In 1988, the Kansas legislature enacted K.S.A. 60-19a02 to limit personal injury plaintiffs’ recovery for non-economic losses such as pain and suffering, mental anguish, loss of enjoyment of life, etc. Thirty years later, in a 4-2 decision handed down on Friday, June 14th, Hilburn v. Enerpipe Ltd. put an end to non-economic damage caps in Kansas personal injury cases. This change does not apply to wrongful death cases or punitive damages, but it will affect non-economic damages in future medical malpractice cases as well as those currently pending in Kansas state courts.
K.S.A. 60-19a02 states, in pertinent part, “In any personal injury action, the total amount recoverable by each party from all defendants for all claims for non-economic loss shall not exceed a sum total of $250,000.” In 2014, the statute was amended to incrementally raise the damage cap to $300,000 through 2018, $325,000 from 2018 to 2022, and $350,000 from 2022 onward. Less than a decade ago, a plurality of the Kansas Supreme Court affirmed the constitutionality of the statutory cap in Miller v. Johnson, a 2012 wrong-site surgery malpractice case. Hilburn disposed of K.S.A. 60-19a02 and abrogated the Court’s decisions in Miller and two earlier cases.
In 2010, Diana Hilburn’s vehicle was struck from behind by a commercial semi-truck. In compliance with K.S.A. 60-19a02(d), the court did not inform the jury about the non-economic damages cap. After deliberations, the jury returned a verdict in favor Hilburn, finding the driver negligent and his employer liable. Accordingly, the jury awarded Hilburn approximately $33,000 for medical expenses and just over $301,000 for her non-economic losses.
Pursuant to K.S.A. 60-19a02(d)(1), the statutory cap in effect at the time of her injury, the District Court judge reduced Hilburn’s non-economic damages by $50,000, and the Court of Appeals affirmed. The Kansas Supreme Court held caps on non-economic damages are unconstitutional in personal injury cases and remanded with instructions to reinstate the jury’s full award.
To justify its position, the majority cited to Section 5 of the Kansas Bill of Rights, which states that “[t]he right of trial by jury shall be inviolate,” meaning not disturbed or limited. In the words of the Court, Kansas’ long-standing statutory non-economic damages cap “intrudes upon the jury’s determination of the compensation owed personal injury plaintiffs to redress their injuries.”
Prior to this ruling, fourteen other states, eight of which have constitutional provisions similar to Kansas’ Section 5—Idaho, Indiana, Maryland, Nebraska, Nevada, Ohio, Oregon, and South Dakota—upheld damage caps despite plaintiffs’ arguments that such caps violate constitutional jury trial protections. Kansas, however, found those decisions unpersuasive, pointing out that five states—Alabama, Florida, Georgia, Missouri, and Washington—have struck down such caps and holding the legislature does not have the power to infringe upon the jury’s fundamental, traditional, and constitutionally-assigned role of determining the damage amount necessary to make a party whole. “To whom have the people of Kansas assigned the determination of the amount of the award? Unless an injured party has decided to waive his or her right under section 5, the answer is ‘the jury.’” Hilburn’s lawyer, Thomas Warner, echoed that same sentiment in an interview with The Kansas City Star: “We need to let juries decide damages rather than politicians.”
Those against damage caps maintain that they unfairly limit plaintiffs’ ability to recover just compensation when a jury has concluded they were wronged and are deserving of payment. Proponents of damage caps, on the other hand, argue that caps are necessary to protect defendants from exorbitant insurance costs, frivolous litigation, and “runaway juries” whom they believe sometimes make decisions based on emotion rather than the court’s instructions. Unlike economic damages (i.e., past and future medical bills and loss of earnings) which are easily quantifiable and thus somewhat predictable, non-economic damages are now simply whatever the jury says they are.
Since the decision, unease is spreading amongst damage cap supporters. Jon Rosell, the Director of the Kansas Medical Society, anticipates a chain reaction beginning with a spike in malpractice insurance costs that make it unaffordable for physicians to practice in rural areas and ending with many Kansas residents losing access to care. Alan Cobb, CEO and President of the Kansas Chamber of Commerce, and Dan Murray, State Director of the National Federation of Independent Business, have both expressed concerns that the ruling will put Kansas businesses at an economic disadvantage.
According to Rick Wilborn, Republican State Senator and Chairman of the Senate Judiciary Committee, it is too soon to predict if, when, and how the Kansas legislature will respond. Wilborn did, however, make another prediction: “Those caps were put on years ago to control costs in the insurance arena, to put some predictability back in insurance rates. . . . And any time you add to loss cost, you can anticipate in time as the awards mount that insurance rates will increase. It’s that simple.” Democratic Governor Laura Kelly has not yet commented.
For more information, visit Kansas Supreme Court Strikes Down Cap in Injury Cases (The Washington Post June 14, 2019) or Kansas Supreme Court Rules Cap on Damages for Pain, Suffering is Unconstitutional (Kansas.com Crime & Courts June 14, 2019).