Kansas Senate passes bill prohibiting attorneys from suggesting damage amounts in civil suits

Opponents raise concerns about victims finding justice in Kansas courts

By Morgan Chilson

TOPEKA — The Senate approved legislation Wednesday that would make Kansas the first state in the nation to stop attorneys from recommending to juries a dollar amount for noneconomic damages, such as pain and suffering, in civil lawsuits.

Senate Bill 413 limits a process called “anchoring,” which refers to proposing an amount for damages early in a trial that then sticks with jurors, causing them to sometimes give “exorbitant” amounts in civil cases, said Sen. Kellie Warren, a Leawood Republican who is an attorney.

“We had heard that sometimes this starts as early as when you’re empaneling the jury and you’re selecting jurors, asking them questions: ‘Well, how would you feel if this trial were about a person who had been injured to the amount of $72 million because they were involved in this car accident,’ ” Warren said.

The Senate voted to send the measure to the Kansas House on a vote of 29-11, with Republican Sens. Caryn Tyson and Tim Shallenburger voting with nine Democrats against the bill.

Sen. Cindy Holscher, D-Overland Park, denounced the bill because it would prevent juries from making “fully informed decisions” and undermine the ability of people harmed by others to find justice in Kansas. She said such a law would muzzle voices of people injured in nursing homes or in sexual abuse cases who turned to a lawsuit in an attempt to hold wrongdoers accountable.

Sen. Joseph Claeys, R-Salina, cited studies by top authorities that found people are influenced by numbers mentioned to them, often without realizing it. That process of “anchoring” creates a cognitive bias, which can link an amount in a juror’s thoughts to the case they’re deciding and lead them to determine higher dollar compensations than they otherwise might, he said.

In an explanation of his vote for the bill, Claeys said simply: “Trust the science.”

Sen. Ethan Corson, a Prairie Village Democrat who is an attorney, said SB 413 would make Kansas the most restrictive state in the country, and also said it would harm some of the most vulnerable people who seek damages in lawsuits, such as sexual abuse and assault survivors, children and elderly people.

“These are all the kinds of Kansans who would be adversely affected by this bill, by not being able to have an attorney advocate for what they believe is a proper recovery for the damage because they would not, in those instances of sexual abuse or sexual assault, necessarily be able to provide a (tax form) or a line on a spreadsheet or a specific amount of lost earnings that they would have suffered,” he said.

The bill would ban attorneys from mentioning a specified dollar amount, a range of dollar amounts, a mathematical formula or units of time, or a reference to objects or values lacking connection to the facts. It was supported by the Kansas Chamber of Commerce, the Kansas Hospital Association and other business organizations.

Senate Minority Leader Dinah Sykes, D-Lenexa, said the bill would strip Kansans of “their rights, their voices and their power.”

“Free speech has been the phrase or the topic of the session so far, and I think it is unfair for us to put a thumb on the scale of judicial proceedings,” she said. “I believe that the proponents of this bill are underestimating the will of the jury and the ability to go higher or lower than what is suggested by a plaintiff’s counsel.”

Warren disagreed that any voices are silenced in the process, saying SB 413 allows the process to proceed more fairly than currently, keeping both sides in mind and allowing jurors to make an independent determination rather than be led by counsel.

“Trials and the process of civil litigation is all about fairness, and fairness to both plaintiffs and defendants,” she said. “We’re kind of not talking about both sides in some of the arguments that we heard, and this bill provides fairness to both.”

The bill will move to the Kansas House for consideration.