August 27, 2011

Even though some states (such as Maryland) have upheld caps on noneconomic damages (and sometimes other damages as well) as constitutional under their respective state constitutions, there are states that have found the caps imposed by their respective state legislatures to be unconstitutional. These states include:

Kansas: MahomesVinson v. U.S.751 F. Supp. 913 (D. Kan. 1990) ($1,000,000 overall damage cap and $250,000 noneconomic damage cap violated jury trial right); Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251 (Kan. 1988), overruled in part by Bair v. Peck, 811 P.2d 1176 (Kan. 1991) (medical malpractice damage caps violated jury trial and due process rights and constituted pre‐established remittitur).

Ohio: State ex rel. Ohio Academy of Trial Lawyers v. Sheward (Ohio 1999) 86 Ohio St.3d 451 ($250,000 noneconomic damages cap, $250,000 punitive damages cap, certificate of merit, modification of the collateral source rule violates separation of powers); Zoppo v. Homestead Ins. Co, 71 Ohio St.3d 552 (caps violate right to jury trial); Morris v. Savoy, 576 N.E.2d 765 (Oh.1991) ($200,000 cap on malpractice general damages struck down on state due process grounds); Jeanne v. Hawkes Hosp. of Mt. Carmel, 598 N.E.2d 1174 (1991) ($200,000 cap on malpractice general damages struck down on equal protection grounds) Duren v. Suburban Community Hosp., 495 N.E.2d 51 (1985) (limit on survivorship claim damages of $200,000 unconstitutional under both state and federal constitutions).

Alabama: Smith v. Schulte, 671 So.2d 1334 (Ala. 1995), (per curium) ($1 million cap in wrongful death cases against health care providers violates of both equal protection and the right to jury trial); Moore v. Mobile Infirmary Assoc. (Ala. 1991) 592 So.2d 156, 158 ($400,000 noneconomic damage cap in medical malpractice cases violates jury trial and equal protection guarantees).

Wisconsin: Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, July 14, 2005 (Wisc.)($350,000 cap on noneconomic damages in medical malpractice cases violates equal protection.); Martin v. Richards, 531 N.W.2d 70, 93 (Wis. 1995) (retroactive application of $1 million cap on noneconomic damages violates due process).

Illinois: Best v. Taylor Machine Works (Ill. 1997), 689 N.E.2d 1057 ($500,000 cap on noneconomic damages was a legislative remittitur, in violation of the separation of powers doctrine, and constituted impermissible special legislation as did abolition of joint and several liability and discovery statutes which mandate the unlimited disclosure of plaintiffs’ medical information and records); Wright v. Central Du Page Hosp. Ass’n 347 N.E.2d 736 (Ill. 1976), ($500,000 cap unconstitutional as denial of equal protection). Abigaile Lebron, a minor, et al. v. Gottlieb Memorial Hospital (Supreme Court of Illinois, 2010) (“We hold that the limitation on noneconomic damages in medical malpractice actions set forth in section 2–1706.5 of the Code violates the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1) and is invalid.”).

New Hampshire: Brannigan v. Usitalo 587 A.2d 1232, 1237 (N.H. 1991) ($875,000 limitation on noneconomic damages recoverable in actions for personal injury violates equal protection); Carson v. Mauer, 424 A.2d 825, 836‐38 (N.H. 1980) (abrogation of collateral source rule and $250,000 non‐economic damage cap in medical malpractice cases violate equal protection).

New Mexico: Trujillo v. City of Albuquerque 125 N.M. 721, 733 (N.M. 1998) (New Mexico Tort Claims Act’s cap invalidated because it did not serve an important government interest).

Georgia: Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, et al.286 Ga. 731 (2011) (“we find that the noneconomic damages caps in OCGA Section 51-13-1 violate the constitutional right to trial by jury”).


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