• Frying the Frye Test and Increasing the Caps: New Amendments to Kansas Civil Actions and Civil Procedure
  • July 21, 2014 | Author: Jonathan E. Benevides
  • Law Firm: Baker Sterchi Cowden & Rice, L.L.C. - Kansas City Office
  • Increasing non-economic damages cap

    On July 1, 2014, amendments to K.S.A. 60-19a02 increasing Kansas's long-standing cap on non-economic damages (pain and suffering) recoverable in personal injury actions came into effect. The pre-amendment statute enacted in 1988 limited a plaintiff’s recovery of non-economic damages in a personal injury action to $250,000. The amended statute increases the limits for non-economic damages in personal injury actions as follows:

    • $250,000 for causes of action accruing from July 1, 1988 to July 1, 2014
    • $300,000 for causes of action accruing on or after July 1, 2014 to July 1, 2018
    • $325,000 for causes of action accruing on or after July 1, 2018 to July 1, 2022
    • $350,000 for causes of action accruing on or after July 1, 2022

    The amendment comes on the heels of the Kansas Supreme Court’s holding in Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (Kan. 2012) (link here). In Miller, the Kansas Supreme Court upheld the $250,000 noneconomic damages cap contained in pre-amended K.S.A. 60-19a02, in the medical malpractice context. The court’s holding was based in part on the fact that due process constraints can be satisfied when the legislature provides an adequate substitute remedy, or “quid pro quo," when modifying common-law rights. The Miller court explained that as part of the quid qo pro analysis, the court must determine whether the legislature substituted an adequate statutory remedy for the modification to the individual right at issue. Miller, 295. Kan. 636, 657, 289 P.3d 1098, 1114. The court then noted that due to the reduction in buying power that accompanies inflation, the $250,000 cap on noneconomic damages provided a less commensurate remedy than when the legislature set it in 1988. Miller, 295. Kan. 636, 658, 289 P.3d 1098, 1114. The Supreme Court warned that it is possible for a substitute remedy that was adequate when originally enacted to become inadequate over time because of inflationary effects and legislative inaction over time. Id. The amendment to K.S.A. 60-19a02 addresses the concerns raised by the court in Miller by increasing the cap on non-economic damages and providing for a gradual increase in the cap to account for inflationary effects.

    Replacing Frye

    K.S.A. 60-456(b) has been amended to mirror the requirements for the admissibility of expert testimony set forth in Fed. R. Evid. 702. The amendment abolishes the Frye standard in favor of the familiar Daubert standard currently used in federal court. Under the Frye standard, when faced with a challenge to the admissibility of expert testimony, Kansas courts determined whether the expert’s methods were generally accepted in the relevant scientific community. If so, the evidence was admitted with any deficiencies attributable to either the frailty of the underlying science or the expert’s qualifications, both matters of weight for the jury. With the amendment to K.S.A. 60-456(b), Kansas judges will assume the task of "gatekeeping," or assuring that scientific expert testimony truly proceeds from scientific knowledge. This requires the trial judge to ensure that the expert's testimony is based on sufficient facts or data and is the product of reliable principles and methods.  The trial judge must also ensure that the expert has reliably applied the principles and methods to the facts of the case. See K.S.A. 60-456(b).