Busch v. McInnis Waste Sys., Inc.

366 Or. 628

468 P.3d 419

Scott Raymond BUSCH, Respondent on Review,andDeanne Marie Busch, Plaintiff,

v.MCINNIS WASTE SYSTEMS, INC., Petitioner on Review.

CC 15CV13496 (SC S066098)

Supreme Court of Oregon.

Argued and submitted January 15, 2020.

July 9, 2020

Julie A. Smith, Cosgrave Vergeer Kester LLP, Portland, argued the cause and filed the briefs for petitioner on review.

W. Eugene Hallman, Hallman Law Office, Pendleton, and Paulson Coletti, Portland, argued the cause and filed the brief for respondent on review.

Janet Schroer, Hart Wagner LLP, Portland, and Cary Silverman, Shook, Hardy & Bacon, L.L.P., Washington DC, filed the brief for amici curiae Chamber of Commerce of the United States of America, American Tort Reform Association, American Property Casualty Insurance Association, Medical Professional Liability Association, and Coalition for Litigation Justice, Inc.

Hillary A. Taylor, Keating Jones Hughes, P.C., Portland, filed the brief for amici curiae Oregon Medical Association, American Medical Association, and American College of Obstetricians and Gynecologists.

Sharon A. Rudnick, Harrang Long Gary Rudnick P.C., Portland, filed the brief for amici curiae Oregon Liability Reform Coalition and National Federation of Independent Business. Also on the brief was Susan Marmaduke.

Nadia H. Dahab, Portland, Travis Eiva, Eugene, and Kathryn Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Landau, Senior Judge, Justice pro tempore.^**

WALTERS, C. J.,

In this personal injury action, we consider, for the first time since this court re-examined the remedy clause of Article I, section 10, of the Oregon Constitution in Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016), the constitutionality of a statutory cap on the damages that a plaintiff may recover for injuries resulting from a breach of a common-law duty. Here, plaintiff brought a personal injury claim for damages against defendant, a private entity, and, pursuant to ORS 31.710(1), the trial court reduced the noneconomic damages that the jury awarded—$10,500,000—to the maximum amount permitted by statute—$500,000. The Court of Appeals held that, as applied to plaintiff, the cap violated the remedy clause of Article I, section 10, of the Oregon Constitution and reversed. Busch v. McInnis Waste Systems , Inc. , 292 Or. App. 820, 824, 426 P.3d 235 (2018). We affirm the decision of the Court of Appeals and reverse the decision of the circuit court.

FACTUAL BACKGROUND

Plaintiff had the right-of-way and was walking across a crosswalk in downtown Portland when defendant's garbage truck struck him. By the time the truck stopped, plaintiff's leg was under the truck and attached to his body by a one-inch piece of skin. Plaintiff was fully conscious and alert, and he experienced tremendous pain. Plaintiff had surgery to amputate his leg just above the knee. He has undergone extensive rehabilitation and therapy, but the injuries that plaintiff suffered will affect him for the rest of his life.

Plaintiff filed this action against defendant, a private entity. Defendant admitted liability; the only issue for the jury was the amount of damages to be awarded. The jury determined that plaintiff had sustained, and will sustain, economic damages of $3,021,922 and noneconomic damages of $10,500,000. Defendant subsequently moved to reduce plaintiff's noneconomic damages award to $500,000, in accordance with the cap on noneconomic damages provided in ORS 31.710(1). Plaintiff countered by arguing that, under Article I, section 10, the cap is unconstitutional both on its face and as applied to plaintiff. The trial court agreed with defendant, granted its motion, and entered judgment accordingly.

Plaintiff appealed, and the Court of Appeals reversed, relying on its decision in Vasquez v. Double Press Mfg., Inc. , 288 Or. App. 503, 406 P.3d 225 (2017), aff'd on other grounds , 364 Or. 609, 437 P.3d 1107 (2019).¹ Busch , 292 Or. App. at 824, 426 P.3d 235. In Vasquez , the Court of Appeals also was faced with the question of whether the damages cap imposed by ORS 31.710(1) could survive a remedy-clause challenge, and the court began its analysis by reviewing this court's decision in Horton . Vasquez , 288 Or. App. at 505, 406 P.3d 225. The Court of Appeals took from Horton what it considered to be the applicable test for determining whether a damages cap could survive a remedy-clause challenge and considered " ‘the extent to which the legislature has departed from the common-law model measured against its reasons for doing so.’ " Id. at 524, 406 P.3d 225 (quoting Horton , 359 Or. at 220, 376 P.3d 998 ). In Vasquez, the Court of Appeals noted that, "under the common-law model, plaintiff would have been entitled to recover his noneconomic damages, not subject to any cap," and that

"[t]he legislature [had] departed fairly dramatically from that model by placing a hard cap on the amount of noneconomic damages a plaintiff may recover—a cap that was placed in 1987 and has not since been revisited—with no mechanism for adjustment for the changing value of money or for adjustment based on the relative severity of the injuries sustained by a plaintiff."

Id. at 524-25, 406 P.3d 225. The legislature had done so, the court said, to " ‘put a lid on litigation costs, which in turn would help control rising insurance premium costs for Oregonians.’ " Id. at 525, 406 P.3d 225 (quoting Greist v. Phillips , 322 Or. 281, 299 n. 10, 906 P.2d 789 (1995) ). The court then concluded "that the legislature's reason for enacting the noneconomic damages cap—which was not concerned with injured claimants—cannot bear the weight of the dramatic reduction in noneconomic damages that the statute requires for the most grievously injured plaintiffs." Id. The court explained that the plaintiff had been "grievously injured" and, if the damages cap imposed by ORS 31.710(1) applied, the plaintiff would receive only $1,839,090 out of the $6,199,090 that the jury had awarded—"only a ‘paltry fraction’ of the damages that he sustained and would otherwise recover." Id. at 525-26, 406 P.3d 225. The court held that such a "bare reduction in plaintiff's noneconomic damages without any identifiable statutory quid pro quo or constitutional principle that the cap takes into consideration" violated the remedy clause as applied to the plaintiff's case. Id. at 526, 406 P.3d 225.

As noted, this case came to the Court of Appeals after it had decided Vasquez , and the court determined that the two were indistinguishable. Busch , 292 Or. App. at 824, 426 P.3d 235. Accordingly, the court reversed the decision of the trial court reducing plaintiff's damages to $3,521,922 and directed the trial court to enter a judgment consistent with the jury's damages award. Id. at 824-25, 426 P.3d 235. Defendant sought, and we allowed, review.

THE PARTIES’ ARGUMENTS

In this court, defendant does not begin, as the Court of Appeals did in Vasquez , with a review of this court's decision in Horton and an analysis of the test that that Court of Appeals drew from it. Instead, defendant assumes that the remedy clause of Article I, section 10, places a substantive limit on the legislature's authority and that plaintiffs generally are entitled to a "substantial" remedy for a breach of a recognized duty. Defendant then makes three arguments about why the limited award that plaintiff received in this case is "substantial" and, therefore, in its view, constitutional. First, defendant argues that this court's pre- Horton decision in Greist v. Phillips , 322 Or. 281, 906 P.2d 789 (1995), controls and stands for the proposition that a full award of economic damages plus $500,000 in noneconomic damages is a "substantial" remedy for a breach of a common-law duty "in and of itself." Second, defendant argues that a full award of economic damages plus $500,000 in noneconomic damages necessarily is "substantial" considering the nature and purpose of noneconomic damages. Third, defendant argues that ORS 31.710 provides a "substantial" remedy considering the overall statutory scheme and the legislature's policy reasons for capping noneconomic damages at $500,000.

Although plaintiff responds to and adamantly opposes defendant's arguments about what constitutes a "substantial" remedy, plaintiff also engages more directly with this court's decision in Horton and contends that, when the legislature limits the damages that a plaintiff may recover without altering a defendant's duty of care or providing a substitute remedy, that statutory limitation does not comport with Article I, section 10, and is unconstitutional.²

LEGAL BACKGROUND

Article I, section 10, includes the remedy clause that is the subject of our review. It provides:

"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

Or. Const., Art. I, § 10.

Smothers v. Gresham Transfer, Inc. , 332 Or. 83, 90, 23 P.3d 333 (2001), was the first case in which this court conducted a Priest v. Pearce , 314 Or. 411, 415-16, 840 P.2d 65 (1992) -style analysis of that clause.³ Horton re-examined and overruled Smothers . In doing so, Horton characterized Smothers as holding that the meaning of the remedy clause is tied to the Oregon common law in 1857, when the clause was enacted, and that the legislature was prohibited from eliminating or modifying a common-law cause of action unless the legislature "provide[d] a constitutionally adequate remedy." See Horton , 359 Or. at 175-88, 376 P.3d 998 (construing Smothers and overruling it). Horton rejected that interpretation of the remedy clause, articulated its understanding of the substantive limit that the remedy clause imposes, and applied that understanding to the damages cap at issue in the case. H...