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Man who lost left leg in 2015 incident in downtown Portland will return to circuit court.

COURTESY PHOTO: DREAMSTIME - Oregon's Supreme Court ruled that a state cap on damages in lawsuits was unconstitutional.A man who lost his left leg after a garbage truck struck him in March 2015 in downtown Portland will get another chance to argue for an award of noneconomic damages exceeding $500,000.

Oregon's Supreme Court, in a decision announced Thursday, July 9, ruled that the $500,000 cap on such damages under state law violated the constitutional guarantee of access to a remedy in the courts.

"In enacting the damages cap (in 1987), the Legislature left defendants' common-law duty of care intact, but deprived injured plaintiffs of the right to recover damages assessed for breach of that duty," Chief Justice Martha Walters concluded for the court majority of five.

The case drew friend-of-the-court briefs from the Oregon Trial Lawyers Association on one side and the Oregon Medical Association/American Medical Association, Oregon Liability Reform Coalition/National Federation of Independent Business, and Chamber of Commerce of the United States and several other national groups on the other side. Such briefs offer arguments for the justices to consider but are only advisory.

Scott Raymond Busch, now 62, was awarded $10.5 million in noneconomic damages — known as "pain-and-suffering damages" — plus $3 million in economic damages by a Multnomah County jury in May 2016. It was slightly more than a year after a garbage truck owned by McInnis Waste Systems struck Busch at Southwest Morrison Street and Fifth Avenue. Busch's left leg ended up under the truck and had to be amputated above the knee.

Busch originally sought $37 million in damages. The business had already conceded liability for the injury, so the sole issue was the amount of damages. His co-plaintiff is Deanne Marie Busch, his wife.

Circuit Judge Michael Greenlick then reduced the award for noneconomic damages to the $500,000 allowed under a 1987 law. (That amount, if linked to inflation, would be slightly less than $1.2 million today.) The Oregon Court of Appeals reversed that decision in 2018. The Supreme Court's upholding of that decision means the case will return to circuit court for further proceedings.

Statutory rights and remedies

Oregon does have caps on damages if a state or local government is involved — and the Supreme Court upheld a state cap in a 2016 case involving Oregon Health & Science University. But that cap is under the Oregon Tort Claims Act, a different law limiting the liability of government agencies and employees. Lawmakers increased caps under that law in 2009, after the Supreme Court ruled that a cap of $200,000 for noneconomic damages in a 2007 case against OHSU was unconstitutional.

Those caps are adjusted annually for inflation. Under the Tort Claims Act, the state caps as of July 1 are $2.3 million for a single claimant and $4.6 million for multiple claimants in an injury or death. Local government caps are lower.

Walters wrote for herself and Justices Rebecca Duncan, Meagan Flynn, Lynn Nakamoto and Adrienne Nelson. Justice Chris Garrett did not take part.

Retired Justice Jack Landau, who participated in Garrett's absence, wrote in a separate opinion that he agreed with the conclusion that the $500,000 cap was unconstitutional.

"Unlike the majority, though, I would rest that conclusion on the right to a jury trial guaranteed" in a different section of the Oregon Constitution, he said.

Justice Thomas Balmer dissented. He wrote that the majority opinion appears inconsistent with the court's decision in 2016, when it upheld a $3 million award against OHSU for economic damages of $6 million requested — and nothing for noneconomic damages — under the Tort Claims Act. In contrast, he said, the majority in the Busch case upheld $3 million in economic damages, but his receiving just $500,000 of $10.5 million in noneconomic damages violated the Oregon Constitution.

"At the end of the day, however, those inconsistent results are part of the basis for my view that the majority fails to give the Legislature the same kind of latitude that we approved in

Horton (2016 case)," Balmer wrote.

"More fundamentally, the majority does not give the Legislature the latitude I believe it has under the Oregon Constitution to adjust common law and statutory rights and remedies in the civil justice system to meet what it perceives to be the needs of the public."

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