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A bill to remove the $500,000 cap on non-economic damages for people who have been harmed by the negligence of others will have a public hearing in front of the House Committee on Judiciary tomorrow at 1:00 p.m.
Eliminating the gap is a top priority for victims rights advocates and the Oregon Trial Lawyers Association and will be a test of the strength of the Democratic super-majorities in both chambers. Business interests have been able to defeat past attempts to raise or remove the liability cap. But after Democrats gained seats in both chambers last year, the chance of of passing such legislation and delivering for a key progressive group, OTLA, increased.
OTLA says removing the cap is about fairness.
"There is an arbitrary, one-size-fits-all cap on what a jury can decide is fair when holding wrongdoers accountable," the group said in a statement. "The severely injured, paralyzed, disfigured, or traumatized will face the harshest effects, [and] survivors of sexual abuse, child abuse, elder abuse or other life-changing events causing long-term trauma will be impacted."
The new bill, House Bill 2014, is touching on an issue that has long been controversial in Oregon politics, and is a test for the Democratic supermajorities and whether they will overcome strong opposition from business interests to lifting the cap.
Democrats proposed as similar bill in 2017, HB 2807, but after passing the House, the bill died in the Senate. This time around, the chief sponsor, state Rep. Carla Piluso (D-Gresham) has garnered support from three Republican co-sponsors.
Non-economic damages include "physical pain, mental suffering, and emotional distress of change of lifestyle caused by someone's negligence." The cap applies to individuals and private businesses. It does not apply to the public sector.
Insurance companies argue that the bill would raise insurance premiums and dramatically increase the settlement value of "subjective damages," those not easily defined because they are difficult to quantify.
Supporters of the bill argue that a $500,000 cap means that defendants can inflict pain and suffering without repercussion, since they won't face multi-million dollar lawsuits. They also argue it threatens Oregonian's rights to trial by jury.
The issue of non-economic damage caps dates back to the 1980s, when critics argued that jury verdicts, which sometimes awarded large sums of money to victims of negligence, were driving up insurance premiums. In 1987, the Oregon Legislature established the non-economic damages cap.
It remained in place until 1999, when—in Lakin v. Senco Products—the Oregon Supreme Court found that the cap violated Article 1 Section 17 of the state constitution, the right to a trial by jury. The $500,000 cap was ruled unconstitutional.
Until 2016, that is.
The Oregon Supreme Court reversed the decision from Lakin v. Senco Products after hearing Horton v. OHSU. Horton, an 8-month-old child, was subject to medical negligence by OHSU surgeons during liver surgery, nearly killing him. The jury awarded $12 million in damages to the 8-month-old.
Half of the money was for economic damages, while the other half was for non-economic damages. The Oregon Supreme Court applied the $500,000 cap to the non-economic damages.
