In 1987, the Oregon legislature passed ORS 18.560¹ which provided that “in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage 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.” In Lakin v. Senco Products Inc, 329 Or 62 (1999), the Supreme Court held that this cap on damages violated Article I Section 17 of the Oregon Constitution in personal injury actions. Over the years, plaintiffs have also tried to kill the cap on non-economic damages in wrongful death cases by beating it over the head with the Oregon Constitution. They consistently failed, but that did not stop them from trying. Perhaps the Supreme Court’s recent holding in Hughes v. Peacehealth, ___ Or. ___ (2008) will finally put the issue of the constitutionality of the cap on non-economic damages in a wrongful death case to rest.

     In Hughes, plaintiff brought an action against Peacehealth Medical Group after her daughter died while under its care. The jury awarded plaintiff $1 million in non-economic damages. The trial court applied what is now ORS 31.710 and reduced the award of non-economic damages to $500,000. Plaintiff appealed. The Court of Appeals affirmed the trial court, and the Supreme Court agreed to review the case. The Supreme Court affirmed the Court of Appeals. Its holding is a lesson not only in Oregon law, but also English common law and colonial and post-Revolutionary War American law. It is a fascinating read for history buffs but may be a bit dry for those whose interests tend to be more current. However, whether you are interested in history or current events, hopefully, the Supreme Court’s analysis will be the final chapter on the constitutionality of the cap as it is applied in wrongful death cases.

     The plaintiff challenged the cap based upon two provisions in the Oregon Constitution – Article I Section 10 and Article I Section 17. Article I Section 10 provides: “No court shall be secret, but justice shall be administered, openly and without purchase [i.e. no bribery allowed!], completely and without delay, and every man shall have remedy in due course of law for injury done him in his person, property or reputation.” The emphasized part is known as “the Remedy Clause” and was the portion of this section that was at issue in Hughes. Article I Section 17 provides: “In all civil cases, the right to Trial by Jury shall remain inviolate.”

     The constitutional challenge to the cap centered around one issue – in 1857 when Oregon’s constitution was written, did a claim for wrongful death exist at common law in Oregon²? And with that relatively simple question, the journey through history begins. In 1844, the provisional legislature adopted “the statute laws of the Iowa Territory” and “the common law of England and principles of equity, not modified by the statutes of Iowa or of this government, and not incompatible with its principles.” I found it a bit odd that of all the choices of law that Oregon had (such as adopting Massachusetts, New York, or Pennsylvania laws), Oregon chose the laws of the Territory of Iowa. The case does not discuss why this choice was made, and maybe someday, in my free time, I will do a little research and find out. If I do, I will let you know. In any event, plaintiff in Hughes argued that by adopting the English common law, Oregon also adopted Lord Campbell’s Act 9 & 10 Vict, ch 93 (1846) which provided that a decedent’s administrator had a right of action for the benefit of certain of the decedent’s relatives in cases of wrongful death. Plaintiff claimed that this argument was bolstered by the fact that up until 1848, the Oregon Territory was governed by both the United States and Great Britain which meant that the common law of England up until 1848 was incorporated in Oregon’s common law. Good argument, but according to the Supreme Court, incorrect. Instead, when Oregon adopted the English common law, it adopted the common law that existed “prior to the American Revolution.” Accordingly, Lord Campbell’s Act was not part of Oregon’s common law having been passed in 1848 more than 60 years after the end of the Revolutionary War. Poor Lord Campbell!

     Plaintiff next argued that a claim for wrongful death existed in American common law in 1857. Plaintiff pointed to several early American cases that, in plaintiff’s opinion, demonstrated that a claim for wrongful death was available in America prior to 1857. The cited cases are actually a sad commentary on our nation’s history because these cases dealt not with a claim for wrongful death but instead dealt with a slave owner’s “property rights” in his slaves. Plaintiff’s cited cases included: 1) Brunson v. Martin, 17 Ark 270 (1856) (master of slave entitled to bring action against overseer to recoup damages for value of slave who died as a result of overseer’s negligent handling of slave rebellion); and 2) Western v. Pollard, 55 Ky 315 (1855) (master of slave who drowned while employed by contractor could pursue common-law negligence action for value of slave’s services). The Supreme Court agreed that prior to 1857, it appeared that there was a “haphazard attempt” by courts in the United States to fashion some sort of remedy for a decedent’s survivors. However, before that “haphazard attempt” could coalesce into some sort of defined common law, legislatures stepped in and statutorily created a right to recover for wrongful death. Because there was no recognized right to recover for wrongful death at common law in 1857, the cap did not violate the Remedy Clause because that particular remedy did not exist when the Constitution was written.

     Much of the same analysis was used in examining Article I Section 17. Plaintiff argued that this portion of the Constitution prohibits a judge from applying the cap because to do so would violate plaintiff’s right to have a jury determine the amount of her damages, if any. In examining this clause, the court noted that a claim for wrongful death was statutorily created in Oregon in 1862. The legislature at that time capped recovery under that statute at $5,000. The court found it worth noting that no one in 1862, or thereafter, seemed to have a problem with a wrongful death claimant being limited to $5,000 in compensation. The court held that a wrongful death claim was not like a claim for personal injuries because the former was created by statute whereas the latter is a creature of the common law. Therefore, because the legislature created the claim, the legislature is free to change how much a person can recover under the statute.

     That should be the end of the story. However, as I was taught in law school many, many moons ago, we need to look at which judges decided this case. There are seven justices on the Oregon Supreme Court. Justice Carson and Justice Linder did not participate in this decision. Justice Durham and Justice Walters dissented. That means only three justices voted to affirm the Court of Appeals, making this a 3-2 decision. I have a feeling that plaintiffs’ attorneys will be watching the make up of the court and may well try to challenge the cap again once there are new justices on the bench. However, in the meantime and until further notice, a claimant in a wrongful death action is limited to $500,000 in non-economic damages.