Anticipated Constitutional Challenges to Tort Reform
Paul J. Passanante1 Dawn M. Mefford1
I. Introduction
Missouri’s so-called tort reform act (H.B. 393) became effective on August 28, 2005 and brought about significant changes in tort law in Missouri. Undoubtedly, this legislation will face constitutional scrutiny in Missouri courts. This article will discuss various potential constitutional challenges to the act.
II. The Constitutionality of Previous Tort Reform Efforts in Missouri
In 1986, the Missouri legislature enacted broad tort reform measures, including the enactment of Chapter 538, the medical malpractice chapter. Several provisions of the 1986 act were subsequently challenged in the courts on constitutional grounds. In Adams v. Children’s Mercy Hosp., the Supreme Court of Missouri rejected several of these challenges to the 1986 tort reform act.2 The Court held that the act did not violate the constitutional protections of equal protection or due process, the open courts provision of the constitution, or the right to trial by jury. However, the Court expressly declined to determine the plaintiffs’ equal protection challenge to the prohibition of pre-judgment interest in medical malpractice cases, as well as their claims that the act violated the “one subject [clause] . . . ; the privileges and immunities clause . . .; the constitutional directives for amending statutes . . .; the prohibition against special laws . . .; and [the] separation of powers.”3 The Court stated that the plaintiffs “failed to preserve these constitutional challenges for appellate review. They were not raised [until] after the trial court entered its judgment.”4 Later, in Vincent by Vincent v. Johnson, the Supreme Court dismissed the plaintiffs’ constitutional challenges against various provisions of Chapter 538, briefly stating that the issues raised by the plaintiffs were previously determined under Adams.5
Although the Supreme Court of Missouri has previously addressed the constitutionality of various tort reform measures, there are many constitutional challenges that the Court has not previously addressed or which are unique to H.B. 393. The latest version of tort reform will undoubtedly face constitutional challenges, and this article will examine several potential challenges to H.B. 393.
III. Facial Challenges
There are several aspects of H.B. 393 which may form a basis for a claim that the legislation itself is unconstitutional on its face. Some of the most likely constitutional arguments that will be used to attack the facial validity of the act include the clear title, one subject, special laws, equal protection, due process, open courts, and right to trial by jury provisions of the Missouri Constitution.
A. “Clear Title” and “One Subject” Challenges
Article III, § 23 of the Missouri Constitution limits the legislature’s power in enacting new laws in two respects. The provision provides that “[n]o bill shall contain more than one subject which shall be clearly expressed in its title. . . .” Thus, each bill enacted by the legislature must (1) address no more than one subject, and (2) clearly express that subject in its title. H.B. 393 may face constitutional scrutiny on both of these grounds.
The title of H.B. 393 states that it is an act:
[t]o repeal sections 355.176, 408.040, 490.715, 508.010, 508.040, 508.070, 508.120, 510.263, 510.340, 516.105, 537.035, 537.067, 537.090, 538.205, 538.210, 538.220, 538.225, 538.230, and 538.300, RSMo, and to enact in lieu thereof twenty-three new sections relating to claims for damages and the payment thereof.6
1. Clear Title
The standards for determining whether an act violates the constitutional “clear title” requirement have been well-established by Missouri courts.7 There are two ways in which an act’s title may be unclear: (1) it “may be too broad and amorphous,” or (2) it may be “so restrictive and underinclusive that some provisions fall outside it.”8 Regarding the first test, a broad, general title violates the constitution only if it is so broad “that it effectively renders the single subject requirement meaningless or obscures the actual subject of the legislation.”9 Regarding the second test, “[i]f the title of a bill contains a particular limitation or restriction, a provision that goes beyond the limitation in the title is [unconstitutional.]”10 The “particulars and details [of] the act must conform [to the particulars and details] of the title,” and ultimately, “the rule is that the title to a bill cannot be underinclusive.”11
The title of H.B. 393 purports to repeal various statutes and “enact in lieu thereof [23] new sections relating to claims for damages and the payment thereof”12 (emphasis added). Arguably, this title is unconstitutionally underinclusive, as some of the provisions enacted under the bill relate to claims other than claims for damages.13 For instance, § 355.176, the registered agent statute, and § 508.010, governing venue, and § 538.229, relating to benevolent gestures, are applicable to all civil actions, not just those involving claims for damages. These statutes also apply to claims for equitable and injunctive relief, as well as declaratory actions.14 For this reason, it could be argued that H.B. 393 violates the clear title provision of the Missouri Constitution.15
'2. One Subject
The standards for determining whether an act violates the constitution by addressing multiple subjects have also been well-established by Missouri courts. “The test . . . is whether all [of the] provisions of the bill fairly relate to the same subject, have a natural connection therewith or are incidents or means to accomplish its purpose.”16 The courts do not look to “the relationship between the individual provisions, but between the individual provision and the subject” of the bill as set forth in the title.17 Furthermore, the term “subject” as used in Article III, § 23, has been held to include “all matters that fall within or reasonably relate to the general core purpose of the proposed legislation.”18 If the bill’s purpose is properly stated in its title, then the court will “not look beyond the title to determine the bill’s subject.”19 If the purpose is not properly expressed in the title, a “[c]ourt may determine [its] subject [by referring] to the subjects of the Constitution or [by looking at] the contents of the bill itself.”20
Again, it could be argued that H.B. 393 unconstitutionally addresses multiple subjects. The subject of the bill, as expressed in the title, is to repeal various statutes and “enact in lieu thereof [provisions] relating to claims for damages and the payment thereof.”21 As stated above, however, the bill contains provisions which relate to claims other than claims for damages, e.g., the registered agent and venue statutes. As such, it is arguable that not all of the provisions of the bill have a natural connection with or are incidents to claims for damages, and that the bill therefore necessarily addresses more than one subject.
3. Consequences of a “Clear Title” or “One Subject” Violation
If the Supreme Court were to find that H.B. 393 violated either the “clear title” or “one subject” requirements of the constitution, the next issue would be whether the violating provisions could be severed from the act or whether the entire act would be void. In the event of a “one subject” violation, as stated in Hammerschmidt, courts will engage in the following analysis to make that determination:
When the Court concludes that a bill contains more than one subject, the entire bill is unconstitutional unless the Court is convinced beyond reasonable doubt that one of the bill’s multiple subjects is its original, controlling purpose and that the other subject is not. In reaching this determination, the Court will consider whether the [additional subject] . . . is essential to the efficacy of the . . . [bill], whether it is a provision without which the ... [bill] would be incomplete and unworkable, and whether the provision is one without which the . . . [legislators] would not have adopted the . . . [bill]. . . . Where the Court is convinced that the bill contains a “single central [remaining] purpose”, we will sever that portion of the bill containing the additional subject(s) and permit the bill to stand with its primary, core subject intact. In determining the original, controlling purpose of the bill for purposes of determining severance issues, a title that “clearly” expresses the bill’s single subject is exceedingly important.22
However, in the event of a clear title violation, a court will engage in a slightly different analysis. Courts will strive to uphold the offending provisions “to the fullest extent possible.”23 Accordingly, courts will attempt to excise the offending language or simply limit the application of the offending provisions. Where a provision of the act is unconstitutional “as to some, but not all, possible applications, and it is not possible to excise part of the text and allow the remainder to be in effect, the language of the provision must be restricted [by the court] to the valid application.”24 Thus, a court may ultimately rewrite the statute to accommodate the constitutionally imposed limitation to the extent that doing so is consistent with legislative intent.
B. “Law Limited to the Purpose” Challenges
Rule 51.03 of the Missouri Rules of Civil Procedure provides for a change of venue as a matter of right upon timely application in cases pending in a county with a population of less than 75,000 inhabitants. Newly enacted § 508.011, RSMo Supp. 2005, provides in its entirety: “To the extent that rule 51.03 of the Missouri rules of civil procedure contradicts any provision of this chapter, the provisions of this chapter shall prevail regarding any tort claim.” This new statute, which purports to amend Rule 51.03, may be subject to a constitutional challenge pursuant to Article V, § 5 of the Missouri Constitution. The constitutional provision provides:
The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law. The rules shall not change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury, or the right of appeal. . . . Any rule may be annulled or amended in whole or in part by a law limited to the purpose.
Cases construing Article V, § 5 indicate that the legislature may amend or annul any Supreme Court rule so long as it does so in a “law limited to the purpose,” and the law specifically addresses the exact rule that it intends to amend or annul.25 Obviously, § 508.011 specifically identifies the rule that the legislature intends to amend. However, although the section itself is limited to the purpose of amending the Supreme Court rule, this may not be sufficient to qualify as a “law limited to the purpose.” The Supreme Court has previously cautioned that in order to effectively amend or annul a Supreme Court rule, the legislature may be required to do so in a bill limited to that purpose.26 In Pizzella, the Court stated:
[T]he legislature may consider it prudent to review its practice of enacting a bill such as House Committee Substitute for Senate Committee Substitute for Senate Bill No. 602 when it seeks to annul a provision of our rules. Section 545.880.1 [the challenged statute] was a subpart of one of nine discrete provisions in § 1 of Senate Bill 602. A multi-faceted law such as Senate Bill 602 which is not limited to the singular objective of annulling one of our rules may very well, under a logical extension of our decision in State ex rel. K.C. v. Gant, 661 S.W.2d 483 (Mo. banc 1983), run afoul of the “limited to the purpose” mandate of Article V, § 5. See also, Miller v. Russell, 593 S.W.2d 598, 604 (Mo.App.1979) (statute which provided for revisions in court structure as well as annulling a Rule held violative of art. V, § 5).27
C. Statute of Limitations on Procedural Challenges
Any challenge to the constitutionality of a statute that is based on the procedure by which the statute was enacted is subject to the limitations period set forth in § 516.500. That statute provides that no challenge to “a procedural defect in the enactment of a bill into law shall be commenced, had or maintained by any party later than the adjournment of the next full regular legislative session following the effective date of the bill as law, unless it can be shown that there was no party aggrieved who could have raised the claim within that time.”28 To demonstrate that no aggrieved party could have raised the claim within that time, a plaintiff must show that he “was the first person aggrieved or in the class of first persons aggrieved, and that the claim was raised [prior to] the adjournment of the next full regular legislative session following” the aggrievement.29 The statute further provides that in no circumstances is such a challenge permitted more than “five years after the bill or the pertinent section of the bill which is challenged becomes effective.”30
D. Special Laws
Article III, § 40 of the Missouri Constitution prohibits the enactment of local or special laws. A “special law” has been defined as “a law that includes less than all who are similarly situated . . . but a law is not special if it applies to all within a given class alike and the classification is made on a reasonable basis.”31 The Supreme Court of Missouri has stated that “the test for ‘special legislation’ . . . involves the same principles and considerations that are involved in determining whether the statute violates equal protection in a situation where neither a fundamental right nor suspect class is involved, i.e., where a rational basis test applies.”32
Conceivably, § 510.265, limiting punitive damages, could be challenged as a special law. This section imposes a limit on punitive damages in all actions except those in which the state is a plaintiff or where the defendant pleads guilty to or is convicted of a felony arising out of the acts or omissions at issue. Arguably, this classification could be construed as a special law if a court finds that there exists no rational basis for the classification, as the statutory limit on punitive damages does not apply to all plaintiffs in tort actions who are injured as a result of wanton and willful conduct on the part of a defendant.
Another provision which may be argued to violate the prohibition against special legislation is the cap on non-economic damages. At least one other state has found such a cap to be an unconstitutional special law. In Best, the Supreme Court of Illinois accepted the plaintiffs’ argument that a cap on non-economic damages constituted an impermissible special law in at least three respects: (1) it arbitrarily distinguishes “between slightly and severely injured individuals, (2) . . . [it] arbitrarily distinguishes between individuals with identical injuries, and (3) . . . [it] arbitrarily distinguishes [individual] types of injury.”33 The Supreme Court of Illinois ultimately determined that these classifications were not rationally related to a legitimate governmental interest and were wholly arbitrary.
E. Right to Trial by Jury
Article I, § 22(a) of the Missouri Constitution provides that “the right of trial by jury as heretofore enjoyed shall remain inviolate. . . .” Missouri courts construe this provision to protect the right to a jury trial as it existed at common law.34
Some state supreme courts have held that statutory limits placed on damages awards violate a plaintiff’s right to trial by jury.35 However, as mentioned above, the Supreme Court of Missouri has previously denied a constitutional challenge to caps on non-economic damages based on the argument that such a provision violates the right to trial by jury. In Adams, the plaintiffs challenged the cap on non-economic damages enacted in 1986, arguing that the right to trial by jury includes the right to have a “jury determine all [of a plaintiff’s] damages without interference by the legislature.”36 The Court rejected the plaintiffs’ arguments, reasoning that although the jury’s function includes determining a plaintiff’s damages, the cap on non-economic damages does not apply until after the jury has made the determination of damages.37 The Court further stated that “the legislature has the right to abrogate a cause of action cognizable under common law completely.”38 Accordingly, if the legislature has this power it necessarily also has the power to limit recovery in those causes of action.”39
F. Separation of Powers
Article II, § I of the Missouri Constitution governs the distribution of powers among the three branches of government and provides that “no person or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others. . . .”
One potential challenge to the new tort reform act based on this constitutional provision is that the caps on non-economic and punitive damages violates the separation of powers because it is the function of the judiciary, not the legislature, to remit verdicts and judgments. The Supreme Court of Illinois held that such caps on damages violate the separation of powers based on this argument.40 In so holding, the Supreme Court of Illinois, citing the U.S. Supreme Court, relied on the “traditional and inherent power of the judicial branch of government to apply the doctrine of remittitur, in appropriate and limited circumstances, to correct excessive jury verdicts,” stating that the statutory damages cap operated as an unconstitutional legislative “encroach[ment] upon the fundamentally judicial prerogative of determining whether a jury’s assessment of damages is excessive within the meaning of the law.”41
The Supreme Court of Missouri has previously declined to address the argument that a cap on damages violates the constitutional separation of powers in Adams because the argument was not preserved at trial. Thus, the substance of this argument has not been addressed by Missouri courts. However, the Supreme Court’s decision in Fust may provide some guidance as to how the Court might view this challenge.42 In Fust, the Supreme Court held that a provision which provided that 50% of any punitive damages award is deemed rendered in favor of the state did not violate the separation of powers doctrine. The plaintiffs had claimed that this provision impermissibly deprived courts of the power to enforce judgments as rendered. The Court, however, rejected this argument, reasoning that the provision was merely “a limitation on a common law . . . action for punitive damages,” the legislature has the discretion to place “reasonable limit[s] on common law causes of action,” and such limits do “not invade the judicial function.”43
G. Open Courts
Article I, § 14 of the Missouri Constitution provides “[t]hat the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.” Plaintiffs in at least two other states have successfully challenged statutory damages caps as violating the “right of access” or “open courts” provisions of a state constitution based on the fact that the statutes at issue did not provide a reasonable substitute, or quid pro quo, for the damages denied to the plaintiff under the statute.44 The Supreme Court of Missouri, however, previously rejected a similar challenge to non-economic damages caps based on Missouri’s open courts provision in Adams. In Adams, the Court stated that the constitutional right of access to the courts simply is “the ‘right to pursue in the courts the causes of action the substantive law recognizes.’”45 It is only when a statute imposes a procedural bar to access to courts, rather than eliminates or limits a cause of action, that a violation of the constitutional provision occurs.46 The Adams Court further held that the tort reform measures of 1986 were permissible because they simply modified the common law without “erect[ing] a condition precedent or [some type of] procedural barrier to access to the courts.”47 The Court specifically rejected the plaintiff’s quid pro quo arguments, stating that such a requirement would “arbitrarily and unnecessarily limit the legitimate lawmaking role of the legislative branch in a manner not intended by our constitution.”48
H. Equal Protection
The guarantee of equal protection under the laws is found in Article I, § II of the Missouri Constitution. If a legislative classification does not infringe upon fundamental rights or target a suspect class, Missouri courts will uphold a law if its classification is rationally related to a legitimate governmental interest.49
It can be argued that the caps on non-economic and punitive damages violate the constitutional guarantee of equal protection in at least the following respects: (1) the cap on non-economic damages irrationally treats plaintiffs in medical malpractice cases differently than plaintiffs in other tort cases; (2) the cap on non-economic damages irrationally treats plaintiffs with severe injuries and large economic damages differently than plaintiffs with little economic damages; (3) the cap on non-economic damages irrationally treats plaintiffs injured by one tortfeasor differently than plaintiffs injured by multiple tortfeasors; (4) the denial of pre-judgment interest in medical malpractice cases is an arbitrary and irrational distinction between plaintiffs injured by health care providers and plaintiffs injured by other tortfeasors; and (5) the cap on punitive damages irrationally treats plaintiffs in tort actions where the defendant pleads guilty to or is convicted of a felony differently than plaintiffs in actions where a criminal prosecution of the defendant is not pursued or is unsuccessful.
Several other states have found that caps on non-economic damages are a violation of equal protection, usually on the basis that the cap arbitrarily and unreasonably denies the most severely injured plaintiffs full compensation for their injuries.50 In Adams, the Supreme Court of Missouri specifically found that non-economic damages caps do not violate equal protection because the legislature could rationally believe that such caps have the effect of achieving affordable health care in the state.51 However, the new tort reform law has made several changes to non-economic damages caps, such as limiting the caps without regard to the number of tortfeasors or the number of occurrences of negligence, which may be viewed differently by the Court today in terms of an equal protection analysis.
I. Due Process
Article I, § 10 of the Missouri Constitution provides “[t]hat no person shall be deprived of life, liberty or property without due process of law.”
One argument against non-economic damages caps is that the caps violate a plaintiff’s due process rights in that it unreasonably deprives a plaintiff of compensation for his injuries. At least one state supreme court has accepted this argument and found compensatory damages caps unconstitutional.52 In Adams, the Supreme Court of Missouri specifically held that a cap on non-economic damages does not violate due process, stating that the constitution guarantees “no more than that a claimant is entitled to whatever process is constitutionally mandated or permitted under the laws extant at the time of claim.”53
III. “As Applied” Challenges
A. Prohibition Against Retroactive Laws
Section 538.300 provides that all provisions of the new tort reform act, except § 512.099, apply to all causes of action filed after August 28, 2005.54 The provision makes no distinction for cases in which the cause of action accrued prior to August 28. Consequently, another potential constitutional challenge that may be lodged against the new tort reform legislation in cases in which the cause of action accrued prior to August 28, 2005, but the lawsuit was not filed until after August 28, 2005, arises out of the prohibition against retroactive legislation found in Missouri’s Constitution. Article I, § 13 of the Missouri Constitution provides “[t]hat no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.”
Missouri courts are generally reluctant to retroactively apply newly-enacted legislation.55 It has been stated that “the underlying repugnance to the retrospective application of laws is that an act or transaction, to which certain legal effects were ascribed at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto.”56 Substantive “[s]tatutes are generally presumed to operate prospectively, ‘unless the legislative intent that they be given retroactive operation clearly appears from the express language of the act or by necessary or unavoidable implication.’ . . .
If the presumption normally favoring prospective operation is overcome, the inquiry focuses on whether the statute falls within the proscription against retrospective laws.”57 The Supreme Court has stated that the “constitutional ban against retrospective laws applies only when the statute takes away or impairs any existing vested right,” i.e. it is substantive in nature.58 “Conversely, statutory provisions that are remedial or procedural [will] operate retrospectively unless the legislature expressly states otherwise.”59
The difference between substantive and procedural laws has been summarized as: “Substantive law creates, defines and regulates rights; procedural law prescribes a method of enforcing rights or obtaining redress for their invasion.”60 Furthermore, “[t]hose rights which are substantive and which therefore cannot be applied retrospectively are regularly defined as those which ‘take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already passed.’”61
With respect to the new tort reform act, it seems likely that a court would find that the act is intended to apply retroactively.62 Section 538.300 unambiguously manifests that intent in that it directs that the tort reform act applies to all causes of action filed after the effective date, indicating that it applies to events which occurred prior to the date the act became effective. Thus, those provisions of the act which affect the substantive rights of such parties will be subject to constitutional attack.
There are several provisions of the new act which may indeed affect the substantive rights of such parties. These provisions will likely face challenges in the courts if applied retroactively. Such provisions include the immunity granted to public health physicians, the modification of joint and several liability, and the provisions relating to non-economic damages caps.
The newly-enacted § 538.228 creates a limited or qualified immunity for physicians who provide medical treatment to a patient at a city or county health department, a non-profit community health center, or other non-profit entity that solely provides free health care services and enjoys tax exempt status. Prior to the enactment of the statute, such physicians did not enjoy this immunity and were liable for medical negligence.63 Thus, prior to its enactment, injured patients had a vested property right in their negligence claims against these physicians.64 The abrogation of this right seems to be an obvious impairment of a vested substantive right in cases of individuals who were injured prior to August 28, 2005. In such cases, retroactive application of the immunity statute may very well be disallowed by Missouri courts.65
Another provision of the act which may face a retroactivity challenge is § 537.067, which alters the concept of “joint and several liability.” Prior to its enactment, unless the plaintiff was assessed a percentage of fault, the traditional concept of joint and several liability applied in most tort actions, allowing plaintiffs the right to collect the full amount of a judgment from any one defendant regardless of the apportionment of relative fault between defendants; if a defendant was “required to pay more than its proportionate share, it [could] seek contribution from the other defendants up to the amount representing their respective percentages of fault.”66 In medical malpractice cases, “joint and several liability” was limited to the extent that the jury was permitted to allocate fault to parties who had been released from liability through settlement.67 Now, in all tort actions, “if a defendant is found to bear fifty-one percent or more at fault, [that] defendant shall be jointly and severally liable for the . . . judgment,” but “[i]f a defendant is found to bear less than fifty-one percent at fault,” it typically will “only be responsible for the percentage of the judgment for which” it is found responsible.68
At least one other state supreme court has held that such a modification of joint and several liability is unconstitutional when applied retroactively. In Matthies v. Positive Safety Mfg. Co., the Supreme Court of Wisconsin held unconstitutional the retroactive application of a statute which modified the traditional concept of joint and several liability by directing that defendants found to be less than 51% at fault were responsible only for the percentage of the judgment for which that defendant was found liable.69 In holding the retroactive application of the partial abrogation of joint and several liability unconstitutional, the Matthies court first determined that the plaintiff had a “vested right [under prior law] to recover all . . . damages from any defendant that may be jointly and severally liable for his injuries,” and thus, application of the new legislation in cases in which the cause of action accrued prior to the effective date would “attach[] new legal consequences” to negligence committed before enactment of the statute.70 Although under Wisconsin law the “impairment of a vested right” was not dispositive of the issue of the constitutionality of retroactive application,71 the case does establish that such a modification of joint and several liability impairs a plaintiff’s substantive rights. Missouri courts may well be faced with a similar challenge to the newly-enacted modification to joint and several liability.
Another area of the act which may be challenged as unconstitutionally retroactive is § 538.210, RSMo Supp. 2005. There are several modifications to this statute which a court could potentially find as impairing substantive rights. First, the amended statute now prohibits filing suit against an entity for medical malpractice “based on the actions or omissions” of that entity’s agents unless that agent is also an employee of the entity, thus abrogating the concept of liability based on agency, rather than employment, in medical malpractice cases. This section abolishes long-established principles of agency and is highly suspect. Under prior law, an injured patient was permitted to bring suit against an entity based on an agency relationship that entity had with the negligent health care provider.72 Thus, in instances in which the injured patient’s cause of action accrued prior to the effective date of the statute, retroactive application of this provision could potentially be viewed as destroying that patient’s vested property right in his claim against the entity,73 and courts may very well hold such application unconstitutional.
Other potential problems with the amended § 538.210 include the deletion of the provision allowing a separate non-economic damages cap for each defendant and for each occurrence of malpractice. Another provision which may be attacked states that a loss of consortium plaintiff is deemed to be the same plaintiff as his injured spouse for the purposes of caps. The provision repealing the inflation adjustment is also deserving of searching, as it will serve to decrease the actual value of the cap over time.
Although defendants would likely argue that these caps provisions are procedural rather than substantive because they affect a plaintiff’s remedy, and therefore can constitutionally be applied retroactively, the distinction between procedure and substance is not entirely clear under Missouri law.74 There are several Missouri cases which indicate that changes to caps on damages can be substantive. For instance, in Buder the Supreme Court held that a statutory limit on damages in wrongful death cases in effect at the time the cause of action accrued was applicable despite the subsequent abrogation of that limitation by the legislature, because the statutory limit had served to protect defendants from verdicts in excess of the limit.75 In Stillwell, the Court of Appeals for the Western District held that an increase in the limit an employer was required to pay for burial expenses under the workers’ compensation law could not be applied retroactively because the change in the law affected the substantive rights of the employer, which “possessed a vested right that its liability . . . could not exceed” a certain amount.76 Does a plaintiff have a similar vested substantive right that compensation for his injuries may not be reduced below a certain amount?77 Lastly, in Cook v. Newman, in holding that the previous inflation adjustment provision for the non-economic damages cap did not fall under the “proscription against retroactive laws,” the Court of Appeals for the Western District was careful to note both that the statute at issue there “was not amended between the time of the” accrual of the cause of action “and the time of trial” and that the adjustment “neither defines or regulates a plaintiff’s right to compensation or ascribes different legal effects to a defendant’s conduct.”78
IV. Pleading Constitutional Challenges
When challenging the constitutionality of a statute, the challenge must be made at the earliest opportunity, and a plaintiff is therefore required to make such a challenge in the petition.79 To sufficiently raise a constitutional challenge to any of the provisions of the new tort reform act, a plaintiff must:
(1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.80
Case law indicates that the most common mistake plaintiffs make is failing to set forth the facts relied upon to demonstrate unconstitutionality. It is not sufficient for a plaintiff to simply set forth the sections of the constitution and assert that the statute violates the plaintiff’s rights.
81 Facts demonstrating the reason why the statute is unconstitutional must be plead.
82
In some instances, it may be appropriate for a putative tort action plaintiff to file a declaratory judgment action specifically challenging the constitutionality of a provision under the new tort reform act. Missouri’s declaratory judgment statute, § 527.020, RSMo Supp. 2005, provides in part: “Any person . . . whose rights . . . are affected by a statute . . . may have determined any question of construction or validity arising under the…statute…and obtain a declaration of rights . . . thereunder.” The Supreme Court of Missouri has stated that “[t]he basic test to determine whether a plaintiff has standing to bring suit for declaratory and injunctive relief is whether he has a legally protectible interest at stake.”83 Thus, if the plaintiff has a “protectible interest” that is affected under a new statute, he can bring a declaratory judgment action to challenge the validity of the statute. The new tort reform act has some provisions which may impair a putative plaintiffs’ vested rights in their tort claims if applied retroactively (i.e., to claims that accrued prior to August 28, 2005, but were filed after August 28, 2005), and it therefore may be appropriate for these putative plaintiffs to bring a declaratory judgment action to challenge the application of these provisions to their cases. Examples might include the new immunity granted to public health physicians and the abrogation of respondeat superior liability in medical malpractice cases. As discussed above, Missouri courts have found that plaintiffs have a vested property interest in their tort claims.84 The new law abrogates their claims against certain defendants, and therefore may be subject to a declaratory judgment action challenging the constitutional validity of these provisions.
Footnotes
1 Paul J. Passanante is a principal with Simon•Passanante, P.C. He received his J.D. from Saint Louis University School of Law in 1976, and is licensed to practice in Missouri, Arkansas, Florida and the District of Columbia.
Dawn M. Mefford is an associate at the law firm of Simon•Passanante, P.C. She received her J.D. from Saint Louis University School of Law in 2003, and is licensed to practice in Missouri and Illinois.
2 832 S.W.2d 898 (Mo. banc 1992).
3 Id. at 907-08.
4 Id. at 908.
5 Vincent by Vincent v. Johnson, 833 S.W.2d 859, 862 (Mo. banc 1992).
6 H.R. 393, 93rd Gen. Assem., 1st Reg. Sess. (Mo. 2005).
7 Nat’l Solid Waste Mgmt. Ass’n v. Dir., Dept. of Natural Res., 964 S.W.2d 818, 820 (Mo. banc 1998).
8 Mo. State Med. Ass’n v. Mo. Dep’t of Health, 39 S.W.3d 837 (Mo. banc 2001).
9 Drury v. City of Cape Girardeau, 66 S.W.3d 733, 739 (Mo. banc 2002).
10 964 S.W.2d at 820.
11 Id.
12 H.R. 393, 93rd Gen. Assem., 1st Reg. Sess. (Mo. 2005).
13 Compare, Fust v. Atty. Gen. for the State of Missouri, 947 S.W.2d 424, 429 (Mo. banc 1997), for a discussion of a similar use of the phrase “in lieu thereof” wherein the Court stated that these words act to “inform the reader what is being substituted for the repealed provisions.”
14 See, e.g., Beavers v Recreation Ass’n. of Lake Shore Estates, Inc., 130 S.W. 3d 702 (Mo. App. S.D. 2004); State ex rel. Spradling v. Bondurant, 501 S.W. 2d 527 (Mo. App. W.D. 1973); State ex rel. Private Nursing Service, Inc. v. Romines, 130 S.W. 3d 28 (Mo. App. E.D. 2004).
15 Compare, e.g., Nat’l Solid Waste Mgmt. Ass’n, 964 S.W.2d at 821 (holding the title to a legislative act unconstitutional because it indicated that the act related to “solid waste management” when the act in fact also related to “hazardous waste management” and further stating “the title [is] affirmatively misleading . . . the phrase ‘relating to solid waste management’ erroneously implies that the bill does not relate to any other kind of waste management . . .”).
16 C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 328 (Mo. banc 2000).
17 Id.
18 Hammerschmidt v. Boone County, 877 S.W.2d 98, 102 (Mo. banc 1994).
19 Id.
20 Stroh Brewery Co. v. State, 954 S.W.2d 323, 327 (Mo. banc 1997).
21 H.R. 393, 93rd Gen. Assem., 1st Reg. Sess. (Mo. 2005).
22 877 S.W.2d at 103.
23 Nat’l Solid Waste Mgmt.t Ass’n., 964 S.W.2d at 822.
24 Id.
25 Schleeper v. State, 982 S.W.2d 252, 254 (Mo. banc 1998); State ex rel. Kinsky v. Pratte, 994 S.W.2d 74 (Mo. App. E.D. 1999); State ex rel. K.C. v. Gant, 661 S.W.2d 483 (Mo. banc 1983).
26 State v. Pizzella, 723 S.W.2d 384 (Mo. banc 1987).
27 Id at 386, fn. 3 (emphasis added).
28 Section 516.500, RSMo Supp. 2005.
29 Id.
30 Id.
31 Fust, 947 S.W.2d at 432.
32 Id.
33 Best v. Taylor Machine Works, 689 N.E.2d 1057, 1075 (Ill. 1997).
34 State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 86 (Mo. banc 2003).
35 See, e.g., Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989).
36 Adams, 832 S.W.2d at 907.
37 Id.
38 Id.
39 Id.
40 Best, 689 N.E.2d at 1078-81.
41 Id. at 1079.
42 Fust, 947 S.W.2d at 430-31.
43 Id.
44 Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) and Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987).
45 Adams, 832 S.W.2d at 906.
46 Id.
47 Id. at 905.
48 Id.
49 State v. Pike, 162 S.W.3d 464 (Mo. banc 2005).
50 See, Ferdon v. Wis. Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005); Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991); Anderson v Assimos, 553 S.E.2d 63 (N.C. Ct. App. 2001); Gladon v. Greater Cleveland Regional Transit Authority, 1994 WL 78468 (Ohio App. 1994).
51 Adams, 832 S.W.2d at 903-05.
52 See, e.g., Morris v. Savoy, 576 N.E.2d 765, 771 (Ohio 1991).
53 Adams, 832 S.W. 2d at 907.
54 Notably, this differs from previous tort reform legislation in Missouri which applied to all causes of action arising on or after the effective date. See, e.g., § 538.235, RSMo Supp. 2005.
55 Cook v. Newman, 142 S.W.3d 880, 893 (Mo. App. W.D. 2004).
56 Id.
57 Dep’t of Soc. Servs. v. Villa Capri Homes, 684 S.W.2d 327, 332 (Mo. banc 1985).
58 Id.
59 Cook, 142 S.W.3d at 893.
60 Id.
61 State ex rel. St. Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409, 410 (Mo. banc 1974).
62 See e.g., State Bd. of Registration for the Healing Arts v. Boston, 72 S.W. 3d 260, 264–65 (Mo. App. W.D. 2002).
63 See, e.g., State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761 (Mo. App. E.D. 1981).
64 See, DeMay v. Liberty Foundry Co., 37 S.W. 2d 640, 647 (Mo. 1931).
65 Compare, Benton v. City of Rolla, 872 S.W. 2d 882 (Mo. App. S.D. 1994).
66 Elfrink v. Burlington Northern R.R. Co., 845 S.W.2d 607, 615 (Mo. App. E.D. 1992); § 537.067, RSMo Supp. 2005.
67 Adams, 832 S.W.2d 898 at 905.
68 Section 537.067, RSMo Supp. 2005.
69 628 N.W.2d 842 (Wis. 2001).
70 Id. at 852-55.
71 Under Wisconsin law, once it has been found that a party has a vested property right which has been substantially impaired by retroactive legislation, the courts then engage in a balancing test to determine whether such application violates that party’s due process rights. See, Id. at 855.
72 Bost v. Clark, 116 S.W.3d 667 (Mo. App. W.D. 2003).
73 37 S.W. 2d at 647.
74
See, e.g., Buder, 515 S.W.2d at 410 (stating that the distinction between procedural and substantive law “has frequently proved elusive.”);
Stillwell v. Universal Constr. Co., 922 S.W.2d 448, 456 (Mo. App. W.D. 1996) (stating “that all amendments to statutes affecting the measure of damages” are not necessarily procedural).
75 515 S.W.2d at 410.
76 922 S.W.2d at 456.
77 See, e.g., Vaughan v. Taft Broad. Co., 708 S.W.2d 656, 660 (Mo. banc 1986) (holding the retroactive application of a limit on punitive damages permissible because a plaintiff has no vested right to such damages, reasoning that punitive damages are “allowed in the interest of society, and not to recompense solely the victim…”) (emphasis added).
78 142 S.W.3d 880 (Mo. App. W.D. 2004).
79 Mike Berniger Moving Co. v. O’Brien, 234 S.W. 807 (Mo. 1921).
80 Callier v. Dir. of Revenue,, 780 S.W.2d 639, 641 (Mo. banc 1989).
81 Leiser v. City of Wildwood, 59 S.W.3d 597 (Mo. App. E.D. 2001).
82 Id.
83 Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34 (Mo. banc 1982) (holding that the plaintiff had standing to bring a declaratory judgment action challenging the constitutional validity of a statute, the statute could not be retroactively applied, but it did not violate equal protection, special laws, privileges and immunities, changed purpose, one subject or vagueness provisions of the Missouri Constitution.)
84 See DeMay, 37 S.W. 2d at 647.