Anyone watching the Oregon Senate on Tuesday witnesses a rare event: Lawmakers killed a bill, with no apparent plan to revive it.
House Bill 2014 would have eliminated caps on "noneconomic" damages — jury awards for things like pain, suffering, and loss of enjoyment of life — in civil injury cases. Such damages are currently capped at $500,000, due to a 2016 Oregon Supreme Court ruling.
The bill pitted Salem heavyweights against one another. Medical associations and businesses opposed HB 2014, arguing runaway jury verdicts could lead to higher insurance rates and medical costs. Trial lawyers supported the bill, arguing that caps resulted in situations in which victims weren’t being appropriately compensated for egregious wrongs.
In the end, opponents prevailed. After a lengthy debate, four Democrats joined Republicans to defeat HB 2014 on a 14-15 vote. The bill was not recalled, suggesting there are no plans to bring it back to the floor.
The bill had easily passed the House in March, 36-22.
That the vote was held at all was somewhat remarkable. Senate President Peter Courtney typically does not bring a bill to the floor unless he believes it has the 16 votes required for passage. But Democrats said it became clear Tuesday morning their caucus was divided, and the votes might not be there.
That didn’t stop the bill’s carriers, Sens. Shemia Fagan, D-Portland, and Floyd Prozanksi, D-Eugene, from asking it to be called up anyway.
Sen. Shemia Fagan, D-Portland, listens to testimony at a House Committee on Human Services and Housing meeting at the Oregon Capitol, Wednesday, Feb. 20, 2019. The committee held hearings on bills related to child care and rent control.
Bradley W. Parks / OPB
“Too often the debates the public sees are already orchestrated,” Fagan said after the vote, echoing a concern she’s voiced since being elected last year. The Senate, she added, needs “less WWE wrestling and more democracy.”
The debate over noneconomic damages is longstanding in Oregon. While there are no limits to the actual economic damages a jury can award a plaintiff for specific costs such as medical bills and lost income, the Legislature in the 1980s did enact limits for more subjective losses.
That changed in 1999 when the Oregon Supreme Court ruled the $500,000 cap was unconstitutional. In 2016, the court reversed itself, saying the cap was legal. HB 2014 would have removed the limit for noneconomic damages for bodily injury cases, but not for claims of wrongful death.
Senate Republicans had long opposed the bill, even demanding at one point earlier this session that Democrats kill it in exchange for ending a four-day boycott aimed at delaying a large tax package for education. On Tuesday, they attempted a last minute "minority report" amending the bill on the Senate floor. They proposed setting a cap of $1.5 million in all cases. That motion failed on a party-line vote.
But it quickly became clear that not all Democrats supported the policy change. Two senators with backgrounds in the medical field spoke out against the proposal on the floor.
“There are many people who will think that I’m voting ‘no’ on this bill because I’m a physician and physicians automatically prefer to have injuries capped,” said Sen. Elizabeth Steiner Hayward, D-Beaverton, a doctor at Oregon Health & Science University.
Democratic Oregon state Sen. Elizabeth Steiner Hayward speaks with fellow Democratic Oregon state Sen. James Manning Jr. before the Oregon Senate convenes at the Oregon Capitol in Salem, Ore., Tuesday, April 2, 2019.
Bryan M. Vance / OPB
Steiner Hayward said that wasn’t the case. She said she’d support eliminating caps in some instances, such as when criminal activity is involved or defendants should have known their actions would cause harm. But in “simple, one-time” cases where someone merely makes a mistake that injures someone, Steiner Hayward said, damages should be capped at between $1.5 million and $3 million.
Sen. Laurie Monnes Anderson, D-Gresham, a former nurse, also spoke against the bill, as did four Republican senators. Many acknowledged that capping damages at $500,000 was not appropriate, but said the bill went too far.
“There is nothing in this bill to restrict what the trial lawyers take,” said Sen. Fred Girod, R-Stayton. “You want more money to the victims? Put a provision in there that would restrict trial lawyers.”
Proponents of the bill brought up stories of victims who they said had suffered due to a cap on damages —among them an elderly woman sexually assaulted in an ambulance by a paramedic and a young girl who lost her leg to a riding lawnmower.
“What is the fair and just compensation for those individuals who have been injured due to acts of others?” Prozanski said.
Fagan, a lawyer, said it was a myth that insurance rates would rise if the bill passed. She argued that businesses and others opposed the bill because they knew jurors would come to fair conclusions.
“In a word, juries are incorruptible,” she said. “No wonder the powerful are terrified of them — incorruptible, ordinary people.”
But not enough Democrats agreed. Sens. Betsy Johnson, D-Scappoose, and Lee Beyer, D-Springfield, joined Steiner Hayward and Monnes Anderson in voting against the bill, along with Republicans.
“A bill failed. It sucks,” Fagan said afterward. “The nice thing is we now have their votes [on the record]."
It's rare for bills to fail on the floor of either the House or Senate — and even more rare for such a failure to stick.
Earlier this year, Senators rejected a bill to restrict how many cannabis licenses the state releases. The bill was recalled to a legislative committee, amended and eventually passed.
In April, the House opposed a bill to ban foodservice businesses from using plastic foam containers. The bill was recalled and approved the next day, when one Democratic lawmaker returned from an illness.