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Judd v. Drezga11/5/2004
the statute in question as a violation of due process, equal protection, the remedies clause of Utah's "open courts" provision, the separation of powers doctrine, and the right to a jury trial. Despite the protection each of these rights receives in the Utah Constitution, and despite this court's clear precedent requiring a heightened standard of review in such challenges, the majority instead identifies a need for "deference to legislative judgments in a Berry review" and specifically rejects heightened scrutiny in favor of a "rational basis" standard. In particular, the opinion ignores the majority holding of this court in Wood v. University Medical Center that "most, if not all, of [article I] rights have generated some form of heightened judicial scrutiny" and that " otwithstanding the presumption of constitutionality we give to statutes, this court has consistently applied various forms of heightened review when article I rights are at issue." 2002 UT 134, 37-46. Under the proper standard of review, this statute fails. Because that result is required under sections 10 and 11 of article I, and under article V, I will discuss only the issues raised under those provisions.
I. REMEDY BY DUE COURSE OF LAW
This court has analyzed section 11 claims using a "balancing" approach. Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 683 (Utah 1985). In Berry, as we later explained, we determined that legislative attempts to abrogate section 11 rights should "be closely examined by this Court and struck down when the disability they seek to impose on individual rights is too great to be justified by the benefits accomplished or when the legislation is simply an arbitrary and impermissible shifting of collective burdens to individual citizens." Condemarin v. Univ. Hosp., 775 P.2d 348, 358 (Utah 1989).
The collective burden this statue imposes on individual citizens is significant. To be clear about the nature of the capped damages at issue, non-economic damages are real; they are intended to compensate victims of negligence for such things as chronic pain, disfigurement, and (as in this case) the loss of a normal life. The suggestion that they are somehow "soft" damages, or less quantifiable than economic damages, is, in my view, a red herring. Projected earnings and costs of future treatment and care, to name two typical elements of "economic" damages, are by no means exempt from uncertainty and the need for guesswork by juries (who regularly hear extensively from competing experts on these questions). Once one acknowledges the fact that non-economic damages, fully as much as economic ones, are truly compensatory, not "extras" or "freebies," for individual injured plaintiffs, the degree of the legislature's invasion of an individual's right under section 11 to a remedy is apparent.
Furthermore, I regard as extremely problematic the majority's wholesale acceptance of the rationale that, because damage awards for non-economic damages are unpredictable, they are more acceptable targets for legislative diminution or destruction. The unpredictability of a jury's determination of the value of all losses, including non-economic losses, has been, from the earliest beginnings of our tort system, an essential part of the deterrent function of tort law. One need go no further than the Ford Pinto case, where the evidence disclosed that Ford Motor had actually calibrated the relative costs of fixing its defective cars versus paying a few adverse verdicts--and opted to pay the verdicts--to be confronted with the flaw in the predictability argument. Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 360-62 (Ct. App. 1981).
Lastly, the majority opinion takes insuff
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