VERNON BEST, Appellee, v. TAYLOR MACHINE WORKS et al., Appellants.—JONATHAN ISBELL, Adm‘r of the Estate of Steven A. Kelso, Appellee, v. UNION PACIFIC RAILROAD COMPANY et al., Appellants.
Nos. 81890, 81891, 81892, 81893 cons.
Supreme Court of Illinois
December 18, 1997
179 Ill. 2d 367
BILANDIC, J., specially concurring.
MILLER, J., concurring in part and dissenting in part.
John W. Hoffman and Michael Reda, of Evans & Dixon, of Edwardsville, for appellant Taylor Machine Works.
Karen L. Kendall, of Peoria, and Robert H. Schultz, Jr., and Robert D. Rowland, of Edwardsville, all of Heyl, Royster, Voelker & Allen, for appellant Lee Helms, Inc.
Timothy M. Palumbo, of Chicago, and Gary S. Wolfe
Thomas E. Jones and Leslie G. Offergeld, of Walker & Williams, P.C., of Belleville, and Richard K. Willard, Thomas M. Barba and Brian J. Leske, of Steptoe & Johnson, LLP, of Washington, D.C., for appellants Union Pacific Railroad Co. and Donald F. Cain.
Jon G. Carlson and Eric J. Carlson, of Carlson, Wendler & Associates, P.C., of Edwardsville, Theodore R. Diaz and David W. Dugan, of Pitts, Dugan & Diaz, of Wood River, Charles R. Abele, of St. Louis, Missouri, and Laurence H. Tribe, of Cambridge, Massachusetts, for appellee Vernon Best.
Jon G. Carlson and Eric J. Carlson, of Carlson, Wendler & Associates, P.C., of Edwardsville, and Laurence H. Tribe, of Cambridge, Massachusetts, for appellee Jonathan Isbell.
Barbara A. Preiner, Solicitor General, of Chicago (Deborah L. Ahlstrand, A. Benjamin Goldgar and Laura M. Wunder, Assistant Attorneys General, of counsel), for intervenor James E. Ryan, Attorney General.
Joan M. Mannix and Margaret Pardo, of Addison, for amicus curiae Breast Implant Information Exchange.
Kathy Byrne, of Cooney & Conway, of Chicago, for amici curiae Brotherhood of Heat & Frost Insulators, Local 17 et al.
Ellen A. Yearwood, of Springfield, for amicus curiae Illinois NOW Legal & Education Fund.
JUSTICE MCMORROW delivered the opinion of the court:
This consolidated appeal arises from two personal injury tort actions filed in the circuit court of Madison County, in which the plaintiffs sought declaratory and injunctive relief against enforcement of “An Act to amend certain Acts in relation to civil actions, *** the Civil Justice Reform Amendments of 1995.” Pub. Act 89-7, eff. March 9, 1995 (hereafter Public Act 89-7 or the Act). In both cases, plaintiffs sought partial summary judgment on the grounds that the Act violated the
Defendants timely appealed the circuit court‘s order to this court, and we consolidated the cases. We allowed
We also granted the following organizations leave to submit briefs amicus curiae: (1) Illinois Hospital & Healthsystems Association and the Metropolitan Chicago Healthcare Council, (2) Illinois State Medical Society, (3) Product Liability Advisory Council, Inc., (4) Illinois Manufacturers’ Association, (5) Illinois Association of Defense Trial Counsel, (6) Illinois Civil Justice League, (7) Illinois State Federation of Labor and Congress of Industrial Organizations and Ironworker‘s District Council of Greater Chicago, (8) Illinois State Council of Senior Citizens, Families Advocating Injury Reduction (FAIR), Union of Needletrades, Industrial and Textile Employees (UNITE), Coalition for Consumer Rights, Citizen Action/Illinois Chapter, Metro Seniors in Action, Tenth Congressional District AFL-CIO, Champaign County Health Care Consumers, Citizen Advocacy Center and Coalition of Citizens With Disabilities in Illinois, (9) Illinois State Bar Association, (10) National Association for the Advancement of Colored People and the Cook County Bar Association, (11) Illinois NOW Legal and Education Fund and Breast Implant Information Exchange, (12) Chicago Bar Association, and (13) the Brotherhood of Heat and Frost Insulators, Local 17, and the Southeast Environmental Task Force.
The parties agree that Public Act 89-7 effects substantial changes to numerous aspects of tort law. The parties further agree that the challenged provisions of Public Act 89-7 pertain primarily to personal injury actions as distinct from business-related torts, defamation, or other actions not involving physical injury. There is also no dispute that the heart of Public Act 89-7 is the $500,000 limit on compensatory damages for injuries that are considered “non-economic” in nature (
The role of this court in considering the constitutionality of Public Act 89-7 is not to judge the prudence of the General Assembly‘s decision that reform of the civil justice system is needed. We recognize that we should not and need not balance the advantages and disadvantages of reform. See People v. Warren, 173 Ill. 2d 348 (1996); see also Cutinello v. Whitley, 161 Ill. 2d 409 (1994). Rather, as the highest court in this state, we must determine the meaning and effect of the Illinois Constitution in light of the challenges made to the legislation in issue. Warren, 173 Ill. 2d at 355-56.
Courts should begin any constitutional analysis with the presumption that the challenged legislation is constitutional (People v. Shephard, 152 Ill. 2d 489 (1992)), and it is the plaintiff‘s burden to clearly establish that the challenged provisions are unconstitutional (Bernier v. Burris, 113 Ill. 2d 219 (1986)). However, the Illinois Constitution is not a grant, but a limitation on legislative power. People v. Chicago Transit Authority, 392 Ill. 77 (1945); Italia America Shipping Corp. v. Nelson, 323 Ill. 427 (1926); Taylorville Sanitary District v.Winslow, 317 Ill. 25 (1925). It is this court‘s duty to interpret the law and to protect the rights of individuals against acts beyond the scope of the legislative power. People ex rel. Huempfner v. Benson, 294 Ill. 236 (1920). If a statute is unconstitutional, this court is obligated to declare it invalid. Wilson v. Department of Revenue, 169 Ill. 2d 306 (1996). This duty cannot be evaded or neglected, no matter how desirable or beneficial the legislation may appear to be. Wilson, 169 Ill. 2d at 310; Grasse v. Dealer‘s Transport Co., 412 Ill. 179, 190 (1952).
For the reasons stated below, we determine that the following provisions of Public Act 89-7 violate the Illinois Constitution: (1) the limitation on compensatory damages for noneconomic injury (
BACKGROUND
Plaintiff, Vernon Best, was injured on July 24, 1995, while he was operating a forklift for his employer, Laclede Steel Company, in Alton, Illinois. The forklift was designed and manufactured by Taylor Machine Works (Taylor) and sold by Allied Industrial Equipment Corporation (Allied). Best sustained injuries when the forklift‘s mast and support assembly collapsed while Best was moving slabs of hot steel. As a result of the collapse, flammable hydraulic fluid manufactured by Lee Helms, Inc. (Helms), ignited and engulfed Best in a fireball. While on fire, Best leaped from the cab of the
Best filed a product liability action seeking damages against Taylor, Allied and Helms. In his amended complaint, Best alleges that the forklift and hydraulic fluid were defective and not reasonably safe. As to Taylor and Allied, Best alleges strict product liability, negligence, breaches of implied and express warranties, and breach of warranty for a particular purpose. As to Helms, Best alleges strict product liability, negligence and breach of implied warranty.
Best alleges that he sustained lost earnings, he anticipates diminished future earnings, he has incurred past medical expenses, and he will incur future medical expenses as a result of his injuries. Best anticipates that he will need vocational rehabilitation and convalescent care because of his injuries. He further alleges that his injuries are severe, disfiguring and permanent. Best states that he has suffered and will continue to suffer from grievous pain and anguish from his injuries. He further asserts that he has had a painful and lengthy experience as a patient in a hospital burn unit, and has undergone numerous surgeries.
In his amended complaint, Best seeks compensatory damages for all injuries. Best alleges that he has incurred and will incur noneconomiс damages in excess of $500,000. He also seeks declaratory and injunctive relief against Public Act 89-7 on the grounds that the Act violates the Illinois Constitution.
The second action arises out of the death of 20-year-old Steven Kelso, who was killed by a train at a railroad crossing in Madison County, Illinois, on December 12, 1995. At the time of his death, Kelso was driving a truck for his employer. Union Pacific owned the train that killed Kelso, and Donald Cain operated the train at the time of Kelso‘s death.
In the circuit court, defendants in both actions moved to dismiss the counts for declaratory and injunctive relief, on the grounds that the constitutionality of Public Act 89-7 was not ripe for adjudication. Both plaintiffs filed motions for partial summary judgment on those counts, and entreated the circuit court to invalidate Public Act 89-7. Plaintiffs filed expert opinion affidavits in support of their partial motions for summary judgment. Defendants did not file counteraffidavits.
Upon consolidating the cases, the circuit court denied defendants’ motions to dismiss, and granted plaintiffs’ motions for partial summary judgment. The circuit court ruled that 15 specific provisions of Public Act 89-7 were unconstitutional and that the Act as a whole was unconstitutional. The court noted that the Act overruled more than 70 decisions of this court and the appellate court, and constituted a “wholesale reconstruction of the judiciary.” Pursuant to
ANALYSIS
Initially, we note that in striking down Public Act 89-7, the circuit court referenced the “demeanor” of the legislature during consideration of the Act, as shown by the legislative history. The history of Public Act 89-7 shows that the Act was initially introduced in the House of Representatives as House Bill 20, on November 30, 1994. See generally
More than two months later, on February 14, 1995, House Bill 20 was released to members of the House as “amended.” The amendment to House Bill 20 consisted of 67 pages of text, and mirrors the currently enacted provisions of Public Act 89-7 now before this court. On February 15, 1995, the House Executive Committee held a meeting to consider House Bill 20, and approved it without change. The day following committee approval, House Bill 20 was presented to the full House of Representatives. A majority of the House voted in favor of House Bill 20.
Two weeks later, the Illinois Senate Judiciary Committee held a two-day hearing to consider House Bill 20, and voted to adopt it without change. The bill went to the Senate, where it received the votes necessary for adoption. On March 9, 1995, House Bill 20 was signed into law as Public Act 89-7.
Before the circuit court, plaintiffs argued, and the court agreed, that the “fast track” stratagem adopted by the bill‘s proponents was designed to curtail delibera-
I. Ripeness
In the circuit court, pursuant to section 2-615 of the Code of Civil Procedure (
Before this court, defendants maintain that the majority of the circuit court‘s rulings do not involve an actual case or controversy, which is required to sustain an action for declaratory judgment. They argue that the underlying facts and issues in this case are so premature as to require the court to pass judgment on mere abstract propositions of law, or render an advisory opinion.
The question of ripeness requires a determination with respect to whether there is a case or controversy under section 2-701 of the Code of Civil Procedure (
We believe that plaintiffs’ complaint challenging the constitutionality of Public Act 89-7 portends “the ripening seeds of litigation.” Miles Kimball Co. v. Anderson, 128 Ill. App. 3d 805, 807 (1984). For example, plaintiff Best asserts a product liability claim to recover compensatory damages for bodily injuries allegedly sustained at the hands of defendants Allied, Taylor, and Helms. Best alleges that his compensatory damages for noneconomic injuries will exceed $500,000. Public Act 89-7, inter alia, limits such damages to $500,000 in all negligence and product liability actions brought on account of death, bodily injury, or physical damage to property. See
We believe that plaintiffs have alleged a sufficient and direct interest in the application of the challenged provisions of Public Act 89-7 to their lawsuits. In deciding the constitutionality of Public Act 89-7 we are not ruling on mere abstract principles of law or prematurely deciding issues in the absence of an actual case or controversy. The course of future litigation in these consolidated cases necessarily will be controlled by reso-
II. The Cap on Noneconomic Damages
Plaintiffs challenge the $500,000 limit on compensatory damages for noneconomic injuries set forth in section 2-1115.1 of the Code of Civil Procedure (
A. Background to Section 2-1115.1
Section 2-1115.1(a) provides:
“In all common law, statutory or other actions that seek damages on account of death, bodily injury, or physical damage to property based on negligence, or product liability based on any theory or doctrine, recovery of noneconomic damages shall be limited to $500,000 per plaintiff. There shall be no recovery for hedonic damages.”
735 ILCS 5/2-1115.1(a) (West 1996).
Section 2-1115.1(d) provides that nothing in section 2-1115.1 shall be construed to create a right to recover noneconomic damages. The statute defines “noneconomic damages” as “damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society.”
The cap on compensatory damages for noneconomic injury is, as the parties acknowledge, at the heart of
In addition to the above legislative “findings,” the preamble to Public Act 89-7 states legislative “purposes” which relate to the limit on noneconomic damages. These purposes may be summarized as follows: reduce the cost of health care and increase accessibility to health care, promote consistency in awards, reestablish the credibility of the civil justice system, establish parameters or guidelines for noneconomic damages, protect the economic health of the state by decreasing systemic costs, and ensure the affordability of insurance.
The preamble also declares, “It is the public policy of this State that injured persons injured through negligence or deliberate misconduct of another be af-
In the circuit court, defendants maintained that the Act and its specified goals represent a return to fairness, predictability, responsibility and rationality in the tort arena. Specifically, defendants argued that the limit on noneconomic damages provides rationality to the system of awarding damages for personal injury.
Plaintiffs, in their motion for partial summary judgment, challenged the legislature‘s use of chiefly anecdotal evidence to justify the Act.1 Citing a 1992 report from the National Center for State Courts, plaintiffs noted that businesses, not private personal injury plaintiffs, constitute the most active group of litigants in the state. Plaintiffs further argued that the uncontested empirical evidence that they presented in conjunction with their motion clearly shows that the legislative “findings” listed in the preamble do not provide a rational justification for the limitation of compensatory damages for noneconomic injuries. In support, plaintiffs submitted several affidavits with their motion for sum-
Neil Vidmar, Professor of Social Science and Law at Duke Law School in Durham, North Carolina, submitted an affidavit in which he explains that many of the assertions about medical malpractice litigation contained in the preamble of Public Act 89-7, as well as statements made at the hearing and debates which preceded its passage, have no empirical basis and were based on unsubstantiated perceptions or unreliable data. For example, the perception that damages caps result in a decrease in the number of medical malpractice cases filed was rebutted by the experience in Indiana, a state in which damages caps were adopted in 1975. Vidmar cites studies revealing that Indiana actually has experienced an increase in claims. See E. Kinney, W. Gronfein & T. Gannon, Indiana‘s Medical Malpractice Act: Results of a Three-Year Study, 24 Ind. L. Rev. 1275, 1286 (1991). Vidmar states that he is aware of no reliable evidence in the formal studies which indicate that a limit on noneconomic damages corresponds to a significant impact on the cost or availability of health care or that noneconomic damages and the costs of liability insurance are directly linked.
In a separate affidavit, Marc Galanter, Evjue-Bascom Professor of Law at the University of Wisconsin Law School, agrees that there is little evidence, apart from anecdotes, to support the perceived deleterious effects of the present civil litigation system. He cites to an article he authored entitled Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093 (1996). He maintains that the only consequences which clearly flow from the passage of Public Act 89-7 are increased profitability of insurance companies and a reduction in the payments to the most seriously injured tort victims. According to Galanter, court filings in the law division of the circuit
In addition to the above affidavits, plaintiffs offered the joint affidavit of Stephen Daniels, M.A., Ph.D., a senior research fellow at the American Bar Foundation in Chicago, and Joanne Martin, M.M., J.D., an assistant director of the same foundation. Their affidavit summarizes the key empirical findings of scholarly literature and compares them to the factual underpinnings of Public Act 89-7. Like Vidmar and Galanter, Daniels and Martin state that the facts which form the stated intention or goals of Public Act 89-7 are not substantiated by the empirical data and critical analyses found in published, scholarly literature. Daniels and Martin summarize data which show that only a tiny fraction of accidental deaths and injuries are pursued through the litigation system as claims for compensation. They further maintain, based on studies, that jury awards are not erratic or capricious, but rather relate closely to the severity of the particular injury.
After considering the arguments of the parties and the materials presented, the circuit court invalidated section 2-1115.1 on the grounds that it violated the following provisions of the Illinois Constitution: special legislation (
Our review of the circuit court‘s ruling is de novo. See Bernier, 113 Ill. 2d at 230. As such, our scope of review is not limited to or bound by any specific material relied upon by the circuit court. We acknowledge that the trial court considered the affidavits of Vidmar, Galanter, Martin and Dаniels in its ruling on plaintiffs’ motions for partial summary judgment. The materials were admitted in support of plaintiffs’ claim that the provisions of the Act are not rationally related to its purposes. While we note that it was permissible for plaintiffs to introduce empirical evidence by way of affidavit, plaintiffs may not prevail on their constitutional challenges merely by showing that the General Assembly was mistaken in its legislative findings of fact. Bernier, 113 Ill. 2d at 229-30, citing United States v. Carolene Products Co., 304 U.S. 144, 153-54, 82 L. Ed. 1234, 1242, 58 S. Ct. 778, 784 (1938). Courts are not empowered to “adjudicate” the accuracy of legislative findings. The legislative fact-finding authority is broad and should be accorded great deference by the judiciary. Therefore, to the extent the affidavits of record may have been offered
B. Special Legislation
In this court, plaintiffs challenge the constitutionality of the damages cap, section 2-1115.1, on the basis that it violates the special legislation clause of the Illinois Constitution (
The special legislation clause of the Illinois Constitution provides:
“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall
be a matter for judicial determination.” (Emphasis added.) Ill. Const. 1970, art. IV, § 13 .
It has been noted that the prohibition against special legislation is the “one provision in the legislative articles that specifically limits the lawmaking power of the General Assembly.” S. Grove & R. Carlson, The Legislature, in Con-Con: Issues for the Illinois Constitutional Convention 101, 103 (1970). The special legislation clause expressly prohibits the General Assembly from conferring a special benefit or exclusive privilege on a person or a group of persons to the exclusion of others similarly situated. In re Petition of the Village of Vernon Hills, 168 Ill. 2d 117, 122 (1995). This court has consistently held that the purpose of the special legislation clause is to prevent arbitrary legislative classifications that discriminate in favor of a select group without a sound, reasonable basis. Wright v. Central Du Page Hospital Ass‘n, 63 Ill. 2d 313 (1976) (invalidating $500,000 cap on damages in medical malpractice actions); Grace v. Howlett, 51 Ill. 2d 478 (1972) (striking classifications that conditioned recovery for personal injuries upon fortuity of whether negligent driver was using vehicle for commercial or private purposes); Grasse v. Dealer‘s Transport Co., 412 Ill. 179 (1952) (invalidating discriminatory classifications of employers, employees, and third-party tortfeasors in workers’ compensation provision).
Special legislation analysis is deeply embedded in the constitutional jurisprudence of this state. The ban on special legislation originally arose in the nineteenth century in response to the General Assembly‘s abuse of the legislative process by granting special charters for various economic entities. D. Ruder, Business Regulation: Corporations, in Con-Con: Issues for the Illinois Constitutional Convention 382, 382-83 (1970). The special legislation clause in the Constitution of 1870 enumerated over 20 specific categories in which the Gen-
“A local law is onе which applies only to the government of a portion of the territory of the state, and a special law is one which applies only to a portion of the state—its people, its institutions, its economy—in some sense other than geographical.” G. Braden & R. Cohn, The Illinois Constitution: An Annotated & Comparative Analysis 206-07 (1969).
Delegates to the 1870 constitutional convention criticized special legislation because, instead of establishing and enforcing general principles applicable to every class of citizens, special legislation enriched particular classes of individuals at the expense of others. I Debates and Proceedings of the Constitutional Convention of the State of Illinois 578 (remarks of Delegate Anderson). Delegate Anderson spoke in favor of the prohibition against special legislation and stated:
“Governments were not made to make the ‘rich richer and the poor poorer,’ nor to advance the interest of the few against the many; but that the weak might be protected from the will of the strong; that the poor might enjoy the same rights with the rich; that one species of property might be as free as another—that one class or interest should not flourish by the aid of government, whilst another is oppressed with all the burdens.” I Debates, at 578 (remarks of Delegate Anderson).
Evidently in recognition of the value of the prohibition against special legislation, the framers of the Illinois Constitution of 1970 decided to retain the clause, with some modifications. See Anderson v. Wagner, 79 Ill. 2d 295, 313-14 (1979). First, because the enumerated categories in the constitution of 1870 clearly reflected the nineteenth century concerns which had lost their relevance with the passage of time, the framers of the 1970 constitution omitted the “laundry list” of prohib-
The framers of the 1970 constitution retained the special legislation prohibition even though an equal protection/due process clause was included in the Illinois Constitution for the first time. See
A special legislation challenge generally is judged under the same standards applicable to an equal protection challenge. Village of Vernon Hills, 168 Ill. 2d at 123. Public Act 89-7 does not affect a fundamental right or involve a suspect or quasi-suspect classification. See Bernier, 113 Ill. 2d at 227-29.2 Thus, the appropriate standard for our review of Public Act 89-7 is the rational basis test. “Under this standard, a court must determine whether the statutory classification is rationally related to a legitimate State interest.” Village of Vernon Hills, 168 Ill. 2d at 123.
Our task in determining whether the damages cap
“It is impossible to conceive of a law that has universal impact and affects everyone or everything in the same way. By enacting laws, the legislature can hardly avoid excluding some category of people or objects. In enforcing this prohibition, the courts must decide if the legislature has made a reasonable classification. Differences of opinion are bound to exist in such situations and the ultimate decision must rest with some judgment as to the soundness of the legislature‘s action.” S. Grove & R. Carlson, The Legislature, in Con-Con: Issues for the Illinois Constitutional Convention 106 (1970).
The difficulty is not overcome by merely reiterating that a classification has been made, i.e., that the legislature has in some way classified groups of people. Rather, we must determine whether the classifications created by section 2-1115.1 arе based upon reasonable differences in kind or situation, and whether the basis for the classifications is sufficiently related to the evil to be obviated by the statute. Grasse, 412 Ill. at 195. We note that the legislature has wide discretion in the exercise of its police power. However, in evaluating a challenged provision the court must consider the natural and reasonable effect of the legislation on the rights affected by the provision. Grasse, 412 Ill. at 193.
While it is unnecessary to discuss every Illinois Supreme Court case which has evaluated legislation in the context of the special legislation clause, we note the many cases cited by both plaintiffs and defendants in the case at bar. Defendants cite numerous cases in which this court has rejected challenges to legislation on special legislation and equal protection grounds. See, e.g., Brown‘s Furniture, Inc. v. Wagner, 171 Ill. 2d 410 (1996) (upholding constitutionality of a use tax); Cutinello v. Whitley, 161 Ill. 2d 409 (1994) (upholding
In contrast to the above cases, this court has invalidated legislative classifications under the special legislation clause where they have an artificially narrow focus and which appear to be designed primarily to confer a benefit on a particular private group without a reasonable basis, rather than to promote the general welfare. See, e.g., In re Belmont Fire Protection District, 111 Ill. 2d 373, 381-86 (1986) (invalidating a statute which authorized only counties with populations of between 600,000 and 1 million residents to consolidate all fire protection services into one district); Wright v. Central Du Page Hospital Ass‘n, 63 Ill. 2d 313, 325-30 (1976) (invalidating $500,000 limit on compensatory damages in medical malpractice actions); Grace v. Howlett, 51 Ill. 2d 478, 486-87 (1972) (invalidating a limit on recovery applicable to damages inflicted by commercial motorists, but not private motorists); Skinner v. Anderson, 38 Ill. 2d 455, 459-60 (1967) (invalidating a statute of repose for construction-related injuries for architects and contractors, but not other potential defendants in the construction process); see also Lorton v. Brown County Community Unit School District No. 1, 35 Ill. 2d 362, 364-66 (1966); Hutchings v. Kraject, 34 Ill. 2d 379, 380-82 (1966); Harvey v. Clyde Park District, 32 Ill. 2d 60, 64-67
In the case at bar, plaintiffs specifically rely on the following three decisions of this court which held invalid as special legislation certain statutes which created arbitrary classifications between groups of similarly situated injured plaintiffs or tortfeasors: Wright v. Central Du Page Hospital Ass‘n, 63 Ill. 2d 313 (1976); Grace v. Howlett, 51 Ill. 2d 478 (1972); Grasse v. Dealer‘s Transport Co., 412 Ill. 179 (1952). Because plaintiffs maintain that these precedents of this court are controlling with respect to the constitutionality of section 2-1115.1, we discuss them in detail.
In Wright, this court held that a $500,000 limit on compensatory damages in medical malpractice actions (Ill. Rev. Stat. 1975, ch. 70, par. 101) violated the equal protection and special legislation provisions of the Illinois Constitution. Like plaintiffs in the case at bar, the plaintiff in Wright argued that the compensatory damages limit arbitrarily classified and unreasonably discriminated against the most seriously injured victims of medical malpractice. Like defendants in the case at bar, the defendants in Wright argued that a compensatory damage limit was necessary to manage a liability crisis, specifically a “medical malpractice crisis.” The plaintiff maintained, however, that the burden of the legislative effort to reduce or maintain malpractice insurance premiums arbitrarily fell exclusively on those most deserving of compensation: the severely injured.
The Wright court noted that unlike statutorily created causes of action (see Hall v. Gillins, 13 Ill. 2d 26 (1958); Cunningham v. Brown, 22 Ill. 2d 23 (1961)), the right to recover for injuries arising from medical mal-
Similarly, in Grace, this court held that a statute which limited recovery for certain automobile accident victims constituted an arbitrary and unreasonable legislative classification in violation of the prohibition against special legislation. At issue in Grace was a newly enacted article to the Illinois Insurance Code (Ill. Rev. Stat. 1971, ch. 73, pars. 1065.150 through 1065.163). The plaintiffs brought an action for injunctive relief against state officers to enjoin them from expending funds appropriated for the enforcement of the new article. The combined effect of certain provisions of the new law was
The defendants in Grace described the amendment to the Insurance Code as a response to the growing public demand for a change in the way society copes with the enormous legal, social and economic problems produced by car accidents. The defendants identified small personal injury actions as one of the major evils of the system of compensating car accident victims. Grace, 51 Ill. 2d at 484. The defendants further maintained that the studies regarding car accident compensation identified many problems with the system of compensating injured individuals. Specifically, the defendants maintained that the studies showed the inequitable distribution of compensation among victims, the excessive expense of the claim system, and the excessive burden on limited judicial resources. According to the defendants, the changes to the Insurance Code were rationally connected to legitimate government concerns.
In determining whether the provisions at issue violated special legislation and equal protection, the Grace court assumed that the problems described by the defendants in fact existed. However, the court reasoned, the fact that a problem exists does not permit the adoption of an arbitrary or unrelated means of addressing the problem. Grace, 51 Ill. 2d at 485. In rejecting the defendants’ argument that the legislation was a permissible exercise of legislative power, the Grace court stated,
“Unless this court is to abdicate its constitutional responsibility to determine whether a general law can be made applicable, the available scope for legislative experimentation with special legislation is limited, and this court cannot rule that the legislature is free to enact special legislation simply because ‘reform may take one step at a time.’ [Citation.]” Grace, 51 Ill. 2d at 487.
In Grasse, this court invalidated a provision of the Worker‘s Compensation Act that created arbitrary classifications. At issue in Grasse was a provision which automatically transferred to an employer, in certain cases, an employee‘s common law right of action against a third-party tortfeasor. In Grasse, the plaintiff and his employer filed claims against a private defendant to recover damages stemming from an automobile collision which was allegedly caused by the negligence of the defendant‘s employee. Because both the plaintiff and defendant‘s employee were aсting in the course of their employment at the time of the accident, paragraph 1 of section 29 of the Worker‘s Compensation Act applied to the subsequent litigation. This provision authorized the automatic transfer of the plaintiff-employee‘s claim against the third-party tortfeasor to the plaintiff‘s employer. The circuit court consequently dismissed the plaintiff‘s claim against the third-party tortfeasor.
On appeal to this court, the plaintiff alleged, in part, that the statute violated the special legislation clause of the Illinois Constitution (
In addition to the unequal treatment of injured employees, the Grasse court determined that the statute divided third-party tortfeasors into two classes: those bound by the worker‘s compensation provision, who were freed from paying compensatory damages to employees of other entities under the act, and all other tortfeasors, who remained liable for the full amount of fairly assessed compensatory damages. The first class of tortfeasors were only required to pay amounts sought by the employer as reimbursement for worker‘s compensation payments. In contrast, the second class of tortfeasors remained liable to the plaintiff for the full amount of compensatory damages assessed by a trier of fact. Therefore, the distinctions were arbitrary and constituted a violation of the special legislation clause. Grasse, 412 Ill. at 199.
Defendants maintain that plaintiffs’ reliance on Wright, Grace, and Grasse is misplaced. According to defendants, these cases were limited by Anderson v. Wagner, 79 Ill. 2d 295 (1979), in a way that renders their holdings inapplicable to the legislation in the case at bar.
At issue in Anderson was section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provided a special statute of limitations period for medical malpractice actions against physicians and hospitals. The plaintiffs in Anderson contended that section 21.1 violated the due process and equal protection provisions of the state and federal constitutions, and the special legislation provision of the Illinois Constitution. The plaintiff maintained that section 21.1 violated the special legislation clause because it (1) set medical mal-
In analyzing the plaintiff‘s challenges, the Anderson court retraced the evolution of the “discovery rule” in medical malpractice cases. Under the discovery rule, a cause of action accrued when a person learned of his injury or reasonably should have learned of it. Because the discovery rule came to be applied extensively in medical malpractice cases, statutes of limitation in existence no longer provided repose for malpractice defendants. The discovery rule was perceived to be partly responsible fоr the medical malpractice crisis because it created a “long tail” of liability for medical malpractice defendants. Thus, the statute of limitations provision at issue in Anderson was enacted to place an outside limit on the applicability of the discovery rule to physicians and hospitals. Anderson, 79 Ill. 2d at 316-21. We find that Anderson is distinguishable from the instant case because in Anderson, the General Assembly was responding to judicial expansion of the discovery rule, which had undermined the medical malpractice statute of limitation by creating a tolling provision of potentially unlimited duration.
Defendants in the instant case also rely upon language in Anderson which responded to critics of Wright. In dicta, the Anderson court explained that Wright did not hold that all statutory provisions creating medical malpractice review panels were unconstitutional. The Anderson court also noted that Wright‘s holding regarding the limit on economic damages was
Plaintiffs argue that section 2-1115.1 merely stitches together legislative classifications previously rejected in Wright, Grasse and Grace, and then adds product liability cases. According to plaintiffs, section 2-1115.1 contains three arbitrary classifications that have no reasonable connection to the stated legislative goals: (1) the limitation on noneconomic damages distinguishes between slightly and severely injured individuals, (2) the limitation on noneconomic damages arbitrarily distinguishes between individuals with identical injuries, and (3) the limitation arbitrarily distinguishes types of injury. At oral argument, plaintiffs offered examples illustrating how the limitation on noneconomic damages is disconnected from the stated legislative purposes of providing rationality and consistency to jury verdicts.
In the first example, it is assumed that three plaintiffs are injured as a result of the same tortfeasor‘s negligence. Plaintiff A is injured moderately, and suffers pain, disability and disfigurement for a month. Plaintiff B is severely injured and suffers one year of pain and disability. Plaintiff C is drastically injured, and suffers permanent pain and disability. For purposes of this example, it is further assumed that a jury awards plaintiffs A and B $100,000 in compensatory damages for noneconomic injuries. Plaintiff C receives $1 million for his permanent, lifelong pain and disability.
In the above hypothetical, section 2-1115.1 fails to
The tortfeasors in this example are also treated differently, without any justification. The tortfeasor who injures plaintiffs A and B is liable for the full amount of fairly assessed compensatory damages. In contrast, section 2-1115.1 confers a benefit on the similarly situated tortfeasor who injures plaintiff C. This tortfeasor pays only a portion of fairly assessed compensatory damages because of the limitation in section 2-1115.1. Therefore, the statute discriminates between slightly and severely injured plaintiffs, and also between tortfeasors who cause severe and moderate or minor injuries.
Plaintiffs suggest that section 2-1115.1 creates a second arbitrary legislative classification by distinguishing between injured individuals who suffer identical injuries. For example, we are asked to assume that an individual loses his leg due to a defectively manufactured forklift today, and he loses his other leg in a car accident the following year. Both injuries are caused by the negligent conduct of others. The injured individual brings two different actions against two different defendants, and a jury assesses compensatory damages for noneconomic injuries at $400,000 in each case. Section 2-1115.1 would allow the plaintiff to recover both verdicts in full. However, if the same plaintiff lost both legs in a single accident due to the negligence of another, and if the jury fairly assessed $800,000 in compensatory damages for noneconomic injuries, then
To illustrate the third arbitrary classification created by the limitation on noneconomic damages in personal injury actions, plaintiffs argue that section 2-1115.1 improperly discriminates among types of injuries. Plaintiffs maintain that the legislative statements concerning the supposed difficulties of assessing damages for noneconomic injuries apply equally to all tort claims for pure noneconomic loss, and not just those involving death, bodily injury or property damage. Other torts that remain unaffected by the legislation at issue are invasion of privacy, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, damage to reputation and breach of fiduciary duty. The speculative nature of noneconomic damages for these torts, which do not involve personal injury, is not addressed by the cap in section 2-1115.1.
Plaintiffs maintain that the above illustrations demonstrate the arbitrariness of the classifications created by section 2-1115.1, in violation of the prohibition against special legislation. Plaintiffs contend that the classifications contained within section 2-1115.1 allow certain culpable tortfeasors to escape liability for a portion of fairly assessed compensatory damages, while requiring others to pay the full amount of assessed damages. Similarly, certain injured plaintiffs are denied compensatory damages, while other similarly situated injured plaintiffs are awarded full compensation, without any rational justification for the distinction.
Defendants raise a series of related arguments in opposition to plaintiffs’ contention that section 2-1115.1 is arbitrary and not rationally related to a legitimate government interest. Defendants contend that plaintiffs’ arguments are “fatally flawed” in that they are based
At oral argument, in rebuttal, defendants stated that “it is not true that money can compensate for noneconomic damages, [or] at least the legislature could find that that is the case.” Defendants do not dispute the general proposition that noneconomic injuries are “real.” Rather, defendants argue that noneconomic damages are “inherently unmeasurable.” Thus, according to defendants, the legislature‘s adoption of an “objective” limitation on noneconomic damages is reasonable and must be upheld as a legitimate exercise of legislative judgment.
Defendants’ argument contradicts the statute under consideration. Subsection (b) of section 2-1115.1 defines noneconomic loss or noneconomic damages as “damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium and loss of society.” Subsection (c) provides that “compensatory damages” or “actual damages” are “the sum of the economic and noneconomic damages.” Section 2-1115.1 itself demonstrates that the legislature believed that remuneration is an appropriate means by which to compensate tort victims for their noneconomic injuries. Therefore, the application of a limit to the noneconomic damages of some, but not all, injured plaintiffs is not justified by the difficulty of assessing such damages.
We do not disagree with defendants’ assertion that damages for noneconomic injuries are difficult to assess. We simply determine that it does not follow that the difficulty in quаntifying compensatory damages for noneconomic injuries is alleviated by imposing an arbitrary limitation or cap on all cases, without regard to the facts or circumstances. Further, the preamble to Public Act 89-7 states that “[i]t is the public policy of this State that persons injured through the negligence or deliberate misconduct of another be afforded a legal mechanism to seek compensation for their injuries.” Pub. Act 89-7, eff. March 9, 1995. There is universal agreement that the compensatory goal of tort law requires that an injured plaintiff be made whole. See, e.g., Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353, 363 (1979); 25 C.J.S. Damages § 17 (1966). In this case, the arbitrary and automatic cap on compensatory damages for noneconomic injuries in only certain tort cases parallels the harm of the arbitrary classifications stricken by this court in Wright, Grace, and Grasse. Therefore, the $500,000 limit does not reestablish the credibility of the tort system, and does nothing to assist the trier of fact in determining appropriate damages for noneconomic injuries. The limitation actually undermines the stated goal of providing consistency and rationality to the civil justice system.
We reject defendants’ argument that the damages cap in section 2-1115.1 should be upheld because reform can be undertaken “one step at a time.” As previously noted in this opinion, this court has rejected the “one step” rationale to support a classification if the classification is arbitrary. Grace, 51 Ill. 2d at 487. We need not address this justification further.
Defendants also argue that the legislative interest in reducing the “systemic costs of tort liability” is sufficient to overcome plaintiffs’ special legislation chal-
Plaintiffs do not dispute that the legislature has the power to change the common law, and we do not question defendants’ argument insofar as it stands for the general principle that the General Assembly may alter the common law and change or limit available remedies. This principle is well grounded in the jurisprudence of this state. See, e.g., Grand Trunk Western Ry. Co., 291 Ill. 167. However, defendants’ argument assumes too much. The legislature is not free to enact changes to the common law which are not rationally related to a legitimate government interest. The General Assembly‘s authority to exercise its police power by altering the common law and limiting available remedies is also dependent upon the nature and scope of the particular change in the law. We hold in the case at bar that the statutory cap on compensatory damages for noneconomic losses is arbitrary.
Finally, defendants support their contention that the limitation on noneconomic damages in section 2-1115.1 is constitutional by referring to several other state court decisions which have upheld damage limitations. See Fein v. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992); Adams v. Children‘s Mercy Hospital, 832 S.W.2d 898 (Mo. 1992); Greist v. Phillips, 322 Or. 281, 906 P.2d 789 (1995); Robinson v. Charleston Area Medical Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991); Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585 (1980); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989); Butler v. Flint Goodrich Hospital of Dillard University, 607 So. 2d 517 (La. 1992); Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977); see also Davis v. Omitowoju, 883 F.2d 1155 (3d Cir. 1989).
However, other jurisdictions have held statutory damages caps unconstitutional. Moore v. Mobile Infirmary Ass‘n, 592 So. 2d 156, 158 (Ala. 1991); Morris v. Savoy, 61 Ohio St. 3d 684, 688-89, 576 N.E.2d 765, 769 (1991); Arneson v. Olson, 270 N.W.2d 125, 135-36 (N.D. 1978); Lucas v. United States, 757 S.W.2d 687, 690-92 (Tex. 1988); Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989). The amount of noneconomic damages caps that have been invalidated in other states varies. See, e.g., Smith v. Department of Insurance, 507 So. 2d 1080, 1088-89 (Fla. 1987) ($450,000 cap); Brannigan v. Usitalo, 134 N.H. 50, 58, 587 A.2d 1232, 1236-37 (1991) ($875,000 cap).
The statutory caps on damages which have been enacted by other states vary considerably in scope and effect. Similarly, the state constitutional provisions and precedents under which these damage caps have been challenged are unique to each jurisdiction. Although the decisions from other states may be instructive in some respects, we believe that these decisions are of limited assistance in answering the specific question of whether section 2-1115.1 offends the special legislation clause of the Illinois Constitution. We hold that it does.
Plaintiffs also assert that section 2-1115.1 violates the separation of powers clause (
Defendants disagree with plaintiffs’ characterization of the operation of section 2-1115.1 as a legislative remittitur. They argue that the damages cap merely “sets an outer parameter by which wholly subjective damages are limited” and in no respect displaces traditional judicial functions.
Under our constitution, the three branches of government—legislative, executive, and judicial—are separate and one branch shall not “exercise powers properly belonging to another.”
Each branch of government has its own unique sphere of authority that cannot be exercised by another branch. See, e.g., Murneigh v. Gainer, 177 Ill. 2d 287, 312-13 (1997) (holding invalid an attempted delegation of an executive or administrative function to the judicial branch); Wright v. Central Du Page Hospital Ass‘n, 63 Ill. 2d 313, 322 (1976) (holding invalid an attempted delegation of judicial power to nonjudicial member of medical malpractice review board); Fields Jeep-Eagle, Inc. v. Chrysler Corp., 163 Ill. 2d 462, 478-79 (1994) (holding invalid attempted delegation of legislative or administrative decisionmaking to the judiciary); see also Agran v. Checker Taxi Co., 412 Ill. 145, 149 (1952) (“If the power is judicial in its nature, it necessarily follows that the legislature is expressly prohibited from exercising it“).
This court has often recognized that the separation of the three branches of government is not absolute and unyielding. See, e.g., Strukoff v. Strukoff, 76 Ill. 2d 53, 58 (1979). The separation of powers clause is not contravened merely because separate spheres of governmental authority may overlap. County of Kane v. Carlson, 116 Ill. 2d 186, 208 (1987). However, it should be emphasized that the determination of when, and under what circumstances, a violation of the seрaration of powers doctrine has occurred remains with the judiciary. See, e.g., Murneigh, 177 Ill. 2d at 303; People v. Warren, 173 Ill. 2d 348 (1996). In furtherance of the authority of the judiciary to carry out its constitutional obligations, the legislature is prohibited from enacting laws that unduly infringe upon the inherent powers of judges. See, e.g., In re S.G., 175 Ill. 2d 471, 487 (1997); Walker, 119 Ill. 2d at 474; People v. Bainter, 126 Ill. 2d 292, 303 (1989); Agran, 412 Ill. at 149.
For over a century it has been a traditional and inherent power of the judicial branch of government to apply the doctrine of remittitur, in appropriate and limited circumstances, to correct excessive jury verdicts. E.g., Hansen v. Boyd, 161 U.S. 397, 412, 40 L. Ed. 746, 751, 16 S. Ct. 571, 576 (1896); Dimick v. Schiedt, 293 U.S. 474, 484-85, 79 L. Ed. 603, 610, 55 S. Ct. 296, 300 (1935). In Dimick, 293 U.S. at 486, 79 L. Ed. at 611, 55 S. Ct. at 301, the United States Supreme Court recognized that remittitur of an excessive portion of a jury verdict is a question of law for the court.
The practice of ordering a remittitur of excessive damages has long been recognized and accepted as part of Illinois law. See, e.g., Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997); Lee v. Chicago Transit Authority, 152 Ill. 2d 432 (1992); Carter v. Kirk, 256 Ill. App. 3d 938 (1993). The remittitur doctrine has been acknowledged as promoting both the administration of justice and the conclusion of litigation. See Carter, 256 Ill. App. 3d at 947; McElroy v. Patton, 130 Ill. App. 2d 872, 877 (1970). This court has stated that “[a]n award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience.” Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). However, a damages award will not be subject to remittitur where it “falls within the flexible range of conclusions which can reasonably be supported by the facts” because the assessment of damages is primarily an issue of fact for jury determination. Lee, 152 Ill. 2d at 470; see also Barry v. Owens-Corning Fiberglas Corp., 282 Ill. App. 3d 199, 207 (1996) (noting that evaluations of a plaintiff‘s pain and suffering depend on jurors’ combined wisdom and experience); Riley v. Koneru, 228 Ill. App. 3d 883, 887-88 (1992) (noting reluctance of courts to interfere with damages awards unless the award is the result of passion or prejudice).
The deference given to the careful deliberative process of the jury is overcome if, after examining the evidence presented at trial, the trial judge determines that the jury verdict is excessive. In such a case, “the judge
Case law reflects that the application of remittitur should be considered on a case-by-case basis because the evidence and circumstances supporting verdicts must be carefully examined before a jury‘s assessment of damages is reduced. See Richardson v. Chapman, 175 Ill. 2d 98 (1997) (remitting one plaintiff‘s $11 million award for future medical expenses by $1 million and reducing by half the other plaintiff‘s pain and suffering award). See also Carter v. Kirk, 256 Ill. App. 3d 938 (1993) (finding that trial court properly granted $20,000 remittitur where the jury‘s verdict was excessive because medical evidence failed to support the plaintiff‘s claims). In other circumstances, courts have declined to enter a remittitur, even in cases involving large awards, because the evidence supported the jury‘s verdicts. Cf. Holston v. Sisters of the Third Order of St. Francis, 165 Ill. 2d 150 (1995) (declining to reduce as excessive a $7.3 million verdict in a wrongful death and survival case); Barry, 282 Ill. App. 3d at 208 (declining to apply a remittitur to $12 million verdict).
In the case at bar, we conclude that section 2-1115.1 undercuts the power, and obligation, of the judiciary to reduce excessive verdicts. In our view, section 2-1115.1 functions as a “legislative remittitur.” Unlike the traditional remittitur power of the judiciary, the legisla-
We additionally note that the cap provision of section 2-1115.1 forces the successful plaintiff to forgo part of his or her jury award without the plaintiff‘s consent, in clear violation of the well-settled principle that a trial court does not have authority to reduce a damages award by entry of a remittitur if the plaintiff objects or does not consent. See, e.g., Haid, 219 Ill. App. 3d at 411. A plaintiff‘s refusal to consent to remittitur will result in the ordering of a new trial. See McCausland v. Wonderly, 56 Ill. 410 (1870); Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 224 Ill. App. 3d 559, 588 (1991). As such, the statutory scheme unduly expands the remittitur doctrine. See P. Weiss, Reforming Tort Reform: Is There Substance to the Seventh Amendment, 38 Cath. U.L. Rev. 737, 757 (1989).
We find persuasive the discussion of legislative remittitur contained in an opinion of the Supreme Court of Washington, Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989). In that case, the court found unconstitutional Washington‘s statutory limit on noneconomic damages. The Sofie court held the statutory damages cap unconstitutional on the basis that it violated the plaintiffs’ right to a trial by jury, an issue we do not determine in the instant case. The court‘s secondary discussion, which considered the plaintiffs’
In addressing the plaintiffs’ arguments that the statutory damages cap operated as a “legislative remittitur” in violation of the separation of powers doctrine, the Washington Supreme Court observed that the statute “directly changes the outcome of a jury determination *** by taking a jury‘s finding of fact and altering it to conform to a predetermined formula.” Sofie, 112 Wash. 2d at 653, 771 P.2d at 720. The court observed that remittitur is wholly within the power of the trial judge, and it is the judge who is empowered to make the legal conclusion, on a case-by-case basis, that the jury‘s damage award is excessive in light of the evidence. Consequently, because the “[l]egislature cannot make such case-by-case determinations,” separation of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.” Sofie, 112 Wash. 2d at 654, 771 P.2d at 721. Although the Sofie court did not base its decision squarely upon separation of powers concerns, the court observed, “[T]he [statutory damages] limit may, indeed, violate the separation of powers.” Sofie, 112 Wash. 2d at 654, 771 P.2d at 721.
In the case at bar, we conclude that section 2-1115.1 invades the power of the judiciary to limit excessive awards of damages. The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. Section 2-1115.1, however, reduces damages by operation of law, without regard to the specific circumstances of individual jury awards. Although legislative limits upon certain types of damages may be permitted, such as damages recoverable in statutory causes of action, we hold that the cap in section 2-1115.1 violates the separation of powers clause of the Illinois Constitution.
III. Section 3.5 of the Joint Tortfeasor Contribution Act
Plaintiffs challenge the constitutionality of the “contribution credit” created by Public Act 89-7. This credit is set forth in a new provision, section 3.5(a), which has been added to the Joint Tortfeasor Contribution Act (
§ 3.5. Contribution against the plaintiff‘s employer.
(a) If a tortfeasor brings an action for contribution against the plaintiff‘s employer, the employer‘s liability for contribution shall not exceed the amount of the employer‘s liability to the plaintiff under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act. The tortfeasor seeking contribution from the plaintiff‘s employer is not entitled to recover money from the employer. The tortfeasor shall receive a credit against his or her liability to the plaintiff in an amount equal to the amount of contribution, if any, for which the employer is found to be liable to that tortfeasor, even if the amount exceeds the employer‘s liability under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act.
740 ILCS 100/3.5(a) (West 1996).
The circuit court held that section 3.5(a) violated the due process and equal protection clause of the Illinois Constitution (
Initially, we note the fundamental inconsistency between section 3.5(a) and the amendments made by Public Act 89-7 to section 2-1117 of the Code of Civil Procedure (
The legislature‘s enactment of section 3.5(a) and simultaneous adoption of proportionate several liability in section 2-1117 raises a serious question as to whether, on the basis of this conflict alone, the section 3.5(a) credit must be stricken. We need not resolve this issue, however, for even if we assume that the two provisions can coexist, we determine that section 3.5(a) is invalid.
The first sentence of section 3.5(a) states that an employer‘s “liability for contribution” is limited to the amount of the employer‘s liability to the plaintiff under the Workers’ Compensation Act (
Because the first sentence of section 3.5(a) limits the employer‘s “liability for contribution” to the employer‘s workers’ compensation liability, one might reasonably assume that the amount of the credit in the third sentence, which is defined as being equal to thе “amount of contribution” for which the employer is “found to be liable,” would also be equal to the employer‘s workers’ compensation liability. However, this is not the case. The final clause of the third sentence unequivocally states that the amount of the credit may exceed the employer‘s workers’ compensation liability. Thus, section 3.5(a) is not only inconsistent with section 2-1117, it is also internally inconsistent: if the second and third sentences of section 3.5(a) are given effect, the first sentence is rendered meaningless.
The internal contradiction within section 3.5(a) further suggests that a consistent and intelligible construction of the provision may not be possible. Again, however, we need not decide whether the section 3.5(a) credit must be invalidated on this basis alone. Even if the second and third sentences of section 3.5(a) are enforced to the exclusion of the first sentence, the credit remains invalid.
Plaintiffs contend that if the section 3.5(a) credit is given effect, then an employee‘s recovery from a third-
As an illustration of how the double reduction would occur in practice, plaintiffs offer the following examples. Consider an action involving an employee plaintiff, an employer, and a third-party tortfeasor. Assume that the plaintiff is awarded $500,000 in damages and that the tortfeasor and the employer are each 50% at fault. Pursuant to the amended version of section 2-1117, the tortfeasor would be liable only for his or her proportionate share of the damages, or $250,000. Then, under section 3.5(a), the tortfeasor would obtain a credit against his or her liability to the plaintiff in an amount equal to the employer‘s proportionate share of the damages, in this case, 50% or $250,000. Thus, because $250,000 minus $250,000 equals zero, the tortfeasor would incur no liability to the plaintiff.
A similar situation occurs when the contributory fault of the plaintiff and the employer‘s fault together equals 50% or more. Assume the same verdict of $500,000. Further assume that the plaintiff‘s percentage of contributory fault is 10%, the tortfeasor‘s percentage of fault is 50%, and the employer‘s percentage of fault
Plaintiffs argue that in both of the examples above, the employee‘s recovery from the third-party tortfeasor is subjected to a double reduction. Plaintiffs maintain that this double reduction is arbitrary and discriminatory, and in violation of principles of due process and equal protection.
Defendants do not contend that the double reduction effect is constitutional. Instead, defendants assert that the section 3.5(a) credit should be construed in a limited fashion so that the double reduction will not occur. Specifically, defendants maintain that the section 3.5(a) credit should be available only in those situations where the third-party tortfeasor settles with the plaintiff for an amount greatеr than his or her proportionate share of liability. In these situations, according to defendants, the proportionate several liability of section 2-1117 would not apply. Thus, the application of the section 3.5(a) credit to the settlement amount would not produce a double reduction.
We do not believe that this construction of section 3.5(a) is permitted by the statute. Under section 3.5(a), a third-party tortfeasor seeking contribution from an employer may not receive money. Instead, the tortfeasor receives a credit which is applied against the tortfeasor‘s “liability to the plaintiff.” However, once the tortfeasor settles with the plaintiff, the tortfeasor is no longer liable for the plaintiff‘s damages. Thus, if the tortfeasor settles, there is no liability to which the credit
Defendants also assert that, as a practical matter, the double reduction will never occur. They point out that under section 2-1117, a tortfeasor will never be liable for more than his or her proportionate share of the damages and, therefore, will never meet the threshold requirement for contribution. See
Defendants are correct to point out that, logically, the section 3.5(a) credit cannot exist in the face of the proportionate several liability of section 2-1117, but this fact only serves to highlight the conflict between the two provisions. Furthermore, while defendants’ argument that the section 3.5(a) credit will never occur resolves the conflict with section 2-1117 and the internal contradiction within section 3.5(a), it also renders the second and third sentences of section 3.5(a) a complete nullity, in violation of well-established principles of statutory construction. See, e.g., Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990) (“A statute should be construed so that no word or phrase is rendered superfluous or meaningless“); 2A N. Singer, Sutherland on Statutory Construction § 46.06 (5th ed. 1993).6
Section 3.5(a) was discussed only briefly during the debate on House Bill 20 and the comments which were offered provide no guidance in resolving the ambiguities of the provision. See 89th Ill. Gen. Assem., House Proceedings, February 16, 1995, at 53-57, 129-30. Accordingly, we conclude that the credit set forth in the second and third sentences of section 3.5(a) is either arbitrary and unconstitutional, as plaintiffs propose, or entirely superfluous, as defendants propose. In either case, the section 3.5(a) credit is invalid and must be stricken.
IV. The Abolition of Joint and Several Liability
The common law doctrine of joint and several liability provides, in general, that when two or more defendants tortiously contribute to the same, indivisible injury, each defendant may be held jointly and severally liable for the entire injury. See generally 3 F. Harper, F. James & O. Gray, Torts §§ 10.1, 10.2 (2d ed. 1986); W. Keeton, Prosser & Keeton on Torts §§ 47, 50 through 52 (5th ed. 1984); Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 119-20 (1983). Significantly, under this doctrine, the plaintiff may recover compensation for the full amount of the injury from any one of defendants responsible for the injury. Coney, 97 Ill. 2d at 119-20.
As noted previously, Public Act 89-7 eliminates the doctrine of joint and several liability in all actions brought on account of death, bodily injury to person, or physical damage to property. In amendments made to section 2-1117 of the Code of Civil Procedure, Public Act 89-7 replaces joint and several liability with proportionate several liability. The amended version of section 2-1117 provides in full:
Ҥ 2-1117. Several liability.
(a) In any action brought on account of death, bodily injury to person, or physical damage to property in which recovery is predicated upon fault as defined in Section 2-1116, a defendant is severally liable only and is liable only for that proportion of recoverable economic and noneconomic damages, if any, that the amount of that defendant‘s fault, if any, bears to the aggregate amount of fault of all other tortfeasors, as defined in Section 2-1116, whose fault was a proximate cause of the death, bodily injury, economic loss, or physical damage to property for which recovery is sought.
(b) Notwithstanding the provisions of subsection (a), in any healing art malpractice action based on negligence or wrongful death, any defendants found liable shall be jointly and severally liable if the limitations on noneconomic damages in Section 2-1115.1 of this Act are for any reason deemed or found to be invalid.”
735 ILCS 5/2-1117 (West 1996).
The circuit court concluded that, with “absolute certainty,” section 2-1117 deprives the citizens of Illinois of their right to “find a certain remedy in the laws for all injuries and wrongs” (
In part III of this opinion, we noted that section 2-1117 is fundamentally at odds with the basic principles of the Contribution Act and with section 3.5(a). Section 2-1117 also directly conflicts with section 4 of the Contribution Act (
§ 4. Rights of Plaintiff Unaffected. Except as provided in Section 3.5 of this Act, a plaintiff‘s right to recover the full amount of his judgment from any one or more defendants subject to liability in tort for the same injury to person or property, or for wrongful death, is not affected by the provisions of this Act.
740 ILCS 100/4 (West 1996).
Section 4 evidently retains the doctrine of joint and several liability because it expressly preserves a plaintiff‘s right to obtain a full recovery of damages from any one or more defendants, subject only to section 3.5. See Coney, 97 Ill. 2d at 123. Yet, at the same time, section 2-1117 unquestionably abolishes joint and several liability. See 27 Loy. U. Chi. L.J. at 910 n.258. The simultaneous adoption and retention of two substantive, contradictory doctrines in a single act creates a significant obstacle to discerning the legislative intent behind Public Act 89-7. Because section 2-1117 and section 4 of the Contribution Act are diametrically opposed, any attempt to harmonize them would necessarily be futile. Moreover, we cannot assume that the retention of section 4 was merely an oversight by the legislature because the section itself was amended by Public Act 89-7. Hence, the legislature was mindful of both section 2-1117 and section 4 at the time Public Act 89-7 was passed and was presumptively aware of their meanings.
As with the section 3.5(a) credit, the irreconcilable conflict between section 2-1117 and section 4 raises a serious question as to whether section 2-1117 can be enforced without substantially, and improperly, rewriting Public Act 89-7. See, e.g., Kozak v. Retirement Board of the Firemen‘s Annuity & Benefit Fund, 95 Ill. 2d 211, 220 (1983) (statute may not be rewritten to make
Defendants contend that the legislature‘s adoption of proportionate several liability in section 2-1117 is a reasonable legislative action, in light of problems which allegedly exist with the doctrine of joint and several liability. According to defendants, the foremost problem with joint and several liability is that it unfairly holds tortfeasors liable for damages which they do not cause.7 In an argument dependent upon this assertion, defendants also maintain that, under joint and several liability, “deep pocket” defendants are improperly forced to bear the costs of misconduct caused by others. Defendants assert that these costs, which are initially
We note that the proposition which defendants offer as the primary explanation for abolishing the doctrine of joint and several liability, i.e., the assertion that the doctrine requires tortfeasors to pay for more damages than they caused, is at odds with this court‘s explanation of joint and several liability in Coney, 97 Ill. 2d 104. In Coney, this court was asked to decide, inter alia, whether the doctrine of comparative negligence or fault necessitated the elimination of joint and several liability. Coney, 97 Ill. 2d at 110. The defendant in Coney urged this court to abandon joint and several liability, arguing that “[w]ith the adoption of comparative negligence where damages are apportioned according to each party‘s fault, *** it is no longer rational to hold a defendant liable beyond his share of the total damages.” Coney, 97 Ill. 2d at 120. The court rejected this argument and held that the adoption of comparative negligence did not mandate the abolition of joint and several liability. In so holding, the Coney court stated:
“The feasibility of apportioning fault on a comparative basis does not render an indivisible injury ‘divisible’ for purposes of the joint and several liability rule. A concurrent tortfeasor is liable for the whole of an indivisible injury when his negligence is a proximate cause of that damage. *** The mere fact that it may be possible to assign some percentage figure to the relative culpability of
one negligent defendant as compared to another does not in any way suggest that each defendant‘s negligence is not a proximate cause of the entire indivisible injury.” (Emphasis added.) Coney, 97 Ill. 2d at 121-22.
See also Burke v. 12 Rothschild‘s Liquor Mart, Inc., 148 Ill. 2d 429, 452-53 (1992) (recognizing that the adoption of comparative negligence principles does not alter a joint tortfeasor‘s full responsibility for a plaintiff‘s single, indivisible injury).
The principle that tortfeasors who are held jointly and severally liable are each fully responsible for the entirety of the plaintiff‘s injury has been explained:
“Joint and several liability only applies to injuries for which the defendant herself is fully responsible. She is responsible for the entirety of some injury only if her tortious behavior was an actual and proximate cause of the entire injury. [Emphasis added.] She is not liable for injuries, including separable portions of injuries, to which she did not contribute. She is not liable unless the tortious aspect of her conduct was an actual cause of the injury. Moreover, even then, she is not liable if, for reasons of policy or principle, her connection to the injury is considered too remote or minimal to be ‘proximate.’
A defendant‘s individual full responsibility for an injury that was an actual and proximate result of her tortious behavior is not diminished if some other person‘s tortious behavior also was an actual and proximate cause of the injury. Rather each defendant whose tortious behavior was an actual and proximate cause of the injury is individually fully responsible for the entire injury. This is most obvious when a defendant‘s tortious behavior was either necessary or independently sufficient for the occurrence of the injury, but it remains true whenever a defendant‘s tortious behavior was an actual and proximate cause of the injury.
***
[There is a fundamental difference] between each [joint] defendant‘s individual full responsibility for the damages that she tortiously caused and the comparative responsibility percentages that are obtained by comparing the
defendants’ individual full responsibilities for the injury. [In situations where two defendants are held jointly and severally liable for negligently injuring a plaintiff] [n]either defendant *** [is] merely ‘50% negligent’ or ‘50% responsible.’ Such statements make as much sense as saying that someone is ‘50% pregnant.’ Nor did either defendant‘s negligence cause or occasion only 50% of the plaintiff‘s injury. Rather, each defendant was 100% negligent, each defendant‘s negligence was an аctual and proximate cause of 100% of the injury, and each defendant therefore is fully responsible for the entire injury. Only when we compare their individual full responsibilities, and assume that they were equally negligent, does it make sense to say that each defendant, when compared to the other, bears 50% of the total comparative responsibility for the injury.” (Emphasis in original.) R. Wright, The Logic and Fairness of Joint and Several Liability, 23 Memphis St. U.L. Rev. 45, 54-56 (1992).
See also Restatement (Second) of Torts § 875, Comment c, at 315 (1979) (under the rules of causation set forth by the Restatement, “any one of a number of persons whose tortious conduct is a substantial factor in causing harm is liable for the harm in the absence of a superseding cause“); Lilly v. Marcal Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 1113-16 (1997); 27 Loy. U. Chi. L.J. at 907-08; 21 U.C. Davis L. Rev. at 1141-93.
This court‘s reasoning in Coney places into question defendants’ primary justification for abolishing joint and several liability, i.e., that the doctrine requires some defendants to pay for more damages than they caused or for which they are responsible. We need not resolve, however, the conflict between the Coney court‘s analysis of joint and several liability and defendants’ justification for abolishing the doctrine. We believe that, because of the way in which it is drafted,
The justification for imposing joint and several liability upon medical malpractice defendants in the absence of a damages cap is not immediately apparent. See J. Zimmerman, P. Phillips & J. Bisceglia, A Review of the Illinois Civil Justice Reform Act of 1995, 83 Ill. B.J. 282, 285 (1995) (“Neither the statutory language preserving joint and several liability in these narrow circumstances nor the legislative purpose for doing so are clear“). One reason for enacting
The differences between proportionate several liability and joint and several liability can have a significant, practical impact upon tort plaintiffs. As one commentator has explained:
“If all the tortfeasors are available and solvent, joint and several liability with contribution and proportionate several liability both ultimately achieve the same result: liability is apportioned among the multiple responsible causes according [to] their comparative responsibility. However, two major practical differences exist between joint and several liability and proportionate several li-
ability. Under proportionate several liability, the plaintiff can recover full compensation for his injury only if he locates, sues, and collects from each party who tortiously contributed to his injury. The plaintiff therefore bears a substantial risk of receiving less than full compensation if any tortfeasor is missing, insolvent, or has an expected share of liability that would not be worth the cost of litigation. In addition, the costs in time and dollars of the multiple actions required to obtain theoretically full compensation will substantially delay and reduce the plaintiff‘s actual net compensation even if all the tortfeasors can be sued successfully. Conversely, under joint and several liability the risk of insolvent or otherwise unavailable tortfeasors and the expense of multiple actions is placed on the solvent tortfeasors, if any, from whom the plaintiff initially obtains compensation. The plaintiff can obtain full compensation in the initial suit, and the tortfeasоrs who pay the plaintiff must seek contribution or indemnity from the other tortfeasors.” U.C. Davis L. Rev. at 1142-43.
See also Coney, 97 Ill. 2d at 123-24.
We further note that
In sum, there is no discernable rational basis for treating medical malpractice plaintiffs differently from other plaintiffs in death, bodily injury and property damage cases. Moreover, treating these plaintiffs differ-
Plaintiffs contend that
V. Constitutionality of the Physician-Patient Disclosure Rules
We next consider the constitutionality of certain provisions of Public Act 89-7 that significantly alter existing discovery practice in Illinois.
We note that the prior version of
“(a) Any party who by pleading alleges any claim for bodily injury or disease, including mental health injury or disease, shall be deemed to waive any privilege between the injured person and each health care provider who has furnished care at any time to the injured person. ‘Health care provider’ means any person or entity who delivers or has delivered health care services, including diagnostic services, and includes, but is not limited to, physicians, psychologists, chiropractors, nurses, mental health workers, therapists, and other healing art practitioners. Any party alleging any such claim for bodily or mental health injury or disease shall, upon written request of any other party who has appeared in the action, sign and deliver within 28 days to the requesting party a separate Consent authorizing each person or entity who has provided health care at any time to the allegedly injured person to:
- furnish the requesting party or the party‘s attorney a complete copy of the chart or record of health care in the possession of the provider, including reports sent to any third party, including any records generated by other health care providers and in the possession of the health care provider, and including radiographic films of any type;
- permit the requesting party or the party‘s attorney to inspect the original chart or record of health care during regular business hours and at the regular business location of the health care provider, upon written request made not less than 7 days prior to the inspection;
- accept and consider charts and other records of health care by others, radiographic films, and documents, including reports, deposition transcripts, and letters, furnished to the health care provider by the requesting party or the party‘s attorney, before giving testimony in any deposition or trial or other hearing;
- confer with the requesting party‘s attorney before giving testimony in any deposition or trial
or other hearing and engage in discussion with the attorney on the subjects of the health care provider‘s observations related to the allegedly injured party‘s health, including the following: the patient history, whether charted or otherwise recorded or not; the health care provider‘s opinions related to the patient‘s state of health, prognosis, etiology, or cause of the patient‘s state of health at any time, and the nature and quality of care by other health care providers, including whether any standard of care was or was not breached; and the testimony the health care provider would give in response to any point of interrogation, and the education, experience, and qualifications of the health care provider. The form of the Consent furnished pursuant to this subsection (a) shall recite that it is signed and delivered under the authority of this subsection. Any variation in the form of the Consеnt required by any health care provider, not subject to the jurisdiction of the circuit court before which the action is pending, to whom a request is directed under subdivision (1) or (2) of this subsection (a) shall be accepted by the allegedly injured party and the revised form requested by the health care provider shall be signed and delivered to the requesting party within 28 days after it is tendered for signature.
All documents and information obtained pursuant to a Consent shall be considered confidential. Disclosure may be made only to the parties to the action, their attorneys, their insurers’ representatives, and witnesses and consultants whose testimony concerns medical treatment prognosis, or rehabilitation, including expert witnesses.
A request for a Consent under this subsection (a) does not preclude such subsequent requests as may reasonably be made seeking to expand the scope of an earlier Consent which was limited to less than all the authority permitted by subdivisions (1) through (4) of this subsection (a) or seeking additional Consents for other health care providers.
The provisions of this subsection (a) do not restrict the right of any party to discovery pursuant to rule.
Should a plaintiff refuse to timely comply with a request for signature and delivery of a consent permitted by this subsection (a) the court, on motion, shall issue an order authorizing disclosure to the party or parties requesting said consent of all records and information mentioned herein or order the cause dismissed pursuant to Section 2-619(a)(9).” 735 ILCS 5/2-1003(a) (West 1996).
In the case at bar, plaintiffs challenged the medical disclosure requirements in the circuit court on several grounds, arguing that
This court has declared
A. Separation of Powers
As we have noted elsewhere in this opinion, the separation of powers clause of the
In the case at bar, plaintiffs maintain that
Defendants maintain that the challenged provision serves the important societal function of expediting discovery and curtailing potential abuses of the discovery process by unscrupulous plaintiffs or attorneys who do not disclose all facts necessary for defendants to prepare a defense. Defendants further observe that this court has often recognized the legislature‘s power to regulate practice and procedure. See, e.g., People v. Walker, 119 Ill. 2d 465 (1988); DeLuna v. St. Elizabeth‘s Hospital, 147 Ill. 2d 57 (1992). According to defendants, there is no conflict between
We agree with plaintiffs that
In O‘Connell, this court reaffirmed the established principle that where a statutory procedure conflicts with a rule of this court relating to the same procedure, the rule necessarily prevails. This court held that provisions of the Code of Civil Procedure which permitted plaintiffs to nonsuit their actions and then to commence a new action within a year following such dismissal unduly infringed upon the judiciary‘s powers, to the extent that the procedures allowed a plaintiff to avoid compliance with
In Gibellina v. Handley, 127 Ill. 2d 122 (1989), this court reaffirmed its authority to manage the court system by prohibiting an abuse of certain procedures, even though the statutes in issue did not directly conflict with a supreme court rule. The Gibellina court prospectively limited plaintiffs’ statutory right to dismiss their actions and refile within one year, where, prior to the plaintiff‘s motion for voluntary dismissal, the defendants filed a motion for summary judgment. This court determined that a plaintiff should not be permitted to abuse the statutory right to refile a nonsuited action within a year where a defendant files a motion that
In a different context, this court has reaffirmed the inherent power of the judiciary to exercise certain judicial functions, such as the power of cоntempt, without being bound by legislative regulation of such power. In Murneigh, 177 Ill. 2d 287, a statutory and administrative blood-collection scheme provided that judges “shall” enter orders requiring incarcerated sex offenders to give blood specimens. The scheme further required the courts to punish the violation of such compliance orders as contempt of court. We ruled that the provisions in issue violated separation of powers principles by conscripting the judiciary into the service of an essentially administrative function and by mandating the courts to enter contempt sanctions. Murneigh, 177 Ill. 2d at 313. This in turn intruded upon the judiciary‘s inherent and essential power of contempt, a power held exclusively by the judiciary. See also Agran v. Checker Taxi Co., 412 Ill. 145 (1952); Wright, 63 Ill. 2d 313.
In the case at bar, as in Murneigh, the challenged legislation provides that the courts shall enter an order of compliance and further prescribes the sole sanction to be imposed if compliance is not met.
Because involuntary dismissals are considered to be adjudications on the merits (134 Ill. 2d R. 273), a plaintiff injured through the fault of another would lose his or her right of action as the penalty for not consenting to the blanket disclosure of all confidential medical information, irrespective of how irrelevant to the lawsuit and however personal, sensitive, or embarrassing the confidential medical information may be to the plaintiff.
Defendants rely on cases in which this court has upheld as constitutional certain legislative regulations of procedure and the filing of claims. For example, in People v. Williams, 124 Ill. 2d 300 (1988), this court held that a statute which provided for the substitution of judges did not unduly encroach on the powers of the judiciary. Similarly, defendants assert, this court has upheld statutes requiring the filing of certain materials as a prerequisite for obtaining judicial relief. See DeLuna v. St. Elizabeth‘s Hospital, 147 Ill. 2d 57 (1992) (requiring health care provider‘s affidavit certifying that plaintiff‘s medical malpractice claim had merit); People ex rel. County Collector v. Jeri, Ltd., 40 Ill. 2d 293 (1968) (requiring that a transcript of evidence relating to the trial court‘s findings be attached to the order of tax deed).
We believe that the particular statutes upheld by this court in the above-cited cases withstood constitutional scrutiny for reasons not present in the instant case. In Williams, the provision allowing for a substitution of judges in certain instances caused only a minimal
Evaluating the relevance of discovery requests and limiting such requests to prevent abuse or harassment are, we believe, uniquely judicial functions. Similarly, the court‘s imposition of sanctions for a party‘s failure to comply with legitimate discovery requests in a timely fashion is an inherently judicial power. However, nothing in the express terms of
The judicial authority to limit discovery requests and to impose sanctions for discovery violations is, moreover, expressly embodied in the discovery rules of this court.
For similar reasons, we hold that
Defendants insist that nothing in
To evaluate the defendants’ statutory construction argument, we again look to the specific language in the
The defendants nonetheless argue that the statute may be construed to permit the circuit court judges to retain discretion over the scope of the discovery because of the following sentence in
In our view, this sentence does not support the defendants’ argument that
But even if we were to accept the statutory construction proposed by the defendants, there is a remaining flaw in the analysis which underscores the separation of powers concerns previously identified. A discovery procedure which authorizes unlimited disclosure of information in the first instance, subject only to particularized protective orders, shifts a significant burden to the courts of this state to repeatedly assess and limit, through entry of protective orders, discovery requests that may well be overbroad on their face. The expansive impact of the statutory consent requirements virtually demands that plaintiffs’ attorneys file motions for protective orders as a matter of course whenever a
B. Right to Privacy and The Petrillo Doctrine
We next consider plaintiffs’ argument that
Defendants counter that there is no constitutional right to privacy in medical information under federal or state decisions. Furthermore, the defendants argue, the branch of government charged with declaring the public policy of this state is the legislature. According to defendants, the legislature acted well within its authority in providing for ex parte conferences between the plaintiff‘s health care practitioners and representatives of the defendants. Finally, defendants posit that the Petrillo doctrine was never expressly adopted by this court and that the legislature is free to overturn it.
In 1970, the Illinois Constitution was amended to include two separate provisions which expressly refer to a citizen‘s expectations of privacy.
The Constitutional Commentary to
In considering
“It is clear from the debates in the Sixth Illinois Constitutional Convention that
article I, section 12 , was intended to protect an individual‘s privacy from invasions or injuries caused by another nongovernmental individual or company. 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1531-32.” (Emphasis in original.) Minor, 149 Ill. 2d at 256.
Consistent with this court‘s holding in the Minor case, we recognize that
In Petrillo, a product liability action, defense counsel informed the trial court that he had previously met in private with a treating physician for one of the 26 plaintiffs in the case. Upon learning of the meeting, plaintiffs’ counsel moved to bar any future ex parte communications between defense counsel and any other physician. The trial court granted the motion and entered an order to that effect. Defense counsel, however, informed the court that he did not intend to comply with the order. The trial court, therefore, held the attorney in direct contempt, and the attorney appealed.
In affirming the trial court‘s order, the appellate court initially noted that ex parte conferences were not necessary to obtain information for defending a lawsuit because the discovery methods outlined by
The Petrillo court emphasized that society places a high value on the professional duties under which a physician operates, including the dual duties of confidentiality and loyalty. Petrillo, 148 Ill. App. 3d at 589-92. The court noted that certain conduct could be against public policy even in the absence of an express constitutional or statutory prohibition because public policy could be inferred from such sources as statutes or constitutions. Reasoning that there exists a strong pub-
In the years following the decision in Petrillo, all five districts of our appellate court have followed the decision and, although the specific application of Petrillo to various facts has differed in some respects, “the fundamental holding that ex parte discussions between defense counsel and plaintiff‘s treating physician shall be conducted only through authorized methods of discovery has been overwhelmingly approved in subsequent Illinois Appellate Court cases.” L. Bonaguro & M. Jochner, The Petrillo Doctrine: A Review and Update, 83 Ill. B.J. 16, 16 (1995). Other articles, which have analyzed the policy grounds on which the Petrillo court based its decision, have either endorsed the prohibition of ex parte communications (see P. Corboy, Ex Parte Contacts Between Plaintiff‘s Physician and Defense Attorneys: Protecting the Patient-Litigant‘s Right to a Fair Trial, 21 Loy. U. Chi. L.J. 1001 (1990)) or questioned the “new type of witness privilege” created in Petrillo and the perceived expansion of the original decision beyond its natural boundaries (see W. McVisk, A More Balanced Approach to Ex Parte Interviews by Treating Physicians, 20 Loy. U. Chi. L.J. 819 (1989); see also C. Redden & W. Bower, Qualifications to the Bar of Ex Parte Contacts With Physicians, 79 Ill. B.J. 442 (1991)).
We do not believe it is necessary, practical, or appropriate for this court to review every case in which the Petrillo rule has been applied, distinguished, or
In his appeal from the order holding him in contempt of court, the attorney in Petrillo raised several arguments. A group of arguments, collectively referred to as the “waiver” challenges, stated that a plaintiff, by filing suit, places his mental and physical condition at issue, thereby waiving the physician-patient privilege. The waiver issue was further broken down into 10 related arguments in which the attorney sought to justify ex parte conferences between defense counsel and the treating physicians of the plaintiff. In addition, the attorney posited that prohibiting defense counsel from engaging in ex parte conferences with a plaintiff‘s treating physician violated defense counsel‘s first amendment rights. Petrillo, 148 Ill. App. 3d at 584.
After initially concluding that ex parte conferences were not necessary for the preparation of a defense, the Petrillo court announced its disagreement with the defense attorney‘s contention that no public policy in Illinois prohibited ex parte conferences. According to the court, “Public policy is found in a State‘s constitution and statutes, and where those аre silent, in the decisions of the judiciary.” Petrillo, 148 Ill. App. 3d at 587. Noting that public policy forbids “that conduct which tends to harm an established and beneficial interest of society the existence of which is necessary for the good of the public,” the court held that “modern public policy strongly favors the confidential and fiduciary relationship existing between a patient and his physician.” Petrillo, 148 Ill. App. 3d at 587. The court stated its belief that this public policy was reflected in at least two separate indicia: (1) the code of ethics adopted by the medical profession, upon which the public necessarily relies as a protection of the confidential relationship existing between a patient and his physician; and (2) the fiduciary relationship which exists between a physician and his patient, which is widely recognized in court opinions.
The first indicia of the public policy invaded by ex parte conferences, the medical profession‘s code of ethics, was further broken down by the Petrillo court into three “prongs“: (1) the Hippocratic Oath; (2) The American Medical Association‘s Principles of Medical Ethics; and (3) the Current Opinions of the Judicial Council of the AMA (1984 ed.)12
Observing that the relationship between doctor and patient remains confidential only for so long as a patient can trust that his consent is a prerequisite to the disclosure of the information he conveyed to his doctor, the Petrillo court concluded that when a physician and defense counsel engage in ex parte conferences without the consent of the patient, the confidentiality which once existed between the doctor and patient is irreparably breached and the “sanctity of the relationship existing between a patient and his physician is thereby destroyed.” Petrillo, 148 Ill. App. 3d at 591. Significantly, the Petrillo court distinguished between medical information which is considered waived by the filing of a lawsuit and information which is not waived. The court noted that disclosure of information could be accomplished by either an express consent or one implied at law by the patient‘s conduct, such as the filing of a lawsuit. With respect to the latter situation, the patient filing suit implicitly agrees to his or her doctor‘s release of any medical information related to the specific physical or mental condition which the patient has placed in issue. However, the plaintiff‘s implied consent (or waiver of information) “is obviously and necessarily limited; he consents only to the release of his medical information (relative to the lawsuit) pursuant to the methods of discovery authorized by Supreme Court Rule 201(a) (87 Ill. 2d R. 201(a)).” (Emphasis in original.) Petrillo, 148 Ill. App. 3d at 591. The plaintiff-patient does not, by the simple act of filing suit, consent to ex parte discussions between his treating doctor and defense counsel, nor does he consent to disclosure of confidential information unrelated to the subject matter of the lawsuit. The Petrillo court concluded, consistent with the courts of other
The Petrillo court also discussed what it considered to be the second “indicia” of the public policy against ex parte conferences between defense counsel and plaintiff‘s treating physicians. Similar to the confidentiality/privacy discussion addressed above, this portion of the appellate court‘s opinion found that society has an established interest in the fiduciary quality of the physician-patient relationship. Citing cases from Illinois and other jurisdictions, the Petrillo court stated that the fiduciary relationship between doctor and patient is founded upon trust and confidence. Implied in this fiduciary relationship is a “good faith” requirement that the physician will not engage in conduct adverse to his or her patient, including ex parte conferences with the patient‘s opposing counsel. Emphasizing that at the heart of a fiduciary relationship is trust, loyalty, and faith in the discretion of the fiduciary, the court in Petrillo concluded that ex parte conferences with defense counsel constituted a serious breach of trust. Petrillo, 148 Ill. App. 3d at 596.
We believe that the rationale of the Petrillo court is sound and that there is a strong public policy against ex parte conferences between the plaintiffs’ health care practitioners and defendants or their represеntatives. We further believe that the privacy interest referred to in the “certain remedy” clause of
VI. Severability
We have declared that certain provisions of Public Act 89-7 violate the Illinois Constitution. Specifically, we have invalidated the cap on noneconomic damages, the provision which gives a credit to third-party tortfeasors in the amount of the employer‘s proportionate share of liability, the abolition of joint and several liability, and the provision of the
Whether or not an act is severable is a question of legislative intent. E.g., Russell Stewart Oil Co. v. State, 124 Ill. 2d 116, 128 (1988); Dornfeld, 104 Ill. 2d at 265-66. It has been noted that this inquiry is twofold, because the legislature must have intended that the act be severable, and the act must be capable of severability in fact. See 2 N. Singer, Sutherland on Statutory Construction § 44.03, at 495 (5th ed. 1993); see also City of Chicago Heights, 408 Ill. at 610-11. To determine whether an act is severable this court has often repeated, as the “settled and governing test of severability,” whether the valid and invalid provisions of the Act are “‘so mutually “connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently ***“.’ [Citation.] The provisions are not severable if they are essentially and inseparably connected in substance.’ [Citation.]” Fiorito v. Jones, 39 Ill. 2d 531, 540-41 (1968); accord People ex rel. Rudman v. Rini, 64 Ill. 2d 321, 329 (1976); Northern Illinois Home Builders Ass‘n v. County of Du Page, 165 Ill. 2d 25, 48-49 (1995); see also Commercial National Bank v. City of Chicago, 89 Ill. 2d 45, 73-74 (1982) (and cases cited therein).
Determining whether portions of an act are severable is a matter of statutory construction, and the existence of a severability clause within the statute is not conclusive of the issue. Instead, an express severability clause may be viewed as a rebuttable presumption of legislative intent. See, e.g., Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 329 (1996); Commercial National Bank, 89 Ill. 2d at 75; Grennan v. Sheldon, 401 Ill. 351, 360-61 (1948). In the case at bar, Public Act
In Jacobson, 171 Ill. 2d at 329, we held that the presumption of severability reflected by an express severability clause will be overcome and the entire statute held unconstitutional if the legislature would not have passed the statute without the provision deemed invalid. Jacobson, 171 Ill. 2d at 329, citing Northern Illinois Home Builders Ass‘n, 165 Ill. 2d at 48. To determine whether the legislature would have passed the statute without the provision declared invalid, the courts consider whether the legislative purpose or object in passing the act is significantly undercut or altered by the elimination of the invalid provisions. For example, in Grennan, this court invalidated the entire Hospital
Similarly, in City of Chicago Heights, this court held invalid in its entirety a public utility regulatory scheme after finding that the license and permit fees imposed by the ordinance were excessive and unreasonable as a matter of law. City of Chicago Heights, 408 Ill. at 609-10. This court next addressed whether the invalid license and permit fee provisions were severable from the remainder of the ordinance, which regulated other supervisory duties imposed upon the department of streets. Holding that the stricken provisions were “manifestly the most important part of the regulatory system,” this court concluded that it could not determine that the council would have adopted the ordinance without the provisions that had been declared invalid; consequently, the entire ordinance was held null and void. City of Chicago Heights, 408 Ill. at 611. See also People ex rel. Barrett v. Union Bank & Trust Co., 362 Ill. 164, 170 (1935) (invalid provision of banking statute held not severable from remainder of statute).
Even in cases where the valid sections of an act are complete and capable of being executed, the entire act will be declared void if, after striking the invalid provisions, the act that remains does not reflect the legislative purpose in enacting the legislation. For example in Village of Schaumburg v. Jeep Eagle Sales Corp., 285 Ill. App. 3d 481, 489 (1996), the court held that certain provisions of a sign ordinance which imposed restrictions as to the type, number, and height of flags impermissibly distinguished corporate and official flags from all other flags. In holding invalid the content-based restrictions, the court held that the other restrictions, although
In contrast to the above cases, statutes have been upheld notwithstanding the invalidation of a provision where such provision was not considered to be so inextricably connected to the rest of the act that the legislature would not have passed the one portion without the other. For example, in Dornfeld, this court held that a two-year limitation period for bringing a paternity action violated the equal protection rights of the children of unwed parents. Dornfeld, 104 Ill. 2d at 265. On the question of severability, this court held that the limitations provision could be removed from the
After reviewing the general principles of severability reflected in the foregoing authorities, we consider the General Assembly‘s intent in passing the legislation introduced as House Bill 20 and enacted, without compromise or revisions, as Public Act 89-7. As this court has previously noted, legislative history is relevant to our analysis of severability. See, e.g., People ex rel. Chicago Bar Ass‘n, 136 Ill. 2d at 536-37; People v. Porter, 122 Ill. 2d 64, 81 (1988). It is not disputed that the sponsors and supporters of the bill intended to effectuate comprehensive reform of the current tort system in Illinois. As such, House Bill 20 represented a major piece of tort legislation, of unparalleled scope and potential impact on the citizens of this state. The transcripts of the legislative debate reflect that House Bill 20 was presented to the full house for vote as a whole, integrated piece, and that the presentation of any modifications or amendments was discouraged. See 89th Ill. Gen. Assem., House Proceedings, February 16, 1995, at 136. It is undisputed that the bill was distributed to the full membership of the house minutes before midnight on the evening before the floor debates were to be held. It is also undisputed that opponents of the bill objected to
Strong support for this inference is defendants’ concession that the cap on noneconomic damages was considered essential to the legislation enacted. According to Representative Cross, the sponsor of the bill in the House, “this cap is the centerpiece of all these reforms.” 89th Ill. Gen. Assem., House Proceedings, February 16, 1995, at 19 (statements of Representative Cross). The language of the preamble to the Act reinforces that key role of the damages cap; out of 17 clauses in the preamble characterized as “legislative findings,” no less than eight cite noneconomic damages as a major concern of the legislature. During oral argument of this case, counsel for defendants confirmed that the noneconomic cap on damages is central to the legislative scheme of tort reform. In fact, so vital to the Act‘s purpose is the cap on noneconomic damages that the legislature included, in
In addition to the emphasis that the preamble places on the noneconomic damages cap, another important goal expressed in the preamble is to reinforce fault-based liability and to insure that tortfeasors bear only their proportionate share of liability to injured plaintiffs. As a means to accomplish this express goal, Public Act 89-7 abolishes joint liability in favor of several liability. Ergo, the abolition of joint liability is, like the cap, central to the purposes of the Act. The removal of these two central goals of Public Act 89-7 (the imposition of the cap and the abolition of joint liability) defeats, in large part, its raison d‘etre.
The legislation under review is a collection of interconnected provisions which address different aspects of tort liability, but nonetheless share the overriding determination to fulfill the goals set forth in the preamble. The summary of legislative purpose in the preamble enumerates these goals, which reflect the legislative intent to replace tort liability in its current form with a system featuring a damages cap, several liability instead of joint and several liability, and a reduction in the number of medical malpractice and product liability lawsuits filed. Other stated goals include protecting the economic health of business and units of local government, protecting the availability of affordable liability insurance, and decreasing the systemic costs of tort recovery. It is evident from the language of the preamble, the provisions of the Act itself, the legislative history, and defendants’ arguments in the case at
bar that Public Act 89-7 was intended to have a broad, systemwide impact on the litigation of personal injury lawsuits. As such, implementation of the Act‘s provisions would modify or supplant a vast body of tort principles developed in many decisions of Illinois courts. For purposes of severability analysis, we cannot conclude that the legislature would have intended to pass a version of tort reform that did not include the measures by which to accomplish its goals.
In summary, core provisions of Public Act 89-7 have been declared unconstitutional by this court. Without these core provisions, which were essential to the passage of the Act and which are inseparable from the remainder of Public Act 89-7, the legislation must fail in toto. We conclude that we cannot hold independently enforceable that residue which remains of Public Act 89-7 after eliminating the core provisions through which the Act intended to accomplish its goals. To do so we would be, in effect, rewriting Public Act 89-7 and refashioning it into another piece of legislation that the legislature cannot be presumed to have intended to enact. As this court observed in Commercial National Bank, 89 Ill. 2d at 75, “‘[t]he new law would be created by this court and not by the General Assembly, because it enacted a different one. This would amount to a delegation of legislative powers to the courts, which is contrary to article III of the constitution, as well as numerous decisions of this court.’ [Citation].” Accordingly, we hold that Public Act 89-7 is void in its entirety.
VII. Other Provisions of Public Act 89-7
Because of our severability holding, we address only briefly the other specific provisions of the Act that were challenged in the instant appeal. The circuit court ruled that section 2-1107.1, which describes three jury instructions to be given in tort actions, is unconstitu
The circuit court also invalidated five specific provisions that relate to product liability actions. One provision,
We do not determine, in this case, whether or not the above product liability provisions are infirm as a matter of substantive constitutional law. We note that defendants, in addition to arguing in favor of the constitutionality of the provisions, have raised waiver and ripeness as reasons for this court to reject the circuit court‘s holding that the product liability provisions in issue are unconstitutional. For example, defendants
We believe that we should exercise caution and restraint in making any ruling, apart from our severability holding, on the constitutionality of these product liability provisions. Without indicating how this court might rule in a future case involving a possibly reenacted version of the challenged provisions, we simply note that if we were to hold that the provisions in issue were not facially invalid, we would be rendering an advisory opinion on a portion of Public Act 89-7 that has been held inseverable from the unconstitutional provisions. If we were to hold that some but not all five of the provisions were unconstitutional, we would be making a selective determination of individual provisions within the larger product liability scheme that is contemplated by the instant Act. We decline to engage in speculative analysis or to render an advisory opinion on thе efficacy of the product liability provisions where, as in the instant case, such analysis or opinion is not necessary for the disposition of the cause.
In conclusion, although the circuit court declared the product liability provisions of the Act invalid, as well as the provisions setting forth three jury instructions to be given in tort actions, we decline to reach the substantive merits of the constitutional challenges made
The problems addressed in the briefs and in oral arguments in the case at bar represent some of the most critical concerns which confront our society today. We acknowledge and wish to commend the attorneys for the plaintiffs, the defendants, amici, and Attorney General on the scholarly and impressive briefs and oral arguments submitted by each.
Circuit court judgment affirmed.
JUSTICE HEIPLE took no part in the consideration or decision of this case.
JUSTICE BILANDIC, specially concurring:
I concur in the majority‘s judgment invalidating Public Act 89-7 in its entirety. I write separately to state that I do not join in the majority‘s discussion of the constitutionality of the damages cap under the separation of powers doctrine as that discussion is wholly unnecessary and constitutes dicta.
JUSTICE MILLER, concurring in part and dissenting in part:
I joined the court‘s opinion in Kunkel v. Walton, 179 Ill. 2d 519 (1997), and therefore I concur in the portion of the present judgment that reaffirms our holding in that case. I do not agree with the majority‘s disposition
I
Legislation is presumed to be valid, and a party challenging the constitutionality of a statute has the burden of establishing its invalidity. DeLuna v. St. Elizabeth‘s Hospital, 147 Ill. 2d 57, 67 (1992); Pre-School Owners Ass‘n of Illinois, Inc. v. Department of Children & Family Services, 119 Ill. 2d 268, 275 (1988); Sayles v. Thompson, 99 Ill. 2d 122, 124-25 (1983). This court‘s role in evaluating these provisions is necessarily limited. Our function here is not to determine whether the legislature has chosen the best or most effective means of resolving the problems addressed in the legislation. “Our nation was founded in large part on the democratic principle that the powers of government are to be exercised by the people through their elected representatives in the legislature, subject only to certain constitutional limitations. Although this court has never hesitated to invalidate laws that it believes to be unconstitutional, we emphasize that our role is a limited one. The issue here is ‘not what the legislature should do but what the legislature can do.’ [Citation.]” People v. Kohrig, 113 Ill. 2d 384, 392-93 (1986). Accordingly, the question before this court is not whether the measures contained in the Civil Justice Reform Amendments of 1995 (the Act) are wise, but simply whether they are constitutional. Bernier v. Burris, 113 Ill. 2d 219, 229-30 (1986).
Our cases have repeatedly recognized that no one possesses a vested right in the continuation of any particular remedy or mode of recovery. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 291 (1996); Bernier v. Burris, 113 Ill. 2d 219, 236 (1986); Trexler v. Chrysler Corp., 104 Ill. 2d 26, 30 (1984). Subject only to the collec
“When the sovereign power of the State has by written constitution deсlared the public policy of the State on a particular subject, the legislative and judicial departments of the government must accept such declaration as final. When the legislature has declared, by law, the public policy of the State, the judicial department must remain silent, and if a modification or change in such policy is desired the law-making department must be applied to, and not the judiciary, whose function is to declare the law but not to make it.”
See also Roanoke Agency, Inc. v. Edgar, 101 Ill. 2d 315, 327 (1984) (quoting Collins); Stroh v. Blackhawk Holding Corp., 48 Ill. 2d 471, 483 (1971) (same).
Our cases are replete with references to the legislature‘s authority to determine public policy, to prescribe solutions to problems, and to alter the common law. For example, in Maki v. Frelk, 40 Ill. 2d 193, 196 (1968), this court declined to adopt a system of comparative negligence, concluding instead that “such a far-reaching change, if desirable, should be made by the legislature rather than by the court. The General Assembly is the
More recently, in Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 29-32 (1996), this court declined to rule that the current method of funding public schools is unconstitutional, deciding instead to defer to the legislature‘s superior ability to establish public policy and to devise appropriate answers to questions facing our society. Although it is certainly true that the power of the legislature to act in a particular field is not a license to act unconstitutionally, the legislature generally enjoys broad discretion in its determinations of public policy.
The majority does not disagree with these basic principles of review, yet the court reaches conclusions that are far different from what our precedents require, and that strike at the heart of the venerable and fundamental relationship between the legislative and judicial branches. The majority undermines these principles when it effectively substitutes its own view of public policy for the legislature‘s considered judgment.
II
The majority devotes a substantial part of its opinion to a discussion of the $500,000 limit imposed by the Act on the recovery of noneconomic losses in personal injury
The Act‘s limitation on the recovery of noneconomic damages is found in
“In all common law, statutory or other actions that seek damages on account of death, bodily injury, or physical damage to property based on negligence, or product liability based on any theory or doctrine, recovery of noneconomic damages shall be limited to $500,000 per plaintiff. There shall be no recovery for hedonic damages.”
Noneconomic damages are defined as “damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society.”
“It is well settled that review of a special legislation challenge is governed by the same standard that applies to review of equal protection challenges. [Citations.]” Cutinello v. Whitley, 161 Ill. 2d 409, 417 (1994). The statute at issue does not impinge on a fundamental right or delimit a suspect or quasi-suspect classification, so the appropriate standard of review that governs the plain
“A statute will be held unconstitutional as special legislation and as violative of the equal protection guarantee only if it was enacted for reasons totally unrelated to the pursuit of a legitimate State goal. [Citation.] The legislature has broad latitude and discretion in drawing statutory classifications to benefit the general welfare, and the classifications it makes are presumed to be valid. A legislative classification will be upheld if any set of facts can be reasonably conceived which justify distinguishing the class to which the law applies from the class to which the statute is inapplicable. [Citations.]” Bilyk v. Chicago Transit Authority, 125 Ill. 2d 230, 236 (1988).
Contrary to the majority‘s holding, I would conclude that the limit on noneconomic losses contained in the Act does not violate the special legislation prohibition of the Illinois Constitution, for the provision at issue readily satisfies the requirements of the rational basis test. Reform of the civil justice system is surely a legitimate governmental goal, and imposing a $500,000 limit on the recovery of noneconomic damages is rationally related to those ends. Noneconomic losses by their nature resist precise measurement. Economic losses, which include items such as medical expenses, lost income, and lost support, are objective and are readily quantifiable. In contrast, noneconomic losses, which include pain and suffering, among other things, are subjective and therefore more difficult to quantify. There is great difficulty in determining proper compensation
Limiting compensation for noneconomic losses is rationally related to the objectives of the legislation. As the preamble to the Act evidences, the legislature was concerned about disparities, inconsistencies, and the lack of predictability in the awarding of noneconomic damages, and about the costs to society of unrestricted compensation for those damages. The legislature believed that imposing a limit on the recovery of noneconomic losses would promote fairness and would help reduce the costs of the tort system. Some will argue that the amount selected by the legislature in the provision at issue here is too low. Although that might be a valid objection to the Act as an expression of public policy, for each of us would probably set the limit at a greater or lesser level, it is not a constitutional defect in the legislation. Like a repose statute, the limit on the recovery of noneconomic losses reflects the balance struck by the legislature between an individual‘s interest in compensation for his or her own injuries, and the public‘s interest in an affordable system of tort law. See Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 428 (1986).
Again, to uphold the statute we need not be convinced of the correctness of the legislature‘s judgment—we need only find that the question is debatable and that the legislature has adopted a rational means of achieving the desired ends. Bernier v. Burris, 113 Ill. 2d 219, 229-30 (1986). In Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 66 L. Ed. 2d 659, 668-69, 101 S. Ct. 715, 724 (1981), the Supreme Court articulated the appropriate degree of deference:
“But States are not required to convince the courts of the correctness of their legislative judgments. Rather, ‘those challenging the legislative judgment must convince
the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.’ Vance v. Bradley, [440 U.S. 93, 111, 59 L. Ed. 2d 171, 184-85, 99 S. Ct. 939, 949-50 (1979)]. [Citations.] Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., [304 U.S. 144, 153-54, 82 L. Ed. 1234, 1242, 58 S. Ct. 778, 784 (1938)], they cannot prevail so long as ‘it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.’ [304 U.S. at 154, 82 L. Ed. at 1243, 58 S. Ct. at 784.] Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.”
Thus, under rational basis review, “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. [Citations.]” Federal Communications Comm‘n v. Beach Communications, Inc., 508 U.S. 307, 315, 124 L. Ed. 2d 211, 222, 113 S. Ct. 2096, 2102 (1993).
In deciding that the cap on noneconomic losses is invalid special legislation, the majority tests the provision against specially selected hypothetical cases that are obviously designed to illustrate defects in the statute. 179 Ill. 2d at 402-03. The legislature, however, makes no pretense that the reform measures at issue here are a panacea for all the ills, perceived or otherwise, in our system of tort law. Nor is it necessary that legislation like this have such miraculous effect. Under rational basis review, we ask only whether the means chosen by the legislature are rationally related to the purposes of the law. In contrast to the examples posited by the majority, one could as easily select hypothetical cases that support and sustain the remedy devised by the legislature. We have never before required legislation under
Nor is today‘s decision compelled by Wright v. Central Du Page Hospital Ass‘n, 63 Ill. 2d 313 (1976), Grace v. Howlett, 51 Ill. 2d 478 (1972), or Grasse v. Dealer‘s Transport Co., 412 Ill. 179 (1952), as the majority believes. In all three cases the court found special legislation violations. The statutes at issue in those cases, however, were much different from the measure involved here. The statute challenged in Wright imposed a limit of $500,000 on the total amount of damages, both economic and noneconomic, that could be recovered by a plaintiff in a medical malpractice action. The court found the statute to be a violation of the special legislation prohibition, concluding that medical malpractice plaintiffs had been arbitrarily selected to bear the burden of being limited in the total amount of compensation they were allowed to receive for their injuries. Both these concerns are alleviated in the provision at issue here, which is broader in scope but narrower in effect: the statute applies to all actions for personal injury, but it limits only a plaintiff‘s recovery of noneconomic losses and does not impose any cap on the recovery of economic losses. Moreover, in Anderson v. Wagner, 79 Ill. 2d 295, 304-05 (1979), this court counseled that Wright should not be read “too broadly,” noting that the statute in Wright could have prevented the full recovery of
Grace and Grasse are also distinguishable. The legislation challenged in Grace limited an injured plaintiff‘s ability to recover compensation for injuries incurred in traffic accidents, depending on whether the other party was using the vehicle for personal or commercial purposes. In Grasse a provision of the Worker‘s Compensation Act would have transferred an injured employee‘s action against a third-party tortfeasor to the plaintiff‘s employer if the third party‘s employee was alsо covered by the Act. In neither case was the court able to discern a rational basis for the classifications drawn by the legislature.
I believe that the opposite conclusion is required here. In contrast to the measures at issue in Wright, Grace, and Grasse, the limit on the recovery of noneconomic losses bears a rational relationship to a legitimate governmental purpose. Here, the legislature could find that a $500,000 limitation on noneconomic damages would reduce the costs to society of allowing compensation for damages that, by their nature, are subjective and difficult to measure. For these reasons, I would join the group of jurisdictions that have upheld, against corresponding challenges on equal protection grounds, similar limits on the recovery of damages in tort actions. See, e.g., Davis v. Omitowoju, 883 F.2d 1155 (3d Cir. 1989) (applying Virgin Islands law; $250,000 limit on noneconomic damages in medical malpractice actions); Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989) (applying Virginia law; $750,000 limit on damages in medical malpractice actions); Fein v. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985); Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo. 1993) ($250,000 limit on noneconomic damages
Perhaps uncertain of its own conclusion, the majority opinion goes on to consider an alternative argument against the limit on noneconomic damages, hoping to persuade the reader by prolixity, if not by force of reasoning. Here, the majority finds that the limit on the recovery of noneconomic damages functions as a legislatively imposed remittitur and for that reason violates the separation of powers doctrine. The majority‘s discussion of this additional argument is entirely unnecessary, given the majority‘s prior holding that the same measure is invalid special legislation. On the merits, I disagree with the majority‘s conclusion that the cap on noneconomic damages improperly intrudes on the judicial power of remittitur. The challenged provision does not represent a finding about the evidence of any particular case, and it does not detract from the power of a court to reduce an award of damages in appropriate circumstances. Remittitur pertains to judges and juries, not the legislature; by characterizing the cap on damages as a remittitur, the majority is simply erecting and demolishing a strawman. The majority‘s broad holding on this question means, in essence, that the legislature may never impose a limit on damages, at least in common law actions. Given the implications of this holding
III
The majority‘s lengthy treatment of several other provisions of the Act is also superfluous, given the court‘s conclusion that the $500,000 limit on the recovery of noneconomic damages is invalid special legislation, and the court‘s subsequent holding that the damages cap is not severable from the remainder of the Act. The majority‘s discussion of these other issues is simply unnecessary to the court‘s resolution of the appeals and should be recognized as the dicta that it is.
First, the majority considers
The majority next considers the validity of the modification made to
The majority also considers the constitutionality of the physician-patient disclosure provisions. Just last month, in Kunkel v. Walton, 179 Ill. 2d 519 (1997), this court invalidated the same provisions. The majority in the present case now relies on a somewhat different rationale to reach the same conclusion. While I agree with the result, I do not agree with its alternative holding that the statutes violate a right of privacy that the majority locates in the “certain remedy” provision found in
Contrary to the majority‘s view, our prior cases construing the “certain remedy” provision of the constitution have characterized it as an expression of a philosophy rather than as a guarantee of the continued existence of any particular cause of action or form of recovery. See Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 424 (1986); Sullivan v. Midlothian Park District, 51 Ill. 2d 274, 277 (1972). It should be noted, moreover, that the majority‘s discussion of the certain remedy provision is entirely unnecessary, for the majority finds the discovery statutes invalid on the separate and independent ground that they violate the separation of powers doctrine.
IV
As a final matter, I disagree with the majority‘s conclusion that the portions of the Civil Justice Reform Amendments of 1995 found unconstitutional here and in Kunkel v. Walton, 179 Ill. 2d 519 (1997), cannot be
The question of severability is essentially one of legislative intent. People v. Warren, 173 Ill. 2d 348, 371 (1996); Tully v. Edgar, 171 Ill. 2d 297, 313 (1996); Russell Stewart Oil Co. v. State of Illinois, 124 Ill. 2d 116, 128 (1988); Springfield Rare Coin Galleries, Inc. v. Johnson, 115 Ill. 2d 221, 237 (1986). As expressed by this court in Fiorito v. Jones, 39 Ill. 2d 531, 540 (1968):
“The settled and governing test of severability is whether the valid and invalid provisions of the Act are ‘so mutually “connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently ***“.’ [Citation.] The provisions are not severable if they are essentially and inseparably connected in substance.’ [Citations.]”
Notably, the Act contains an express severability clause, which states, “The provisions of this Act, including both the new and the amendatory provisions, are severable under Section 1.31 of the Statute o[n] Statutes.” Pub. Act 89-7, § 990, eff. March 9, 1995. The general severability provision found in
“If any provision of an Act *** or application thereof to any person or circumstance is held invalid, such invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid application or provision, and to this end the provisions of each Act *** are severable, unless otherwise provided by the Act.”
5 ILCS 70/1.31 (West 1996).
Although the presence of an express severability clause
Moreover, the various provisions of the Act are not so interrelated that one must conclude that the elimination of the provisions struck down by the majority means that the remainder of the Act also falls. Although the majority characterizes the invalid portions of the Act as “core provisions” whose removal yields an unenforceable “residue” (179 Ill. 2d at 467), the remaining provisions are actually substantial measures in their own right that are independent of the provisions invalidated here. In Grasse v. Dealer‘s Transport Co., 412 Ill. 179, 202 (1952), this court stated:
“The established rule is that only the invalid parts of a statute are without legal effect, unless all the provisions are so connected as to depend upon each other. [Citations.] If that which remains after the unconstitutional portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section or act unconstitutional.”
Although all the provisions contained in the Act are related to tort law generally, they are not so intertwined or interrelated that the failure of any one measure, such as the provision limiting the recovery of noneconomic damages, necessitates the corresponding failure of any other measure, such as the provision requiring a certificate of merit in products liability actions. The limit on the recovery of noneconomic damages and the requirement of a certificate of merit function independently of each other, and there is no reason to believe that the legislature would not have enacted one in the absence of the other. Moreover, although the legislature might
“‘If a statute attempts to accomplish two or more objects and is void as to one, it may still be in every respect complete and valid as to the other; but if its purpose is to accomplish a single object, only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion.’ ”
In the present case, whether the Act is viewed as having multiple purposes accomplished in multiple ways, or a single purpose accomplished in multiple ways, I believe that the legislature intended that the measures found invalid by the majority would be severed from the remaining provisions of the Act.
The Act itself contains further proof that the legislature believed that any portion found to be invalid would be severable. The provision restoring joint and several liability in medical malpractice actions in the event that the cap on noneconomic damages is found unconstitutional represents compelling evidence that the legislature intended for the various provisions of the Act—or at least the cap on damages, the crux of the majority‘s antiseverability argument—to be severable from the other. The majority believes that the provision restoring joint and several liability “demonstrates that key provisions of the Act are interconnected and mutually dependent upon each other” (179 Ill. 2d at 466) and thus supports a finding of nonseverability. In my view, however, the provision compels the opposite conclusion, for it establishes that the legislature was concerned about the possible invalidation of the cap on noneconomic damages and intended for the remaining portions of the Act to survive any adverse judicial ruling. Clearly,
In sum, given the presence of a severability clause in the Act, the ability of the valid measures to stand independently of those found invalid, and the legislature‘s concern about a ruling striking down a portion of this body of legislation, I would conclude that the provisions found unconstitutional here are severable from the remainder of the Act.
***
Although I agree with the majority that the physician-patient disclosure provisions are invalid, for the reasons expressed by the court in Kunkel v. Walton, 179 Ill. 2d 519 (1997), I do not agree that the limit on noneconomic damages is invalid special legislation or violates the separation of powers clause. Nor do I agree with the majority‘s further conclusion that the provisions found invalid here and in Kunkel are not severable from the remainder of the Act, and I would therefore consider in this appeal the plaintiffs’ remaining challenges to the provisions of the Act. As I have noted, the judicial role in assessing the constitutionality of legislation is quite limited, and the majority‘s result here cannot be defended under traditional standards of review. Today‘s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority‘s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.