John M. Reeves, the founder and owner of Reeves Law LLC, is an appellate attorney based in St. Louis, Missouri. He has briefed and argued cases in the Missouri Court of Appeals, the Missouri Supreme Court, and the United States Court of Appeals for the Eighth Circuit. He also regularly briefs cases in the Supreme Court of the United States, and has submitted briefs in the United States Court of Appeals for the D.C. Circuit and the United States Court of Appeals for the Eleventh Circuit. Mr. Reeves authored an amicus brief on behalf of the Missouri Organization of Defense Lawyers in support of upholding the statutory caps at issue in Velazquez. The opinions expressed in this article are his own.
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In an attempt to reign in excess jury verdicts that fill the coffers of the plaintiff’s bar, state legislatures throughout the country have passed laws imposing statutory caps on noneconomic damages. In other words, state legislatures, exercising their constitutional power to make the law, have sought to limit the amount of noneconomic damages—including punitive damages—a plaintiff may recover at trial. If a jury verdict awards damages that exceed the cap, the law requires the trial court to reduce the damages by the amount they exceed the cap. This should be uncontroversial: juries decide facts; judges decide the legal consequences of those facts. How do juries decide facts? By weighing the evidence the parties present during trial. How do judges decide the legal consequences of those facts? By applying the law as set forth by the legislature.
Sounds simple, right? It should be, and usually is. But not when it comes to state legislatures attempting to impose statutory caps on noneconomic damages as part of tort reform, at least according to several state supreme court decisions. Relying on the dubious argument that such statutory caps interfere with a civil litigant’s right to a jury trial, these supreme court decisions have struck down such caps.1 According to these courts, because a jury is vested with determining not only whether a defendant is liable, but also the amount of monetary damages for which a defendant is liable, any attempt by the state legislature to impose caps on damages interferes with the jury’s factfinding function. This argument is highly questionable, as it confuses the jury’s factfinding function with the judge’s function of determining the legal consequences of such factfinding. But it’s even worse than that: such decisions have violated basic separation-of-powers principles by effectively telling state legislatures that they lack any authority to modify civil causes of action.
Before summer’s end, the Missouri Supreme Court is expected to issue an opinion in a major lawsuit that could have national implications these issues. The case—Velazquez v. University Physician Associates, No. SC98977—is the latest attempt by the plaintiff’s bar to challenge such statutory caps on the dubious legal ground that they violate the right to a jury trial. But Velazquez is about far more than tort reform—it raises serious separation-of-powers issues. If the Missouri Supreme Court strikes down the Missouri General Assembly’s statutory caps on noneconomic damages, it will amount to holding that a state legislature lacks any authority to abolish or modify civil causes of action.
Thankfully, the tide appears to be turning in favor of tort reform, at least in Missouri. If the Missouri Supreme Court’s decisions over the last several years are any indication, cautious optimism exists to believe that the court has recognized the mistakes inherent in its past opposition to tort reform and is ready to chart a new course that allows tort reform to take effect in the Show-Me-State.
In 2012, the Missouri Supreme Court handed down its decision in Watts, in which it invalidated statutory caps on common law medical malpractice causes of action. As noted above, it reasoned that because a jury’s function under the common law was to determine the factual issue not only of liability but also the extent—including the monetary amount—of liability, the state legislature could not legislate any caps on noneconomic damages, as this would interfere with the jury’s factfinding mission. Three judges on the court strongly dissented, noting that while, under the common law, juries have always been vested with factfinding, they have never been vested with determining the legal consequences of such factfinding. Hence, the dissent continued, nothing prevented the state legislature—as the entity possessed with plenary power to make the law—from passing a statute that required courts to reduce any jury award of damages in excess of the legislative cap.
The Missouri Supreme Court appeared to recognize the problems inherent in Watts several years later in Dodson v. Ferrara, 491 S.W.3d 542 (Mo. 2016). There, the court upheld a statutory cap on noneconomic damages as applied to a wrongful death cause of action. The court reasoned that because wrongful death actions were unknown at common law, and instead were purely statutory creations by the legislature, the legislature had the authority to define the legal remedies in such causes of action. To hold otherwise would be to hold that the legislature could not legislate. While the court bent over backwards in its attempt to harmonize Dodson with its earlier decision in Watts, it hinted that it was skeptical about the legislature’s inability to change the legal remedies available under a common law cause of action.
The pending lawsuit of Velazquez requires the Missouri Supreme Court to address head-on the separation-of-powers issues that it has created by its holding in Watts. At issue in Velazquez is Mo. Rev. Stat. §§1.010.2 and 538.210. The former statute explicitly abolishes the common law claim of negligence/malpractice against health care providers, while the later statute promulgates a statutory cause of action against health care providers, with a cap on noneconomic damages of $400,000. See §538.210.11. In other words, the Missouri General Assembly has called the Missouri Supreme Court’s bluff: if, in fact, the General Assembly has the authority to set statutory caps on statutory causes of action, and if, in fact, the General Assembly has the plenary power to abolish or modify statutory causes of action, then surely it must have the power to abolish a common law cause of action and replace it with a statutory cause of action that imposes caps on the recovery of noneconomic damages.
If the Missouri Supreme Court strikes down §§1.010.2 and 538.210 on the ground that they somehow violate one’s right to a jury trial, it will have disastrous consequences that go far beyond tort reform. Among other things, it will mean that the state legislature lacked authority to promulgate workers’ compensation statutes nearly a century ago. After all, those statutes abolished common law negligence actions that employees had against their employers and replaced them with a no-fault statutory scheme. If the Missouri General Assembly lacked authority to abolish a common law cause of action against a healthcare provider and replace it with a statutory scheme containing caps on noneconomic damages, then it necessarily lacked authority to abolish common law negligence actions by employees against employers and replace them with a no-fault statutory compensation scheme.
It remains to be seen how the Missouri Supreme Court will rule in Velazquez. Nevertheless, one has reason to be cautiously optimistic that the Missouri Supreme Court will uphold the statutory caps on noneconomic damages, thus putting an end to the dubious notion that such caps violate one’s right to a jury trial and allowing tort reform to take effect in the Show-Me State.
Note
- Specifically, the supreme courts of Washington, Alabama, Georgia, Missouri, Kansas, and South Dakota. See Sofie v. Fireboard Corp., 771 P.2d 711, 721-22 (Wash. 1989); Moore v. Mobile Infirmary Ass’n., 592 So.2d 156, 159-65 (Ala. 1991); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218, 221-24 (Ga. 2010); Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 640-41 (Mo. 2012); Hillburn v. Enerpipe Ltd., 442 P.3d 509, 514-16 (Kan. 2019), Knowles v. U.S., 544 N.W.2d 183, 186-88 (S.D. 1996), superseded by statute on other grounds as noted in Millea v. Erickson, 849 N.W.2d 272, 276 (S.D. 2014).