The Oregon Supreme Court has allowed review in Hughes v. Peacehealth, in which the constitutionality of the statutory cap on noneconomic damages as applied to wrongful death actions is at issue. The court of appeals' opinion can be accessed here. It looks like the court may be considering Ninth Circuit Judge Gould's invitation last summer to reconsider its previous conclusion that an action for wrongful death did not exist at common law. It will be an interesting case, both for the constitutional issues and for principles of stare decisis.
It's hard (but not impossible)to imagine that the court allowed review in order to affirm Greist v. Phillips, 322 Or 281 (1995), which reviewed the historical record and determined there was no common law wrongful death recovery. If the court does look again at the history of the remedy, it should be ready to take another look at the noneconomic damages cap in general. Smothers v. Gresham Transfer, 332 Or 83 (2001), which delved deeply into Magna Carta and everything since, and decided that the cap was unconstitutional under Article I section 10, needs its own historical revisiting, if the court wants to be completely fair about it.
Posted by: Jim Westwood | June 29, 2006 at 09:30 AM