Md.'s highest court to hear arguments on damage limits

Parents whose son drowned want cap lifted

  • Thomas and Debra Freed hold a photo of their son, Connor, who drowned in a swimming pool in 2006 when he was 5. The Freeds won $4 million in a suit against the pool company, but it was reduced to $1 million under a law that limits damages for pain and suffering.
Thomas and Debra Freed hold a photo of their son, Connor, who… (Algerina Perna, Baltimore…)
April 02, 2010|By Andrea F. Siegel

Maryland's highest court will hear arguments today on whether a state cap on jury awards for pain and suffering is constitutional.

In considering the law that slashed the $4 million that a jury awarded to a Davidsonville couple in the 2006 drowning of their 5-year-old son, the Court of Appeals could overturn the 25-year-old practice of restricting the size of what are known as noneconomic damages in traffic accidents, product liability and other cases.

Depending on how the judges rule, the Court of Appeals could also affect the size of awards in cases of medical malpractice. The case has attracted briefs from the American Medical Association and other health care groups, and lawyers for plaintiffs and industry.

"The plaintiff's bar doesn't like the cap because it restricts the amount of money. The defense bar - the business community - likes the cap because it controls the damages. It controls the risks," says Peter Keith, a partner at the city law firm of Gallagher, Evelius & Jones who has represented clients on both sides.

"It would be an enormous win for the plaintiff's bar in this state for the cap to be thrown out," says Keith, who teaches civil litigation at the University of Maryland law school. "There would be a lot of anxiety on the defense side."

Opponents of the cap say it discriminates unfairly against individuals who suffer the most and threatens consumers by not punishing the riskiest behavior more severely. Proponents describe it as a common-sense safeguard against juries basing outsized awards on emotion as well as against bankrupting the losing side and its insurers.

"This is not an issue that is likely to go away any time soon," says Donald F. Norris, chairman of the public policy department at the University of Maryland, Baltimore County, who described as unending the arguments over whether the restrictions have had an effect on insurance premiums or are sound public policy. "It is an enduring political question because it really brings out two polar-opposite positions and groups."

The challenge stems from the death of Connor Freed, who was visiting Crofton Country Club with a family friend and two other children on July 22, 2006, when he entered the pool without a life jacket and drowned. He was pronounced dead that afternoon at Anne Arundel Medical Center.

Authorities ruled the death accidental. But the next year, an Anne Arundel County jury found DRD Pool Service Inc. negligent for failing to train its lifeguards and staff the pool adequately.

DRD was ordered to pay Debra and Thomas Freed more than $4 million. But under the cap formula, the award was reduced to just over $1 million.

The state does not limit economic damages, such as for medical bills or lost wages. Restrictions on noneconomic damages - compensation not for health care expenses or diminished earning power, but for anguish - have long been disputed.

The Maryland General Assembly established caps about 25 years ago, a time when some said awards were threatening businesses' access to affordable insurance and discouraging physicians from entering high-risk specialties.Maryland is one of at least 36 states that have established such ceilings in at least some kinds of cases - such as medical malpractice, personal injury or wrongful-death suits - according to the National Association of Mutual Insurance Companies. The industry group filed a brief in the Freeds' appeal supporting Maryland's cap.

Limits on awards have compiled a mixed record in the courts. State courts in Alaska and Ohio have upheld restrictions in those states. This year, courts in Illinois and Georgia have overturned caps in those states.

In 1992, the Maryland Court of Appeals found the state's cap law constitutional. More recently, it has also upheld the application of limits in two cases: one involving consumer protection; the other, medical malpractice.

An attorney for the Freeds said their challenge of that restriction is based in part on an equal-protection argument.

"The statute discriminates against the most grievously injured parties," attorney Andrew Baida says. A plaintiff whose award falls within the limit may collect the full judgment, but one who is awarded an amount exceeding the cap for having suffered severe harm - the death of a child, for example, or a life of physical pain - may not.

Thomas Freed describes a Catch-22 for plaintiffs: He said the cost of the lawsuit and appeals is likely to devour the reduced award.

The Maryland Association for Justice, a plaintiffs' lawyers' group, filed a brief arguing for an end to the cap on awards for pain and suffering in personal injury and wrongful-death lawsuits. Cary J. Hansel, an attorney for the group, says restrictions imposed by lawmakers violate the separation between the legislature and the judiciary, and deny people the right to a jury trial.

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