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Judd v. Drezga11/5/2004
mount to be awarded in a particular case is a question to be determined by the jury according to the particular facts and circumstances, under appropriate instructions given by the court." Rosenthal, 189 P. at 667.
Our constitution thus protects as inviolate the right to a jury trial. That right includes, as Fenstermaker makes clear, the power to determine non-economic damages. 45 P. at 1099. By the enactment of so-called "caps" on compensatory damages, the legislature has attempted to substitute a "one-size-fits-all" level of compensation for serious injuries, regardless of the particular facts and circumstances of individual cases.
The Washington Supreme Court, construing a similar provision in its constitution, concluded that "' o the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts--and the amount of damages in a particular case is an ultimate fact.'" Sofie v. Fibreboard Corp., 771 P.2d 711, 716-17 (Wash. 1989) (quoting James v. Robeck, 490 P.2d 878, 881 (1971)). "The jury's role in determining non-economic damages is perhaps even more essential." Id. The Sofie court went on to point out that in Kansas, Texas, Ohio, and Florida, states that have found the damages limit unconstitutional, the operative language of the right to jury trial provisions in those states' constitutions [as in Utah's] is nearly identical to our own. Cases upholding damage limits either have not analyzed the jury's role in the matter or have not engaged in the historical constitutional analysis used by this court in construing the right to a jury.
Id. at 723 (citations omitted). Sofie got it right.
Sofie also got it right when it distinguished Etheridge v. Medical Center Hospitals, 376 S.E.2d 525, 529 (Va. 1989), on which the majority relies here:
[The dissent] cites with approval the recent case of Etheridge, but ignores the greater number of cases from other jurisdictions that support our [majority's] position. In making this oversight, [the dissent] also omits the fact that four courts whose decisions support [the majority's] holding--Texas, Kansas, Ohio, and Florida--base their decisions on state constitutions with operative language nearly identical to our own. Moreover, the Virginia constitution, upon which Etheridge is based, contains language quite different from ours or of the other states mentioned above. The Etheridge opinion is also poorly reasoned. After conceding that the "jury's fact-finding function extends to the assessment of damages," the court finds that a "trial judge applies the remedy's limitation only after the jury has fulfilled its fact-finding function." Thus, supposedly, the limitation does not infringe on the jury's function.
As this court stated . . . : "The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. . . ." In other words, a constitutional protection cannot be bypassed by allowing it to exist in form but letting it have no effect in function.
Sofie, 771 P.2d at 724 (citations omitted).
Since Sofie was decided, Alabama and Oregon, also states with constitutional language similar to ours, have followed the same rationale as Sofie in striking damage caps. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 164 (Ala. 1991); Lakin v. Senco Prods., Inc., 987 P.2d 463, 473 (Or. 1999).
The appellee in this case has argued that the availability of judicial remittitur undermines the notion that the right to jury determination of damages is part of a constitutionally inviolate guarantee. I will deal with remittitur in the following section, which focuses on separation of powers,
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