February 1998 Bulletin

From the States

Laura Pelehach

Tort reform ruling may hurt legislation in other states

Decision shocks observers; "the fight is far from over"

The decision by the Illinois Supreme Court to overturn a tort reform statute that was hailed by physicians, manufacturers and tort reform activists as model legislation, has stirred fears that similar legislation in other states could be in jeopardy.

The Illinois court ruled in December that the 1995 law which capped the noneconomic damages in personal injury cases at $500,000 was unconstitutional, discriminatory against severely injured plaintiffs, and trespassed on the Illinois judiciaryís domain.

"We do not disagree with defendantsí assertion that damages for noneconomic injuries are difficult to assess," wrote Justice Mary Ann McMorrow, who delivered the courtís opinion. "We simply determine that it does not follow that the difficulty in quantifying compensatory damages for noneconomic injuries is alleviated by imposing an arbitrary limitation or cap on all cases, without regard to the facts or circumstances." She also wrote that the cap violated the separation-of-powers doctrine by assuming a function of the judiciary, namely, reducing jury awards considered to be excessive. The court also found three of the statuteís other provisions to be unconstitutional and deemed the entire law invalid on the basis of "severability."

Justice Ben Miller, who dissented with part of the majorityís decision, wrote, "Stripped to its essence, the majorityís mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature."

"We think the decision in Illinois was outrageous," says Sherman Joyce, president of the American Tort Reform Association. "It is a case of the judiciary telling two other coequal branches of government that they have no business setting liability limits." Joyce also notes that this could have implications in other states that have passed tort reform legislation, such as Ohio, Louisiana and Texas.

Joyce also says the decision was surprising in its scope. "Before, courts have been narrow in their scope," he explains. "This court basically looked at a few provisions and said that everything was so closely intertwined that they threw it all away."

Because the court relied on the state constitution in reaching its decision, an appeal to the federal courts is unlikely. Edward D. Murnane, president of the Illinois Civil Justice League, says as far as heís concerned, the fight it far from over. He says the group plans to resubmit the legislation, but probably not in 1998, an election year during which it is unlikely legislators will take on controversial issues. "It will be an uphill fight," says Murnane. "The courtís decision which has shocked so many people has generated a level of passion and commitment to press forward from the health care community, doctors and hospitals, the business community and the not-for-profit community. Everyone is going to have to intensify efforts." He added that the decision sends the message that tort reform advocates need not only pay attention to legislative elections, but must also become involved in judicial elections.

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