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Georgia, Missouri and Kansas Courts

Three States Address Capping Noneconomic Damages

Attorneys with AARP Foundation Litigation filed AARP's briefs in three cases addressing fair compensation for injuries suffered by older and low-income people. At issue were monetary caps on damages enacted by state legislatures over the vigorous opposition of AARP state offices. The three cases came before the state supreme courts of Georgia, Kansas and Missouri.

The cases all address state laws capping noneconomic damages. Noneconomic damages are intended to compensate a victim for damages, such as pain and suffering, which are more difficult to measure than medical bills or lost wages. A damaged face, for instance, may result in a $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.

Georgia's top court was the first to rule, and it resoundingly invalidated the law. The next day, the Supreme Court of Missouri issued a more limited ruling that also found that state's law unconstitutional, but only because it limited recovery retrospectively. Although two judges urged the court to go the extra step, the majority stopped short of ruling, as Georgia's court had done, that laws limiting noneconomic damages are inherently unconstitutional.

The Georgia Decision

In 2005, the Georgia legislature enacted limits on tort claims after intense legislative debate. The law limited noneconomic damages to $350,000.

Betty Nestlehutt suffered permanent and dramatic facial damage — which included open sores on her face that required dozens of treatments to heal and left her with permanent scarring and discoloration — because of negligent plastic surgery. A jury awarded Nestlehutt and her husband $115,000 in economic damages and $900,000 in non-economic damages.

The court in Nestlehutt v. Atlanta Oculoplastic Surgery refused to cap noneconomic damages, finding that the state law capping damages to $250,000 violated the state constitution. Specifically, the appeals court found that the law compelling a judge to reduce jury-determined noneconomic damages violated the Georgia Constitution's right to a jury trial and the separation of powers doctrine among the various branches of government; the appeals court also found that the statute violated Equal Protection principles that require all parties to be treated the same.

The Georgia Supreme Court ruled that by nullifying a jury's finding of fact regarding damages, the law undermined the jury's basic function and therefore violated critical protections embodied in the state's constitution. The court first examined the history of the right to a jury trial from English law through colonial law, and as it was embodied in the state's constitution. Concluding that there did exist at the time of the enactment of the Georgia constitution a "right to a jury trial for claims involving the negligence of a health care provider, with an attendant right to the award of the full measure of damages, including noneconomic damages, as determined by a jury," the court then turned to the specifics of the 2005 law.

The court found that any effort to statutorily cap jury awards for economic or noneconomic damages violated the Georgia constitution. "The very existence of the caps, in any amount, is violative of the right to trial by jury," wrote the court. Because it is based on the state's constitution, the ruling can be appealed no further.


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