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Oregon Supreme Court Reverses Pain and Suffering Economic Damages Cap in Personal Injury Suits


In a 5-2 ruling, the Oregon Supreme Court struck down a state law that limited noneconomic damages in personal injury cases to $500,000, declaring the statute unconstitutional given that it violates the legal remedy clause of the Oregon Constitution.

The court’s ruling found that the statute capping noneconomic damages such as pain and suffering deprived individuals their rights to have access to the court system. Their decision affirmed a lower appeals court’s reversal of a trial court ruling which reduced a $10.5 million noneconomic damages award to a plaintiff who sustained catastrophic injuries after being run over by a garbage truck.

The plaintiff, Scott Busch, sued waste management company McInnis Waste Systems Inc. following a 2015 near-fatal accident which occurred in Portland. Busch was crossing the street with the “walk” signal highlighted when an Allied Waste Services truck reportedly made an illegal right turn. The accident caused Busch’s leg to be amputated above the knee. The company conceded liability following a damages trial in 2016, at which time a jury awarded Busch $3 million in economic damages and $10.5 million in noneconomic damages.

In 2018, Multnomah County Judge, Michael Greenlick, ruled the original damages award far exceeded what was allowed under state law, and reduced the $10.5 million noneconomic damages portion to $500,000 (while allowing the $3 million award for Busch’s financial losses to stand). Greenlick called the reduced $3.5 million award for both economic and noneconomic damages “a substantial sum.”

But on Thursday the Oregon Supreme Court ruled the cap Judge Greenlick cited in his 2018 decision — enacted by the state’s legislature in 1987 — violated Oregonians’ constitutional right to access a fair remedy via the courts for any injuries they may sustain.

“The Legislature must act for a reason sufficient to counterbalance the substantive right that [the remedy clause] grants,” Chief Justice Martha L. Walters wrote for the majority. “That right assures that people who are injured in their person, property or reputation have a remedy for those injuries. Oregon law has long recognized and protected that substantive right.”

In the decision the justices referenced their 2016 ruling in Horton v. OHSU, which found that a provision of the Oregon Tort Claims Act capping total damages at $3 million was constitutional. The majority declared the OTCA cap satisfactorily passed constitutional scrutiny because the OTCA offers a quid pro quo benefit. Said benefit allows injured parties the opportunity to sue governmental entities that had been previously deemed immune to lawsuits.

“Unlike the Oregon Tort Claims Act … ORS 31.710(1) does not expressly confer a benefit on injured persons,” the majority stated. “The benefits that ORS 31.710(1) is intended to confer are benefits that are intended to inure to society in general as opposed to injured persons in particular.”

In a dissent, Justice Thomas A. Balmer asserted the cap to be constitutional in light of the majority’s reasoning being “inconsistent” with the Horton ruling.

“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,” Balmer said. “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.”

In its ruling, the court made specific mention that its reversal decision is limited to circumstances that this particular case involving plaintiff Scott Busch provided. Moreover, the court noted it expressed no opinion as to whether or not damages caps in other cases comply with the section of the Oregon constitution in question.