Sсott Raymond BUSCH, Respondent on Review, and Deanne Marie BUSCH, Plaintiff, v. McINNIS WASTE SYSTEMS, INC., Petitioner on Review.
(CC 15CV13496) (CA A164159) (SC S066098)
In the Supreme Court of the State of Oregon
Argued and submitted January 15; decision of Court of Appeals affirmed, decision of circuit court reversed, and case remanded to circuit court for further proceedings July 9, 2020
366 Or 628 (2020) | 468 P3d 419
Plaintiff brought a personal injury claim against defendant after defendant‘s garbage truck struck plaintiff while he was crossing the street in downtown Portland. As a result of the collision, plaintiff underwent surgery to amputate his leg. Defendant conceded liability, and the jury awarded plaintiff $3,021,922 in economic damages and $10,500,000 in noneconomic damages. Pursuant to
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed,
On review from the Court of Appeals.*
W. Eugene Hallman, Hallman Law Office, Pendleton, and Paulson Coletti, Portland, argued the cause and filed the brief for respondent on review.
Janet Schroer, Hart Wagner LLP, Portland, and Cary Silverman, Shook, Hardy & Bacon, L.L.P., Washington DC, filed the brief for amici curiae Chamber of Commerce of the United States of America, American Tort Reform Association, American Property Casualty Insurance Association, Medical Professional Liability Association, and Coalition for Litigation Justice, Inc.
Hillary A. Taylor, Keating Jones Hughes, P.C., Portland, filed the brief for amici curiae Oregon Medical Association, American Medical Association, and American College of Obstetricians and Gynecologists.
Sharon A. Rudnick, Harrang Long Gary Rudnick P.C., Portland, filed the brief for amici curiae Oregon Liability Reform Coalition and National Federation of Independent Business. Also on the brief was Susan Marmaduke.
Nadia H. Dahab, Portland, Travis Eiva, Eugene, and Kathryn Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Landau, Senior Judge, Justice pro tempore.**
WALTERS, C. J.
The decision of the Court of Appeals is affirmed. The decision of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Landau, S. J., specially concurred in part and dissented in part and filed an opinion.
Balmer, J., dissented and filed an opinion, in which Landau, S. J., joined.
WALTERS, C. J.,
In this personal injury action, we consider, for the first time since this court re-examined the remedy clause of
FACTUAL BACKGROUND
Plаintiff had the right-of-way and was walking across a crosswalk in downtown Portland when defendant‘s garbage truck struck him. By the time the truck stopped, plaintiff‘s leg was under the truck and attached to his body by a one-inch piece of skin. Plaintiff was fully conscious and alert, and he experienced tremendous pain. Plaintiff had surgery to amputate his leg just above the knee. He has undergone extensive rehabilitation and therapy, but the injuries that plaintiff suffered will affect him for the rest of his life.
Plaintiff filed this action against defendant, a private entity. Defendant admitted liability; the only issue for the jury was the amount of damages to be awarded. The jury determined that plaintiff had sustained, and will sustain, economic damages of $3,021,922 and noneconomic damages of $10,500,000. Defendant subsequently moved to reduce plaintiff‘s noneconomic damages award to $500,000, in accordance with the cap on noneconomic damages provided in
Plaintiff appealed, and the Court of Appeals reversed, relying on its decision in Vasquez v. Double Press Mfg., Inc., 288 Or App 503, 406 P3d 225 (2017),
“[t]he legislature [had] departed fairly dramatically from that model by placing a hard cap on the amount of noneconomic damages a plaintiff may recover—a cap that was placed in 1987 and has not since been revisited—with no mechanism for adjustment for the changing value of money or for adjustment based on the relative severity of the injuries sustained by a plaintiff.”
Id. at 524-25. The legislature had done so, the court said, to “‘put a lid on litigation costs, which in turn would help control rising insurance premium costs for Oregonians.‘” Id. at 525 (quoting Greist v. Phillips, 322 Or 281, 299 n 10, 906 P2d 789 (1995)). The court then 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.” Id. The court explained that the plaintiff had been “grievously injured” and, if the damages cap imposed by
As noted, this case came to the Court of Appeals after it had decided Vasquez, and the court determined that the two were indistinguishable. Busch, 292 Or App at 824. Accordingly, the court reversed the decision of the trial court reducing plaintiff‘s damages to $3,521,922 and directed the trial court to enter a judgment consistent with the jury‘s damages award. Id. at 824-25. Defendant sought, and we allowed, review.
THE PARTIES’ ARGUMENTS
In this court, defendant does not begin, as the Court of Appeals did in Vasquez, with a review of this court‘s decision in Horton and an analysis of the test that that Court of Appeals drеw from it. Instead, defendant assumes that the remedy clause of
Although plaintiff responds to and adamantly opposes defendant‘s arguments about what constitutes a “substantial” remedy, plaintiff also engages more directly with this court‘s decision in Horton and contends that, when the legislature limits the damages that a plaintiff may recover without altering a defendant‘s duty of care or providing a substitute remedy, that statutory limitation does not comport with
LEGAL BACKGROUND
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
Smothers v. Gresham Transfer, Inc., 332 Or 83, 90, 23 P3d 333 (2001), was the first case in which this court conducted a Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992)-style analysis of that clause.3 Horton re-examined
and overruled Smothers. In doing so, Horton characterized Smothers as holding that the meaning of the remedy clause is tied to the Oregon common law in 1857, when the clause was enacted, and that the legislature was prohibited from eliminating or modifying a сommon-law cause of action unless the legislature “provide[d] a constitutionally adequate remedy.” See Horton, 359 Or at 175-88 (construing Smothers and overruling it). Horton rejected that interpretation of the remedy clause, articulated its understanding of the substantive limit that the remedy clause imposes, and applied that understanding to the damages cap at issue in the case. Horton therefore provides the framework for our analysis of the constitutionality of
Horton was a medical-malpractice case. The defendants in Horton were the Oregon Health & Science University (OHSU) and Dr. Harrison, a pediatric surgeon employed by OHSU. 359 Or at 171. Harrison had performed surgery on the plaintiff‘s then six-month-old son and negligently transected blood vessels going to the child‘s liver. The plaintiff‘s son had been required to undergo a liver transplant, spleen removal, and additional surgeries, and he would require lifelong medical care. Id. at 171. The defendants had admitted liability and, following a trial on the issue of damages, the jury had awarded the plaintiff economic damages of $6,071,190 and noneconomic damages of $6,000,000. Id.
Following the verdict, the defendants filed a motion to reduce the plaintiff‘s total damages award to $3,000,000 pursuant to
We accepted Harrison‘s request that we review our holding in Smothers. We analyzed whether the Smothers holding was correct, id. at 178, and determined that the text of the remedy clause did not include, nor did its context support, such a limitation, id. at 181. We pointed out that the common law is not static or unchanging; rather, it has “continued to evolve as the premises on which it rests have changed.” Id. at 182. Thus, “[a]lthough the text and history of the remedy clause were considered at some length in Smothers,” we were not persuaded “to adhere to a case that was at odds with the text, history, and case law when it was decided and that continues to prove problematic.” Id. at 187-88. We concluded that the remedy clause does not “lock[] courts and the legislature into a static conception of the common law as it existed in 1857,” id. at 218-19, and overruled Smothers, id. at 188.
Having rejected this court‘s interpretation of the remedy clause in Smothers, we were faced with the question of how to correctly describe the clause‘s parameters. We examined our pre-Smothers remedy-clause decisions and characterized them as holding that the remedy clause grants injured persons a substantive right and places a substantive limit on the legislature‘s ability to modify remedies. Id. at 218. We declined “to toss that considered body of decisions aside,” and considered how to articulate the nature of that right and the substantive limits it imposes. Id.
We decided that Smothers had mistakenly viewed the common law as a “procrustean template” and had too tightly tied remedy-clause protections to the common law as it existed in 1857. Id. at 197-98. Although we expressly determined that “the remedy clause does not protect only those causes of action that pre-existed 1857,” id. at 219, we
did not completely abandon the common law as a guide. We stated, without difficulty, that “common-law causes of action and remedies provide a baseline for measuring the extent to which subsеquent legislation conforms to the basic principles of the remedy clause—ensuring the availability of a remedy for persons injured in their person, property, and reputation.” Id. at 218. But we found it more challenging to determine when a move away from that baseline is a move too far from those basic principles. It was not easy, we said, “to reduce our remedy-clause decisions to a simple formula.” Id. at 220.
We observed that our cases had considered three general categories of legislation: At times, the legislature has left a common-law duty intact while eliminating a remedy for injuries cause by a breach of that duty; at other times, the legislature has left a common-law duty intact and has modified only the remedy; and, in other instances, the legislature has eliminated or modified the common-law duty itself. Id. at 219-20. From those cases, we concluded that, in deciding whether the legislature‘s actions impair a person‘s right to a remedy under
As a “final consideration” in our analysis of our prior cases, we cautioned against over-reliance on cases decided after Smothers and decided “through the lens that [it] provided.” See id. at 220-21 (discussing this court‘s post-Smothers decisions in Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007), and Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013), and cautioning that those cases must be taken with a “grain of salt“). We opined that, “when the legislature does not limit the duty that a defendant owes a plaintiff but limits the size or nature of the remedy,” the legislative remedy need not restore all the damages that the plaintiff sustained and that factors, such as the existence of a quid pro quo, matter when determining whether a limited remedy is constitutional. Id.
With that background in mind, we turned to the application of those principles to the damages cap at issue—a cap imposed by the Oregon Tort Claims Act.5 We began by noting that, like other statutes we had сonsidered in the past, the Oregon Tort Claims Act does not eliminate or modify a defendant‘s duty to an injured plaintiff; rather, it modifies, without eliminating, the remedy available to the plaintiff. 359 Or at 221. Specifically, as applicable to the claim that the plaintiff in Horton asserted, we said that the Oregon Tort Claims Act did not modify the duty that the OHSU physicians owed to the plaintiff, who was their patient; rather, it limited the plaintiff‘s remedy for injuries caused by a breach of that duty. Id.6
To determine the constitutionality of the cap imposed by the Oregon Tort Claims Act, this court began by noting that the act was a “comprehensive statutory scheme intended to extend benefits to some persons while adjusting the benefits to others.” Id. at 221. First, we recognized that the state has a constitutionally recognized interest in sovereign immunity. Id. We observed that the state acts through its employees, who are not entitled to immunity and that, if the state chose to indemnify its employees for all liability incurred, the state‘s interest in sovereign immunity would be “eviscerated.” Id. at 222. But, if the state chose not to indemnify its employees, “few qualified persons would choose to work for the state.” Id. The legislature‘s “reason” for passing the Oregon Tort Claims Act was to “avoid[] that dilemma by waiving the state‘s immunity for its torts but
capping the amount for which the state can be held liable.” Id. We explained that, “the Tort Claims Act accommodates the state‘s constitutionally recognized interest in asserting its sovereign immunity with the need to indemnify its employees for liability they incur in carrying out state functions.” Id. at 221.
Second, we explained that the Oregon Tort Claims Act gives plaintiffs a ”quid pro quo“—“something that they would not have had if the state had not partially waived its immunity.” Id. at 222. The Oregon Tort Claims Act waives the state‘s sovereign immunity up to the damages limits.
Third, we recognized that, in setting the cap on state liability, the 2009 Legislative Assembly had made a studied and data-driven decision to “provide a complete recovery in many cases [and] greatly expand the state‘s liability in the most egregious cases,” by both significantly increasing the caps and providing for additional, annual, increases indexed for inflation. Id. at 223-24. As a result, in light of the legislature‘s efforts to accommodate both the state‘s interests and plaintiffs’ remedy-clause rights, we could not “say that the $3,000,000 tort claims limit on damages against state employees is insubstantial in light of the overall statutory scheme, which extends an assurance of benefits to some while limiting benefits to others.” Id. at 224.
But that was not the end of our analysis. As a final check on the constitutionality of the limited remedy as applied to the plaintiff in Horton, we considered whether the size of the award to the plaintiff that remained was sufficiently “substantial” to be constitutionally adequate. Id. We recognized that the remedy the legislature provided, when considered next to the particular facts of the case, was “not sufficient * * * to compensate plaintiff for the full extent of the injuries that her son suffered.” Id. But we decided that the cap was constitutional as applied to the plaintiff, saying that “the remedy that the legislature has provided represents a far more substantial remedy than [a] paltry fraction” of the remedy that the jury had determined was appropriate. Id.
After stating our holding, we emphasized that it was “limited to the circumstances that this case presents, and it turns on the presence of the state‘s constitutionally recognized interest in sovereign immunity, the quid pro quo that the Tort Claims Act provides, and the tort claims limits in this case.” Id. at 225. We “express[ed] no opinion on whether other types of damages caрs, which do not implicate the state‘s constitutionally recognized interest in sovereign immunity and which are not part of a similar quid pro quo, comply with
ANALYSIS
The damages cap at issue here is one of those “other types of damages caps.” It is now codified at
“Except for claims subject to
ORS 30.260 to30.300 [the Oregon Tort Claims Act] andORS chapter 656 [workers compensation claims], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damages of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500,000.”
Additionally,
Because
Defendant is correct to call Greist to our attention; in Greist we considered the constitutionality
Greist was a wrongful death case. The plaintiff in Greist was the personal representative of her son‘s estate, and she brought a wrongful death action after she and her son were rear-ended by a five-axle truck and trailer while travelling from California to Oregon. Id. at 285. The plaintiff‘s son, who was 10 months old at the time, was thrown from the vehicle and was killed. Id. The plaintiff brought suit under
This court affirmed, concluding that other “decisions from this court discussing
308 Or 508, 783 P2d 506 (1989)—a decision in which this court validated the damages cap imposed by a prior version of the Oregon Tort Claims Act. In Hale, the plaintiff‘s claim was against a municipal corporation, not, as in Horton, a state entity, and we relied on a different quid pro quo to validate the cap:
“The class of plaintiffs [who can seek a remedy under the Oregon Tort Claims Act] has been widened by the legislature by removing the requirement that an injured party show that the municipal corporation‘s activity that led to the injury was a proprietary one. At the same time, however, a limit has been placed on the size of the award that may be recovered. A benefit has been conferred, but a counterbalancing burden has been imposed. This may work to the disadvantage of some, while it will work to the advantage of others. But all who had a remedy continue to have one.”
Hale, 308 Or at 523.8 We also added the following thought:
“[Prior cases from this court] held only that
Article I, section 10 , is not violated when the legislature alters (or even abolishes) a cause of action, so long as the party injured is not left entirely without a remedy. Under those cases, the remedy need not be precisely of the same type or extent; it is enough that the remedy is a substantial one.”
Id. at 523 (emphases added).
Greist focused on that latter cue from Hale. In Greist, this court began its remedy-clause analysis without first discussing whether the legislature had provided plaintiffs with a quid pro quo in еxchange for a limited remedy. This court observed, however, that a wrongful death action
is a statutory claim that was not cognizable at common
In this case, defendant asks that we pluck from Greist the notion that recovery of 100 percent of a plaintiff‘s economic damages plus $500,000 in noneconomic damages always is a substantial amount, and therefore a substantial remedy, and leave our constitutional analysis there. Defendant contends that, in this case—a case that is neither a wrongful death action nor a claim against a public entity under the Oregon Tort Claims Act—we need decide only that the amount that plaintiff received is “substantial,” and that that is sufficient for us to conclude the remedy available to plaintiff under
To take a stroke in that direction, however, would be to swim against the tide of Horton. In Horton, this court did not begin its analysis by assessing whether the amount that the plaintiff was awarded after application of the damages cap was relatively small or large, paltry or substantial. Rather, we began by recognizing that doctors owe their patients a duty of due care, that patients have a right to a remedy for a breach of that duty, and that the legislature had not altered the duty imposed on doctors but had limited the remedy available to patients. Horton, 359 Or at 221. We then inquired whether the legislature‘s reasons for imposing
those limits were sufficiently weighty to counterbalance the
We recognize that Horton did not overrule Greist, and we also need not overrule it to conclude that it is not controlling. Here, it is only necessary to observe that Greist did not rely solely on the amount or relative size of the plaintiff‘s award to uphold the applicable damages cap, and that any other reading of Greist would be contrary to Horton. We also disagree with defendant that Howell, another case decided before Horton, compels a different result.
in that case—the cap on economic and noneconomic damages imposed by the Oregon Tort Claims Act—only on the amount of the plaintiff‘s award. The court also compared the cap at issue in Howell to the cap at issue in Hale, and it concluded that “a similar quid pro quo may be seen to apply.” Howell, 353 Or at 376. It is true that, in Howell, the court said that the case before it was “even more like Greist,” id. at 376, but viewing both Greist and Howell from Horton‘s perspective, we conclude that both cases are best understood as upholding limits on damages for reasons in addition to the relative amount of the plaintiff‘s award. To the extent that Greist or Howell can be read to require that sole focus, we disavow them.
We therefore reject defendant‘s argument that Greist controls our decision in this case, and we also reject defendant‘s suggestion that, independent of Greist, the relative size of a plaintiff‘s award determines the constitutionality of a damages cap. Under Horton, the question of whether a damages cap survives a remedy-clause challenge is not determined solely, or even significantly, by calculating the difference between the damages awarded by a jury and the award permitted by statute and making a judicial assessment of whether the two are so disparate that some adjectival label (substantial or insubstantial, paltry or emasculated) applies. Such an assessment is appropriate as a final check to ensure that, even if the legislature‘s reasons for adopting a damages cap are constitutionally sufficient, the plaintiff has received a constitutionally sufficient remedy. But no remedy-clause decision from Hale to Horton has rested solely on an algebraic comparison of the amount of damages awarded by the jury to the amount the plaintiff may recover in accordance with a damages cap, and we also decline to rest our decision in this case on such a comparison.
Having rejected defendant‘s first argument that the limited damages award that plaintiff received in this case wаs constitutionally adequate because the amount of the award was “substantial” and adequate “in and of itself,” we turn to defendant‘s second argument—that plaintiff‘s award was “substantial” and adequate considering the nature and purpose of noneconomic damages. In advancing that argument, defendant contends that the “subtext” of our opinions
in Greist and Clarke seems to be that noneconomic damages are different from economic damages and that the remedy clause is more protective of the latter. According to defendant, the nature and purposes of economic and noneconomic damages explains the different treatment, and defendant urges that we adopt a rule that noneconomic damages are of lesser constitutional import.
Defendant is correct that economic and noneconomic damages are different in some regards. For one thing, as the legislature defines them, economic damages are objectively verifiable; noneconomic damages are not.10 But it is what those types of damages have in common that is important for purposes of
(defining “compensatory damages” as “[d]amages sufficient in amоunt to indemnify the injured person for the loss suffered“); Black‘s at 1336 (defining “pain and suffering” as “[p]hysical discomfort or emotional distress compensable as an element of noneconomic damages in torts“).
At the time the remedy clause was adopted, the common law allowed recovery for both tangible and intangible injuries, such as mental anguish and insult. See, e.g., Clarke, 343 Or at 608 (“There is no dispute that, when Oregon adopted its remedy guarantee, plaintiff would have been entitled to seek and, if successful, to recover both types of damages from the individual defendants.“); DeMendoza v. Huffman, 334 Or 425, 438, 51 P3d 1232 (2002) (discussing the historical development of punitive damages, as compared to compensatory damages, in American courts);11 Oliver v. North Pacific Transp. Co., 3 Or 84, 87 (1869) (explaining that when “estimating” damages for personal injury, “it is proper to consider loss of time, money necessarily paid or debts necessarily incurred in curing the bodily injury, and whatever bodily pain it may have caused to the plaintiff“). Today, Oregon law continues to permit plaintiffs to seek and to have a jury award what it deems an amount that can compensate plaintiff for both types of losses.
Given the compensatory purpose of both economic and noneconomic damages, defendant does not persuade us that this court has treated or should treat any difference in those damages as significant in our remedy-clause analysis. In the
fails to mention, must less rely on, such a distinction. In Clarke, this court noted that the “paltry” amount that the plaintiff was awarded did not even compensate him for the economic damages that he had incurred, but we did so only to emphasize the extent and severity of the plaintiff‘s injuries. See Clarke, 343 Or at 609 (“We view plaintiff‘s economic damages of over $12 million as representative of the enormous cost of lifetime medical care currently associated with permanent and severe personal injuries caused by the medical negligence of a state officer, agent, or employee.“). And, in Clarke, we did not rely on that fact alone as the basis for our decision that the damages cap was unconstitutional as applied to the plaintiff in that case. Rather, we explained that plaintiff had suffered noneconomic damages of $5,000,000 in addition to his economic damages, and we stated that, “when Oregon adopted its remedy guarantee, plaintiff would have been entitled to seek and, if successful, to recover both types of damages from the individual defendants.” Id. at 608 (emphasis added).
Moreover, the distinction that defendant makes is not significant in our constitutional
That takes us to defendant‘s third and final argument—that the legislature‘s reasons for enacting the damages cap in
legislature adopted the cap as a tradeоff to the “broadening” of tort liability that had occurred in the 1960s and 1970s.
We have no doubt that
Plaintiff does not contest defendant‘s description of the reasons for the legislature‘s adoption of
Plaintiff states his latter argument too broadly: There have been instances in which this court has upheld statutes against a remеdy-clause challenge without relying on the existence of a quid pro quo. See Horton, 359 Or at 219; (citing Perozzi v. Ganiere, 149 Or 330, 348, 40 P2d 1009 (1935)). As Horton explains, we have upheld statutes that modify common-law duties, or even, on occasion, eliminate common-law causes of action “when the premises underlying those duties and causes of action have changed.” Horton, 359 Or at 219. In assessing the constitutionality of such statutes, we have considered “whether the common-law cause of action that was modified continues to protect core interests against injury to person, property, or reputation or whether, in light of changed conditions, the legislature permissibly could conclude that those interests no longer require the protection formerly afforded to them.” Id. at 219-20 (citing Norwest v. Presbyterian Intercommunity Hospital, 293 Or 543, 563, 652 P2d 318 (1982)).12
Those cases do not establish that a quid pro quo always will be necessary, or even sufficient, to sustain such a statute against a remedy-clause challenge. In Horton, for instance, the court relied on a number of factors in addition to the quid pro quo that it identified in concluding that the damages cap at issue there did not violate the remedy clause. But what those cases do tell us is that the right to remedy is a substantive right “ensuring the availability of a remedy for persons injured in their person, property, and reputation to remedy for injury to person.” Horton, 359 Or at 218. And, as we said in Horton, “common-law causes of action and remedies provide a baseline for measuring the extent to which subsequent legislation conforms to the basic principles of the remedy clause.” Id. at 218-19. We erred when we concluded in Smothers that the remedy clause prohibits the legislature from eliminating any common-law remedy that existed in 1857, but we also would err if we were to decide, at the other extreme, that the legislature is entitled to modify common-law remedies for any reason it deems sufficient. Under Horton, the legislature must act for a reason sufficient to counterbalance the substantive right that
Under the common law, all persons owe a duty of reasonable care and persons who are injured as a result of breach of that duty have a right to bring a claim for their injuries. See Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 16, 734 P2d 1326 (1987) (explaining common-law cases referred to a duty owed to “every person in our society” to avoid foreseeable risk of harm). In adopting
Instead, when the legislature enacted
The failure to provide a quid pro quo to counterbalance a plaintiff‘s right to a remedy under
In enacting the damages cap in
The decision of the Court of Appeals is affirmed. The decision of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
LANDAU, S. J., specially concurring in part and dissenting in part.
I continue to believe that the remedy guarantee of
My concern about the erroneous overruling of Lakin is rooted in considerations of stare decisis. The majority in Horton reconsidered Lakin because of the “disarray among our
First, although we were undoubtedly correct in Horton that there is a certain amount of tension among the court‘s jury-trial cases,1 on reflection I have a hard time concluding that the jury-trial decisions are in any greater “disarray” than the court‘s remedy-clause cases are. The remedy-clause cases for over a century have been notoriously contradictory. See, e.g., David Schuman, Oregon‘s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or L Rev 35, 36 (1986) (“[T]he remedy clause has not occasioned a coherent body of case law leading to anything that could be called an ‘interpretation.‘“).
In Templeton v. Linn County, 22 Or 313, 316, 29 P 795 (1892), the court concluded that the remedy clause doesn‘t constrain the legislature at all. In Mattson v. Astoria, 39 Or 577, 580, 65 P 1066 (1901), the court said yes, it does. Then in Perozzi v. Ganiere, 149 Or 330, 345, 40 P2d 1009 (1935), the court said no, it doesn‘t. The court in Smothers v. Gresham Transfer, Inc., 332 Or 83, 123-24, 23 P3d 333 (2001), said yes, it does, but only for claims that existed at common law in 1857. Horton then said that Smothers was wrong in temporally limiting the effect of the remedy guarantee but otherwise was correct. Horton, 359 Or at 218.
What a mess. Yet in Horton the majority opinion bent over backwards to find a way to reconcile those inconsistencies, for example, drawing distinctions among the cases on their facts or by reference to whether the defendants were municipal entities. Horton, 359 Or at 188-89. Our gloss on those decisions, though, tended to overlook the court‘s own earlier assessments that its cases are fundamentally at odds. See, e.g., Neher v. Chartier, 319 Or 417, 423, 879 P2d 156 (1994) (noting that the case law “throughout the nineteenth and twentieth centuries interpreting
In reviewing the jury-trial cases, we were much less forgiving. In particular, we complained that ”DeMendoza cannot be fairly reconciled with Lakin.” Horton, 359 Or at 231. In DeMendoza, it will be recalled, the court had concluded that a law directing that 60 percent of punitive damages awarded to a party be distributed to the state did not violate the right to a jury trial. 334 Or at 447. The plaintiffs had argued that the law depriving them of 100 percent of the punitive damages awarded by the jury violated Lakin and the jury-trial guarantee of
In Horton, though, we gave short shrift to that explanation. We didn‘t explain why the court‘s own prior attempt to reconcile the two cases in DeMendoza wasn‘t at least plausible. We simply disagreed with it. What‘s more, as Justice Walters pointed out
In short, it‘s difficult for me to read Horton and not conclude that our opinion is internally inconsistent—that the charitable standard that we applied in reviewing remedy-clause cases for some unexplained reason didn‘t apply to our review of jury-clause cases.
Second, as a result of the different ways that the majority opinion in Horton responded to apparent inconsistencies in its remedy-clause and jury-clause cases, it applied different standards in deciding whether to overrule the relevant precedents. In the case of the remedy-clause case law, the opinion‘s glossing over the inconsistencies that I‘ve mentioned allowed it, in effect, to put a thumb on the scale when evaluating whether to overrule Smothers entirely.
Take as one example among many how the majority in Horton reviewed the significance of the writings of Edward Coke and William Blackstone. The opinion acknowledged that those writings actually focused on the crown‘s interference with access to common-law courts—not legislative alteration of rights and remedies, as had been suggested in Smothers. Horton, 359 Or at 204. The majority went so far as to say that its reading of William Blackstone, 1 Commentaries on the Laws of England (1st ed 1765), in Smothers on just that point had been in error. Id. at 203 (”Smothers appears to have misperceived what Blackstone said.“). Nevertheless, it explained, “[e]ven if that is the better understanding” of those sources, there is enough ambiguity in them to defeat the assertion that Smothers is “clearly at odds” with them. Horton, 359 Or at 205.
The majority in Horton took a different tack in reconsidering Lakin. We didn‘t determine whether Lakin was “clearly at odds” with the text or history of
More significantly, in its analysis of the historical roots of the right to a jury trial, the majority opinion in Horton never identified any source demonstrating that Lakin was actually wrong in construing the jury guarantee of
In short, our careful review of the historical sources revealed an absence of evidence that Lakin was right, not the existence of evidence that Lakin was wrong. To rely on what the historical record doesn‘t reveal, though, is to employ what historians call the “fallacy of the negative proof.” See, e.g., David Hackett Fischer, Historians’ Fallacies: Toward a Logic of Historical Thought 47-48 (1970). It‘s at least plausible that various historical sources don‘t mention the idea that the right to a jury trial has a substantive effect because the subject hadn‘t come up at that point in time, not because they affirmatively disclaimed such an effect.
In this regard, I can‘t help but recall State v. Ciancanelli, 339 Or 282, 292-319, 121 P3d 613 (2005). In Ciancanelli, the court reviewed in painstaking detail the history of free-expression law from the sixteenth century on and acknowledged that the great weight of authority was contrary to the sort of analysis that the court had previously adopted in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). See Ciancanelli, 339 Or at 299 (noting that, “during the late eighteenth and early nineteenth centuries, most American courts and legal treatises tended to treat the right of free speech as a very limited one“). Still, the court concluded, Robertson is at least arguably consistent with other strains of thinking at the time of the American revolution. There was no evidence that anyone in Oregon actually concurred in those other strains of thinking. See id. at 309. But there was no evidence to the contrary, either. As a result, the court concluded, Robertson couldn‘t be overruled. Ciancanelli, 339 Or at 314.4 I‘m at a loss to understand how our decision to overrule Lakin can be reconciled with that standard.
I‘m aware that only a few years have passed since this court handed down its decision in Horton. I think that the recency of the decision actually weighs in favor of confronting its error. In Horton itself, the court noted that it felt comfortable overruling a portion of Smothers because ”Smothers is of relatively recent vintage, [15 years,] and it has not given rise to the sort of reliance interests” that the court had held in other cases might foreclose reconsideration of older precedents. Horton, 359 Or at 187. The same undeniably is true here, where the decision at issue was rendered
As I said at the outset, I voted with the majority in Horton. I regret that I did so. But the fact that insight comes belatedly doesn‘t mean that it should be ignored. I would renounce Horton and revive Lakin.
The court has declined to reconsider its decision in Horton, at least in this case. I wouldn‘t take that as a signal that the court will never do so. Perhaps it‘s reluctant to take on the issue because the plaintiffs here assert no more than the majority in Horton was wrong in overruling Lakin. Entertaining that sort of argument gives rise to suggestions that the nature of constitutional rights depends on the makeup of the court at any given point in time. Fair enough.
The argument that I‘m making here is different. My argument is not that Horton was wrong and Lakin was right on the merits (although I think that may be so, as well). Instead, my argument is that Horton erred in failing to follow the court‘s precedents governing the reevaluation of prior case law. Those precedents have significance apart from principles pertaining to the scope of the right to a jury trial. They speak to the credibility of the court. It‘s one thing to confront an irreconcilable conflict in decisions, in which case the court must simply decide that one or the other is correct. See, e.g., Couey v. Atkins, 357 Or 460, 486, 355 P3d 866 (2015) (stare decisis gives way when the court confronts cases with diametrically opposed holdings). In the absence of such an irreconcilable conflict, though, the burden is—and must be—highеr. As the court declared in Couey, ”stare decisis does not permit this court to revisit a prior decision merely because the court‘s current members may hold a different view than its predecessors about a particular issue.” Id. at 485. Rather, it must be shown that prior case law was “clearly incorrect—that is, it finds no support in the text or history of the relevant constitutional provision.” Id. at 485-86.
In my view, the majority in Horton failed to establish any irreconcilable conflicts in the court‘s
BALMER, J., dissenting.
I respectfully dissent. As the majority, the concurrence, and many commentators point out, our decisions regarding the remedy clause are consistently inconsistent. The majority does not attempt to sort out the precedents, but it can hardly be faulted for that. Indeed, the majority generally follows this court‘s analysis in Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016), although it articulates the analytical framework in somewhat more categorical terms than Horton did.
And yet the result in Horton was a holding that a legislatively established damages cap that allowed the plaintiff less than half of the economic damages awarded by the jury ($3 million out of $6 million) and none of the noneconomic damages ($0 out of $6 million) did not violate the remedy clause, 359 Or at 173, while the result here is that a legislatively established damages cap that leaves untouched all of plaintiff‘s economic damages ($3 million out of $3 million) and a small but not insignificant fraction of his noneconomic damages ($500,000 out of $10.5 million) does violate the remedy clause. Of course, the majority explains the reasons for those arguably conflicting results at some length, and I discuss that analysis briefly below. At the end of the day, however, those inconsistent results are part of the basis for my view that the majority fails to give the legislature the same kind of latitude that we approved in Horton. More fundamentally, the majority does not give the legislature the latitude I believe it has under the Oregon Constitution to adjust common law and statutory rights and remedies in the civil justice system to meet what it perceives to be the needs of the public.
OUR EARLIER DECISIONS LEAVE OPEN THE ISSUE PRESENTED HERE
I agree with important aspects of the majority opinion. First, if we were writing on a clean slate, I would probably agree with Justice Landau‘s concurrence in Horton that the remedy clause was not intended to impose any kind of substantive limit on the legislative adjustment of rights and remedies.1 However, Oregon courts for more than 150 years have held—in many cases, but not all, see, e.g., Perozzi v. Ganiere, 149 Or 330, 345, 40 P2d 1009 (1935)—that the remedy clause imposes some kind of substantive limit on the extent to which the legislature may modify or abolish existing rights and remedies. This court reaffirmed that view in Horton and does so again in this case, and I
agree. There is simply too much water under the bridge to go back to what the framers of
Second, the majority, like the court in Horton, holds that the concept of “substantiality” plays a role in remedy-clause analysis and that a statute providing only an “insubstantial” remedy for a plaintiff‘s injury violates the remedy clause.2 The majority‘s references to “substantiality” are important here because they make clear that the majority does not hold that the remedy clause prohibits any cap that would prevent a plaintiff from recovering the full amount that a jury might award in nоneconomic damages. The majority notes that the level of the cap at issue here was not based on a legislative finding that “it would be capable of restoring the right that had been injured in many, if not all, instances,” 366 Or at 651, indicating that a cap that met that test would be permissible, at least in certain circumstances. The majority could not make that statement if it agreed with the assertion by plaintiff‘s counsel at oral argument that a $500,000 cap imposed on a jury verdict for noneconomic damages of $500,001 would violate the remedy clause. The majority appears to hold—consistent with Horton—that a remedy can be “substantial,” and sufficient for remedy-clause purposes, even if it does not provide the injured party with the entire amount of noneconomic damages awarded by the jury. I agree.
Where I disagree with the majority is in its conclusion that defendant “does not convince us that the
reasons for the limitation [on noneconomic damages in
While one could distinguish Horton as an OTCA/quid pro quo case and Greist as a wrongful death case not cognizable at common law but instead based on a statute, it is unclear to me why those differences should matter. The majority suggests that the policy interests advanced by the legislature here are not comparable—by which it must mean lacking sufficient “heft“—to those at issue in Horton because they are not interests of “sovereign immunity or *** with constitutional underpinnings.” 366 Or at 651. But the majority does not explain why the legislature‘s constitutional authority to enact laws for what it determines to be the good of the state is less important than sovereign immunity. To the extent the majority views sovereign immunity as a constitutional doctrine, it is incorrect. In Hale v. Port of Portland, 308 Or 508, 515, 783 P2d 506 (1981), we stated that the defendant was incorrect in arguing that the reference to sovereign immunity in
I see no reasonable basis for suggesting that the state‘s interest in sovereign immunity is more important or has more constitutional “heft” than other interests that the legislature has decided to protect or adjust or modify to achieve particular policy goals. In Lawson v. Hoke, 339 Or 253, 119 P3d 210 (2005), this court rejected a remedy-clause challenge to
Similarly, as I noted in my concurring opinion in Clarke, the legislature has sought to encourage certain actions by members of the public by enacting “Good Samaritan” statutes that limit the circumstances in which a person injured by another who provides emergency medical assistance, transportation assistance, or defibrillator treatment can recover damages. 343 Or at 617 (Balmer, J., concurring) (citing
To summarize, in order to advance specific public policies, the legislаture often has modified the otherwise applicable rules of common-law negligence and the remedies for such negligence. Most relevant here, it has barred the recovery of noneconomic damages to incentivize drivers to purchase required insurance, see Lawson, 339 Or at 256; it has capped total damages—economic and noneconomic—that are recoverable from government bodies and their employees—the cap we upheld in Horton. 359 Or at 172-73. And, in the statute at issue here,
NONECONOMIC DAMAGES ARE QUALITATIVELY DIFFERENT FROM ECONOMIC DAMAGES
As the majority explains,
The legislature chose not to limit the recovery of “economic damages” suffered by those who have suffered injury to their person, property, or reputation—the “objectively verifiable monetary losses,” including lost income, medical expenses, the value of property. Instead, it focused solely on noneconomic damages. Much of defendant‘s argument that the cap here does not violate the remedy clause is based on the differences between economic and noneconomic damages. The majority declares itself “not persuade[d]” that the difference between economic and noneconomic damages is relevant for remedy-clause purposes. 366 Or at 646. It first asserts that it must not be important because Greist did not rely on the distinction. But there was no reason for the court to even mention the difference in Greist, because the verdict there was for $100,000 in economic damages (which was unaffected by the cap) and $1.5 million for noneconomic damages (of which the plaintiff received $500,000). 322 Or at 286. And, in Clarke, we emphasized that the $200,000 cap at the time—$100,000 for economic damages and $100,000 for noneconomic damages—was a tiny fraction
This court never has examined in detail the differences between noneconomic and economic damages for remedy-clause purposes, nor does the majority do so today. I agree with the majority that Oregon law historically and, I believe, correctly, has allowed recovery of damages for intangible injuries, what we now call noneconomic damages. DeMendoza v. Huffman, 334 Or 425, 438, 51 P3d 1232 (2002). I also agree that such damages provide “remedy” for injuries—although necessarily in a different way than damages that compensate for medical bills, lost income, and other financial consequences of injuries. Such remedial damages—economic and noneconomic—are different from punitive damages, which are intended to punish the tortfeasor and not to compensate the injured person. Id. at 442, 445-46. Thus, it may be that a statute that eliminated noneconomic damages altogether would violate the remedy clause, although that issue, of course, is not before us today.
But that does not mean that the distinction between economic and noneconomic damages is irrelevant for remedy-clause purposes. Accepting, as I do, that noneconomic damages are not merely symbolic but are “real” damages in the sense that they help remedy the pain and suffering that an injured plaintiff has unquestionably suffered, that does not mean that those damages are exactly like economic damages. Rather, in my view, for some of the same reasons that statutory limits on other common-law rights and remedies, such as those discussed above, are permissible under
The differences between economic and noneconomic damages—and the reasons it is appropriate to consider them differently for remedy-clause purposes—begin with the controlling statutory definitions. “Economic damages” means “objectively verifiable monetary losses,” including medical expenses, lost income, and impairment of earning capacity.
Both parties cite Dobbs‘s Law of Remedies, but both parties cite only the sentences that support their position and thus fail to grapple with the unavoidable ambiguity of noneconomic damages. Plaintiff quotes Dobbs as recognizing that “the pain for which recovery is allowed includes virtually any form of conscious suffering, both emotional and physical.” Dan B. Dobbs, 2 Law of Remedies § 8.1(4), 381 (2d ed 1993). Defendant refers to the author‘s equally important description of the difficulty of conceptualizing damages for that kind of harm:
“There is no clear legal or even medical conception of pain. Even so, courts not only award damages for it but often say that these damages are compensatory in nature. Yet it seems clear that damages for pain and suffering are not compensation in any ordinary sense in that they make the plaintiff whole or replace what has been lost, since the damages are not pecuniary and since there is no market in pain and suffering by which the damages could be estimated.”
Id. at 382. And Dobbs concludes by emphasizing the absence of any meaningful standard for measuring noneconomic damages:
“Because the award for pain does not reflect economic loss, it is difficult to establish workable standards of measurement. ** * The result is that there is almost no standard for measuring pain and suffering damages, or even a conception of those damages or what they represent. Courts hаve usually been content to say that pain and suffering damages should amount to ‘fair compensation’ or a ‘reasonable amount,’ without any more definite guide.”
Id. at 383.
The absence of any standard for measuring noneconomic damages is made explicit in Uniform Civil Jury Instruction 70.02, which was given in this case. After summarizing the statute, the instruction goes on to say: “The law does not furnish you with any fixed standard by which to measure the exact amount of noneconomic damages. However, the law requires that all damages awarded must be reasonable. You must apply your own considered judgment, therefore, to determine the amount of noneconomic damages.”
In contrast to many other jurisdictions, the procedure of remittitur that allows an excessive verdict to be reduced by the trial court or resubmitted to the jury is not available in Oregon. State ex rel Young v. Crookham, 290 Or 61, 68, 618 P2d 1268 (1980). Indeed, the only limit on noneconomic damages is the amount pled in the complaint. See
Not surprisingly, given the absence of any standard or measure, “verdicts vary enormously, raising substantial doubts whether the law is evenhanded in the administration of damages awards or whether in fact it merely invites the administration of biases or against individual parties.” Dobbs, 2 Law of Remedies § 8.1(4) at 398-99. See also Blumstein et al, Beyond Tort Reform: Developing Better Tools for Assessing Damages for Personal Injury, 8 Yale J on Reg 171, 172 (1991). The same absence of any standard for measuring noneconomic damages also means that an appellate court is simply unable to review any jury award of noneconomic damages. As long as there is some evidence in the record that the plaintiff “subjectively” experienced “pain, mental suffering, or emotional distress” as a result of defendant‘s tortious conduct, an award of noneconomic damages is essentially unreviewаble because there is simply no basis to “verify” the award or any “objective” standard against which to measure it.
Noneconomic damage awards have been described as an example of “incoherent” judgments, because, although we hope that “the similarly situated are treated similarly,” plaintiffs receiving such awards typically are not. Cass R. Sunstein et al, Predictably Incoherent Judgments, 54 Stan L Rev 1153, 1154 (2002). Contributing to the arbitrariness of such judgments are many factors, including that a jury hears the facts of the case before it in isolation from other cases, id. at 1156, rather than being presented with the patterns of behavior of multiple defendants or the pain and suffering of multiple injured persons. At most, juries and other decisionmakers may assess damages based on the category of cases into which they place the case before them—slip and fall, medical malpractice, personal injury caused by a drunk driver. Those informal categories, however, are strongly influenced by the lawyers’ framing of the case. A category‘s boundaries are fuzzy, id. at 1172, and “category-bound” thinking leads to decisions that are inconsistent.4 Id. at 1173.
And noneconomic damages—again in contrast to economic damages based on verifiable losses—are particularly susceptible to “anchoring,” the well-documented phenomenon that jury awards are heavily influenced by the amount the plaintiff asks for, “simply because juries often have few other relevant dollar figures from which to begin.” Id. at 1168 (discussing punitive damages). Research on actual cases and in experimental settings makes clear that “the more you ask for, the
Despite the potential for incoherent and arbitrary noneconomic damages awards, however, I find nothing inherently wrong, as a purely legal matter, with those results.6 Every day we trust juries to make difficult and consequential decisions in criminal and civil cases. Jurors must follow the court‘s instructions on the law, of course, but we also value their understanding of community norms, while recognizing the potential for explicit and implicit bias. And we give great weight to jury determinations on matters where standards of review are vague or, as here, essentially nonexistent.
But precisely because noneconomic damages in individual cases are explicitly and inherently “subjective” and receive only the most limited judicial review and, viewed more generally, may be incoherent and arbitrary, it seems to me that the legislature might well choose to exercise its plenary authority over the civil justice system to regulate those damages in some way. Many states have imposed caps on noneconomic damages, while other states have none.7 Some states cap noneconomic damages only, or at a different level, for medical malpractice cases. And a number of states have constitutional provisions that explicitly prohibit statutory damage caps. As noted previously, Oregon had no general damage cap on common-law negligence claims until 1987 when it imposed the cap on noneconomic damages. The legislature could decide at any time that a cap is no longer appropriate and eliminate the cap. Or it could raise the existing $500,000 cap. Indeed, the legislature has considered raising the current cap a number of times, most recently in the last legislative session where it was proposed that the cap be increased to $1.5 million and that a mechanism be added for changes based on cost of living; however, that measure was ultimately rejected. House Bill 2014 A-Engrossed (2019).
The summary above indicates that the existence and structure of caps on noneconomic damages is a topic of substantial policy interest across the country. There are reasonable policy arguments against imposing a cap on noneconomic damages, because those damages provide an added deterrent (in addition to economic damages) to negligence or other misconduct by defendants and also because economic damages may not fully compensate for injuries suffered by some plaintiffs. See Lucinda M. Finley, The Hidden Victims of Tort Reform: Women, Children and the Elderly, 53 Emory LJ 1263, 1281 (2004); Joanna M. Shepherd, Tort Reforms’ Winners and Losers: The Competing Effects of Care and Activity Levels, 55 UCLA L Rev 905, 946 (2008). Even some writers with a narrow economic focus conclude that the usual criticisms of awarding damages for pain and suffering are “unsound,” because those losses impose opportunity costs and “[p]eople will pay to avoid them and will demand payment to risk incurring them.”
But, as discussed above, there are also reasonable arguments that noneconomic damages awards can be arbitrary and unfair, because they turn entirely on the “subjective, nonmonetary” losses of the plaintiff as assessed by the jury, and cannot be objectively verified, in contrast to economic damages. That fact makes noneconomic damages unpredictable and potentially discriminatory based on race, gender, and other characteristics of the plaintiff. Such awards, it can be argued, undermine the core legal principle that like cases be treated alike, Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 Hofstra L Rev 763, 769 (1995), and raise equal protection and due process concerns. See also Joseph H. King, Jr., Pain and Suffering, Noneconomic Damages, and the Goals of Tort Law, 57 SMU L Rev 163, 185 (2004) (subjective nature of noneconomic damages makes them “highly variable, unpredictable, and abjectly arbitrary“); Neil Vidmar, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 Duke LJ 217, 254 (1993) (juror interviews reveal noneconomic damages based on arbitrary factors, including multiples of medical expenses).
My point is not that a cap on noneconomic damages is a bad idea or a good one. Rather, it is that the nature of noneconomic damages, as outlined above, makes them quite different from economic damages. Courts are particularly ill-equipped to review or set limits on noneconomic damages, and we should not do so. And those realities, I think, should be recognized in our remedy-clause analysis by giving the legislature more leeway to regulate noneconomic damages than we have given it in limiting economic damages, which are inherently limited to objective evidence of monetary losses presented at trial.
The legislature, acting through the usual lawmaking processes and considering policy arguments for and against noneconomic damages, should be able to decide whether to retain the cap that it imposed in 1987, increase the cap, or eliminate it altogether. Or it could consider one of the other approaches to noneconomic damages that have been proposed or adopted elsewhere. See Dobbs, 2 Law of Remedies § 8.1(4) at 397-400. In Greist, we reviewed the reasons the legislature enacted the cap on noneconomic damages in the first place—and rejected the plaintiff‘s remedy-clause challenge. 322 Or at 297. In Lawson, the legislature barred a driver without insurance from recovering any noneconomic damages when injured in a motor vehicle accident—and, again, we found the legislature‘s reasons for enacting the statute sufficient, rejecting a remedy-clause challenge. 339 Or at 256. Even if we were to construe the remedy clause to prohibit any cap on economic damages in a case such as this—a question not before us—in my view, the very different nature of noneconomic damages permits the legislature to regulate in this area in order to advance policy interests that it deems to be important. The legislature did so in enacting the cap in
For those reasons, I respectfully dissent.
Landau, S. J., joins in this dissenting opinion.
Notes
“[O]bjectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.”
Noneconomic damages are defined by“[S]ubjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.”