It wasn’t too long ago – 2 and a half years to be exact - that we analogized what seemed to be growing disrespect for civil jurors, to a Rodney Dangerfield routine. (“People who serve on civil juries can’t get no respect from anyone this week,” we exclaimed.) But lately it’s been a bit of a different story.
On June 14, the Kansas Supreme Court both extraordinary and something it should have done a long time ago: provide real meaning to Section 5 of the Kansas Bill of Rights, which , “The right of trial by jury shall be inviolate.”
You see, back in the 1980s, Kansas politicians took a direct swipe at Section 5 by severely and broadly capping non-economic damages for injury victims. are for very real injuries, such as brain damage, loss of limb, loss of reproductive ability, blindness, and other kinds of suffering and lost quality of life. Caps on compensation apply regardless of what jurors, who make decisions based on evidence they hear in a case, say compensation should be.
And in 2012, the Kansas Supreme Court decided Section 5's authors didn’t really mean “inviolate.” Instead, it “transform[ed] what the people made inviolate into something violable at will” and upheld the cap even though it directly infringed on the power and authority of juries to decide cases. This decision made no sense to many – and now, it appears, it also made no sense to the 2019 Kansas Supreme Court. So joining perhaps another unexpected court decision Oklahoma’s equally-problematic cap in April, the Kansas court struck down the Kansas cap in June.
As a result of these two 2019 decisions, less than half the states (24) now cap non-economic damages in medical malpractice cases. And only nine cap non-economic damages generally. .
Eighty-two percent of the 446 judges who responded said they disagree less than 25 percent of the time. The majority who left comments said the jury usually gets it right, and it is not a judge’s job to second guess their decision.”
Wrote one judge (anonymously, as was most often the case with the comments): “When you hear the voice of a dozen people speak in unison, it is rare that they get it wrong.”
Juries rule, as they say. And as they should.