Ky. bill would allow caps on damages; State Chamber glad to see 'true legal liability reform' getting a shot

By John Breslin | Feb 8, 2018

FRANKFORT, Ky. (Legal Newsline) – Kentucky's business community has welcomed a bill that may lead to a change in the constitution that would allow the General Assembly to cap damages in personal injury lawsuits.

Senate Bill 2, filed by state Sen. Ralph Alvarado, would allow the General Assembly to establish limits on damages awarded by juries if an amendment to the constitution is ratified that is ratified by voters.

Republicans Alvarado and co-sponsor Sen. Rick Girdler did not return requests for comment from Legal Newsline.

The state has no cap on damages in any type of injury while others do have limits on non-economic, or "pain and suffering," damages. Some states cap damages only in certain types of injury cases, like medical malpractice.

Ashli Watts, the Kentucky Chamber of Commerce's senior vice president for public affairs, said the state's legal liability climate is a "negative factor for businesses."

"The Kentucky Chamber has been a longtime supporter of legal liability reform." Watts told Legal Newsline. "According to the Institute for Legal Reform, Kentucky is ranked 42nd for our legal liability climate, which is negative factor for businesses when looking at where to locate, invest, etc."

The U.S. Chamber Institute for Legal Reform owns Legal Newsline.

Watts added that businesses do not want to be "targeted by out-of-state trial lawyers and it is time for Kentucky to pass meaningful legal liability reform."

She said the chamber is "very grateful to the Senate for making true legal liability reform a priority during the 2018 General Assembly."

"For Kentucky to truly be competitive, we must improve our legal system for businesses, like our surrounding states have done," Watts argued.

Speaking to Spectrum News service in Kentucky, Alvarado said he would personally lobby every member of the Senate to try and ensure passage in the upper chamber.

"Once it’s in the House it’s a much more different venture — we still have a lot of unknowns as to what that count would look like,” the senator told the news service.

He further argued that this amendment does not necessarily mean caps will be placed on damages but that the General Assembly will have the power to do so.

Alvarado, a physician, said one of the driving forces behind the bill is to ultimately move the authority to set damages from judicial branch to the assembly.

But there could be some pushback from Republicans who may not want constitutional protections removed from the hands of juries.

The bill proposes an amendment to Section 54 of the Constitution of Kentucky. It states that the General Assembly shall have power to limit the amount to be recovered for injuries resulting in death, and for injuries to person or property.

It also provides for a uniform statute of limitations for any civil action for injuries resulting in death or for injuries to person or property.

This amendment shall be submitted to the voters asking them if they are in favor of the assembly placing limits and creating statutes of limitations.

The legislature did move last year to make some changes to the Kentucky Revised Code in medical malpractice cases with Senate Bill 4.

Under the added chapter to the code, plaintiffs must obtain an opinion from a review panel prior to filing their case in court.

In a blog post, attorney Jim Dietz of Florence, Kentucky-headquartered Frost Brown Todd LLC, said the move was not a deep dive into tort reform. 

But he added, "It is designed to encourage the parties to settle the matter before it goes to a jury, under the notion that, in light of the panel’s report, the parties will have a good idea whether the case has merit and the likely outcome if it proceeds to trial."

But it is the subject of at least one lawsuit filed by a woman who sued on behalf of her son, claiming it could take up to nine months before the panel process was complete.

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