Today I read an outstanding post on the Injury Board Blog Network by Brett Emison of the Langdon & Emison law firm in Missouri, about the numerous state Supreme Courts which have struck down attempts to restrict the right to trial by jury as infringements on fundamental constitutional rights. The Injury Board’s Tom Young and Brett Emison gave me permission to re-post it here. Here are the highlights, and I urge you to read the entire post:

Wisconsin: In 2005, the Supreme Court of Wisconsin held the state’s $350,000 non-economic damages cap was an unconstitutional violation of the equal protection clause of Wisconsin’s constitution. Ferndon v. Wisconsin Patient’s Compensation Fund, 701 N.W.2d 440 (Wisc. 2005)…

Ultimately the Court ruled Wisconsin’s cap was “arbitrary and create[d] an undue hardship on a small unfortunate group of plaintiffs.” Id. at 466. There was no rational basis for this brand of “tort reform”. The non-economic damage cap was not rationally related to any of the following:

— Non-economic cap not rationally related to compensating victims fairly

— Non-economic cap not rationally related to lowering medical malpractice insurance premiums

— Non-economic cap not rationally related to maintaining the Wisconsin Patient’s Compensation Fund

–Non-economic cap not rationally related to lowering overall health care costs for consumers

— Non-economic cap not rationally related to ensuring quality health care

Georgia: Georgia passed its own “tort reform” legislation in 2005, also enacting a $350,000 non-economic damage cap. In a unanimous decision the Supreme Court of Georgia ruled that the “tort reform” legislation violated the constitutional right to trial by jury…

The Georgia Court found that the non-economic cap unconstitutionally infringed on the right to trial by jury because the cap arbitrarily disregards the jury’s findings and undermines the jury’s basic function. Atlanta Oculoplastic Surgery v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010). Moreover, the fact that the cap permits full recovery up to $350,000 cannot save the “tort reform” from constitutional attack…

The Georgia decision confirms that you can’t violate the constitution “just a little”. You either violate the constitution or you do not. An arbitrary reduction of the jury’s award, no matter how small or what the amount, is an unconstitutional encroachment on the right to trial by jury.

Illinois: In 2010, the Supreme Court of Illinois struck down the Illinois non-economic damage cap as an unconstitutional violation of separation of powers. Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)… The separation of powers clause prohibits one branch of government from exercising powers belonging to another. The Court found that the cap duly encroached on the judiciary’s “sphere of authority” and “impede[d] the courts int he performance of their functions.” Id. at 909, 912.

Washington: In 2006, the Washington legislature enacted “tort reform” which required plaintiffs in medical malpractice cases to provide 90 days’ notice of the plaintiff’s intention to file a lawsuit. The Washington Supreme Court found the “tort reform” law to be an unconstitutional violation of separation of powers. Waples v. Yi, 234 P.3d 187, 195 (Wash. 2010).

West Virginia: Though West Virginia’s Supreme Court upheld a $500,000 non-economic damage cap earlier this year, a powerful dissent by Judge Wilson illustrates why the Court got it wrong.

Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial?

The Court’s degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase ‘the right to trial by jury shall remain inviolate’ in its constitution makes no sense.

This case is about what has already happened to the malpractice victims in the three West Virginia cases that challenged the constitutionality of the malpractice cap. These are real people who deserved more when they pursued justice in our West Virginia courts.”

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial. The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it’s not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

“Tort reform” protects and rewards negligent actors and makes us all less safe. It also undermines our most important constitutional safeguard. As the Georgia Supreme Court said, “tort reform” “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function.”

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

Tort “reforms” also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff’s actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.