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Judd v. Drezga11/5/2004
ston, 817 P.2d at 804. The trial judge is not given absolute discretion in allowing a remittitur; he "must be able to articulate a reasonable basis for the inappropriateness of the verdict" and must adhere to the limitations set forth in Stamp. Id. at 813 n.31. The deference given to a jury verdict and trial judge because of their unique perspective during the presentation of the case is evidence that remittiturs should be considered and granted on a case-by-case basis where abundant evidence of passion or prejudice exists. By mandating a unilateral damage cap in all medical malpractice cases, the legislature has ignored the specific non-economic injuries present in each case, disregarded the deliberation of the jury in the context of the evidence, and discriminated against the most severely injured plaintiffs.
The damage cap essentially functions as a "legislative remittitur," undercutting the responsibility and power properly belonging to the judiciary to determine whether a jury's verdict is excessive. Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1079-80 (Ill. 1997). As such, the cap is simply a "legislative attempt to mandate legal conclusions" and clearly violates the separation of powers provision. Sofie, 771 P.2d at 721.
Even trial courts, with full judicial authority, do not have the power to remit damages without the consent of the parties. An important condition to the remittitur of a jury verdict is the consent of both parties to the reduced amount. If one or both of the parties refuse to accept the remittitur, "he or she may elect to retry the matter." Crookston, 817 P.2d at 813. The legislative damage cap thus forces plaintiffs to forego fully-determined jury awards as well as their right to opt for a new trial in lieu of the remittitur. See Paul B. Weiss, Reforming Tort Reform: Is There Substance to the Seventh Amendment?, 38 Cath. U. L. Rev. 737, 756-57 (1989).
The judicial power "to hear and determine controversies between adverse parties and questions in litigation" includes essential and primary functions regarding damages such as remittitur. Timpanogos Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984) (quoting Citizens' Club v. Welling, 27 P.2d 23, 26 (Utah 1933)). As the majority opinion states, " he power to declare what the law shall be is legislative. The power to declare what is the law is judicial." Ritchie v. Richards, 47 P. 670, 675 (Utah 1896) (Barch, J., concurring). But the judicial branch also has the power and duty to invalidate laws enacted by the legislature that are unconstitutional, including those acts that violate the separation of powers doctrine defined in article V, section 1. In re Handley's Estate, 49 P. 829, 830-31 (Utah 1897). The damage cap represents more than simply law to be applied; it is an unconstitutional attempt by the legislature to exercise by statute the inherently judicial function of remitting non-economic damage awards. This it may not do.
CONCLUSION
Notwithstanding the preeminent role in policymaking that belongs to the legislature, this court's responsibility to uphold the individual rights guaranteed by the Utah Constitution requires us from time to time to scrutinize legislative choices regarding the implementation of policy to ensure that they do not violate those rights. The mandatory cap on non-economic damages contained in Utah Code section 78-14-7.1 violates the right to a remedy for personal injury under article I, section 11 and the right to a jury trial under article I, section 10 of the Utah Constitution. It also violates the fundamental principle of separation of powers by invading the province of the jury in a manner that b
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