Illinois Supreme Court Strikes Another Blow Against Tort Reform-Medical Malpractice Caps On Non-Economic Damages Are Held Unconstitutional
On February 4, 2010, the Illinois Supreme Court issued its long awaited decision in Lebron v. Gottlieb Memorial Hosp., Nos. 105741, 105745 cons., (Ill. Feb. 4, 2010), concerning the constitutionality of the current caps on non-economic damages in medical malpractice cases. The Supreme Court in a 4-2 decision held that the caps were unconstitutional as violating the separation of powers doctrine under the Illinois Constitution. Justice Thomas recused himself from consideration of the decision.
This is the second major blow to tort reform delivered by these current sitting Supreme Court Justices. The first blow against tort reform occurred when the Supreme Court issued its long awaited decision in Ready v. United/Goedecke Services, 232 Ill.2d 369 (2009), holding that non-settling defendants could not obtain allocations of fault against settling defendants in tort litigation. This allocation was necessary to ensure that a minimally culpable defendant was not liable for the entirety of a tort damage award. The split of the Justices voting against these tort reform measures in Lebron and Ready are four Democratic Justices - Fitzgerald, Freeman, Kilbride and Burke, with the two Republican Justices Karmeier and Garman dissenting. Justice Thomas took no part in the decisions in each case.
The Court's Opinion -- Damage Caps Are No Longer Viable
As A Way Of Achieving Tort Reform in Illinois
Lebron essentially relied upon the Supreme Court's prior decision in Best v. Taylor Machine Works, 179 Ill.2d 367 (1997), which had previously held that caps on non-economic damages in medical malpractice cases were unconstitutional as violating the separation of powers clause in the Illinois Constitution. Lebron adopted the reasoning in Best on this point and accordingly ruled that the current caps on non-economic damages in medical malpractice cases was likewise unconstitutional as violating the separation of powers clause. Essentially, both Best and Lebron hold that damage caps function as a legislative remittitur. Unlike the traditional remittitur power of the judiciary, the Court found that a legislative remittitur disregards the jury's careful deliberative process in determining damages that will fairly compensate injured plaintiffs who have proven their causes of action. The cap on damages is mandatory and operates wholly apart from the specific circumstances of a particular plaintiff's non-economic injuries. The Court held that this mandatory operation of a damage cap unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law and thus violates the separation of powers clause under the Illinois Constitution.
The way Lebron was written ensures that, at least with the current makeup of the Illinois Supreme Court, the Illinois legislature will never again be able to impose damage caps in medical malpractice cases or any other type of case. The Lebron court pointed out that the inquiry under the separation of powers clause is not whether a damage cap is rationally related to a legitimate governmental interest but rather whether the legislature, through its adoption of the damages cap "is exercising powers properly belonging to the judiciary." The Court's decision in Lebron and its prior decision in Best establish the point that damages caps will always be viewed, at least by the current four Democratic members of the Supreme Court, as unduly encroaching on the judiciary's sphere of authority and accordingly unconstitutional.
The Lebron majority rejected a plethora of arguments supporting the damages caps. For example, the Court rejected defendant's arguments based upon the laws in other states which illustrate a trend by legislative bodies to reign in runaway damage awards through damage caps. The Supreme Court "brushed aside" this argument, stating: "that ‘everybody is doing it' is hardly a litmus test for the constitutionality of the statute."
The majority also rejected an argument made by the dissent that the majority opinion was "an affront to the health-care reform efforts of the Obama administration" and presents obstacles to the legislature's efforts to find an answer to the health-care crisis. According to the majority, its decision had nothing to do with the Obama administration's health-care reform efforts -- just separation of powers.
Lebron sends a signal to the defense bar: it cannot rely upon legislative reforms to keep down damage awards. Instead, only aggressive advocacy at both the trial and appellate levels will operate to ensure some fairness in any non-economic award a jury may render. In previous issues of this CM Report we have advocated for an aggressive approach to litigating tort claims. We have cautioned against allowing plaintiffs' attorneys to "anchor" the jury at the high end of non-economic damages by recommending that motions be filed to bar plaintiffs' attorneys from suggesting amounts for non-economic loss in closing arguments as invading the province of the jury. We have such motions and memoranda for our friends in the business and insurance industry. We also recommend aggressively "trying damages" in every personal injury case. We recognize that oftentimes defense counsel is hesitant to put on a damages case for fear it will compromise efforts to obtain a defense liability verdict. But given the fact that in Illinois at least there will be no caps, and remittiturs following a plaintiff's verdict are unlikely, an aggressive attack on damages must be made by defense counsel at trial.