The Counsellor's Corner


Should there be a limit on damage awards from pain and suffering in personal injury cases?  In its May election, the state of Oregon will vote on this question.  In 1987, its State legislature passed what was referred to as a damage cap in that it limited the amount of money those involved in personal injury cases could receive.  The limit passed in 1987 was one of $500,000 for pain and suffering.  In other words, no matter how bad your injuries were, whether or not you were crippled or brain dead or destined to live the rest of your life in pain, you could not collect more than a half million dollars for pain and suffering. 

Twelve years later, in 1999, the Oregon State Supreme Court decided that this statute was unconstitutional in that it violated an individual’s right to a jury trial.

All of this grew out of a case involving poor John Lakin who suffered brain damage after a power nail gun drove a nail into his brain.  Mr. Lakin was subsequently awarded in excess of $10,000,000 at trial from the manufacturer of the power nail gun, Senco Products.  He was awarded $2,000,000 in pain and suffering, and his wife was awarded $876,000 in pain and suffering in her lawsuit.  As per state law, the trial judge reduced their pain and suffering awards to $500,000 each.  The Lakins appealed and they won.

This will lead to another battle between the insurance companies and the trial lawyers.  The insurance companies, of course, are in favor of what is known as Measure 81, which is similar to our Proposition system.  Measure 81 would reinstitute the lid on damages in personal injury cases.

Of course, the insurance companies want there to be a limit, while most average citizens, along with the plaintiffs’ personal injury bar, do not think it is fair.

I’m pretty much of a free-market guy, and I am very much against these types of lids.  If a jury of one’s peers decides that one should be awarded $50,000,000, $7,500,000 of which is for pain and suffering, why should that get legislatively wiped out?  Shouldn’t people be responsible for what they do and for what a jury sees fit as an appropriate award?  If you have what is commonly referred to as a “runaway jury”, a case in which a jury gives more than is reasonable, both the trial court judge and the appellate court have the ability to slash the amount of money awarded by the jury to an amount deemed more reasonable.  These rights should not be legislated away.  I fully agree with the Oregon Supreme Court in declaring that this law is unconstitutional, and if Measure 81 is passed in May, I hope that the State Supreme Court declares that unconstitutional as well.

In the State of California, we do not have limits on personal injury awards, except in medical malpractice cases.  In those cases, if a doctor commits malpractice, the awards are limited, as are the percentages of the award that the plaintiff’s attorney can receive.  That has been the law for more than ten years here, and I still don’t like it.  I understand that the concept behind it is to not put doctors and their insurers out of business; however, I believe that people ought to have to pay for their mistakes.  Whenever a law is put through which alters the natural flow of a situation, it does not get my vote.  Let the free market do its work, and let’s not set artificial limits on things in a way that can make them unfair.

Watch for this in the month of May.  It appears as if both sides will spend millions of dollars in an attempt to get the vote out for their position.  The coalition against the personal injury lid will include injury and disease survivors.  Remember, next time something like this comes up in California, This Could Be You!

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.