MICHAEL E. JACKSON, Judge.

FINAL JUDGMENT ENTRY AND OPINION REGARDING: (1) THE APPLICATION AND CONSTITUTIONALITY OF THE STATUTORY PUNITIVE DAMAGE CAP; AND (2) JURY APPORTIONMENT OF THE VERDICT

MICHAEL E. JACKSON, Judge.

I. INTRODUCTION

This case was filed as a result of the death of Randy Roginski (“R. Roginski” or “decedent”). R. Roginski was working as an inspector for the Ohio Department of Transportation (“ODOT”) concerning a repaving project on Interstate 271 when he was killed on July 27, 2010. The Shelly Company (“Defendant” or “Shelly”) was the general contractor for this project.

Plaintiff Lynette Roginski, as Representative of the Wrongful Death Beneficiaries of Randy Roginski (“Beneficiaries”), and Plaintiff Lynette Roginski, as Administrator of the Estate of Randy Roginski, (“Estate”) (collectively, “Plaintiffs”), sued Shelly based on wrongful death and survivorship claims with a demand for punitive damages. After two weeks of trial, a jury trial rendered a unanimous verdict on April 2, 2014 in favor of the Plaintiffs based on a general verdict and the jury's responses to written interrogatories. The jury decided the Defendant knew: (1) that a significant risk of injury was foreseeable and that a dangerous situation existed because of the manner in which this construction site was setup at this location on Interstate 271; and (2) that due to this dangerous situation, workers performing their duties at this site, including the duties performed by R. Roginski, were exposed to a foreseeable risk of harm as drivers maneuvered their vehicles through this site at a high rate of speed. One driver, Anthony Jones (“Jones”), struck and instantly killed R. Roginski.

For the Beneficiaries, the jury awarded on the wrongful death claim $19,000,000, comprised of $17,000,000 in non-economic damages and $2,000,000 in economic damages. For the Estate, the jury awarded on the survivorship claim $25 in economic damages and $0 in noneconomic damages. This concluded Phase 1 of this trial.

Phase 2 then commenced regarding the issue of punitive damages asserted against Shelly in Count 2 of Plaintiffs' complaint. On April 3, 2014, the jury rendered a $20,000,000 punitive damages award in a general verdict without designating whether the amount applied to either claim. In its April 7, 2014 Journal Entry, the Court stated the particulars of the jury's verdict, but did not reduce it to a Final Judgment Entry because of pending issues, the resolution of which are now discussed in this Final Judgment Entry, issued pursuant to Civil Rule 38.

The Court has considered the arguments of counsel through extensive briefing that concluded on May 25, 2014 after the oral hearing on April 10, 2014 regarding the applicable law on the issues of: (1) jury apportionment of liability with respect to dismissed defendant Anthony Jones (“Jones”) and the decedent, R. Roginski, and a request to adjust the amount of the verdict; (2) the relationship between punitive damages and the distinct claims of wrongful death and survivorship; (3) the proper application of the statutory formula in R.C. 2315.21(D)(2)(a) to calculate the jury's punitive damage award, including whether damages awarded on the claims for both the wrongful death and survivorship can combined and considered to be “compensatory damages awarded to the plaintiff” under this statute to calculate punitive damages, and (4) constitutionality of this statutory formula to calculate punitive damages as applied to the verdict in this case.

II. JUDGMENT ENTRY

This Final Judgment Entry differs from the jury award for the reasons summarized in this section and further explained in detail in the remaining sections of this Final Judgment Entry and Opinion. The Court renders this Final Judgment Entry pursuant to Civil Rule 38, as follows:

A. Final Judgment is rendered in favor of Plaintiff Lynette Roginski as Representative of the Wrongful Death Beneficiaries of Randy Roginski and against The Shelly Company for compensatory damages in the amount of $12,100,000, comprised of non-economic damages in the amount of $10,200,000 and economic damages in the amount of $1,900,000.

The jury awarded a total of $19,000,000 for economic and noneconomic damages. This jury amount was reduced by a total of 40% to account for the comparative negligence of dismissed defendant Jones at 35% and R. Roginski at 5%. This reduction was applied to the economic and noneconomic amounts.

B. Final Judgment is rendered in favor of Plaintiff Lynette Roginski as Administrator of the Estate of Randy Roginski and against The Shelly Company in the amount of $23.75, as economic damages for property loss.

The jury awarded the Estate a total of $25 for his clothing damage when he died instantly because of Defendant's negligence; this amount was reduced to $23.75 for the comparative negligence of R. Roginski at 5%.

C. Final Judgment is rendered in favor of the Plaintiff Lynette Roginski as Administrator of the Estate of Randy Roginski and against The Shelly Company in the amount of $20,000,000 for punitive damages.

This is the amount awarded by the jury. However, after the jury rendered its award, the Court was required by law, as stated in R.C. 2315.21(D)(2)(a), to apply the statutory formula of two times the amount of “compensatory damages” arising out of a “tort action” to determine the legally enforceable amount of punitive damages to be awarded. The Court has interpreted this statute to mean that a “tort action” applies only to the survivorship claim, which was reduced to $23.75 and then doubled by the statutory formula to $47.50. This is the legally permitted amount of punitive damages to be awarded to the Estate for Defendant's malicious conduct based on this statute. Plaintiffs challenged this result on many counts, including that this result was unconstitutional.

The Court has determined that the punitive damage award of $47.50 for Defendant's malicious conduct that caused the instantaneous death of R. Roginski does not “punish [the] reprehensible conduct” of the Defendant and does not “deter its future occurrence” by the Defendant, both of which are the purposes of punitive damages. Also, this statute has no “real and substantial relation to the general welfare of the public” when this formula produces an unseemly and grossly inadequate result based on Defendant's malicious conduct.

This statutorily imposed result under R.C. 2315.21 does not make “certain that Ohio has a fair, predictable system of civil justice that preserves the rights of those who have been harmed by negligent behavior” as required by the Ohio Supreme Court in

Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 880 N.E.2d 420 (2007). This statutory system is neither “fair” nor does it “preserve the rights of those who have been harmed by [negligence].”

When a statute that is designed to protect the constitutional rights of malicious tortfeasors from paying what the General Assembly considers to be too much money for their egregious conduct also produces a result that is designed to pay beneficiaries of the victim's Estate the paltry sum of $43.75 for killing R. Roginski instantaneously, then the Estate's (and its recipients') constitutional rights of due process and equal protection have not been served or protected. The General Assembly has made protecting a malicious tortfeasor superior to the rights of the estate of a decedent who has been killed instantly by such malicious conduct. This result is not in the interest of the general public.

In all cases like this one, no family member or other beneficiary of the decedent's estate should ever be told that their constitutional rights to due process of law have not been violated when a statutorily imposed formula awards the paltry amount of $47.50—for double the value of a decedent's clothing—resulting from a defendant's malicious conduct that caused a decedent's instantaneous death. Likewise, no corporate or individual defendant determined by a jury to have engaged in malicious conduct and thereby subjected to an award of punitive damages should ever feel relief, financial or otherwise, when discovering that the application of R.C. 2315.21 imposes for that malicious conduct the paltry sum of $47.50. This amount is certainly not a meaningful legal sanction for killing instantly the decedent in this case or in any other case.

This statute required R. Roginski to endure “conscious pain and suffering” before his death, or to satisfy other damages available with a survivorship claim in order to receive a statutorily justifiable award that satisfies the purposes of punitive damages. This same formula required his Estate to accept a grossly inadequate award that does not satisfy these purposes when he died instantaneously by Defendant's malicious conduct. This result is unconscionable as well as unconstitutional. Accordingly, the formula in R.C. 2315.21(D)(2)(a) is unconstitutional as applied to this case. Based on existing case law, the Court orders the jury award of $20,000,000 as punitive damages.

A motion for attorney fees and expenses and other post-Final Judgment motions that may be filed will be determined at a hearing to be scheduled later.

III. LAW AND ANALYSIS

A. JURY APPORTIONMENT OF LIABILITY FOR COMPARATIVE NEGLIGENCE AND THE CORRESPONDING REDUCTION OF THE VERDICTS

As explained in detail in the Court's April 7, 2014 Journal Entry, the Court required the jury to apportion fault among Shelly, Jones and R. Roginski by completing written interrogatories. The jury apportioned fault as follows: 60% to Shelly, 35% to Jones and 5% to R. Roginski. Based upon R.C. Sections 2307.22 and 2307.23 and the decision by the jury that 40% of the fault is assigned to Jones and R. Roginski, the Court reduced the $17,000,000 non-economic portion of the jury's verdict for the Beneficiaries to $10,200,000. The Court did not reduce the economic damage awards of $2,000,000 to the Beneficiaries or $25 awarded to the Estate because these statutes do not apply to economic damages, and the Court did not consider any other statute at that time. The Court determined that the adjusted total compensatory award to the Beneficiaries was $12,200,000, and the Court left the $25 compensatory award to the Estate intact. Following the April 7th Journal Entry, Shelly and Plaintiffs have argued that the Court should have apportioned this aspect of the verdict differently.

1. POSITION OF EACH PARTY

Shelly believes that the Court also should have reduced both of the economic damage awards based upon R. Roginski's 5% comparative negligence. As a result, Defendant contends that for the Beneficiaries the total compensatory award for economic and noneconomic damages should be $12,100,000 (a reduction of $100,000), and that for the Estate the award should be $23.75 (a reduction of $1.25). In support, Shelly cites R.C. 2315.33, which states in pertinent part, “The court shall diminish any compensatory damages recoverable by the plaintiff by an amount that is proportionately equal to the percentage of the tortious conduct of the plaintiff.”

Plaintiffs do not dispute Shelly's calculations or the statute upon which these calculations were based. Instead, Plaintiffs rely on R.C. 2315.32(B) by pointing out that when an intentional tort is proven, the Court cannot reduce compensatory damage awards due to decedent's negligence. As a result, the jury's apportionment calculation due to R. Roginski's comparative negligence of 5% does not apply in this situation.

2. COURT'S ANALYSIS

While Plaintiffs acknowledge that they only pled and proved negligence claims against Shelly, they assert that the jury awarded punitive damage based on the required burden of proof, which is similar to or greater than proof of an intentional tort. Plaintiffs note that punitive damages must be proven by clear and convincing evidence, similar to the burden of proof for an intentional tort, which requires proof by either a preponderance or substantial certainty of the evidence, depending upon the type of intentional tort. Plaintiffs argue that since the jury determined that Shelly acted with a conscious disregard of the decedent's rights and safety, which constitutes malice, they proved the equivalent of an intentional tort.

Plaintiffs cite Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), and Wightman v. Consol. Rail Corp., 94 Ohio App.3d 389, 640 N.E.2d 1160 (6th Dist.1994) to support their claim that an intentional tort overrides or prevents the 5% deduction of the award based on decedent's negligence in this case. However, Plaintiffs do not cite any case that states that a punitive damage award arising out of a negligence claim is the same or the equivalent of proving an intentional tort. This Court has found an Ohio Supreme Court case that discusses this issue, but that case does not support Plaintiffs' position, as discussed next.

The Supreme Court of Ohio considered an argument similar as the one advanced by Plaintiffs in the case of Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 912 N.E.2d 595 (2009). In this wrongful death and survivorship case, plaintiff's representative in Niskanen argued that the punitive award was based on upon a finding of malice, and that this finding “transformed” her negligence claim into an intentional tort; as a result, none of the damages could be reduced by the decedent's comparative negligence. Id. at 490, 912 N.E.2d 595. That argument was made because plaintiff's representative in Niskanen was attempting to overcome a jury's finding that her decedent was 60% negligent, which would negate the compensatory damages based on the statute in question, and would also eliminate the punitive damage award that was dependent upon a recovery of compensatory damages.

The Niskanen Court rejected the plaintiff's argument and stated that it previously held that “in a civil action for tort or wrongful death, a finding by the jury that a plaintiff (or decedent) was comparatively negligent will not defeat or diminish the recovery of damages where the defendant's intentional tort, committed with actual malice, proximately caused the injury .” Id. at 490, 912 N.E.2d 595, with emphasis in original. The Court continued by stating:

“Niskanen now appears to be arguing that she pursued a theory of malicious conduct throughout, but that does not somehow transform her negligence cause of action into an intentional tort, and it certainly does not mean that she succeeded on an intentional tort claim at trial. The simple fact is that the jury found in her favor only on a negligence cause of action....” Id.

In essence, the Supreme Court states that a plaintiff must plead and prove an intentional tort before plaintiff's (or decedent's) comparative negligence is not considered in determining an award for compensatory damages.

Like Niskanen, the Plaintiffs here succeeded on two separate negligence claims. Even though the jury awarded punitive damages based on a finding of malice that was proved by clear and convincing evidence, that finding cannot “transform” either one of those claims into an intentional tort and eliminate the required set-off for R. Roginski's comparative negligence. Plaintiffs never pled an intentional tort claim in their complaint. At the conclusion of their case, Plaintiffs never requested the Court to amend their complaint to add an intentional tort because the evidence presented by the Plaintiffs conformed to the elements of an intentional tort. Apparently, Plaintiffs did not believe there was a good-faith basis to plead an intentional tort at the outset, nor did they believe that sufficient evidence existed at the close of their case. As the Niskanen Court explained, a punitive damage award cannot “transform” a negligence claim with a punitive damage award into an intentional tort. Accordingly, this aspect of Plaintiffs' claim is without merit.

The Court agrees with Defendant's position on these issues. R.C. § 2315.33 clearly states, with emphasis added, that the Court “shall diminish any compensatory damages recoverable by the plaintiff by an amount that is proportionately equal to the percentage of tortious conduct of the plaintiff.” The Court has already reduced the non-economic portions of the compensatory damages verdicts to account for Plaintiff's comparative negligence of 5%, based on R.C. §§ 2307.22 and 2307.23. When these statutes are read in pari materia with R.C. § 2315.33, it is clear that the Court must also reduce the economic damages in both claims awarded to the Plaintiffs by the same percentage.

Therefore, this aspect of Defendant's Motion for Reconsideration is granted. As reflected in Section II, the economic portion of the compensatory damages, which awarded $2,000,000 to the Beneficiaries and $25 to the Estate, are hereby reduced to account for R. Roginski's 5% comparative negligence. The adjusted amounts are $1,900,000 and $23.75, respectively. These adjustments change the total compensatory awards to $12,100,000 to the Beneficiaries and $23.75 to the Estate.

B. A PUNITIVE DAMAGE AWARD AND THE DISTINCT CLAIMS FOR WRONGFUL DEATH AND SURVIVORSHIP.

Plaintiffs and Defendant agree that the Ohio Supreme Court case of Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 374 N.E.2d 411, prohibits wrongful death beneficiaries from receiving punitive damages. They also agree that the 2005 amendment to R.C. 2315.21(D)(2)(a) limits an award of punitive damages to the plaintiff in a tort action to two times the compensatory damages. Beyond that, however, there is no agreement regarding how this statute should be interpreted and applied in this case.

Plaintiffs contend that the jury's award of $20,000,000 in punitive damages is legally permissible and, in fact, cannot be altered by their reading of this case and this statute. Conversely, Defendant contends just as strongly that the only legally permissible punitive damage amount is $47.50 based on the statute. Before analyzing their respective arguments, it is necessary to discuss Rubeck and R.C. 2315.21(D)(2)(a).

1. RUBECK v. HUFFMAN

Clair Rubeck was killed in a head-on automobile collision caused by George Huffman who was traveling on the wrong side of the highway when his vehicle struck Rubeck's vehicle. Id. The executor of Clair Rubeck's estate, Paul Rubeck, filed an action for damages against Huffman based on his negligent, reckless, and willful and wanton driving. Id. The executor claimed $400 in damages to the vehicle and damages for alleged pain and suffering incurred by the decedent before his death. Id. at 22–23, 374 N.E.2d 411. In addition, Paul Rubeck, as the personal representative of the wrongful death beneficiaries, asserted a claim for damages under the wrongful death statute, R.C. 2125.02, by demanding compensatory and punitive damages. Id. at 20, 374 N.E.2d 411. The defendant admitted his negligence and that the collision caused the death of Clair Rubeck, but denied all other allegations.

The Supreme Court's presentation of the factual issues concerning what the jury determined is not as explicit as stated by the Fifth District Court of Appeals, case number CA 2443, 1977 WL 200879. Since this aspect of the case is important, it is worthwhile to consider the factual information provided by the appellate court, which stated:

The jury in its general verdict awarded compensatory damages in the sum of $20,000 and punitive damages in the sum of $20,000 without any separation of compensatory damages as they may relate to the survival v. wrongful death cause of action or any like separation of punitive damages. Id. at *10.

The Fifth District Court of Appeals determined that the decedent endured pain and suffering for a short, but sufficient duration to support nominal damages and allocated $500 to the survival claim from the award of $20,000 in compensatory damages. Id. at *15–*16. Because the survival claim was established, the estate was entitled to receive the punitive damage award of $20,000, even though: (1) the jury did not allocate the award to either the survivor claim or the wrongful death claim; and (2) the complaint stated that the punitive damage claim was related to or arose out of the wrongful death claim. Id., in passim. The Fifth District Court of Appeals noted that wrongful death beneficiaries cannot receive punitive damages under Ohio law, and that the $20,000 amount must go to those entitled to receive a distribution of the survival claim. Id. at * 15–*16.

On appeal, the Ohio Supreme Court upheld the Court of Appeals' decision that punitive damages are not available in wrongful death actions and that the evidence supported an award of compensatory damages under the wrongful death claim. However, the Supreme Court determined that the executor failed to prove the decedent suffered pain and suffering before his death from the collision, contrary to the view of the Court of Appeals. Rubeck, 54 Ohio St.2d 20, 24, 374 N.E.2d 411. Because the Supreme Court reversed the Fifth District Appellate Court on this last point, punitive damages were not available since the survival claim failed. The Supreme Court summarized the law before applying the facts, with citations omitted and emphasis added, by stating:

Since there is no right to punitive damages in a wrongful death action, the trial court's award of punitive damages in the instant case is valid only if Claire Rubeck had a right to such damages that would survive his death pursuant to R.C. 2305.21. It is established law in this state that one may obtain punitive damages for personal injury or property loss caused by “intentional reckless, wanton, willful or gross acts” or by malice “inferred from conduct and surrounding circumstances.” Moreover the right to such damages continues even when the person so injured has died and the personal injury or property loss claim is pursued by the representative of his estate under R.C. 2305.21. Therefore, if Paul Rubeck alleged and proved that the deceased suffered personal injury or property loss as a result of the collision and before he died, the trial court's award of punitive damages should be upheld. Id. at 23, 374 N.E.2d 411.

It is clear that if the executor had submitted sufficient proof of the survival claim, the Supreme Court would have upheld the punitive damages award of $20,000 for those entitled to receive a distribution from the estate, even though substantially all of the compensatory damages awarded in that case were for the benefit of the wrongful death beneficiaries and even though the punitive damage claim was directly connected to the wrongful death claim in the complaint. The Supreme Court was not concerned that: (1) the amount of the survival claim was nominal; (2) the punitive damages was not pled as part of the survival claim; or (3) since the survival claim was nominal, the jury in all likelihood considered the amount awarded to the wrongful death beneficiaries as one of the factors in determining the amount of punitive damages. Rather, this court focused only on the point that the survival claim must be proved before punitive damages can be awarded.

However, it is important to note that the punitive damages statute at issue in this case, R.C. 2315.21(D)(2)(a), had not been enacted at the time of the Rubeck case. That statute for the first time established a mathematical formula that created a direct and causal connection between an amount awarded by a jury for compensatory damages in a “tort action” and a legislatively imposed limit on the amount of punitive damages of two times the amount of compensatory damages, as discussed in detail below. Therefore, the Supreme Court did not have to consider the applicability of this statute and what constitutes a “tort action.” Nevertheless, Defendant and Plaintiffs each use Rubeck to advance their views regarding the application of this statute to the $20,000,000 punitive damage award by the jury.

Defendant focuses on the holding in Rubeck that punitive damages are not available to wrongful death beneficiaries and argues that this holding is reflected in R.C. 2315.21 because there is nothing in that statute that entitles wrongful death beneficiaries to receive punitive damages. However, Defendant does not discuss the fact that Rubeck allows punitive damages to be awarded to the Estate based on an amount comprised of the wrongful death and the survival claims. In contrast, Plaintiffs focus on the statement by the Supreme Court, which, in essence, says that the Fifth District Court of Appeals decision regarding punitive damages would have been upheld if there had been sufficient evidence to support a survival claim, even though the Supreme Court knew that the claim for punitive damages was part of the wrongful death claim and that the punitive damages amount was based on both claims. In other words, so long as the $20,000 in punitive damages was distributed to claimants entitled to receive a distribution of a proven survival claim, the Supreme Court in Rubeck would permit that payment even though punitive damages were pled as part of the wrongful death claim and was based on both claims. Plaintiffs argue that R.C. 2315.21(D)(2)(a) should be read to produce the same result.

2. RUBECK AND SUBSEQUENT CASES RELIED UPON BY THE PARTIES

Each party also relies heavily on different cases that cite Rubeck. Defendant believes that the only reported case on point is Freudeman v. The Landing of Canton, 702 F.3d 318 (6th Cir.2012), a 2012 United States Sixth Circuit case that interprets R.C. 2315.21(D)(2)(a) in the context of a wrongful death claim and a survivorship claim. Plaintiffs strongly criticize Freudeman while contending that Beavers v. Knapp, 175 Ohio App.3d 758, 2008-Ohio-2023, 889 N.E.2d 181, a 10th District Court of Appeals case, is nearly a match to Rubeck, except in Beavers the decedent's representative did in fact prove the survivorship claim, thereby permitting the punitive damages award to be distributed to those entitled to receive proceeds of the survival claim. In Beavers, like Rubeck, the jury in all likelihood considered the amount awarded to the wrongful death beneficiaries as one of the factors in determining the amount of punitive damages. The total compensatory award in Rubeck and in Beavers was the same as or close to the amount of punitive damages. Finally, Beavers also involved facts that occurred before the effective date of R.C. 2315.21.

(a.) FREUDEMAN v. THE LANDING OF CANTON

Defendant relies upon this wrongful death and survivorship case. In Freudeman, one of the decedent's four children filed a wrongful death and survivorship lawsuit in his representative capacity for the injuries and death of his mother. Freudeman, at 323. This complaint was filed against the entity operating an assisted living facility where she resided and against related corporate entities. For the survivorship claim, the jury awarded $400,000 for her economic and non-economic damages, and for the wrongful death claim, the jury awarded $280,000, for a total of $680,000. Id. at 329. Interrogatories were submitted to the jury regarding these claims. In addition, the jury awarded punitive damages of $1,250,000 without allocating this amount to either claim and also awarded attorney fees. Id.

After the verdict, the defendants requested the trial court to reduce the punitive damage award to $800,000 because punitive damages were not available in wrongful death claim. Id. The defendant also argued that punitive damages can be awarded only as part of the survival claim and that R.C. § 2315.21(D)(2)(a) limited punitive damages to two times the “compensatory damages awarded to the plaintiff.” Id. As a result, the proper punitive damages amount should be two times the $400,000 for the survivorship claim that was awarded to the estate, for a total of $800,000 in punitive damages. Freudeman, supra at 329.

The trial court found this argument was “without merit” since the jury award of $1,250,000 in punitive damages was less than the statutory cap amount calculated by the trial court to be $1,360,000, which was twice the sum of the survival and wrongful death claims ($680,000 x 2). Id. at 331. Since the punitive damage award was $110,000 below the cap when calculated using this method, the trial court considered this method of calculation appropriate under R.C. 2315.21(D)(2)(a). Id. Accordingly, the trial court did not reduce the punitive damage award as requested by defendants. Freudeman, at 331 and in passim.

The Sixth Circuit Court of Appeals reversed the District Court's decision regarding the manner in which punitive damages were calculated and remanded the case back to that court with instructions to reduce the punitive damage award to $800,000. Id. at 333–334. The appellate court determined that it was improper for the trial court to combine all of the compensatory damages awarded for the two claims—wrongful death and survivorship—in calculating punitive damages under R.C. 2315.21(D)(2)(a). Id.

This Court of Appeals also stated that under Ohio law wrongful death and survivorship claims are separate and independent claims. Id. at 333. Due to this fact and due to the distinct capacities in which the decedent's representative pursued these claims, it was improper for the District Court to combine all of the compensatory damages awarded for all of the claims in calculating punitive damages. Id. at 334. The Sixth Circuit interpreted “plaintiff” in the phrase—“compensatory damages awarded to a plaintiff” in R.C. 2315.21(D)(2)(a) —to mean only the representative of the estate and not as a representative of the wrongful death beneficiaries because these beneficiaries could not receive punitive damages under Ohio law. Freudeman, supra at 333, fn. 7. However, this court did not consider the requirement that compensatory damages must arise out of a “tort action” under this statute.

(b.) BEAVERS v. KNAPP

The Plaintiffs rely upon this wrongful death and survivorship case. The jury awarded compensatory damages in the amount of $767,600 for both claims without allocating the amounts for each. Estate of Beavers v. Knapp, 175 Ohio App.3d 758, 766, 889 N.E.2d 181 (2008). This jury also awarded punitive damages in the aggregate amount of $750,000 ($500,000 against the employer and $250,000 against the employee who caused the victim's death in an automobile incident). Id. at 766, 889 N.E.2d 181. This award was not allocated to either claim. Id., in passim. The trial court and appellate court found sufficient evidence to support a survivorship claim that the decedent suffered personal injuries and incurred property damages before he died. Id. at 768–769, 889 N.E.2d 181. However, none of the issues on appeal in Beavers relate to the issues raised by Plaintiffs and Defendant in the case before this Court. Rather, the main aspect of the appeal was the employer's belief that it was not responsible for any punitive damages arising out of the conduct of its employee. Id. at 774–775, 889 N.E.2d 181. The appellate court agreed and overturned the punitive damages award against the employer based on circumstances that do not apply to the issues in the present case. Beavers, supra at 789, 889 N.E.2d 181. The appellate court did keep in place the jury award of punitive damages against the employee who caused the death. Id., in passim.

When discussing punitive damages in general, the Tenth District Court of Appeals stated the law with regard to punitive damages and cited Rubeck by noting that wrongful death beneficiaries were not entitled to receive punitive damages. Id. at 767, 889 N.E.2d 181. R.C. § 2315.21(D)(2)(a) was not in effect because the events in Beavers took place in 2001, about four years before the effective date of this statute. Id., in passim.

(c.) COURT'S ANALYSIS

Rubeck , Freudeman , and Beavers all hold that wrongful death beneficiaries are not entitled to punitive damages because such award is not permissible under the wrongful death statute. In addition, these cases also hold that punitive damages may be awarded when a survivorship claim has established that the decedent suffered pain or incurred property damage prior to death. However, Rubeck and Beavers do not discuss R.C. 2315.21 because this statute had not been adopted when these cases were decided. As a result, Rubeck and Beavers provide no assistance in determining what constitutes a “tort action.” Nevertheless, these cases are relevant for the discussion as to what constitutes “compensation” under this statute, as discussed in the next section.

In contrast to Rubeck and Beavers, there are two reasons why the Freudeman case is important when considering the application of R.C. 2315.21 to these issues. First, Freudeman is the only published case that examines sub-division (D)(2) of R.C. 2315.21 concerning these issues, and the Sixth Circuit Court of Appeals in Freudeman explained in detail why the trial court did not properly interpret this section in accordance with Ohio law. Second, the federal district court did exactly what Plaintiffs urged this Court to do—interpret the award punitive damages based on “compensation” calculated as the total amount of the wrongful death damages and the survivorship damages determined by the jury. Freudeman, supra at 331.

While a federal court's decision is persuasive authority and not binding on this Court, each of the cases cited by the Sixth Circuit federal court were reviewed by this Court, and this Court agrees with the Sixth Circuit's analysis of Ohio law regarding survival and wrongful death claims. However, the Sixth Circuit did not analyze whether Rubeck and Beavers, both of which were cited in Freudeman, are relevant to determine what constitutes “compensation” under this statute.

C. R.C. 2315.21 —RECOVERY OF COMPENSATORY, PUNITIVE, OR EXEMPLARY DAMAGES IN TORT ACTION; BIFURCATED TRIAL; BURDEN OF PROOF

Plaintiffs and Defendant do not dispute that Plaintiffs' survival claim is a “tort action,” as defined below. However, the parties disagree as to whether the wrongful death claim also is a “tort action,” and they disagree as to whether the amount awarded for a wrongful death claim can also be considered as “compensatory damages awarded to a plaintiff” for the purposes of calculating the amount of punitive damages.

1. TORT ACTION

R.C. 2315.21(A)(1) defines “tort action” as:

a civil action for damages for injury or loss to person or property. “Tort action” includes a product liability claim for damages for injury or loss to person or property that is subject to sections 2307.71 to 2307.80 of the Revised Code, but does not include a civil action for damages for a breach of contract or another agreement between persons.

To interpret this statute, this Court must look to the plain language of the statute. Brooks Capital Services, LLC v. 5151 Trabue Ltd. , 12AP–30, 2012-Ohio-4539, 2012 WL 6520232. Words used in a statute must be accorded their usual, normal and customary meaning. Id., citing R.C. 1.42. If the words in a statute are “ ‘free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation.’ ” State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 12, quoting Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. “An unambiguous statute is to be applied, not interpreted,” Meeks v. Papadopulos, 62 Ohio St.2d 187, 190, 404 N.E.2d 159 (1980), quoting Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus; Brooks, supra.

This definition does not include the term “death” and does not make a specific statement or reference to the wrongful death statute or to a wrongful death claim. Nevertheless, Plaintiffs point out that a “wrongful death claim and that statute have not been specifically excluded from this definition.” Plaintiffs' Reply Brief In Support Of Positions on Constitutionality, p. 5. While that is true, the failure to do so does not mean that a wrongful death claim or the wrongful death statute was meant to be included. As just noted, words used in a statute must be accorded their usual, normal and customary meaning. Brooks, supra.

Of the definitional terms used, “injury or loss to person or property,” Plaintiffs contend that the wrongful death claim is included in “loss to person.” However, Plaintiffs do not explain why this is so. They also do not cite any cases in Ohio or elsewhere to support this position, and this Court has not found any case that supports this view. Further, the phrase “loss to person” does not suggest that it includes a death related claim. So, there is no basis to support Plaintiffs' view that a wrongful death claim applies to a “tort action.” In addition, this Court has not found any case to support the view that the wrongful death statute or wrongful death claim is included within the phrase “injury,” and the usual, normal and customary meaning of these terms does not include “death.” For all these reasons, Plaintiffs have failed to provide any legal basis for their assertion, this argument lacks merit.

There are three other concrete factors that strongly support the conclusion that a wrongful death claim or the wrongful death statute are not intended to be a tort action as defined in the statute. First, Rubeck, Beavers and many other Ohio cases, all hold that wrongful death beneficiaries are not entitled to punitive damages because such award is not permissible under the wrongful death statute. Although these cases do not construe R.C. 2315.21 because they were decided before this version of the statute was enacted, these cases reinforce the well-established law in Ohio that wrongful death beneficiaries are not entitled to punitive damages. With this firmly established case law, it follows that a “tort action” would not include a wrongful death action when only these terms—“injury or loss to person or property”—are used in the statute. In addition, if the Legislature wanted to change that result, the term “death” or some reference to the wrongful death claim or that statute would have been stated.

Second, when an earlier version of this statute took effect on January 5, 1988 by 1987 House Bill 1, the Ohio legislature stated in the un-codified portion of the statute that:

... the intent of the General Assembly in enacting section 2315.21 of the Revised Code in this act to recognize that punitive or exemplary damages are not recoverable in wrongful death actions under chapter 2125 of the Revised Code, as found by the Supreme Court in [Rubeck ].

There is nothing in the latest version of the statute to indicate a change from this stated view. This Court notes that there are 191 Ohio statutes, including R.C. 2315.21, that define the term “tort action,” “civil action” or similar phrases, and each one uses the term or phrase “injury” in conjunction with “loss to person or property” as set forth in R.C. 2315.21. In 164 of these statutes, the term “death” is inserted between “injury,” and “loss to person or property” so that these statutes are read—“injury, death , or loss to person or property.” It is clear from this review that the Legislature certainly knew when to insert the term “death” with “injury or loss to person or property” and by the absence of that term in R.C. 2315.21, the Legislature expresses its intent not to include “death” for consideration as part of a “tort action.” All of these factors soundly support the view that the wrongful death statute was not intended to be part of a “tort action” in R.C. 2315.21. Accordingly, Plaintiffs' argument is not well founded.

For the third factor, Plaintiffs contend that another sub-section, (D)(6) of R.C. 2315.21, provides additional support that the Legislature intended to include wrongful death claims as part of the “tort reform” passed into law, effective April 7, 2005. Subsection (D)(6) states, with emphasis added:

Division (D)(2) of this section does not apply to a tort action where the alleged injury, death, or loss to person or property resulted from the defendant acting with one or more of the culpable mental states of purposely and knowingly as described in section 2901.22 of the Revised Code and when the defendant has been convicted of or pled guilty to a criminal offense that is a felony, that has as an element of the offense one or more of the culpable mental states of purposely and knowingly as described in that section and that is the basis of the tort action.

reference to death [this] plainly and unmistakably signifies that the definition [of a tort action] furnished in subsection (A)(1) includes fatalities, as well as bodily injuries and property damages.... Any other interpretation renders the term ‘death’ superfluous, which must always be avoided when construing a statute.” Id. at 5, 6 [citations omitted].

A close reading of subsection (D)(6) does not support Plaintiffs' position. The focus of this subsection centers on the criminal conduct of the tortfeasor that results in a felony conviction based on that tortfeasor's purposeful and knowing conduct. In that setting, subsection (D)(6) states that the cap or limitation on punitive or exemplary damages is removed when the victim/plaintiff suffers an “injury, death, or loss to person or property.” This subsection has nothing to do with the type of claim that qualifies for a “tort action.” Rather, this subsection focuses on the various acts of harm imposed upon the plaintiff/victim—“injury, death, or loss to person or property”—that must result from this criminal conduct in order to remove the cap on punitive damages.

Using the parties in this case as an example, if a Grand Jury had indicted Jones or Shelly for their conduct in this case and one or both was found guilty of or pled guilty to the criminal conduct required in this subsection, then these parties would not have a cap on punitive damages because of their criminal conduct. If “death” was not listed, then purposeful and knowing conduct that resulted in a plaintiff's death would not remove the punitive damages cap while other less harmful conduct would do so. For all of these reasons, this section does not define what a “tort action” is or is not. Accordingly, this aspect of Plaintiff's argument is without merit.

2. COMPENSATORY DAMAGES

Plaintiffs assert that “Shelly's contrived position [of applying compensatory damages only to the survival claim] requires this [C]ourt to judicially engraft a bodily injury and property damage limitation upon the broad phrase ‘compensatory damages.’ ” Plaintiffs instruct this Court to give compensatory damages its “ ‘plain and ordinary meaning” ... and even if it were plausible that Defendant's interpretation is adopted, this [C]ourt is further instructed that ‘a strong presumption exists that a just and reasonable result is intended.’ ”

R.C. 2315.21 does not define “compensatory damages.” That section provides in subsection (D)(1) & (2)(a), with emphasis added that:

(D) (1) in a tort action, the trier of fact shall determine the liability of any defendant for punitive or exemplary damages in the amount of those damages.

(2) Except as provided in division (D)(6) [a defendant's criminal acts; see above] of this section, all of the following apply regarding any award of punitive or exemplary damages in a tort action:

(a) the court shall not enter judgment for punitive or exemplary damages in

excess of two times the amount of compensatory damages awarded to the plaintiff for that defendant, has determined pursuant to division (B)(2) or (3) of this section.

Plaintiffs argue that the “plain and ordinary” meaning of “compensatory damages” should apply to the total award of the survival and wrongful death claims because punitive damages are not about awarding damages to an injured party, but are to punish a defendant for egregious or malicious conduct that is at issue. The Court agrees that under Ohio law the purpose of punitive damages is to punish and to deter malicious conduct. Indeed, the Court notes that in the un-codified legislative history of R.C. 2315.21, the General Assembly made specific findings in support of the cap on punitive damages, which were primarily meant to ensure (1) that punitive damage awards punished defendants for certain wrongful actions or omissions and (2) at the same time, the punitive damage award has a reasonable relationship to the amount of compensatory damages awarded. As part of the un-codified legislative history of the statute, the General Assembly stated:

(4)(a) Reform to the punitive damages law in Ohio is urgently needed to restore balance, fairness, and predictability to the civil justice system.

(b) In prohibiting a court from entering judgment for punitive or exemplary damages in excess of the two times the amount of compensatory damages awarded to the plaintiff ... the General Assembly finds the following:

(i) Punitive or exemplary damages awarded in tort actions are similar in nature to fines and additional court costs imposed in criminal actions, because punitive or exemplary damages, fines, and additional court costs are designed to punish a tortfeasor for certain wrongful actions or omissions.

This stated purpose, however, does not necessarily require that the “plain and ordinary” meaning of “compensation” must be construed so broadly that an award for wrongful death compensatory damages, which does not qualify as a “tort action,” must be included to determine the amount of “compensation.” The statute is clear: punitive damages must arise out of a “tort action” in order that the egregious or malicious conduct is properly punished. The “plain and ordinary” meaning of “compensation” in this context means two times the amount awarded that arises only out of a claim that qualifies as a “tort action,” which in this case is the survival action that was filed by the Estate. To hold otherwise would mean that an amount awarded for a claim that does not qualify as a “tort action”—such as a wrongful death claim—would automatically be included in the calculation of the amount available for punitive damages under the statute. There is no basis in statutory construction or any court case that supports this view. With this in mind, the remaining question is—does Rubeck or Beavers provide any legal support that would allow wrongful death compensatory damages to be considered part of the compensatory damages of a survival claim to determine the amount of punitive damages to be awarded under this statute? There are three factors in these cases that give credence to this proposition. These factors are: (1) the two causes of action are brought at the same time when pursuing claims of wrongful death and survivorship, and the same natural person—a designated representative approved by the probate court—typically files both of these actions as separate claims in the same lawsuit; (2) in Rubeck and Beavers —and in numerous other cases, such as Wightman v. Consolidated Rail Corp., 86 Ohio St.3d 431, 715 N.E.2d 546 (1999) —the compensatory awards in each of these claims were co-mingled and rendered as one amount so that a specific amount could not be determined for either claim; and (3) the juries in Rubeck, Beavers and other cases considered the amount awarded to the wrongful death beneficiaries and the survival claim as one of the factors in determining the amount of punitive damages. Since the focus of punitive damages is on the egregious conduct of the tortfeasor, it is appropriate, so Plaintiffs contend, to combine these compensatory awards to better determine the amount of punitive damages to be paid to the decedent's estate and not to the wrongful death beneficiaries.

Regarding the first factor, Plaintiffs focus more on the fact that the same natural person is asserting both claims. Plaintiffs contend “compensation to a plaintiff” means that the jury award of $20,000,000 is payable to Linda Roginski as “a plaintiff,” who serves two capacities, one as the personal representative of the Beneficiaries and the other as the administrator of the Estate. The Sixth Circuit in Freudeman disagrees and responds to this assertion, with emphasis added:

While the same person customarily serves in both capacities, that is not required and does not occur in all cases for many reasons. To suggest that wrongful death damages must be included as a matter of statutory interpretation because of this circumstance is not supported by any case, nor is it justified on any basis. A punitive damage award nor what constitutes compensation for such damages cannot be dependent upon whether there is one or two individuals serving as a plaintiff in a wrongful death and survivorship case.

Although a survival claim and a wrongful death claim are typically pursued by the same nominal party and must usually be joined in the same action, the Ohio Supreme Court has emphasized that they are separate and independent causes of action. It is clear that survival claims and wrongful death claims are distinct claims that belong to separate individuals, even though they are generally brought by the same nominal party (the personal representative of the estate). There is no mistaking the independent nature of these actions. Id. at 333.

...

[T]he Ohio Supreme Court has specified that the wrongful death proceeds are received by this person in his or her capacity as the personal representative of the decedent, and not in his or her capacity as the executor of the decedent's estate.... For a survival claim, the decedent's estate can recover both compensatory and punitive damages.... Punitive damages are not available for a wrongful death claim. Id. at 332.

...

The punitive damages statute instructs the trial court to look at “the amount of the compensatory damages awarded to the plaintiff .” The real plaintiff for the survival claims was [the estate], and only the compensatory damages awarded to that plaintiff should have been considered by the district court. In addition to being contrary to the language of the statute, considering the wrongful death damages so as to expand the statutory cap on punitive damages would also violate the established principle that punitive damages are not available for a wrongful death claim. Id. at 333, emphasis in original, internal citations omitted.

This Court agrees with this analysis by the Sixth Circuit. Accordingly, “compensation to the plaintiff” in this context means Plaintiff Lynette Roginski as Administrator of the Estate of Randy Roginski is the “plaintiff” for the purposes of this subsection of the statute. This aspect of Plaintiffs' argument is without merit.

As to the second factor that the compensatory awards in Rubeck and Beavers were co-mingled and reported by the jury as one amount, this fact was not litigated in these cases, so it is difficult to determine the impact this point has on the analysis of these issues. As to the third and related factor, that juries in Rubeck, Beavers and other cases considered both the amount awarded to the wrongful death beneficiaries and the survival claim in determining the amount of punitive damages, it is clear that this judicially accepted practice has been followed by the Ohio Supreme Court for years.

Only one Ohio Supreme Court Justice has criticized this long standing practice of allowing an the amount of punitive damages in wrongful death and survivorship actions to be based on both amounts but only awarded to the survivorship claim if proved. In a dissenting opinion in Wightman, Justice Lundberg Stratton stated, with emphasis added:

By affirming an award of punitive damages that is 6250 times the property damage award (even after remittitur), [the Ohio Supreme Court] may encourage plaintiffs in wrongful death cases to include a property damage claim, no matter its value, to use as a basis to recover exorbitant punitive damages. The result is, in essence, a judicially endorsed negation of Ohio's wrongful death statute. This court has now explicitly sanctioned punitive damages for wrongful death, this despite the fact that a wrongful death claim exist only by statute and does not provide for punitive damages. Since the majority does not directly address this issue, presumably, the principle of law still stands that punitive damages cannot be awarded in a wrongful death claim. To the extent that the majority intended otherwise, I dissent. Wightman, supra at 448–449, 715 N.E.2d 546, Lundberg Stratton, J., concurring in part and dissenting in part.

From Rubeck in 1976 to Wightman in 1999—nearly 25 years—this is the only time any Ohio Supreme Court Justice questioned the judicially sanctioned practice of allowing an unallocated amount of punitive damages in a case that clearly was based on the compensation determined for both the wrongful death and survival clams and awarded to the estate. In any event, this observation by Justice Lundberg Stratton misses the point that only those entitled to receive punitive damages do so through the survivorship claim and punitive damages were not paid to the wrongful death beneficiaries. While in many cases individuals may be entitled to a distribution resulting from both of these claims, there are numerous circumstances in which these recipients are not the same as to each claim. Accordingly, it is not correct to say that in Wightman punitive damages were paid as part of the wrongful death claim. Rather, in Wightman the punitive damage award was allocated only to the survivor claim based on following this judicially sanctioned practice of allowing punitive damages to be evaluated based on both claims and the totality of the circumstances.

Nevertheless, this judicially accepted practice that existed prior to R.C. 2315.21 cannot be read into the terms “tort action” or “compensatory damages” because a tort action means only the survivorship claim and not the wrongful death claim. It follows that only amounts attributable to the survivorship claim can be “compensation” under this statute, and the wrongful death award cannot be added to consider the appropriate amount of punitive damages to be awarded. These cases have no application to determine the meaning of “compensatory damages” in this statute because this R.C. 2315.21 limits these damages to a “tort action.”

Combining these compensatory awards to better determine the proper amount of harm by the tortfeasor to the decedent and his estate is certainly a persuasive argument. However, it is one that must be made to the Legislature and not to the courts because this is a policy decision, which differs from the one adopted by the Legislature in passing this statute. Given the level of detail and the amount of the information studied by the Legislature as stated in the un-codified section of this statute—which the Ohio Supreme Court noted in upholding the constitutionality of this statute in Arbino —the General Assembly had to know there was ample legal authority that had determined: (1) a large award of punitive damages is justifiable when the plaintiff/decedent suffered only nominal compensatory damages; and (2) when that occurs juries consider the totality of the circumstances including a defendant's conduct and both survivorship and wrongful death awards in making such determination. In other words, these cases clearly establish that nominal compensatory damages in a survivorship claim alone does not correlate to the amount of punitive damages awarded based on the tortfeasor's malicious conduct. Yet, the Legislature enacted a provision which makes compensatory damages the only factor to be considered in determining the amount of punitive damages, which has produced in this case $47.50 in punitive damages when the jury awarded $20,000,000 in punitive damages for Defendant's malicious conduct that caused the instantaneous death of R. Roginski.

In summary and for all the reasons stated above, the Court has determined that R.C. 2315.21(D)(2)(a) requires that the amount of compensatory damages to be considered for punitive damages to be the $23.75 award to the Estate on the survivorship claim for the personal property damage—clothing that he was wearing when defendant's malicious conduct resulted in his instantaneous death, and then doubled by application of the statute, resulting in $47.50 in punitive damages. As a result, the arguments asserted by Plaintiffs lack legal merit. Defendant's arguments are legally correct based on the wording of this statute. However, the Court has determined this result cannot withstand a constitutional analysis as discussed in the next section.

D. THE CONSTITUTIONALITY OF R.C. 2315.21(D)(2)(A) AND THE AMOUNT OF PUNITIVE DAMAGES DUE UNDER THIS PROVISION.

In addition to the parties' arguments in the preceding sections, Plaintiffs have also argued that if the Court interprets the punitive damage cap in R.C. 2315.21(D)(2)(a) in a manner consistent with Defendant's position and thereby reduces the jury award of $20,000,000 in punitive damages to the nominal amount of $47.50—which this Court has, in fact, determined—then this statute is unconstitutional “as applied” to this case. Plaintiffs contend that the statutory formula based on a nominal award of “compensatory damages” not only fails to punish Shelly for its malicious conduct that caused the instantaneous death of R. Roginski, but also deprives the Estate of its right to: a jury trial, an effective remedy, due process, and equal protection under the Ohio and United States Constitutions.

In contrast, Defendant argues that this statute has already been determined to be constitutional by the Ohio Supreme Court in Arbino and that there is nothing in Plaintiffs' case that changes this result. Also, Defendants argue there is no constitutional right to a punitive damage award; therefore, no constitutional right that can be violated, even if the punitive award is entirely eliminated by the statutory cap, again relying on Arbino to support this argument.

Plaintiffs are not arguing that they have a constitutional right to punitive damages, but that the United States and Ohio Constitutions protect the process by which they are entitled by statute or case law to claim punitive damages. When the statute in this case does not provide for those protections, Plaintiffs assert they are entitled to raise these constitutional issues and to be protected by these provisions if their constitutional rights have been violated.

Further, Plaintiffs are not contending that establishing a statutory cap on punitive damages is unconstitutional in and of itself. Plaintiffs acknowledge that Arbino resolved that issue and validated the Legislature's ability to place caps on punitive damages. Rather, Plaintiffs contend that this statutory formula for punitive damages “as applied” to this case produces an unconstitutional result in instantaneous death cases—such as this case—when based on a nominal award of “compensatory damages.”

Plaintiffs also contend that in order to produce a large punitive damage award for a defendant's malicious conduct resulting in a death, this statute requires a large survivorship award of “compensatory damages” comprised of a large award for: pain and suffering, lost wages, medical bills, or other permitted recoveries, all of which must occur before death. But, the same statutory formula produces nominal punitive damages when a death occurs instantly because all of these pre-death damages will not occur or, if incurred, the amount will be nominal. The factual setting regarding Plaintiffs' position regarding constitutional issues is summarized in the chart on the next page:

Plaintiffs correctly argue that their ability to make their constitutional arguments “as applied” to this case is not precluded by the Ohio Supreme Court's decision in Arbino, since the majority of the court in Arbino only rejected a claim that the statutory cap on punitive damages was unconstitutional “on its face.” The Supreme Court stated as follows, with emphasis added:

{¶ 26} A party seeking constitutional review of a statute may proceed in one of two ways: present a facial challenge to the statute as a whole or challenge the statute as applied to a specific set of facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. Instead of arguing that these statutes are unconstitutional as applied to the facts of her case, Arbino has raised a facial challenge to each of them. To successfully present such a challenge, she must demonstrate that there is no set of circumstances in which each statute would be valid. Id. , citing United States v. Salerno (1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. “The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid [when presented as a “facial challenge”].” Harrold at ¶ 37.

In order to prevail concerning an “as applied” constitutional challenge, the Arbino court stated:

{¶ 25} It is difficult to prove that a statute is unconstitutional. All statutes have a strong presumption of constitutionality. See Sorrell [v. Thevenir ], 69 Ohio St.3d [415] at 418–419, 633 N.E.2d 504 [ (1994) ]. Before a court may declare unconstitutional an enactment of the legislative branch, “it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus.

The party making the challenge “bears the burden of presenting clear and convincing evidence of a presently existing set of facts that make the statutes unconstitutional and void when applied to those facts.” Collier, supra at ¶ 38. The Supreme Court in Arbino decided the rational basis test must be applied to this statute because none of the challenges in Arbino raised a fundamental right. This test requires that a statute be upheld if it is rationally related to a legitimate government purpose. Arbino at 481, 880 N.E.2d 420, citing State v. Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000). Under such review, a statute will not be invalidated if it is grounded upon a reasonable justification, even if its classifications are not precise. Id., citing McCrone v. Bank One Corp., 107 Ohio St.3d 272, 839 N.E.2d 1 (2005).

In passing R.C. 2315.21 as part of S.B. 80, effective April 7, 2005, the General Assembly also provided a detailed statement in the un-codified portion of this legislation which explains the constitutional basis upon which this act was based. This legislative statement is helpful with regard to the information relied upon by the Legislature in passing “tort reform” measures concerning punitive damages. The General Assembly stated:

The limits on punitive or exemplary damages as specified in section 2315.21 of the Revised Code, as amended by this act, are based on guidance recently provided by the United States Supreme Court in State Farm Mutual Insurance v. Campbell (2003) , 123 S.Ct. 1513 . In determining whether a one hundred and forty-five million dollar award of punitive damages was appropriate, the United States Supreme Court referred to the three guideposts for punitive damages articulated in BMW of North America Inc. v. Gore (1996), 517 U.S. 599 [559, 116 S.Ct. 1589, 134 L.Ed.2d 809] : (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages awarded; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. According to the United States Supreme Court, “few awards exceeding a single digit ratio between punitive damages and compensatory damages ... will satisfy due process.” Id. at 31. R.C. 2315.21, Editor's Notes, Section 3(A)(4)(a)-(c).

It is important to note that in Arbino and in the United States Supreme Court cases cited by the General Assembly in the un-codified portion of S.B. 80, the entire focus is on what the Legislature thought to be “grossly excessive” punitive damages awarded against a malicious tortfeasor that resulted in a violation of their constitutional rights.

However, the issue raised by Plaintiffs is the exact opposite. Plaintiffs claim that the punitive damage award that resulted from a statutorily imposed formula is “grossly inadequate” and violates their constitutional rights.

In essence, Plaintiffs assert that the same constitutional provisions that protect malicious tortfeasors from “grossly excessive” awards must also protect injured/deceased Plaintiffs from “grossly inadequate” ones. This Court agrees with that concept and concludes that the same principles and test or standards applied by the United States Supreme Court in protecting a malicious tortfeasor's constitutional rights concerning these issues should equally apply to protect a plaintiff's rights, especially since: (1) the United States Supreme Court has accepted the concept that nominal compensatory damages can justifiably result in larger punitive damage awards, as discussed below, and (2) the General Assembly has relied upon these cases as stated in the uncodified statements regarding S.B. 80.

In Gore, the Supreme Court specifically discussed a low or nominal compensatory award and its relationship to a punitive damage award by stating, with emphasis added:

Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. TXO [Production Corp. v. Alliance Res. Corp.], 509 U.S. [443] at 458 [113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) ]. Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, “we return to what we said ... in Haslip: ‘We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concern of reasonableness ... properly enter[s] into the constitutional calculus.’ ” Id., at 458 [113 S.Ct. 2711 ] (quoting [Pacific Mutual Life Ins. Co. v. ] Haslip, 499 U.S. [1] at 18 [111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) ] ). In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely “raise a suspicious judicial eyebrow.” TXO, 509 U.S. at 481 (O'CONNOR, J., dissenting). Gore, 517 U.S. 559, at 582, 116 S.Ct. 1589.

Four years later in State Farm at 425, 123 S.Ct. 1513, the United States Supreme Court reaffirmed its position by stating, with emphasis added:

Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where “a particularly egregious act has resulted in only a small amount of economic damages.” Ibid.; see also ibid. (positing that a higher ratio might be necessary where “the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine”). The converse is also true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee. The precise award in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff.

Neither the Ohio Supreme Court nor any Ohio Court of Appeals has ever addressed an “as-applied” constitutional challenge to the most recent version of the punitive damage cap in R.C. 2315.21(D)(2)(a). This Court has also reviewed other states that have enacted similar statutes as R.C. 2315.21(D)(2)(a), and no other state or federal court has considered the challenges raised in this case concerning “grossly inadequate” punitive damages. Generally, not even the United States Supreme Court has considered a plaintiff's constitutional right to a punitive damage award in at least the last twenty years, and all of the Supreme Court's recent decisions on punitive damages address the purpose of punitive damages and what constitutes an excessive award regarding a malicious tortfeasor's constitutional rights. See, e.g. Gore and subsequent cases.

Concerning the jury award of $20,000,000 for punitive damages in this case, neither party has challenged the process by which the jury rendered this verdict. Pursuant to R.C. 2315.21(F), the jury was not informed that a statutory cap on punitive damages existed or that the Court would apply that statutory formula to the amount determined by the jury, if any, in order to comply with that statute. Further, the jury instructions did not state that the award, if any, was based on a certain type of compensatory damages or that such damages arose from either one of the claims asserted in this case, the survival claim or the wrongful death beneficiary claim. Also, the instructions made no specific reference to the Plaintiff's status as either a representative of the Estate or of the Beneficiaries. Neither party placed on the record any alternate jury instruction, nor did any party proposed an instruction that was overruled by the Court.

The jury was given the following instructions, and after their deliberation they unanimously determined that $20,000,000 in punitive damages was to be awarded against Shelly for its malicious conduct:

1. GENERAL. Because you found that Plaintiff is entitled to compensatory damages against the Defendant, you must now consider whether you will separately award punitive damages.

2. MALICE AND PRINCIPAL'S AUTHORIZATION, PARTICIPATION, OR RATIFICATION. Punitive damages may be awarded against the Defendant as a punishment to discourage others from committing similar wrongful acts. You are not required to award punitive damages to the Plaintiff, and you may not do so unless you find that the Plaintiffs, have met her burden to prove by clear and convincing evidence that the Defendant:

(A) acted with malice; or

(B) knowingly authorized, participated in, or ratified the actions or omissions of the Defendant's agents and/or employees that demonstrate malice.

3. MALICE. “Malice” in this case means: a conscious disregard for the rights and safety of another person that has a great probability of causing substantial harm.

4. CONSCIOUS DISREGARD. Conscious disregard means a positive element of conscious wrongdoing. This element has been termed conscious, deliberate or intentional. It requires the party to possess knowledge of the harm that might be caused by such behavior.

5. SUBSTANTIAL. “Substantial” means major or significant and not trifling or small.

6. CLEAR AND CONVINCING. “Clear and convincing” means that the evidence must produce in your minds a firm belief or conviction about the facts that have been proven in this case. It must be more than evidence that simply outweighs or overbalances the evidence opposed to it.

7. AMOUNT. If you award punitive damages, the amount should be fair and reasonable under all the facts and circumstances. It should neither be excessive nor influenced by passion, sympathy, or prejudice.

8. ATTORNEY FEES. If you decide that the Defendant is liable for punitive

damages, you must also decide whether the Defendant is liable for the reasonable attorney fees of counsel employed by the Plaintiff in the prosecution of this action. (If you decide that the Defendant is liable for those attorney fees, the Court will determine the amount.)

As discussed in the previous sections of this Final Judgment Entry and Opinion, R.C. 2315.21 requires the statutory formula to be based on compensatory damages that rise out of a “tort action,” and the Court has determined that “tort action” means the survivorship claim and not the wrongful death claim. Also, Ohio case law precludes asserting a survival claim for the loss of future economic damages such as wages and loss of services provided by the injured party/decedent when the injury/death occurs instantly. Allen v. Burdette, 139 Ohio St. 208, 39 N.E.2d 153 (1942). Accordingly, future loss of wages/services can only be asserted as part of the wrongful death claim, which occurred in this case when the jury awarded a total of $2,000,000 (reduced to $1,900,000 because of the decedent's comparative negligence of 5%) for future lost wages and services.

Concerning the State of Ohio's role in punishing unlawful conduct and deterring its repetition, the United States Supreme Court's statement in Gore is instructive. That court stated, with emphasis added:

Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ; Newport v. Fact Concerts, Inc., 453 U.S. 247, 266–267, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) ; Haslip, 499 U.S. at 22 . In our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Most States that authorize exemplary damages afford the jury similar latitude, requiring only that the damages awarded be reasonably necessary to vindicate the State's legitimate interests in punishment and deterrence. See TXO, 509 U.S. at 456 ; Haslip , 499 U.S. at 21, 22. Only when an award can fairly be categorized as “grossly excessive” in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. Cf. TXO, 509 U.S. at 456 . For that reason, the federal excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve. Gore, supra at 568 [116 S.Ct. 1589 ].

This Court has determined that Jury instruction number 7 in this case satisfies the reasonableness criteria stated in Gore. This instruction states: “If you award punitive damages, the amount should be fair and reasonable under all the facts and circumstances. It should neither be excessive nor influenced by passion, sympathy, or prejudice.” However, unlike Gore, the issue in this case focuses not on a “grossly excessive” award of punitive damages, but whether the punitive damage award of $47.50 in this case can be categorized as “grossly inadequate” in relation to the State of Ohio's interest in punishing this unlawful conduct. Using the test stated in Gore, does the result of $47.40 as required by R.C. 2315.21 enter “the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment” or violate the parallel provision of the Ohio Constitution?

Plaintiffs claim this statute's total reliance on “compensatory damages” as the sole factor to be doubled in determining the amount of punitive damages is unconstitutional as applied to their case. When R. Roginski died instantaneously resulting from Defendant's malicious conduct, only a nominal amount of property damage, $23.75—the value of his closing that he was wearing when he was killed instantly—would be doubled as “compensatory damages” to determine the amount of punitive damages for Defendant's malicious conduct. Plaintiffs content that because R. Roginski died instantaneously, neither non-economic damages in the form of pain and suffering before his death nor economic damages such as loss of wages and services plus medical bills could be awarded as “compensatory damages.” Had he lived for any length of time, Plaintiffs assert that his “compensatory damages” would have been significantly greater because medical expenses and lost wages, to use two examples of economic damages, would have been included as “compensatory damages,” coupled with non-economic damages in the form of pain and suffering, all of which would have been available to the Estate to assert against Shelly to gain a significant punitive damage award. This award would have been doubled under this statute because of the jury's finding that Shelly engaged in malicious conduct that warranted a finding of punitive damages.

To summarize, the only reason the Estate is not able to assert these claims is because R. Roginski died instantaneously. Plaintiffs argue that the same malicious and egregious conduct that could have caused pre-death damages but instead caused an instant death produces an unconstitutional result based on statutory formula to calculate punitive damages as applied to this case. In response to these assertions, Defendant has relied on the Arbino case in its interpretation of the punitive damage statute in an effort to attack the punitive damage award. This Court now addresses each one of the Plaintiffs' claims that this statutory section is unconstitutional.

1. Right To a Jury Trial

Plaintiffs contend that the statute is unconstitutional as applied to them based on their right to a jury trial, but Plaintiffs do so without developing a specific arguments. Nevertheless, the Court has considered the process by which this jury trial was conducted in both Phase I and Phase II and none of the rights afforded to the Plaintiffs in either Phase has been compromised, restricted, discarded, or ignored in the jury's decision to issue the awards stated in Section II titled “Judgment Entry.” R.C. 2315.21 does not “intrude upon the jury's fact-finding function,” as explained below. The impact of the unconstitutional statute in question as alleged by Plaintiffs occurs when this Court was required, as a matter of law, to apply R.C. 2315.21 after the trial had concluded.

The Supreme Court in Arbino discussed this right in detail in paragraphs numbered 90 to 95 regarding to punitive damages by stating, with non-relevant citations omitted and with emphasis added:

{¶ 90} [As explained earlier], the fact that a statute limits potential damages as a matter of law does not mean that it violates the right to a jury trial. Therefore, Arbino's challenge to [a prior version of] R.C. 2315.21 can succeed only if the statute actually intrudes upon the jury's fact-finding function.

{¶ 91} To make her case, Arbino cites our decisions in Zoppo and Sheward. She cites Zoppo ... for the proposition that “Ohio courts have consistently understood that all damages, without distinction as to type, are for the jury to

determine as part of the jury trial right.”

{¶ 92} However [in] Zoppo, [w]e struck [the prior version of version of] that statute as unconstitutional because it wholly removed the jury from the fact-finding process: “[B]y permitting only the court to determine the amount of punitive damages, [the General Assembly] has in effect abrogated the common-law right of the jury to assess the amount of punitive damages.” ... [The present version of] R.C. 2315.21 does not have this effect; it still permits the trier of fact to determine punitive damages. The [present] application of a statute to this decision does not abrogate the established function of the jury.

{¶ 93} Arbino's Sheward argument similarly fails. Although the majority discussed its view that a similar limit on punitive damages would unconstitutionally infringe on the jury's fact-finding function, it did so in dicta before striking S.B. 350 as unconstitutional in toto.... We are therefore not required to follow that view as precedent....

{¶ 94} However, even if we were bound by that reasoning, we would be compelled to revisit it. Since Sheward was decided, the United States Supreme Court has clarified the authority of state legislatures in setting punitive damages. “As in the criminal sentencing context, legislatures enjoy broad discretion in authorizing and limiting permissible punitive damages awards.” Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001), 532 U.S. 424, 433, 121 S.Ct. 1678, 149 L.Ed.2d 674, citing BMW of N. Am., Inc. v. Gore (1996), 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (“States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case”).

{¶ 95} This post-Sheward precedent conclusively establishes that regulation of punitive damages is discretionary and that states may regulate and limit them as a matter of law without violating the right to a trial by jury. R.C. 2315.21 represents the General Assembly's exercise of its powers in this regard, and thus does not violate Section 5, Article I of the Ohio Constitution. Based on this analysis, Plaintiffs' claim that her right to a jury trial was violated because R.C. 2315.21 is unconstitutional lacks merit and this aspect of Plaintiffs' motion is denied.

Based on the foregoing, Plaintiffs have not specifically indicated how their right to a jury trial has been abridged in this circumstance. Based on the Court's analysis, this aspect of Plaintiffs' motion is denied.

2. Open Courts and Right To a Remedy

The Ohio Supreme Court in Arbino explains the nature of this right as follows, with emphasis added:

{¶ 43} ... 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. Section 16, Article I, Ohio Constitution.” (Emphasis in italics added by the Supreme Court.)

{¶ 44} The definition of these rights is well settled. “When the Constitution speaks of remedy and injury to person, property, or reputation, it requires an opportunity granted at a meaningful time and in a meaningful manner .” Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 47, 512 N.E.2d 626. We have interpreted this provision to prohibit statutes that effectively prevent individuals from pursuing relief for their injuries.

See, e.g., Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, 466, 639 N.E.2d 425 (finding a statute of repose unconstitutional because it deprived certain plaintiffs of the right to sue before they were aware of their injuries); Gaines v. Preterm–Cleveland, Inc. (1987), 33 Ohio St.3d 54, 60–61, 514 N.E.2d 709 (declaring a statute of repose unconstitutional because it did not give certain litigants the proper time to file an action following discovery of their claims).

{¶ 45} A statute need not “completely abolish the right to open courts” to run afoul of this section . Sorrell, 69 Ohio St.3d at 426, 633 N.E.2d 504....

{¶ 96} Arbino also argues that R.C. 2315.21 violates the right to a remedy in an open court. This right protects against laws that completely foreclose a cause of action for injured plaintiffs or otherwise eliminate the ability to receive a meaningful remedy. See Brennaman, 70 Ohio St.3d at 466, 639 N.E.2d 425 ; Sorrell, 69 Ohio St.3d at 426, 633 N.E.2d 504.

{¶ 97} Like the noneconomic-damages limits in R.C. 2315.18 [regarding injuries], the punitive-damages limits in R.C. 2315.21 do not deny plaintiffs the right to seek a remedy for their tort claims. Further, they do not eliminate the ability to seek a “meaningful” remedy for their injuries, primarily because punitive damages “are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789. “The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct. ” Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331.

{¶ 98} Because punitive damages are separate and apart from any remedy for a plaintiff's injuries, and because R.C. 2315.21 does not prevent potential plaintiffs from bringing a successful cause of action for their injuries, it does not violate Section 16, Article I of the Ohio Constitution.

The Supreme Court has clearly stated that this constitutional right applies to “injuries,” but not to related claims such as punitive damages because its purpose is “not to compensate a plaintiff [for injuries], but to punish and deter conduct.” Accordingly, there is no legal basis under Arbino to successfully assert that this constitutional provision applies to punitive damages. This aspect of Plaintiffs' motion is denied.

3. Due Course of Law/Due Process

The Ohio Supreme Court in Arbino explained this right as follows, with footnotes omitted:

{¶ 48} Arbino's next challenge ... also arises from Section 16, Article I, specifically, the “due course of law” provision. We have recognized this provision as the equivalent of the “due process of law” protections in the United States Constitution. Sorrell, 69 Ohio St.3d at 422–423, 633 N.E.2d 504, citing Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 544, 21 O.O. 422, 38 N.E.2d 70.

{¶ 99} ... For the same reasons expressed in Section III.A.3, we will use the rational-basis test for this challenge. Morris [v. Savoy ], 61 Ohio St.3d [684] at 688–689, 576 N.E.2d 765 [ (1991) ].

a. Real and substantial relation to the general welfare of the public

{¶ 100} R.C. 2315.21 does not offend due process under this test. The General Assembly cited several studies and other

forms of evidence upon which it relied in concluding that the civil justice system as it then existed was harming the state's economy. S.B. 80, Section 3(A)(1) through (3), 150 Ohio Laws, Part V, 8024. It then reviewed punitive damages in view of this evidence and concluded that such awards were part of the problem. Section 3(A)(4)(a) and (b). The General Assembly noted that while punitive damages serve the purpose of punishing tortfeasors for certain wrongful actions and omissions, the “absence of a statutory ceiling upon recoverable punitive or exemplary damages in tort actions has resulted in occasional multiple awards * * * that have no rational connection to the wrongful actions or omissions of the tortfeasor. ” Section 3(A)(4)(b)(ii). The uncodified section further explained the basis for limitations on awards against small employers and stated that the ratio used for the limitation derived from recent United States Supreme Court precedent. Section 3(A)(4)(b) and (c), 150 Ohio Laws, Part V, 8025.

{¶ 101} As noted in Section III.A.3, we accept that the evidence cited sufficiently demonstrated the need to reform the civil litigation system in the state.... The reforms codified in R.C. 2315.21 were an attempt to limit the subjective process of punitive-damages calculation, something the General Assembly believed was contributing to the uncertainty.

{¶ 102} ... While we agree with Arbino that the legislative record is thin in this regard, it nonetheless offers justifications sufficient to meet the requirement of a “real and substantial relation” to the general welfare of the public. The general goal of making the civil justice system more predictable is logically served by placing limits that ensure that punitive damages generally cannot exceed a certain dollar figure. Based on its review of the economic evidence, the General Assembly believes that such predictability will aid the state economy. That reasoning is sufficient under the first prong of the analysis.

b. Neither arbitrary nor unreasonable

{¶ 103} Under the second prong, we find that the statute is neither arbitrary nor unreasonable. Setting the limitation at double the amount of compensatory damages received by the plaintiff ensures that the defendant may still be punished.... This careful compromise represents a level of thought and attention to detail not seen in arbitrary or unreasonable statutes.

{¶ 104} For the foregoing reasons, R.C. 2315.21 does not offend the due-process protections in Section 16, Article I of the Ohio Constitution.

In order to satisfy this constitutional standard involving a claim of “grossly inadequate” punitive damages, R.C. 2315.21 must pass the two pronged “rational-basis” test: (1) this statute must have a “real and substantial relation to the general welfare of the public”, and (2) it must be “neither arbitrary nor unreasonable.” Plaintiffs argue the statute fails both of these tests.

The Ohio Supreme Court in Arbino has made it crystal clear that punitive damages are:

“... private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789. “The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct.” Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331.

The General Assembly was aware of and in fact relied upon United States Supreme Court cases that have repeatedly stated that nominal compensatory damages can justifiably result in large punitive damage awards. These cases noted the lack of a direct relationship between the amount of harm caused by malicious or egregious conduct and the punitive damages award. See, e.g. Gore and State Farm. Moreover, the Ohio Supreme Court in cases from Rubeck in 1976 to Wightman in 1999, have repeatedly upheld large punitive damage claims in relationship to nominal or small compensatory damages. In fact, the Supreme Court in Wightman upheld the award in an instantaneous death case where the property damage to the vehicle in a railroad crossing collision case was $2,400 and the amount of punitive damages was determined by the court based on a motion of remittitur to be $15,000,000 after a jury award of $25,000,000. Wightman, 86 Ohio St.3d at 438–439, 445, 715 N.E.2d 546. The Ohio Supreme Court affirmed the $15 million in punitive damages that was 6,250 times the property damage award. Id.

When the General Assembly limited “compensatory damages” to those amounts available only through a survivorship claim, the General Assembly knowingly foreclosed the application of these Ohio Supreme Court cases allowing punitive damages to be based on all of the damages proved in the case whether derived from the survivorship claim or the wrongful death claim. In addition, since punitive damages are not available in a wrongful death claim all available legal avenues have been eliminated to obtain a punitive damage award other than a nominal amount when a decedent dies instantly as a result of a defendant's malicious conduct.

As stated in paragraph 25 of Arbino, “[b]efore a court may declare unconstitutional an enactment of a legislative branch, ‘it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.’ ” This Court finds that it does “appear beyond a reasonable doubt” that R.C. 2315.21(D)(2)(a) is clearly incompatible with the due process clauses of the Ohio and United States Constitutions. As stated earlier in this Judgment Entry and Opinion, a “tort action” as defined in the statute limits compensatory damages to those amounts arising out of a survivorship claim in the context of also filing a wrongful death claim. The General Assembly had ample notice that nominal damages arise in the context of cases where death was instantaneous and had ample notice of the fact that the United States Supreme Court in a number of decisions has stated that a large punitive damage award based on nominal compensatory damages does not violate the Constitution. Further, the General Assembly was on notice that the Ohio Supreme Court has long held that punitive damages in the context of a survivorship claim and a wrongful death claim can be based on the total award rather than a specific component of that award, such as the amount awarded for a survivorship claim.

By drafting this statute in the manner adopted by the General Assembly, it was clearly foreseeable that the paltry amount of punitive damages was, in fact, going to occur in an instantaneous death case. Given that “[t]he purpose of punitive damages is to not to compensate a plaintiff, but to punish and deter certain conduct” as stated in Arbino, this Court is firmly convinced beyond a reasonable doubt that awarding $47.50 is “grossly inadequate” and that it violates the due process constitutional provision in the same manner that the Ohio Supreme Court and the United States Supreme Court to believe that malicious tortfeasors need constitutional protection from “grossly excessive” punitive damages.

Nevertheless, this Court also has considered the application of the rational based test and whether “clear and convincing evidence of presently existing facts make this statute unconstitutional and void when applied to these facts” as cited in Collier, supra at ¶ 38. The first prong of that test asks whether R.C. 2315.21(D)(2)(a) has a “real and substantial relation to the general welfare of the public?” This Court has concluded that this statute does not pass this test. The punitive damage award of $47.50 that results from the application of this statute for the malicious conduct of the Defendant in causing the instantaneous death of R. Roginski does not “punish [the] reprehensible conduct” of the Defendant, and does not “deter its future occurrence” by the Defendant. Also, there is no “real and substantial relation to the general welfare of the public” by having a statute that produces this unseemly and grossly inadequate result for such egregious and knowing conduct. To require that R. Roginski must endure “conscious pain and suffering” or satisfy other components of the damages available in a survivorship claim before a statutorily justifiable punitive damages can be awarded is unconscionable, as well as unconstitutional.

Further, this Court has also considered the fact that the General Assembly in passing R.C. 2315.21 relied upon the Gore case where the United States Supreme Court developed three guideposts for considering the constitutionality of punitive damages. These guideposts are listed below, followed by the Court's evaluation of the evidence and arguments of counsel provided to the jury that relate to each one of these guideposts:

(1) The degree of reprehensibility of the defendant's misconduct:

• A unanimous jury decided the Defendant knew that a significant risk of injury was foreseeable and that a

dangerous situation existed in the manner in which this construction site was developed at this location and that R. Roginski was placed in the situation where a vehicle traveling at a high rate of speed and attempting to maneuvering this worksite would foreseeably cause serious harm or death to those working at this site, including the specific circumstances that caused the instantaneous death of R. Roginski. Under these circumstances, a jury could reasonably conclude that “the degree of responsibility of defendant's misconduct” was very high or significant. This supports the conclusion that this statute as applied to this case is unconstitutional, as explained below.

(2) The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages awarded:

• Based on the application of R.C. 2315.21(D)(2)(a), the instantaneous death by the malicious conduct of Defendant is contrasted with the statutory mandated formula for determining punitive damages to be $47.50. The Court has determined this disparity of harmed suffered—instantaneous death—compared to $47.50 in punitive damages awarded is so significant that is unconscionable as well as unconstitutional, as explained below.

(3) The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases:

• The difference between $20,000,000 in the punitive damages awarded by the unanimous jury in this case and $47.50 in punitive damages mandated by the statutorily imposed formula is approximately 40,000 to 1. The United States Supreme Court in Gore noted that “When the ratio is a breathtaking 500 to 1, however, the award must surely “raise a suspicious judicial eyebrow.” Gore, supra. The disparity in this case is 80 times greater than the disparity in Gore. This disparity certainly raises something considerably more than “a suspicious judicial eyebrow.” It is unconscionable as well as unconstitutional, as explained below.

Having applied these guideposts to the facts submitted to the jury in this case, it is clear to this Court that R.C. 2315.21(D)(2)(a) is unconstitutional in this context as well as those mentioned above.

In all cases like this one, no family member or other beneficiary of the decedent's estate should ever be told that their constitutional rights to due process of law have not been violated when a statutorily imposed formula awards the paltry amount of $47.50—for the value of a decedent's clothing—resulting from a defendant's malicious conduct that caused a decedent's instantaneous death. Likewise, no corporate or individual defendant determined by a jury to have engaged in malicious conduct and thereby subjected to an award of punitive damages should ever feel relief, financial or otherwise, when discovering that the application of R.C. 2315.21 imposes for that malicious conduct the paltry amount of $47.50, which certainly is no meaningful legal sanction for killing the victim/decedent instantly. When a statute that is designed to protect malicious tortfeasors from paying what the General Assembly considers to be too much money for their egregious or malicious conduct also produces a result that is designed to pay beneficiaries of the victim's estate the paltry sum of $43.75 for killing the decedent instantaneously, then constitutional due process has not been served and that statute must be declared unconstitutional “as applied” to circumstances presented by this case.

The General Assembly seems to have focused so much of its attention on protecting the rights of malicious tortfeasors that they ignored the passages of the United States Supreme Court cases which repeatedly stated that nominal damages can legitimately result in large punitive damage awards. By developing a mathematical formula that statutorily produces “grossly inadequate” punitive damage awards arising out of nominal damages, as in this case, the constitutional due process rights of the victims/decedents and others in Ohio who have an interest in ensuring that malicious tortfeasors are properly sanctioned has been denied. When the General Assembly has violated their duties to those whose rights are protected by the Constitutions of Ohio and the United States, as in this situation, only when such statutes as R.C. 2315.21 are declared unconstitutional will the “general welfare of the public” be properly served.

The Court is aware that the Ohio Supreme Court in Arbino reached a different result in analyzing this statute when considering the due process test that R.C. 2315.21 must be “neither arbitrary nor unreasonable.” The Ohio Supreme Court stated:

{¶ 103} Under the second prong, we find that the statute is neither arbitrary nor unreasonable. Setting the limitation at double the amount of compensatory damages received by the plaintiff ensures that the defendant may still be punished.... This careful compromise represents a level of thought and attention to detail not seen in arbitrary or unreasonable statutes.

While the result in this case differs from the result in Arbino, the results in both cases are not inconsistent. In Arbino, the Ohio Supreme Court was reviewing R.C. 2315.21 concerning a “facial” constitutional challenge, meaning that the plaintiff in that case had to prove that under every possible interpretation of that statute it was unconstitutional. Procedurally, the plaintiff in Arbino filed her constitutional claim at the outset of her lawsuit and obviously before any determination could be made as to the merits of her case. In this context, it is reasonable to infer that the plaintiff in Arbino believed that she had a significant claim that would be limited by the imposition of double compensatory damages, and, as a result, she asserted that the statute was unconstitutional. In other words, the focus was on the upper limits of a possible punitive damage award in the future. Accordingly, the Ohio Supreme Court was focusing on the concept of punitive damages as “double the amount of compensatory damages” as to any possible award that may arise from her lawsuit, and based on a “facial” constitutional challenge, the court concluded the statute was “not arbitrary or unreasonable” and that “the defendant may still be punished” based on this statutory formula. Arbino, supra at 488, 880 N.E.2d 420. For example, a large compensatory award could very well impose an extremely large punitive damage award based on this statutory formula.

However, this Court is focusing on the actual result of nominal damages awarded to R. Roginski's Estate because he suffered the ultimate harm—death—and did so in such a manner—instantaneous death—that the statutory formula produced the paltry result of $47.50 in punitive damages. Here, the focus is whether this statute “as applied” to this result in this case is constitutional. Stated differently, is the statute in this situation still “not arbitrary or unreasonable” by awarding $47.50 as punitive damages and is the Defendant “still punished by this result?” Based on all the factors, reasons, and case law set forth above, this Court has determined that the reasoning and holding in Arbino, is not inconsistent with the results in Arbino concerning these issues “as applied” to the facts of this case. Finally, this Court has determined that the reasoning in Arbino provided the constitutional analysis that led to this result.

4. Equal Protection

The Ohio Supreme Court in Arbino explained this right as follows, with emphasis added:

{¶ 63} ... The Ohio Constitution states: “All political power is inherent in the people. Government is instituted for their equal protection and benefit.” Section 2, Article I, Ohio Constitution. We have interpreted this provision as the equivalent of the federal Equal Protection Clause. See McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 7.

{¶ 105} ... [W]e review [this statute] under the rational-basis standard, upholding it if it is rationally related to a legitimate government purpose. See Williams, 88 Ohio St.3d at 530, 728 N.E.2d 342.

{¶ 66} ... Under such a review, a statute will not be invalidated if it is grounded on a reasonable justification, even if its classifications are not precise. See McCrone, 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 8

{¶ 68} The General Assembly's general justification for the tort reforms in S.B. 80 was that the state has an “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.” S.B. 80, Section 3(A)(3), 150 Ohio Laws, Part V, 8024....

{¶ 106} ... R.C. 2315.21 is rationally related to the legitimate state interest of improving the state's civil justice system and its economy. The limitations imposed on the inherently subjective process of calculating punitive damages were rational responses to the negative effects associated with the uncertainty of the civil litigation system. Although Arbino suggests that different methods could have been used, we will not consider them in the face of a constitutional statute. Because we find that the rational-basis test is satisfied, R.C. 2315.21 is permissible under Section 2, Article I of the Ohio Constitution.

{¶ 71} However, the General Assembly is 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; we must simply determine whether they comply with the Constitution. See, 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.

The Supreme Court in McCrone, as cited above in Arbino, further explained this right as follows, with emphasis added:

{¶ 6} ... Simply stated, the Equal Protection Clauses require that individuals be treated in a manner similar to others in like circumstances.

{¶ 8} ... Under [the rational basis] test “ ‘a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical

nicety or because in practice it results * * in some inequality.” Lindsley v. Natural Carbonic Gas Co. [1911], 220 U.S. 61, 78 [31 S.Ct. 337, 55 L.Ed. 369].’ ” State ex rel. Nyitray v. Indus. Comm. (1983), 2 Ohio St.3d 173, 179, 2 OBR 715, 443 N.E.2d 962 (Krupansky, J., dissenting), quoting Dandridge v. Williams (1970), 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491.

{¶ 9} The rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational. See Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952. A statute will not be held to violate the Equal Protection Clause, and this court will not invalidate a plan of classification adopted by the General Assembly, unless it is clearly arbitrary and unreasonable. State ex rel. Lourin v. Indus. Comm. (1941), 138 Ohio St. 618, 620, 21 O.O. 490, 37 N.E.2d 595, overruled on other grounds, Caruso v. Alum. Co. of Am. (1984), 15 Ohio St.3d 306, 15 OBR 436, 473 N.E.2d 818. Thus, provided that the statute is rationally related to a legitimate government interest, it will be upheld.

{¶ 20} Legislative enactments are presumed to be constitutional. State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus. However, the constitutional guarantee of equal protection requires that laws operate equally upon persons who are identified in the same class. State ex rel. Patterson v. Indus. Comm. (1996), 77 Ohio St.3d 201, 204, 672 N.E.2d 1008.

In McCrone, the Ohio Supreme Court considered the then-existing version of R.C. 4123.01(C)(1), which required a psychological injury to arise from a physical injury suffered by the worker in the workplace before that psychological injury could be compensable under Ohio's Workers' Compensation laws. Kimberly McCrone suffered a psychological injury as a result of enduring two robberies during her employment at Bank One, but she did not suffer any physical injuries as a result of the robberies. Nevertheless, she argued entitlement to Workers' Compensation benefits based on the fact that she suffered a psychological injury that arose from her employment. McCrone, 107 Ohio St.3d 272, 839 N.E.2d 1, at ¶ 2. Further, she argued that the statutory provision violated her right to Equal Protection by creating two classes of workers, those who suffer a physical injury and a related psychological injury at work and those who suffer only a psychological injury at work, and discriminating against the latter class without a rational or reasonable basis by denying those workers benefits while allowing the workers who suffered a related physical injury at work to recover benefits. Id.

The McCrone Court applied the rational basis test and concluded that the State of Ohio has a legitimate interest in protecting the self-supporting nature of the Workers' Compensation fund, distributing available resources so that adequate payments could be made for covered injuries rather than an inadequate level for all potential disabilities and maintaining employer contribution rates that are not unduly burdensome. Id. at ¶ 34. The court concluded that the statute at issue was rationally related to these legitimate interests or reasons, which were meant to achieve a constitutional purpose underlying the workers' compensation statute. McCrone, supra at ¶ 35. Therefore, the Ohio Supreme Court held that R.C. 4123.01(C)(1) did not violate the Equal Protection clauses of the Ohio and United States Constitutions. Id. at ¶ 36.

In applying all of these equal protection constitutional principles to this case, the Court has determined that there are two types or classifications of cases that arise in injury/death situations based on the cases cited in this Judgment Entry and Opinion. These types or classifications are set forth in the chart on page 28: (1) an injury occurs that later results in death; and (2) an instantaneous death. In analyzing these constitutional principles in the context of these types or classifications of claims, this Court starts with the approach directed by the Ohio Supreme Court. What is the legitimate purpose of the State involved in this situation? The Supreme Court in Arbino answered this question by stating at *P68, with emphasis added, that the General Assembly had:

an 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.

Based on this finding, the Ohio Supreme Court decided that the first constitutional test in an equal protection setting regarding the State's interest was satisfied. Then, the Supreme Court in Arbino held that R.C. 2315.21 was rationally related to this stated purpose by finding that, at *106, with emphasis added:

... [This statute] is rationally related to the legitimate state interest of improving the state's civil justice system and its economy. The limitations imposed on the inherently subjective process of calculating punitive damages were rational responses to the negative effects associated with the uncertainty of the civil litigation system. Although Arbino suggests that different methods could have been used, we will not consider them in the face of a constitutional statute. Because we find that the rational-basis test is satisfied, R.C. 2315.21 is permissible under Section 2, Article I of the Ohio Constitution.

The Ohio Supreme Court was focusing on the statutory limitations that regulated the amount of punitive damages that could be awarded. In this context only, the Ohio Supreme Court has concluded that the statute was rationally related to the stated purpose of improving Ohio's civil justice system and its economy.

The stated purpose of punitive damages also includes “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. ” For all the reasons stated in the due process section above, the statutory formula adopted by the General Assembly does not preserve the rights of those who have been harmed-the Plaintiffs-by the negligent as well as malicious conduct of the Defendant in this case. Accordingly, “as applied” to the facts of this case, the statute does not meet the rationally related test for equal protection under the Ohio and United States Constitutions.

Assuming for the purpose of analyzing the remaining aspects of the equal protection tests that there is a rational relationship to the above-stated purposes, the next test under this analysis is whether R.C. 2315.21(D)(2) treats individuals in a manner similar to others in like circumstances, although, “ ‘a State does not violate [this clause] merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” McCrone at ¶ 6, 8. Does R.C. 2315.21(D)(2) have a rational basis in developing a statutory formula that provides for punitive damages by doubling the amount of the “compensatory damages” arising out of a survivorship claim when applied to the two types of these claims?

Based on the following analysis, this Court has determined that the statute does not comply with the Equal Protection Clause “as applied” to the facts of this case because this statute does not treat individuals in a manner similar to others in like circumstances. There is no rational basis based on the results produced by this statutory formula to determine punitive damages in cases involving instantaneous death.

This issue did not exist prior to the passage of this statute because the Supreme Court had developed and sanctioned case law permitting the punitive damage awards arising from survivorship claims with nominal damages to be determined based on the total amount awarded for a wrongful death claim statute plus amounts, including nominal damages, for a survivorship claim. Typically, these claims would be reported in a jury interrogatory as one amount and then the jury would determine the amount, if any, of punitive damages to be awarded based on instructions the same as or similar to those given in this case. From the Rubeck case in 1976 through the Wightman case in 1999, the Ohio Supreme Court approved this practice of awarding punitive damages in this manner without comment except for the dissent by Justice Lundberg Stratton in the Wightman case, as noted earlier.

In these cases arising before R.C. 2315.21, the jury also could factor in the nature and manner of a defendant's malicious and egregious conduct as well as the extent to which this conduct resulted in harm caused to the victim/decedent in rendering the appropriate amount of punitive damages. Accordingly, those who suffered nominal compensatory damages and those who suffered significant compensatory damages would have an equal opportunity to receive the punitive damage award based on a defendant's conduct and based on the totality of the circumstances. On that basis and while the results would vary based on the circumstances, the victims/decedents were treated equally under the law, and, as a result, in this Court's view, this process satisfied the Equal Protection Clause.

In this case, the statutorily imposed result under R.C. 2315.21 does not make “certain that Ohio has a fair, predictable system of civil justice that preserves the rights of those who have been harmed by negligent behavior.” This statutory system is neither “fair” nor does it “preserve the rights of been harmed by negligent.” In fact, this statute has dramatically and unjustifiably changed those rights to the detriment of those who have been harmed by negligent conduct resulting from malicious and egregious behavior that caused an instantaneous death. Unfortunately, the only thing “predictable” in this situation is that only a nominal amount of punitive damages will occur every time there is an instantaneous death resulting from malicious and egregious conduct. Accordingly, there is no “reasonable basis” for this result based on these classifications concerning how survivorship claims are treated by the statute.

In McCrone, the Ohio Supreme Court noted that predictability or cost savings for businesses is not a justification for denying compensation to those who are entitled to it by relying in part on its decision in Nyitray v. Indus. Comm., 2 Ohio St.3d 173, 443 N.E.2d 962 (1983). The Nyitray Court examined whether Ohio's Workers' Compensation laws violated Equal Protection by denying accrued but unpaid workers' compensation to dependents of workers who died from work-related causes while compensating dependents of workers who died from causes other than a compensable injury or occupational disease. Id. at syllabus. The Nyitray Court concluded that this system of classification had no rational basis and violated the Equal Protection rights of dependents of decedents who had died due to a work-related cause. Id. The Court aptly reasoned that “conserving funds is not a viable basis for denying compensation to those entitled to it.” Id. at 177, 443 N.E.2d 962.

Here, similarly, the General Assembly enacted the cap on punitive damages in an effort to ensure predictability for defendants in litigation or those responsible for paying verdicts, businesses and insurance companies. The intent was to preserve the right to punitive damages where they existed, but protect those engaged in malicious conduct from being bankrupted or severely impacted financially to pay for a verdict. Yet, like the situation in Nyitray , two classes have been created by an unfair and meaningless distinction. The statutory formula in R.C. 2315.21(D)(2)(a), as applied in this case and others with similar fact patterns, punishes the estate beneficiaries of those decedents who died instantaneously, while allowing a higher punitive damage award in those cases where the victim incurred extensive medical bills and experienced pain and suffering before death. There is no rational basis for this distinction.

As the General Assembly explained in the legislative history for this statute, the purpose of punitive damages is to punish the defendant for malicious conduct and deter them from doing it again. That purpose is not served by lessening the penalty for instantly killing a victim, rather than having that person suffer over a longer period of time before dying. The same malicious conduct exists in both situations. When a $20,000,000 award is reduced to $47.50, the award is all but eliminated, rendering it meaningless and depriving the Estate of a justifiable punitive damage award, which it is entitled to is a constitutional drafted statute were the law. Regarding punitive damages, the General Assembly has made protecting a malicious tortfeasor superior to the rights of the estate of a decedent who has been killed instantly by such malicious conduct. This result is not in the interest of the general public, has no rational or reasonable basis and unconstitutionally violates the Equal Protection rights of the Estate when the decedent died instantly as a result of the Defendant's malicious conduct.

In light of the foregoing, the Court finds that R.C. 2315.21(D)(2)(a) unconstitutionally violates the Equal Protection Clauses of the Ohio and United States Constitutions.

E. REMEDY

As applied to the facts of this case—one involving nominal survivorship damages in the context of determining the amount of punitive damages when the decedent was killed instantly—R.C. 2315.21 is unconstitutional and void in this setting only. All other fact patterns and aspects of this statute remain in full force and effect. As a result of this decision, the Court has no authority to consider a different formula for a punitive damage cap or otherwise alter the $20,000,000 punitive damage award. The General Assembly has exclusive authority to rewrite or replace this constitutionally flawed statute, if it so desires. In the absence of the statutory formula as applied to this case, the Court must rely on case law that does not involve the application of 2315.21(D)(2)(a). In effect, that means relying on the cases from Rubeck in 1976 through Wightman in 1999, and any subsequent cases will determine the outcome regarding a Final Judgment, and thereafter any proceedings regarding the appropriate amount of punitive damages in this case. For the purposes of a Final Judgment, these cases enforce the punitive damage award as determined by the jury, which in this case is $20,000,000. Accordingly, the Court imposes that amount as part of its final Judgment Entry and Opinion.

As previously mentioned, Defendant argued that punitive damages in the amount of $47.50 resulting from the application of this statutory formula are valid. Defendant has not argued that the $20,000,000 punitive damage award, if left unaltered by the Court, is unconstitutionally excessive. This Judgment Entry and Opinion has not analyzed whether $20,000,000 is unconstitutionally excessive or otherwise excessive .

IT IS SO ORDERED.