Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
distributive injustice. The kinds of charisma and attractiveness that may produce higher
nonpecuniary awards are also not distributed fairly in society.
3. Constitutionality of damages caps. In many states, plaintiffs have argued that damages
caps violate provisions of the state constitutions. Challenges have attacked the damages caps on a
kitchen sink of state constitutional grounds: state equal protection requirements, the right to a jury
trial, separation of powers, bans on so-called “special legislation” granting illegitimate privileges,
the right to substantive or procedural due process, the right of access to courts, and state privileges
or immunities clauses—or sometimes even provisions in state constitutions specifically
prohibiting the legislature from limiting the amount of damages.
Courts have struck down damages caps in a number of cases. See Watts v. Lester E. Cox
Med. Ctrs., 376 S.W.3d 633 (Mo. 2012) (holding that the statute capping noneconomic damages
for medical negligence violates the right to a jury trial set forth in the Missouri Constitution);
Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014) (holding that Florida’s statutory cap
on wrongful death noneconomic damages violates the right to equal protection under State
Constitution); N. Broward Hosp. Dist. v. Kalitan, No. SC15-1858, 2017 WL 2481225 (Fla. June
8, 2017) (holding that Florida’s statutory cap on medical malpractice noneconomic damages
violates the right to equal protection under State Constitution).
However, damages caps have been upheld (and the challenges rejected) more often than
not. See, e.g., Miller v. Johnson, 289 P.3d 1098 (Kan. 2012) (holding that the statutory cap of
$250,000 on noneconomic damages in medical malpractice actions did not violate the right to a
jury trial, the right to remedy, or the equal protection clause under State Constitution); Robinson v.
Charleston Area Med. Ctr., Inc., 414 S.E.2d 877 (W. Va. 1991) (holding that the statutory cap on
noneconomic damages in medical malpractice claims did not violate plaintiffs’ equal protection or
substantive due process rights or the right to remedy guaranteed by State Constitution).
A recent damages cap constitutional challenge arose in Mayo v. Wisconsin Injured
Patients & Families Comp. Fund., 914 N.W.2d 678 (Wis. 2018). In May 2011, Ascaris Mayo, a
50-year-old African-American mother of four, went to the emergency room at Columbia St.
Mary’s Hospital with an infection. She subsequently developed sepsis, which caused organ
failure and dry gangrene, leading a second medical care provider to amputate all Mayo’s limbs.
Mayo sued both providers on the theory that the physician and physician’s assistant who at
Columbia St. Mary’s had neglected to give her an antibiotic that would have treated her infection.
At trial, a jury awarded her over $25 million in damages, including $16.5 million in noneconomic
damages. In Wisconsin, the Injured Patients & Families Compensation Fund provides medical
malpractice insurance for all tort awards against health care providers in excess of the limit of
$1,000,000 per occurrence or $3,000,000 per year, as of this writing. The Compensation Fund
moved to reduce the noneconomic damages to $750,000 on the basis of a cap established by the
Wisconsin state legislature in 2008. See WIS. STAT. ANN., § 893.55 (West 2008). The Wisconsin
Supreme Court upheld the statute as rationally related to a legitimate government purpose. Mayo,
914 N.W.2d at 692. Is $750,000 in noneconomic damages an adequate award for the loss of four
limbs?
4. Schedules for pain and suffering damages? One alternative to damages caps would be
schedules for pain and suffering damages. One influential account in the scholarly literature by
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