The Maryland damages cap in personal injury and wrongful deaths cases has unfairly penalized the most catastrophically injured for years. Will Maryland's highest court recognize this and strike the cap?

Maryland's highest court recently heard arguments in a tragic wrongful death and survival action involving the drowning of a child at Crofton Country Club. The case had gone to trial in the Circuit Court for Anne Arundel County and resulted in an award of two million dollars to each of the child's parents.

The trial judge applied Maryland's non-economic damages cap to the jury award and reduced the verdict to around $1.3 million. The trial judge had also refused to permit the jury to consider whether the child endured conscious pain and suffering before drowning.

The case was appealed to Maryland's intermediate appellate court where the trial court's ruling regarding the victim's conscious pain and suffering was reversed. The Court of Special Appeals ruled that the damages cap was constitutional. thereafter both parties petitioned Maryland's highest court for review culminating in the recent oral arguments.   

The inevitable question, is there any prospect that the non-economic damages cap will be thrown out?

If Maryland history is any guide this seems highly unlikely. In the 1992 case of Murphy v. Edmonds the cap was upheld and has withstood challenges ever since. The cap originated in 1986 in response to the "insurance crisis". This fictional event was drummed up by doctors, hospitals and the insurance industry and has been held out as a basis for keeping the cap despite the fact that no evidence of its existence has ever been proffered.

Many states have seen their non-economic damages caps overturned as unconstitutional including Wisconsin, Georgia and Illinois.

Their is some precedent for Maryland's Court of Appeals in overturning aspects of the cap hearkening back to the case of United States v. Streidel in 1993. That case overturned the case of Pepco v. Smith and found (quite correctly) that the Maryland law as written did not apply to wrongful death actions.

The present case does not present such a clear cut case of a law being inapplicable and it seems highly improbable that the present case, D.R.D. Pool Service, Inc. v. Freed, will free Marylanders from the unfair embrace of the non-economic damages cap.  Here's hoping though.