In 2012, the supreme courts of Missouri and Kansas staked out opposing positions on the constitutionality of statutory caps on noneconomic damages in personal injury cases. Analysis of the two cases demonstrates the need for objective procedures for selecting temporary, or "special," judges when a member of a court of last resort is absent. This article first reviews the cases and then examines the implications of the fact that special judges cast crucial votes in both cases. The article calls for the institution of objective procedures for temporary judicial appointments.
In July 2012, the Supreme Court of Missouri overruled a twenty-year-old precedent when it held in Watts ex rel. Watts v. Lester E. Cox Medical Centers (1)--a four-to-three decision--that a statutory cap on noneconomic damages in medical malpractice cases violated article I, section 22(a) of the Missouri Constitution's right to trial by jury. (2) A few months later, in Miller v. Johnson, (3) the Kansas Supreme Court upheld Kansas's statutory cap on noneconomic damages in personal injury cases, including medical malpractice cases, as constitutional. (4) Specifically, the Kansas Supreme Court held that the cap does not violate sections 5 and 18 of the Kansas Constitution's Bill of Rights providing a right to a jury trial and a
right to damages, respectively. (5)
MISSOURI: WATTS EX REL. WATTS V. LESTER E. COX MEDICAL CENTERS
The plaintiff in Watts ex rel. Watts v. Lester E. Cox Medical Centers alleged that the defendants' medical malpractice caused disabling brain injuries to a newborn. (6) The jury returned a verdict in favor of the plaintiff and awarded $1,450,000.00 in noneconomic damages and $3,371,000.00 in future medical damages. (7) The trial court entered judgment reducing the noneconomic damages award to Missouri Revised Statute section 538.210's $350,000.00 cap. (8) Lodging several state constitutional challenges to section 538.210's cap, including that it violated the Missouri Constitution's right of trial by jury, the plaintiff appealed. (9) The respondents argued that the Supreme Court of Missouri's 1992 decision in Adams v. Children's Mercy Hospital, holding that section 538.210's statutory cap on noneconomic damages did not violate the state constitutional right to a trial by jury, controlled. (10)
Constitutional Right to Jury Trial
Article I, section 22(a) of the Missouri Constitution provides "[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate[.]" (11) The Watts court explained that this provision "requires analysis of two propositions to determine if the cap imposed by section 538.210 violates the state constitutional right to trial by jury." (12) First, the court had to determine "whether [the] medical negligence action and claim for non-economic damages is included within 'the right of trial by jury as heretofore enjoyed.'" (13) "'[H]eretofore enjoyed' means that '[c]itizens of Missouri are entitled to a jury trial in all actions to which they would have been entitled to a jury when the Missouri Constitution was adopted' in 1820." (14) Expounding, the court stated, "[i]n the context of this case, the scope of that right also is defined by common law limitations on the amount of a jury's damage award." (15) Thus, "if Missouri common law [in 1820] entitled a plaintiff to a jury trial on the issue of noneconomic damages in a medical negligence action ..., [the plaintiff] has a state constitutional right to a jury trial on her claim for damages for medical malpractice." (16) Second, the court had to determine whether application of section 538.210's cap on noneconomic damages left the right to a jury trial "inviolate." (17)
Analyzing the first proposition--whether the plaintiff had a right to a jury trial--the Watts court assessed the state of Missouri common law (and the English common law upon which it was based) at the time of the adoption of the Missouri Constitution in 1820. (18) Under applicable law, courts provided redress for medical negligence and permitted recovery of noneconomic damages. (19) Reviewing applicable history, the Watts court concluded: "civil actions for damages resulting from personal wrongs have been tried by juries since 1820," and "[the plaintiffs] action for medical negligence, including her claim for non-economic damages, 'falls into that category' and is the same type of case that was recognized at common law when the constitution was adopted in 1820." (20) Put simply, the right to a jury trial attaches to the plaintiff's "claim for non-economic damages caused by medical negligence." (21)
The court also determined that Missouri and English common law as of 1820 defined the "scope of [the plaintiffs] right to a jury trial, like the existence of th[at] right[.]" (22) Evaluating select precedent, the Supreme Court of Missouri concluded,
history demonstrates that statutory caps on damage awards simply did not exist and were not contemplated by the common law when the people of Missouri adopted their constitution in 1820 guaranteeing that the right to trial by jury as heretofore enjoyed shall remain inviolate[,] [and therefore] [t]he right to trial by jury "heretofore enjoyed" was not subject to legislative limits on damages. (23) Considering the second proposition--whether the right to a jury trial "'remain [s] inviolate' when a statutory cap requires courts to reduce the jury's verdict"--the Watts court explained: "if the statutory cap changes the common law right to a jury determination of damages, the right to trial by jury does not 'remain inviolate' and the cap is unconstitutional." (24) One of a "jury's primary functions is to determine the plaintiffs damages" so "the amount of noneconomic damages is a fact that must be determined by the jury and is subject to the protections of the article I, section 22(a) right to trial by jury." (25)
The Watts court also explained: "Once the right to a trial by jury attaches ... the plaintiff has the full benefit of that right free from the reach of hostile legislation." (26) Because section 538.210's cap on a jury's award of non-economic damages "operates wholly independent of the facts of the case," it "directly curtails the jury's determination of damages and, as a result, necessarily infringes on the right to trial by jury when applied to a cause of action to which the right to jury trial attaches at common law." (27) Since Missouri's common law in 1820 "did not provide for legislative limits on the jury's assessment of civil damages, Missouri citizens retain their individual right to trial by jury subject only to judicial remittitur based on the evidence in the case." (28)
The court's determination of section 538.210's constitutional invalidity resulted in its conclusion that Adams violates article I, section 22(a)'s right to a jury determination of damages. (29) The Watts court rejected the Adams court's reasoning that section 538.210's cap is substantive law, not a fact issue, and that it "does not limit the jury's constitutional role in determining damages because the jury remains free to award damages consistent with the evidence in the case" and the trial court applies the cap after the jury fulfills its constitutional duty of determining damages. (30)
Dissent--Majority Leaps into a New Era of Law
In a strong dissent, the Honorable Mary R. Russell, joined by Judges Breckenridge and Price, argued that Adams controls the decision and that "the majority opinion overrules this Court's well-reasoned, longstanding precedent in Adams without persuasive justification." (31) Judge Russell noted that Adams has been the law in Missouri for twenty years, and it is "squarely in line with other jurisdictions that have addressed the constitutional validity of statutory caps on noneconomic damages." (32) Thus, she wrote, "[t]he majority opinion reflects a wholesale...