The Kansas Supreme Court recently struck down a $250,000 statutory cap on noneconomic damages in all personal injury cases, holding that the statute violated the right to a jury trial guaranteed by the Kansas Constitution. Hilburn v. Enerpipe, http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2019/20190614/112765.pdf (6/14/2019). In doing so, the court reversed a 7-year-old precedent, Miller v. Johnson, upholding the same statute. Interestingly, the main opinion in both cases was a plurality opinion, as in each case one justice concurred only in the result. The Hilburn plurality opinion, authored by Justice Beier, quotes at length from Justice Beier’s own dissent in Miller; by the same token, the Hilburn dissent quotes at length from the plurality opinion in Miller. So no new ground is broken by either opinion.
In fact, the constitutionality of statutory caps on noneconomic damages – whether in all personal injury cases, as in Kansas, or in medical malpractice cases only, a result of the “medical malpractice crisis” of the 1980s – is a well-plowed field. The American Medical Association has collected cases from 30 states upholding or striking down such caps in Constitutional Challenges to State Caps on Non-economic Damages, https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/arc-public/arc-constitutional-challenges_1.pdf (2017). It appears from this chart that the caps have been upheld in 18 states and struck down in 12 (although the tally is now 17-13 after the Hilburn case). The various grounds on which such statutes have been found either constitutional or unconstitutional include equal protection, substantive due process, special legislation, open/equal access to the courts, separation of powers and the right to a jury trial. I will focus on the last-mentioned, as it is the right upon which the Hilburn case turned.
A particularly well-written opinion striking down a damages cap as violative of the right to a jury trial is Atlanta Oculoplastic Surgery v. Nestlehutt, https://cases.justia.com/georgia/supreme-court/s09a1432.pdf?ts=1396119894 (Georgia, 2010):
As with all torts, the determination of damages rests peculiarly within the province of the jury….Because the amount of damages sustained by a plaintiff is ordinarily an issue of fact, this has been the rule from the beginning of trial by jury….Noneconomic damages have long been recognized as an element of total damages in tort cases….Based on the foregoing, we conclude that at the time of the adoption of our Constitution of 1798 [which provides that “the right to a trial by jury shall remain inviolate”], there did exist the common law right…to the award of the full measure of damages, including noneconomic damages, as determined by the jury….By requiring the court to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit, [the damages cap] clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function….Consequently, we are compelled to conclude that the caps infringe on a party’s constitutional right…to a jury determination as to noneconomic damages. [Internal quotation marks and citations omitted.]
Opinions holding that damages caps do not violate the right to a jury trial take a completely different approach. A good example is Etheridge v. Medical Center Hospitals, https://law.justia.com/cases/virginia/supreme-court/1989/860194-1.html (Virginia, 1989):
Without question, the jury's fact-finding function extends to the assessment of damages. Once the jury has ascertained the facts and assessed the damages, however, the constitutional mandate is satisfied. Thereafter, it is the duty of the court to apply the law to the facts. The [damages cap] does nothing more than establish the outer limits of a remedy provided by the General Assembly. A remedy is a matter of law, not a matter of fact. A trial court applies the remedy's limitation only after the jury has fulfilled its fact-finding function. Thus, [the damages cap] does not infringe upon the right to a jury trial because the section does not apply until after a jury has completed its assigned function in the judicial process….Although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award the legal consequences of its assessment. [Internal quotation marks and citations omitted.]
This is clearly not a red state / blue state issue – the Alabama and Florida courts, for example, have struck down their statutory damages caps, while the California and Colorado courts have upheld theirs. Rather, the result – at least where the right to a jury trial is the determinative factor – seems to be the court’s considered opinion as what the constitutional enshrinement of the right to a jury trial really means. I agree with the remark by one commentator on the recent Kansas case that “[t]he [Hilburn] plurality thought deeply about whether a damages cap infringes upon a jury’s fundamental fact-finding function, or merely imposes an outer limit on a remedy.” https://www.jdsupra.com/legalnews/kansas-divided-court-strikes-53864/. And courts have reached opposite results even when apply the much more flexible framework of equal protection or substantive due process analysis.
The courts have been addressing the constitutionality of damages caps for decades – from as long ago as 1985 (California) and Alabama (1991) to as recently as 2017 (Florida) and now 2019 (Kansas) – and have been coming down both ways. I draw two conclusions from this: first, there’s no “right answer” to the question; and second, the argument isn’t finished and probably never will be.
