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Miller v. Johnson

Kansas Court Upholds Caps on Damages That Harm Older People Disproportionately


In a case addressing what is fair compensation for injuries suffered by older and low-income people, the Kansas court refused to overturn caps on noneconomic damages.


At issue were monetary caps on noneconomic damages that were enacted by the state legislature in Kansas and bitterly opposed by AARP Kansas. Noneconomic damages are intended to compensate a victim for damages, such as pain and suffering, that are more difficult to measure than medical bills or compensating for lost wages. A damaged face, for instance, may result in $100,000 in actual economic damages (costs of healing treatments, etc.) but result in permanent emotional harm based on the embarrassment caused by scarring and disfigurement.

If an older person with a limited income is hurt, or even killed, as a consequence of another person’s negligence, the damages recoverable for that injury or wrongful death claim will be limited if the case took place in a state that had caps on noneconomic damages. These caps discriminate against older people by preventing them from fully and fairly vindicating their rights through the legal process.
Amy Miller suffered severe pain and her doctor recommended she have her right ovary removed; the doctor, however, removed her left ovary. After discovering this mistake, and still suffering pain post-surgery, Miller returned for care and had the correct (right) ovary removed. In 1985, the Kansas legislature set a cap on pain and suffering and other noneconomic damages, a law that was later upheld in the state Supreme Court. Miller now argued that the earlier case limiting damage awards for pain and suffering, like hers, cannot withstand constitutional challenges to equal protection or separation of powers, and the cap of $250,000, which is nearly 25 years old, no longer represents (if it ever did) a reasonable figure that substitutes for the right to have a jury determine damages.

Attorneys with AARP Foundation Litigation had filed AARP’s friend-of-the-court brief that argued that caps on noneconomic damages discriminate against older people, women, racial minorities, children and other people with limited incomes in three key ways: (1) because these groups tend to have smaller future earnings their economic damages (lost wages, etc.) are lower, making the noneconomic damages even more important; (2) caps on noneconomic damages also send a dangerous message that no matter how egregious or repulsive is the injury perpetrated on a victim, the cost to the wrongdoer for mental anguish, emotional harm and other noneconomic suffering will never exceed a specified monetary cap; and (3) a cap on damages effectively denies access to justice for many older people because most attorneys who represent low-income victims in personal injury cases do so on a contingency fee basis and cannot afford to take the case if the noneconomic damages are unreasonably limited.

While acknowledging that the constitutionality of the statutory caps on jury awards is a “long standing and highly polarizing question nationwide,” while noting that two other Kansas Supreme Court precedents would appear to be at odds with upholding the caps, and while acknowledging dismay that the legislature had not seen fit to increase the statutory cap in more than 20 years, the majority opinion ruled that the caps did not violate a plaintiff’s rights under the state or federal constitution. In a small partial victory, the court reinstated some damages that had been struck by the court after the jury verdict. Two dissenters would have found the caps violated a right to trial by jury and right to remedy by due course of law, but sided with the court on its other rulings.

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Find cases in which AFL has advocated in courts nationwide for the rights of older persons, and filed AARP’s amicus curiae (“friend of the court”) briefs that help courts decide precedent-setting cases. The cases within the drop-down categories below are in alphabetical order for ease of searching.

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Our legal advocacy initiatives  - conducted by AARP Foundation Litigation (AFL) - reflect nearly 20 years of work in federal and state courts across the country. Through our efforts, we support the Foundation’s four impact areas: Tackling Senior Hunger, Paving the Way to Stable Income, assuring the adequacy and availability of Safe and Afffordable Housing and Reconnecting People to Families and Communities, and ensure that those 50 and older have a voice in the laws and policies that affect their daily lives.