OTLA Trial Lawyer Fall 2020

53 Trial Lawyer • Fall 2020 See Sheets p 54 Busch v. McInnis Waste Systems, Inc ., 366 Or 628 (2020), Walters, C.J. Gene Hallman represented the plaintiff. Nadia Dahab, Travis Eiva and Kathryn Clarke filed the amicus brief on behalf of OTLA. The plaintiff was struck down in a crosswalk by the defendant’s garbage truck and left fully conscious and in extreme pain with his severed leg still attached by a one-inch piece of skin pinned beneath the truck. The leg was later surgically amputated. In the ensuing admitted liability case, the jury awarded the plaintiff $3,021,922 in present and f u t u r e e conomi c damag e s , and $10,500,000 in noneconomic damages. The trial court granted the defendant’s motion to cap the noneconomic dam- ages at $500,000 under ORS 31.710 (1). The plaintiff appealed, the Court of Appeals reversed, and the Supreme Court allowed review in this first case to decide the constitutionality of the statutory cap since Horton . On review, the Supreme Court first rejected the defendant’s contention that, under Greist and Howell , the plaintiff ’s economic damages, together with the capped noneconomic damages award, constituted a substantial and therefore constitutional remedy under Article I, section 10. The court clarified that nei- ther Greist nor Howell stand for the proposition that a damages cap survives a remedy-clause challenge solely by com- paring whether the total damages award- ed by a jury and the total award permit- ted by statute results in some “insubstan- tial, paltry or emasculated” remedy. Rather, “both cases are best understood as upholding limits on damages for rea- sons in addition to the relative amount of the plaintiff ’s award.” To the extent either case may be read differently, or as comparing the jury’s award to the capped award as more than a mere “final check” on constitutionality, the court disavowed them. The court clarified the remedy clause analysis under Horton requires that the reasons for the Legislature’s enactment of a damages cap are critical in determin- ing whether a plaintiff ’s remedy remains constitutionally sufficient. Toward that end, the court determined “the failure to provide a quid pro quo to counterbalance a plaintiff ’s right to a remedy * * * strikes a real blow to the defense of ORS 31.710 (1).”The court concluded the Legislature did not seek to advance any state interest with constitutional underpinnings when it enacted ORS 31.710 (1). The court further determined from the legislative history of the statutory cap that the Leg- islature had no goal of “capping noneco- nomic damages at a sum capable of re- storing the right that had been injured [or that] would remain capable of doing so over time.” Accordingly, the court concluded “that application of ORS 31.710 (1), as a limit on the noneco- nomic damages that a court can award to a plaintiff, violates Article I, section 10.” In a special concurrence in part, and dissent in part, Justice Landau asserts he would not have interpreted the remedy clause “to constrain the Legislature’s power to determine rights and remedies.” Although he concurred with the result, he agreed with and joined Justice Balm- er’s dissent that the court should have concluded that ORS 31.710 (1) did not violate Article I, section 10. Justice Lan- dau, instead, believed he mistakenly voted in favor of overruling Lakin in the Horton decision and, in this case, would conclude that ORS 31.710 (1) violates the jury trial right under Article I, section 17 as analyzed in Lakin . DECISIONS OF THE OREGON COURT OF APPEALS If the court passes a juror for cause and the objecting party has a peremptory strike available, the party must strike that juror in order to appeal the for- cause ruling. Dorn v. Three Rivers School District ,