Oregon's Noneconomic Damages Cap After Busch v. McInnis

Oregon used to apply a $500,000 cap on noneconomic damages — pain, suffering, loss of enjoyment, loss of companionship — across most civil cases under ORS 31.710. That changed for personal injury cases in 2020. This article explains what the cap does and does not do today, the case that decided the question, and why a jury verdict for noneconomic damages in an Oregon personal injury case is no longer reduced to $500,000.

What ORS 31.710 says today

ORS 31.710(1) currently applies only to wrongful death claims. It reads, in relevant part: "Except for claims subject to ORS 30.260 to 30.300 and ORS chapter 656, in any civil action for the wrongful death of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages, as defined in ORS 31.705, shall not exceed $500,000."[^1]

Two other parts of the statute matter:

• ORS 31.710(2) excludes punitive damages from the cap.[^1]
• ORS 31.710(3) keeps the jury from being told about the cap during trial.[^1]

The statute's last substantive change was in 2021 (Oregon Laws 2021, chapter 478, section 1), which narrowed the cap's text to apply only to wrongful death.[^1] Before that, the same statute had been applied by Oregon trial courts to reduce noneconomic damages awards in personal injury cases as well.

Busch v. McInnis Waste Systems and the remedy clause

The trigger for the 2021 amendment was the Oregon Supreme Court's decision in Busch v. McInnis Waste Systems, Inc., 366 Or 628 (2020).[^2]

The case arose from an incident in downtown Portland. The plaintiff had the right of way and was walking across a crosswalk when he was struck by the defendant's garbage truck. He suffered an above-the-knee amputation. The defendant admitted liability. A jury awarded the plaintiff $3,021,922 in economic damages and $10,500,000 in noneconomic damages. The trial court reduced the noneconomic damages award to $500,000 under the cap then in ORS 31.710(1).[^2]

The Oregon Court of Appeals reversed. The Oregon Supreme Court allowed review and, in an opinion by Chief Justice Walters, affirmed. The Court held: "application of ORS 31.710(1), as a limit on the noneconomic damages that a court can award to a plaintiff in a personal injury action, violates the remedy clause of Article I, section 10, of the Oregon Constitution."[^2]

The Court applied the framework it announced in Horton v. OHSU, 359 Or 168 (2016), which weighs how far the legislature has departed from the common-law model against its reasons for doing so.[^2] The Court rejected the defendant's argument that allowing $500,000 in noneconomic damages was a "sufficient" remedy on its own. It also rejected the defendant's argument that the legislature's stated reason for the cap — reducing insurance costs and improving insurance availability — was constitutionally sufficient. The Court explained that the legislature had not provided plaintiffs with a quid pro quo and had not set the cap at a level capable of providing a complete recovery in many cases.[^2]

What the cap looks like for personal injury and medical malpractice today

After Busch, Oregon trial courts no longer apply ORS 31.710(1) to reduce noneconomic damages in personal injury actions, and the 2021 amendment removed personal injury from the statute's scope.[^1] Practical implications:

• A jury's noneconomic damages award in an Oregon personal injury case — including medical malpractice and motor vehicle cases against private defendants — is not automatically reduced under ORS 31.710(1).
• Post-trial motions and appellate review can still affect a verdict, but they do so on grounds independent of the now-narrowed cap.

Two areas of Oregon practice involve damages limits that come from outside ORS 31.710:

• Claims under the Oregon Tort Claims Act (against public bodies, including public hospitals) have separate damages limits in ORS 30.271 and 30.273. ORS 31.710(1) explicitly excludes OTCA claims by its own text.[^1]
• Workers' compensation is governed by ORS chapter 656 and likewise sits outside ORS 31.710.[^1]

Wrongful death is a separate question

The 2021 amendment kept the $500,000 cap in place for wrongful death claims.[^1] Busch held only that the cap violated the remedy clause as applied to a personal injury action — the Oregon Supreme Court was not asked to decide, and did not decide, whether the same cap is constitutional when applied to a wrongful death verdict.[^2]

The analysis for wrongful death is a separate thread of Oregon law, and it depends on the facts of the case and on later appellate decisions interpreting Busch. A reader trying to understand how the cap might or might not apply to a specific wrongful death claim should consult an Oregon attorney.

Why this matters

For an Oregon plaintiff with a personal injury or medical malpractice claim against a private defendant, the takeaway is straightforward: the ORS 31.710(1) cap that used to reduce $10 million verdicts to $500,000 no longer operates that way. Busch held the cap unconstitutional in that context, and the 2021 Legislature pulled personal injury out of the statute's scope. The ordinary measure of noneconomic damages in an Oregon personal injury case — what a jury determines is fair compensation for pain, suffering, disfigurement, and loss of enjoyment — is what the law allows the plaintiff to recover.

[^1]: ORS 31.710 — Noneconomic damages limited (text and history). https://oregon.public.law/statutes/ors_31.710 [^2]: Oregon Supreme Court Media Release, July 9, 2020 — Scott Raymond Busch v. McInnis Waste Systems, Inc., (CC 15CV13496) (CA A164158) (SC S066098); 366 Or 628 (2020). https://www.courts.oregon.gov/news/Lists/ArticleNews/Attachments/1287/3b02f5a371a6294c9f1a2aaaf1aa7349-07-09-20%20Opinion%20Media%20Release%20Final.pdf

This article is educational

This article describes Oregon law in general terms. It is not legal advice and does not create an attorney-client relationship.

Time limits matter. Most Oregon personal-injury and auto-accident claims must be filed within two years of the injury or accident. Medical malpractice claims must be filed within two years of when you knew or reasonably should have known of the negligence, with an outer limit of five years from the act itself (with a fraud exception). Wrongful death claims must be filed within three years of the date of death. Claims against public bodies (cities, counties, state agencies, public hospitals) require a notice of claim within 180 days. Missing these deadlines typically ends a case.

If you think you may have a claim, call Huegli Law at [PHONE] for a free case review. Todd Huegli is licensed in Oregon and consults on cases in Oregon only.