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Many "tort reforms" found to be unconstitutionalWhile many state legislatures, including those in Missouri and Illinois, have imposed substantial restrictions on the right to trial by jury in order to protect negligent corporations, many state Supreme Courts have ruled that such reforms infringe on fundamental constitutional rights and have struck down such "reforms".

Wisconsin: In 2005, the Supreme Court of Wisconsin held the state’s $350,000 non-economic damages cap was an unconstitutional violation of the equal protection clause of Wisconsin’s constitution. Ferndon v. Wisconsin Patient’s Compensation Fund, 701 N.W.2d 440 (Wisc. 2005).

The Wisconsin Court examined the non-economic damage cap under a rational basis standard, meaning that individuals are not required to be treated identically, but any distinctions must be relevant to the purpose motivating the classification. Id. at 459. The Court then examined the classification: those who are severely injured (with more than $350,000 in non-economic loss) vs. those who are less severely injured (with less than $350,000 in non-economic loss). Because the law also required a single cap apply to the parents, spouse, and children of a medical malpractice victim, a second classification divided those with families (who would recover less than their full damages under the cap) vs. those without families (who might recovery fully).

Though the Wisconsin legislature intended to ensure the quality of health care for the people of Wisconsin, the Court found it could not do so by shielding negligent health care providers from responsibility for their negligent actions. "After all, it is a major contradiction to legislate for quality health care on one hand, while on the other hand, in the same statute, to reward negligent health care providers. A cap on noneconomic damages diminishes tort liability for health care providers and diminishes the deterrent effect of tort law." Id. at 464.

The Wisconsin Court found the burden of the non-economic damages cap fell entirely on the most seriously injured victims of medical malpractice – those who suffered the most severe injuries would not be fully compensated, while those who suffered only minor injuries with lower non-economic damages would be fully compensated. Id. at 465. The cap also had a disproportionate effect on young people (who must live longer with their non-economic damages) and those with families (who must share the cap with family members).

Ultimately the Court ruled Wisconsin’s cap was "arbitrary and create[d] an undue hardship on a small unfortunate group of plaintiffs." Id. at 466. There was no rational basis for this brand of "tort reform". The non-economic damage cap was not rationally related to any of the following:

  • Non-economic cap not rationally related to compensating victims fairly
  • Non-economic cap not rationally related to lowering medical malpractice insurance premiums
  • Non-economic cap not rationally related to maintaining the Wisconsin Patient’s Compensation Fund
  • Non-economic cap not rationally related to lowering overall health care costs for consumers
  • Non-economic cap not rationally related to ensuring quality health care

Georgia: Georgia passed its own "tort reform" legislation in 2005, also enacting a $350,000 non-economic damage cap. In a unanimous decision the Supreme Court of Georgia ruled that the "tort reform" legislation violated the constitutional right to trial by jury.

"Tort reform" "clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function." Georgia Supreme Court

The Georgia Court found that the non-economic cap unconstitutionally infringed on the right to trial by jury because the cap arbitrarily disregards the jury’s findings and undermines the jury’s basic function. Atlanta Oculoplastic Surgery v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010). Moreover, the fact that the cap permits full recovery up to $350,000 cannot save the "tort reform" from constitutional attack.

"If the legislature may constitutionally cap recovery at $350,000, there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1."

The Georgia decision confirms that you can’t violate the constitution "just a little". You either violate the constitution or you do not. An arbitrary reduction of the jury’s award, no matter how small or what the amount, is an unconstitutional encroachment on the right to trial by jury.

Illinois: In 2010, the Supreme Court of Illinois struck down the Illinois non-economic damage cap as an unconstitutional violation of separation of powers. Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010). The Court interpreted the non-economic damages cap as requiring a court to "override the jury’s deliberative process and reduce any non-economic damages in excess of the statutory cap, irrespective of the particular facts and circumstances, and without the plaintiff’s consent." Id. at 908. The separation of powers clause prohibits one branch of government from exercising powers belonging to another. The Court found that the cap duly encroached on the judiciary’s "sphere of authority" and "impede[d] the courts int he performance of their functions." Id. at 909, 912.

Washington: In 2006, the Washington legislature enacted "tort reform" which required plaintiffs in medical malpractice cases to provide 90 days’ notice of the plaintiff’s intention to file a lawsuit. The Washington Supreme Court found the "tort reform" law to be an unconstitutional violation of separation of powers. Waples v. Yi, 234 P.3d 187, 195 (Wash. 2010).

West Virginia: Though West Virginia’s Supreme Court upheld a $500,000 non-economic damage cap earlier this year, a powerful dissent by Judge Wilson illustrates why the Court got it wrong.

When the Legislature turns against its constituency in favor of pressure groups with selfish interests, it is the peoples’ right to seek help from their Supreme Court, and it is the duty of the judicial branch to exercise its proper role in the "separation of powers" to void legislation that violates the constitutional rights of its citizens.

Malpractice victims’ damages may be primarily noneconomic with permanent disfigurement, maiming, and even death caused by a medical professional’s negligence. The capital facts of human suffering are hidden from our view. An unknown number of medical negligence victims can no longer use the court system because of the cap and the fact that lawyers are no longer willing to risk huge litigation expenses for a low net return for their clients and themselves. The cap deprives the injured of their right to full compensation for their injuries. But, in the most serious cases, it also deprives the injured person’s loved ones-their caretakers-ALL of their damages. Thus, in Robinson each of the parents’ respective $1,000,000 awards by the jury were taken away, and the $1,500,000 awarded to the child was reduced to $1,000,000, the cap at the time. And, in MacDonald, all of the compensation the jury awarded to Mrs. MacDonald was taken by the cap.

Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

How could the majority in MacDonald avoid the reverberating "NO" answer to these questions…?


The majority in MacDonald dismissed the idea that the cap deprived Mrs. MacDonald of her constitutional right to a jury trial despite the fact that all of the damages awarded to her by the jury were taken away by the cap. The Court’s justification was that our State Constitution does not state that “the right to trial by jury shall remain inviolate.” That is not the law.

The Court’s degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase “the right to trial by jury shall remain inviolate” in its constitution makes no sense.


Not affecting fundamental rights? The right of equal treatment is also a very fundamental right. How can a damage cap that blatantly favors a special class of medical professional by limiting or taking away the damages an injured person may recover from a medical professional be constitutional? No other person who negligently injures another person is given that unconstitutional protection. Would any West Virginia legislator suggest that lawyers be given that special protection? I doubt it.

This is what this case is really about:

It’s about all of those West Virginians who don’t understand what the West Virginia Legislature did to them. They don’t understand what being deprived of meaningful “noneconomic” damages means to the seriously injured West Virginian. Those who would mislead the public, disparage noneconomic damages as not being serious damages. That is false.

“Noneconomic damages” are not limited to pain and suffering or loss of consortium. They include damages for the loss of the ability to have children, the loss of a limb, or disfigurement. In many medical negligence cases “economic damages are minuscule.” “Economic damages” are those damages that include lost wages, medical bills and other types of economic losses.

If a mother or a father is not earning wages because she or he chooses to stay home with little children, there is no lost wages claim when that person is the victim of medical negligence.

Those medical bills that mom or dad regularly paid a substantial sum to an insurance company to cover in the event they were needed, and when hospital and doctor bills are incurred because of medical malpractice, the medical expenses will, in most cases, be paid- are paid- by their health insurance company and can be recovered as economic damages. But that’s not as promising as it sounds. The rest of the story is that mom and dad now have to reimburse their health insurance company for those medical payments! That’s right-mom and dad not only have to pay the insurance premiums for the insurance in the event of a loss, they now have to pay the costs to bring the lawsuit to seek a jury award covering those expenses, pay the attorney for representing them, and then they have to reimburse the health insurance company for the medical bills that were covered by the insurance that mom and dad paid for. It’s a wonderful business world for insurance companies.

This case is about what has already happened to the malpractice victims in the three West Virginia cases that challenged the constitutionality of the malpractice cap. These are real people who deserved more when they pursued justice in our West Virginia courts.

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial. The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it’s not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

"Tort reform" protects and rewards negligent actors and makes us all less safe. It also undermines our most important constitutional safeguard. As the Georgia Supreme Court said, "tort reform" "clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function."

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

Tort "reforms" also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff’s actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.

[More on your 7th Amendment Rights]

(c) Copyright 2011 Brett A. Emison

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