Here’s the state of “tort” law in Ohio – your 15 year old daughter goes to a “counseling” session with her pastor… and is twice raped by her pastor, who is convicted and sent to jail. You sue on the local church and the bigger church which helped create your local church on your daughter’s behalf on a negligent hiring/supervision theory – you go through a very painful jury trial and the jury awards a judgment of $3.6 million…
but…
The rapist’s employer then argues that due to “damage caps” contained in “tort reform” laws [passed 10 years ago when doctors were complaining of malpractice awards] your child is only entitled to collect $500,000.
Today, in a 5-2 decision authored by Justice Judith French, the Ohio Supreme Court decided to protect the pocketbooks of those who rape children [and their employers] and upheld that result in Simpkins v. Grace Brethren Church, giving the rapist and his employer a nice break by knocking some $3,000,000 off what they owe to the rape victim…
Oh… and there’s more…
Here it turns out there were prior incidents of inappropriate behavior by this pastor which were reported to, and ignored by, the hiring church. Rather, the pastor’s immediate superior wagged his heavenly finger at the offender, but failed to report the incidents up the chain or take any action against the pastor…
The thing with these types of incidents is that they are not like car crashes – they don’t generate significant physical injuries, fractures, puncture wounds, stitches and scars… they don’t lead to huge amounts of medical bills – and when a child is raped you don’t see large amount of “wage loss” or other “economic” damages- rather, most of the jury’s compensation is [rightfully] aimed at “pain and suffering” damages – past, present and future – to compensate the child for what she went through.
But… the Ohio legislature in all of its infinite wisdom passed a law in 2005 that says if you are only claiming “pain and suffering” and you don’t have “permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or … “permanent physical functional injury that permanently prevents [you] from being able to independently care for self and perform life-sustaining activities” then your damages are “capped” at $350,000.00. While you can be awarded ALL of the economic losses you can prove unless you can pigeon-hole your emotional injuries into the magic words you cannot recover more than $350K for pain and suffering…
After a jury trial, the jury found that Simpkins was entitled to $3,651,378.85 in compensatory damages, which included the following: $1,378.85 for past economic damages, $150,000 for future economic damages, $1,500,000 for past noneconomic damages, and $2,000,000 for future noneconomic damages. The jury awarded Gene Simpkins $75,000 for loss-of-consortium.
Today the Ohio Supreme Court basically threw out that jury award… and issued its own award…
Today the Ohio Supreme Court said the tort reform damage caps that reduced a jury award by $3,000,000 were constitutional when a child is raped and the employer of her rapist is ordered to pay.
Today the Ohio Supreme Court held that the rape victim was only entitled to $150,000 in future “economic” losses and $350,000 in pain and suffering…even though the jury awarded her many times that amount.
Further, here, the victim argued that since she was raped twice in the same room she should be allowed to make two claims and two separate $350,000 caps.
However, Justice Judith French and a majority of the Ohio Supreme Court said [in essence]: “…nope…sorry honey, your two rapes occurred too close together to allow you recover twice…”
Justice French wrote
“The oral and vaginal penetrations in this case occurred within a short period of time, in a confined space, without intervening factors, and there is no evidence that Williams’s separate criminal acts affected Simpkins differently.“
In fact, the evidence, as the court described, was this
The catalyst for appellants’ claims occurred in March 2008 when Williams—then the senior pastor at Sunbury Grace—forced oral and vaginal intercourse with Simpkins, then a 15-year-old parishioner, in his office. Simpkins testified that she was seated in front of Williams’s desk for a counseling session regarding her falling grades and unresolved issues at home regarding her parents’ separation when Williams walked around the desk, put his hand on her shoulder, and told her to suck his penis. After repeatedly refusing, Simpkins eventually complied because she thought it was her only option to get out of the office. Simpkins testified that she then ran for the door, but Williams blocked and shut it. She testified that despite her protests, Williams kissed her, pushed her to the ground, removed her pants, and engaged in forced vaginal intercourse with her. Williams pled guilty to two counts of sexual battery in violation of R.C. 2907.03(A)(12) and was sentenced to two consecutive four-year prison terms.
The court held that, under THOSE facts, the two rapes were not enough to count for two “occurrences” under Ohio’s Tort Reform Law… The Court got there, in part by parsing the sentences of an expert’s report, noting that the expert referred to “the incident” and not “the two incidents” or some such thing… Good Lord… Is the Supreme Court going to tell us how much time has to elapse between multiple rapes in order for one rape to be a different “occurrence” than the next? To me, this is an absolutely ridiculous bit of legal manipulation that completely diminishes the fact that this young woman was raped… TWICE…
But the Law Of Ohio … per the Court’s decision… is now that it doesn’t matter whether the victim was raped once or twice, or, presumably 10 times, in the same room during the same “event” because each rape was not a separate “occurrence” and the victim was limited to a single $350,000 award for “noneconomic damages” – pain and suffering.
The court found that despite the fact that the jury awarded the girl $3,651,000 against the church and rapist, it was reducing her award to $500,000 [$150,000 in future noneconomic damages + $350,000 cap].
The Ohio Supreme Court held today that while the Ohio Constitution can provide more protection to juveniles than the US Constitution in criminal cases [i.e., when juveniles are accused of crimes] it does NOT provide greater protection when juveniles are raped and sue their attackers for money damages in a civil case.
In civil cases arising out of the rape of a juvenile where the juvenile sues the rapist and his employer, the Court decided to cut the rapist and his employer [and his employer’s liability insurer] some slack… about $3,000,000 worth of slack…
Justices Pfeiffer, who is retiring, and Justice O’Neill wrote blistering dissents in this 5-2 decision.
Justice Pfeiffer wrote
“Tort reform,” however misguided and unconstitutional, was designed to protect doctors and corporate interests. See Arbino v. Johnson & Johnson, 116 Ohio St.3d. 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 163 (Pfeifer, J., dissenting). 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. It is past time for the General Assembly (and this court) to reconsider “tort reform” and return the authority to determine damages to juries, where it rightfully and constitutionally belongs.
Justice O’Neill wrote
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.
Shame indeed…
You can read a detailed summary of the court’s opinion here – – and the full decision here
I think I’ll go throw up a while…
A Brief History of the Confluence of Tort Reform and Judicial Elections In Ohio
A couple of very bright folks from the law firm of Bricker and Eckler, a law firm that typically is on the defense side of civil litigation representing or employed by insurers, wrote this informative piece on the history of Tort Reform in Ohio.
Here’s a bit of it
The History of Tort Reform in Ohio. Since 1975, the Ohio General Assembly has made several attempts toreformthestate’sciviljusticesystem. Someofthesemeasureswereshort-lived,whileotherswerethelawof Ohio for more than a decade before being stricken as unconstitutional. Regardless of their longevity, these tort reform laws often have been caught in a power struggle between the state legislature and the judiciary on issues involving public policy and judicial authority.
In 1975, the Ohio General Assembly enacted the Ohio Medical Malpractice Act (“Act”). The legislature approved this Act in response to the medical malpractice crisis that swept the country in the early 1970s. In 1991, the Court struck down the cornerstone of the Act – the $200,000 cap on general damages – on due process grounds in Morris v. Savoy, 61 Ohio St.3d 684 (1991).
In 1987, the General Assembly enacted House Bill 1, which made significant changes to Ohio’s punitive damage, product liability and insurance law. By the mid-1990s, the Ohio Supreme Court had invalidated many of these provisions.
In 1995, the Ohio General Assembly began another attempt to reform Ohio’s tort liability system. This effort – House Bill 350 (“H.B. 350”) – was a comprehensive tort reform package that included among other things, limitations on punitive and noneconomic damages, statutes of repose, and modifications to joint and several liability. H.B. 350 became effective in January 1997.
Approximately two-and-a-half years later, a 4-3 majority of the Ohio Supreme Court found House Bill 350 unconstitutional in toto in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451 (1999). In this inflammatory decision, the Sheward majority held that H.B. 350 violated the doctrine of separation of powers and the single-subject rule of the Ohio Constitution. OHIO CONST. ART. II, §15.
In the years following the Sheward decision, the General Assembly approved a number of tort reform measures addressing much narrower issues. Those measures included establishing limitations on the liability of residential care and nursing home facilities; modifying the rule of joint and several liability; reforming Ohio’s medical peer review process; reforming Ohio’s political subdivision sovereign immunity law; enacting limitations on noneconomic damages in medical malpractice actions; and reforming Ohio’s asbestos litigation system.
In May 2003 a more comprehensive tort reform package – S.B. 80 – was introduced. Key components of S.B. 80, which became effective on April 7, 2005, included limitations on noneconomic and punitive damages, and statutes of repose for products and construction.
Now, as these tort reform laws were enacted and trickling through the judicial system in the 1980s and 1990s, and as the Ohio Supreme Court of that era was knocking them out as unconstitutional, other forces were at work to attack the “problem” [i.e., the “problem” of trying to protect insurance companies and their insureds from having juries order them to pay money damages to injured victims] in a different way. Insurance companies, chambers of commerce and corporate entities started pouring money into the political campaign coffers of folks running for the Ohio Supreme Court. You see, you can elect all the legislators you want, and get all the Victim-Slamming laws passed that you want but if a 7-member Court votes 4-3 that your fancy new law is unconstitutional then you still lose… its’ FAR easier to try to get a majority of insurer-friendly, anti-victim folks elected to judgeships …
In 2012 the Center for American Progress described the judicial climate in Ohio during that era as follows:
Ohio has seen some of the most expensive judicial races in the country, with high court candidates raising more than $25 million from 2000 to 2010. The surge in donations was fueled by money from corporations and insurance companies. As the money flowed in, the court abruptly reversed course on a range of issues to rule in favor of big business. The New York Times published an article in 2006 on the court’s tendency to rule in favor of campaign contributors. The newspaper compared cases issued between 1994 and 2006 with interest groups donating to the judges’ campaigns. The article concluded that the justices “voted in favor of contributors 70 percent of the time,” with one judge, Justice Terrence O’Donnell, voting for his contributors in 91 percent of the cases.80 When judges vote in favor of donors, citizens without money to donate face a real disadvantage in court.
The insurance industry began giving generously to pro-corporate candidates
after several rulings against insurance companies in the late 1990s,81 including a 1999 decision that expanded employers’ uninsured motorist coverage to include employees who were not on the job.82 Ohio judicial elections had long been among the most expensive in the country, but both the 2002 and 2004 races saw candidates spending $6 million—double the amount spent in the 2000 election.83 In 2004 the insurance industry gave candidates for the Ohio Supreme Court more than $650,000 and donated around $1 million to an independent group running ads that helped two pro-corporate candidates win their seats.84
In 2006 the issue of Ohio’s Supreme Court campaigns caught the attention of the New York Times. The 2006 New York Times article pointed out some startling statistical facts, including this one:
In the weeks before the election, Justice O’Donnell’s campaign accepted thousands of dollars from the political action committees of three companies that were defendants in the suits. Two of the cases dealt with defective cars, and one involved a toxic substance. Weeks after winning his race, Justice O’Donnell joined majorities that handed the three companies significant victories.
The NYT piece, entitled “Campaign Cash Mirrors A High Court’s Rulings,” provided these amazing quotes from Justice Pfeiffer, a Republican judge who frequently sits in the minority and sides with the victims of negligence [and who will have to step down from the court this year]:
“I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race,” said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. “Everyone interested in contributing has very specific interests.”
“They mean to be buying a vote,” Justice Pfeifer added. “Whether they succeed or not, it’s hard to say.”
Judges are supposed to recuse themselves when their impartiality is threatened… sometimes they do, but often they do not – at least when it’s the “appearance of impropriety” that is involved… I’m certain that most Judges firmly believe they can remain impartial – “…Well yes, Bob contributed a few thousand bucks to my campaign but I can still rule fairly and impartially in Bob’s case…” You can see how Bob’s opponent in Bob’s lawsuit may feel more than slightly upset that the Judge Bob helped get elected is ruling in Bob’s favor…
So despite the “appearance of impropriety” of a judge ruling on cases involving campaign donors, some argue a double standard applies between what the Supreme Court demands of lower court judges and how the Supreme Court itself behaves … from the NYT piece:
In 2002, for instance, the Ohio Supreme Court reprimanded a lower-court judge for accepting football tickets from Stuart Banks, a lawyer who had appeared before the judge. Yet three of the justices who issued the reprimand had accepted at least $1,000 each in contributions from Mr. Banks in the previous 10 years. Those same justices also sat on several cases in which Mr. Banks appeared before them.
Any child recognizes the inherent conflict in this “Do what I SAY not what I DO” stance the Court has taken.
In another case, from the Center for American Progress article described how one family learned “the hard way” that life in Ohio Courts is tough for the victims of negligence:
Since the corporate-funded justices took over, the court has abruptly overruled recent precedent to rule in favor of insurance companies. The court is a tough venue for injured plaintiffs.
The Barbee family of Lorain County, Ohio, learned that the hard way. The family was a party to a 2011 case stemming from injuries they suffered while on vaca- tion. The Barbees were traveling through Wisconsin when two cars collided while traveling in the opposite direction. The cars careened over the median and struck the Barbees’ vehicles, killing one of the other drivers and seriously injuring the Barbees. The family sought to claim benefits from its uninsured motorist policy with Nationwide Insurance. The Barbees first sued the other drivers and recovered 30 percent of their losses. Their policy said Nationwide would not pay any claims until other insurance payments were “exhausted,” so the Barbees did not file an uninsured motorist claim with Nationwide until the first suit concluded, though it did notify the company of a potential claim.88
The Ohio Supreme Court threw out the Barbees’ lawsuit, relying on another provision of the insurance policy that required claimants to bring suit within three years. The court said the two provisions did not make the policy ambiguous. A dissenting judge argued the three-year deadline should have been tolled while the other claims were pursued: “Insurance companies are extremely resourceful at collecting premiums and exceedingly reluctant to pay claims—even when an acci- dent is known to them and the claim is meritorious.”89 Nationwide has contributed more money to the 2012 candidates than any other donor so far.90
What’s the answer? Do Judges rule in favor of those who helped them get elected because they helped them get elected [the “Dance With What Brung Ya” theory]? Or maybe insurers and corporate entities know how to pick judges that are ideologically inclined to rule in their favor. Who knows… I just wish there was a better answer for Jessica Simkins, raped twice at 15, other than “…sorry for your luck, thanks for playing the Court game, better luck next time…”
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