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Summary of the June 14, 2019, Kansas Supreme Court Opinion, Hilburn v. Enerpipe, Ltd.

On June 14, 2019 the Kansas Supreme Court (“the Court”) issued its opinion in Hilburn v. Enerpipe LTD., Opinion No. 112,765.  In the Hilburn decision, the Court struck down the statutory Cap on non-economic damages in personal injury cases set forth in K.S.A. 60-19a02 (“the Cap”).  Significantly, Hilburn was a “split” decision.  That is, four justices (“the Hilburn Court” ruled the Cap violates the right to trial by jury in Section 5 of the Kansas Constitution Bill of Rights. Section 5 states, “[t]he right of trial by jury shall be inviolate.” One of those four justices wrote his own rationale for joining in the decision.  Two justices dissented, i.e., did not agree with the “majority’s” position.  One justice did not participate in the decision.  Interestingly, in a June 14, 2019, Kansas Courts News Release from the Office of Judicial Administration, the Public Information Director for the Kansas Courts stated that the Court struck down the Cap, “. . . in personal injury cases other than medical malpractice actions . . . .”

Briefly stated, Section 5 preserves the right to a jury trial in those causes of action that were triable to a jury under the common law that existed when the Kansas Constitution was ratified in 1859. However, as recently as 2012, in Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), the Court upheld the application of the Cap to a jury’s award in a medical malpractice lawsuit in spite of plaintiff’s constitutional challenges under Section 5 and Section 18 of the Kansas Constitution Bill of Rights.

The Miller Court applied the quid pro quo test in reaching the 2012 decision in analyzing both the challenge under Section 5 and the challenge under Section 18.  Under the quid pro quo test, the Legislature can modify a common-law right so long as (1) the modification is necessary in the public interest to promote the public welfare, and, (2) the Legislature has substituted an adequate statutory remedy for the modification of the rights at issue.  The Miller Court reasoned that the construct of the Kansas Health Care Provider Insurance Availability Act (K.S.A. 40-3401 et seq.), with provisions such as mandatory liability insurance, was an “adequate and viable substitute” for the Cap’s modification of the Section 5 right to trial by jury and the right to remedy under Section 18.

The Hilburn Court, in this auto-truck accident case, changed course from its earlier decision in Miller.  The Hilburn Court refused to apply the doctrine of “stare decisis.”  Under the doctrine of stare decisis, courts use prior rulings as a guide in deciding similar issues that come before the court later.  Discounting the applicability of stare decisis, the Hilburn Court ruled that the quid pro quo test did not apply when evaluating Section 5 constitutional challenges to legislation, even though it had arrived at the opposite conclusion in Miller.  The Hilburn Court essentially “abandon[ed] the quid pro quo test for analyzing whether the noneconomic damages cap is unconstitutional under Section 5 of the Kansas Constitution Bill of Rights.” 

According to the Hilburn Court, the Cap “necessarily infringes on the constitutional right” in Section 5.  The Cap substitutes “juries’ factual determinations of actual damages with an across-the-board legislative determination of the maximum conceivable amount of” noneconomic damages.  The Hilburn Court stated that “[t]he [C]ap’s effect is to disturb the jury’s finding of fact on the amount of the award.  Allowing this substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment.  The people deprived the Legislature of that power when they made the right to trial by jury inviolate.”

KAMMCO, in concert with the Kansas Medical Society and the Kansas Hospital Association, is studying the Hilburn decision to determine its application to medical malpractice actions and its implications for health delivery and access to quality care for Kansans.

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