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Kansas Supreme Court Finds Cap on Non-Economic “Pain and Suffering” Damages in Injury Cases Unconstitutional

Kansas Supreme Court Finds Cap on Non-Economic “Pain and Suffering” Damages in Injury Cases Unconstitutional

June 20, 2019

On June 14, 2019 the Kansas Supreme Court released its opinion in Hilburn v. Enerpipe Ltd., finding the state's long-standing statutory cap on noneconomic damages in personal injury lawsuits unconstitutional in a 4-2 decision. Specifically, they stated that the cap violated the constitutional right to have a jury determine what compensation is owed to a plaintiff for their injuries. Noneconomic damages are those which compensate a plaintiff for past and future non-monetary losses such as "pain and suffering," disfigurement, and loss of companionship or consortium. The cap on noneconomic damages had been in effect since 1988 and was created in large part to create predictability to control the costs of insurance.

Diana Hilburn was injured when a semi-truck owned and operated by Enerpipe Ltd. rear-ended the car in which she was riding. A jury awarded Hilburn $33,490.86 for medical expenses and $301,509.14 for noneconomic losses. The jury’s noneconomic damages were capped at the time at $250,000 – the statutory limit. (The cap had been adjusted over time and in 2019 was set at $325,000.) The court reduced the jury's noneconomic award to $250,000 from $301,509.14. Hilburn appealed.

On appeal, the Kansas Supreme Court ruled that the noneconomic damages cap under K.S.A. §60-19a02 violates the rights protected by Section 5 of the Kansas Bill of Rights because it intrudes upon the jury’s determination of the compensation owed personal injury plaintiffs to redress their injuries.

The plurality of the Court rejected the Court's own analysis in a 2012 case, Miller v. Johnson. In Miller, a medical malpractice case, the Court applied a quid pro quo test to analyze whether or not a Constitutional right was violated when imposing a cap on noneconomic damages; a test that had been applied by many courts prior and was otherwise precedential to the Kansas Court. This test involved two parts. First, that the noneconomic damages limitation is reasonably necessary in the public interest to promote public welfare, and second, that the legislature has provided an adequate substitute remedy. The Court ultimately held that the quid pro quo test was satisfied, and that medical malpractice insurance was an adequate substitute remedy. A similar argument in the context of required liability insurance for motor carriers operating in interstate commerce was raised in Hilburn, but was ultimately rejected as the plurality declined to apply the quid pro quo test because they did not find the test to be controlling precedent and more importantly, a court shouldn't ever reach the need to apply the test because capping noneconomic damages violates the Section 5 right to a jury trial.

Ultimately, the Hilburn decision stands for this: there is not currently a cap on noneconomic damages for personal injury claims in Kansas. 

What does this mean for an individual or company operating or sued in Kansas?   Damages in personal injury lawsuits (which include car accidents, premises liability cases, products liability actions, and medical malpractice claims) are typically separated into three categories:

  • Economic damages are those for past and future out-of-pocket losses of a plaintiff resulting from the injury, such as medical bills, lost wages, or property losses.
  • Non-economic damages are those which compensate a plaintiff for past and future non-monetary losses, such as disability and/or disfigurement.These are the so-called, “pain and suffering,” or loss of companionship/consortium, reputation, or “enjoyment of life.”
  • Punitive damages are those that focus on the conduct of the defendant(s), and are meant to punish the wrongdoer for particularly egregious actions and deter others from engaging in the same type of conduct.(These are not included in every lawsuit and in fact, a plaintiff in Kansas must receive permission by the court to even make such a claim.)

Economic damages in a personal injury suit have never been subject to a cap in Kansas. Now, noneconomic damages are likewise uncapped. Punitive damages are limited under Kansas law at the lesser of a defendant's annual gross income (unless deemed inadequate and then up to 50% of defendant's net worth) or $5 million. If the court finds the defendant profited from the misconduct in an amount more than the gross income/$5 million calculation, it can award up to 1.5 times the profits as punitive damages.

Why does this decision matter?  Unlike economic damages, noneconomic damages can vary widely due to the highly subjective nature of “pain and suffering,” disfigurement, etc. experienced by a plaintiff. It is difficult to evaluate and anticipate what monetary value a jury might place on such injuries.

What is the timing of this decision’s applicability?  The effect of this decision went into effect at 10:00 a.m. on June 14, 2019 when the decision was released.  It affects all pending and future personal injury actions in Kansas, including medical malpractice, motor vehicle, and premises liability cases. A jury will now be permitted to determine and decide the amount of past and future noneconomic damages recoverable by the plaintiff without any subsequent application of the statutory cap to limit their award.

Does this ruling affect wrongful death cases?  This decision does not affect the separate statutory damage caps in Kansas for wrongful-death actions (K.S.A. 60-1903) or punitive damages (K.S.A. 60-3702). The Court’s basis for this distinction is that, “Section 5 preserves the jury trial right as it historically existed at common law when our state’s constitution came into existence.” Since neither wrongful death actions nor punitive damages were available at common-law when the Kansas Constitution was written, there is no constitutional right to have a jury determine the amount of damages under either remedy.  So, those caps still apply at this time.

How far-reaching is this ruling? The Hilburn ruling currently affects only personal injury suits in Kansas state courts or in federal courts applying Kansas law. As noted in the Court's opinion, however, several other states have had noneconomic damages caps similarly determined to be unconstitutional - such as Missouri, Oklahoma, Alabama, Florida, Georgia, and Washington.

In terms of the Hilburn opinion's impact, each claim and lawsuit will have to be evaluated (or re-evaluated) individually. There will be some cases, which because of the limited nature of the injuries, which will not be affected much if at all. In other cases, however, where the injuries are such that the noneconomic damages could be very large, the impact could be substantial.

The full impact of this development is as yet unknown. We will be keeping a close eye on further court decisions and legislative efforts in response to the Hilburn decision. Please reach out to a Martin Pringle litigation attorney with any questions you may have about this court opinion.

(Photo of the Kansas Supreme Court courtesy of the Court: https://www.flickr.com/photos/kscourts/albums/72157681577868096)

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