I’ve written a couple of columns recently about the civil justice system and why granting businesses and health care providers blanket immunity during the COVID-19 crisis is a dangerous thing to do.
In those pieces, I addressed the issue in the abstract: The number of lives saved and injuries prevented because trial lawyers filed suits that forced companies to remove dangerous products from the marketplace or alter practices that put people at risk.
Today, I’m going to attach human faces to my argument against “tort reform” by discussing two disturbing cases now at the center of a movement to repeal unwarranted — and unconstitutional — damage-award caps that are damaging the lives of too many Ohioans.
In 2008, 15-year-old Jessica Simpkins was raped twice by her pastor. He was arrested and pleaded guilty. Jessica and her family also filed a civil suit against the rapist and the church where he worked. As they pursued the case, they learned that church officials continued to employ the offender even though they were aware of prior inappropriate behavior involving two young girls.
Jessica’s civil suit proceeded to trial. After hearing all the evidence, jurors awarded her $3.6 million in damages. The judge who presided over the case cut the award to less than $400,000 citing a $250,000 cap on non-economic damages that had been imposed by the Ohio General Assembly in 2004.
Jessica and her lawyer appealed the decision, arguing that the damage caps are unconstitutional because they deprive child rape survivors of the compensation needed to deal with a lifetime of mental and emotional trauma.
The Ohio Supreme Court upheld the trial court judge’s ruling in 2016 by a 4-2 vote.
One of the dissenters, Justice Paul Pfeifer, a former prosecutor, authored a blistering dissent in which he argued that tort reform, “however misguided and unconstitutional, was designed to protect doctors and corporate interests … also ensured that rapists and those who enable them will not have to pay in full for the damage they cause – even if they rape a child.”
Unfortunately, Jessica is not the only young girl to be victimized by both her rapist and Ohio’s unjust damage caps. Amanda Brandt was repeatedly raped when she was 11 years old by a friend’s father who videotaped the assaults. She was awarded $20 million dollars by a Cuyahoga County jury.
But the trial court judge, citing the Simpkins case, reduced the verdict to the $250,000, again because of the cap on non-economic damages.
Attorney John Fitch, who represented Jessica, has filed an appeal on her behalf. He is hopeful that the vile and depraved nature of the crimes committed against her may convince the Supreme Court to reverse the course.
In addition, the shocking nature of the two cases has motivated members of the General Assembly to introduce legislation to prevent victims of rape from being denied full compensation of their damages awarded by a jury.
So far the legislation has been blocked by the proponents of tort reform.
I’ve agreed to become involved in the effort to pass the bill. I hope you will join me in fighting for justice for victims like Jessica and Amanda.
— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to firstname.lastname@example.org.