CCL President Robert S. Peck told justices of the Ohio Supreme Court that the cap on personal injury non-economic damages cannot constitutionally apply to a rape victim, arguing that the damage-cap statute is an unconstitutional violation of the state constitution's "inviolate" jury trial right and, alternatively, a violation of equal protection and due process as applied to this case.

     Plaintiff Amanda Brandt was sexually assaulted 34 times over a two-year period starting when she was 11, by the father of her best friend, who would spike her drinks to render her unconscious during sleepovers. When it was discovered that he had done so to her and others, he was prosecuted and is now serving a prison term.

     Now 26, after having withdrawn from being among crowds, losing her position as an honor student, becoming homeless, attempting suicide, and facing counseling for the rest of her life, Brandt sued her rapist winning a $20 million verdict for actions that took place while the cap was in effect, but seeing it reduced under the statute to $250,000.

      In arguing the case, Peck pointed out that the word "inviolate" is used three times in the Ohio Constitution. Twice it refers to private property rights, but then qualifies the right, allowing it to be "subservient to public welfare." The jury right is inviolate, however, without qualification, which he said means it is not subject to a balancing test against any state interest.

       Even if the Court were not prepared to overturn a precedent that it has recently filed but that the Attorney General conceded was irreconcilable with years of other precedents that were still good law, Peck told the justices that exceptions to the rule that treated as catastrophic a permanent scar, a lost finger, and other comparatively minor injuries, denied Brandt equal protection and due process for its irrationality. Moreover, the rationale for the cap -- assuring defendants predictability in verdicts and boosting the state economy -- had no bearing where the defendant is a rapist.

        The case is now under advisement with a decision expected later this year.