Damages Caps Post-Horton: Where Are Plaintiff Attorneys Now?

Two years ago, the Oregon Supreme Court upheld a statutory cap on noneconomic damages in a case brought under the Oregon Tort Claims Act. Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016). That decision has been characterized by some as eviscerating Oregon’s jury trial right under Article I, section 17 of the Oregon Constitution (in its overruling Lakin v. Senco Products, Inc., 329 Or 62, 987 P.2d 463, clarified, 329 Or 369, 987 P2d 476 (1999)). Horton has been characterized by others as reinvigorating constitutional arguments brought under the remedy clause of Article I, section 10 (in its overruling Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001)).

The Oregon Court of Appeals has applied that reinvigorated remedy clause analysis to conclude once again that the imposition of the ORS 31.710 statutory cap on noneconomic damages can be unconstitutional. Where Lakin had found the cap violated Article I, section 17, current law holds that the cap violates Article I, section 10 under the remedy clause analysis suggested in Horton. See Busch v. McInnis Waste Sys., Inc., 292 Or App 820 (2018) ($500,000 cap unconstitutional when applied to $10,500,000 jury assessment of noneconomic damages); Rains v. Stayton Builders Mart, Inc., 289 Or App 672,410 P3d 336 (2018) ($500,000 cap unconstitutional when applied to noneconomic damage amount of $759,375); Vasquez v. Double Press Mfg., Inc., 288 Or App 503,406 P3d 225 (2017) (cap unconstitutional when applied to noneconomic damage amount of $4,860,000).

In our recent product liability and personal injury trial (on remand following a 9-year appeal), the trial court found that under Horton, Vasquez, and Rains that applying the cap to the jury’s assessment of $4,250,000 in noneconomic damages would be unconstitutional. Purdy v. Deere & Co., Lane County Case Nos. 16-08-00466 and 16-13-08863. At that time, Busch had not yet been decided. Vasquez was then the leading Court of Appeals decision applying the Horton principle that, when the legislature enacts a statute that limits a remedy for a recognized duty and does not deny a remedy completely, the statute violates the remedy clause if the legislature’s limited remedy is not “substantial.” Because Horton required courts to now “consider the extent to which the legislature has departed from the common-law model measured against its reasons for doing so[,]” and to further consider the common law as it existed at the time the legislature enacted the statute, the Vasquez court had concluded that


“the legislature’s reason for enacting the noneconomic damages cap—which was not concerned with injured claimants—cannot bear the weight of the dramatic reduction in noneconomic damages that the statute requires for the most grievously injured plaintiffs.”


Rains thereafter cited to Vasquez in next in concluding that limiting a jury’s assessment of noneconomic damages for loss of consortium ($759,375 after reduction for comparative fault) to $500,000 also would violate the remedy clause.

The Purdy trial court agreed that current law compelled a finding that $500,000 would not be a “substantial” remedy in light of the jury’s $4,250,000 noneconomic damages assessment. In other words, ORS 31.710 did not pass constitutional muster under the recent appellate court decisions. The Court of Appeals later issued its decision in Busch, which relied on Vasquez and Rains to conclude that the trial court erred when it unconstitutionally imposed the $500,000 cap to the jury’s assessment of $10,500,000 in noneconomic damages for that plaintiff.

Because the Purdy case is now being appealed for a second time, we, like many attorneys representing individuals, are eager to learn the outcome of the Supreme Court’s pending review of Vasquez. Extensive briefing on a multitude of issues was submitted in that case. Of interest is whether the Supreme Court will reach the constitutional issues or decide the case on other grounds.

If Vasquez is decided on sub-constitutional grounds, some would wonder whether the Vasquez Court of Appeals remedy clause analysis remains vital. Because the Court of Appeals relied heavily on Vasquez in deciding Rains and Busch, would those decisions be affected?

Although the parties in Rains reached a settlement and that decision will not be further appealed, the defendants in Busch filed a petition for review that is currently pending.

If the Oregon Supreme Court allows review, might that produce a “final” determination that ORS 31.710 does indeed violate the remedy clause in most of the above-referenced cases?