction or homelessness. Dr. Yingling explained that the criteria 

for a PTSD diagnosis requires exposure to actual or threatened death, serious injury, 

or sexual violence, and he acknowledged that an overdose or a suicide attempt 

could cause or contribute to a diagnosis of PTSD. 
SUPREME COURT OF OHIO

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{¶ 19} At the close of the evidence, the trial-court judge instructed the jury 

on its duty to determine what damages, if any, Brandt was entitled to. The trial 

court included the following specific 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 for 

the actual injury directly caused by the conduct of the Defendant, 

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 Plaintiff’s injury, including, but not limited to, 

pain and suffering; disfigurement; mental anguish; and any other 

intangible loss. “Intangible loss” refers to loss that does not 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 cause of 

the Defendant’s conduct. “Reasonably certain” means probably, 

that is, more likely to occur than not. 

If you find that Plaintiff failed to prove by the greater weight 

of the evidence any amount of damages, 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 use a mathematical formula to 

compensate for pain and suffering and disability cannot be 

considered as evidence. There is no recognized mathematical 

formula for pain and suffering. Compensation for pain and suffering 

and disability is solely within 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 damages caps in R.C. 

2315.18 went into effect, (2) $20 million in compensatory damages 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 damages 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 declaratory relief, and 

reduced Brandt’s $20 million noneconomic-damages award to $250,000. 

{¶ 22} Brandt appealed. The Eighth District 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), and 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. 
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II. ANALYSIS 

A. R.C. 2315.18’s cap on noneconomic damages 

{¶ 24} R.C. 2315.18 describes how compensatory damages may be 

awarded in tort claims for economic loss and noneconomic loss. Relevant here is 

noneconomic loss, which includes “pain and suffering, loss of society, consortium, 

companionship, care, assistance, attention, protection, advice, guidance, counsel, 

instruction, training, or education, disfigurement, mental anguish, 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 and “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 plaintiff in that tort action 

to a maximum of [$350,000] for each plaintiff in that tort action or a maximum of 

[$500,000] for each occurrence that is the basis of that tort action.” R.C. 

2315.18(B)(3)(a) and (b) explain that there is no limit on damages 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 and perform life-sustaining activities.” 

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 that is a subject of a tort action; 

(b) All expenditures for medical care or treatment, rehabilitation 

services, or other care, treatment, services, products, or accommodations as a 

result of an injury or loss to person or property that is a subject 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 than attorney’s fees 

incurred in connection with that action. 
January Term, 2022 

11 

{¶ 25} These caps on damages for noneconomic loss became effective April 

7, 2005.4

 See Am.Sub.S.B. No. 80, Section 3, 150 Ohio Laws, Part V, 7915, 8024-

8031 (“S.B. 80”). S.B. 80 was not the General Assembly’s first effort to enact tort 

reform, but previously enacted tort-reform statutes had been successfully 

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 Malpractice Act of 1975, 

enacted by Am.Sub.H.B. No. 682, 136 Ohio Laws, Part II, 280, 2813, 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, violated 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 right 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 (Am.Sub.H.B. No. 

350, 146 Ohio Laws, Part II, 3867, violated the separation-of-powers 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, but the amendments do not affect 

Brandt or the question of her entitlement to the amount of noneconomic damages awarded to her by 

the jury. 
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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 applied to the facts of her 

case. In an as-applied constitutional challenge, “the party making 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 this court addressed in 

Arbino differs from Brandt’s constitutional claim here. To establish a constitutional 

violation through a facial challenge, Arbino was required to demonstrate “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 constitutional violation through 

a facial challenge, it is not enough “ ‘that a statute might operate 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 Ohio Constitution guarantees every

person the right to a “remedy by due course of law” “for an injury done him in his 

land, goods, person, or reputation.” In Arbino, one asserted basis of the facial 

constitutional challenge to R.C. 2315.18 was that the damages caps in that statute 

violated the “due course of law” provision of the Ohio Constitution. Arbino at ¶ 7, 

48. In addressing that question, this court applied the rational-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 public 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 five 
January Term, 2022 

13 

of the syllabus. Considering the second prong of that test, this court noted its 

concern that in previous efforts to cap tort damages, the General Assembly had 

“imposed the cost of the intended 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 concern by allowing for limitless economic 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 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, and by 

setting the limits for those not as severely injured 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 public while limiting damages to litigants,” and that such 

“logic [was] neither unreasonable nor arbitrary.” Id. 

{¶ 29} This court also rejected Arbino’s equal-protection challenge with 

similar reasoning, employing the rational-basis test and concluding as follows: 

The distinctions the legislature drew in refusing to limit certain 

injuries were rational and based on the conclusion that catastrophic 

injuries offer more concrete evidence of noneconomic damages and 

thus calculation of those damages 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 presented in 

Arbino and the facts of this case. Psychological injuries are not included 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 statutory provisions except 
SUPREME COURT OF OHIO

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 care for self and 

perform life-sustaining activities.” (Emphasis added.) Id. Arbino originated in 

federal court as a product-liability action against the companies that had created a 

hormonal-birth-control medication that allegedly caused the plaintiff’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 opine on the reason for 

their exclusion from the statute. 

{¶ 31} But here, in light of the unavailability of the exception to the 

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 catastrophic 

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—people like Brandt who were 

victimized at a very young age and who bring civil actions to recover damages from 

the persons who have been found guilty of those intentional criminal acts—the 

constitutional guarantee of due course of law is unjustly withheld. 

{¶ 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 victimization as a child. For 

example, in Arbino, we acknowledged the General Assembly’s concern that 

“noneconomic damages are inherently 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 jury 
January Term, 2022 

15 

trial) from considering (1) a defendant’s wrongdoing, misconduct, or guilt, (2) a 

defendant’s wealth or financial resources, or (3) evidence offered for the purpose 

of punishing the defendant, when determining the amount of compensatory 

damages to award for noneconomic loss. And if a defendant challenges an award 

of compensatory damages for noneconomic loss as excessive, R.C. 2315.19 

instructs the trial court to consider, among other things, whether the evidence 

“inflamed the passion or prejudice of the trier of fact.” Given 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 allegedly excessive award on a case-by-case basis, the 

General Assembly’s caps on damages as applied to a plaintiff such as Brandt seem 

arbitrary. It is unclear how application of the caps on damages 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 any manner other than an arbitrary one, to address 

the General Assembly’s concerns that noneconomic damages are inherently 

subjective and easily tainted 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 civil 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 innovation.’ ” 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 criminal liability for 

abusing Brandt has already been determined. 

{¶ 34} The General Assembly’s concern about the “cost of doing business,” 

S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, at 8024, as it relates to the cost 
SUPREME COURT OF OHIO

16 

of general-liability-insurance policies that businesses purchase is unrealistic 

because coverage for the types of injuries that Brandt sustained in this case is 

extremely uncommon and, even if a business’s liability-insurance policy were in 

play, most policies now contain exclusions for intentional conduct 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 damages cap in this 

case is Brandt’s abuser, not the public and not the insurance industry. 

{¶ 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 policy decision was “tailored to maximize benefits to 

the public while limiting damages to litigants” and was based on 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 physical, in nature. Thus, in 

concluding in Arbino that the General Assembly’s decision to enact compensatorydamages caps for noneconomic loss 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 for noneconomic loss that was awarded by the 

jury. While policy decisions are the purview of the legislature, it is the judiciary’s 

purview to determine whether those 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 light of 

the facts of this case, the words of one of the dissenting justices in Arbino are 

persuasive: 

There is no rational reason to “improve” the tort system in Ohio at 

the sole expense of a small group of people who are able to prove 

that they suffered damage significant enough to exceed the damages 

caps imposed by the General Assembly. 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 contemplated by the dissenting justice quoted above—namely, 

those child victims who suffer traumatic, extensive, and chronic psychological 

injury as a result of intentional criminal acts and who sue their abusers for civil 

damages. Subjecting this group to the compensatory-damages caps for 

noneconomic loss has little to no connection to improving the tort system in Ohio.5 

This group comprises victims who are entitled to the full range of constitutional 

remedies, regardless of whether their severe injuries are physical or psychological. 

{¶ 37} These concerns leave sufficient doubt that Arbino correctly 

determines the constitutionality of R.C. 2315.18 as applied to Brandt and similarly 

5. The General Assembly’s justification for enacting tort-reform 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 presume that some level of harm 

caused by negligent acts (e.g., automobile accidents, defective consumer products, imperfect 

medicine, human error) is tolerable in society on balance for institutions and businesses that need 

predictability for liability for this kind of conduct. But the sexual abuse of children is never

tolerated. Accordingly, it makes no sense to credit the General 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. 
SUPREME COURT OF OHIO

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, we conclude that Brandt 

has shown by clear and convincing evidence that R.C. 2315.18 is unconstitutional 

as applied to her under the due-course-of-law provision in Article 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 this 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 Brandt has 

suffered severely as a victim of Pompa’s intentional criminal acts. There is no 

dispute that the jury found that Brandt should be awarded compensatory 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 instructions to the jury 

explained that Brandt sought compensation 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 provided: “There is no recognized mathematical 

formula for pain and suffering. Compensation for pain and suffering 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 testimony, inquiring about 

other possible causes of Brandt’s injuries. Charged with the trial court’s 

instructions and with answers to their questions, the jurors unanimously 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 compensatory damages for noneconomic loss described in division (B)(2) of 

this section, and neither counsel for any party nor a witness shall inform the jury or potential jurors 

of that limit.” 
January Term, 2022 

19 

Brandt $20 million in compensatory damages for permanent noneconomic 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 should calculate the amount of damages pursuant to the 

damages caps in R.C. 2315.18. He did not challenge the evidence by arguing, for 

example, that the award was excessive, that the evidence had inflamed the passion 

or prejudice of the jury, that the jury improperly considered his misconduct, or that 

the award was in excess of verdicts awarded to similarly situated plaintiffs. See 

R.C. 2315.19(A)(1) and (2). 

{¶ 41} The Eighth District characterized the evidence regarding whether 

“all of [Brandt’s] mental health issues and symptoms can be attributed 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 instructions 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 cause of the Defendant’s 

conduct.” And the jury was instructed that it could award nominal damages if it 

found that Brandt had failed to prove any amount of damages by the greater weight 

of the evidence. Nonetheless, the jury found a significant monetary award to be 

appropriate. Notwithstanding the application of the compensatory-damages caps, 

the fact-finding function of the jury to determine the amount of damages to be 

awarded is not to be intruded upon or ignored or replaced by another 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 defendant has challenged 

as excessive,” R.C. 2315.19(A), and appellate courts may conduct 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 credibility of Brandt’s testimony 
SUPREME COURT OF OHIO

20 

and that of the other witnesses. In doing so, the jury determined that Brandt 

suffered permanent noneconomic loss severe enough to warrant a $20 million 

award for the abuse that she suffered after R.C. 2315.18 went into effect. Thus, the 

court of appeals’ equivocation regarding the evidence is unpersuasive because it 

appears that the court was substituting its own view of the evidence 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 damages 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 set of facts that make the statute 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 meaningful relief.” Some of the amici in support of 

Pompa argue a similar refrain. The issue we address, however, is the 

constitutionality of a single statute or, stated more specifically, the constitutionality 

of the caps on damages for noneconomic loss in R.C. 2315.18 as applied to Brandt. 

It is immaterial that some of the abuse in this case occurred before R.C. 2315.18’s 

caps on damages became effective, thereby entitling Brandt to uncapped damages 

for noneconomic loss that she suffered from acts that occurred during that time. 

{¶ 44} Nor should the jury’s award of punitive damages affect the 

consideration of the compensatory damages awarded to Brandt. The 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). Additionally, “punitive damages are separate 
January 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 awards of damages 

together here. 

{¶ 45} Additionally, the question whether Brandt can ultimately recover 

any portion of the total-damages award from Pompa is irrelevant to determining 

whether R.C. 2315.18 is unconstitutional as applied to Brandt and similarly situated 

plaintiffs. Any suggestion otherwise serves to prejudice the reader and should be 

seen for what it is: a distraction from the legal question before 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 plaintiffs (i.e., people 

like Brandt who were child victims of intentional criminal conduct and who bring 

civil actions to recover damages from the persons who have been found guilty of 

those intentional criminal acts) to the extent that it fails to include an exception to 

its compensatory-damages caps for noneconomic loss for plaintiffs who have 

suffered permanent and severe psychological injuries. The judgment of the Eighth 

District Court of Appeals is reversed, and we reinstate the jury’s verdict on 

damages. 

Judgment reversed. 

DONNELLY, STEWART, and BRUNNER, JJ., concur. 

KENNEDY, FISCHER, and DEWINE, JJ., dissent, with an opinion. 

FISCHER, J., dissents, with an opinion. 

_________________ 

KENNEDY, FISCHER, and DEWINE, JJ., dissenting. 
SUPREME COURT OF OHIO

22 

{¶ 47} Appellee Roy Pompa’s abuse of appellant, Amanda Brandt, is 

appalling, and there is no doubt that 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, we must respectfully dissent. 

{¶ 48} Although this case has been litigated on the questions whether the 

caps on compensatory noneconomic damages enacted in R.C. 2315.18 violate the 

Ohio Constitution’s guarantees of due process of law, equal protection, trial by jury, 

open courts, and a remedy, the majority opinion today finds only a due-process 

violation of Article I, Section 16 of the Ohio Constitution. It does that by applying 

rational-basis review, a standard that presupposes that R.C. 2315.18 does not 

implicate a fundamental constitutional right. The majority opinion holds that R.C. 

2315.18 violates Article I, Section 16 solely because it believes that the statute is 

arbitrary and unreasonable. This dissent, then, is limited to addressing that single 

issue. For the reasons that follow, we disagree with the determination made by the 

majority opinion that R.C. 2315.18 violates due-process protections. 

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 justice.” Am.Sub.S.B. 80, Section 3(A)(3), 150 Ohio 

Laws, Part V, 7915, 8024 (“S.B. 80”). In restructuring the tort-damages-award 

system, the General Assembly placed no cap on readily provable compensatory 

damages that represented an economic loss—e.g., pecuniary harms like lost wages, 

costs of medical care and treatment, and other measurable expenditures. See R.C. 

2315.18(A)(2) and (B)(1). However, it generally capped compensatory damages 

for noneconomic loss—e.g., nonpecuniary harms like pain and suffering, mental 

anguish, and other intangible losses. See R.C. 2315.18(A)(4) and (B)(2). 
January Term, 2022 

23 

{¶ 50} The legislature justified the caps on noneconomic-damages awards 

because it had found that noneconomic losses are difficult to quantify 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 believed that windfalls awarded to plaintiffs 

“ ‘create[d] an improper resolution of civil justice claims,’ leading 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 made no distinction 

between wrongful conduct that was negligent and wrongful conduct that was 

intentional—the caps were enacted to apply to the types of damages that often 

varied significantly based on subjective valuations. See S.B. 80, Section 3(A)(4) 

and (6), 150 Ohio Laws, Part V, at 8024-8028. 

{¶ 51} The General Assembly did, however, provide exceptions to the cap 

on compensatory noneconomic damages. R.C. 2315.18(B)(3); see also S.B. 80, 

Section 3(A)(6)(c), 150 Ohio Laws, Part V, at 8027-8028. The cap 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 permanently prevents the person from being able to 

independently care for [him or her]self and perform life-sustaining activities.” R.C. 

2315.18(B)(3). So unless the victim has suffered from an injury that falls under 

one of the exceptions listed in R.C. 2315.18(B)(3), the victim’s compensatory 

noneconomic-damages award will be capped under R.C. 2315.18(B)(2). 

{¶ 52} In Arbino v. Johnson & Johnson, we summarized the General 

Assembly’s evidence and findings as they pertained to R.C. 2315.18: 
SUPREME COURT OF OHIO

24 

In an uncodified section of S.B. 80, [the General Assembly] found 

that the current state of the civil litigation system “represents a 

challenge to the economy of the state of Ohio.” S.B. 80, Section 

3(A)(1), 150 Ohio Laws, Part V, 8024. This finding was supported 

by (1) a National Bureau of Economic Research study showing that 

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-investment-income tax, (3) a Harris 

Poll of 928 senior corporate attorneys showing that the litigation 

environment in a state greatly affected the business decisions of their 

companies, (4) a Tillinghast–Towers Perrin study showing that the 

tort system failed to return even 50 cents for every dollar to injured 

plaintiffs and that the cost of the national tort system grew at a record 

rate in 2001, with a cost equivalent to a five percent tax on wages, 

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 businesses 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 right to due 

process of law under Article I, Section 16 of the Ohio Constitution 

{¶ 53} In an as-applied challenge, Brandt argues that the cap imposed on 

her noneconomic-damages award under R.C. 2315.18 violates her right to due 

process. To prevail, Brandt must prove by clear and convincing evidence that the 
January 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 court 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 whether the statute “transcends the limits 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 done him in his land, 

goods, person, or reputation, shall have remedy by due course of law * * *.” 

(Emphasis added.) It has been considered the functional equivalent 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 on whether the 

legislation restricts a fundamental right. Arbino at ¶ 49. By applying rational-basis 

review, the majority opinion has implicitly decided that R.C. 2315.18 does not 

implicate a fundamental right. We agree that rational-basis review is the 

appropriate test to be applied in these circumstances—that is the 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 rational-basis standard is ‘a paradigm of judicial 
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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 license for courts to 

judge the wisdom, fairness, or logic 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 system of government presumes that the democratic 

process will rectify bad policy decisions and that “judicial intervention is generally 

unwarranted no matter how unwisely we may think a political branch 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 rationalbasis test if the statute (1) “bears a real and substantial relation to the public health, 

safety, morals or general welfare of the public,” and (2) “is not 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 police power does bear 

a real and substantial relation to the public health, safety, morals or general welfare 

of the public and whether it is unreasonable or arbitrary are questions 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 those 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 deference’ ” to the General Assembly’s 

determination). 

A. R.C. 2315.18(B) bears a real and substantial relation to the general welfare 

of the public 

{¶ 59} The General Assembly enacted S.B. 80 to protect the Ohio economy 

from the increasing number of tort claims being filed and the increasing amounts 

of the damages being awarded in those claims, both of which were negatively 

impacting the cost of doing business in the state, threatening Ohio jobs, driving up 
January 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 system—it had grown 

significantly, and attorneys benefitted more from the system than those who had 

been injured. S.B. 80, Section 3(A)(3)(a) through (f), 150 Ohio Laws, Part V, at 

8024-8025. The General Assembly also noted the significant problem 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]nflated damage[s] awards,” i.e., windfalls that 

a person could derive from awards of both punitive and noneconomic damages. 

S.B. 80, Section 3(A)(6)(e), 150 Ohio 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 punish the defendant. 

S.B. 80, Section 3(A)(6)(a), 150 Ohio Laws, Part V, at 8027. The General 

Assembly noted, however, that these damages, which have “no precise economic 

value,” id., are inherently subjective and may be influenced by “improper 

consideration of evidence of wrongdoing,” S.B. 80, Section 3(A)(6)(d), 150 Ohio 

Laws, Part V, at 8027. It is these inflated noneconomic-damages 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 loss, as determined by the trier of fact,” but not 

exceeding $350,000 for each plaintiff in the tort action or $500,000 for each 

occurrence that is the basis of the action. R.C. 2315.18(B)(2). 

{¶ 61} The majority opinion never says that reforming the tort system to 

advance the goal of preventing inflated and improperly punitive noneconomicdamages awards bears no real and substantial relation to the public health, safety, 

morals, or general welfare of the public. Nor can it. This court has already found 

that S.B. 80 “bears a real and substantial relation to the general welfare of the 
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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 promoting innovation plainly have a real 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 flawed. In Arbino, 

this court rejected that argument, finding that the General Assembly had made 

several findings of fact based on its own research. Arbino at ¶ 53. We explained 

that in determining whether a statute bears a real and substantial relation to 

legitimate governmental interests, “ ‘it is not the function of the courts to substitute 

their evaluation of legislative facts for that of the legislature.’ ” 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 available to it, made 

the decision to enact these caps to protect the Ohio economy. There is no doubt 

that this statute bears a real and substantial relation to a legitimate 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 damages, as found 

by the General Assembly, or the substantial relationship that we found in Arbino

between the statutory limitations and the benefits to the general 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 challenged statute bears a real 

and substantial relation to the general public welfare—is satisfied. 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 noneconomic damages is unreasonable or 

arbitrary as applied to Brandt, or whether there is no rational basis for 
January Term, 2022 

29 

distinguishing between victims who have suffered (1) an injury resulting in 

“[p]ermanent and substantial physical deformity,” (2) an injury resulting in “loss of 

use of a limb,” (3) an injury resulting in “loss of a bodily organ system” or (4) a 

“[p]ermanent physical functional injury that permanently prevents the person from 

being able to independently care for [him or her]self and perform 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 opinion discusses how the statute does not consider 

psychological injuries at all and how R.C. 2315.18(B)(3) is limited to physical 

“catastrophic injuries.” Majority opinion, ¶ 31. The majority opinion maintains 

that this distinction is unreasonable given the trauma that Brandt has endured, 

evidenced by the jury’s high-dollar award for her noneconomic damages and the 

fact that no one has argued that this award was excessive for reasons other than its 

exceeding the statutory cap. The majority opinion concludes that “unavailability 

of the exception to the compensatory-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 was 

required only to be rational and unarbitrary. This is a low bar. And here, the 

legislature sought to limit inflated and subjective awards that it found to be both 

unfair to defendants and harmful to the state’s economy. It also created categories 

of injury that, it believed, did not raise the same concerns for runaway verdicts and 

subjective awards, because the nature of the injury would assure that the damages 

award would not be based on improper considerations and could be more 

objectively valued by a jury. In order to effectively enact legislation that solves the 

problems that the General Assembly found to exist, the legislature was required to 

draw lines somewhere. As this court said in Arbino, “the General Assembly is 
SUPREME COURT OF OHIO

30 

charged with making the difficult policy decisions on such issues 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 between the types of injured 

claimants, but those distinctions are not arbitrary or irrational. The statute prohibits 

caps from being imposed on those who have suffered (1) an injury resulting in 

“[p]ermanent and substantial physical deformity,” (2) an injury resulting in the 

“loss of use of a limb,” (3) an injury resulting in the “loss of a bodily organ system,” 

or (4) a “[p]ermanent physical functional injury that permanently prevents the 

person from being able to independently care for [him or her]self and perform lifesustaining activities.” R.C. 2315.18(B)(3). There are two categories 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 classification remains the same regardless 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 other victims of sexual 

assault any differently than other tort victims who have not experienced one of the 

four types of injuries 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 categories. This is simply 

untrue. We need not speculate, but it is apparent that a victim 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 sexually transmitted disease, 

complications of a pregnancy occasioned by the assault that result in the “loss of a 

bodily organ system,” or another injury that results in a “permanent physical 

functional injury that permanently prevents the person from being able to 

independently care for [him or her]self and perform life-sustaining 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 determine 
January Term, 2022 

31 

whether the damages cap applied after a plaintiff offered an expert report finding 

that her posttraumatic stress disorder was a physical, functional injury because it 

caused physical harm, including brain-cell damage and atrophy to 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 whether the plaintiff 

who suffered depression and suicidal thoughts as a result of a brain injury suffered 

an injury under R.C. 2315.18(B)(3)(b) that exempted her from the cap on 

noneconomic damages). No one is denying that Brandt’s experience was traumatic 

and that she suffers from psychological issues, but her injuries do not fall within 

one of the categories of injuries identified by the General Assembly as being 

exempt from the caps on noneconomic damages. If they did, then Brandt would 

not be subject to a cap on her award of noneconomic damages. This is the same for 

any other claimant whose injuries do not rise to the extent specified by the 

legislature. 

{¶ 69} As the General Assembly recognized, damages for things like pain 

and suffering and mental anguish are inherently subjective. They 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 to quantify”). The 

General Assembly had a substantial interest in protecting our civil-justice system 

and our economy when it enacted the statute that set a cap on noneconomic 

damages as a means to limit the awards for injuries that are either difficult to prove 

or the extent of which is difficult to quantify without evidence of some physical 

component. This is a reasonable and legitimate government interest, and the 

General Assembly has not arbitrarily selected winners and losers under the statute. 

Thus, R.C. 2315.18(B) does not violate due process merely because 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 one of the four 

categories for which caps are exempted. 
SUPREME COURT OF OHIO

32 

{¶ 70} “ ‘[C]ourts are compelled under rational-basis review to accept a 

legislature’s generalizations even when there is an imperfect fit between means and 

ends. A classification does not fail rational-basis review because “ ‘ “ ‘it is not 

made with mathematical nicety or because in practice it results in some 

inequality.’ ” ’ ” Am. Assn. of Univ. Professors, Cent. 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 the 

distinctions drawn may not be perfect does not make them irrational or arbitrary. 

And the majority opinion does not dispute that lines must be drawn—it simply 

disagrees with how the General Assembly drew them. 

{¶ 71} The majority opinion argues that by finding the noneconomicdamages cap constitutional, Brandt’s abuser, Pompa, would be the only winner 

here. The majority opinion also emphasizes that denying Brandt the full amount of 

her noneconomic-damages award in this case is unreasonable since the award does 

not impact the insurance industry, because most insurance policies now contain 

exclusions that restrict coverage for criminal conduct such as Pompa’s. This 

rationale is flawed for two reasons. First, noneconomic-damages 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 caps on noneconomic 

damages does not make the statute, 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 reserved 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 statute 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 “invade the province of the legislature” and “violate the 
January Term, 2022 

33 

separation of powers” doctrine to rewrite the statute in the manner 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 rewrite the statute if it 

deems necessary.” Id.

{¶ 72} Minor sex-abuse victims are worthy of protection and compensation. 

But it is not our role as members of the judicial branch to determine 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 referendum under Article 

II, Section 1b or 1c of the Ohio Constitution. But that is a far cry from the 

determination in the majority opinion that if legislation tackles problems in the tort 

system, it must treat the survivors of sexual abuse the same as it treats people who 

have, for example, lost an organ or a limb. The General Assembly could rationally 

decide that the types of injuries 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 deny that 

Brandt has suffered. But it is not our job as members of the judicial 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 improperly 

involves the judiciary in matters that belong exclusively and fundamentally to the 

General Assembly. It is this type of result-oriented judicial activism that blurs the 

line in the public’s eye about which branch of government is truly responsible for 

the policies of this state. It erodes the public’s confidence in the judiciary to resolve 
SUPREME COURT OF OHIO

34 

problems within the confines of the law and places an unrealistic expectation on the 

members of the Ohio judiciary to resolve all society’s problems. Policy-making is 

not our job. If policy changes are desired, then the members of the majority opinion 

can take the short walk to Capitol Square to speak with their legislators—the people 

who are elected to create and set policy for Ohioans. Brandt’s situation is certainly 

sad, but we cannot provide her with compensation simply because it may be our 

personal policy preference to do so. This activism from the bench needs to stop. 

{¶ 75} Brandt has not demonstrated that R.C. 2315.18(B) is 

unconstitutional as applied to her. Thus, we must respectfully dissent. 

_________________ 

FISCHER, J., dissenting. 

{¶ 76} The majority opinion abandons this court’s role as impartial jurist 

and exceeds the scope of its authority to hold that R.C. 2315.18(B)(2) is 

unconstitutional as applied to appellant, Amanda Brandt, and similarly situated 

victims. What happened to Brandt is horrific and deeply saddening, as are the 

stories of every child victim—really any victim—of sexual assault. 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 worthy. While these types of cases 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 cannot 

demonstrate that the caps on noneconomic damages in R.C. 2315.18(B)(2), as 

applied to her, violate her right to due process under Article I, Section 16 of the 

Ohio Constitution. I write separately to address Brandt’s other arguments that go 

unresolved by the majority opinion, and I reach the conclusion that Brandt cannot 

demonstrate that R.C. 2315.18 is unconstitutional on its face or as applied to her. 

Thus, I would affirm the judgment of the Eighth District Court of Appeals. 
January Term, 2022 

35 

I. Standard of Review 

{¶ 78} It is important to address the applicable standards of review in this 

case given that the majority opinion seems to have forgotten how 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-applied challenges that 

claim a statute is unconstitutional as applied to 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 statute 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 challenge, the party 

must prove by clear and convincing 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 Constitutionality

{¶ 80} When evaluating these constitutional challenges, we must remember 

that legislative enactments enjoy a strong presumption of constitutionality. 

Dickman at paragraph one of the syllabus. While this presumption has been 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 legislate, and it serves to 

discourage courts from overruling legislation based on the court’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 (Fischer, J., dissenting). 

Indeed, this court has applied this presumption since our statehood and has affirmed 

this presumption even through the various amendments to our state constitution. 
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36 

To show how deeply rooted this presumption is in our judicial system, a brief 

history is necessary. 

{¶ 81} The Ohio Constitution of 1803, drafted consistently with 

Jeffersonian principles, concentrated 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 legislature controlled 

the makeup of the judiciary. Id. at 4, 6-7. And the legislature believed that the 

court had no right at all to declare its enactments unconstitutional. 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 the 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 prohibited 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 exercise its authority, but it provided 

deference to the General Assembly in its legislative decisions: “It is never to be 

forgotten, that the presumption is always in favor of the validity of the law; and it 

is only when manifest assumption of authority, and a clear incompatibility between 

the constitution and the law appear, that the judicial power can 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 the 

General Assembly nor the court deciding to give up its authority; this shift was 

founded in the court’s recognition that legislators took an “oath to support the 

constitution,” and they considered that oath when crafting legislation. Cincinnati, 

Wilmington and Zanesville, RR. Co., at 83; Downes at 145. If the court were to 

entertain declaring a law unconstitutional “while [also] entertaining doubts upon 

the subject,” then it would present a separation of powers problem and “make the 

dubious constructions of the judiciary[] outweigh the fixed conclusions of the 

General Assembly.” Id. The court noted that “ ‘it is not on slight implication and 

vague conjecture’ ” that it would pronounce that the General Assembly 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, this court still gave 

a strong presumption to the constitutionality of statutory enactments. See, e.g., Ex 

parte Bushnell, 9 Ohio St. 77, 96 (1859) (“No court will hold a law to be 

unconstitutional unless its unconstitutionality is clear beyond a doubt”). And by 

1894, it was a settled rule that the court presumed constitutionality 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 state is vested in the general assembly, 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.
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38 

{¶ 86} The presumption of constitutionality 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, Section 2, Ohio 

Constitution (1912) (amended to allow the Supreme Court to find a statute 

unconstitutional by a majority of all but one vote). This court ruled still that 

legislative enactments were presumed to be constitutional and would 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 court’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 appellate jurisdiction 

involving constitutional questions, Article IV, Section2(B)(2)(a)(ii), Ohio 

Constitution, the presumption of a statute’s constitutional validity still reigned. 

This is because the presumption was always meant to ensure the separation of 

powers and to support the General Assembly’s plenary power to legislate, 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 Years of Progress, 76 Alb.L.Rev. 1963 (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 and 

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 syllabus (“The 

question of the constitutionality of every law being first determined by the General 

Assembly, every presumption is in favor of its constitutionality, and it must clearly 

appear that the law is in direct conflict with inhibitions of the Constitution 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 enactments 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 constitutionality 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 One 
SUPREME COURT OF OHIO

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 presumption 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 the Ohio and United 

States Constitutions in mind. See R.C. 1.47(A). 

{¶ 89} This deeply-rooted presumption is vital to maintaining separation 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 the 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 personal 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 (Alexander 
January 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., dissenting). 

{¶ 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 on its face 

{¶ 91} This court held that R.C. 2315.18 was constitutional on its face 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. Though 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 the 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 generally, we are “institutionally bound to uphold our prior 

decisions where time has vindicated the logic utilized to render the holding.” Id. 

{¶ 93} We can, of course, reverse our precedent under the right 

circumstances: “(1) the decision was wrongly decided at that time, or changes in 

circumstances no longer justify continued adherence to the decision; (2) the 

decision defies practical workability; and (3) abandoning the precedent would not 
SUPREME COURT OF OHIO

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, paragraph 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 limits 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 significant role” in resolving questions regarding 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 in 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 intentional 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 meaningful remedy). 
January Term, 2022 

43 

{¶ 95} Arbino also helps explain and emphasizes 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 decisions 

stand—a fact acknowledged by Brandt’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 jury under Article I, 

Section 5 of the Ohio Constitution. She argues that the statute requires the trialcourt judge to disregard the jury’s noneconomic-damages award, thereby rendering 

her jury award meaningless. Her argument, however, is based on a 

misunderstanding about the jury’s right to determine damages as a matter of fact 

and the court’s ability to review and modify a damages award as a matter of law. 

{¶ 97} Under Article I, Section 5 of the Ohio Constitution, the right to a 

jury trial “shall be inviolate.” We have determined that the right is fundamental 

and cannot be invaded or violated by legislative act or judicial 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 syllabus. But the right 

is limited in that it exists only as it did when the Ohio Constitution 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, Section 5 

applies to intentional-tort actions). And the right to a jury trial includes the right to 

have a jury determine all questions of fact, including the amount of damages that 

the plaintiff may be entitled to as result of the injury. Galayda v. Lake Hosp. Sys., 
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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 determine 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 legislature has the right to 

determine causes of action recognized under the law); Groch, 117 Ohio St.3d 192, 

2008-Ohio-546, 883 N.E.2d 377, at ¶ 150 (the General Assembly can limit 

remedies for injuries under the law). This power held by the legislature, to limit 

remedies, existed when Article I, Section 5 was adopted. That fact is made apparent 

when we consider the adoption of Article I, Section 19a of the Ohio Constitution. 

{¶ 100} Article I, Section 19a was adopted in 1912, the same year that 

Article I, Section 5 was amended to allow verdicts that are not unanimous in civil 

jury trials. Article I, Section 19a of the Ohio Constitution states, “The amount of 

damages recoverable by civil action in the courts for death caused by the wrongful 

act, neglect, or default of another, shall not be limited by law.” (Emphasis added.) 

By its plain language, the provision means that neither the General 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 the conclusion that the General Assembly 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, the 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 jury to assess the damages 
January Term, 2022 

45 

and, generally, it is not for a trial or appellate court to substitute 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 and 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 damages 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 commonly 

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 power to regulate the 

jury’s action, at least to the extent of seeing that such action 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 sustained as a matter of 

law. Indeed, we have upheld remittiturs that reduce a jury’s award when the trial 

court deems the amount excessive based on the facts found by the 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 decision 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 double 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 plaintiff 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 findings of fact, the court 

may amend the jury award as a matter of law, whether that is because the verdict is 
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not supported by sufficient evidence or because a statute requires 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 law, “the procedure by 

which this result shall be reached is wholly within the discretion of the legislature”) 

{¶ 103} Here, the General Assembly determined 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 force the trial court 

to invade the province of the jury; it required the trial court to modify the 

noneconomic-damages award only if the jury’s award exceeded a certain 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 jury’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 modification of the 

remedies available for common-law torts in R.C. 2315.18(B)(2) and the trial court’s 

compliance with that provision do not violate the right to a jury trial guaranteed by 

Article I, Section 5 of the 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 jury 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, 376 
January 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 the 

issue, it is likely that it too would conclude that statutory caps on damages awards 

implemented by the court 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 aside excessive verdict and order a new trial); Gasperini, 

518 U.S. at 442, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (Stevens, J., dissenting) 

(precedent supports the conclusion that the right to a jury trial 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 verdict, 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 Ohio Constitution. Therefore, the Arbino court properly 

applied the rational-basis test to the jury-trial, due-process, and equal-protection 

claims. We should reject Brandt’s proposition of law challenging this court’s 
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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 unconstitutional as 

applied to Brandt and similarly situated victims

{¶ 107} Brandt argues that her reduced noneconomic-damages award 

violates her rights to a jury trial, to open courts, to a remedy, to due process, and to 

equal protection. To prevail, Brandt must prove by clear and convincing evidence 

that R.C. 2315.18(B)(2) is unconstitutional when applied to her particular set of 

facts. Harrold, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, at ¶ 37-38. 

As discussed in the joint dissent, Brandt cannot demonstrate that R.C. 

2315.18(B)(2) violates her right to due process. And it is also 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 plaintiff 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 because the 

jury valued her psychological injuries at $20,000,000 and the trial court’s reduction 

of that award to $250,000 pursuant to the statutory cap intrudes 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 issues of fact. Nor 

does it allow the judge to substitute his or her findings for those of the jury. See 

Simpkins at ¶ 23. Rather, the General Assembly, through its right to alter the 

common law, requires the trial court to alter the award as a matter of law after the 

jury has rendered its verdict. Thus, R.C. 2315.18(B)(2) and the trial court’s 

compliance with that statute do not violate Brandt’s right to trial 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. 
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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 open 

courts and to a remedy under Article I, Section 16 of the Ohio Constitution. Under 

our precedent and understanding of “meaningful remedy,” Brandt cannot 

demonstrate by clear and convincing 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 courts 

shall be open, and every person, for an injury done him in his land, goods, person, 

or reputation, shall have remedy by due course of law, and shall have justice 

administered without denial or delay.” “The constitutional right to a remedy 

‘requires an opportunity granted at 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 relief 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, whether 

that be by abolishing an action, defining an action, placing a statutory limitation on 

the action, or determining the remedies that may be afforded under 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 compensatory 

noneconomic damages that a plaintiff may recover under R.C. 2315.18(B)(2), but 

it has not “wholly den[ied] persons a remedy for their injuries.” Simpkins at ¶ 30, 

citing Arbino at ¶ 45. The limit imposed by the General Assembly on noneconomic 

damages is not nominal—R.C. 2315.18(B)(2) caps noneconomic damages at 
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$250,000 in this situation. Also, there are other remedies available in addition to 

an award of noneconomic damages, like an award for unlimited economic damages 

under R.C. 2315.18(B)(1) and an award for punitive damages under R.C. 2315.21. 

Though a several-million-dollar reduction in Brandt’s noneconomic-damages 

award is significant, we cannot say that an award of $114,250,000—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 abuse. 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 was available at 

common law. In Clarke, the Oregon Supreme Court held that under Oregon’s 

Constitution, the state legislature is free to “modify both the form and measure of 

recovery for an injury, as long as it does not leave the injured party with an 

‘emasculated’ version of the remedy that was available at common law.” Id. at 606; 

see also Horton, 359 Or. at 220, 376 P.3d 998 (“the substantiality of the legislative 

remedy can matter in determining whether the remedy is consistent 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 to 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 remedies was 

limited in that it could not substantially modify the award that was available at 

common law, Brandt does not provide any evidence that a monetary award for 

noneconomic damages greater than $250,000 was available at common law. 

{¶ 113} The determination of a meaningful remedy is a policy decision that 

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 deny 
January Term, 2022 

51 

Brandt a meaningful remedy under the law; it limits one of many available 

remedies, and that limitation does not result in a nominal remedy. Therefore, 

Brandt cannot demonstrate that R.C. 2315.18(B)(2) violates her rights to open 

courts and to a remedy as guaranteed under Article I, Section 16 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 Article 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 others 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 interest” 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 it 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 suspect 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 that 

there was no rational basis for the creation of the class itself or that those within the 

class are not being treated equally in the furtherance of a legitimate governmental 

interest.’ ” Simpkins,149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, at ¶ 48, 
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quoting Morris v. Savoy, 61 Ohio St.3d 684, 691, 576 N.E.2d 765 (1991). “A 

classification does not fail rational-basis review because it is not made with 

mathematical nicety or because in practice it results in some inequality.” (Cleaned 

up.) Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 

87 Ohio St.3d 55, 58, 717 N.E.2d 286, 290 (1999). This court will set aside 

legislative classifications only if they are “ ‘based solely on reasons totally 

unrelated to the pursuit of the State’s goals and only if no grounds 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 persons 

distinguished by their injuries: (1) persons who have suffered catastrophic physical 

injuries, (2) persons who have suffered noncatastrophic physical injuries, (3) 

persons who have suffered catastrophic nonphysical injuries, and (4) persons who 

have suffered noncatastrophic nonphysical injuries. While Brandt is correct that 

there are four injury classifications, they are not the ones that she lists. R.C. 

2315.18(B)(3) does not create classes of plaintiffs based on whether they suffered 

“catastrophic injuries.” The term “catastrophic injury” appears nowhere in the 

statute. 

{¶ 119} Rather, the Arbino court coined the term “catastrophic injury” to 

easily describe the injuries that were exempt from capped damages 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 physical injuries” from “catastrophic nonphysical 

injuries.” Simpkins at ¶ 41. The majority opinion continues with this distinction, 

holding that plaintiffs suffering from “catastrophic psychological 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” distinction 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 reframe the injuries 

described in R.C. 2315.18(B)(3) in a manner that the General Assembly 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 deformity” in the context of 

R.C. 2315.18(B)(3)). The use of the term “catastrophic” has wrongly encouraged 

litigants and courts to place their own value judgments on plaintiffs’ injuries instead 

of following the language 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 damages, we placed 

words in the statutory scheme that do not appear there and reinforced the wrong 

idea that “catastrophic” is an element of the injuries listed in R.C. 2315.18(B)(3). 

Because “catastrophic” appears nowhere in the statute, the “catastrophic” 

distinction should not be used or developed further. 

{¶ 122} We must return to the plain language of the statute. The exceptions 

to limits on noneconomic compensatory damages in R.C. 2315.18(B)(3) apply to a 

person who has sustained (1) an injury resulting in “[p]ermanent and substantial 

physical deformity,” (2) an injury resulting in “loss of use of a limb,” (3) an injury 

resulting in “loss of a bodily organ system,” or (4) a “[p]ermanent physical 

functional injury that permanently prevents the injured person from being able to 

independently care for self and perform life-sustaining activities.” Anyone who 

experiences one of these four types 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 regardless of the age of 
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the victim and the nature of [the] tort.” Joint dissenting opinion, ¶ 67. R.C. 2315.18 

does not treat Brandt nor other victims of sexual assault differently from other tort 

victims who do not suffer from one of the four types of injuries listed above. 

{¶ 123} As discussed in the joint dissent, a minor victim of sexual assault 

might reasonably fall into one of these categories. And contrary to the majority 

opinion’s argument, it is not that mental health is not considered 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-justice system and our 

economy when it enacted the statue that set a cap on noneconomic damages as a 

means to limit the awards for injuries that are either difficult to prove or the extent 

of which is difficult to quantify without evidence of some physical component. 

This is a reasonable and legitimate government interest, and the General Assembly 

has not arbitrarily selected winners and losers under the statute.” Joint dissenting 

opinion at ¶ 69. Indeed, Brandt may have fallen into one of the exempted categories 

of injuries due to her mental illnesses—had she made the argument. 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 determine whether the 

damages cap applied after a plaintiff offered an expert report finding that her 

posttraumatic stress disorder (“PTSD”) was a physical, functional injury because it 

caused physical harm, including brain-cell damage and atrophy to the hippocampal 

gyrus and other areas of the brain). 

{¶ 124} Thus, Brandt cannot demonstrate by clear and convincing evidence 

that her capped damages award violated equal protection, because R.C. 

2315.18(B)(2) serves a legitimate governmental interest and there 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 analysis 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 on noneconomic 

damages under R.C. 2315.18 as applied to Brandt is unconstitutional. And the 

majority opinion’s misinterpretation of our due-process jurisprudence 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 cannot be construed as a 

blanket prohibition against caps on damages for all minor sex-abuse victims. 

Rather, those victims will have to demonstrate that they are “similarly situated” to 

Brandt and her “extremely uncommon” case. Majority opinion, ¶ 34. This will 

prove to be difficult, especially considering this court’s holding in Simpkins, 149 

Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122, in which this court 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-process challenge to R.C. 

2315.18—the same argument that was raised by Brandt in this case. 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-old girl who was 

raped by her pastor during two counseling sessions at her church, or to Brandt, a 

girl who, between the ages of 11 and 12, was raped numerous times by her friend’s 

father while she was drugged 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 Simpkins? Or did the 

victim have PTSD, anxiety, nightmares, difficulties sleeping, and agoraphobia like 

Brandt? Did the victim graduate high school, engage in sports, do well in college,

and have a job, like Simpkins? Or did the victim graduate high school, have a job, 

get an apartment, but lose everything after falling victim to drug abuse and 
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addiction, which led to a suicide attempt and homelessness, like Brandt? Do we 

need to consider the victim’s suffering in light of when the abuse occurred and 

when the tort action was pursued in order to better 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 time goes on and more 

child-abuse cases are plotted on this arbitrary grid created by the majority opinion. 

{¶ 128} The majority opinion, through its due-process analysis, forces trial 

courts to engage in their own policy and value determinations in analyzing whether 

a victim has suffered “catastrophic 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 relieved from caps on 

damages. This nightmare could have been avoided had the majority 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 our preferred policy 

preference. As the late United States Supreme Court Justice Ruth Bader Ginsburg 

stated, “Judges must be mindful of what their place is in this system and must 

always remember that we live in a democracy that can be destroyed 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 heed these wise words. 

{¶ 130} If the cap on damages awards is to be modified or eliminated, it 

should be done through one of the mechanisms supported by our Constitution, like 
January Term, 2022 

57 

legislative amendment, legislative referendum, or constitutional referendum. It 

should not be modified in the manner chosen by the majority opinion today. 

{¶ 131} Because Brandt cannot demonstrate that R.C. 2315.18 is 

unconstitutional on its face or as applied to her, this court should hold that the cap 

on her noneconomic-damages award is constitutional. Because it does not do so, I 

must respectfully dissent. 

{¶ 132} In addition, over my objection, the court did not follow the regular 

and orderly internal rules of operation and practice in this case 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 most humbly apologize 

to the citizens of Ohio that my individual dissent is not of the quality that I have 

come to deliver and that the public expects. This case involves many constitutional 

issues that deserve to be more completely analyzed and debated so that they may 

be resolved appropriately. The litigants deserve full and fair consideration of their 

case, which has been shortchanged here. We should do better. 

_________________ 

The Fitch Law Firm, John K. Fitch, and Kirstin A. Peterson; Taft, Stettinius 

& Hollister, L.L.P., and Stephen C. Fitch; and Center for Constitutional Litigation, 

P.C., and Robert S. Peck, for appellant. 

Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and 

Francesca R. Boland, for appellee. 

Rittgers & Rittgers and Konrad Kircher, urging reversal for amici curiae 

Child USA, Ohio Crime Victim Justice Center, Coalition for Children, and Crime 

Victims Center, Inc. 

The Law Offices of Pamela J. Miller and Pamela J. Miller, urging reversal 

for amicus curiae American Professional Society on the Abuse of Children. 
SUPREME COURT OF OHIO

58 

Paul W. Flowers Co., L.P.A., Louis E. Grube, and Paul W. Flowers; and 

Cooper & Elliott, L.L.C., and Charles H. Cooper Jr., urging reversal for amici 

curiae Ohio Association for Justice and American Association for Justice. 

Camille M. Crary, urging reversal for amicus curiae Ohio Alliance to End 

Sexual Violence. 

Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and 

Cary Silverman, urging affirmance for amici curiae Chamber of Commerce of the 

United States of America, NFIB Small Business Legal Center, American 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. Georgiton, and 

Brady R. Wilson, urging affirmance for amicus curiae Product Liability Advisory 

Counsel, Inc. 

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and 

Michael J. Hendershot, Chief Deputy Solicitor General, urging affirmance for 

amicus curiae Ohio Attorney General Dave Yost. 

Calfee, Halter & Griswold, L.L.P., Jason J. Blake, and Gretchen L. 

Whaling, urging affirmance for amicus curiae David Goodman, former chairman 

of the Ohio Senate Judiciary Committee for Civil Justice. 

Bricker & Eckler, L.L.P., Anne Marie Sferra, and Daniel C. Gibson, 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 Ohio Association of Civil Trial Attorneys. 

_________________