New Ohio Supreme Court ruling highlights unintended consequences of state’s cap on noneconomic damages.
On Dec. 14, the Ohio Supreme Court ruled that capping noneconomic damages awarded to a teenage victim of sexual assault did not violate her constitutional rights. The victim’s $3.6 million jury verdict was reduced to just $500,000 after the cap was applied.
In her appeal, the victim challenged the damage cap as unconstitutional, claiming her state constitutional rights to a trial by jury, to an open court, to a remedy, due process and equal protection were violated by the law as it applied to her case. The damage cap undermined the jury’s $3.5 million valuation of the victim’s injuries, leaving her with a small fraction of the intended award. She argued that minors who are victims of sexual assault usually suffer from long-term emotional damage rather than economic loss or permanent physical injuries, and should therefore be excluded from a cap on noneconomic damages. The Court rejected the victim’s claims and found that her injuries did not meet the “extreme qualifications” required for exclusion from the damage cap.
Two of the Court’s Justices strongly disagreed with the ruling and issued separate dissenting opinions. Justices Paul E. Pfeifer and William M. O’Neill harshly criticized the Court’s decision and Ohio’s tort reform legislation for failing to protect victims of sexual assault from the noneconomic damages that often result from the crime, such as pain and suffering or emotional distress.
Pfeifer and O’Neill highlight the dangerous implications of applying the “cookie-cutter approach” to every verdict involving noneconomic damages.
“I cannot accept the proposition that a teenager who is raped by a pastor fits into a preordained formula for damages” said O’Neill. “This child was raped in a church office by a minister, and a duly empaneled jury established an appropriate level of compensation for the loss of her childhood innocence. We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing.”
O’Neill also questioned the extent of the Ohio General Assembly’s power to further reduce compensation for victims.
“If the General Assembly can limit damages for claims to $500,000, or $350,000, what would prevent it from limiting damages to $1? Would the court find that result to be constitutional?”
Pfeifer joined O’Neill’s dissent, adding:
“‘Tort reform,’ however misguided and unconstitutional, was designed to protect doctors and corporate interests. Today, we learn that ‘tort reform,’ not surprisingly, had unintended consequences. It turns out that ‘tort reform’ (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of the damages they cause—even if they rape a child.”
Ohio Tort Reform and Cap on Noneconomic Damages
In 2005, the Ohio General Assembly enacted R.C. 2315.18(B)(2) to promote “a fair, predictable system of civil justice.” The damage cap was designed to protect doctors, insurance companies and pharmaceutical manufacturers from exceptionally large verdicts in civil cases involving claims like medical malpractice or defective drugs and devices. Legislators failed to account for the devastating consequences these measures would have on the victims, especially those bringing other types of civil lawsuits.
Tort reform was ushered in under the premise of reducing “frivolous” claims, lowering premiums and increasing the predictability of civil cases. According to Elk & Elk Partner Jay Kelley, the law has instead compounded the loss for victims with meritorious claims by limiting insurers’ exposure to financial penalties commensurate to their negligent actions.
“Damage caps are a government overreach giving politicians the power instead of relying on a jury as set out in our constitution with no regard for the facts of the individual cases,” said Kelley. “This socialistic approach of capping liabilities often falls far short of fair compensation which reduces the incentive for companies and providers to improve the safety of their products and services.”
UPDATE: Elk & Elk Partner Jay Kelley recently appeared on WKYC’s Live on Lakeside to discuss the issue.
Damage caps only apply when fault is assigned in a case, and the limits are different for medical and non-medical cases.
In both types of claims, noneconomic damages are capped at $250,000 per plaintiff. A victim could receive more if the amount equal to three times their economic loss is greater than $250,000, but even then the maximum is $350,000. The total amount of noneconomic damages awarded for all claims related to a victim’s injury cannot exceed $500,000 in medical claims. The constitutionality of the damage caps related to medical claims has not yet been tested by the Ohio Supreme Court.
In non-medical claims, there is no limit on noneconomic damages resulting from:
- Permanent and substantial physical deformity
- Loss of use of a limb or loss of a bodily organ system
- Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities
Many lawyers simply can’t afford to take cases in which a low cap guarantees that the damages won’t begin to cover the litigation costs. Attorneys representing victims in these types of claims often work on a contingency fee basis, meaning they front the costs associated with the case and earn a predetermined percentage of the verdict or settlement to cover the expenses.
The damage caps are arguably most troubling when applied to cases of sexual assault and sexual assault of a minor because economic damages and catastrophic physical injuries are often minimal or nonexistent. Criminal charges only hold the offender accountable to the state, leaving civil cases as the only route for victims to seek compensation from their attackers and any third parties who may have enabled them to commit the crime.
In certain scenarios, psychiatric injuries sustained by a victim can be both persistent and disruptive enough to support waiving the cap in non-medical cases or applying a higher cap in medical claims. Severe cases of post-traumatic stress disorder (PTSD) and depression are examples of conditions that could allow a victim to avoid the cap. However, because victims of sexual assault are often able to move forward with their lives while coping with and seeking treatment for their psychiatric injuries, such exceptions can be very difficult to obtain.