June 15, 2019

In it opinion dated June 14, 2019, the Supreme Court of the State of Kansas (“Kansas Supreme Court”) overturned Kansas’ statutory cap on noneconomic damages in personal injury cases, holding: “Section 5 of the Kansas Constitution Bill of Rights declares, “The right of trial by jury shall be inviolate.” The quid pro quo test that has been applied to analyze challenges under section 18 of the Kansas Constitution Bill of Rights is inapplicable to challenges under section 5. The noneconomic damages cap under K.S.A. 60-19a02 violates the right protected by section 5, because it intrudes upon the jury’s determination of the compensation owed personal injury plaintiffs to redress their injuries.”

The June 14, 2019 opinion overturned its opinion in a 2012 Kansas medical malpractice case that had upheld the cap on noneconomic damages. In Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), the Kansas Supreme Court upheld the application of the noneconomic damages cap to a medical malpractice plaintiff’s jury award in the face of challenges under section 5 and section 18. The Miller majority extended what it described as a “well-entrenched” section 18 quid pro quo analysis to section 5 challenges. Under that test, the Legislature must provide an “adequate and viable substitute when modifying a common-law jury trial right under Section 5 or right to remedy under Section 18.” 295 Kan. at 654.

In the June 14, 2019 case, which involved serious personal injuries as a result of a traffic collision, the Kansas Supreme Court stated: “Today, in this auto-truck accident case, we change course on section 5, declining to apply the quid pro quo test to analyze [the plaintiff’s] challenge. Section 5 declares, “The right of trial by jury shall be inviolate.” As discussed below in detail, the noneconomic damages cap under K.S.A. 60-19a02 violates [the plaintiff’s] right protected by section 5 because it intrudes upon the jury’s determination of the compensation owed her to redress her injury. We therefore reverse the Court of Appeals decision affirming the district court, reverse the district court’s judgment, and remand this case to district court for entry of judgment in [the plaintiff’s] favor on the jury’s full award. This decision eliminates any necessity of addressing [the plaintiff’s] section 18 claim.” (emphasis added)

Kansas’ Statutory Cap On Noneconomic Damages

K.S.A. 60-19a02(a) defines “‘personal injury action'” as “any action seeking damages for personal injury or death.” Further, “(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $250,000. (c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss. (d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party’s claims for noneconomic loss. . . .” K.S.A. 60-19a02.

In analyzing the constitutionality of the statutory cap on noneconomic damages, the Kansas Supreme Court stated, “we have little difficulty deciding that the right protected by section 5 is a “fundamental interest” expressly protected by the Kansas Constitution Bill of Rights. As such, we will not apply a presumption of constitutionality to challenges brought under section 5.”

The Kansas Supreme Court stated that Section 5 preserves the jury trial right as it historically existed at common law when Kansas’ constitution came into existence, and that “[w]e have consistently held that the determination of noneconomic damages was a fundamental part of a jury trial at common law and protected by section 5.”

The Kansas Supreme Court stated, “The noneconomic damages cap in K.S.A. 60-19a02 clearly implicates section 5’s “inviolate” jury trial right, as that right has historically been understood. The next question is whether it impairs that right by interfering with the jury’s fundamental function.” The Kansas Supreme Court concluded: “We hold the statute necessarily infringes on the constitutional right … Despite this infringement of section 5’s jury trial right by K.S.A. 60-19a02, a majority of this court held in Miller that any impairment was permissible as long as the two-part due process-based quid pro quo test applicable in section 18 analysis was satisfied. But the overlay of the quid pro quo test “transforms what the people made inviolate into something violable at will” … “In short, none of the Kansas cases relied upon by the Miller majority as controlling precedent for using the quid pro quo test on section 5 challenges withstands scrutiny.”

The Kansas Supreme Court stated: “Kansas’ section 5 right to jury trial is distinct in every conceivable dimension from the section 18 due process-based right to remedy. They share no language; they share no drafting rationale. Indeed, the rights’ placement in separate sections of the Bill of Rights makes it obvious that they articulate different concepts aimed to achieve different purposes, and thus merit unique analyses … we abandon the quid pro quo test for analyzing whether the noneconomic damages cap is unconstitutional under section 5 of the Kansas Constitution Bill of Rights.” (emphasis added)

The Kansas Supreme Court stated, “we recognize that the people’s assignment of the jury’s role in assessing damages furthers the purpose of awards to make the particular injured party whole … The jury’s traditional role in determining the amount of a pecuniary award necessary to make a party whole includes an assessment of noneconomic damages.”

The Kansas Supreme Court held: “Regardless of whether an existing damages cap is technically or theoretically applied as a matter of law, the cap’s effect is to disturb the jury’s finding of fact on the amount of the award. Allowing this substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment. The people deprived the Legislature of that power when they made the right to trial by jury inviolate. Thus we hold that the cap on damages imposed by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas Constitution Bill of Rights.” (emphasis added)

Source Hilburn v. Enerpipe Ltd, No. 112,765.

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