The Court of Appeals has held that caps on non-economic damages in non-medical malpractice cases remain constitutional.
Non-economic damages most often include compensation for pain and suffering, but they can also include compensation for emotional distress and loss of enjoyment of life.
Caps on damages are a hotly contested topic in personal injury cases. In Missouri, in what some have termed “radical tort reform,” Republicans in 2005 lowered non-economic damages substantially — to a total of $350,000 and applied the cap to the total amount owed by all defendants, rather than against each defendant for each act of negligence as had been permitted under the old law. Missouri’s top court later ruled 4-3 that a state law placing limits on the amount a jury can award for non-economic damages in medical malpractice lawsuits was unconstitutional. Supporters attempt to justify caps by citing a concern for rising malpractice premiums and that doctors will prefer to provide medical care in states that do not have damage caps. Critics say that damage caps means that juries no longer have the last word in awarding what they believe is fair compensation for emotional distress and other losses caused by an injury.
More recently, a coalition of California personal injury attorneys, consumer advocates and a nurses’ union have started a movement in the Golden State to get damage caps on a state ballot that would allow consumers to vote whether to keep caps or to get rid of them.
Maryland’s Court of Appeals recently grappled with the question of whether caps on non-economic damages in cases alleging wrongful death violate the state’s constitutional guarantees of equal protection, due process and right to a jury trial in Dixon v. Ford Motor Company.
Joan Dixon contracted mesothelioma from which she eventually died. Mesothelioma is a cancer in the lining of the lung.
As the court noted in its opinion: That the mesothelioma was caused by her exposure to asbestos is not in dispute. The principal issue here is, whose asbestos? There were two possible culprits – asbestos-laden dust from brakes manufactured by Ford Motor Company that Ms. Dixon’s husband, a part-time auto mechanic, brought home on his clothes and asbestos possibly contained in a compound manufactured by Georgia-Pacific Corp. that the Dixons used in building their home, in home improvement projects, and in building an adjacent structure.
The Dixons filed suit against Ford and Georgia-Pacific in the Circuit Court for Baltimore City, claiming negligence in failing to warn Ms. Dixon of the danger lurking in the products. Mr. Dixon continued the action as personal representative of her estate after his wife’s death in 2009; and, along with the couple’s four daughters, pursued a wrongful death action.
After a 12-day trial, the jury concluded that the only substantial contributing factor in causing Ms. Dixon’s death was the dust from the Ford brake products. On that finding, it returned substantial verdicts in favor of Mr. Dixon and his daughters against Ford and denied a cross-claim by Ford against Georgia-Pacific. All of the jury’s awards were for non-economic damages. The total was $15 million — $5 million to Mr. Dixon, as personal representative of his wife’s estate; $4 million to Mr. Dixon on his wrongful death claim and $1.5 million to each of the four daughters on their wrongful death claims. But, because of the state’s caps on damages, the wrongful death awards were reduced to $426,000 for Mr. Dixon and $159,750 for each of the daughters.
Maryland law limits the damages for non-economic loss in a personal injury or wrongful death action. Section 11-108(b)(3)(ii) of the Courts and Judicial Proceeding Article provides that, in a wrongful death action in which there are two or more claimants, an award for non-economic damages may not exceed 150% of the limitation established under Section 11-108(b)(2), regardless of the number of claimants or beneficiaries who share in the award.
The court expressed its disagreement with the jury’s conclusion that the Georgia- Pacific compound was not also a substantial contributing factor and entered judgment for Ford on its cross-claim against Georgia-Pacific.
Both the Dixons and Ford appealed the decision to the Court of Special Appeals. Several issues were raised, but only one was addressed – the opinion evidence by the plaintiffs’ principal expert, Dr. Laura Welch, that every exposure to asbestos, including the short fiber chrysotile asbestos contained in the Ford brake products, increased the likelihood of contracting mesothelioma and thus constituted a substantial contributing cause of that disease. Based on what the intermediate appellate court believed was a “settled scientific theory of causation” known as “probabilistic causation,” the court held that Dr. Welch’s opinion was not helpful to the jury and that the trial court abused its discretion in allowing it into evidence. The court reversed the judgments entered in favor of the plaintiffs and remanded the case for a new trial.
The Court of Appeals decided to hear the case. One of the issues it examined was the question: Does Maryland law violate federal and state equal protection principles in capping an award for non-economic damages to multiple claimants in a wrongful death action at 150% of the maximum amount of non-economic damages that may be awarded to an individual in such an action?
The court discussed the history of Section 11-108 in deciding that the cap was constitutional. “We find no violation of equal protection, due process, the right to jury trial, or Art. 19, and thus sustain the reductions made by the trial court,” the Court of Appeals said.
The 150% cap does not intrude on the jury’s right to determine the relative degree of harm suffered by the individual claimants; nor does it create irrational classifications among the claimants, the court said. The statute merely sets a limit on the gross amount of non-economic damages that may be awarded, under the wrongful death law, is then divided proportionately as determined by the jury. That is precisely what was done here, the court noted. Each daughter, who was awarded 15% of the gross award by the jury, received 15% of the net amount under the cap; the surviving husband received 40% – the percentage the jury determined he should receive. The fashioning of such a cap in wrongful death actions is no more odious or unlawful than the imposition of caps in non-death personal injury actions, the court observed.
Editor’s Note: It is interesting to note a few things about the Fordopinion. First, that the court revisited the issue of the cap’s constitutionality despite its prior ruling in a 1992 case, Murphy v. Edmonds, where it reached the same conclusions on the cap’s constitutionality. The court’s review of the equal protection argument presented by the plaintiffs in Ford suggests its willingness to revisit prior opinions against the backdrop of changed public policy and/or new facts or arguments. Second, the court’s analysis in Ford begs the question as to whether Maryland’s cap on non-economic loss in medical malpractice claims, which is significantly different in its language and its application, is constitutional.
The malpractice cap was enacted by the Maryland General Assembly in response to claims by physicians and their insurers that a malpractice claims crisis was forcing insurance hikes and would cause doctors to leave the state. In response, the Maryland Malpractice Claims Act, which sets special rules and procedures for malpractice actions, was amended to add a new and different cap on non-economic loss which at first appeared to lower from 150% to 125% the amount of non-economic losses recoverable by heirs bringing wrongful death claims.
What appeared to plaintiffs’ lawyers as a modest 25% reduction from the non-malpractice cap discussed in Ford, however, has turned out to be a much greater reduction due to the language in the malpractice cap that limits all claims of any type brought by any party to 125% of the underlying cap on the decedent’s claim. To illustrate the disparity, consider the result in an automobile death case versus a malpractice death case where the jury awards the decedent $600,000 for pre-death pain and suffering, a/k/a non-economic loss:
Auto Death Case
Decedent’s Non-economic Award: $ 600,000
Next of Kin’s Maximum Award: $ 900,000
(150% of $600k for all wrongful death claims)
Total Non-economic Damages $1,500,000
Malpractice Death Case
Decedent’s Non-economic Award: $ 600,000
Next of Kin’s Maximum Award: $ 150,000
(125% of $600k for all claims of any type (which includes underlying decedent’s claim)).
Total Non-economic Damages: $ 750,000
As the illustration demonstrates, a malpractice case for non-economic loss has a maximum value of 50% compared to a non-malpractice case for the exact same injury and losses. Personal injury cases of differing types do not deserve differing damage caps that are so dramatically different in limiting damage recoveries. Even under the rational relationship test for assessing a law’s intrusion into due process and equal protection, it is clear the laws are disparate in their effect and not rationally related to a need to relieve medical providers of exposure to non-economic damages to a far greater extent than other personal injury defendants who cause death to others. The malpractice cap must be challenged on constitutional grounds for this reason alone.
Baltimore, Maryland-based Belsky, Weinberg & Horowitz has been fighting for the victims of medical malpractice and negligence for many years. We will continue to fight for the rights of our clients and will challenge unfair and unjust lawyers when the opportunities present. Call us at 410-234-0100 or email us for a free consultation and let us help you.