179 Ill. 2d 367; 689 N.E.2d 1057;

1997 Ill. LEXIS 478; 228 Ill. Dec. 636; CCH Prod. Liab. Rep. P15,123

December 18, 1997, Opinion Filed

JUSTICE McMORROW delivered the opinion of the court. JUSTICE HEIPLE took no part in the consideration or decision of this case. JUSTICE BILANDIC, specially concurring. JUSTICE MILLER, concurring in part and dissenting in part.

JUSTICE McMORROW delivered the opinion of the court:

This consolidated appeal arises from two personal injury tort actions filed in the circuit court of Madison County, in which the plaintiffs sought declaratory and injunctive relief against enforcement of "An Act to amend certain Acts in relation to civil actions,…the Civil Justice Reform Amendments of 1995." Pub. Act 89-7, eff. March 9, 1995 (hereafter Public Act 89-7 or the Act). In both cases, plaintiffs sought partial summary judgment on the grounds that the Act violated the Illinois Constitution of 1970...

Defendants timely appealed the circuit court's order to this court, and we consolidated the cases. We allowed the Attorney General, James E. Ryan, to intervene to defend the constitutionality of Public Act 89-7.

***

The parties agree that Public Act 89-7 effects substantial changes to numerous aspects of tort law. The parties further agree that the challenged provisions of Public Act 89-7 pertain primarily to personal injury actions as distinct from business-related torts, defamation, or other actions not involving physical injury. There is also no dispute that the heart of Public Act 89-7 is the $500,000 limit on compensatory damages for injuries that are considered "non-economic" in nature.

Defendants characterize the Act as a legitimate reform measure that is within the scope of the Illinois General Assembly's power to change the common law, shape public policy, and regulate the state's economic health. Plaintiffs counter that the Act uses the guise of reform to erect arbitrary and irrational barriers to meritorious claims, and, therefore, that the Act violates the Illinois Constitution of 1970. Specifically, plaintiffs maintain that the following constitutional provisions are violated by various aspects of the legislation at issue: special legislation (Ill. Const. 1970, art. IV, § 13), equal protection and due process (Ill. Const. 1970, art. I, § 2), separation of powers (Ill. Const. 1970, art. II, § 1), right to a jury (Ill. Const. 1970, art. I, § 13) and right to a certain remedy (Ill. Const. 1970, art. I, § 12).

***

For the reasons stated below, we determine that the following provisions of Public Act 89-7 violate the Illinois Constitution: (1) the limitation on compensatory damages for noneconomic injury, (2) section 3.5(a) of the Joint Tortfeasor Contribution Act, (3) the abolition of joint and several liability ( 735 ILCS 5/2-1117 (West 1996)), and (4) the discovery statutes which mandate the unlimited disclosure of plaintiffs' medical information and records. We further hold that because these unconstitutional provisions may not be severed from the remainder of the act, Public Act 89-7 as a whole is invalid.

BACKGROUND

Plaintiff, Vernon Best, was injured on July 24, 1995, while he was operating a forklift for his employer, Laclede Steel Company, in Alton, Illinois. The forklift was designed and manufactured by Taylor Machine Works (Taylor) and sold by Allied Industrial Equipment Corporation (Allied). Best sustained injuries when the forklift's mast and support assembly collapsed while Best was moving slabs of hot steel. As a result of the collapse, flammable hydraulic fluid manufactured by Lee Helms, Inc. (Helms), ignited and engulfed Best in a fireball. While on fire, Best leaped from the cab of the forklift and fractured both heels. Best also suffered second and third degree burns over 40% of his body, including his face, torso, arms and hands.

Best filed a product liability action seeking damages against Taylor, Allied and Helms. In his amended complaint, Best alleges that the forklift and hydraulic fluid were defective and not reasonably safe. As to Taylor and Allied, Best alleges strict product liability, negligence, breaches of implied and express warranties, and breach of warranty for a particular purpose. As to Helms, Best alleges strict product liability, negligence and breach of implied warranty.

Best alleges that he sustained lost earnings, he anticipates diminished future earnings, he has incurred past medical expenses, and he will incur future medical expenses as a result of his injuries. Best anticipates that he will need vocational rehabilitation and convalescent care because of his injuries. He further alleges that his injuries are severe, disfiguring and permanent. Best states that he has suffered and will continue to suffer from grievous pain and anguish from his injuries. He further asserts that he has had a painful and lengthy experience as a patient in a hospital burn unit, and has undergone numerous surgeries.

In his amended complaint, Best seeks compensatory damages for all injuries. Best alleges that he has and will incur noneconomic damages in excess of $ 500,000. He also seeks declaratory and injunctive relief against Public Act 89-7 on the grounds that the Act violates the Illinois Constitution.

***

II. The Cap on Noneconomic Damages

Plaintiffs challenge the $ 500,000 limit on compensatory damages for noneconomic injuries set forth in section 2-1115.1 of the Code of Civil Procedure.

A. Background to Section 2-1115.1

Section 2-1115.1(a) provides:

"In all common law, statutory or other actions that seek damages on account of death, bodily injury, or physical damage to property based on negligence, or product liability based on any theory or doctrine, recovery of non-economic damages shall be limited to $ 500,000 per plaintiff. There shall be no recovery for hedonic damages." 735 ILCS 5/2-1115.1(a) (West 1996).

Section 2-1115.1(d) provides that nothing in section 2-1115.1 shall be construed to create a right to recover noneconomic damages. The statute defines "non-economic damages" as "damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society." Economic damages, defined as "all damages which are tangible, such as damages for past and future medical expenses, loss of income or earnings and other property loss" are not limited. By its terms, the statute defines "compensatory" or "actual" damages as "the sum of economic and non-economic damages." Thus, compensatory damages, i.e., damages which are intended to make an injured plaintiff whole, are limited by section 2-1115.1.

The cap on compensatory damages for noneconomic injury is, as the parties acknowledge, at the heart of Public Act 89-7. The key role of this cap is reflected in the preamble to the Act, which contains 18 specific "findings" and eight listed "purposes" based on those findings. Eight of the 18 findings in the preamble pertain to noneconomic damages. These findings declare that: (1) limiting noneconomic damages will improve health care in rural Illinois, (2) more than 20 states limit noneconomic damages, (3) the cost of health care has decreased in those states, (4) noneconomic losses have no monetary dimension, and no objective criteria or jurisprudence exists for assessing or reviewing noneconomic damages awards, (5) such awards are highly erratic and depend on subjective preferences of the trier of fact, (6) highly erratic noneconomic damages awards subvert the credibility of such awards and undercut the deterrent function of tort law, (7) such awards must be limited to provide consistency and stability for all parties and society and (8) "a federal executive branch working group" determined that limiting noneconomic damages was the most effective step toward legislative reform of tort law because it reduces litigation costs and expedites settlement.

***

In the circuit court, defendants maintained that the Act and its specified goals represent a return to fairness, predictability, responsibility and rationality in the tort arena. Specifically, defendants argued that the limit on noneconomic damages provides rationality to the system of awarding damages for personal injury.

Plaintiffs, in their motion for partial summary judgment, challenged the legislature's use of chiefly anecdotal evidence to justify the Act. Citing a 1992 report from the National Center for State Courts, plaintiffs noted that businesses, not private personal injury plaintiffs, constitute the most active group of litigants in the state. Plaintiffs further argued that the uncontested empirical evidence that they presented in conjunction with their motion clearly shows that the legislative "findings" listed in the preamble do not provide a rational justification for the limitation of compensatory damages for noneconomic injuries. In support, plaintiffs submitted several affidavits with their motion for summary judgment on the constitutionality of section 2-1115.1.

Neil Vidmar, Professor of Social Science and Law at Duke Law School in Durham, North Carolina, submitted an affidavit in which he explains that many of the assertions about medical malpractice litigation contained in the preamble of Public Act 89-7, as well as statements made at the hearing and debates which preceded its passage, have no empirical basis and were based on unsubstantiated perceptions or unreliable data. For example, the perception that damages caps result in a decrease in the number of medical malpractice cases filed was rebutted by the experience in Indiana, a state in which damages caps were adopted in 1975. Vidmar cites studies revealing that Indiana actually has experienced an increase in claims. See E. Kinney, W. Gronfein & T. Gannon, Indiana's Medical Malpractice Act: Results of a Three-Year Study, 24 Ind. L. Rev. 1275, 1286 (1991). Vidmar states that he is aware of no reliable evidence in the formal studies which indicate that a limit on noneconomic damages corresponds to a significant impact on the cost or availability of health care or that noneconomic damages and the costs of liability insurance are directly linked.

In a separate affidavit, Marc Galanter, Evjue-Bascom Professor of Law at the University of Wisconsin Law School, agrees that there is little evidence, apart from anecdotes, to support the perceived deleterious effects of the present civil litigation system. He cites to an article he authored entitled Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093 (1996). He maintains that the only consequences which clearly flow from the passage of Public Act 89-7 are increased profitability of insurance companies and a reduction in the payments to the most seriously injured tort victims. According to Galanter, court filings in the law division of the circuit court of Cook County have actually declined during the period from 1980 to 1994. Galanter asserts that arguments which rely on systemic costs of the civil litigation system and its negative effect on health care and jobs are purely speculative. Similarly, he states that the salutary effects attributed to the type of tort reform attempted in Public Act 89-7 are largely speculative. Galanter concludes that when comparing isolated instances or anecdotal evidence against the reliable empirical data that does exist, it is apparent that the findings which form the basis for Public Act 89-7 are erroneous.

In addition to the above affidavits, plaintiffs offered the joint affidavit of Stephen Daniels, M.A., Ph.D., a senior research fellow at the American Bar Foundation in Chicago, and Joanne Martin, M.M., J.D., an assistant director of the same foundation. Their affidavit summarizes the key empirical findings of scholarly literature and compares them to the factual underpinnings of Public Act 89-7. Like Vidmar and Galanter, Daniels and Martin state that the facts which form the stated intention or goals of Public Act 89-7 are not substantiated by the empirical data and critical analyses found in published, scholarly literature. Daniels and Martin summarize data which show that only a tiny fraction of accidental deaths and injuries are pursued through the litigation system as claims for compensation. They further maintain, based on studies, that jury awards are not erratic or capricious, but rather relate closely to the severity of the particular injury.

***

We acknowledge that the trial court considered the affidavits of Vidmar, Galanter, Martin and Daniels in its ruling on plaintiffs' motions for partial summary judgment. The materials were admitted in support of plaintiffs' claim that the provisions of the Act are not rationally related to its purposes. While we note that it was permissible for plaintiffs to introduce empirical evidence by way of affidavit, plaintiffs may not prevail on their constitutional challenges merely by showing that the General Assembly was mistaken in its legislative findings of fact...Courts are not empowered to "adjudicate" the accuracy of legislative findings. The legislative fact-finding authority is broad and should be accorded great deference by the judiciary. Therefore, to the extent the affidavits of record may have been offered to contest the wisdom of the legislative enactment, we reiterate that the legislature is not required to convince this court of the correctness of its judgment that the civil justice system needs reform...Our task is limited to determining whether the challenged legislation is constitutional, and not whether it is wise. Bernier [v. Burris, 113 Ill. 2d 219] at 230.

B. Special Legislation

In this court, plaintiffs challenge the constitutionality of the damages cap, section 2-1115.1, on the basis that it violates the special legislation clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 13). Plaintiffs maintain that for individuals whose injuries are minor or moderate, the limit will rarely, if ever, be implicated. Instead, the limit is imposed only when a jury or trial court finds, and the reviewing court agrees, that an award of compensatory noneconomic damages in excess of $500,000 is required to make the plaintiff whole. According to plaintiffs, section 2-1115.1 impermissibly penalizes the most severely injured individuals, whose pain and suffering, disfigurement, and other noneconomic injuries would be most likely to result in a compensatory award in excess of $500,000 but for the statutory limit. Similarly, plaintiffs reason, the damages cap arbitrarily benefits certain tortfeasors, who are relieved of liability for fully compensating plaintiffs. Thus, plaintiffs maintain, section 2-1115.1 constitutes special legislation.

The special legislation clause of the Illinois Constitution provides:

"The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination." Ill. Const. 1970, art. IV, § 13.

***

Delegates to the 1870 constitutional convention criticized special legislation because, instead of establishing and enforcing general principles applicable to every class of citizens, special legislation enriched particular classes of individuals at the expense of others. I Debates and Proceedings of the Constitutional Convention of the State of Illinois 578 (remarks of Delegate Anderson). Delegate Anderson spoke in favor of the prohibition against special legislation and stated:

"Governments were not made to make the 'rich richer and the poor poorer,' nor to advance the interest of the few against the many; but that the weak might be protected from the will of the strong; that the poor might enjoy the same rights with the rich; that one species of property might be as free as another-that one class or interest should not flourish by the aid of government, whilst another is oppressed with all the burdens." I Debates, at 578 (remarks of Delegate Anderson).

Evidently in recognition of the value of the prohibition against special legislation, the framers of the Illinois Constitution of 1970 decided to retain the clause, with some modifications...

The framers of the 1970 constitution retained the special legislation prohibition even though an equal protection/due process clause was included in the Illinois Constitution for the first time. See Ill. Const. 1970, art. I, § 2 ("No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws").

A special legislation challenge generally is judged under the same standards applicable to an equal protection challenge. Village of Vernon Hills, 168 Ill. 2d at 123. Public Act 89-7 does not affect a fundamental right or involve a suspect or quasi-suspect classification. See Bernier, 113 Ill. 2d at 227-29. Thus, the appropriate standard for our review of Public Act 89-7 is the rational basis test. "Under this standard, a court must determine whether the statutory classification is rationally related to a legitimate State interest." Village of Vernon Hills, 168 Ill. 2d at 123.

Our task in determining whether the damages cap violates the special legislation clause is not without difficulty. See Grasse, 412 Ill. at 194. Indeed, the dilemma in discerning whether or not a particular statute constitutes special legislation has been described as follows:

"It is impossible to conceive of a law that has universal impact and affects everyone or everything in the same way. By enacting laws, the legislature can hardly avoid excluding some category of people or objects. In enforcing this prohibition, the courts must decide if the legislature has made a reasonable classification. Differences of opinion are bound to exist in such situations and the ultimate decision must rest with some judgment as to the soundness of the legislature's action." S. Grove & R. Carlson, The Legislature, in Con-Con: Issues for the Illinois Constitutional Convention 106 (1970).

The difficulty is not overcome by merely reiterating that a classification has been made, i.e., that the legislature has in some way classified groups of people. Rather, we must determine whether the classifications created by section 2-1115.1 are based upon reasonable differences in kind or situation, and whether the basis for the classifications is sufficiently related to the evil to be obviated by the statute. Grasse [v. Dealer's Transport Co., 412 Ill. 179], at 195. We note that the legislature has wide discretion in the exercise of its police power. However, in evaluating a challenged provision the court must consider the natural and reasonable effect of the legislation on the rights affected by the provision. Grasse, 412 Ill. at 193.

***

In the case at bar, plaintiffs specifically rely on the following three decisions of this court which held invalid as special legislation certain statutes which created arbitrary classifications between groups of similarly situated injured plaintiffs or tortfeasors: Wright v. Central Du Page Hospital Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976); Grace v. Howlett, 51 Ill. 2d 478, 283 N.E.2d 474 (1972); Grasse v. Dealer's Transport Co., 412 Ill. 179, 106 N.E.2d 124 (1952)...

In Wright, this court held that a $500,000 limit on compensatory damages in medical malpractice actions (Ill. Rev. Stat. 1975, ch. 70, par. 101) violated the equal protection and special legislation provisions of the Illinois Constitution. Like plaintiffs in the case at bar, the plaintiff in Wright argued that the compensatory damages limit arbitrarily classified and unreasonably discriminated against the most seriously injured victims of medical malpractice. Like defendants in the case at bar, the defendants in Wright argued that a compensatory damage limit was necessary to manage a liability crisis, specifically a "medical malpractice crisis." The plaintiff maintained, however, that the burden of the legislative effort to reduce or maintain malpractice insurance premiums arbitrarily fell exclusively on those most deserving of compensation: the severely injured.

***

Plaintiffs argue that section 2-1115.1 merely stitches together legislative classifications previously rejected in Wright, Grasse and Grace, and then adds product liability cases. According to plaintiffs, section 2-1115.1 contains three arbitrary classifications that have no reasonable connection to the stated legislative goals: (1) the limitation on noneconomic damages distinguishes between slightly and severely injured individuals, (2) the limitation on noneconomic damages arbitrarily distinguishes between individuals with identical injuries, and (3) the limitation arbitrarily distinguishes types of injury. At oral argument, plaintiffs offered examples illustrating how the limitation on noneconomic damages is disconnected from the stated legislative purposes of providing rationality and consistency to jury verdicts.

In the first example, it is assumed that three plaintiffs are injured as a result of the same tortfeasor's negligence. Plaintiff A is injured moderately, and suffers pain, disability and disfigurement for a month. Plaintiff B is severely injured and suffers one year of pain and disability. Plaintiff C is drastically injured, and suffers permanent pain and disability. For purposes of this example, it is further assumed that a jury awards plaintiffs A and B $ 100,000 in compensatory damages for noneconomic injuries. Plaintiff C receives $ 1 million for his permanent, life-long pain and disability.

In the above hypothetical, section 2-1115.1 fails to provide consistency or rationality to a jury's seemingly inconsistent decision to award plaintiffs A and B the same amount for very different noneconomic injuries. Therefore, the legislative goal of providing consistency is not met by the damages cap. With respect to plaintiff C, section 2-1115.1 arbitrarily and automatically reduces the jury's award for a lifetime of pain and disability, without regard to whether or not the verdict, before reduction, was reasonable and fair.

The tortfeasors in this example are also treated differently, without any justification. The tortfeasor who injures plaintiffs A and B is liable for the full amount of fairly assessed compensatory damages. In contrast, section 2-1115.1 confers a benefit on the similarly situated tortfeasor who injures plaintiff C. This tortfeasor pays only a portion of fairly assessed compensatory damages because of the limitation in section 2-1115.1. Therefore, the statute discriminates between slightly and severely injured plaintiffs, and also between tortfeasors who cause severe and moderate or minor injuries.

Plaintiffs suggest that section 2-1115.1 creates a second arbitrary legislative classification by distinguishing between injured individuals who suffer identical injuries. For example, we are asked to assume that an individual loses his leg due to a defectively manufactured forklift today, and he loses his other leg in a car accident the following year. Both injuries are caused by the negligent conduct of others. The injured individual brings two different actions against two different defendants, and a jury assesses compensatory damages for noneconomic injuries at $400,000 in each case. Section 2-1115.1 would allow the plaintiff to recover both verdicts in full. However, if the same plaintiff lost both legs in a single accident due to the negligence of another, and if the jury fairly assessed $800,000 in compensatory damages for noneconomic injuries, then the cap in section 2-1115.1 would eliminate a substantial portion of that tortfeasor's liability, without regard to the facts of the case.

To illustrate the third arbitrary classification created by the limitation on noneconomic damages in personal injury actions, plaintiffs argue that section 2-1115.1 improperly discriminates among types of injuries. Plaintiffs maintain that the legislative statements concerning the supposed difficulties of assessing damages for noneconomic injuries apply equally to all tort claims for pure noneconomic loss, and not just those involving death, bodily injury or property damage. Other torts that remain unaffected by the legislation at issue are invasion of privacy, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, damage to reputation and breach of fiduciary duty. The speculative nature of noneconomic damages for these torts, which do not involve personal injury, is not addressed by the cap in section 2-1115.1.

Plaintiffs maintain that the above illustrations demonstrate the arbitrariness of the classifications created by section 2-1115.1, in violation of the prohibition against special legislation. Plaintiffs contend that the classifications contained within section 2-1115.1 allow certain culpable tortfeasors to escape liability for a portion of fairly assessed compensatory damages, while requiring others to pay the full amount of assessed damages. Similarly, certain injured plaintiffs are denied compensatory damages, while other similarly situated injured plaintiffs are awarded full compensation, without any rational justification for the distinction.

Defendants raise a series of related arguments in opposition to plaintiffs' contention that section 2-1115.1 is arbitrary and not rationally related to a legitimate government interest. Defendants contend that plaintiffs' arguments are "fatally flawed" in that they are based on the erroneous assumption that noneconomic injuries, which are difficult to assess, should be monetarily compensable. Defendants further argue that section 2-1115.1 is rationally related to the legislative goal of reducing systemic costs of the civil justice system, which may be accomplished "one step at a time"; that the General Assembly has the power to change the common law; and that other jurisdictions have upheld statutory limitations on damages similar to section 2-1115.1. We address each of defendants' arguments in turn.

At oral argument, in rebuttal, defendants stated that "it is not true that money can compensate for noneconomic damages, [or] at least the legislature could find that that is the case." Defendants do not dispute the general proposition that noneconomic injuries are "real." Rather, defendants argue that noneconomic damages are "inherently unmeasurable." Thus, according to defendants, the legislature's adoption of an "objective" limitation on noneconomic damages is reasonable and must be upheld as a legitimate exercise of legislative judgment.

Defendants' argument contradicts the statute under consideration. Subsection (b) of section 2-1115.1 defines noneconomic loss or noneconomic damages as "damages which are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium and loss of society." Subsection (c) provides that "compensatory damages" or "actual damages" are "the sum of the economic and noneconomic damages." Section 2-1115.1 itself demonstrates that the legislature believed that remuneration is an appropriate means by which to compensate tort victims for their noneconomic injuries. Therefore, the application of a limit to the noneconomic damages of some, but not all, injured plaintiffs is not justified by the difficulty of assessing such damages.

***

We reject defendants' argument that the damages cap in section 2-1115.1 should be upheld because reform can be undertaken "one step at a time." As previously noted in this opinion, this court has rejected the "one step" rationale to support a classification if the classification is arbitrary. Grace, 51 Ill. 2d at 487. We need not address this justification further.

Defendants also argue that the legislative interest in reducing the "systemic costs of tort liability" is sufficient to overcome plaintiffs' special legislation challenge. The "systemic costs of tort liability" are not defined in Public Act 89-7 and we are uncertain as to the meaning and scope of these terms. Even if we assume that the reduction of these undefined systemic costs is a legitimate state interest, we do not discern how the limiting of noneconomic damages in personal injury actions may be considered rationally related to the achievement of that interest. See Wright, 63 Ill. 2d 313, 347 N.E.2d 736 (rejecting defendants' argument that lower insurance premiums and medical malpractice costs for all recipients of medical care legitimately offset the loss of compensatory damages to some malpractice victims); Grace, 51 Ill. 2d at 487-88 (rejecting cost-based justification for imposing limits on the recovery of personal injury claims as to certain class of plaintiffs). Cf. Bernier, 113 Ill. 2d 219, 100 Ill. Dec. 585, 497 N.E.2d 763 (punitive damages cap upheld). In the instant case, we are unable to discern any connection between the automatic reduction of one type of compensatory damages awarded to one class of injured plaintiffs and a savings in the systemwide costs of litigation. Even assuming that a systemwide savings in costs were achieved by the cap, the prohibition against special legislation does not permit the entire burden of the anticipated cost savings to rest on one class of injured plaintiffs. E.g., Grace, 51 Ill. 2d at 485. We therefore reject defendants' systemic costs rationale as a basis for upholding section 2-1115.1.

***

Plaintiffs do not dispute that the legislature has the power to change the common law, and we do not question defendants' argument insofar as it stands for the general principle that the General Assembly may alter the common law and change or limit available remedies. This principle is well grounded in the jurisprudence of this state. See, e.g., Grand Trunk Western Ry. Co., 291 Ill. 167, 125 N.E. 748. However, defendants' argument assumes too much. The legislature is not free to enact changes to the common law which are not rationally related to a legitimate government interest. The General Assembly's authority to exercise its police power by altering the common law and limiting available remedies is also dependent upon the nature and scope of the particular change in the law. We hold in the case at bar that the statutory cap on compensatory damages for noneconomic losses is arbitrary.

***

The statutory caps on damages which have been enacted by other states vary considerably in scope and effect. Similarly, the state constitutional provisions and precedents under which these damage caps have been challenged are unique to each jurisdiction. Although the decisions from other states may be instructive in some respects, we believe that these decisions are of limited assistance in answering the specific question of whether section 2-1115.1 offends the special legislation clause of the Illinois Constitution. We hold that it does.

C. Separation of Powers

Plaintiffs also assert that section 2-1115.1 violates the separation of powers clause (Ill. Const. 1970, art. II, § 1) by improperly delegating to the legislature the power of remitting verdicts and judgments, which is a power unique to the judiciary. See Ill. Const. 1970, art. VI, § 1 (judicial power is vested in the supreme, appellate and circuit courts). According to plaintiffs, because section 2-1115.1 limits damages for noneconomic injuries, the section violates the constitutional separation of powers doctrine by invading the province of the judiciary and imposing a "one-size-fits-all 'legislative remittitur.' " Plaintiffs argue that the cap on damages contravenes the traditional authority of the courts to assess, on a case-by-case basis, whether a jury's damages award is excessive.

***

In the case at bar, we conclude that section 2-1115.1 undercuts the power, and obligation, of the judiciary to reduce excessive verdicts. In our view, section 2-1115.1 functions as a "legislative remittitur." Unlike the traditional remittitur power of the judiciary, the legislative remittitur of section 2-1115.1 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 noneconomic injuries. Therefore, section 2-1115.1 unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law.

***

In summary, we hold that the compensatory damages cap of section 2-1115.1 violates the constitutional prohibition against special legislation and also violates the separation of powers clause. Because we have so determined, we decline to address the parties' additional arguments questioning the validity of section 2-1115.1 as violating the right to a jury trial and the right to a certain remedy under the Illinois Constitution.

[Editor's note: Sections of the opinion that Joint and Several Liability, Physician-Patient disclosure rules and other provisions of the Act are omitted.]

The problems addressed in the briefs and in oral arguments in the case at bar represent some of the most critical concerns which confront our society today. We acknowledge and wish to commend the attorneys for the plaintiffs, the defendants, amici, and Attorney General on the scholarly and impressive briefs and oral arguments submitted by each.

Circuit court judgment affirmed.

JUSTICE HEIPLE took no part in the consideration or decision of this case.

JUSTICE BILANDIC, specially concurring:

I concur in the majority's judgment invalidating Public Act 89-7 in its entirety. I write separately to state that I do not join in the majority's discussion of the constitutionality of the damages cap under the separation of powers doctrine as that discussion is wholly unnecessary and constitutes dicta.

JUSTICE MILLER, dissenting

Legislation is presumed to be valid, and a party challenging the constitutionality of a statute has the burden of establishing its invalidity. This court's role in evaluating these provisions is necessarily limited. Our function here is not to determine whether the legislature has chosen the best or most effective means of resolving the problems addressed in the legislation. "Our nation was founded in large part on the democratic principle that the powers of government are to be exercised by the people through their elected representatives in the legislature, subject only to certain constitutional limitations. Although this court has never hesitated to invalidate laws that it believes to be unconstitutional, we emphasize that our role is a limited one. The issue here is 'not what the legislature should do but what the legislature can do.' [Citation.]" People v. Kohrig, 113 Ill. 2d 384, 392-93 (1986). Accordingly, the question before this court is not whether the measures contained in the Civil Justice Reform Amendments of 1995 (the Act) are wise, but simply whether they are constitutional. Bernier v. Burris, 113 Ill. 2d 219, 229-30...

Our cases have repeatedly recognized that no one possesses a vested right in the continuation of any particular remedy or mode of recovery. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 291 (1996); Bernier v. Burris, 113 Ill. 2d 219, 236 (1986); Trexler v. Chrysler Corp., 104 Ill. 2d 26, 30 (1984). Subject only to the collective will of the voters and to the constraints of the federal and state constitutions, the legislature enjoys broad power to change the common law, and to modify and even eliminate statutory and common law rights and remedies. In People v. Gersch, 135 Ill. 2d 384, 395 (1990), this court explained, "The legislature is formally recognized as having a superior position to that of the courts in establishing common law rules of decision. The Illinois General Assembly has the inherent power to repeal or change the common law, or do away with all or part of it. [Citations.]" "This pervasive power of the legislature to alter the common law" ( Gersch, 135 Ill. 2d at 395) reflects the legislature's superior role in articulating public policy...

***

Contrary to the majority's holding, I would conclude that the limit on noneconomic losses contained in the Act does not violate the special legislation prohibition of the Illinois Constitution, for the provision at issue readily satisfies the requirements of the rational basis test. Reform of the civil justice system is surely a legitimate governmental goal, and imposing a $500,000 limit on the recovery of noneconomic damages is rationally related to those ends. Noneconomic losses by their nature resist precise measurement. Economic losses, which include items such as medical expenses, lost income, and lost support, are objective and are readily quantifiable. In contrast, noneconomic losses, which includes pain and suffering, among other things, are subjective and therefore more difficult to quantify. There is great difficulty in determining proper compensation for noneconomic losses, and awards for such damages will vary greatly from case to case. Thus, there is a rational basis for the legislature's decision to distinguish between economic and noneconomic damages.

Limiting compensation for noneconomic losses is rationally related to the objectives of the legislation. As the preamble to the Act evidences, the legislature was concerned about disparities, inconsistencies, and the lack of predictability in the awarding of noneconomic damages, and about the costs to society of unrestricted compensation for those damages. The legislature believed that imposing a limit on the recovery of noneconomic losses would promote fairness and would help reduce the costs of the tort system. Some will argue that the amount selected by the legislature in the provision at issue here is too low. Although that might be a valid objection to the Act as an expression of public policy, for each of us would probably set the limit at a greater or lesser level, it is not a constitutional defect in the legislation. Like a repose statute, the limit on the recovery of noneconomic losses reflects the balance struck by the legislature between an individual's interest in compensation for his or her own injuries, and the public's interest in an affordable system of tort law. See Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 428, 95 Ill. Dec. 812, 490 N.E.2d 665 (1986).

***

In deciding that the cap on noneconomic losses is invalid special legislation, the majority tests the provision against specially selected hypothetical cases that are obviously designed to illustrate defects in the statute. Slip op. at 24-26. The legislature, however, makes no pretense that the reform measures at issue here are a panacea for all the ills, perceived or otherwise, in our system of tort law. Nor is it necessary that legislation like this have such miraculous effect. Under rational basis review, we ask only whether the means chosen by the legislature are rationally related to the purposes of the law. In contrast to the examples posited by the majority, one could as easily select hypothetical cases that support and sustain the remedy devised by the legislature. We have never before required legislation under rational basis scrutiny to qualify under a standard as rigorous as that applied by the majority...

Nor is today's decision compelled by Wright v. Central Du Page Hospital Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976), Grace v. Howlett, 51 Ill. 2d 478, 283 N.E.2d 474 (1972), or Grasse v. Dealer's Transport Co., 412 Ill. 179, 106 N.E.2d 124 (1952), as the majority believes. In all three cases the court found special legislation violations. The statutes at issue in those cases, however, were much different from the measure involved here. The statute challenged in Wright imposed a limit of $500,000 on the total amount of damages, both economic and noneconomic, that could be recovered by a plaintiff in a medical malpractice action. The court found the statute to be a violation of the special legislation prohibition, concluding that medical malpractice plaintiffs had been arbitrarily selected to bear the burden of being limited in the total amount of compensation they were allowed to receive for their injuries. Both these concerns are alleviated in the provision at issue here, which is broader in scope but narrower in effect: the statute applies to all actions for personal injury, but it limits only a plaintiff's recovery of noneconomic losses and does not impose any cap on the recovery of economic losses...

Grace and Grasse are also distinguishable. The legislation challenged in Grace limited an injured plaintiff's ability to recover compensation for injuries incurred in traffic accidents, depending on whether the other party was using the vehicle for personal or commercial purposes. In Grasse a provision of the Worker's Compensation Act would have transferred an injured employee's action against a third-party tortfeasor to the plaintiff's employer if the third party's employee was also covered by the Act. In neither case was the court able to discern a rational basis for the classifications drawn by the legislature.

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Perhaps uncertain of its own conclusion, the majority opinion goes on to consider an alternative argument against the limit on noneconomic damages, hoping to persuade the reader by prolixity, if not by force of reasoning. Here, the majority finds that the limit on the recovery of noneconomic damages functions as a legislatively imposed remittitur and for that reason violates the separation of powers doctrine. The majority's discussion of this additional argument is entirely unnecessary, given the majority's prior holding that the same measure is invalid special legislation. On the merits, I disagree with the majority's conclusion that the cap on noneconomic damages improperly intrudes on the judicial power of remittitur. The challenged provision does not represent a finding about the evidence of any particular case, and it does not detract from the power of a court to reduce an award of damages in appropriate circumstances. Remittitur pertains to judges and juries, not the legislature; by characterizing the cap on damages as a remittitur, the majority is simply erecting and demolishing a strawman. The majority's broad holding on this question means, in essence, that the legislature may never impose a limit on damages, at least in common law actions. Given the implications of this holding and the absence of any need to discuss the issue, I would not join this part of the majority opinion even if I agreed with the court that the caps provision was invalid special legislation.

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Although I agree with the majority that the physician-patient disclosure provisions are invalid, for the reasons expressed by the court in Kunkel v. Walton, 179 Ill. 2d 519 (1997), I do not agree that the limit on noneconomic damages is invalid special legislation or violates the separation of powers clause. Nor do I agree with the majority's further conclusion that the provisions found invalid here and in Kunkel are not severable from the remainder of the Act, and I would therefore consider in this appeal the plaintiffs' remaining challenges to the provisions of the Act. As I have noted, the judicial role in assessing the constitutionality of legislation is quite limited, and the majority's result here cannot be defended under traditional standards of review. Today's decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority's mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.