Samsel v. Wheeler Transport Services, Inc.

62,983 No. Transport

Douglas Services, Samsel, v. Wheeler Plaintiff, Casualty Hilgenfeld, Inc., West Com C. and Great Don pany, Defendants. 541) P.2d

(789 original opinion (For 1990. Opinion March filed 71.) 771 P.2d see March filed P.A., argued Topeka, Palmer, of Marquardt Snyder, Palmer, & of R. Jerry plaintiff. briefs for on the was the cause Smith, Topeka, Patterson, Fisher, Sayler Smith, of & Dudley of Edwin firm, argued were on the Fabert, the cause and the same of R. and Steve for the defendants. briefs Morris, Char- Atcheson, Bergman & Shamberg, Johnson, of Gordon G. Park, Kansas Trial for the tered, amicus curiae on the brief of Overland Lawyers Association. was delivered the court opinion The of the United E. O’Connor Earl Judge Chief Lockett, J.: has certified District of Kansas for the District Court States 60-3201: Does to K.S.A. pursuant for resolution following question Constitution, in- violate the Kansas 60-19a01 K.S.A. 1987 Rights? Bill of §§ 5 18 of the Kansas cluding the traditional voted limit of our majority loss monetary value for determine the role of the a limit on setting life in Kansas quality that recognizes of this court majority noneconomic law, by setting the common modify decision the legislature’s is a decision damages, legislative on noneconomic limit state constitution. violate our does not however, we will question, the certified discussing Prior following in the findings report: contained review some Legal Liability Review the Kansas Citizens Committee Report of Insurance and Other Matters: They in Kansas as Problems Affect Liability (Oct. in the Area Insurance Recommendations Bell, Kansas Commissioner of Insur- to Fletcher 1986) (a report Report). This report pro- Committee (hereinafter Citizens ance) insights stormy controversy into important vides systems. and tort liability insurance currently surrounds has taken over the place past in tort doctrine change A great longer seen as function of is no primary century. caused; seen for harm now deterrence or retribution large part, by In this shift has been caused as compensation. insurance, liability purchase affordable availability modem See, e.g., occasionally required legislation. has been of which Care Insurance Avail- (the 40-3401 Health Provider seq. K.S.A. et availability Act insurance all Kansas ability guarantees physicians). which critics warn is availability liability

It is the insurance If system. goes, tort insurance so will present threatened no matter how favorable the many plaintiffs, compensation In is not achieved when reality, “[j]ustice are in their favor. laws court; is granted by is it achieved when compensation deserved Citizens paid plaintiff.” to the Committee compensation Advisory of the Governor’s Commis- (quoting Report Report the State New York 121-29 Insurance for Liability sion on 1986]). [Apr. under- profits derive from two sources: companies

Insurance income. Investment fluc- revenues and investment income writing “However, part premium cycles. an enormous play tuations have such a influence profound did interest rates never before digit during cycle the latest when double upon as premiums companies with a substantial provided rates insurance interest pool of funds available to use to increase market share by reducing premiums.” Citizens Committee Report 33-34. 1970s,

The insurance crisis of the referred to in the Citizens Committee Report, was partially caused by the industry’s in- creased market at lower premiums due to its remarkably high rate of return on investments. The crisis was especially hard-felt in the malpractice insurance area. In response to this crisis and to ensure the continued availability insurance, liability medical reform; state every enacted some of tort type the statutes number Comment, “Crisis”, over 300. Caps, and Constitutionality —Eval- 1986 Kansas Medical uating Malpractice Legislation, 35 Kan. 763, L. (1987). Rev. 765 n.18 Legislature

The Kansas and Governor took the following ac- tions: In the Health Care Provider Availability Insurance Act, Fund, which created the Health Care Stabilization was en- (K.S.A. acted 40-3401 et medical seq.); malpractice screening panels (K.S.A. were established 65-4901 seq.); et the statute of limitations was shortened to medical malpractice actions (K.S.A. and the 60-513); collateral source rule was modified as to medical malpractice (K.S.A. actions 60-471). We upheld modification to the statute of limitations in Stephens Snyder Ass’n, Clinic P.2d 222 Wentling Services, Medical Anesthesia Kan. 701 P.2d 939 (1985), we invalidated the modification to the collateral source rule as a violation of the equal protection guarantee of our state session, constitution. In its 1985 the legislature took note of Wen- K.S.A. 60-471 tling repealed L. enacting ch. § 5. industry

Some insurance observers correctly predicted that a new crisis would in the develop early 1980s as interest rates fell and insurance companies’ investment returns decreased. See Comment, 35 Kan. L. Rev. at 770. The crisis of the 1980s is the of medical burgeoning price malpractice insurance.

Because the legislation of the 1970s had failed to halt increasing cost of medical malpractice insurance and in response 1980s, to the new crisis Legislature Kansas took the following (1) actions in 1985: a cap placed was on punitive damages actions, in medical malpractice and (2) another attempt was made at modifying the collateral source rule in medical malpractice

340 (K.S.A. Supp. 60-3403). 1985 In v. 241 Farley Engelken,

actions 663, 1058 we this (1987), Kan. 740 P.2d found modification of rule to be a violation of equal protection. the collateral source efforts failed to check the prior rising When its cost of medical premiums promised, legislature insurance the 1986 malpractice further, medical taking following malpractice went actions: decisions were made at trial screening panel (K.S.A. admissible Care li- 65-4904[c]); 1986 Health Stabilization Fund’s Supp. (K.S.A. 40-3403); attorney was restricted the award of fees ability made on after an contingent approval evidentiary hearing (K.S.A. 7-121b[a]); Management the Internal Risk Supp. (K.S.A. was created and Program Supp. 65-4922); limitations qualifications expert were on the witnesses in medical placed (K.S.A. actions malpractice Supp. 60-3412). Finally, attempted liability to limit the of health care providers in medical actions for malpractice by capping recovery noneco- $250,000 losses, nomic losses at on all placing cap total noneconomic, $1,000,000 (K.S.A. both economic at 60-3407). We invalidated this last measure as a violation §§ 5 and 18 the Kansas Bill Rights in Kansas Malpractice Bell, (1988) Victims Coalition 757 P.2d 251 (Malpractice Victims). great

The of states have majority also enacted statutes to deal Comment, with the new crisis. See 35 Kan. L. Rev. at 771 n.53. And, many provide caps of these statutes on noneconomic losses. See Civil Brantingham, Continuing Justice Reform: Balance, (1987); Search 10 Hamline L. Rev. 399-402 see Annot., 583; Lewis, 80 A.L.R.3d The Case 75 Ill. Against Caps, B. (1986). Many they of these statutes are so recent have J. challenged appeal. been As for those which have been yet challenged, vary according arguments the outcomes to the raised provisions upon argu the state constitutional which those were based. ments 38 Cal. Group, Fein Permanente Medical 3d Rptr. (1985),

Cal. 695 P.2d 665 the California Court Supreme upheld constitutionality statute which limited noneco- $250,000. nomic awards in medical suits to damage malpractice of the California Constitution in Fein provisions applicable provisions similar to constitutional involved this case.

341 Applying a rational basis standard review, the court rejected the plaintiffs equal protection and due process claims. The court rejected also Fein’s argument that the legislature had limited the potential recovery of medical malpractice victims without provid- ing an adequate quid pro quo, holding (1) plaintiff has no vested in a property particular damages, measure (2) authority modifying scope has broad Cal. 38 3d at 157. damages. nature of jurisdictions, the Fein cases from other reviewing similar cases, with statutes in those challenged noted that the majority economic and which limited both caps one involved exception, 38 3d 161. The Fein dissent cited damages. Cal. at noneconomic cases, those majority that a emphasizing of the same many regardless type the challenged caps had invalidated courts at 38 Cal. 3d 170. legislature. imposed of limitation subsequent dismissed the Supreme United States Court 474 U.S. want of a substantial federal question. of Fein for appeal 215, 892, S. (1985). Ed. 2d 106 Ct. 214 White L. Justice dismissal, majority that a of state courts noting dissented as to the those including caps so far invalidated such damage caps, had 474 U.S. at 893. were limited to noneconomic granted appeal White would have consider Justice v. Car- left unanswered Duke Power Co. following question Inc., 59, 57 Ed. 438 U.S. L. Study Group, olina Environmental 595, re- (1978): process 2d 98 S. Ct. 2620 whether federal due rem- when a state a common-law quires pro quo replaces quid compensation with a enacted scheme. edy legislatively was ac- appeal Court’s treatment of the Fein The Supreme Garmon, 335, (D. F. Ferguson knowledged that the dismissal of Judge Chief O’Connor noted 1986). Kan. construed, devel- safely in the absence of doctrinal is most Fein otherwise, the merits that a indicating ruling as a opments sub- presents of noneconomic loss no statute capping Mi- See Hicks v. issue under the federal constitution. stantial randa, Ed. Ct. 2281 45 L. 2d S. 422 U.S. 24 Ohio Misc. 2d Community Hosp., v. Suburban In Duren Ohio, Pleas of the Court of Common (1985), 495 N.E.2d $1,000,000 award let jurisdiction, stand general court of trial an Ohio statute which set suffering by invalidating pain $200,000 medical awards. Central malpractice a on general cap distinguish failure to legislature’s the court’s decision was the “necessarily those which result from general damages, between of,” and noneconomic Ohio injury complained settled, 2d at 28. Recause the no was taken parties appeal Mise. Victims, (In this decision. we Malpractice from unconstitutional a similar set of statutes that capped found noneconomic, of all both economic and recovery damages, total at $1,000,000.) Ins., (Fla. 2d 1088-89 Department In Smith v. 507 So. $450,000 a

1987), cap Court of Florida held on Supreme a damages noneconomic violative of the trial as stated a guaranteed by the Florida Constitution. court only legislature on such would be constitutional if the cap damages that there was al- quid pro quo or found no other provided meeting overpowering public necessity. ternative in an U.S., (Tex. 1988), In Lucas v. 757 S.W.2d the Texas Su- $150,000 in cap damages Court held that medical preme a state provision actions violated constitutional malpractice due law.” 757 S.W.2d at 690. guarantees “remedy by course of only damages from the were those to com- exempted cap medical, and future pensate past expenses necessary hos- and custodial care. The court that when pital, found cap, set the it had failed to an sub- provide adequate injuries (a quid pro quo), stitute to obtain redress for as was done Compensation Following in the state’s Workers Act. the rationale Smith, by the Florida court in the Texas court held that applied citizens of that state are entitled to have in civil damages actions jury. (Our assessed 757 S.W.2d at 692. rationale in Mal- is similar practice Supreme Victims rationale of Florida and the Texas Supreme Lucas.) court Smith Court Bulala, Supp. (W.D. 1986) 647 F. Va. Boyd recon denied, 672 F. (W.D. 1987), sideration Va. rev'd 877 (4th 1989), F.2d 1191 Cir. a case under brought diversity juris diction, the federal district court held that a statute which Virginia malpractice limits total in medical actions to million $1 trial as guaranteed by violates the the 7th Amend States Virginia ment to the United Constitution Con- stitution. The federal court stated that the assessment of was clearly a jury function under the common law and that the 7th Amendment was intended as a check on both the judiciary and the legislature. As for the Virginia Constitution, the federal district court found the state guarantee of a jury trial to be at least as strong as that provided in the federal constitution.

Without mentioning the federal district court’s decision in Boyd, the Supreme Court of Virginia held that the statutory cap at issue in that earlier case did not violate the state constitution’s guarantee of a jury trial. Etheridge Medical Center Hospitals, 237 Va. 376 S.E.2d 525 (1989) (three justices dissenting). While the Virginia court agreed that a plaintiff is entitled ato jury determination of actual damages constitution, under the state it held that the legislature may limit actual recovery since full guaranteed never at common law. 237 Va. at 96. compensa when workers reviewing a different rationale (Using Kan. 233 Doresky, Rajala in result similar tion, a reached we [1983]). 1251 P.2d 661 the Court 1989), Cir. Bulala, (4th F.2d 1191 877 Boyd In up judgment earlier district court’s the reversed Appeals of malpractice on medical Virginia’scap of constitutionality the held holding Court’s Supreme Virginia the found The court the state con under made challenges of dispositive Etheridge in constitution, the federal the As for at 1195. F.2d 877 stitution. may a“If Amendment violation: 7th no found court right the violating without action a of cause abolish completely damages re limit may it permissibly think we by jury, trial of The F.2d at 1196. 877 well.” action as a of cause coverable protection equal or process due of violation found no also court of goal legitimate the related reasonably cap the since 1196-97. 877 at F.2d care services. health adequate ensuring (D. 1325 Supp. 705 F. Corp., Motor v. Mazda Franklin of District Court for the District States United 1989), Md. in per- $350,000 on noneconomic cap held Maryland consti- state federal or not violate did awards injury sonal has no an individual First, noted court the Maryland tutions. therefore, law; cap common rule of any in interest vested Con- Maryland under trial violate the did reads: Rights of Declaration Maryland 23 of the Article stitution. in civil proceedings trial of all issues of fact Jury “The of State, in Law in this where the amount in the Courts of several dollars, five hundred shall be exceeds the sum of controversy distinguished court role of The inviolably preserved.” between apparatus parties” resolution part dispute as a “of “rules advance of making of the legislature and the role leg- 1331. court noted that the F. at The disputes.” Supp. valid and provable “terminate an entire power has the islature limitations,” remedy, and found that a a statute of through claim is of law rather than liability, a matter finding opposed at 1333. Supp. of fact. 705 F. withstood Franklin’s on noneconomic also cap Maryland Article 19 the Declaration challenge

second based on man, “[E]very any done to provides: Rights, have ought remedy person property, him in his land, and to have ought justice Law of the course of the denial, sale, speedily fully any without without right, freely had to the Law of the land.” The court delay, according without same process that Article due gave determined previously States 14th Amendment United Constitution. rights as the courts determined under a test Maryland Access to reasonableness, heightened scrutiny. with no requirement to a cap legislative bore a reasonable relation valid court held states, Kansas, that some such as find acknowledged but purpose, process Supp. in their state due clauses.” 705 F. “more protection Victims, 333). The court also (citing Malpractice at 1337 state constitutions treat full acknowledged “some at right.” (citing a fundamental 705 F. in tort as Manuel, [1984]). Ariz. P.2d 280 v. San Barrio 2d P.2d Corp., In v. Fibreboard 112 Wash. Sofie a statutory the Court held lim- (1989), Washington Supreme damages damage unconstitutional. The itation on noneconomic age injured on a based the operated upon limitation formula court, addressing equal without the plaintiff. protection claim, damages that the statute’s limitation on noneconomic found jury’s in actions interferes with the traditional malpractice medical determining function of West, Inc., (Mont. 1989),

In P.2d 488 Meech v. Hillhaven United District action in the States employees brought group claiming damages for the District of Montana Court for their wrongful employment, termination from breach of implied cov- good dealing, enant of faith and fair and or negligent intentional infliction of emotional distress. The United States District Court following question: certified the Did the Montana Wrongful Dis- charge Employment (1) From Act unconstitutionally deprive redress,” right under the Act of their “full legal workers (2) prohibit recovery wrongfully of noneconomic punitive limit the damages? Supreme

The Montana Court recognized that no one has a any vested rule of common law. legislature, under welfare, its to act for the plenary power general may alter com- causes of action if it provides quid mon-law an adequate pro quo. case, P.2d at 494. In since legislature this had provided Act, adequate substitutes for causes of abrogated by actions Supreme the Montana Court Act found the be constitutional. 506. 776 P.2d at Omitowoju,

In Davis v. 883 F.2d (3d 1989), Cir. plaintiff her physician having negligently performed sued sur knee to which she had not consented. The gery jury awarded plaintiff $640,000, $403,294.92 trial court reduced to pursuant Virgin to a Islands statute which caps noneconomic $250,000. such cases at On the third appeal, circuit cited Boyd Bulala, 877 summarily F.2d plaintiffs dismissed arguments cap guarantees that the violated federal pro equal process. tection and due The court further held that the statute plaintiffs did not violate to a jury trial: “Where it is the made a policy which has rational public decision interest, as contrasted with a decision judicial only which affects it, it parties before cannot be said that a legislative such terms, enactment offends either the the purpose policy the Seventh Amendment.” 883 F.2d at 1165. court, this question case before certified

United States District Court the District of Kansas arises out personal Samsel, of a action plaintiff, Douglas wherein the defendants, claims one of the Hilgenfeld, negligently Don driving caused an automobile accident left of the center line. Samsel was rendered a quadriplegic as result of this accident. Services, Inc., Other defendants are Wheeler Transport Hilgen- Co., insur- Casualty and Great West Wheeler’s feld’s employer, Kansas; is a Douglas Hilgenfeld Samsel resident company. ance in Ne- principal place Wheeler has its of business of Nebraska. The organized Great West is under Nebraska law. braska and diversity citizenship in court based on case filed federal was § U.S.C. to 28 pursuant 16, 1988, K.S.A. 1987 May accident occurred

When the caps damages per- was in effect. This statute in 60-19a01 Supp. $250,000. suffering actions and at When pain sonal for injury present O’Connor on October question Chief certified Judge 27, 1988, 60-19a01 and -19a02 were in effect. Supp. K.S.A. 6Q-19a01 identical, except The 1987 and versions of are language limits its application the 1988 amendment adds which 1, 1988. action which accrue before K.S.A. July causes of 60-19a02, accruing action on or Supp. applies causes of after differs from 60-19a01 in that medical mal- July longer no the term liability exempted actions are and practice by loss.” “pain suffering” replaced and was “noneconomic Diagonals is set indicate K.S.A. 1988 60-19a02 out below. -19a02; italics from 60-19a01 which not included language language that did in -19a01. appear indicate new section, any “(a) ‘personal injury means for in this action’ action As used except malpractice liability personal injury death medical for or for actions. action, by injury party “(b) any personal the total recoverable each from amount suffering pain loss all claims and noneconomic shall not exceed all defendants for for $250,000. a sum total of action, “(c) injury personal the verdict shall be itemized the trier of In every pain suffering and loss. fact to the amount awarded for noneconomic reflect injury “(d) jury, to a shall personal action is tried the court not instruct If a pain section. If the verdict results in an award for on the limitations this section, suffering which exceeds the limit of this the court noneconomic loss $250,000 pain suffering judgment party’s all the claims for shall end enter entry judgment Such court shall occur after consideration noneconomic loss. negligence principles in K.S.A. thereto. comparative 60-258a amendments modify repeal “(e) provisions shall not of this section be construed wrongful death provided K.S.A. 60-1903 amendments thereto limitation actions. apply “(f) only personal this actions which provisions of section shall 4; 1987; July July accruing -en er after on or causes action based on after 1988." Our resolution of the issue presented by the certified ques- K.S.A. 1987 Supp. tion —whether 60-19a01 violates the Kansas applies equally K.S.A. 1988 Supp. 60-19a02 Constitution — gives since that statute rise to no additional issues. Although 1, 1988, in Samsel’s after plaintiff position July would be bound 60-19a02, K.S.A. 1988 by purpose no would be by served him or her to requiring argue the same issues in resolved this Bell, 589, 593-95, case. See Manzanares v. 214 Kan. 522 P.2d Freeland, 344, 345, (1974); Dairy Belle v. 175 Kan. (1953). P.2d 894 question certified limits our review to analysis an

Kansas Constitution. The federal court will decide whether the contested statute offends the federal constitution. See 17A Wright, Miller & Cooper, Federal Practice and Procedure: Ju- §2d p. risdiction 174 (1988). plaintiff Specifically, argues statutory §§ that the cap violates 5 and 18 of of the Bill Rights in the Kansas Constitution. Section 5 states: “The of trial shall be by jury inviolate.” Section is almost as succinct: “All persons, for injuries person, reputation suffered property, law, remedy shall have due course of and justice administered delay.” without

We previously § have said that 18 protects “rep- injury, aration for ordered jurisdiction, tribunal having Faler, due course of and after procedure hearing.” a fair v. Ernest 237 Kan. 870 (1985) 697 P.2d (quoting Hanson Kreh- biel, 2,¶ Syl. [1904]). Pac. 1041 Though the argues § amicus curiae that 18 protects the itself remedy and that the procedural mechanisms of due process protected by § 1 of the Kansas Bill of Rights, argument change does not our decision. question

The certified us to review requires our state consti- tution, law, of the role the common legislative judicial power and law, vis-a-vis the common and the separation of doctrine. powers is It also essential that we of analyze doctrine stare decisis prior and the of our consequences decisions.

Our constitution is written charter enacted the direct action the citizens of of Kansas. It is a compilation of fun- damental laws of the state and embodies the principles upon of our con- object was founded. government the state men, and of while of law not government is provide

stitution life, liberty, property. of insuring protection government. establishes the form of our The state constitution States, the United the Constitution Like the Constitution of express requiring separation no provision Kansas contains this have all court taken but decisions governmental powers, separation powers granted the constitutional doctrine government legislative, three branches of state between — executive, complete separation pow- Absolute and judicial. intended. State government impracticable ers of Co., All gov- 92 Pac. 606 Railway Kan. in the sovereign power legislature, except is vested ernmental of government is to the other branches or ex- granted such as legislature by from constitutional restrictions. withheld pressly 7, Theis, Syl. (1975). ¶ 217 539 P.2d 304 It Kan. Leek duty safeguard of the courts to the declaration primary is the provisions. and constitutional guaranteed by remedies rights ¶ University, Syl. State 217 Kan. v. Wichita Brown (1975). P.2d the critic does not make this court

Our constitution rather, this court is the of the constitution legislature; guardian presumption act comes before us with a every legislative and A statute will not be declared unconstitutional constitutionality. law of is infringement superior its on the the constitution unless clear, rel. Rob- beyond substantial doubt. State ex Crawford inson, (1862). interpretation of constitutional Kan. both state and federal important responsibility is an principles constitutional, is determining In whether statute courts courts. substituting their views on economic or social guard against must are with legislature. only Courts concerned those policy statutes, to enact not with wisdom be- legislative power When a act is legislative appropriately hind those enactments. mandate, conforming to a challenged as not constitutional is invoked lay provision of the court constitutional function the latter challenged statute and decide whether beside is to the function of the court say, with the former—that squares legislation was and declare whether enacted merely ascertain in contravention of the constitution—and with or in accordance underlying policy. or condemn approve not to determined from decisions in only law can be The common under As distin- bearing upon subject inquiry. cases former law, law embraces statutory or written the common from guished custom, body upon general of unwritten law founded great that consent, upon justice and based natural or or common usage, defined as long acquiesced It otherwise be custom may reason. and usage judicial immemorial decision. 15A in or sanctioned 2d, § Law 1. Am. Common Jur. sense, the common law is the of rules and system a broader judicial from which our ideas and principles legal declarations of continually generally derived. See Steele v. Lat- definitions imer, 521 P.2d 304 It is not a codi- conduct, inflexible rules for human the redress fication of exact or rather, it is against wrongs; the em- injuries, protection unwritten in- comprehensive principles, bodiment of broad an innate justice, natural reason and sense of spired by regulation government common consent for adopted by 2d, § men. 15A Am. Common Law 1. of the affairs of Jur. organic law became effective Kansas when the

The common p. 469,) the common law “By (Statutes, act law of passed. to 4 I. local prior and all statutes England James nature, statutes for the kingdom, general except pun- and of misdemeanors, adopted crimes and were ‘as the rule ishment of territory.’ adopted and decision in the This the common of action it remedy action and forms of so far as was rights law as to with the constitution and laws of the United States consistent Small, 170, Kansas.” Sattig and the statutes of power act stated that the had the (1862). original The rule of action and decision in contrary any enact statutes to to law, custom, the usage. original or In 1868 territory, any the use the law was expanded and an of common repealed act was I, § Ch. Art. 3 stated: the G.S. adopted by legislature. law, law, statutory judicial by as modified constitutional “The common decisions, people, in and wants of the shall remain force and the condition state; law, general of this but the rule of the common in aid of the statutes construed, derogation strictly shall be shall not be that statutes in thereof state; any general this applicable statute of but all such statutes shall to be liberally promote object.” construed their today. This remains in effect K.S.A. 77-109. wording first which must be question addressed is whether the to a trial civil cases under the common law included right jury damages. to have the determine right jury the Since there is no law, out the of authority precisely lays rules common courts English practice look in order often to discover the “common Moore, during in existence a relevant See period. law” The Jury does Historical research not a clear-cut answer provide first question. to the

The United Court Supreme recently States stated its re- that right search showed there to be no substantive under the common States, law to a determination jury of In Tull v. United 481 U.S. 95 L. Ed. Ct. (1987), 2d 107 S. the the the scope right by Court addressed of to trial under jury the 7th Amendment to the United States Constitution. While the held that under liability Court Clean Water Act could only determined a jury, be it went on hold that there is no to a constitutionally protected right jury determination liability imposed. in the event that is The Court stated: question jury 7th on “The Amendment is silent whether must remedy in liability. determine a trial in which it must determine depend jury must responsibility answer whether must shoulder this necessary preserve as the ‘substance the common-law trial jury.’ jury Is necessary purpose? [Citation omitted.] role for that We do fundamental, ‘Only regarded think not so. those incidents which are as system by jury, placed inherent and of the essence of trial beyond legislature.’ the reach of the [Citations The assessment omitted.] ” penalty a civil is one of ‘most fundamental elements.’ 481 U.S. at 425. The footnote appended quoted to the text explained: “Nothing language suggests in the Amendment’s that Instead, remedy phase extends language trial to the of a civil trial. preserved, ‘defines the kind cases namely for which trial “suits ’ ‘ Although at common law.” have [Citation omitted.] “[w]e almost no direct concerning evidence intention framers of the seventh amendment itself,” setting adopted historical in which the Seventh Amendment was highlighted controversy generated that ... fear the civil jury itself would presented be abolished.’ [Citation We have been omitted.]

351 right jury extend the to a Framers meant the no evidence with U.S. at 426 n.9. phase a civil trial.” 481 remedy hand, in a following reported Blackstone other On the interlocutory judgments: concerning discussion of, usually spoken in- interlocutory judgments, those most “But established, whereby right plaintiff is indeed judgments, complete ascertained; damages is not which is sustained quantum of but him jury. As the intervention of be done without a matter that cannot finished, completely till the cause was not constitution old Gothic judicii, decretorum ad jurors called in ‘ad executionem were nembda or damni, lucri, judgment the decree of was predi, ire.’ [before aestimationem costs, rendered, damages, gain, .... etc.] [W]here valuation of to make a them; recovered, jury called in to assess unless damages must be are to be defendant, damages in the charges, the whole laid save will confess Blackstone, *397-98. 3 Commentaries declaration.” has determined that the Court Supreme The United States is limited the 7th Amendment trial under jury guarantee trial. We of a civil remedy phase extend to the and does not rights broader granting our constitution interpreted have the Kansas and this state. The state constitution the citizens of trial includes the right jury that the recognize law common Malprac- See Kansas determine to have the right 342-43, Bell, 757 P.2d Coalition v. tice Victims This is not an unlimited Victims). (Malpractice 251 (1988) damages to a determination limitations on the and the discussed later. will be suffering, for and pain is whether question

The next under the common are awarded damages, or other noneconomic explicitly recognized in which a court recorded case law. The first in which the lost plaintiff case suffering “squib” pain and excruciating pain great “underwent and suffered eyes both of six months.” space time for the long for a and torment [to wit] in O’Con- 1773) (cited 1124 Eng. Rep. (K.B. Sheperd, Scott v. His- Through Pain and Payment Suffering Carpenter, nell & 1822 case of [1983]). In the Ins. Counsel tory, J. 1822) (cited (Ex. Rep. 25 Rev. Sheppard, Pippin the judg- stated that 412) explicitly the court at Ins. Counsel J. Formbooks of suffering. pain ment included Pleading time, Complete System A including Wentworth’s suffering pain pleading for the routine (1798), provided If American had not injury in actions. courts personal damages before, and it is clear that pain suffering for damages allowed See 50 Ins. at 412- do so after Counsel began Pippin. they J. Minot, 299 (1850); of Verril v. 31 Me. Morse 13 for discussion R.R., (N.Y. 1851); 10 Barb. 621 Ct. Sup. & Syracuse v. Auburn E.R.R., 1861, 15 N.Y. (1857). By and Ransom v. New York adopted, “legal precedent when the Kansas Constitution for and compensation pain suffering.” 50 Ins. clearly supported at 413. Counsel J. Bill of mandates Rights awarding 18 of the

Section Kansas based on the injured party theory compen to the damages Co., suffered. See McGrew v. Investment 106 Kan. sation for loss law, (1920). Under the pur 187 Pac. common damages is to make a whole awarding party by restoring pose he was in position prior injury. to the State ex party P.A., 183, v. & 236 Kan. Wolfenbarger McCulley, rel. Stephan 189, (1984). Damages 690 P.2d restore a to his person are divided into economic and prior noneconomic dam position care, include the cost ages. damages past Economic of medical future, benefits, i.e., and related lost wages, earning and loss of and other such losses. Noneconomic losses capacity, include and mental pain suffering, anguish, injury claims for and disfig affecting and earning capacity, urement losses which cannot Victims, expressed in dollars and cents. easily Malpractice be Kan. at 337. damages recoverable in personal injury

Are noneconomic ac- that, under the Kansas common law? In tions we stated fraud, in the absence of malice or should consider the determining compensation when in a following personal loss; time; suffering; action: the loss of pecuniary actual expenses incurred; the character as injury, to whether it is permanent temporary consequences; or its and the condition or circum- Wilcox, injured party. stance of 6 Kan. (1870). Tefft actions, therefore conclude that in personal injury We noneco- damages, pain nomic such as suffering, elements of Kansas damages common-law to consider.

Because of the nature of noneconomic damages, there is no clear method for the loss and measuring determining the amount due. The standard of compensation evaluation which an is measured is such amount as noneconomic award for compensation estimates to be fair when that person a reasonable harmony be in with the evidence as arrived appears amount Kansas passion prejudice. Fudge City City, at without ¶ 720 P.2d 1093 Syl. determining person the amount reasonable difficulty award an for his or her noneconomic loss injured party would legislature. both this court and the When recognized has been pain suffering, how to assess instructing juries on acknowledge: pain, suffering, trial “For such items as our courts unit and math- anguish and mental there is no value no disability award give you. formula the Court can You should such ematical compensate him. The amount fairly adequately sum will within sound discretion.” PIK Civ. 2d your to be awarded rests any precise guide measuring The lack of for noneconomic 9.01. which must reviewing is also a for courts decide problem loss inadequate. whether such awards are either excessive or 60-19a01 was enactment of K.S.A. 1987 legislature’s the Citizens Committee The Citizens Com- by Report. influenced of awards for and unpredictability pain mittee found that it difficult to write insurance or to self- suffering very “makes levels, cost and also sometimes premium insure at or appropriate high they that are so result pain suffering results in and awards instances, many increases. In these premium in unreasonable unaffordability.” the level of Citizens Committee increases reach on noneconomic cap 64. The committee recommended Report uncertainty limit in this area. Citizens Committee damages to 11). (Recommendation 63-64 Report that an has a con- injured party we have determined

Although and a for stitutional to be made whole suffered, it is clear that re- and noneconomic losses economic compensation suffered is not really for noneconomic loss covery actually whole. Such com- injured party to make an life, i.e., loss of the injured party quality to the pensation suffering. and disability, pain, decisions we have cre- by prior that our complain

Defendants category people, personal i.e. protected ated a specially and, so, § the Kansas have violated 2 of doing we plaintiffs which Rights, provides: Rill of governments people, and all free political power is inherent in “All equal protection authority, are instituted for their their are founded on granted by special privileges shall ever be or immunities and benefit. No altered, repealed by may revoked or the same legislature, not be agency.” power exercised no other tribunal or

body; and this shall be Ass’n, 115, 128, 230 Kan. Snyder Clinic Stephens § 2 when the chal- apply plaintiff we refused to (1981), P.2d 222 the statute of limitations which grounds, on constitutional lenged, actions health care negligence against had been shortened rights guarantee involved the equal We held the issue providers. § 2 Rights Bill of rather than because the § 1 of the Kansas § people reserved do powers privileges political rights or of an individual. We personal property to the apply § 2 solely we had construed applying cases wherein cited See, State ex rel. v. Urban Renewal e.g., political privileges. 179 Kan. 296 P.2d 656 City, Kansas Agency of Bauder, cite 518 P.2d Henry Defendants also § that we used 2 in that case to find the argue (1974), § statute unconstitutional. While we cited 2 in guest automobile was based upon equal protection guar our decision Henry, § along § 1. It is true that we have often cited with antee of involving challenges, but we have equal protection § 1 in cases § 2 protects property rights way held that in the that never like argue. would now defendants complain Defendants also we have been “inconsistent” of various tort analyses reform measures —that it unfore- our 2, 5, 18, §§ whether we will use “some other” seeable to “strike down” which is beneficial to any legislation rationale simplistic recognize defendants. Such a statement fails to the limitations of courts and the restraint tra- jurisdictional appellate by exercised such in the of their ditionally limiting scope courts to the issues raised on Our de- parties appeal. decisions we, undoubtedly cisions would be more “consistent” if rather parties, than the framed the issues we are asked to decide. granted greater Defendants assert that this court has consti- tutional to than to those whose protection persons injured who negligence Farley Engelken, caused the cite injury. They claiming height- Kan. 740 P.2d 1058 that a (1987) support, applied level of created and then improperly ened scrutiny to a statute which protection challenge in an abolished the equal rule in medical cases. This malpractice analysis collateral source First, Herd, only two reasons. is incorrect for author Justice Prager and then Chief opinion, applied height- of the Justice analysis. Two Lockett and scrutiny justices, ened Alle- Justices in the result but with the disagreed application concurred grucci, test and scrutiny applied of the rational basis test. heightened that all equal protection requires injured Both who are agreed act have an negligent equal right compensation another’s tortfeasor, negligent regardless any classification that from attempted impose. legislature has If the legislature wishes by abrogating the rules of evidence the collateral change source rule, equally it do so if to all who are may applied injured by act of another. The three negligent dissenting justices also Secondly, the rational basis test. the case is not applied applicable challenge as the here does not the statute plaintiff equal on briefs, in grounds. (Elsewhere their defendants protection erro- a strict test neously applied scrutiny claim we in Malpractice Victims, though even there was no equal protection claim decided.) perceive inconsistency who an between

Individuals our denial place legislature’s attempt caps Mal- and our acquiescence legislative caps Victims in other practice instances, wrongful such as death and the Kansas Automobile Act should reread Chief Injury Reparations Prager’s anal- Justice First, the ysis Malpractice remedy wrongful Victims. death is a statute and not a remedy existing creation of under the Thus, remedy law. both the and the limitations common on dam- ages legislature. were created

Second, is no in our inconsistency prior there decisions. In 233 Kan. 661 P.2d 1251 Rajala Doresky, (1983), this court Bell, Act. In Compensation the Workers Manzanares v. upheld 602-608, 522 P.2d 1291 (1974), upheld we Act, Injury Reparations Kansas Automobile K.S.A. 40-3101 et since the acts bore a rational seq., legislative relationship to the and were not objective arbitrary unreasonable be- legislative had a sufficient provided quid pro cause the quo Victims, imposed. Malpractice the limitations Kan. legislative caps placed on the of losses we invalidated in medical actions because the malpractice legislature had failed provide quid pro quo sufficient for the loss of the injured party’s right for the to determine the amount These cases reflect a of this majority court’s adherence to the doctrine of stare decisis. answering

When federal district court’s question, we arrive upon tradition, at the decision based a background precedent, and institutional constraints limit or channel changes. It is that, recognized under the doctrine of stare decisis once a point court, of law has been established aby that point of law will followed the same generally by be court and all courts of lower rank in cases where the subsequent legal same issue is raised. operates promote Stare decisis system-wide stability con- the survival tinuity by ensuring of decisions that have been pre- viously approved by a court. While an unconstitutional exercise power by either the executive or legislative branches may be branch, judicial checked the only check upon our own exercise of power is our own sense of self-restraint. See United Butler, States v. 297 U.S. 80 L. Ed. 56 S. Ct. 312 (1935) (Stone, J., dissenting). application of stare decisis en- sures stability continuity demonstrating a continuing legit- — imacy judicial review. adherence to constitutional Judicial precedent ensures that all government, branches of including the branch, judicial are bound law.

This court is reluctant to treat as open still a question which it definitely has once passed upon. general American doctrine as applied to courts of last is resort that a court is not inexorably bound its precedents own but will follow the rule of law which cases, it has established in earlier unless clearly convinced that the rule was originally erroneous or is longer no sound because changing good conditions that more than harm will come by departing Hallock, from precedent. See Helvering 309 U.S. 84 L. Ed. 60 S. Ct. 746 The distinction between decisions construing statutes and those construing the constitution is that if the people are dissatisfied with the construction of a statute, the frequently recurring sessions of the legislature afford alter, easy opportunity to repeal, or modify the statute. The constitution, hand, on the other organic and intended to be enduring until changing conditions of society demand more strin- a regulations. or less restrictive If decision construes the gent in a manner not acceptable people, constitution to the the op- of law is portunity changing organic remote. previously Compensation

We found Workers Act consti tutional, though even the worker is not entitled to a trial by jury any provides issue and the Act no for compensation pain and fact, cases, suffering. In in some the Act less provides compen sation for economic loss than has actually been suffered addition, worker. In injured compensation workers claimants may damage not maintain a civil action a fellow against employee for for which any injury compensation recoverable. But in return for the loss of these rights, injured substantive workers are re proving lieved of the burden of fault on the of the part employer prior establishing right their for compensation and receive more speedy payment. certain and We held compensations those a quid pro quo sufficient to validate the Act. We stated that once Legislature the Kansas has public determined the better policy, it is not the of this prerogative court to such modify legislative determination. Rajala Doresky, 233 Kan. at 442.

When a similar determining issue to the submitted question Bell, by the federal district court in Manzanares v. 214 Kan. we found that although Injury Kansas Automobile Reparations Act, K.S.A. 40-3101 et seq., injured party’s does not affect an losses, right jury to a trial or limit the of economic it recovery does prohibit recovery pain suffering or other nonpecu- loss in the event niary except of certain types personal injury, injury requires or where the medical treatment of a value atof $2,000. held, nevertheless, least K.S.A. 40-3117. We that the insurance, mandatory availability though of no-fault even pur- chased is a sufficient injured party, quid pro quo for the limitation on the for noneconomic 214 Kan. recovery Therefore, § at 599. the Act did not violate Kansas Bill it was within Rights. again recognized We the province desirability of this court to of social or economic weigh policy statute, weigh the beneficial underlying flowing results any particular legislative policy. from 214 Kan. at 603. Victims, we declared Malpractice compre- which: limited the amount (1)

hensive set statutes $250,000; (2) capped for noneconomic loss to the total recovery noneconomic, $1,000,000; at both economic damages, of all future loss an economic (3) required annuity payment §§ violative of 5 and 18 of the malpractice in all medical actions Bill of of the Kansas Constitution. Rights right jury that the common-law provides

Our constitution determine the amount jury trial includes the to have right not, actions. An individual does personal however, in the common-law rules right governing have a vested modify can negligence actions. of a determination of amount of

trial and the law, change the common but the through power its Statutory absolute. modification of the right is not legislature’s requirements due and be rea- process law must meet common promote general in the interest to the sonably necessary public process requires the state. Due that the people welfare of the statutory remedy the viable of quid pro quo substitute legislature Note, the right. generally to the loss of See (this that) replace Schemes: A Malpractice Compensation Restrictive Medical Con- Analysis Pro to Individual “Quid Quo” Safeguard stitutional Lib- erties, Legis. (1981). 18 Harv. on 143 J. Victims, of this court in majority Malpractice 333, legislature’s that the modification of the common asserted law, damages injured on the amount of an by placing caps plaintiff actions, malpractice recover medical without substituting could the quid pro quo, right jury a sufficient violated to have a de- addition, §§ damages under 5 and 18. In a statutory termine insurance compulsory liability (though purchased by scheme of a defendant) quid pro quo the was not for caps damages injured the since the plaintiff, liability suffered insurance had legislature prior mandated the to the passage caps been of the Holmes and McFarland legislation. each dissented. Justice Justice Victims, we determined that are a Malpractice damages jury § under 5 of the Kansas Bill of Rights prior issue our hold- by enacting We held that the statutes limited a ings. remedy providing adequate common-law without an plaintiffs § the remedy, substitute violated 18 of the Kansas Though mentioned in the Rights. opinion, Bill of we did not for frustration of the of the to explore potential right damages by power court’s common-law to exercise determine its discretion to reduce jury’s a award by remittitur. question of whether the statute’s mandatory language which prohibits the court from modifying a jury’s award of noneconomic losses of $250,000 or less provides a quid sufficient pro quo was left unanswered.

Section 5 Kansas Bill of Rights protects the right to jury trial as it existed under common law at the time the constitution Victims, adopted. Malpractice 243 Kan. at 342. Under the law, common jury verdicts have always been subject to the con- currence of the trial and the judge judge’s trial to power grant a new right trial. The of the trial court and the court appellate grant to a remittitur or a new trial does violate the individual’s guaranteed by trial the United States Constitution. to 873, 43 L. Ed. 174 U.S. Hof, See Co. v. Traction Capital Ct. S. in a finding jury’s accept refuse to may

A court evidence, amount if, of the light case personal the conscience to shock so low high or either so & Bergendoff, v. Howard-Needles-Tammen Ingram court. Newell, 210 Smith v. 299-300, (1983); 672 P.2d Kan. case, court, in such (1972). The 499 P.2d Kan. damage accept opportunity party affected offer the may consents party evidence. If in line with verdict more as to the appeal verdict, loses the party the altered accept refuses altered party If the amount of trial, again the party in which a new verdict, order may the court in the order refuse to discretion court’s faces the App. 2 Kan. Thurman v. See by jury. the amount found Cundiff power. of the court’s for a discussion 406, (1978), 893 2d 580 P.2d damages finding a of accept jury’s to to refuse The court’s 1901 enacting By is not unlimited. case in a personal power its to exercised legislature § 4755 the General Statutes a trial when grant new authority to common-law divest the court’s of that repeal inadequate. verdict jury’s the deemed court by this interpreted of the code 1904 version in the provision of in- the question that legislature by the recognition court as courts to is a proper ground verdict jury’s of a adequacy 154, Pac. Stevens, 119 86 Kan. v. Sundgren trial. a new grant which damages, on jury verdict have held that We (1911). 322 court, the trial con by may grossly inadequate to be is deemed a new trial in the absence granting for the stitute a basis 595, Syl. v. 193 Kan. contrary. Levy Jabara, a statute to 1, & Light Henderson v. Kansas Power (1964); ¶ 396 P.2d 339 188, we ac Co., (1961). P.2d 60 In both cases Kan. power. to exercise its We knowledged hard, and in may rules be some legislative that these recognized be but that is a consideration to injustice, may produce cases See interpreters. and not to the law to the lawmakers addressed 256-57, O’Neill, (1904). 68 Kan. Pac. Co. v. Railway 1964, issues of remittitur were decided under 1923 until From read, 1949, 60-3004, by jury “In cases tried G.S. court, reduce the prevailing party, may with the consent of the evidence and by such not warranted part verdict residue, a new trial when grant justice for the judgment render the plain- it.” The statute remittitur without precluded requires consent, authority the court’s was limited Lacking tiffs consent. McNown, of a new trial. See McAlister granting 608, 611-12, (1953). 258 P.2d 309 Kan. the new code of civil became effective on procedure

When 1, 1964, G.S. corresponding there was no statute January to the Kan expressly granting authority 60-3004 of remittitur courts, McAlister, contrary to our we pronouncement sas directly jury exercised our reduce a award of power elect a new giving party opportunity without the affected Brunch, 202 Kan. 449 P.2d 580 trial. See Rooks 1976, however, judgment we held that substitution of the without the consent of jury the court for the affected violates the 7th Amendment to the United party Co., See Ford v. Guarantee Abstract & Title States Constitution. (1976) 220 Kan. 553 P.2d 254 Rooks v. (disapproving Brunch, 441). question

Both awards for noneconomic loss and the whether a exercise its a remittitur are power grant court will nature, Because their it is to foresee unpredictable. difficult the amount of noneconomic or which will be punitive damages awarded or remitted a court. Newell, 117-18,

In Smith v. at we commented on Kan. disparity proper damages views on between liberal and greater with its jury, as one reason that judges conservative consensus, upheld should be community a reaching likelihood of the most damages exceptional in all but in its determination maximum award of noneconomic on the Setting cap cases. in the award with variations away would do objective limiting and meet the desired a certain level above of 60- mandatory language to court. The from court variations -19a02, juries defendants from liberal protecting while 19a01 trial judges. from conservative protects plaintiffs also judges, an- injured by that those who are requires Equal protection re- equal right compensation act have an negligent other’s legislature attempts impose. any classification gardless (Lockett, concurring). 241 Kan. at 680 Engelken, J., Farley legislature deprive unlimited. The a class may is not right trial, recover right jury right of their of individuals loss, full right compensation and the to recover noneconomic of the burden of injured if the class is relieved injuries suffered and receives a wrongdoer on the more part fault proving recovery. Rajala Doresky, See speedy certain trial, altering right 440. Without the individual’s losses may providing limit of noneconomic legislature Bell, the limitation. Manzanares v. a sufficient quid pro quo the jury’s 599. The cannot restrict legislature 214 Kan. at on the re- statutory loss or limitation place to determine the the victims of only and noneconomic loss of economic covery Victims, 243 Kan. 333. Malpractice malpractice. from mod- prohibits Kansas Constitution

If the limiting to a trial and from ifying injured party’s an deciding or noneconomic losses when Mal- recovery for economic Victims, to declare required this court would have been practice Injury Automobile Act and the Kansas Compensation the Workers we did unconstitutional. We did not. Because Act Reparations not, In the we must now adhere to the doctrine of stare decisis. that the under its past, recognized legislature, power we have welfare, alter causes of general may to act for the common-law quid if it an rights provides adequate action and constitutional is wrong, determination of the legislature’s power If that pro quo. to that erro- by adhering is better justice promoted substantial overthrowing the rule established. See decision than neous 540-45, Bank, 273 (1907). Kan. 94 Pac. 76 Weaver -19a02 alter the right K.S.A 1988 60-19a01 nor Supp. Neither injured trial or the jury deprive party to a civil plaintiff of the and all economic dam- a determine award right of the injured party party’s prior to the to return the required ages -19a02, Supp. 1988 60-19a01 and while status. K.S.A economic to receive noneconomic losses in away plaintiffs right taking $250,000, injured that the insure court plaintiff excess of also $250,000 award exercise discretion to less than when will not its jury. provide awarded The statutes do higher damages are damages individual whose awards quo quid pro loss that exceed the suffering cap. and or noneconomic pain and only is on noneconomic does cap The statute reduce of any portion the court’s other power not limit of duty protect parties it deems a court to excessive. award rules of arising ignorance from of the law unjust from verdicts evidence, passion or impulse prejudice, and of from from rights lawful conduct of violation of their in the any other Fant, Pleasants v. 89 U.S. 22 trial is still maintained. L. Ed. 780 pain those and a full

Denying greatest suffering with rem- to ease insurance rates for those who cause edy order aby legislature. approved majority was considered that the loss legislature cap aware on noneconomic will severely injured recover those most affect the Kansas Legislative Kansas. See Chairman of Bar testimony Committee, Judiciary Association to House Mar. 1987. Laws that restrict those who suffer the mental greatest pain, anguish, disfigurement case-by-case from determination of However, are harsh. by jury individual our determi- that, circumstances, nation is under proper may losses individuals limit noneconomic of those whose has affected. of life been most quality prior Rajala To be consistent with our decisions in v. Doresky, Act); the Workers (upholding Compensation Man- Bell, Kan. 589 the Kansas (upholding zanares Automobile Act, 40-3117); K.S.A. 1988 Injury Reparation Supp. Mal- Victims, Kan. 333 (invalidating legislative practice caps placed on the recovery of losses in medical malpractice actions), the answer to the certified question is that K.S.A. 1987 Supp. and 1988 60-19a01 and K.S.A. 1988 Supp. 60-19a02 do § (right § violate to a jury) or 18 (right to due course of law injuries suffered) of the Kansas Bill Rights.

McFarland, J., concurring: I concur with the result reached by the majority disagree but on the rationale employed in the majority opinion.

Section 5 of the Kansas Bill Rights provides: by jury “The of trial shall be inviolate.” Section of the Kansas Bill Rights provides: persons, injuries “All person, reputation suffered in property, or shall law, remedy by have justice due course of delay.” administered without The majority opinion has the effect of lumping together the right to trial by on the jury question of liability and the remedy established, to be afforded if is liability and then freezing the lump in a common-law time warp. I find legal no basis for in- cluding the scope of the remedy right to a jury trial. I believe the scope remedy to be afforded is a matter of legislative determination without the quid pro quo requirement affixed by As noted majority. in the majority opinion, a num- ber of other states have upheld damage caps without a quid pro quo requirement.

Section 5 applies to all cases in which jury trials are manda- tory civil and criminal. It applies equally plaintiffs —both defendants. No one seriously claims the legislature cannot alter permissible lengths sentence and fines because to do so would violate article 3 of the Kansas Constitution. The penalty or remedy facing defendants violating criminal possible statutes is loss of liberty and/or The property. penalty or remedy facing defendants violating civil law is loss of property. Lumping penalty remedy with the valid, would, means of determining liability, if of necessity, equally be applicable under article 3 to all parties in civil and criminal jury trials.

The majority opinion states that the award of damages is to injured make the party whole by him restoring or her to the position he or she was in prior to the injury. The to trial right the is to include the to fix right then held

by extension, actual this would have include rationale By logical on col- jury. found Limitations recovery by would, therefore, time be in the same common-law caught lection any legislation which exceeds common-law warp. Presumably, article would violate judgments limitations on collections exe- garnishments, Many a quid pro quo. absent limitations cutions, etc., impairments thus be unconstitutional as would federal bank- whole. The be made injured party’s act, trial itself, be violation major would ruptcy jury. by negligence contributory fault or comparable

The utilization of cases. A many on the outcome of major bearing standards has a contributory neg- under has no negligent injured party jurisdiction, fault he or In a pure comparative standards. ligence Kansas, others. In he or caused she recovers those is less than fifty percent. his or her negligence she recovers if legislature. determined applied standard to be is standard is in any particular no argument There is serious a time warp. modify of limitation statutes authority of damages, restrictions. Punitive subject only to some minor etc., legislative prerogative. within the damages, wholly

treble wrong with changes What is an for a appropriate remedy times. totally compensation trials were workers

Jury eliminated here, The as quid pro quo validity laws. has requirement liability to have removed—not by determined was how were to just computed. be of has sec- Much what been said previously applies equally remedy It of speaks tion 18. due course of It does not law. any remedy. particular “Due course of has no bear- require law” herein. on the issue ing conclusion, I concur with the result majority reached in the I of disagree finding quid pro necessary

opinion. quo that result. to reach dissenting: filing I J., respectfully disagree with the

Herd, filing with the The majority opinion. procedure procedure a brief on March with a opinion formal opinion to follow was bad in this case. At the practice time the brief opinion was filed, the was in legislature session discussing the need for a amendment constitutional to effect tort reform. The timing thrust this opinion court into the legislative debate and left an indication the decision was politically motivated. This undermines confidence in the public independence and neutrality ju- diciary. I would have treated this opinion other opinions filed it in the ordinary course of Supreme Court work. turn

We now to the majority formal opinion. The statute in is the most recent question of many efforts the legislature to accomplish “tort reform.” The name is a misnomer. The effort has not been to reform torts but to restrict the of dam- ages by victim of a wrongdoer. The impetus to change the methods determining liability and damages for the negligent persons was brought about increase in the size and frequency judgments in tort actions in the past twenty The years. increase is largely attributable to the followingchanges, most of which are the result of a reform movement of the 1960s and 1970s:

1. Abolition of contributory negligence as a defense.

2. Comparative negligence.

3. Adoption strict liability tort.

4. guest Abolition of the statute.

5. Abolition governmental immunity.

6. Authorization of class actions.

7. Availability of expert witnesses.

8. Making juries representative of communities.

9. sensitivity Public to human rights. 10. Better trial techniques through use of demonstrative

evidence.

11. Abolition of assumption of risk as a defense.

12. Inflation. proponents of “tort actively reform” most of opposed those reforms though even they considered to have sub- promoted justice. stantial There has been great pressure legislature on the for tort reform past over the several years. has responded quite readily by enacting the Kansas Automobile Injury 1974; Reparations (No Act K.S.A. Fault), 40-3101 et seq., Fund, in the Health Care Stabilization implementing Panels, seq., Screening K.S.A. 40-3401 et Medical K.S.A. 65-4901 et and the shortened statute of limitations in medical seq., cases, K.S.A. 60-513. Also in 1976 the malpractice cases, rule modified the collateral source for medical malpractice 60-471; 1985, statute was K.S.A. this struck down in 1985. In a 60-3402, punitive damages, was on K.S.A. 1985 cap placed Supp. and another modification of the collateral source rule in medical passed, cases was K.S.A. 1985 60-3403. malpractice Supp. 1986, again collateral source modification was struck down. In 2661, 13, § House Bill L. legislature passed ch. a total placed cap recovery on for medical at malpractice $250,000 $1,000,000 and a cap recovery on for noneconomic This was cap loss. struck down 1987. K.S.A. 1987 60- Supp. 19a01 was then passed, placing cap pain on for loss, In was extended to all suffering. cap noneconomic K.S.A. 1988 60-19a02. The latter Supp. two statutes are the of this As well subject opinion. opinion described in our Bell, Victims Coalition Malpractice Kansas (1988), P.2d 251 none of these valiant efforts have produced the desired results. This true because the statutes cannot attack the cause of the judgments. negligent cause is Wrongfully injured are entitled people. people adequately to be for their compensated by wrongdoer injury. Victims, $1,000,000 we held that a limit Malpractice on total $250,000

recovery and a limit of for noneconomic §§ in medical lawsuits violated 5 and 18 malpractice loss Victims, Bill of of the Kansas Constitution. In Rights Malpractice that the recognized legislature’s power modify we limited guarantees constitutional of a trial and a due remedy by of law in actions in the law recognized course common is tem- due We pered by process requirements. process held the due met requirements by substituting statutory could be viable remedy constitutionally guaranteed plaintiffs right. Kan. at 343-44. This is denominated a quid pro quo (this that). We held K.S.A. 1987 60-3407 failed to meet such medical did requirement malpractice plaintiffs because not receive in return for the limitation on their anything statutory due course of law. We remedy by specifically rejected that a argument quid pro quo existed for the reason that malpractice medical were plaintiffs guaranteed recovery of their judgment due to the health care providers’ required insurance Thus, coverage. the statutory requirement that the trial court $250,000, judgment enter if the jury returned a higher verdict that, than offered in nothing exchange taking away the con- guarantees. stitutional that,

It is axiomatic satisfy constitutional requirements case, in the present it must be shown that a substitute remedy is provided by K.S.A. 1988 Supp. 60-19a02 of sufficient benefit to plaintiff to balance the loss of plaintiffs constitutional rights. The majority accepts the argument defendant’s that a sufficient quid pro quo is provided by what is claimed to be a restriction on the trial court’s power grant remittitur or a new trial even if the trial court believes the verdict is excessive or not supported by the evidence. This conclusion is erroneous.

Under the United States Constitution and the Kansas Consti tution, interpreted cases, aby long fine of to trial by jury includes presence of a judge to determine the law of the case which carries with it the power to set aside a jury’s if verdict it is not supported by the evidence. See Capital Trac 1, 13-14, tion Co. v. Hof, U.S. 43 L. Ed. 19 S. Ct. 580 (1899); Ingram v. Howard-Needles-Tammen & Bergendoff, 289, 299, 234 Kan. 672 P.2d 1083 (1983);Kirk v. Beachner Con Co., Inc., 733, 736, struction 214 Kan. P.2d 176 This a jury basic to trial any interference with such judicial function is a violation of the separation powers. A trial judge, inherently, has wide discretion in granting a new trial or setting aside a verdict when the jury verdict is excessive or so inadequate as to indicate passion prejudice Newell, by the jury. Smith v. 499 P.2d 1112 (1972).

Nowhere in K.S.A. 1988 Supp. 60-19a02 is there an indication of an intent by the legislature to attempt to eliminate a trial court’s inherent right to order remittitur or grant new trial. Placing a limit statutory on the amount of damages a personal victim may recover in way no affects the trial court’s power to review the evidence in fight of the jury verdict and determine whether the verdict is excessive or inadequate. If there were shown, such legislative intent it would be an unconstitutional and a vio- function judicial usurpation powers. separation lation 60-3407, statute Supp. K.S.A. 1987 compare us Now let Victims, with K.S.A. in Malpractice held unconstitutional we instruct the trial court to statutes forbid Both 60-19a02. requires and each limitations on statutory on the $250,000 loss for noneconomic judgment enter a the court to language exceeds the limitation. verdict when the Thus, the issue asserted regard. in this is identical the two statutes issue rejected. Victims Malpractice present here was Malpractice from the issue in indistinguishable case is in this Victims. Victims, re- statutory cap limiting we stated

In Malpractice without an injuries adequate personal action for in an covery remittitur compulsory, pre-established acts as a remedy substitute injury part to bear negligent victim of a successful which forces his jury his award without forgo part of by having this loss of in the The result is the same 243 Kan. at 345. her consent. or determines the how serious the case. No matter present be, successful loss to victim’s noneconomic injury personal In damage of the award. portion only receive may plaintiff issue, that defamation of is well to remember this it weighing of noneconomic good examples disfigurement character that, to limit granted authority is legislature if the damages reduce them power it has the pro quo, with no quid restricted to noneconomic and its is not power to $1.00 of the constitutional scheme drastically changing is majority suits over to the damage the trial of turning process by due § 5 Rights, pro- Kansas Bill of government. of branch legislative According inviolate.” by jury trial shall be “The vides: (2d 1935), ed. Dictionary 1306 New International to Webster’s unbroken; violated; unimpaired; is defined as: “Not “inviolate” unprofaned.” Bill Rights violates the Kansas 60-19a02

K.S.A. 1988 Malpractice stated in Victims. rationale we on the same stare decisis and to its noble words about should adhere majority Victims. Malpractice precedent follow the compromising quid pro quo a fictitious conjuring up After Rights, majority Kansas Bill of § 18 of the § 5 and both opinion theory pro then abandons that and holds that a quid quo is unnecessary, stating: majority “The of this court recognizes law, the legislature’s modify decision to the common by setting a limit damages, legislative on noneconomic is a decision that does not violate our state This is an constitution.” incorrect state- law, ment if followed it the judiciary’s eliminates consti- process tutional for due responsibility personal actions. Kimball, al, Connor, al, Starks, In et et (1866), we held the trial by jury applied to cases only triable at law. common The Kansas Constitution was adopted ratified in 1859. Suits for negligent personal injury were by jury triable at common law at that time. See Tefft Wilcox, Thus, *46 (1870). Kan. the cases to trials fixed in applied Giving were 1859. the authority law, damages by otherwise, to limit changing the common or § violates 5 of Kansas Bill of Rights by taking damage question from A away jury. written adopted constitution is for the purpose limiting power government. Providing that trial shall by jury be inviolate is a government limitation on as a protection rights. individual There no question legislature has the power change abolish common law. That, however, does change not A Kansas Constitution. later change § in the common law does not affect the 5. meaning Its meaning was fixed in 1859. The method of constitu- proper amendment, tional is by change legislation. Marbury v. Madison, (1 5 U.S. Cranch) (1803), Chief Marshall Justice explained issue this well: limited; legislature powers “The of the are defined and and that those limits may forgotten, not be mistaken or the is constitution written. To what limited, purpose powers purpose are and what to is that limitation committed time, writing; may, any passed by to if these limits at be those intended to be government restrained? The distinction between a with and limited abolished, powers unlimited is persons if those limits do not confine the imposed, they prohibited whom equal are and if acts and acts allowed of contested, obligation. proposition plain a It is too to be that the constitution it; or, any legislative repugnant legislature may controls act to that the alter ordinary the an constitution act. ground. “Between alternatives there is no these middle The constitution law, paramount means, is superior, unchangeable either a ordinary or acts, acts, it ordinary legislative is on a with level and like other is alterable legislature please when the shall to alter it. true, legislative contrary part the alternative be then a act former of “If the true, law; part if latter be then written con- is not the to the constitution part people, to attempts, power of the on the limit stitutions are absurd nature in its own illimitable. contemplate “Certainly written constitutions all who have framed those nation, forming paramount the law of and fundamental and them as the be, every government theory must that an consequently the of such act of repugnant is legislature to the constitution void. the constitution, essentially theory to a written and is con- is attached “This principles of sequently this court as one the fundamental to be considered society.” of our legislature appellate permit an court improper It is emergency expediency. based on Prof. the Constitution change Law, Schwartz, of University New York School Bernard of this comments on issue: Supreme (1957), Court public only demands of “A its law to fit immediate tribunal molds fulfilling proper supreme hardly to the bench in is role sentiment merely system Court no reason for existence if it such ours: ‘The has ” day,’ from Board Education pressures quoting reflects of 1628, Barrette, (1943) (Frank- Ct. 1178 319 U.S. L. Ed. S. furter, J., dissenting). 2d, § p. Am. Constitutional Law states: Jur. instrument, as a has been described fundamental “A state constitution exigencies stretched strained to meet and necessities be and moment, rigid as a is basic instrument which and firm will withstand time, upheavals protecting continually in the interest the emotional rights guarantees.” it grants majority opinion amends the constitution personal to determine in all power making is facts in this We are It not limited case. actions. major change restriction. This is a power without grant with caution. approached and should be policy worst expediency enemy been said that is the It has often fact, written were con- a written constitution. constitutions under avoid the emo- changing principles ceived to fundamental circumstances). Our action of the time upheavals (expedient tional such emotional response just upheaval. an obviously here 60-19a01 and -19a02 I would hold K.S.A. unconstitutional.

Allegrucci, J., dissenting.

Case Details

Case Name: Samsel v. Wheeler Transport Services, Inc.

Court Name: Supreme Court of Kansas

Date Published: Mar 21, 1990

Citation: 789 P.2d 541

Docket Number: 62,983

Court Abbreviation: Kan.