OR Case Update: The Return of the Tort Cap! Part Two: The Application of the Remedy Clause

From the desk of Jeff Eberhard: In a prior case update, we discussed the Oregon Supreme Court’s holding in Horton v. OHSU that because the right to a jury trial under Article I, section 17, of the Oregon Constitution was “procedural” rather than “substantive,” the legislature could define the elements of a claim or the extent of damages available for a claim.  Thus, the legislature’s limit to claims for personal injury was constitutional under Article I, Section 17.  However, the Court also indicated that such a cap may violate the right to a remedy under Article I, Section 10, of the Oregon constitution.  See the discussion below regarding the Court’s analysis of the remedy clause of Article I, section 10.

Claims Pointer: After years of cases predominantly finding tort caps to be unconstitutional, the Oregon Supreme Court held in this case that the Oregon Tort Claims Act’s (OTCA) cap on damages was constitutional.  While this case specifically addresses the tort cap for public bodies, it does provide for the application of Oregon’s $500,000 limit on noneconomic damages in personal injury cases.  However, the Court determined that because the Oregon Constitution preserves a citizen’s right to a remedy in the remedy clause of Article I, section 10, there are limits to the application of a tort cap.  Specifically, the resulting remedy cannot be a “paltry fraction” of the damages sustained by the plaintiff.  Whether applying the cap in a particular case is constitutional under the remedy clause is to be determined on a case-by-case basis.  However, from prior case law, we know that reducing an award by roughly 60% ($507,500 in total damages reduced to the OTCA cap of $200,000), is acceptable, while reducing an award by nearly 99% ($17,000,000 in total damages, $12,000,000 of which was economic, reduced to $200,000) is not acceptable.

Horton v. OHSU, 359 Or 168 (2016).

The facts of this medical malpractice case were discussed in our

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