An attorney for a plaintiff whose $14 million verdict was reduced to $500,000 urged the state Supreme Court to overturn two decisions that found statutory damages caps are constitutional.

Thomas R. Kline of Kline & Specter told the justices Tuesday that the plain language of the state constitution prohibits damages caps on verdicts against local agencies.

Kline, who argued before the court on behalf of the plaintiff in Zauflik v. Pennsbury School District, said the plain language of the state constitution did not allow a statutory cap on damages against political subdivisions, and that the 1981 case Carroll v. County of York and the 1986 case Smith v. City of Philadelphia were wrongly decided. In both cases, the state Supreme Court held that the General Assembly could make political subdivisions immune from liability despite the limitations imposed on the plaintiffs.

“There is stare decisis and it’s binding, but the fact is” the plain language reads otherwise, Kline said. “I don’t know how you can read the constitution and read it as anything other than … the General Assembly cannot” impose a cap.

In Zauflik, a Bucks County jury awarded plaintiff Ashley Zauflik $14 million for pelvic injuries and the loss of her leg after a school bus driver hit the accelerator instead of the brake, striking her while she was standing on the sidewalk. Zauflik, who had been standing with a group of students, was the most catastrophically injured when the bus jumped the curb. In July 2013, the Commonwealth Court, in a 2-1 decision, upheld the molding of the verdict to the $500,000 statutory cap.

Judge Renee Cohn Jubelirer, writing for the majority, said the circumstances of the case are tragic but “we are constrained by the precedential case law that has previously upheld the constitutionality of the statutory cap of the Tort Claims Act multiple times. It is the role of the General Assembly, not this court, to make the difficult policy decisions and enact them into law if such decisions receive the support of the necessary majority.”

Jubelirer noted both the Smith and Carroll cases in support of her decision.

Justice Max Baer asked Kline how the court would be able to disregard the prior cases.

“Given Smith [which interpreted the historical context of the law and found it to be constitutional] … how do you get around stare decisis, which bars us even if we think it’s wrong” from holding otherwise, Baer asked.

Kline answered that the majority in Smith wrongly decided the case based on a “faulty fact,” and that his case presented several arguments that had not yet been considered by the high court. He further contended that the court should follow the court’s reasoning in the 1973 case Ayala v. Philadelphia Board of Public Education, which held that the cap was unconstitutional.

Stephen A. Cozen of Cozen O’Connor, who argued the case for Pennsbury School District, countered that Ayala had no precedential value in the Zauflik case, and that, because the General Assembly has the power to bar cases as a matter of governmental immunity, it can put any limit on damages.

“The legislature has the absolute unfettered right,” Cozen said. “It can abolish it completely.”

Kline outlined five challenges to the constitutionality of the damages cap. He said three challenges, including his contention that the cap violated Article I, Section 7 of the state constitution, which includes a provision guaranteeing open courts to Pennsylvania citizens, were novel arguments.

Justice Thomas G. Saylor, who at one point noted that constitutional concerns can outweigh issues of stare decisis, asked Kline how the plaintiff’s position could be reconciled with the second line of Section 7, which states that the legislature can direct the manner in which suits are brought against state agencies.

According to Kline, the law drew a distinction between the commonwealth and political subdivisions, and did not encompass the latter.

However, Cozen said the majority’s opinion in Carroll specifically interpreted the law as encompassing both the commonwealth and the political subdivisions.

During the argument session, the justices additionally focused their questions on the rationality of a damages cap.

Justice J. Michael Eakin asked Kline if a $100 million cap would be unconstitutional, and Justice Correale F. Stevens asked Cozen whether a $1 cap would be reasonable. Stevens additionally asked Cozen whether it was fair that the value of the $500,000 cap has fallen significantly since the cap was imposed.

Cozen said any cap, including a $1 cap, was legally reasonable, and that any concerns about the fairness of slashing the verdict should be considered by the state assembly and not the courts.

“I don’t think it’s unfair in a legal sense,” Cozen said. “You might think it’s unfair in an individual case,” but that’s the law.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •