By Sarah Tuthill-Kveton

The Oregon Legislature passed a cap on non-economic damages in 1987 that limited damages to $500,000. Until recently, the courts held that the cap was unconstitutional, under the remedies clause, as it relates to most claims. The court’s opinions interpreting the cap provided a tedious and complex structure to assessing its application. As a general rule, the cap was not applied to most cases, but uniformly applied to wrongful death claims.

In May of 2016, the Oregon Supreme Court issued an opinion in Horton v. Oregon Health and Science University that overruled some of its previous decisions. 359 Or 168 (2016). Specifically, the court held in Horton, the Oregon State Constitution’s Bill of Rights does not limit the legislature’s authority to define the extent of damages available. Although the court expanded the application of the cap, the approximately 102 page opinion left additional questions about exactly how the cap would be applied to various claims. As the law currently stands, there is not a large body of clear guidance or a formula that would plainly resolve whether a statutory imposed damages cap passes constitutional muster. What we do know is that the law continues to evolve and the cap is gaining speed in its application. While the law evolves, the non-economic damages cap should be asserted in claims for non-economic damages in excess of $500,000.

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