Maryland top court upholds limit on jury awards for pain and suffering

Ruling comes in case of a child's drowning

September 24, 2010|By Andrea F. Siegel, The Baltimore Sun

Maryland's highest court upheld the state's limit on jury awards for pain and suffering in personal injury lawsuits Friday, allowing businesses, insurers and others who are sued to breathe a sigh of relief.

But it comes as a disappointment to opponents of the limits that were first enacted 25 years ago amid arguments that high awards threaten the affordability of insurance for businesses and discourage physicians from entering high-risk specialties.

The 6-1 decision by the Court of Appeals was made in a case that slashed a jury award from $4 million to about $1 million to the Davidsonville parents of a 5-year-old boy who drowned in 2006 in a Crofton swimming pool.

"We are glad to see that the court reaffirmed that the legislature had a good reason for ensuring that noneconomic damage awards stay within reasonable bounds," said Cary Silverman, an attorney for 10 business and insurance groups — the U.S. and Maryland Chambers of Commerce among them — that filed a brief in this case to urge the court not to abandon the damage limits.

"I think if the court had struck down the cap, what you would see is significantly higher personal injury awards based on various subjective reasoning. What happens due to that is you'll have higher insurance premiums. It affects just about everyone, from small business owners to consumers," he said.

Maryland does not limit economic damages, such as for medical bills or lost income. The restrictions apply only to noneconomic damages: anguish, pain and suffering. In Maryland, the limits vary depending on the year and type of case. The cap was $665,000 when Connor Freed drowned.

The ruling was not unexpected. The top court upheld the cap in 1992 and 1995, finding that it was constitutional; Friday's opinion notes that the majority of the judges saw no reason to dump their previous affirmations of the law. The court recently also upheld applying limits in consumer protection and medical liability cases.

The rationale, said Steven R. Migdal, lawyer for DRD Pool Service, was "because that's the law in Maryland, there's no reason to overturn it." He said he and his clients were pleased with the decision.

They disagreed with another part of the ruling, which returns the lawsuit brought by Thomas and Debra Freed to Anne Arundel County Circuit Court. A jury will consider whether their son suffered while he drowned July 22, 2006, after he entered the Crofton Country Club pool without a life jacket, and how much, if anything, to award. The trial judge had not allowed that issue to go to trial.

"Our main purpose [in the appeal] was the conscious pain and suffering," Thomas Freed said, referring to an expert opinion that Connor suffered as he drowned.

Connor was pronounced dead at Anne Arundel Medical Center and authorities ruled the death accidental. But the following year, an Anne Arundel County jury found DRD Pool Service Inc., operator of the pool, negligent for failing to train its lifeguards and to staff the pool adequately.

But it was the possibility that the court could eliminate the cap on damages that drew attention to the case.

Maryland is one of at least 36 states where legislatures have set limits on damages for pain and suffering in some types of lawsuits, such as medical malpractice and wrongful death.

Court challenges to state caps have had mixed results. State courts in Alaska and Ohio have upheld restrictions. This year, courts in Illinois and Georgia have overturned caps.

In West Virginia, a pending case considers the constitutionality of limiting noneconomic damages in medical liability cases."This [ruling] may be something that the court will look at," Silverman said.

Plaintiffs' lawyers were disappointed in Friday's ruling, arguing that high-dollar lawsuits are sometimes the only check on companies' practices, and that the issue is about injustices to their clients, not about the lawyers' earnings.

"Do caps drive lawyers away from certain cases? They absolutely do," said Cary J. Hansel, a lawyer for the Maryland Association of Justice, a plaintiffs' lawyers organization that filed a brief in the case.

The reason, the lawyers say, is that complex cases are costly to bring.

Asked if he was disheartened, Gary A. Wais, one of the lawyers for the Freeds, said he agreed with the dissent by Judge Joseph H. Murphy Jr., who wrote that the law's constitutionality should have been subjected to "heightened scrutiny." The existing legal landscape, Wais said, "will continue to have a chilling effect on the public getting the best representation in cases that don't have economic losses."

andrea.siegel@baltsun.com

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