The Business, Entrepreneurship & Tax Law Review

Article Title

No Cap: Analyzing the Kansas Supreme Court’s Decision to Overturn Caps on Non-Economic Damages in Hilburn v. Enerpipe Ltd.


In the summer of 2019, the Kansas Supreme Court ruled that the state legislature’s cap on non-economic damages violated the state constitution’s right to trial by jury. In doing so, the Kansas high court overturned its own precedent in Miller v. Johnson, finding that the “inviolate” right to trial by jury is not subject to legislative meddling. Kansas also joined several other states, including Missouri, in rejecting a strained fact-law distinction employed by most states which uphold such caps in the face of right to jury challenges against the backdrop of “inviolate” constitutional language. There is little to no “rational basis” for enacting these caps in the first place. Accordingly, courts should consider adopting the stronger “rational basis with bite” standard of review suggested by Judge Stegall’s Hilburn concurrence, which would free courts from adhering to dubious precedent upholding caps on “procedural” grounds, and demand that statutes curtailing substantial constitutional rights maintain a legitimate connection to public welfare.