Posted: November 11, 2021

A $7 million stipulated verdict reached with the Southeastern Pennsylvania Transportation Authority recently is just the beginning. Not because SEPTA plans to file an appeal in the case, but the plaintiffs do.

That’s because under state law the government-related mass transit agency will have to pay only $250,000 of that verdict to a woman who lost part of her foot when run over by a bus making an improper turn. The state law limiting the actual payment – known colloquially as a “cap” law – is stipulated at $250,000 for a single injured person in such a case and to $500,000 when the injury is the fault of a municipality or local government.

The limits are some 40 years old, making them not only outdated, but unconstitutional, according to Tom Kline, the attorney who plans to take the matter to the Pennsylvania Supreme Court. While the cap laws have stood the test of time so far, Kline sees a dual possibility that they may no longer. One lies with the state’s highest court and the other with the legislature.

Kline is banking on the court to recognize the absurdity of the law as it applies to his current case, that of Haley Freilich, 37, of Philadelphia, whose foot was crushed and partly amputated. Her past and future medical costs alone will amount to an estimated – and SEPTA agrees -- $1 million, according to the stipulated verdict Kline and colleague Colin Burke reached with SEPTA. That’s four times the $250,000 cap. Freilich also is entitled to non-economic damages for her pain and suffering, disfigurement, and loss of life’s pleasures, Kline notes.

Kline has fought this battle with the courts before, and lost. In 2014, he won a $14 million jury verdict for teenager Ashley Zauflik, whose leg was amputated after she was struck by a school bus on school property. But the school district had to pay only $500,000 under that cap laws.

Kline, with his firm’s lead appellate lawyer, Chip Becker, appealed to the state Supreme Court. Kline notes that while the high court sustained the constitutionality of the cap at that time, one of the justices wrote a separate opinion acknowledging the unfairness of the cap and the need for the state legislature to change it.

Later, in 2019, in a case involving a woman injured in a Pittsburgh incident, the Supreme Court again refused to strike down the laws, but this time it issued another separate opinion signed by four justices – a majority – that acknowledged the unfairness of the law and urging lawmakers to consider changes.

On this second front, Kline plans to take his case to lawmakers in Harrisburg, where the Senate has convened a special Task Force on Sovereign Immunity to investigate the issue. It is planning to reach conclusions around April 2022. Kline is hoping that the need for change is recognized, made clear by Freilich’s case, one in which a defendant, SEPTA, agreed that the value of the case is $7 million but that the victim can only collect 1/28th of that amount. And the absurdity that that is not even enough to cover her medical expenses.

The challenge will be to convince the legislature to change or abolish the law, or for the state’s highest court to force such an action. The Freilich case, Kline believes, will “provide a basis for a challenge to the state sovereignty limitation” as well as the cap on municipalities.

In a statement to the news media, he said: “We intend to continue to fight for Haley Freilich and other victims to obtain fuller and fairer compensation not only by litigating this issue in the Pennsylvania appellate courts, but also by making our case to the legislature and by educating the public that the draconian cap on damages must be revised or eliminated.”