Power is given back to the jury on Pain and Suffering

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Last month (June), in Hilburn v. Enterpipe, LTD, the Kansas Supreme Court ruled favorably to protect the citizens of  the State of Kansas by again applying the Quid Pro Quo rule to strike the pain and suffering cap in Kansas.   Many people do not realize that many states put a cap on how much can be claimed in pain suffering.    Many courts are now finding such caps unfair and a violation of due process or an inadiquate remedy.   In Kansas, the cap on pain and suffering was found in K.S.A. 60-19a02.    This statute caped pain and suffering at $250,000 and only recently was amended to give somewhat trivial increases with inflation up to capping again at 350,000 starting in 2020.   Claims for 2019 had been increased to $325,000.    We assume it was the legislatures intention to leave the cap indefinitely at $350,000 regardless how horrific the injury would be.

The caps on pain and suffering were at the push of tort reform by insurance companies to put limits on what they would pay on claims.     The idea being that the caps would stop the so called frivolous claim.   But, in reality, what the caps did was take away the ability of seriously injured person to claim pain and suffering that many juries would give them for certain injuries.    In other words, a person who had a leg painfully torn from their body in auto accident and lived to see and endure said pain were not able to receive damages from jury in excess of what is stated in K.S.A. 60-19a02.    Another cruel aspect of the statute was that the jury was not told their verdict was limited by K.S.A. 60-19a02.   

In other words, since a jury was not told, a jury could give a verdict to the example in preceding paragraph of a million dollars in pain and suffering caused by the trauma of living through an accident where their leg is ripped from their body.    Such a verdict would also consider the rehab of the severed leg and all that the trauma involved of overcoming it.    One can easily see we think why a jury would award a million dollars for such pain, such suffering, and such anguish.    In short, who would want to endure such an injury?    A million dollars would not replace the leg or the memories of the accident.     Herein lies the problem with K.S.A. 60-19a02.    The statute does not stop frivolous claims.     All it does is punish people with really bad injuries.   It stops juries a from awarding what people with such injuries are entitled to receive.

That seems to be the gist of the holding of Hilburn v. Enterpipe.     In short, a jury should determine what is frivolous, not the legislature.   The jury of peers should decide what case is worth with a judge correctly instructing the law to said jury.    Further, in reality, all the cap did was protect the insurance companies and allowed them to avoid paying paining damages that would otherwise be owed.   It was simply cost saving tool and did little to provide any tort reform. We believe the Kansas Supreme Court saw through the fake guise of K.S.A. 60-19a02 and was right to give control back to the juries.    This is a power to the people type of decision.    We agree whole heartedly that juries exist to award damages when they are warranted and to deny damages when they are not warranted.    The decision is correct.