ACREE, Judge:
The sole issue before us is whether the Calloway Circuit Court's award of $6,000,000.00 in punitive damages against Appellant, R.O., is constitutionally excessive.
On or about December 2007, the Calloway Grand Jury returned an indictment charging R.O.
Thereafter, on February 3, 2009, A.C., by and through her mother and next friend (Mother), filed a complaint in Calloway Circuit Court alleging R.O. engaged in a deviate sexual relationship with A.C., resulting in severe emotional and physical harm. The complaint sought compensatory and punitive damages.
On January 25, 2010, R.O.'s attorney withdrew representation. The circuit court granted R.O. twenty days to obtain new counsel; R.O. failed to do so. Concurrently, the circuit court entered an Amended Trial and Scheduling Order requiring each party to submit a trial brief, scheduling a pre-trial conference on May 10, 2010, and setting the matter for a jury trial on May 26 & 27, 2010. R.O. failed to submit a trial brief, to attend the pretrial conference, or to appear for trial. Consequently, on May 26, 2010, the circuit court held R.O. in default and proceeded to trial before the court on the issue of damages.
Angela Green, a licensed clinical social worker, testified A.C. suffered from symptoms relating to having been sexually assaulted, such as promiscuity, assaultive behavior, self-harming behavior, and suicide attempts. Green explained, as a result of the sexual assault, A.C. endured long-term emotional wounds. Further, Ali Winters, a clinical therapist, testified via deposition that A.C. has classic posttraumatic stress disorder that is specifically related to being a victim of sexual abuse. As a result, A.C. suffers from nightmares, flashbacks, exaggerated startle response, and self-mutilation, including cutting and burning herself. Winters concluded that, because of R.O.'s inappropriate sexual acts with A.C., there was an overwhelming chance that A.C. was permanently changed, for the worse, for life.
At the conclusion of the evidence, the circuit court awarded A.C. $41,238.72 in medical expenses, $2,000,000.00 for emotional
On June 4, 2010, R.O. filed a motion for a new trial or to alter, amend, or vacate the judgment under Kentucky Rules of Civil Procedure (CR) 59.01(f) and 59.05, respectively, on the grounds that the punitive damages award was excessive and not sustained by sufficient evidence. The circuit court denied R.O.'s motion. R.O. promptly appealed.
We review the constitutionality of punitive damages de novo. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 931 (Ky.2007); McDonald's Corporation v. Ogborn, 309 S.W.3d 274, 297 (Ky.App. 2009).
R.O. seeks to set aside the punitive damages award on the ground that it is grossly excessive. Specifically, R.O. contends the award violates the second and third guideposts set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 1595, 134 L.Ed.2d 809 (1996).
Punitive damages function "to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition." Gore, 517 U.S. at 568, 116 S.Ct. at 1595; Kentucky Farm Bureau Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 826 (Ky.2005) (Wintersheimer, J., dissenting). "Only when an award can fairly be categorized as `grossly excessive' in relation to those interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment." Gore, 517 U.S. at 568, 116 S.Ct. at 1595 (citing TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 456, 113 S.Ct. 2711, 2719, 125 L.Ed.2d 366 (1993)). As this Court has previously framed the question, "What constitutes a `grossly excessive' award?" McDonald's, 309 S.W.3d at 298.
In answering this question, the United States Supreme Court established three guideposts to aid reviewing courts, namely:
State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 1520, 155 L.Ed.2d 585 (2003) (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1599); see also Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky.2003). We scrutinize the award of punitive damages in the framework of these guideposts.
"Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." Gore, 517 U.S. at 575, 116 S.Ct. at 1599. "This principle reflects the accepted view that some wrongs are more blameworthy than others." Id. In reviewing the fact finder's determination of reprehensibility, the Supreme Court has instructed us to consider whether:
State Farm, 538 U.S. at 419, 123 S.Ct. at 1521.
Applying the State Farm factors to this case, it is evident they do not weigh in R.O.'s favor. The harm caused was clearly physical rather than economic. R.O.'s conduct caused A.C. extensive emotional, mental, and physical harm, leading to self-mutilation and assaultive behavior, which altered A.C. for life. Additionally, by engaging in repeated sexual acts with A.C. when she was an eleven-year-old child, R.O. evinced a complete disregard for A.C.'s mental and physical well-being. Furthermore, with respect to the fourth factor, "a pattern of misconduct should be considered as adding to the reprehensibility of a tortfeasor's conduct." McDonald's, 309 S.W.3d at 300. Here, R.O. engaged in sexual acts with A.C. on several occasions over a span of many months. Finally, A.C.'s harm resulted from R.O.'s deliberate and intentional acts of sexual misconduct and, as found by the circuit court, the finder of fact in this matter, R.O. acted with malice "as was implied from the outrageousness of his conduct." (Trial Order and Judgment at 2).
"The combination of these factors supports a finding of reprehensibility." Ragland, 352 S.W.3d at 918. In fact, as explained by our sister state, "[t]he sexual molestation of young children ... is widely viewed as one of the most, if not the most, reprehensible crimes in our society." State v. McKinniss, 153 Ohio App.3d 654, 795 N.E.2d 160, 163 (2003). We find the degree of reprehensibility in this case to be significant.
Next, we must "consider the disparity between the harm suffered by the plaintiff[] and the amount of punitive damages awarded." Phelps, 103 S.W.3d at 54. This factor ensures the punitive damages "bear a reasonable relationship" to the compensatory damages. Gore, 517 U.S. at 580, 116 S.Ct. at 1601. Under this guidepost, we focus on both the reasonableness of the punitive damages award, and the ratio between the compensatory and punitive damages awarded. See id. at 580, 583, 116 S.Ct. at 1601-02.
We begin with a subjective, reasonableness review of the punitive damages award. Ragland, 352 S.W.3d at 920 (noting "this concept is an admittedly subjective analysis"). In this regard, the Supreme Court has repeatedly explained a "general concer[n] of reasonableness ... properly enter[s] into the constitutional calculus." Gore, 517 U.S. at 583, 116 S.Ct. at 1602 (quoting TXO, 509 U.S. at 458, 113 S.Ct. at 2720 (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 1043, 113 L.Ed.2d 1 (1991))). As a means of evaluating the reasonableness of a punitive damages award, Kentucky utilizes
Ragland, 352 S.W.3d at 920 (quoting CSX Transp., Inc. v. Moody, 313 S.W.3d 72, 85 (Ky.2010)); see also Haslip, 499 U.S. at 18, 111 S.Ct. at 1043 (explaining a punitive damages award must not "jar one's constitutional sensibilities").
Here, the circuit court awarded A.C. $6,000,000.00 in punitive damage as a result of R.O.'s reprehensible act of engaging in sexual acts with an eleven-year-old child. In light of the severity of R.O.'s conduct and the compensatory damages award of $2,041,238.72, the punitive damages award does not, at first blush, strike this Court as excessive, nor does it "raise a suspicious judicial eyebrow." Gore, 517 U.S. at 583, 116 S.Ct. at 1603 (quoting TXO, 509 U.S. at 481, 113 S.Ct. at 2732 (O'Connor, J., dissenting)).
We next turn from a subjective, reasonableness analysis to an objective analysis by examining the ratio between the punitive damages award and the compensatory damages award. "The ratio is a[n] ... analytical tool ... used to put into an intellectual context our admittedly emotional reaction to [a punitive damages] award." Ragland, 352 S.W.3d at 920. In utilizing the ratio analysis, the Supreme Court recently reminded us that "the longstanding historical practice of setting punitive damages at two, three, or four times the size of compensatory damages, while not binding, is instructive." Philip Morris USA v. Williams, 549 U.S. 346, 351, 127 S.Ct. 1057, 1061-62, 166 L.Ed.2d 940 (2007) (internal quotation marks omitted). Further, while the Supreme Court has "consistently rejected the notion that the constitutional line is marked by a simple mathematical formula," Gore, 517 U.S. at 582, 116 S.Ct. at 1589, it has also reiterated that "few awards exceeding a single-digit ratio between punitive and compensatory damages ... will satisfy due process." State Farm, 538 U.S. at 425, 123 S.Ct. at 1513. Kentucky has faithfully and consistently traveled the path paved by the Supreme Court. Compare Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 906 (Ky.2008) (finding constitutionally valid a 6:1 ratio between punitive damages and compensatory damages, respectively), Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 383 (Ky.2000) (7:1 ratio), Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 413-15 (Ky.1998) (1.5:1 ratio), and McDonald's, 309 S.W.3d at 299-300 (4.5:1 ratio) with Ragland, 352 S.W.3d at 922-23 (rejecting as constitutionally excessive an 18:1 ratio), and McDonald's, 309 S.W.3d at 299-302 (10:1 ratio constitutionally excessive); see also Phelps, 103 S.W.3d at 54-55 (11:1 ratio found constitutional because of "egregiousness of [defendant's] actions and the minimal amount awarded to compensate the victims").
Here, the circuit court awarded A.C. $41,238.72 in medical expenses and $2,000,000.00 for emotional distress, physical, and mental suffering. In total, A.C. received $2,041,238.72 in compensatory damages. The circuit court then awarded A.C. $6,000,000.00 in punitive damages. Hence, the ratio of punitive damages to
R.O. contends the ratio between punitive and compensatory damages is 200:1 and, as a result, it is both shocking and far beyond the amount necessary to deter similar conduct in the future. While R.O. fails to show his mathematical calculation of the ratio, we surmise that R.O. considered as compensatory damages only the award of $41,238.72 for medical expenses.
The third and final guidepost requires a "`broad legal comparison' [between] the punitive damages awarded and the civil or criminal penalties that could be awarded for similar misconduct." McDonald's, 309 S.W.3d at 300 (emphasis added) (quoting Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 440, 121 S.Ct. 1678, 1688, 149 L.Ed.2d 674 (2001)). Under this guidepost, we are compelled to "accord `substantial deference' to legislative judgments concerning appropriate sanctions for the conduct at issue." Gore, 517 U.S. at 583, 116 S.Ct. at 1603 (quoting Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301, 109 S.Ct. 2909, 2934, 106 L.Ed.2d 219 (1989) (O'Connor, J., concurring in part and dissenting in part)).
In the case before us, R.O. was originally charged with four counts of first-degree sodomy, a Class A felony.
In sum, after weighing the three guideposts set forth in Gore, we find the Calloway Circuit Court's $6,000,000.00 punitive damages award passes constitutional muster.
The Calloway Circuit Court's award of punitive damages was not grossly excessive so as to violate R.O.'s federal constitutional due process protections. We therefore affirm the circuit court's May 26, 2010 trial order and judgment.
ALL CONCUR.
