Avoiding the Appearance of Impropriety: Missouri and Kansas Supreme Court Decisions on the Constitutionality of Caps on Noneconomic Damages Demonstrate the Need for Objective Procedures in the Selection of Special Judges

By Clark, Stephen R. | Albany Law Review, Summer 2014 | Go to article overview

Avoiding the Appearance of Impropriety: Missouri and Kansas Supreme Court Decisions on the Constitutionality of Caps on Noneconomic Damages Demonstrate the Need for Objective Procedures in the Selection of Special Judges


Clark, Stephen R., Albany Law Review


In 2012, the supreme courts of Missouri and Kansas staked out opposing positions on the constitutionality of statutory caps on noneconomic damages in personal injury cases. Analysis of the two cases demonstrates the need for objective procedures for selecting temporary, or "special," judges when a member of a court of last resort is absent. This article first reviews the cases and then examines the implications of the fact that special judges cast crucial votes in both cases. The article calls for the institution of objective procedures for temporary judicial appointments.

In July 2012, the Supreme Court of Missouri overruled a twenty-year-old precedent when it held in Watts ex rel. Watts v. Lester E. Cox Medical Centers (1)--a four-to-three decision--that a statutory cap on noneconomic damages in medical malpractice cases violated article I, section 22(a) of the Missouri Constitution's right to trial by jury. (2) A few months later, in Miller v. Johnson, (3) the Kansas Supreme Court upheld Kansas's statutory cap on noneconomic damages in personal injury cases, including medical malpractice cases, as constitutional. (4) Specifically, the Kansas Supreme Court held that the cap does not violate sections 5 and 18 of the Kansas Constitution's Bill of Rights providing a right to a jury trial and a

right to damages, respectively. (5)

I. MISSOURI: WATTS EX REL. WATTS V. LESTER E. COX MEDICAL CENTERS

A. Facts

The plaintiff in Watts ex rel. Watts v. Lester E. Cox Medical Centers alleged that the defendants' medical malpractice caused disabling brain injuries to a newborn. (6) The jury returned a verdict in favor of the plaintiff and awarded $1,450,000.00 in noneconomic damages and $3,371,000.00 in future medical damages. (7) The trial court entered judgment reducing the noneconomic damages award to Missouri Revised Statute section 538.210's $350,000.00 cap. (8) Lodging several state constitutional challenges to section 538.210's cap, including that it violated the Missouri Constitution's right of trial by jury, the plaintiff appealed. (9) The respondents argued that the Supreme Court of Missouri's 1992 decision in Adams v. Children's Mercy Hospital, holding that section 538.210's statutory cap on noneconomic damages did not violate the state constitutional right to a trial by jury, controlled. (10)

B. Constitutional Right to Jury Trial

Article I, section 22(a) of the Missouri Constitution provides "[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate[.]" (11) The Watts court explained that this provision "requires analysis of two propositions to determine if the cap imposed by section 538.210 violates the state constitutional right to trial by jury." (12) First, the court had to determine "whether [the] medical negligence action and claim for non-economic damages is included within 'the right of trial by jury as heretofore enjoyed.'" (13) "'[H]eretofore enjoyed' means that '[c]itizens of Missouri are entitled to a jury trial in all actions to which they would have been entitled to a jury when the Missouri Constitution was adopted' in 1820." (14) Expounding, the court stated, "[i]n the context of this case, the scope of that right also is defined by common law limitations on the amount of a jury's damage award." (15) Thus, "if Missouri common law [in 1820] entitled a plaintiff to a jury trial on the issue of noneconomic damages in a medical negligence action ..., [the plaintiff] has a state constitutional right to a jury trial on her claim for damages for medical malpractice." (16) Second, the court had to determine whether application of section 538.210's cap on noneconomic damages left the right to a jury trial "inviolate." (17)

Analyzing the first proposition--whether the plaintiff had a right to a jury trial--the Watts court assessed the state of Missouri common law (and the English common law upon which it was based) at the time of the adoption of the Missouri Constitution in 1820. …

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