Kansas Legal Groups Debate Tort Cap and Evidence Rule Changes

Two lawyers’ groups tried Monday to persuade legislators that proposed changes in evidence rules favored by business and medical groups are a bad trade-off for higher limits on some damages in personal injury lawsuits.

The Kansas Bar Association and the Kansas Association for Justice, the state’s trial lawyers’ group, testified during a hearing on a Senate-approved bill that includes both concepts. The House Commerce, Labor and Economic Development Committee could vote on the measure later this week.

“It’s not a good deal,” Michael Fleming, a Leawood attorney representing the Association for Justice, said after the hearing.

Medical groups and the Kansas Chamber of Commerce support the legislation. In the past, they have resisted efforts to increase the state’s $250,000 cap on non-economic damages, such as pain and suffering, fearing it would increase insurance premiums for businesses and health care providers. But they’re feeling pressure to accept an increase in the limit because of an October 2012 ruling by the Kansas Supreme Court in a medical malpractice lawsuit.

The court said the cap on non-economic damages is constitutional but the majority also said it is troubling that the cap hadn’t been adjusted for inflation since its enactment in 1988. Lobbyists for the chamber, the Kansas Medical Society and Kansas Hospital Association acknowledged that they’re nervous about a later legal challenge.

The proposed changes in evidence rules strike a balance while preserving the cap, they said.

“This is a unique opportunity that we have to have a package of reforms put together,” Kansas Chamber President and CEO Mike O’Neal, a former House speaker, testified.

Under the bill, the cap on non-economic damages would rise to $300,000 in July, then to $325,000 in July 2018 and $350,000 in July 2022.

One change in evidence rules would give judges discretion to limit testimony from purported experts, a move that backers said would prevent juries from considering “junk” science in lawsuits. Both the Bar Association and the Kansas Association for Justice, the trial lawyers’ group, predicted the change would lead to longer and costlier litigation.

The two groups consider the other change an even bigger shift in policy. It would reverse a policy of not having juries hear whether alleged injury victims already have losses covered by insurance or other sources.

O’Neal, of the Chamber, and other critics of the “collateral-source” rule argued that it results in double payments for injuries, driving up costs. They said the change would still leave it to juries to decide whether to adjust damages to reflect such compensation.

But Fleming, the attorney, and other opponents of the change said the current, long-standing rule dates to Kansas statehood in 1861 and that abolishing it will help only help wrongdoers avoid compensating their victims.