Constitutionality of Non-Economic Damages – Appeal Update

In Amy C. Miller and Kevin Miller v. Carolyn N. Johnson, M.D., Docket No.99818, a physician removed the wrong ovary from a young mother during a surgical procedure to remove a diseased ovary. A jury awarded $400,000.00 in non-economic damages. The Court reduced the non-economic damage award to $250,000.00 pursuant to K.S.A. 60-19a02. An appeal was taken by plaintiff alleging the non- economic damage cap was unconstitutional. The case was extensively briefed by the parties and nu- merous amici.

Plaintiffs contend the cap is unconstitutional be- cause it:

1. violates their right to trial by jury
2. violates their guarantee of a remedy by due course of law
3. infringes upon the inherent and exclu- sive powers of the Kansas Supreme Court
4. violates the fundamental separation of powers
5. violates equal protection under the law. Plaintiffs further contend Samsel v. Wheeler Transport Ser- vices, Inc., 246 Kan. 336 (1990) (wherein the Kan- sas Supreme Court held K.S.A. 60-19a02 constitu- tional) was wrongly decided and did not address other constitutional issues.

Defendant contends the cap is constitutional because it:

1. does not violate the right to a jury trial, sepa- ration of powers, equal protection or remedy by due process of law
2. is reasonably necessary in the public interest to promote the general welfare of the public
3. provided a sufficient quid pro quo when enacted in 1988
4. Samsel is controlling precedent.

On October 29, 2009, the case was argued before the Kansas Supreme Court.

Following oral argument and while a decision was still pending, Chief Justice Davis sadly passed away leaving a vacancy on the court. Justice Lawton R. Nuss was subse- quently appointed to fill the role of Chief Justice and the Supreme Court Nominating Commission convened. Justice Nancy Moritz was chosen by the Commission and appointed by former Governor Mark Parkinson. Justice Rosen later recused himself from the decision and Senior Judge Knudson was chosen to sit in Justice Rosen’s place. With the appointment of a new Justice and Justice Rosen’s recusal, Chief Justice Nuss ordered re-arguments for Febru- ary 18, 2011. Each side was granted 90 minutes for argu- ment. As of this printing, an opinion has not yet been is- sued. Arguments can be heard at http://www.kscourts.org.