The Constitutionality of Tort Reform Damage Caps

Like many states, California has legislation in place limiting the amounts medical malpractice claimants can recover in noneconimic damages (pain and suffering). Recently, there have been indications that plaintiffs in California medical malpractice actions may renew a constitutional attack on the provisions of the Medical Injury Compensation Reform Act (MICRA), the tort reform legislation that has governed medical malpractice litigation in California for nearly 25 years. The focus of these recent attacks is MICRA's $250,000 limit on noneconomic damages.

More Than California

California is not unique in this. Many plaintiffs and their attorneys across the United States are unhappy with their own states' tort reform measures, and they are fighting them. So, let's look at one state's tort reform law ' California's MICRA ' and discuss the arguments for why it is constitutional under California's state constitution. These arguments will be applicable to constitutional challenges to many other states' tort reform measures, as well.

MICRA and Its History

The centerpiece of MICRA is Civil Code section 3333.2, which limits the amount of noneconomic damages that a medical malpractice plaintiff may recover to $250,000 “[i]n any action for injury against a health care provider based on professional negligence.” Cal. Civ. Code, ' 3333.2, subds. (a), (b).

The legislature enacted MICRA as “a comprehensive, multifaceted scheme designed to address a perceived threat to [California's] health care system.” Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114. This threat came from a dramatic rise in medical malpractice insurance premiums that endangered “[t]he continuing availability of adequate medical care [, which] depends directly on the availability of adequate insurance coverage.” Id. at p. 111.

MICRA was enacted at a special session of the California Legislature. When he called the special session, the California's then-Governor Jerry Brown stated in a proclamation, “The cost of medical malpractice insurance has risen to levels which many physicians and surgeons find intolerable. The inability of doctors to obtain such insurance at reasonable rates is endangering the health of the people of this State, and threatens the closing of many hospitals. The longer term consequences of such closings could seriously limit the health care provided to hundreds of thousands of our citizens.” Governor's Proclamation to Leg. (May 16, 1975) Stats. 1975 (1975-1976 Second Ex. Sess.) p. 3947.

MICRA's preamble states, “The Legislature finds and declares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state. The Legislature, acting within the scope of its police powers, finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health and safety considerations permit now and into the foreseeable future.” Stats. 1975 (1975-1976 Second Ex. Sess.) ch. 2, ' 12.5, p. 4007.

MICRA added or amended dozens of statutes. Stats. 1975 (1975-1976 Second Ex. Sess.) chs. 1, 2, pp. 3949-4007. MICRA is “a lengthy statute which attacked the problem on several fronts. In broad outline, the act (1) attempted to reduce the incidence and severity of medical malpractice injuries by strengthening governmental oversight of the education, licensing and discipline of physicians and health care providers, (2) sought to curtail unwarranted insurance premium increases by authorizing alternative insurance coverage programs and by establishing new procedures to review substantial rate increases, and (3) attempted to reduce the cost and increase the efficiency of medical malpractice litigation by revising a number of legal rules applicable to such litigation.” American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 363-364 (American Bank & Trust).

A Balanced Approach

MICRA took a balanced approach to cost reduction. To begin with, “the Legislature placed no limits whatsoever on a plaintiff's right to recover for all of the economic, pecuniary damages ' such as medical expenses or lost earnings ' resulting from the injury, but instead confined the statutory limitations to the recovery of noneconomic damages, and ' even then ' permitted up to a $250,000 award for such damages.” Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 159 (original emphases). The legislature allowed the recovery of up to $250,000 in noneconomic damages despite the fact that “[t]houghtful jurists and legal scholars have for some time raised serious questions as to the wisdom of awarding damages for pain and suffering in any negligence case, noting, inter alia, the inherent difficulties in placing a monetary value on such losses, the fact that money damages are at best only imperfect compensation for such intangible injuries and that such damages are generally passed on to, and borne by, innocent consumers.” Ibid.

MICRA also enacted a provision for periodic payment of future damages, Cal. Civil Code section 3333.2, as yet another means of reducing the cost of medical malpractice litigation.

Other Provisions

Other MICRA provisions mitigate the inability to recover unlimited amounts of noneconomic damages. For example, the amount of a contingent attorney fee is limited in a medical malpractice case. Cal. Bus. & Prof. Code, ' 6146, subd. (a); see Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 932 (“The Legislature may reasonably have concluded that a limitation on contingency fees in this field was an 'appropriate means of protecting the already diminished compensation' of [medical malpractice] plaintiffs from further reduction by high contingency fees”). MICRA also protects the plaintiff against reimbursement claims by those paying benefits to the plaintiff as a result of the injury caused by medical malpractice. Cal. Civ. Code, ' 3333.1, subd. (b).

If malpractice insurance is not affordable, there is “the very real possibility that many doctors would practice without insurance, leaving patients who might be injured by such doctors with the prospect of uncollectible judgments.” Fein, supra, 38 Cal.3d at p. 158; see also Id. at pp. 160-161, fn. 18 (“It should be emphasized ' that it is collecting a judgment, not filing a lawsuit, that counts ' . [A] defendant with theoretically 'unlimited' liability may be unable to pay a judgment once obtained”). One of the legislature's aims was “to insure that insurance would in fact be available as a protection for patients injured through medical malpractice.” American Bank & Trust, supra, 36 Cal.3d at p. 372.

Early Constitutional Challenge Put Down

In Fein, the California Supreme Court upheld the constitutionality of section 3333.2's limit on noneconomic damages. See also Hoffman v. United States (9th Cir. 1985) 767 F.2d 1431, 1433-1437.

Besides upholding the cap on noneconomic damages in Fein, the California Supreme Court has upheld the MICRA statutes: 1) providing for the periodic payment of future damages (American Bank & Trust, supra, 36 Cal.3d 359 (Cal. Code Civ. Proc., ' 667.7)); 2) barring reimbursement rights of collateral sources (Barme v. Wood (1984) 37 Cal.3d 174 (Cal. Civ. Code, ' 3333.1, subd. (b))); and 3) limiting the amount of a contingent attorney fee (Roa, supra, 37 Cal.3d 920 (Cal. Bus. & Prof. Code, ' 6146)). The Fein court also upheld Civil Code section 3333.1, subdivision (a), which allows a defendant to introduce evidence of collateral source benefits. Fein, supra, 38 Cal.3d at pp. 164-167.

In Fein, the Supreme Court provided a thorough analysis of the legislature's policy-making power in the area of medical malpractice litigation. The plaintiff in Fein argued that the legislature acted unconstitutionally when it limited the recoveries of medical malpractice claimants. Disagreeing, the Supreme Court began by noting that “'[i]t is well established that a plaintiff has no vested property right in a particular measure of damages, and that the Legislature possesses broad authority to modify the scope and nature of such damages.'” Fein, supra, 38 Cal.3d at p. 157 (original emphasis), quoting American Bank & Trust, supra, 36 Cal.3d at p. 368. The court said that the “Legislature retains broad control over the measure ' of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that the Legislature may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest.” Fein, at p. 158 (emphasis added). “[N]o California case of which we are aware,” the court observed, “has ever suggested that the right to recover for ' noneconomic injuries is constitutionally immune from legislative limitation or revision.” Id. at pp. 159-160.

Trial by Jury

Plaintiffs, despite the holdings in Fein, have argued that the legislature violated the constitutional right to trial by jury by limiting noneconomic damages in medical malpractice cases to $250,000.

In Yates v. Pollock (1987) 194 Cal.App.3d 195, a California Court of Appeal rejected such an argument under the California Constitution (the federal right to jury trial in civil cases does not apply to the states) because the legislature's exercise of “'broad control'” over the amount of allowable damages is within the legislature's powers. Id. at p. 200. It only makes sense that if a statutory damage limit is within the legislature's broad powers and does not violate the guarantees of equal protection and due process, the damage limitation also does not violate the right to a jury trial.

Indeed, many courts across the country have upheld statutory damage limitations against right-to-jury-trial challenges. In Etheridge v. Medical Center Hospitals (1989), 237 Va. 87, the Supreme Court of Virginia upheld a statute limiting total damages ' not just noneconomic damages ' in medical malpractice cases and rejected the plaintiff's claim that the statute violated a constitutional right to a jury trial. Said the court: “The resolution of disputed facts continues to be a jury's sole function ' . Without question, the jury's fact-finding function extends to the assessment of damages. Once the jury has ascertained the facts and assessed the damages, however, the constitutional mandate is satisfied. Thereafter, it is the duty of the court to apply the law to the facts. The limitation on medical malpractice recoveries ' does nothing more than establish the outer limits of a remedy provided by the General Assembly. A remedy is a matter of law, not a matter of fact. A trial court applies the remedy's limitation only after the jury has fulfilled its fact-finding function. Thus, [the statutory limitation] does not infringe upon the right to a jury trial because the [statute] does not apply until after a jury has completed its assigned function in the judicial process.”

In Phillips v. Mira Inc. (2004) 470 Mich. 415, Michigan's Supreme Court determined that “Plaintiff's right to a jury trial is not implicated [by the damage cap]. She has had a jury trial and the jury determined the facts of her case. The jury's function is complete.” In Smith v. Botsford General Hosp. (6th Cir. 2005) 419 F.3d 513, 519, the U.S. Court of Appeals for the Sixth Circuit also held that Michigan's damage cap did not violate the U.S. Constitution's guarantees of the rights to trial by jury and to equal protection. See also Maurin v. Hall (2004) 274 Wis.2d 28, 71 (“There can be no claim that the ' constitutional right to a trial by jury was directly infringed in this case because the case was tried to a jury, and the jury in fact decided the issue of damages”), overruled on other grounds by Bartholomew v. Patients Comp. Fund (2006) 293 Wis.2d 38 (717 N.W.2d 216; Kirkland v. Blaine County Medical Center (2000) 134 Idaho 464, 469 (the plaintiffs “had a jury trial during which they were entitled to present all of their claims and evidence to the jury and have the jury render a verdict based on that evidence. That is all to which the right to jury entitles them”); Adams v. Children's Mercy Hosp. (Mo. 1992) 832 S.W.2d 898, 907 (“Here, the jury assessed liability and then determined damages, both economic and noneconomic. With that the jury completed its constitutional task”); Boyd v. Bulala (4th Cir. 1989) 877 F.2d 1191, 1196 (“once the jury has made its findings of fact with respect to damages, it has fulfilled its constitutional function; it may not also mandate compensation as a matter of law”); Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374, 400-401, overruled on other grounds by In re Stephens (Ind. 2007) 867 N.E.2d 148.

The message of these cases is that a statutory damage limitation is not an interference with the jury's verdict; it does not usurp the jury's important (but limited) role as a fact finder. As one court put it, “[A] legislature adopting a prospective rule of law that limits all claims for pain and suffering in all cases is not acting as a fact finder in a legal controversy. It is acting permissibly within its legislative powers that entitle it to create and repeal causes of action. The right of jury trials in cases at law is not impacted. Juries always find facts on a matrix of laws given to them by the legislature and by precedent, and it can hardly be argued that limitations imposed by law are a usurpation of the jury function.” Franklin v. Mazda Motor Corp. (D.Md. 1989) 704 F.Supp. 1325, 1331 (Franklin). See also Arbino v. Johnson & Johnson (2007) 116 Ohio St.3d 468, 476 (“Courts must simply apply the limits as a matter of law to the facts found by the jury; they do not alter the findings of facts themselves, thus avoiding constitutional conflicts”); Evans ex rel. Kutch v. State (Alaska 2002) 56 P.3d 1046, 1051 (“The decision to place a cap on damages awarded is a policy choice and not a re-examination of the factual question of damages determined by the jury”); Madison v. IBP, Inc. (8th Cir. 2001) 257 F.3d 780, 804 (statutory damage cap does not violate jury-trial right “because it does not impinge upon the jury's fact finding function. In applying the provision, a court does not 'reexamine' the jury's verdict or impose its own factual determination as to what a proper award might be. Rather, it implements the legislative policy decision by reducing the amount recoverable to that deemed to be a reasonable maximum by Congress”), vacated on unrelated grounds (2002) 536 U.S. 919, overruled on unrelated grounds by Jones v. R.R. Donnelley & Sons Co. (2004) 541 U.S. 369; English v. New England Medical Center, Inc. (1989) 405 Mass. 423, 426 (“the right to a jury trial means that, with respect to those questions of fact that the substantive law makes material, the party has the right to have the determination made by a jury” and “the plaintiffs had no right to a jury determination of damages in excess of [the legislatively limited] amount”).

Some States Find Jury Role Unconstitutionally Usurped

The case law on the constitutional right to a jury trial overwhelmingly holds that the right to a jury trial is not violated when the trial court follows a statutory mandate to enter judgment for an amount different than the jury's noneconomic damage verdict. There are, however, some state courts that have held that statutory damage limitations violate the constitutional right to jury trial.

The Supreme Court of Oregon found, for example, in Lakin v. Senco Products Inc. (1999) 329 Or. 62, that Oregon's statutory cap interfereed with the resolution of a factual issue that the state constitution committed exclusively to juries. Because that constitution states that the right to a jury trial in civil cases is inviolate, the damage cap was thus unconstitutional.

In Washington State, in the case of Sofie v. Fibreboard Corp. (1989) 112 Wash.2d 636, Washington's Supreme Court held a damage cap unconstitutional. In Sofie, a husband and wife had brought a tort action against some asbestos manufacturers. The trial court entered judgment and reduced the jury award of noneconomic damages pursuant to a state statute limiting noneconomic damages recoverable by personal injury or wrongful death plaintiff. The statute in question, Washington's RCW 4.56.250 (1986), created a formula for awarding noneconomic damages that reduced such damages in accordance with the plaintiff's age. Thus, a jury would set the damage amount, but that amount would be reduced so that an older plaintiff would get a lower percentage of the total than a younger plaintiff. The court found that the statute's damages limit interfered with the jury's traditional function to determine damages, and it thus was unconstitutional.

In Moore v. Mobile Infirmary Ass'n (Ala. 1991) 592 So.2d 156, a plaintiff patient appealed from judgment reducing the amount of damages awarded to her in a medical malpractice action. The State Supreme Court held that: 1) the statute setting a $400,000 limit on noneconomic damages in medical malpractice cases violated the right to trial by jury under the Alabama constitution; and 2) the statute violated Alabama's constitutional guarantee of equal protection.

These cases notwithstanding, nationwide, most courts are finding that damage caps do not unconstitutionally impinge on the right to trial by jury.

Conclusion

In next month's issue we'll look at some more views on the issue of whether the right to trial by jury is impinged by tort-reform damage limitation measures. We will also discuss their constitutionality in the face of equal protection challenges.

David M. Axelrad, a member of this newsletter's Board of Editors, and David S. Ettinger are partners at the appellate firm of Horvitz & Levy in Encino, CA.

Like many states, California has legislation in place limiting the amounts medical malpractice claimants can recover in noneconimic damages (pain and suffering). Recently, there have been indications that plaintiffs in California medical malpractice actions may renew a constitutional attack on the provisions of the Medical Injury Compensation Reform Act (MICRA), the tort reform legislation that has governed medical malpractice litigation in California for nearly 25 years. The focus of these recent attacks is MICRA's $250,000 limit on noneconomic damages.

More Than California

California is not unique in this. Many plaintiffs and their attorneys across the United States are unhappy with their own states' tort reform measures, and they are fighting them. So, let's look at one state's tort reform law ' California's MICRA ' and discuss the arguments for why it is constitutional under California's state constitution. These arguments will be applicable to constitutional challenges to many other states' tort reform measures, as well.

MICRA and Its History

The centerpiece of MICRA is Civil Code section 3333.2, which limits the amount of noneconomic damages that a medical malpractice plaintiff may recover to $250,000 “[i]n any action for injury against a health care provider based on professional negligence.” Cal. Civ. Code, ' 3333.2, subds. (a), (b).

The legislature enacted MICRA as “a comprehensive, multifaceted scheme designed to address a perceived threat to [California's] health care system.” Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114. This threat came from a dramatic rise in medical malpractice insurance premiums that endangered “[t]he continuing availability of adequate medical care [, which] depends directly on the availability of adequate insurance coverage.” Id. at p. 111.

MICRA was enacted at a special session of the California Legislature. When he called the special session, the California's then-Governor Jerry Brown stated in a proclamation, “The cost of medical malpractice insurance has risen to levels which many physicians and surgeons find intolerable. The inability of doctors to obtain such insurance at reasonable rates is endangering the health of the people of this State, and threatens the closing of many hospitals. The longer term consequences of such closings could seriously limit the health care provided to hundreds of thousands of our citizens.” Governor's Proclamation to Leg. (May 16, 1975) Stats. 1975 (1975-1976 Second Ex. Sess.) p. 3947.

MICRA's preamble states, “The Legislature finds and declares that there is a major health care crisis in the State of California attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of this state. The Legislature, acting within the scope of its police powers, finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health and safety considerations permit now and into the foreseeable future.” Stats. 1975 (1975-1976 Second Ex. Sess.) ch. 2, ' 12.5, p. 4007.

MICRA added or amended dozens of statutes. Stats. 1975 (1975-1976 Second Ex. Sess.) chs. 1, 2, pp. 3949-4007. MICRA is “a lengthy statute which attacked the problem on several fronts. In broad outline, the act (1) attempted to reduce the incidence and severity of medical malpractice injuries by strengthening governmental oversight of the education, licensing and discipline of physicians and health care providers, (2) sought to curtail unwarranted insurance premium increases by authorizing alternative insurance coverage programs and by establishing new procedures to review substantial rate increases, and (3) attempted to reduce the cost and increase the efficiency of medical malpractice litigation by revising a number of legal rules applicable to such litigation.” American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 363-364 (American Bank & Trust).

A Balanced Approach

MICRA took a balanced approach to cost reduction. To begin with, “the Legislature placed no limits whatsoever on a plaintiff's right to recover for all of the economic, pecuniary damages ' such as medical expenses or lost earnings ' resulting from the injury, but instead confined the statutory limitations to the recovery of noneconomic damages, and ' even then ' permitted up to a $250,000 award for such damages.” Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 159 (original emphases). The legislature allowed the recovery of up to $250,000 in noneconomic damages despite the fact that “[t]houghtful jurists and legal scholars have for some time raised serious questions as to the wisdom of awarding damages for pain and suffering in any negligence case, noting, inter alia, the inherent difficulties in placing a monetary value on such losses, the fact that money damages are at best only imperfect compensation for such intangible injuries and that such damages are generally passed on to, and borne by, innocent consumers.” Ibid.

MICRA also enacted a provision for periodic payment of future damages, Cal. Civil Code section 3333.2, as yet another means of reducing the cost of medical malpractice litigation.

Other Provisions

Other MICRA provisions mitigate the inability to recover unlimited amounts of noneconomic damages. For example, the amount of a contingent attorney fee is limited in a medical malpractice case. Cal. Bus. & Prof. Code, ' 6146, subd. (a); see Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 932 (“The Legislature may reasonably have concluded that a limitation on contingency fees in this field was an 'appropriate means of protecting the already diminished compensation' of [medical malpractice] plaintiffs from further reduction by high contingency fees”). MICRA also protects the plaintiff against reimbursement claims by those paying benefits to the plaintiff as a result of the injury caused by medical malpractice. Cal. Civ. Code, ' 3333.1, subd. (b).

If malpractice insurance is not affordable, there is “the very real possibility that many doctors would practice without insurance, leaving patients who might be injured by such doctors with the prospect of uncollectible judgments.” Fein, supra, 38 Cal.3d at p. 158; see also Id. at pp. 160-161, fn. 18 (“It should be emphasized ' that it is collecting a judgment, not filing a lawsuit, that counts ' . [A] defendant with theoretically 'unlimited' liability may be unable to pay a judgment once obtained”). One of the legislature's aims was “to insure that insurance would in fact be available as a protection for patients injured through medical malpractice.” American Bank & Trust, supra, 36 Cal.3d at p. 372.

Early Constitutional Challenge Put Down

In Fein, the California Supreme Court upheld the constitutionality of section 3333.2's limit on noneconomic damages. See also Hoffman v. United States (9th Cir. 1985) 767 F.2d 1431, 1433-1437.

Besides upholding the cap on noneconomic damages in Fein, the California Supreme Court has upheld the MICRA statutes: 1) providing for the periodic payment of future damages (American Bank & Trust, supra, 36 Cal.3d 359 (Cal. Code Civ. Proc., ' 667.7)); 2) barring reimbursement rights of collateral sources (Barme v. Wood (1984) 37 Cal.3d 174 (Cal. Civ. Code, ' 3333.1, subd. (b))); and 3) limiting the amount of a contingent attorney fee (Roa, supra, 37 Cal.3d 920 (Cal. Bus. & Prof. Code, ' 6146)). The Fein court also upheld Civil Code section 3333.1, subdivision (a), which allows a defendant to introduce evidence of collateral source benefits. Fein, supra, 38 Cal.3d at pp. 164-167.

In Fein, the Supreme Court provided a thorough analysis of the legislature's policy-making power in the area of medical malpractice litigation. The plaintiff in Fein argued that the legislature acted unconstitutionally when it limited the recoveries of medical malpractice claimants. Disagreeing, the Supreme Court began by noting that “'[i]t is well established that a plaintiff has no vested property right in a particular measure of damages, and that the Legislature possesses broad authority to modify the scope and nature of such damages.'” Fein, supra, 38 Cal.3d at p. 157 (original emphasis), quoting American Bank & Trust, supra, 36 Cal.3d at p. 368. The court said that the “Legislature retains broad control over the measure ' of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that the Legislature may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest.” Fein, at p. 158 (emphasis added). “[N]o California case of which we are aware,” the court observed, “has ever suggested that the right to recover for ' noneconomic injuries is constitutionally immune from legislative limitation or revision.” Id. at pp. 159-160.

Trial by Jury

Plaintiffs, despite the holdings in Fein, have argued that the legislature violated the constitutional right to trial by jury by limiting noneconomic damages in medical malpractice cases to $250,000.

In Yates v. Pollock (1987) 194 Cal.App.3d 195, a California Court of Appeal rejected such an argument under the California Constitution (the federal right to jury trial in civil cases does not apply to the states) because the legislature's exercise of “'broad control'” over the amount of allowable damages is within the legislature's powers. Id. at p. 200. It only makes sense that if a statutory damage limit is within the legislature's broad powers and does not violate the guarantees of equal protection and due process, the damage limitation also does not violate the right to a jury trial.

Indeed, many courts across the country have upheld statutory damage limitations against right-to-jury-trial challenges. In Etheridge v. Medical Center Hospitals (1989), 237 Va. 87, the Supreme Court of Virginia upheld a statute limiting total damages ' not just noneconomic damages ' in medical malpractice cases and rejected the plaintiff's claim that the statute violated a constitutional right to a jury trial. Said the court: “The resolution of disputed facts continues to be a jury's sole function ' . Without question, the jury's fact-finding function extends to the assessment of damages. Once the jury has ascertained the facts and assessed the damages, however, the constitutional mandate is satisfied. Thereafter, it is the duty of the court to apply the law to the facts. The limitation on medical malpractice recoveries ' does nothing more than establish the outer limits of a remedy provided by the General Assembly. A remedy is a matter of law, not a matter of fact. A trial court applies the remedy's limitation only after the jury has fulfilled its fact-finding function. Thus, [the statutory limitation] does not infringe upon the right to a jury trial because the [statute] does not apply until after a jury has completed its assigned function in the judicial process.”

In Phillips v. Mira Inc. (2004) 470 Mich. 415, Michigan's Supreme Court determined that “Plaintiff's right to a jury trial is not implicated [by the damage cap]. She has had a jury trial and the jury determined the facts of her case. The jury's function is complete.” In Smith v. Botsford General Hosp. (6th Cir. 2005) 419 F.3d 513, 519, the U.S. Court of Appeals for the Sixth Circuit also held that Michigan's damage cap did not violate the U.S. Constitution's guarantees of the rights to trial by jury and to equal protection. See also Maurin v. Hall (2004) 274 Wis.2d 28, 71 (“There can be no claim that the ' constitutional right to a trial by jury was directly infringed in this case because the case was tried to a jury, and the jury in fact decided the issue of damages”), overruled on other grounds by Bartholomew v. Patients Comp. Fund (2006) 293 Wis.2d 38 (717 N.W.2d 216; Kirkland v. Blaine County Medical Center (2000) 134 Idaho 464, 469 (the plaintiffs “had a jury trial during which they were entitled to present all of their claims and evidence to the jury and have the jury render a verdict based on that evidence. That is all to which the right to jury entitles them”); Adams v. Children's Mercy Hosp. (Mo. 1992) 832 S.W.2d 898, 907 (“Here, the jury assessed liability and then determined damages, both economic and noneconomic. With that the jury completed its constitutional task”); Boyd v. Bulala (4th Cir. 1989) 877 F.2d 1191, 1196 (“once the jury has made its findings of fact with respect to damages, it has fulfilled its constitutional function; it may not also mandate compensation as a matter of law”); Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374, 400-401, overruled on other grounds by In re Stephens (Ind. 2007) 867 N.E.2d 148.

The message of these cases is that a statutory damage limitation is not an interference with the jury's verdict; it does not usurp the jury's important (but limited) role as a fact finder. As one court put it, “[A] legislature adopting a prospective rule of law that limits all claims for pain and suffering in all cases is not acting as a fact finder in a legal controversy. It is acting permissibly within its legislative powers that entitle it to create and repeal causes of action. The right of jury trials in cases at law is not impacted. Juries always find facts on a matrix of laws given to them by the legislature and by precedent, and it can hardly be argued that limitations imposed by law are a usurpation of the jury function.” Franklin v. Mazda Motor Corp. (D.Md. 1989) 704 F.Supp. 1325, 1331 (Franklin). See also Arbino v. Johnson & Johnson (2007) 116 Ohio St.3d 468, 476 (“Courts must simply apply the limits as a matter of law to the facts found by the jury; they do not alter the findings of facts themselves, thus avoiding constitutional conflicts”); Evans ex rel. Kutch v. State (Alaska 2002) 56 P.3d 1046, 1051 (“The decision to place a cap on damages awarded is a policy choice and not a re-examination of the factual question of damages determined by the jury”); Madison v. IBP, Inc. (8th Cir. 2001) 257 F.3d 780, 804 (statutory damage cap does not violate jury-trial right “because it does not impinge upon the jury's fact finding function. In applying the provision, a court does not 'reexamine' the jury's verdict or impose its own factual determination as to what a proper award might be. Rather, it implements the legislative policy decision by reducing the amount recoverable to that deemed to be a reasonable maximum by Congress”), vacated on unrelated grounds (2002) 536 U.S. 919, overruled on unrelated grounds by Jones v. R.R. Donnelley & Sons Co. (2004) 541 U.S. 369; English v. New England Medical Center, Inc. (1989) 405 Mass. 423, 426 (“the right to a jury trial means that, with respect to those questions of fact that the substantive law makes material, the party has the right to have the determination made by a jury” and “the plaintiffs had no right to a jury determination of damages in excess of [the legislatively limited] amount”).

Some States Find Jury Role Unconstitutionally Usurped

The case law on the constitutional right to a jury trial overwhelmingly holds that the right to a jury trial is not violated when the trial court follows a statutory mandate to enter judgment for an amount different than the jury's noneconomic damage verdict. There are, however, some state courts that have held that statutory damage limitations violate the constitutional right to jury trial.

The Supreme Court of Oregon found, for example, in Lakin v. Senco Products Inc. (1999) 329 Or. 62, that Oregon's statutory cap interfereed with the resolution of a factual issue that the state constitution committed exclusively to juries. Because that constitution states that the right to a jury trial in civil cases is inviolate, the damage cap was thus unconstitutional.

In Washington State, in the case of Sofie v. Fibreboard Corp. (1989) 112 Wash.2d 636, Washington's Supreme Court held a damage cap unconstitutional. In Sofie, a husband and wife had brought a tort action against some asbestos manufacturers. The trial court entered judgment and reduced the jury award of noneconomic damages pursuant to a state statute limiting noneconomic damages recoverable by personal injury or wrongful death plaintiff. The statute in question, Washington's RCW 4.56.250 (1986), created a formula for awarding noneconomic damages that reduced such damages in accordance with the plaintiff's age. Thus, a jury would set the damage amount, but that amount would be reduced so that an older plaintiff would get a lower percentage of the total than a younger plaintiff. The court found that the statute's damages limit interfered with the jury's traditional function to determine damages, and it thus was unconstitutional.

In Moore v. Mobile Infirmary Ass'n (Ala. 1991) 592 So.2d 156, a plaintiff patient appealed from judgment reducing the amount of damages awarded to her in a medical malpractice action. The State Supreme Court held that: 1) the statute setting a $400,000 limit on noneconomic damages in medical malpractice cases violated the right to trial by jury under the Alabama constitution; and 2) the statute violated Alabama's constitutional guarantee of equal protection.

These cases notwithstanding, nationwide, most courts are finding that damage caps do not unconstitutionally impinge on the right to trial by jury.

Conclusion

In next month's issue we'll look at some more views on the issue of whether the right to trial by jury is impinged by tort-reform damage limitation measures. We will also discuss their constitutionality in the face of equal protection challenges.

David M. Axelrad, a member of this newsletter's Board of Editors, and David S. Ettinger are partners at the appellate firm of Horvitz & Levy in Encino, CA.