Are Non-Economic Caps Constitutional?

Article excerpt

As part of broader tort reform efforts, states have enacted non-economic damage cap statutes over the past few decades. States often cite creating a positive business climate and concerns over the availability of insurance coverage as bases for damage caps. Balancing these concerns with society's interests in fairly compensating tort victims has proven difficult.

Almost all damage cap statutes have been challenged on constitutional grounds at some point since their enactment. Supreme courts in Alabama, Georgia, Illinois, New Hampshire, Oregon, Texas, and Washington have declared their respective state non-economic damage cap statutes unconstitutional either altogether or in certain circumstances. Other states, like Mississippi, await decisions from appellate courts regarding the constitutionality of the state's damage caps.

The most common argument against the constitutionality of cap statutes is that they violate the plaintiff's right to a jury trial. This argument appears in almost every constitutional challenge to a cap statute, although it has successfully convinced a court to strike down a cap statute as unconstitutional in only a handful of state cases. Advocates of caps consistently rely on the "legitimate state interest" argument--a very difficult argument to overcome and an attractive argument for a court to rely upon in upholding a cap statute. This article presents summaries of the various arguments and provides an overview of the status and constitutionality of non-economic damages caps in each State.

I. Arguments Against Constitutionality

A. Violate the Right to Jury Trial

As described above, the most commonly-used argument against statutory caps on non-economic damages are that such statutory caps violate a citizen's right to a jury trial. For example, in Caner v. Interstate Really Mgmt. Co., (1) the trial court held that upholding that cap statute strips jury of its power to decide facts and determine damages thereby denying plaintiff right to jury trial. (2) However, to support this argument, this reasoning must distinguished statutory caps from the accepted practice of judicial remittitur, in which the appellate court remits a judgment to the trial court for reconsideration in light of excessive awards of non-economic damages. (3)

B. Other Constitutional Arguments

In addition to putatively violating plaintiffs' right to a jury trial, courts have proposed a myriad of other constitutional arguments against statutory caps. In Carter, the court also suggested that passage of statutory caps allowed the legislature to amend the constitution (by abrogating the constitutional right to a jury trial) extra-constitutionally. (4) This argument will prevail only in those jurisdictions which constitutionally mandate trial by jury and have no constitutional caps on non-economic damages. The court in Carter also argued that statutory caps provide an unconstitutional violation of those powers reserved to the judiciary. (5)

Other courts have addressed arguments that statutory caps result in a non-uniform operation of laws, (6) constitute impermissible special legislation, (7) and constitute, in effect, a new form of legislative remittitur. (8) In jurisdictions that recognize the doctrine, statutory caps may similarly violate the open courts doctrine. (9) Perhaps most surprisingly, courts have even accepted claims that statutory caps violate state constitutional equal protection and due process rights. (10)

II. Arguments For Constitutionality

A majority of jurisdictions have found caps of non-economic damages to be constitutional. These jurisdictions have accepted variations of the following arguments.

A. No Violation of Right to Jury Trial

In contrast with those states that have overturned statutes as a violation of the right to jury trial, many states have dismissed such challenges and upheld statutory caps. …