Damages Caps Post-Horton: Where Are We 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. 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) (cap unconstitutional with $759,375 of noneconomic damages for loss of consortium); Vasquez v. Double Press Mfg., Inc., 288 Or App 503,406 P3d 225 (2017) (cap unconstitutional with $4,860,000 of noneconomic damages).

In our recent product liability and personal injury trial, the judge 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. Under Horton, 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 requires courts to “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, Vasquez 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.”


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.

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. Of interest is whether the Supreme Court will reach the constitutional issues or decide the case on other grounds.

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 or can indeed violate the remedy clause?