The case proceeded to a trial on damages, after which a jury awarded Ms. Hilburn $335,000 in damages, comprising $33,490.86 for medical expenses and $301,509.14 for noneconomic losses.

Defense counsel prepared a journal entry of judgment against Enerpipe for $283,490.86 contending that, “pursuant to K.S.A. 60-19a02(d), judgment must be entered in the amount of $250,000 for all of Diana K. Hilburn's noneconomic loss.”

Ms. Hilburn objected on the ground that K.S.A. 60-19a02 was unconstitutional.

The trial court ultimately decided the constitutional issue in Enerpipe's favor and entered a $283,490.86 judgment for Ms. Hilburn.

An appellate court affirmed and the dispute reached the Supreme Court of Kansas.

The Kansas Statute

K.S.A. 60-19a02(a) defines “'personal injury action'” as “any action seeking damages for personal injury or death.” Further,

(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $250,000.

(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss.

(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party's claims for noneconomic loss. . . .

(After Ms. Hilburn's accident, the amount of the cap was amended to $325,000; it was set to increase to $350,000 on July 1, 2022.)

The Kansas Bill of Rights

Section 5 declares:

The right of trial by jury shall be inviolate. 

The Kansas Supreme Court's Decision

The court reversed the appellate court decision affirming the trial court, reversed the trial court's judgment, and remanded the case to the trial court for entry of judgment in Ms. Hilburn's favor on the jury's full award.

In its decision, the court explained that, in Miller v. Johnson, 289 P.3d 1098 (Kan. 2012), a majority upheld the application of the noneconomic damages cap to a medical malpractice plaintiff's jury award, finding that the legislature had provided an “adequate and viable substitute” when it modified the common law jury trial right under Section 5.

Here, however, the court acknowledged that it was “chang[ing] course” on Section 5 and would not apply the “quid pro quo test” to analyze Ms. Hilburn's challenge. In the court's view, the “plain 'inviolate' language chosen by Kansas citizens for Section 5's jury trial provision” meant that it could not be “disturbed or limited.”

The court rejected application of the quid pro quo test to Section 5 claims and concluded that the noneconomic damages cap under K.S.A. 60-19a02 violated Ms. Hilburn's right protected by Section 5 because it intruded on the jury's determination of the compensation owed her to redress her injury.

The case is Hilburn v. Enerpipe Ltd., No. 112,765 (Kan. June 14, 2019). Attorneys involved include: Thomas M. Warner, Jr., of Warner Law Offices, P.A., of Wichita, argued the cause and was on the briefs for appellant. Andrew D. Holder, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and Justice B. King, of the same firm, and Kelly A. Ricke, of the same firm, of Overland Park, were with him on the briefs for appellee. Toby Crouse, solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for intervenor Kansas Attorney General Derek Schmidt. Timothy J. Finnerty and Bryan R. Kelly, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, were on the brief for amicus curiae Kansas Association of Defense Counsel. James D. Oliver and Scott C. Nehrbass, of Foulston Siefkin LLP, of Overland Park, and Clayton Kaiser, of the same firm, of Wichita, were on the brief for amicus curiae Kansas Chamber of Commerce and Industry, Inc. David R. Morantz, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, and James R. Howell, of Prochaska, Howell & Prochaska, of Wichita, were on the brief for amicus curiae Kansas Trial Lawyers Association.