Best v. Taylor Machine Works, Inc.

Docket Nos. 81890, 81891, 81892, 81893 cons.--Agenda

18--May 1997.

VERNON BEST, Appellee, v. TAYLOR MACHINE WORKS

et al., Appellants.--JONATHAN ISBELL, Administrator of

the Estate of Steven A. Kelso, Appellee, v. UNION PACIFIC

RAILROAD COMPANY et al., Appellants.

Opinion filed December 18, 1997.

JUSTICE McMORROW delivered the opinion of the court:

This consolidated appeal arises from two personal injury

tort actions filed in the circuit court of Madison County, in

which the plaintiffs sought declaratory and injunctive relief

against enforcement of "An Act to amend certain Acts in

relation to civil actions, *** the Civil Justice Reform

Amendments of 1995." Pub. Act 89--7, eff. March 9, 1995

(hereafter Public Act 89--7 or the Act). In both cases, plaintiffs

sought partial summary judgment on the grounds that the Act

violated the Illinois Constitution of 1970. The circuit court of

Madison County held the following provisions of Public Act 89-

-7 unconstitutional: (1) the $500,000 limit on compensatory

damages for noneconomic injuries (735 ILCS 5/2--1115.1 (West

1996)), (2) the allocation of fault and several liability provisions

(735 ILCS 5/2--1116, 2--1117 (West 1996)), (3) the

amendments to the Joint Tortfeasor Contribution Act (740 ILCS

100/3.5, 5 (West 1996)), (4) certain jury instructions (735 ILCS

5/2--1107.1 (West 1996)), (5) the product liability certificate of

merit (735 ILCS 5/2--623 (West 1996)), (6) the product liability

statute of repose (735 ILCS 5/13--213(b) (West 1996)), (7) the

product liability presumptions (735 ILCS 5/2--2103, 2--2104, 2--

2106 (West 1996)) and (8) the discovery statutes which require

mandatory disclosure of all of plaintiffs' medical information

and records (735 ILCS 5/2--1003, 8--802, 8--2001, 8--2003

(West 1996)). The court also held that Public Act 89--7 is

unconstitutional as a whole.

Defendants timely appealed the circuit court's order to this

court, and we consolidated the cases. We allowed the Attorney

General, James E. Ryan, to intervene to defend the

constitutionality of Public Act 89--7.

We also granted the following organizations leave to submit

briefs amicus curiae: (1) Illinois Hospital & Healthsystems

Association and the Metropolitan Chicago Healthcare Council,

(2) Illinois State Medical Society, (3) Product Liability Advisory

Council, Inc., (4) Illinois Manufacturers' Association, (5) Illinois

Association of Defense Trial Counsel, (6) Illinois Civil Justice

League, (7) Illinois State Federation of Labor and Congress of

Industrial Organization and Ironworker's District Council of

Greater Chicago, (8) Illinois State Council of Senior Citizens,

Families Advocating Injury Reduction (FAIR), Union of

Needletrades, Industrial and Textile Employees (UNITE),

Coalition for Consumer Rights, Citizen Action/Illinois Chapter,

Metro Seniors in Action, Tenth Congressional District AFL-

CIO, Champaign County Health Care Consumers, Citizen

Advocacy Center and Coalition of Citizens With Disabilities in

Illinois, (9) Illinois State Bar Association, (10) National

Association for the Advancement of Colored People and the

Cook County Bar Association, (11) Illinois NOW Legal and

Education Fund and Breast Implant Information Exchange, (12)

Chicago Bar Association and (13) the Brotherhood of Heat and

Frost Insulators, Local 17, and the Southeast Environmental

Task Force.

The parties agree that Public Act 89--7 effects substantial

changes to numerous aspects of tort law. The parties further

agree that the challenged provisions of Public Act 89--7 pertain

primarily to personal injury actions as distinct from business-

related torts, defamation, or other actions not involving physical

injury. There is also no dispute that the heart of Public Act 89--

7 is the $500,000 limit on compensatory damages for injuries

that are considered "non-economic" in nature (735 ILCS 5/2--

1115.1 (West 1996)).

Defendants characterize the Act as a legitimate reform

measure that is within the scope of the Illinois General

Assembly's power to change the common law, shape public

policy, and regulate the state's economic health. Plaintiffs

counter that the Act uses the guise of reform to erect arbitrary

and irrational barriers to meritorious claims, and, therefore, that

the Act violates the Illinois Constitution of 1970. Specifically,

plaintiffs maintain that the following constitutional provisions

are violated by various aspects of the legislation at issue: special

legislation (Ill. Const. 1970, art. IV, sec. 13), equal protection

and due process (Ill. Const. 1970, art. I, sec. 2), separation of

powers (Ill. Const. 1970, art. II, sec. 1), right to a jury (Ill.

Const. 1970, art. I, sec. 13) and right to a certain remedy (Ill.

Const. 1970, art. I, sec. 12).

The role of this court in considering the constitutionality of

Public Act 89--7 is not to judge the prudence of the General

Assembly's decision that reform of the civil justice system is

needed. We recognize that we should not and need not balance

the advantages and disadvantages of reform. See People v.

Warren, 173 Ill. 2d 348 (1996); see also Cutinello v. Whitley,

161 Ill. 2d 409 (1994). Rather, as the highest court in this state,

we must determine the meaning and effect of the Illinois

Constitution in light of the challenges made to the legislation in

issue. Warren, 173 Ill. 2d at 355-56 .

Courts should begin any constitutional analysis with the

presumption that the challenged legislation is constitutional

(People v. Shephard, 152 Ill. 2d 489 (1992)), and it is the

plaintiff's burden to clearly establish that the challenged

provisions are unconstitutional (Bernier v. Burris, 113 Ill. 2d

219 (1986)). However, the Illinois Constitution is not a grant,

but a limitation on legislative power. People v. Chicago Transit

Authority, 392 Ill. 77 (1945); Italia America Shipping Corp. v.

Nelson, 323 Ill. 427 (1926); Taylorville Sanitary District v.

Winslow, 317 Ill. 25 (1925). It is this court's duty to interpret

the law and to protect the rights of individuals against acts

beyond the scope of the legislative power. People ex rel.

Huempfner v. Benson, 294 Ill. 236 (1920). If a statute is

unconstitutional, this court is obligated to declare it invalid.

Wilson v. Department of Revenue, 169 Ill. 2d 306 (1996). This

duty cannot be evaded or neglected, no matter how desirable or

beneficial the legislation may appear to be. Wilson, 169 Ill. 2d

at 310; Grasse v. Dealer's Transport Co., 412 Ill. 179, 190

(1952).

For the reasons stated below, we determine that the

following provisions of Public Act 89--7 violate the Illinois

Constitution: (1) the limitation on compensatory damages for

noneconomic injury (735 ILCS 5/2--1115.1 (West 1996)), (2)

section 3.5(a) of the Joint Tortfeasor Contribution Act (740

ILCS 100/3.5(a) (West 1996)), (3) the abolition of joint and

several liability (735 ILCS 5/2--1117 (West 1996)), and (4) the

discovery statutes which mandate the unlimited disclosure of

plaintiffs' medical information and records (735 ILCS 5/2--

1003, 8--802, 8--2001, 8--2003 (West 1996)). We further hold

that because these unconstitutional provisions may not be

severed from the remainder of the act, Public Act 89--7 as a

whole is invalid.

BACKGROUND

Plaintiff, Vernon Best, was injured on July 24, 1995, while

he was operating a forklift for his employer, Laclede Steel

Company, in Alton, Illinois. The forklift was designed and

manufactured by Taylor Machine Works (Taylor) and sold by

Allied Industrial Equipment Corporation (Allied). Best sustained

injuries when the forklift's mast and support assembly collapsed

while Best was moving slabs of hot steel. As a result of the

collapse, flammable hydraulic fluid manufactured by Lee Helms,

Inc. (Helms), ignited and engulfed Best in a fireball. While on

fire, Best leaped from the cab of the forklift and fractured both

heels. Best also suffered second and third degree burns over

40% of his body, including his face, torso, arms and hands.

Best filed a product liability action seeking damages against

Taylor, Allied and Helms. In his amended complaint, Best

alleges that the forklift and hydraulic fluid were defective and

not reasonably safe. As to Taylor and Allied, Best alleges strict

product liability, negligence, breaches of implied and express

warranties, and breach of warranty for a particular purpose. As

to Helms, Best alleges strict product liability, negligence and

breach of implied warranty.

Best alleges that he sustained lost earnings, he anticipates

diminished future earnings, he has incurred past medical

expenses, and he will incur future medical expenses as a result

of his injuries. Best anticipates that he will need vocational

rehabilitation and convalescent care because of his injuries. He

further alleges that his injuries are severe, disfiguring and

permanent. Best states that he has suffered and will continue to

suffer from grievous pain and anguish from his injuries. He

further asserts that he has had a painful and lengthy experience

as a patient in a hospital burn unit, and has undergone numerous

surgeries.

In his amended complaint, Best seeks compensatory

damages for all injuries. Best alleges that he has and will incur

noneconomic damages in excess of $500,000. He also seeks

declaratory and injunctive relief against Public Act 89--7 on the

grounds that the Act violates the Illinois Constitution.

The second action arises out of the death of 20-year-old

Steven Kelso, who was killed by a train at a railroad crossing

in Madison County, Illinois, on December 12, 1995. At the time

of his death, Kelso was driving a truck for his employer. Union

Pacific owned the train that killed Kelso, and Donald Cain

operated the train at the time of Kelso's death.

Plaintiff Jonathan Isbell, the administrator of Kelso's estate,

filed a complaint against Union Pacific and Cain. In the

complaint, Isbell alleges that the train that killed Kelso was

negligently operated. He states that the train's speed was

excessive, it did not adequately warn of its approach, and it

failed to slow or stop before the crash. The complaint also

alleges that the railroad crossing was negligently constructed,

inspected, and maintained, with inadequate warning signals and

other deficiencies. Isbell seeks damages under the Wrongful

Death Act (740 ILCS 180/1 (West 1996)), the Probate Act of

1975 (755 ILCS 5/27--6 (West 1996)) and the Rights of Married

Persons Act (750 ILCS 65/15 (West 1996)). Like Best, Isbell

also seeks declaratory and injunctive relief challenging the

constitutionality of Public Act 89--7.

In the circuit court, defendants in both actions moved to

dismiss the counts for declaratory and injunctive relief, on the

grounds that the constitutionality of Public Act 89--7 was not

ripe for adjudication. Both plaintiffs filed motions for partial

summary judgment on those counts, and entreated the circuit

court to invalidate Public Act 89--7. Plaintiffs filed expert

opinion affidavits in support of their partial motions for

summary judgment. Defendants did not file counteraffidavits.

Upon consolidating the cases, the circuit court denied

defendants' motions to dismiss, and granted plaintiffs' motions

for partial summary judgment. The circuit court ruled that 15

specific provisions of Public Act 89--7 were unconstitutional

and that the Act as a whole was unconstitutional. The court

noted that the Act overruled more than 70 decisions of this court

and the appellate court, and constituted a "wholesale

reconstruction of the judiciary." Pursuant to Supreme Court Rule

302(a) (134 Ill. 2d R. 302(a)), defendants appealed directly to

this court from the circuit court's order declaring Public Act 89-

-7 invalid.

ANALYSIS

Initially, we note that in striking down Public Act 89--7, the

circuit court referenced the "demeanor" of the legislature during

consideration of the Act, as shown by the legislative history.

The history of Public Act 89--7 shows that the Act was initially

introduced in the House of Representative as House Bill 20, on

November 30, 1994. See generally 25 ILCS 25/2 (West 1994).

The legislative synopsis indicates that Public Act 89--7 made "a

technical change in a provision relating to product liability

actions." House Bill 20 consisted of a suggestion that the word

"any" be changed to "a" in the first sentence of section 2--621

of the Code of Civil Procedure (735 ILCS 5/2--621 (West

1992)).

More than two months later, on February 14, 1995, House

Bill 20 was released to members of the House as "amended."

The amendment to House Bill 20 consisted of 67 pages of text,

and mirrors the currently enacted provisions of Public Act 89--7

now before this court. On February 15, 1995, the House

Executive Committee held a meeting to consider House Bill 20,

and approved it without change. The day following committee

approval, House Bill 20 was presented to the full House of

Representatives. A majority of the House voted in favor of

House Bill 20.

Two weeks later, the Illinois Senate Judiciary Committee

held a two-day hearing to consider House Bill 20, and voted to

adopt it without change. The bill went to the Senate, where it

received the votes necessary for adoption. On March 9, 1995,

House Bill 20 was signed into law as Public Act 89--7.

Before the circuit court, plaintiffs argued, and the court

agreed, that the "fast track" stratagem adopted by the bill's

proponents was designed to curtail deliberation of the bill.

Defendants agree that the passage of Public Act 89--7 was swift

and drew significant objections on the grounds that adequate

time for debate was lacking. However, defendants contend that

this fact is not relevant to the determination of the constitutional

issues before this court. Because the manner in which Public

Act 89--7 was passed is not dispositive of the merits of the

constitutional challenges raised by plaintiffs, we do not further

consider its genesis. We note, however, that the legislative

history of Public Act 89--7 may be considered in ascertaining

the intent of the legislature if the resolution of an issue so

requires. See, e.g., People ex rel. Chicago Bar Ass'n v. State

Board of Elections, 136 Ill. 2d 513, 537 (1990) (legislative

history is relevant to severability analysis).

I. Ripeness

In the circuit court, pursuant to section 2--615 of the Code

of Civil Procedure (735 ILCS 5/2--615 (West 1992)), defendants

moved to dismiss plaintiffs' counts for injunctive and

declaratory relief on the grounds that they were not ripe for

adjudication. The circuit court rejected defendants' arguments

and determined that plaintiffs had standing and that the issues

were ripe.

Before this court, defendants maintain that the majority of

the circuit court's rulings do not involve an actual case or

controversy, which is required to sustain an action for

declaratory judgment. They argue that the underlying facts and

issues in this case are so premature as to require the court to

pass judgment on mere abstract propositions of law, or render

an advisory opinion.

The question of ripeness requires a determination with

respect to whether there is a case or controversy under section

2--701 of the Code of Civil Procedure (735 ILCS 5/2--701

(West 1992)). A complaint for declaratory judgment must recite

in sufficient detail an actual and legal controversy between the

parties and must demonstrate that the plaintiff is interested in

the controversy. First of America Bank, Rockford, N.A. v.

Netsch, 166 Ill. 2d 165 (1995) (declaratory judgment actions

permit early resolution of dispositive issues, to fix rights of

parties before irrevocable change in their positions jeopardizes

their claims of right); see also Illinois Gamefowl Breeders Ass'n

v. Block, 75 Ill. 2d 443 (1979). This court has repeatedly held

that the declaratory judgment statute must be liberally construed

and should not be restricted by unduly technical interpretations.

See, e.g., Netsch, 166 Ill. 2d at 174 .

We believe that plaintiffs' complaint challenging the

constitutionality of Public Act 89--7 portends "the ripening seeds

of litigation." Miles Kimball Co. v. Anderson, 128 Ill. App. 3d

805, 807 (1984). For example, plaintiff Best asserts a product

liability claim to recover compensatory damages for bodily

injuries allegedly sustained at the hands of defendants Allied,

Taylor, and Helms. Best alleges that his compensatory damages

for noneconomic injuries will exceed $500,000. Public Act 89--

7, inter alia, limits such damages to $500,000 in all negligence

and product liability actions brought on account of death, bodily

injury, or physical damage to property. See 735 ILCS 5/2--

1115.1 (West 1996). The limitation applies irrespective of

whether the court or jury otherwise would have found a larger

amount to be appropriate under the facts of the particular case.

We believe that plaintiffs have alleged a sufficient and

direct interest in the application of the challenged provisions of

Public Act 89--7 to their lawsuits. In deciding the

constitutionality of Public Act 89--7 we are not ruling on mere

abstract principles of law or prematurely deciding issues in the

absence of an actual case or controversy. The course of future

litigation in these consolidated cases necessarily will be

controlled by resolution of the constitutional challenges to

Public Act 89--7. We hold that the issues presented in the

instant controversy are ripe for review.

II. The Cap on Noneconomic Damages

Plaintiffs challenge the $500,000 limit on compensatory

damages for noneconomic injuries set forth in section 2--1115.1

of the Code of Civil Procedure (735 ILCS 5/2--1115.1 (West

1996)).

A. Background to Section 2--1115.1

Section 2--1115.1(a) provides:

"In all common law, statutory or other actions that

seek damages on account of death, bodily injury, or

physical damage to property based on negligence, or

product liability based on any theory or doctrine,

recovery of non-economic damages shall be limited to

$500,000 per plaintiff. There shall be no recovery for

hedonic damages." 735 ILCS 5/2--1115.1(a) (West

1996).

Section 2--1115.1(d) provides that nothing in section 2--

1115.1 shall be construed to create a right to recover

noneconomic damages. The statute defines "non-economic

damages" as "damages which are intangible, including but not

limited to damages for pain and suffering, disability,

disfigurement, loss of consortium, and loss of society." 735

ILCS 5/2--1115.2(b) (West 1996). Economic damages, defined

as "all damages which are tangible, such as damages for past

and future medical expenses, loss of income or earnings and

other property loss" (735 ILCS 5/2--1115.2(a) (West 1996)), are

not limited. By its terms, the statute defines "compensatory" or

"actual" damages as "the sum of economic and non-economic

damages." 735 ILCS 5/2--1115.2(c) (West 1996). Thus,

compensatory damages, i.e., damages which are intended to

make an injured plaintiff whole, are limited by section 2--

1115.1.

The cap on compensatory damages for noneconomic injury

is, as the parties acknowledge, at the heart of Public Act 89--7.

The key role of this cap is reflected in the preamble to the Act,

which contains 18 specific "findings" and eight listed "purposes"

based on those findings. Eight of the 18 findings in the

preamble pertain to noneconomic damages. These findings

declare that: (1) limiting noneconomic damages will improve

health care in rural Illinois, (2) more than 20 states limit

noneconomic damages, (3) the cost of health care has decreased

in those states, (4) noneconomic losses have no monetary

dimension, and no objective criteria or jurisprudence exists for

assessing or reviewing noneconomic damages awards, (5) such

awards are highly erratic and depend on subjective preferences

of the trier of fact, (6) highly erratic noneconomic damages

awards subvert the credibility of such awards and undercut the

deterrent function of tort law, (7) such awards must be limited

to provide consistency and stability for all parties and society

and (8) "a federal executive branch working group" determined

that limiting noneconomic damages was the most effective step

toward legislative reform of tort law because it reduces litigation

costs and expedites settlement.

In addition to the above legislative "findings," the preamble

to Public Act 89--7 states legislative "purposes" which relate to

the limit on noneconomic damages. These purposes may be

summarized as follows: reduce the cost of health care and

increase accessibility to health care, promote consistency in

awards, reestablish the credibility of the civil justice system,

establish parameters or guidelines for noneconomic damages,

protect the economic health of the state by decreasing systemic

costs, and ensure the affordability of insurance.

The preamble also declares, "It is the public policy of this

State that injured persons injured through negligence or

deliberate misconduct of another be afforded a legal mechanism

to seek compensation for their injuries."

In the circuit court, defendants maintained that the Act and

its specified goals represent a return to fairness, predictability,

responsibility and rationality in the tort arena. Specifically,

defendants argued that the limit on noneconomic damages

provides rationality to the system of awarding damages for

personal injury.

Plaintiffs, in their motion for partial summary judgment,

challenged the legislature's use of chiefly anecdotal evidence to

justify the Act.[fn1] Citing a 1992 report from the National

Center for State Courts, plaintiffs noted that businesses, not

private personal injury plaintiffs, constitute the most active

group of litigants in the state. Plaintiffs further argued that the

uncontested empirical evidence that they presented in

conjunction with their motion clearly shows that the legislative

"findings" listed in the preamble do not provide a rational

justification for the limitation of compensatory damages for

noneconomic injuries. In support, plaintiffs submitted several

affidavits with their motion for summary judgment on the

constitutionality of section 2--1115.1.

Neil Vidmar, Professor of Social Science and Law at Duke

Law School in Durham, North Carolina, submitted an affidavit

in which he explains that many of the assertions about medical

malpractice litigation contained in the preamble of Public Act

89--7, as well as statements made at the hearing and debates

which preceded its passage, have no empirical basis and were

based on unsubstantiated perceptions or unreliable data. For

example, the perception that damages caps result in a decrease

in the number of medical malpractice cases filed was rebutted

by the experience in Indiana, a state in which damages caps

were adopted in 1975. Vidmar cites studies revealing that

Indiana actually has experienced an increase in claims. See E.

Kinney, W. Gronfein & T. Gannon, Indiana's Medical

Malpractice Act: Results of a Three-Year Study, 24 Ind. L. Rev.

1275, 1286 (1991). Vidmar states that he is aware of no reliable

evidence in the formal studies which indicate that a limit on

noneconomic damages corresponds to a significant impact on

the cost or availability of health care or that noneconomic

damages and the costs of liability insurance are directly linked.

In a separate affidavit, Marc Galanter, Evjue-Bascom

Professor of Law at the University of Wisconsin Law School,

agrees that there is little evidence, apart from anecdotes, to

support the perceived deleterious effects of the present civil

litigation system. He cites to an article he authored entitled Real

World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093

(1996). He maintains that the only consequences which clearly

flow from the passage of Public Act 89--7 are increased

profitability of insurance companies and a reduction in the

payments to the most seriously injured tort victims. According

to Galanter, court filings in the law division of the circuit court

of Cook County have actually declined during the period from

1980 to 1994. Galanter asserts that arguments which rely on

systemic costs of the civil litigation system and its negative

effect on health care and jobs are purely speculative. Similarly,

he states that the salutary effects attributed to the type of tort

reform attempted in Public Act 89--7 are largely speculative.

Galanter concludes that when comparing isolated instances or

anecdotal evidence against the reliable empirical data that does

exist, it is apparent that the findings which form the basis for

Public Act 89--7 are erroneous.

In addition to the above affidavits, plaintiffs offered the

joint affidavit of Stephen Daniels, M.A., Ph.D., a senior research

fellow at the American Bar Foundation in Chicago, and Joanne

Martin, M.M., J.D., an assistant director of the same foundation.

Their affidavit summarizes the key empirical findings of

scholarly literature and compares them to the factual

underpinnings of Public Act 89--7. Like Vidmar and Galanter,

Daniels and Martin state that the facts which form the stated

intention or goals of Public Act 89--7 are not substantiated by

the empirical data and critical analyses found in published,

scholarly literature. Daniels and Martin summarize data which

show that only a tiny fraction of accidental deaths and injuries

are pursued through the litigation system as claims for

compensation. They further maintain, based on studies, that jury

awards are not erratic or capricious, but rather relate closely to

the severity of the particular injury.

After considering the arguments of the parties and the

materials presented, the circuit court invalidated section 2--

1115.1 on the grounds that it violated the following provisions

of the Illinois Constitution: special legislation (Ill. Const. 1970,

art. IV, sec. 13), equal protection and due process (Ill. Const.

1970, art. I, sec. 2), separation of powers (Ill. Const. 1970, art.

II, sec. 1), right to a jury (Ill. Const. 1970, art. I, sec. 13) and

right to a certain remedy (Ill. Const. 1970, art. I, sec. 12). The

circuit court held that "no conceivable argument [could] be

made in good faith to suggest that arbitrarily limiting

[compensatory] damages complies with the [Illinois

Constitution]." The court determined that section 2--1115.1

constitutes special legislation because it eliminates fairness and

impartiality in the awarding of compensatory damages, thereby

bestowing on certain tortfeasors a disproportionate, undeserved

benefit of escaping liability for a portion of compensatory

damages. The court further found that the affidavits filed in

support of plaintiffs' opposition to the findings in the preamble

to Public Act 89--7 demonstrate that there is no rational basis

for section 2--1115.1.

Our review of the circuit court's ruling is de novo. See

Bernier, 113 Ill. 2d at 230 . As such, our scope of review is not

limited to or bound by any specific material relied upon by the

circuit court. We acknowledge that the trial court considered the

affidavits of Vidmar, Galanter, Martin and Daniels in its ruling

on plaintiffs' motions for partial summary judgment. The

materials were admitted in support of plaintiffs' claim that the

provisions of the Act are not rationally related to its purposes.

While we note that it was permissible for plaintiffs to introduce

empirical evidence by way of affidavit, plaintiffs may not

prevail on their constitutional challenges merely by showing that

the General Assembly was mistaken in its legislative findings of

fact. Bernier, 113 Ill. 2d at 229-30 , citing United States v.

Carolene Products Co., 304 U.S. 144, 153-54 , 82 L. Ed. 1234,

1242, 58 S. Ct. 778, 784 (1938). Courts are not empowered to

"adjudicate" the accuracy of legislative findings. The legislative

fact-finding authority is broad and should be accorded great

deference by the judiciary. Therefore, to the extent the affidavits

of record may have been offered to contest the wisdom of the

legislative enactment, we reiterate that the legislature is not

required to convince this court of the correctness of its judgment

that the civil justice system needs reform. See Bernier, 113 Ill.

2d at 229, citing Vance v. Bradley, 440 U.S. 93, 111 , 59 L. Ed.

2d 171, 184-85, 99 S. Ct. 939, 949-50 (1979); see also Cutinello

v. Whitley, 161 Ill. 2d 409 (1994). Our task is limited to

determining whether the challenged legislation is constitutional,

and not whether it is wise. Bernier, 113 Ill. 2d at 230 .

B. Special Legislation

In this court, plaintiffs challenge the constitutionality of the

damages cap, section 2--1115.1, on the basis that it violates the

special legislation clause of the Illinois Constitution (Ill. Const.

1970, art. IV, sec. 13). Plaintiffs maintain that for individuals

whose injuries are minor or moderate, the limit will rarely, if

ever, be implicated. Instead, the limit is imposed only when a

jury or trial court finds, and the reviewing court agrees, that an

award of compensatory noneconomic damages in excess of

$500,000 is required to make the plaintiff whole. According to

plaintiffs, section 2--1115.1 impermissibly penalizes the most

severely injured individuals, whose pain and suffering,

disfigurement, and other noneconomic injuries would be most

likely to result in a compensatory award in excess of $500,000

but for the statutory limit. Similarly, plaintiffs reason, the

damages cap arbitrarily benefits certain tortfeasors, who are

relieved of liability for fully compensating plaintiffs. Thus,

plaintiffs maintain, section 2--1115.1 constitutes special

legislation.

The special legislation clause of the Illinois Constitution

provides:

"The General Assembly shall pass no special or local

law when a general law is or can be made applicable.

Whether a general law is or can be made applicable

shall be a matter for judicial determination." (Emphasis

added.) Ill. Const. 1970, art. IV, sec. 13.

It has been noted that the prohibition against special

legislation is the "one provision in the legislative articles that

specifically limits the lawmaking power of the General

Assembly." S. Grove & R. Carlson, The Legislature, in Con-

Con: Issues for the Illinois Constitutional Convention 101, 103

(1970). The special legislation clause expressly prohibits the

General Assembly from conferring a special benefit or exclusive

privilege on a person or a group of persons to the exclusion of

others similarly situated. In re Petition of the Village of Vernon

Hills, 168 Ill. 2d 117, 122 (1995). This court has consistently

held that the purpose of the special legislation clause is to

prevent arbitrary legislative classifications that discriminate in

favor of a select group without a sound, reasonable basis.

Wright v. Central Du Page Hospital Ass'n, 63 Ill. 2d 313 (1976)

(invalidating $500,000 cap on damages in medical malpractice

actions); Grace v. Howlett, 51 Ill. 2d 478 (1972) (striking

classifications that conditioned recovery for personal injuries

upon fortuity of whether negligent driver was using vehicle for

commercial or private purposes); Grasse v. Dealer's Transport

Co., 412 Ill. 179 (1952) (invalidating discriminatory

classifications of employers, employees, and third-party

tortfeasors in workers' compensation provision).

Special legislation analysis is deeply embedded in the

constitutional jurisprudence of this state. The ban on special

legislation originally arose in the nineteenth century in response

to the General Assembly's abuse of the legislative process by

granting special charters for various economic entities. D.

Ruder, Business Regulation: Corporations, in Con-Con: Issues

for the Illinois Constitutional Convention 382, 382-83 (1970).

The special legislation clause in the Constitution of 1870

enumerated over 20 specific categories in which the General

Assembly was prohibited from passing a local or special law.

Ill. Const. 1870, art. IV, sec. 22. The distinction between special

and local laws may be stated as follows:

"A local law is one which applies only to the

government of a portion of the territory of the state, and

a special law is one which applies only to a portion of

the state--its people, its institutions, its economy--in

some sense other than geographical." G. Braden & R.

Cohn, The Illinois Constitution: An Annotated &

Comparative Analysis 206-07 (1969).

Delegates to the 1870 constitutional convention criticized

special legislation because, instead of establishing and enforcing

general principles applicable to every class of citizens, special

legislation enriched particular classes of individuals at the

expense of others. I Debates and Proceedings of the

Constitutional Convention of the State of Illinois 578 (remarks

of Delegate Anderson). Delegate Anderson spoke in favor of the

prohibition against special legislation and stated:

"Governments were not made to make the `rich richer

and the poor poorer,' nor to advance the interest of the

few against the many; but that the weak might be

protected from the will of the strong; that the poor

might enjoy the same rights with the rich; that one

species of property might be as free as another--that one

class or interest should not flourish by the aid of

government, whilst another is oppressed with all the

burdens." I Debates, at 578 (remarks of Delegate

Anderson).

Evidently in recognition of the value of the prohibition

against special legislation, the framers of the Illinois

Constitution of 1970 decided to retain the clause, with some

modifications. See Anderson v. Wagner, 79 Ill. 2d 295, 313-14

(1979). First, because the enumerated categories in the

constitution of 1870 clearly reflected the nineteenth century

concerns which had lost their relevance with the passage of

time, the framers of the 1970 constitution omitted the "laundry

list" of prohibited categories. See G. Braden & R. Cohn, The

Illinois Constitution: An Annotated & Comparative Analysis

225-26 (1969). Additionally, the 1970 constitution rejected the

previous rule which had vested in the legislature the power to

determine whether a general law could be made applicable.

Bridgewater v. Hotz, 51 Ill. 2d 103, 110 (1972). Thus, the

present version of the special legislation clause contains an

express grant of power to the judiciary: "Whether a general law

is or can be made applicable shall be a matter for judicial

determination." Ill. Const. 1970, art. IV, sec. 13.

The framers of the 1970 constitution retained the special

legislation prohibition even though an equal protection/due

process clause was included in the Illinois Constitution for the

first time. See Ill. Const. 1970, art. I, sec. 2 ("No person shall

be deprived of life, liberty or property without due process of

law nor be denied the equal protection of the laws").

A special legislation challenge generally is judged under the

same standards applicable to an equal protection challenge.

Village of Vernon Hills, 168 Ill. 2d at 123 . Public Act 89--7

does not affect a fundamental right or involve a suspect or

quasi-suspect classification. See Bernier, 113 Ill. 2d at 227 -

29.[fn2] Thus, the appropriate standard for our review of

Public Act 89--7 is the rational basis test. "Under this standard,

a court must determine whether the statutory classification is

rationally related to a legitimate State interest." Village of

Vernon Hills, 168 Ill. 2d at 123 .

Our task in determining whether the damages cap violates

the special legislation clause is not without difficulty. See

Grasse, 412 Ill. at 194 . Indeed, the dilemma in discerning

whether or not a particular statute constitutes special legislation

has been described as follows:

"It is impossible to conceive of a law that has universal

impact and affects everyone or everything in the same

way. By enacting laws, the legislature can hardly avoid

excluding some category of people or objects. In

enforcing this prohibition, the courts must decide if the

legislature has made a reasonable classification.

Differences of opinion are bound to exist in such

situations and the ultimate decision must rest with some

judgment as to the soundness of the legislature's

action." S. Grove & R. Carlson, The Legislature, in

Con-Con: Issues for the Illinois Constitutional

Convention 106 (1970).

The difficulty is not overcome by merely reiterating that a

classification has been made, i.e., that the legislature has in

some way classified groups of people. Rather, we must

determine whether the classifications created by section 2--

1115.1 are based upon reasonable differences in kind or

situation, and whether the basis for the classifications is

sufficiently related to the evil to be obviated by the statute.

Grasse, 412 Ill. at 195 . We note that the legislature has wide

discretion in the exercise of its police power. However, in

evaluating a challenged provision the court must consider the

natural and reasonable effect of the legislation on the rights

affected by the provision. Grasse, 412 Ill. at 193 .

While it is unnecessary to discuss every Illinois Supreme

Court case which has evaluated legislation in the context of the

special legislation clause, we note the many cases cited by both

plaintiffs and defendants in the case at bar. Defendants cite

numerous cases in which this court has rejected challenges to

legislation on special legislation and equal protection grounds.

See, e.g., Brown's Furniture, Inc. v. Wagner, 171 Ill. 2d 410

(1996) (upholding constitutionality of a use tax); Cutinello v.

Whitley, 161 Ill. 2d 409 (1994) (upholding constitutionality of

a county motor fuel tax law); People v. Shephard, 152 Ill. 2d

489 (1992) (upholding constitutionality of criminal statute which

allowed an enhanced penalty for selling narcotics with an intent

to deliver if the situs of the crime is within 1,000 feet of public

housing); Chicago National League Ball Club, Inc. v.

Thompson, 108 Ill. 2d 357 (1985) (upholding constitutionality

of an environmental regulation which monitored nighttime

baseball games); Bilyk v. Chicago Transit Authority, 125 Ill. 2d

230 (1988) (upholding constitutionality of immunity for a transit

authority for failure to protect against criminal acts of third

parties).

In contrast to the above cases, this court has invalidated

legislative classifications under the special legislation clause

where they have an artificially narrow focus and which appear

to be designed primarily to confer a benefit on a particular

private group without a reasonable basis, rather than to promote

the general welfare. See, e.g., In re Belmont Fire Protection

District, 111 Ill. 2d 373, 381-86 (1986) (invalidating a statute

which authorized only counties with populations of between

600,000 and 1 million residents to consolidate all fire protection

services into one district); Wright v. Central Du Page Hospital

Ass'n, 63 Ill. 2d 313, 325-30 (1976) (invalidating $500,000 limit

on compensatory damages in medical malpractice actions);

Grace v. Howlett, 51 Ill. 2d 478, 486-87 (1972) (invalidating a

limit on recovery applicable to damages inflicted by commercial

motorists, but not private motorists); Skinner v. Anderson, 38 Ill.

2d 455, 459-60 (1967) (invalidating a statute of repose for

construction-related injuries for architects and contractors, but

not other potential defendants in the construction process); see

also Lorton v. Brown County Community Unit School District

No. I, 35 Ill. 2d 362, 364-66 (1966); Hutchings v. Kraject, 34

Ill. 2d 379, 380-82 (1966); Harvey v. Clyde Park District, 32 Ill.

2d 60, 64-67 (1964). As the above-cited cases reveal, the

hallmark of an unconstitutional classification is its arbitrary

application to similarly situated individuals without adequate

justification or connection to the purpose of the statute.

In the case at bar, plaintiffs specifically rely on the

following three decisions of this court which held invalid as

special legislation certain statutes which created arbitrary

classifications between groups of similarly situated injured

plaintiffs or tortfeasors: Wright v. Central Du Page Hospital

Ass'n, 63 Ill. 2d 313 (1976); Grace v. Howlett, 51 Ill. 2d 478

(1972); Grasse v. Dealer's Transport Co., 412 Ill. 179 (1952).

Because plaintiffs maintain that these precedents of this court

are controlling with respect to the constitutionality of section 2--

1115.1, we discuss them in detail.

In Wright, this court held that a $500,000 limit on

compensatory damages in medical malpractice actions (Ill. Rev.

Stat. 1975, ch. 70, par. 101) violated the equal protection and

special legislation provisions of the Illinois Constitution. Like

plaintiffs in the case at bar, the plaintiff in Wright argued that

the compensatory damages limit arbitrarily classified and

unreasonably discriminated against the most seriously injured

victims of medical malpractice. Like defendants in the case at

bar, the defendants in Wright argued that a compensatory

damage limit was necessary to manage a liability crisis,

specifically a "medical malpractice crisis." The plaintiff

maintained, however, that the burden of the legislative effort to

reduce or maintain malpractice insurance premiums arbitrarily

fell exclusively on those most deserving of compensation: the

severely injured.

The Wright court noted that unlike statutorily created causes

of action (see Hall v. Gillins, 13 Ill. 2d 26 (1958); Cunningham

v. Brown, 22 Ill. 2d 23 (1961)), the right to recover for injuries

arising from medical malpractice existed at common law.[fn3]

See Ritchey v. West, 23 Ill. 329 (1860). Thus, the limitations on

that right of action were subject to constitutional scrutiny.

Specifically, in Wright, this court concluded that the General

Assembly did not have the power to prescribe arbitrary

limitations on an injured plaintiff's compensatory damages. The

limitation on compensatory damages in medical malpractice

actions was determined to be arbitrary and a special law in

violation of the special legislation clause of the Illinois

Constitution of 1970. The damages limit conferred a special

privilege on medical malpractice tortfeasors by insulating them

from fully compensating plaintiffs for fairly assessed damages.

Consequently, relief to an injured plaintiff depended solely on

an arbitrary classification, in violation of the prohibition against

special legislation. Wright, 63 Ill. 2d at 329-30 .

Similarly, in Grace, this court held that a statute which

limited recovery for certain automobile accident victims

constituted an arbitrary and unreasonable legislative

classification in violation of the prohibition against special

legislation. At issue in Grace was a newly enacted article to the

Illinois Insurance Code (Ill. Rev. Stat. 1971, ch. 73, pars.

1065.150 through 1065.163). The plaintiffs brought an action for

injunctive relief against state officers to enjoin them from

expending funds appropriated for the enforcement of the new

article. The combined effect of certain provisions of the new

law was to limit an injured plaintiff's ability to recover

compensatory damages, including damages for pain and

suffering, depending on whether the party at fault was using the

automobile for commercial or personal purposes.

The defendants in Grace described the amendment to the

Insurance Code as a response to the growing public demand for

a change in the way society copes with the enormous legal,

social and economic problems produced by car accidents. The

defendants identified small personal injury actions as one of the

major evils of the system of compensating car accident victims.

Grace, 51 Ill. 2d at 484 . The defendants further maintained that

the studies regarding car accident compensation identified many

problems with the system of compensating injured individuals.

Specifically, the defendants maintained that the studies showed

the inequitable distribution of compensation among victims, the

excessive expense of the claim system, and the excessive burden

on limited judicial resources. According to the defendants, the

changes to the Insurance Code were rationally connected to

legitimate government concerns.

In determining whether the provisions at issue violated

special legislation and equal protection, the Grace court

assumed that the problems described by the defendants in fact

existed. However, the court reasoned, the fact that a problem

exists does not permit the adoption of an arbitrary or unrelated

means of addressing the problem. Grace, 51 Ill. 2d at 485 . In

rejecting the defendants' argument that the legislation was a

permissible exercise of legislative power, the Grace court stated,

"Unless this court is to abdicate its constitutional

responsibility to determine whether a general law can be

made applicable, the available scope for legislative

experimentation with special legislation is limited, and

this court cannot rule that the legislature is free to enact

special legislation simply because `reform may take one

step at a time.' [Citation.]" Grace, 51 Ill. 2d at 487 .

This court concluded that to the extent that recovery is

permitted or denied on an arbitrary basis, a special privilege was

granted in violation of the prohibition against special legislation.

Grace, 51 Ill. 2d at 487-90 .

In Grasse, this court invalidated a provision of the Worker's

Compensation Act that created arbitrary classifications. At issue

in Grasse was a provision which automatically transferred to an

employer, in certain cases, an employee's common law right of

action against a third-party tortfeasor. In Grasse, the plaintiff

and his employer filed claims against a private defendant to

recover damages stemming from an automobile collision which

was allegedly caused by the negligence of the defendant's

employee. Because both the plaintiff and defendant's employee

were acting in the course of their employment at the time of the

accident, paragraph 1 of section 29 of the Worker's

Compensation Act applied to the subsequent litigation. This

provision authorized the automatic transfer of the plaintiff-

employee's claim against the third-party tortfeasor to the

plaintiff's employer. The circuit court consequently dismissed

the plaintiff's claim against the third-party tortfeasor.

On appeal to this court, the plaintiff alleged, in part, that the

statute violated the special legislation clause of the Illinois

Constitution (Ill. Const. 1870, art. IV, sec. 22) because it created

arbitrary and unreasonable classifications. This court agreed,

holding that the statute created unreasonable classifications in

which the plaintiff's ability to recover complete compensation

was determined by fortuitous circumstances. The statute divided

injured employees into two arbitrary classes based solely on the

fortuity of whether or not the third-party tortfeasor was also

bound by the provision. One class was deprived of the right to

collect compensatory damages from the tortfeasor and the other

class, which was similarly situated, was conferred such right.

This court concluded that there was no substantial or rational

difference between the injured employees in the two classes and,

therefore, the statute offended the prohibition against special

legislation.

In addition to the unequal treatment of injured employees,

the Grasse court determined that the statute divided third-party

tortfeasors into two classes: those bound by the worker's

compensation provision, who were freed from paying

compensatory damages to employees of other entities under the

act, and all other tortfeasors, who remained liable for the full

amount of fairly assessed compensatory damages. The first class

of tortfeasors were only required to pay amounts sought by the

employer as reimbursement for worker's compensation

payments. In contrast, the second class of tortfeasors remained

liable to the plaintiff for the full amount of compensatory

damages assessed by a trier of fact. Therefore, the distinctions

were arbitrary and constituted a violation of the special

legislation clause. Grasse, 412 Ill. 2d at 199.

Defendants maintain that plaintiffs' reliance on Wright,

Grace, and Grasse is misplaced. According to defendants, these

cases were limited by Anderson v. Wagner, 79 Ill. 2d 295

(1979), in a way that renders their holdings inapplicable to the

legislation in the case at bar.

At issue in Anderson was section 21.1 of the Limitations

Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provided a

special statute of limitations period for medical malpractice

actions against physicians and hospitals. The plaintiffs in

Anderson contended that section 21.1 violated the due process

and equal protection provisions of the state and federal

constitutions, and the special legislation provision of the Illinois

Constitution. The plaintiff maintained that section 21.1 violated

the special legislation clause because it (1) set medical

malpractice apart from all other professional malpractice and (2)

conferred a special privilege upon only two classes of medical

health providers, physicians and hospitals. Following an

extensive analysis of the development of the discovery rule in

medical malpractice cases, and the impact on physicians and

hospitals, this court rejected the plaintiff's constitutional

challenge to the statute of limitations provision at issue.

In analyzing the plaintiff's challenges, the Anderson court

retraced the evolution of the "discovery rule" in medical

malpractice cases. Under the discovery rule, a cause of action

accrued when a person learned of his injury or reasonably

should have learned of it. Because the discovery rule came to be

applied extensively in medical malpractice cases, statutes of

limitation in existence no longer provided repose for malpractice

defendants. The discovery rule was perceived to be partly

responsible for the medical malpractice crisis because it created

a "long tail" of liability for medical malpractice defendants.

Thus, the statute of limitations provision at issue in Anderson

was enacted to place an outside limit on the applicability of the

discovery rule to physicians and hospitals. Anderson, 79 Ill. 2d

at 316-21. We find that Anderson is distinguishable from the

instant case because in Anderson, the General Assembly was

responding to judicial expansion of the discovery rule, which

had undermined the medical malpractice statute of limitation by

creating a tolling provision of potentially unlimited duration.

Defendants in the instant case also rely upon language in

Anderson which responded to critics of Wright. In dicta, the

Anderson court explained that Wright did not hold that all

statutory provisions creating medical malpractice review panels

were unconstitutional. The Anderson court also noted that

Wright's holding regarding the limit on economic damages was

consistent with American Bar Association standards which

recommend against any limitation on economic loss. Anderson,

79 Ill. 2d at 304 . However, this court in Anderson did not

consider the General Assembly's authority to place a limit on

compensatory damages for noneconomic injuries. We reject

defendants' argument that our decision in Anderson limits

Wright's application in the case at bar.

Plaintiffs argue that section 2--1115.1 merely stitches

together legislative classifications previously rejected in Wright,

Grasse and Grace, and then adds product liability cases.

According to plaintiffs, section 2--1115.1 contains three arbitrary

classifications that have no reasonable connection to the stated

legislative goals: (1) the limitation on noneconomic damages

distinguishes between slightly and severely injured individuals,

(2) the limitation on noneconomic damages arbitrarily

distinguishes between individuals with identical injuries, and (3)

the limitation arbitrarily distinguishes types of injury. At oral

argument, plaintiffs offered examples illustrating how the

limitation on noneconomic damages is disconnected from the

stated legislative purposes of providing rationality and

consistency to jury verdicts.

In the first example, it is assumed that three plaintiffs are

injured as a result of the same tortfeasor's negligence. Plaintiff

A is injured moderately, and suffers pain, disability and

disfigurement for a month. Plaintiff B is severely injured and

suffers one year of pain and disability. Plaintiff C is drastically

injured, and suffers permanent pain and disability. For purposes

of this example, it is further assumed that a jury awards

plaintiffs A and B $100,000 in compensatory damages for

noneconomic injuries. Plaintiff C receives $1 million for his

permanent, life-long pain and disability.

In the above hypothetical, section 2--1115.1 fails to provide

consistency or rationality to a jury's seemingly inconsistent

decision to award plaintiffs A and B the same amount for very

different noneconomic injuries. Therefore, the legislative goal of

providing consistency is not met by the damages cap. With

respect to plaintiff C, section 2--1115.1 arbitrarily and

automatically reduces the jury's award for a lifetime of pain and

disability, without regard to whether or not the verdict, before

reduction, was reasonable and fair.

The tortfeasors in this example are also treated differently,

without any justification. The tortfeasor who injures plaintiffs A

and B is liable for the full amount of fairly assessed

compensatory damages. In contrast, section 2--1115.1 confers a

benefit on the similarly situated tortfeasor who injures plaintiff

C. This tortfeasor pays only a portion of fairly assessed

compensatory damages because of the limitation in section 2--

1115.1. Therefore, the statute discriminates between slightly and

severely injured plaintiffs, and also between tortfeasors who

cause severe and moderate or minor injuries.

Plaintiffs suggest that section 2--1115.1 creates a second

arbitrary legislative classification by distinguishing between

injured individuals who suffer identical injuries. For example,

we are asked to assume that an individual loses his leg due to

a defectively manufactured forklift today, and he loses his other

leg in a car accident the following year. Both injuries are caused

by the negligent conduct of others. The injured individual brings

two different actions against two different defendants, and a jury

assesses compensatory damages for noneconomic injuries at

$400,000 in each case. Section 2--1115.1 would allow the

plaintiff to recover both verdicts in full. However, if the same

plaintiff lost both legs in a single accident due to the negligence

of another, and if the jury fairly assessed $800,000 in

compensatory damages for noneconomic injuries, then the cap

in section 2--1115.1 would eliminate a substantial portion of that

tortfeasor's liability, without regard to the facts of the case.

To illustrate the third arbitrary classification created by the

limitation on noneconomic damages in personal injury actions,

plaintiffs argue that section 2--1115.1 improperly discriminates

among types of injuries. Plaintiffs maintain that the legislative

statements concerning the supposed difficulties of assessing

damages for noneconomic injuries apply equally to all tort

claims for pure noneconomic loss, and not just those involving

death, bodily injury or property damage. Other torts that remain

unaffected by the legislation at issue are invasion of privacy,

defamation, intentional infliction of emotional distress, negligent

infliction of emotional distress, damage to reputation and breach

of fiduciary duty. The speculative nature of noneconomic

damages for these torts, which do not involve personal injury,

is not addressed by the cap in section 2--1115.1.

Plaintiffs maintain that the above illustrations demonstrate

the arbitrariness of the classifications created by section 2--

1115.1, in violation of the prohibition against special legislation.

Plaintiffs contend that the classifications contained within

section 2--1115.1 allow certain culpable tortfeasors to escape

liability for a portion of fairly assessed compensatory damages,

while requiring others to pay the full amount of assessed

damages. Similarly, certain injured plaintiffs are denied

compensatory damages, while other similarly situated injured

plaintiffs are awarded full compensation, without any rational

justification for the distinction.

Defendants raise a series of related arguments in opposition

to plaintiffs' contention that section 2--1115.1 is arbitrary and

not rationally related to a legitimate government interest.

Defendants contend that plaintiffs' arguments are "fatally

flawed" in that they are based on the erroneous assumption that

noneconomic injuries, which are difficult to assess, should be

monetarily compensable. Defendants further argue that section

2--1115.1 is rationally related to the legislative goal of reducing

systemic costs of the civil justice system, which may be

accomplished "one step at a time"; that the General Assembly

has the power to change the common law; and that other

jurisdictions have upheld statutory limitations on damages

similar to section 2--1115.1. We address each of defendants'

arguments in turn.

At oral argument, in rebuttal, defendants stated that "it is

not true that money can compensate for noneconomic damages,

[or] at least the legislature could find that that is the case."

Defendants do not dispute the general proposition that

noneconomic injuries are "real." Rather, defendants argue that

noneconomic damages are "inherently unmeasurable." Thus,

according to defendants, the legislature's adoption of an

"objective" limitation on noneconomic damages is reasonable

and must be upheld as a legitimate exercise of legislative

judgment.

Defendants' argument contradicts the statute under

consideration. Subsection (b) of section 2--1115.1 defines

noneconomic loss or noneconomic damages as "damages which

are intangible, including but not limited to damages for pain and

suffering, disability, disfigurement, loss of consortium and loss

of society." Subsection (c) provides that "compensatory

damages" or "actual damages" are "the sum of the economic and

noneconomic damages." Section 2--1115.1 itself demonstrates

that the legislature believed that remuneration is an appropriate

means by which to compensate tort victims for their

noneconomic injuries. Therefore, the application of a limit to the

noneconomic damages of some, but not all, injured plaintiffs is

not justified by the difficulty of assessing such damages.

We do not disagree with defendants' assertion that damages

for noneconomic injuries are difficult to assess. We simply

determine that it does not follow that the difficulty in

quantifying compensatory damages for noneconomic injuries is

alleviated by imposing an arbitrary limitation or cap on all

cases, without regard to the facts or circumstances. Further, the

preamble to Public Act 89--7 states that "[i]t is the public policy

of this State that persons injured through the negligence or

deliberate misconduct of another be afforded a legal mechanism

to seek compensation for their injuries." Pub. Act 89--7, eff.

March 9, 1995. There is universal agreement that the

compensatory goal of tort law requires that an injured plaintiff

be made whole. See, e.g., Peterson v. Lou Bachrodt Chevrolet

Co., 76 Ill. 2d 353, 363 (1979); 25 C.J.S. Damages sec. 17

(1966). In this case, the arbitrary and automatic cap on

compensatory damages for noneconomic injuries in only certain

tort cases parallels the harm of the arbitrary classifications

stricken by this court in Wright, Grace, and Grasse. Therefore,

the $500,000 limit does not reestablish the credibility of the tort

system, and does nothing to assist the trier of fact in

determining appropriate damages for noneconomic injuries. The

limitation actually undermines the stated goal of providing

consistency and rationality to the civil justice system.

We reject defendants' argument that the damages cap in

section 2--1115.1 should be upheld because reform can be

undertaken "one step at a time." As previously noted in this

opinion, this court has rejected the "one step" rationale to

support a classification if the classification is arbitrary. Grace,

51 Ill. 2d at 487 . We need not address this justification further.

Defendants also argue that the legislative interest in

reducing the "systemic costs of tort liability" is sufficient to

overcome plaintiffs' special legislation challenge. The "systemic

costs of tort liability" are not defined in Public Act 89--7 and

we are uncertain as to the meaning and scope of these terms.

Even if we assume that the reduction of these undefined

systemic costs is a legitimate state interest, we do not discern

how the limiting of noneconomic damages in personal injury

actions may be considered rationally related to the achievement

of that interest. See Wright, 63 Ill. 2d 313 (rejecting defendants'

argument that lower insurance premiums and medical

malpractice costs for all recipients of medical care legitimately

offset the loss of compensatory damages to some malpractice

victims); Grace, 51 Ill. 2d at 487-88 (rejecting cost-based

justification for imposing limits on the recovery of personal

injury claims as to certain class of plaintiffs). Cf. Bernier, 113

Ill. 2d 219 (punitive damages cap upheld).[fn4] In the instant

case, we are unable to discern any connection between the

automatic reduction of one type of compensatory damages

awarded to one class of injured plaintiffs and a savings in the

systemwide costs of litigation. Even assuming that a systemwide

savings in costs were achieved by the cap, the prohibition

against special legislation does not permit the entire burden of

the anticipated cost savings to rest on one class of injured

plaintiffs. E.g., Grace, 51 Ill. 2d at 485 . We therefore reject

defendants' systemic costs rationale as a basis for upholding

section 2--1115.1.

Defendants additionally argue that the General Assembly

has the power to change the common law and, therefore, the

limitation on compensatory damages is constitutional. See V.

Schwartz, M. Behrens & M. Taylor, Illinois Tort Law: A Rich

History of Cooperation and Respect Between the Courts and the

Legislature, 28 Loy. U. Chi. L.J. 745 (1997). For example,

defendants cite to the Worker's Compensation Act as an

instance of the legislature's valid exercise of the police power

in limiting liability of an employer for injuries sustained by an

employee during the course of his or her employment. Grand

Trunk Western Ry. Co. v. Industrial Comm'n, 291 Ill. 167

(1919).

Plaintiffs do not dispute that the legislature has the power

to change the common law, and we do not question defendants'

argument insofar as it stands for the general principle that the

General Assembly may alter the common law and change or

limit available remedies. This principle is well grounded in the

jurisprudence of this state. See, e.g., Grand Trunk Western Ry.

Co., 291 Ill. 167 . However, defendants' argument assumes too

much. The legislature is not free to enact changes to the

common law which are not rationally related to a legitimate

government interest. The General Assembly's authority to

exercise its police power by altering the common law and

limiting available remedies is also dependent upon the nature

and scope of the particular change in the law. We hold in the

case at bar that the statutory cap on compensatory damages for

noneconomic losses is arbitrary.

Finally, defendants support their contention that the

limitation on noneconomic damages in section 2--1115.1 is

constitutional by referring to several other state court decisions

which have upheld damage limitations. See Fein v. Permanente

Medical Group, 38 Cal. 3d 137 , 695 P.2d 665 , 211 Cal. Rptr.

368 (1985); Samsel v. Wheeler Transport Services, Inc., 246

Kan. 336, 789 P.2d 541 (1990); Murphy v. Edmonds, 325 Md.

342, 601 A.2d 102 (1992); Adams v. Children's Mercy Hospital,

832 S.W.2d 898 (Mo. 1992); Greist v. Phillips, 322 Or. 281 ,

906 P.2d 789 (1995); Robinson v. Charleston Area Medical

Center, Inc., 186 W. Va. 720 , 414 S.E.2d 877 (1991); Johnson

v. St. Vincent Hospital, Inc., 273 Ind. 374 , 404 N.E.2d 585

(1980); Etheridge v. Medical Center Hospitals, 237 Va. 87 , 376

S.E.2d 525 (1989); Butler v. Flint Goodrich Hospital of Dillard

University, 607 So. 2d 517 (La. 1992); Prendergast v. Nelson,

199 Neb. 97 , 256 N.W.2d 657 (1977); see also Davis v.

Omitowoju, 883 F.2d 1155 (3d Cir. 1989).

However, other jurisdictions have held statutory damages

caps unconstitutional. Moore v. Mobile Infirmary Ass'n, 592 So.

2d 156, 158 (Ala. 1991); Morris v. Savoy, 61 Ohio 684 , 688-89,

576 N.E.2d 765 , 769 (1991), Arneson v. Olson, 270 N.W.2d

125, 135-36 (N.D. 1978); Lucas v. United States, 757 S.W.2d

687, 690-92 (Tex. 1988); Sofie v. Fibreboard Corp., 112 Wash.

2d 636, 771 P.2d 711 (1989). The amount of noneconomic

damages caps that have been invalidated in other states varies.

See, e.g., Smith v. Department of Insurance, 507 So. 2d 1080,

1088-89 (Fla. 1987) ($450,000 cap); Brannigan v. Usitalo, 134

N.H. 50, 58, 587 A.2d 1232, 1236-37 (1991) ($875,000 cap).

The statutory caps on damages which have been enacted by

other states vary considerably in scope and effect. Similarly, the

state constitutional provisions and precedents under which these

damage caps have been challenged are unique to each

jurisdiction. Although the decisions from other states may be

instructive in some respects, we believe that these decisions are

of limited assistance in answering the specific question of

whether section 2--1115.1 offends the special legislation clause

of the Illinois Constitution. We hold that it does.

C. Separation of Powers

Plaintiffs also assert that section 2--1115.1 violates the

separation of powers clause (Ill. Const. 1970, art. II, sec. 1) by

improperly delegating to the legislature the power of remitting

verdicts and judgments, which is a power unique to the

judiciary. See Ill. Const. 1970, art. VI, sec. 1 (judicial power is

vested in the supreme, appellate and circuit courts). According

to plaintiffs, because section 2--1115.1 limits damages for

noneconomic injuries, the section violates the constitutional

separation of powers doctrine by invading the province of the

judiciary and imposing a "one-size-fits-all `legislative

remittitur.' " Plaintiffs argue that the cap on damages

contravenes the traditional authority of the courts to assess, on

a case-by-case basis, whether a jury's damages award is

excessive.

Defendants disagree with plaintiffs' characterization of the

operation of section 2--1115.1 as a legislative remittitur. They

argue that the damages cap merely "sets an outer parameter by

which wholly subjective damages are limited" and in no respect

displaces traditional judicial functions.

Under our constitution, the three branches of government--

legislative, executive, and judicial--are separate and one branch

shall not "exercise powers properly belonging to another." Ill.

Const. 1970, art. II, sec. 1. Although our state constitution does

not define legislative, executive, and judicial power (People v.

Walker, 119 Ill. 2d 465, 473 (1988)), in "both theory and

practice, the purpose of the [separation of powers] provision is

to ensure that the whole power of two or more branches of

government shall not reside in the same hands." Walker, 119 Ill.

2d at 473; Knuepfer v. Fawell, 96 Ill. 2d 284, 292 (1983).

Each branch of government has its own unique sphere of

authority that cannot be exercised by another branch. See, e.g.,

Murneigh v. Gainer, 177 Ill. 2d 287, 312-13 (1997) (holding

invalid an attempted delegation of an executive or administrative

function to the judicial branch); Wright v. Central Du Page

Hospital Ass'n, 63 Ill. 2d 313, 322 (1976) (holding invalid an

attempted delegation of judicial power to nonjudicial member of

medical malpractice review board); Fields Jeep-Eagle, Inc. v.

Chrysler Corp., 163 Ill. 2d 462, 478-79 (1994) (holding invalid

attempted delegation of legislative or administrative

decisionmaking to the judiciary); see also Agran v. Checker Taxi

Co., 412 Ill. 145, 149 (1952) ("If the power is judicial in its

nature, it necessarily follows that the legislature is expressly

prohibited from exercising it").

This court has often recognized that the separation of the

three branches of government is not absolute and unyielding.

See, e.g., Strukoff v. Strukoff, 76 Ill. 2d 53, 58 (1979). The

separation of powers clause is not contravened merely because

separate spheres of governmental authority may overlap. County

of Kane v. Carlson, 116 Ill. 2d 186, 208 (1987). However, it

should be emphasized that the determination of when, and under

what circumstances, a violation of the separation of powers

doctrine has occurred remains with the judiciary. See, e.g.,

Murneigh, 177 Ill. 2d at 303 ; People v. Warren, 173 Ill. 2d 348

(1996). In furtherance of the authority of the judiciary to carry

out its constitutional obligations, the legislature is prohibited

from enacting laws that unduly infringe upon the inherent

powers of judges. See, e.g., In re S.G., 175 Ill. 2d 471, 487

(1997); Walker, 119 Ill. 2d at 474 ; People v. Bainter, 126 Ill. 2d

292, 303 (1989); Agran, 412 Ill. at 149 .

For over a century it has been a 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. E.g., Hansen v. Boyd, 161 U.S. 397,

412, 40 L. Ed. 746, 751 , 16 S. Ct. 571, 576 (1896); Dimick v.

Schiedt, 293 U.S. 474, 484-85 , 79 L. Ed. 603, 610 , 55 S. Ct.

296, 300 (1935). In Dimick, 293 U.S. at 486 , 79 L. Ed. at 611 ,

55 S. Ct. at 301 , the United States Supreme Court recognized

that remittitur of an excessive portion of a jury verdict is a

question of law for the court.

The practice of ordering a remittitur of excessive damages

has long been recognized and accepted as part of Illinois law.

See, e.g., Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997);

Lee v. Chicago Transit Authority, 152 Ill. 2d 432 (1992); Carter

v. Kirk, 256 Ill. App. 3d 938 (1993). The remittitur doctrine has

been acknowledged as promoting both the administration of

justice and the conclusion of litigation. See Carter, 256 Ill. App.

3d at 947; McElroy v. Patton, 130 Ill. App. 2d 872, 877 (1970).

This court has stated that "[a]n award of damages will be

deemed excessive if it falls outside the range of fair and

reasonable compensation or results from passion or prejudice, or

if it is so large that it shocks the judicial conscience."

Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). However,

a damages award will not be subject to remittitur where it "falls

within the flexible range of conclusions which can reasonably

be supported by the facts" because the assessment of damages

is primarily an issue of fact for jury determination. Lee, 152 Ill.

2d at 470; see also Barry v. Owens-Corning Fiberglas Corp.,

282 Ill. App. 3d 199, 207 (1996) (noting that evaluations of a

plaintiff's pain and suffering depend on jurors' combined

wisdom and experience); Riley v. Koneru, 228 Ill. App. 3d 883,

887-88 (1992) (noting reluctance of courts to interfere with

damages awards unless the award is the result of passion or

prejudice) .

The deference given to the careful deliberative process of

the jury is overcome if, after examining the evidence presented

at trial, the trial judge determines that the jury verdict is

excessive. In such a case, "the judge may not allow the verdict

to stand but must act to correct the injustice; and the failure to

do so is, itself, error." Haid v. Tingle, 219 Ill. App. 3d 406, 410

(1991). Under such circumstances the court has a duty to correct

the excessive verdict, and may do so by ordering a remittitur of

a portion of the damages, with the plaintiff's consent. As a

check on excessive verdicts, therefore, the inherent power of the

court to order a remittitur or, if the plaintiff does not consent, a

new trial, is essential to the judicial management of trials. See

Haid, 219 Ill. App. 3d at 412 .

Case law reflects that the application of remittitur should be

considered on a case-by-case basis because the evidence and

circumstances supporting verdicts must be carefully examined

before a jury's assessment of damages is reduced. See

Richardson v. Chapman, 175 Ill. 2d 98 (1997) (remitting one

plaintiff's $11 million award for future medical expenses by $1

million and reducing by half the other plaintiff's pain and

suffering award). See also Carter v. Kirk, 256 Ill. App. 3d 938

(1993) (finding that trial court properly granted $20,000

remittitur where the jury's verdict was excessive because

medical evidence failed to support the plaintiff's claims). In

other circumstances, courts have declined to enter a remittitur,

even in cases involving large awards, because the evidence

supported the jury's verdicts. Cf. Holston v. Sisters of the Third

Order of St. Francis, 165 Ill. 2d 150 (1995) (declining to reduce

as excessive a $7.3 million verdict in a wrongful death and

survival case); Barry, 282 Ill. App. 3d at 208 (declining to apply

a remittitur to $12 million verdict).

In the case at bar, we conclude that section 2--1115.1

undercuts the power, and obligation, of the judiciary to reduce

excessive verdicts. In our view, section 2--1115.1 functions as

a "legislative remittitur." Unlike the traditional remittitur power

of the judiciary, the legislative remittitur of section 2--1115.1

disregards the jury's careful deliberative process in determining

damages that will fairly compensate injured plaintiffs who have

proven their causes of action. The cap on damages is mandatory

and operates wholly apart from the specific circumstances of a

particular plaintiff's noneconomic injuries. Therefore, section 2--

1115.1 unduly encroaches upon the fundamentally judicial

prerogative of determining whether a jury's assessment of

damages is excessive within the meaning of the law.

We additionally note that the cap provision of section 2--

1115.1 forces the successful plaintiff to forgo part of his or her

jury award without the plaintiff's consent, in clear violation of

the well-settled principle that a trial court does not have

authority to reduce a damages award by entry of a remittitur if

the plaintiff objects or does not consent. See, e.g., Haid, 219 Ill.

App. 3d at 411. A plaintiff's refusal to consent to remittitur will

result in the ordering of a new trial. See McCausland v.

Wonderly, 56 Ill. 410 (1870); Congregation of the Passion, Holy

Cross Province v. Touche Ross & Co., 224 Ill. App. 3d 559,

588 (1991). As such, the statutory scheme unduly expands the

remittitur doctrine. See P. Weiss, Reforming Tort Reform: Is

There Substance to the Seventh Amendment, 38 Cath. U.L. Rev.

737, 757 (1989).

We find persuasive the discussion of legislative remittitur

contained in an opinion of the Supreme Court of Washington,

Sofie v. Fireboard Corp., 112 Wash. 2d 636 , 771 P.2d 711

(1989). In that case, the court found unconstitutional

Washington's statutory limit on noneconomic damages. The

Sofie court held the statutory damages cap unconstitutional on

the basis that it violated the plaintiffs' right to a trial by jury, an

issue we do not determine in the instant case. The court's

secondary discussion, which considered the plaintiffs' separation

of powers challenge, is instructive to our separation of powers

analysis.

In addressing the plaintiffs' arguments that the statutory

damages cap operated as a "legislative remittitur" in violation of

the separation of powers doctrine, the Washington Supreme

Court observed that the statute "directly changes the outcome of

a jury determination *** by taking a jury's finding of fact and

altering it to conform to a predetermined formula." Sofie, 112

Wash. 2d at 653, 771 P.2d at 720. The court observed that

remittitur is wholly within the power of the trial judge, and it is

the judge who is empowered to make the legal conclusion, on

a case-by-case basis, that the jury's damage award is excessive

in light of the evidence. Consequently, because the "[l]egislature

cannot make such case-by-case determinations," separation of

powers concerns would be violated by the "legislative attempt

to mandate legal conclusions." Sofie, 112 Wash. 2d at 654 , 771

P.2d at 721. Although the Sofie court did not base its decision

squarely upon separation of powers concerns, the court

observed, "[T]he [statutory damages] limit may, indeed, violate

the separation of powers." Sofie, 112 Wash. 2d at 654 , 771 P.2d

at 721.

In the case at bar, we conclude that section 2--1115.1

invades the power of the judiciary to limit excessive awards of

damages. The courts are constitutionally empowered, and indeed

obligated, to reduce excessive verdicts where appropriate in light

of the evidence adduced in a particular case. Section 2--1115.1,

however, reduces damages by operation of law, without regard

to the specific circumstances of individual jury awards.

Although legislative limits upon certain types of damages may

be permitted, such as damages recoverable in statutory causes

of action, we hold that the cap in section 2--1115.1 violates the

separation of powers clause of the Illinois Constitution.

In summary, we hold that the compensatory damages cap

of section 2--1115.1 violates the constitutional prohibition

against special legislation and also violates the separation of

powers clause. Because we have so determined, we decline to

address the parties' additional arguments questioning the validity

of section 2--1115.1 as violating the right to a jury trial and the

right to a certain remedy under the Illinois Constitution.

III. Section 3.5 of the Joint Tortfeasor Contribution Act

Plaintiffs challenge the constitutionality of the "contribution

credit" created by Public Act 89--7. This credit is set forth in a

new provision, section 3.5(a), which has been added to the Joint

Tortfeasor Contribution Act (740 ILCS 100/3.5(a) ( West 1996 )).

Section 3.5(a) provides:

"sec. 3.5. Contribution against the plaintiff's

employer.

(a) If a tortfeasor brings an action for contribution

against the plaintiff's employer, the employer's liability

for contribution shall not exceed the amount of the

employer's liability to the plaintiff under the Workers'

Compensation Act or the Workers' Occupational

Diseases Act. The tortfeasor seeking contribution from

the plaintiff's employer is not entitled to recover money

from the employer. The tortfeasor shall receive a credit

against his or her liability to the plaintiff in an amount

equal to the amount of contribution, if any, for which

the employer is found to be liable to that tortfeasor,

even if the amount exceeds the employer's liability

under the Workers' Compensation Act or the Workers'

Occupational Diseases Act." 740 ILCS 100/3.5(a) (West

1996).

The circuit court held that section 3.5(a) violated the due

process and equal protection clause of the Illinois Constitution

(Ill. Const. 1970, art. I, sec. 2), the right to a certain remedy (Ill.

Const. 1970, art. I, sec. 12), and the separation of powers

provision (Ill. Const. 1970, art. II, sec. 1). The court concluded

that the section would deprive an injured party of "full

compensation due to [its] constitutional infirmities." The court

also noted that "working mathematically through different

scenarios demonstrates that illogical and surely unintended

results occur from [applying the principles of section 3.5(a)]."

Initially, we note the fundamental inconsistency between

section 3.5(a) and the amendments made by Public Act 89--7 to

section 2--1117 of the Code of Civil Procedure (735 ILCS 5/2--

1117 ( West 1996 )). The amended version of section 2--1117

abolishes the doctrine of joint and several liability in all actions

brought on account of death, bodily injury to person, or physical

damage to property. The doctrine of joint and several liability

is replaced in these actions with proportionate several liability,

whereby a defendant is liable "only for that proportion of

recoverable economic and non-economic damages, if any, that

the amount of that defendant's fault, if any, bears to the

aggregate amount of fault of all other tortfeasors." 735 ILCS

5/2--1117 ( West 1996 ).[fn5] At the same time, however,

section 2(b) of the Contribution Act, which is unaltered by

Public Act 89--7, provides that "[t]he right of contribution exists

only in favor of a tortfeasor who has paid more than his pro rata

share of the common liability." 740 ILCS 100/2(b) ( West 1996 ).

Thus, because a tortfeasor is only liable for his or her

proportionate share of damages as defined by section 2--1117,

it appears that a tortfeasor would never need, or be able, to

pursue a contribution action against an employer and, therefore,

that section 3.5(a) could never be given effect. See R. Michael,

Joint Liability: Should It Be Reformed or Abolished?--The

Illinois Experience, 27 Loy. U. Chi. L.J. 867 , 910 (1996); S.

O'Neil, A New Day, The Civil Justice Reform Amendments of

1995, 9 CBA Rec. at 18, 28 (May 1995) ("Contribution claims

against employers are now technically unnecessary because a

defendant's liability is limited to his own percentage of fault");

see also N.M. Stat. Ann. sec. 41--3A--1(E) (Michie 1996)

(expressly noting that defendants who are subject to

proportionate several liability are not entitled to contribution);

Ind. Code Ann. sec. 34--4--33--7 (Michie 1986).

The legislature's enactment of section 3.5(a) and

simultaneous adoption of proportionate several liability in

section 2--1117 raises a serious question as to whether, on the

basis of this conflict alone, the section 3.5(a) credit must be

stricken. We need not resolve this issue, however, for even if we

assume that the two provisions can coexist, we determine that

section 3.5(a) is invalid.

The first sentence of section 3.5(a) states that an employer's

"liability for contribution" is limited to the amount of the

employer's liability to the plaintiff under the Workers'

Compensation Act (820 ILCS 305/1 et seq. ( West 1996 )), or the

Workers' Occupational Diseases Act (820 ILCS 310/1 et seq.

( West 1996 )). Standing alone, this sentence would be a

codification of this court's decision in Kotecki v. Cyclops

Welding Corp., 146 Ill. 2d 155 (1991). However, the next two

sentences of section 3.5(a) negate the meaning of the first

sentence. The second sentence of section 3.5(a) states that a

tortfeasor seeking contribution from an employer may not

receive money from that employer. The third sentence then

begins by stating that the tortfeasor, instead of receiving money,

will receive a credit for the "amount of contribution" for which

the employer is "found to be liable" to the tortfeasor. This credit

is to be applied against the tortfeasor's liability to the plaintiff.

Because the first sentence of section 3.5(a) limits the

employer's "liability for contribution" to the employer's

workers' compensation liability, one might reasonably assume

that the amount of the credit in the third sentence, which is

defined as being equal to the "amount of contribution" for which

the employer is "found to be liable," would also be equal to the

employer's workers' compensation liability. However, this is not

the case. The final clause of the third sentence unequivocally

states that the amount of the credit may exceed the employer's

workers' compensation liability. Thus, section 3.5(a) is not only

inconsistent with section 2--1117, it is also internally

inconsistent: if the second and third sentences of section 3.5(a)

are given effect, the first sentence is rendered meaningless.

The internal contradiction within section 3.5(a) further

suggests that a consistent and intelligible construction of the

provision may not be possible. Again, however, we need not

decide whether the section 3.5(a) credit must be invalidated on

this basis alone. Even if the second and third sentences of

section 3.5(a) are enforced to the exclusion of the first sentence,

the credit remains invalid.

Plaintiffs contend that if the section 3.5(a) credit is given

effect, then an employee's recovery from a third-party tortfeasor

will be unjustifiably subjected to a "double reduction." Plaintiffs

maintain that this double reduction will occur because of the

combined effect of the section 3.5(a) credit and the

proportionate several liability of section 2--1117. According to

plaintiffs, the employee's recovery from the third-party

tortfeasor would first be reduced by the percentage of the

employer's comparative fault because section 2--1117 makes the

defendant only severally liable. Then, because the section 3.5(a)

credit may exceed the employer's workers' compensation

liability, the employee's recovery would be reduced again by the

percentage of the employer's fault. Thus, plaintiffs argue that in

an action by an employee against a third-party tortfeasor, the

employee will bear the burden of his employer's fault twice. See

27 Loy. U. Chi. L.J. at 912.

As an illustration of how the double reduction would occur

in practice, plaintiffs offer the following examples. Consider an

action involving an employee plaintiff, an employer, and a third-

party tortfeasor. Assume that the plaintiff is awarded $500,000

in damages and that the tortfeasor and the employer are each

50% at fault. Pursuant to the amended version of section 2--

1117, the tortfeasor would be liable only for his or her

proportionate share of the damages, or $250,000. Then, under

section 3.5(a), the tortfeasor would obtain a credit against his or

her liability to the plaintiff in an amount equal to the employer's

proportionate share of the damages, in this case, 50% or

$250,000. Thus, because $250,000 minus $250,000 equals zero,

the tortfeasor would incur no liability to the plaintiff.

A similar situation occurs when the contributory fault of the

plaintiff and the employer's fault together equals 50% or more.

Assume the same verdict of $500,000. Further assume that the

plaintiff's percentage of contributory fault is 10%, the

tortfeasor's percentage of fault is 50%, and the employer's

percentage of fault is 40%. The $500,000 verdict would first be

reduced by the plaintiff's degree of contributory fault. This

reduction would be 10% of $500,000, or $50,000. The tortfeasor

is liable for 50% of the verdict, or $250,000, but then gets a

credit for the amount of liability allocated to the employer (in

this example, 40%, or $200,000). Thus, the tortfeasor, whose

percentage of fault is 50%, is liable for only $50,000, or 10%

of the total damages.

Plaintiffs argue that in both of the examples above, the

employee's recovery from the third-party tortfeasor is subjected

to a double reduction. Plaintiffs maintain that this double

reduction is arbitrary and discriminatory, and in violation of

principles of due process and equal protection.

Defendants do not contend that the double reduction effect

is constitutional. Instead, defendants assert that the section 3.5(a)

credit should be construed in a limited fashion so that the

double reduction will not occur. Specifically, defendants

maintain that the section 3.5(a) credit should be available only

in those situations where the third-party tortfeasor settles with

the plaintiff for an amount greater than his or her proportionate

share of liability. In these situations, according to defendants,

the proportionate several liability of section 2--1117 would not

apply. Thus, the application of the section 3.5(a) credit to the

settlement amount would not produce a double reduction.

We do not believe that this construction of section 3.5(a) is

permitted by the statute. Under section 3.5(a), a third-party

tortfeasor seeking contribution from an employer may not

receive money. Instead, the tortfeasor receives a credit which is

applied against the tortfeasor's "liability to the plaintiff."

However, once the tortfeasor settles with the plaintiff, the

tortfeasor is no longer liable for the plaintiff's damages. Thus,

if the tortfeasor settles, there is no liability to which the credit

can be applied. Therefore, under the plain language of the

statute, section 3.5(a) cannot apply to those situations where the

third-party tortfeasor settles with the plaintiff. See also 27 Loy.

U. Chi. L.J. at 910 n.257.

Defendants also assert that, as a practical matter, the double

reduction will never occur. They point out that under section 2--

1117, a tortfeasor will never be liable for more than his or her

proportionate share of the damages and, therefore, will never

meet the threshold requirement for contribution. See 740 ILCS

100/2(b) ( West 1992 ). According to defendants, the double

reduction effect described by plaintiffs is merely a hypothetical

event which will not happen in practice.

Defendants are correct to point out that, logically, the

section 3.5(a) credit cannot exist in the face of the proportionate

several liability of section 2--1117, but this fact only serves to

highlight the conflict between the two provisions. Furthermore,

while defendants' argument that the section 3.5(a) credit will

never occur resolves the conflict with section 2--1117 and the

internal contradiction within section 3.5(a), it also renders the

second and third sentences of section 3.5(a) a complete nullity,

in violation of well-established principles of statutory

construction. See, e.g., Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189

(1990) ("A statute should be construed so that no word or

phrase is rendered superfluous or meaningless"); 2A N. Singer,

Sutherland on Statutory Construction sec. 46.06 (5th ed.

1993).[fn6]

Section 3.5(a) was discussed only briefly during the debate

on House Bill 20 and the comments which were offered provide

no guidance in resolving the ambiguities of the provision. See

89th Ill. Gen. Assem., House Proceedings, February 16, 1995,

at 53-57, 129-30. Accordingly, we conclude that the credit set

forth in the second and third sentences of section 3.5(a) is either

arbitrary and unconstitutional, as plaintiffs propose, or entirely

superfluous, as defendants propose. In either case, the section

3.5(a) credit is invalid and must be stricken.

IV. The Abolition of Joint and Several Liability

The common law doctrine of joint and several liability

provides, in general, that when two or more defendants

tortiously contribute to the same, indivisible injury, each

defendant may be held jointly and severally liable for the entire

injury. See generally 3 F. Harper, F. James & O. Gray, Torts,

secs. 10.1, 10.2 (2d ed. 1986); W. Keeton, Prosser & Keeton on

Torts sec. 47, secs. 50 through 52 (5th ed. 1984); Coney v.

J.L.G. Industries, Inc., 97 Ill. 2d 104, 119-20 (1983).

Significantly, under this doctrine, the plaintiff may recover

compensation for the full amount of the injury from any one of

defendants responsible for the injury. Coney, 97 Ill. 2d at 119 -

20.

As noted previously, Public Act 89--7 eliminates the

doctrine of joint and several liability in all actions brought on

account of death, bodily injury to person, or physical damage to

property. In amendments made to section 2--1117 of the Code

of Civil Procedure, Public Act 89--7 replaces joint and several

liability with proportionate several liability. The amended

version of section 2--1117 provides in full:

"sec. 2--1117. Several liability.

(a) In any action brought on account of death, bodily

injury to person, or physical damage to property in

which recovery is predicated upon fault as defined in

Section 2--1116, a defendant is severally liable only and

is liable only for that proportion of recoverable

economic and non-economic damages, if any, that the

amount of that defendant's fault, if any, bears to the

aggregate amount of fault of all other tortfeasors, as

defined in Section 2--1116, whose fault was a proximate

cause of the death, bodily injury, economic loss, or

physical damage to property for which recovery is

sought.

(b) Notwithstanding the provisions of subsection (a),

in any healing art malpractice action based on

negligence or wrongful death, any defendants found

liable shall be jointly and severally liable if the

limitations on non-economic damages in Section 2--

1115.1 of this Act are for any reason deemed or found

to be invalid." 735 ILCS 5/2--1117 ( West 1996 ).

The circuit court concluded that, with "absolute certainty,"

section 2--1117 deprives the citizens of Illinois of their right to

"find a certain remedy in the laws for all injuries and wrongs"

(Ill. Const. 1970, art. I, sec. 12). The court further determined

that section 2--1117 " `unreasonably mandates an allocation of

percentages of negligence to nonparties without any kind of

procedural safeguard' " (quoting Newville v. State of Montana

Department of Family Services, 267 Mont. 237, 252 , 883 P.2d

793, 802-03 (1994)) and, hence, violates the constitutional right

to due process (Ill. Const. 1970, art. I, sec. 2). The circuit court

also held that section 2--1117 violates the separation of powers

provision of the Illinois Constitution (Ill. Const. 1970, art. II,

sec. 1) and the courts provision (Ill. Const. 1970, art. VI, sec.

1).

In part III of this opinion, we noted that section 2--1117 is

fundamentally at odds with the basic principles of the

Contribution Act and with section 3.5(a). Section 2--1117 also

directly conflicts with section 4 of the Contribution Act (740

ILCS 100/4 ( West 1996 )). Public Act 89--7 amended section 4

by adding the words "[e]xcept as provided in Section 3.5 of this

Act." Pub. Act 89--7, eff. March 9, 1995. Section 4 now

provides:

"sec. 4. Rights of Plaintiff Unaffected. Except as

provided in Section 3.5 of this Act, a plaintiff's right to

recover the full amount of his judgment from any one

or more defendants subject to liability in tort for the

same injury to person or property, or for wrongful

death, is not affected by the provisions of this Act." 740

ILCS 100/4 ( West 1996 ).

Section 4 evidently retains the doctrine of joint and several

liability because it expressly preserves a plaintiff's right to

obtain a full recovery of damages from any one or more

defendants, subject only to section 3.5. See Coney, 97 Ill. 2d at

123. Yet, at the same time, section 2--1117 unquestionably

abolishes joint and several liability. See 27 Loy. U. Chi. L.J. at

910 n.258. The simultaneous adoption and retention of two

substantive, contradictory doctrines in a single act creates a

significant obstacle to discerning the legislative intent behind

Public Act 89--7. Because section 2--1117 and section 4 of the

Contribution Act are diametrically opposed, any attempt to

harmonize them would necessarily be futile. Moreover, we

cannot assume that the retention of section 4 was merely an

oversight by the legislature because the section itself was

amended by Public Act 89--7. Hence, the legislature was

mindful of both section 2--1117 and section 4 at the time Public

Act 89--7 was passed and was presumptively aware of their

meanings.

As with the section 3.5(a) credit, the irreconcilable conflict

between section 2--1117 and section 4 raises a serious question

as to whether section 2--1117 can be enforced without

substantially, and improperly, rewriting Public Act 89--7. See,

e.g., Kozak v. Retirement Board of the Firemen's Annuity &

Benefit Fund, 95 Ill. 2d 211, 220 (1983) (statute may not be

rewritten to make it consistent with the court's view of sound

public policy). However, we need not resolve this issue. Like

the section 3.5(a) credit, we believe that even if section 2--1117

can be considered in isolation, it is invalid.

Defendants contend that the legislature's adoption of

proportionate several liability in section 2--1117 is a reasonable

legislative action, in light of problems which allegedly exist

with the doctrine of joint and several liability. According to

defendants, the foremost problem with joint and several liability

is that it unfairly holds tortfeasors liable for damages which they

do not cause.[fn7] In an argument dependent upon this

assertion, defendants also maintain that, under joint and several

liability, "deep pocket" defendants are improperly forced to bear

the costs of misconduct caused by others. Defendants assert that

these costs, which are initially borne by the "deep pocket"

defendant, are eventually passed on to others in the form of

higher consumer costs and increased taxes. See also IDC

Quarterly, at 7 (Second Quarter 1996) (contending that joint and

several liability inherently gives rise to economic inefficiency

and that the doctrine creates a "skewing of economic

incentives"). Defendants maintain that these failings of joint and

several liability are cured, either partially or fully, by

proportionate several liability. Therefore, according to

defendants, the legislature was justified in enacting section 2--

1117.

We note that the proposition which defendants offer as the

primary explanation for abolishing the doctrine of joint and

several liability, i.e., the assertion that the doctrine requires

tortfeasors to pay for more damages than they caused, is at odds

with this court's explanation of joint and several liability in

Coney, 97 Ill. 2d 104 . In Coney, this court was asked to decide,

inter alia, whether the doctrine of comparative negligence or

fault necessitated the elimination of joint and several liability.

Coney, 97 Ill. 2d at 110 . The defendant in Coney urged this

court to abandon joint and several liability, arguing that "[w]ith

the adoption of comparative negligence where damages are

apportioned according to each party's fault, *** it is no longer

rational to hold a defendant liable beyond his share of the total

damages." Coney, 97 Ill. 2d at 120 . The court rejected this

argument and held that the adoption of comparative negligence

did not mandate the abolition of joint and several liability. In so

holding, the Coney court stated:

"The feasibility of apportioning fault on a

comparative basis does not render an indivisible injury

`divisible' for purposes of the joint and several liability

rule. A concurrent tortfeasor is liable for the whole of

an indivisible injury when his negligence is a proximate

cause of that damage. *** The mere fact that it may be

possible to assign some percentage figure to the relative

culpability of one negligent defendant as compared to

another does not in any way suggest that each

defendant's negligence is not a proximate cause of the

entire indivisible injury." (Emphasis added.) Coney, 97

Ill. 2d at 121-22.

See also Burke v. 12 Rochschild's Liquor Mart, Inc., 148 Ill. 2d

429, 452-53 (1992) (recognizing that the adoption of

comparative negligence principles does not alter a joint

tortfeasor's full responsibility for a plaintiff's single, indivisible

injury).

The principle that tortfeasors who are held jointly and

severally liable are each fully responsible for the entirety of the

plaintiff's injury has been explained:

"Joint and several liability only applies to injuries for

which the defendant herself is fully responsible. She is

responsible for the entirety of some injury only if her

tortious behavior was an actual and proximate cause of

the entire injury. [Emphasis added.] She is not liable for

injuries, including separable portions of injuries, to

which she did not contribute. She is not liable unless

the tortious aspect of her conduct was an actual cause

of the injury. Moreover, even then, she is not liable if,

for reasons of policy or principle, her connection to the

injury is considered too remote or minimal to be

`proximate.'

A defendant's individual full responsibility for an

injury that was an actual and proximate result of her

tortious behavior is not diminished if some other

person's tortious behavior also was an actual and

proximate cause of the injury. Rather each defendant

whose tortious behavior was an actual and proximate

cause of the injury is individually fully responsible for

the entire injury. This is most obvious when a

defendant's tortious behavior was either necessary or

independently sufficient for the occurrence of the injury,

but it remains true whenever a defendant's tortious

behavior was an actual and proximate cause of the

injury.

* * *

[There is a fundamental difference] between each

[joint] defendant's individual full responsibility for the

damages that she tortiously caused and the comparative

responsibility percentages that are obtained by

comparing the defendants' individual full

responsibilities for the injury. [In situations where two

defendants are held jointly and severally liable for

negligently injuring a plaintiff] [n]either defendant ***

[is] merely `50% negligent' or `50% responsible.' Such

statements make as much sense as saying that someone

is `50% pregnant.' Nor did either defendant's

negligence cause or occasion only 50% of the plaintiff's

injury. Rather, each defendant was 100% negligent,

each defendant's negligence was an actual and

proximate cause of 100% of the injury, and each

defendant therefore is fully responsible for the entire

injury. Only when we compare their individual full

responsibilities, and assume that they were equally

negligent, does it make sense to say that each

defendant, when compared to the other, bears 50% of

the total comparative responsibility for the injury."

(Emphasis in original.) R. Wright, The Logic and

Fairness of Joint and Several Liability, 23 Memphis St.

U.L. Rev. 45, 54-56 (1992).

See also Restatement (Second) of Torts sec. 875, Comment c,

at 315 (1979) (under the rules of causation set forth by the

Restatement, "any one of a number of persons whose tortious

conduct is a substantial factor in causing harm is liable for the

harm in the absence of a superseding cause"); Lilly v. Marcal

Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 1113-16 (1997);

27 Loy. U. Chi. L.J. at 907-08; 21 U.C. Davis L. Rev. at 1141-

93.

This court's reasoning in Coney places into question

defendants' primary justification for abolishing joint and several

liability, i.e., that the doctrine requires some defendants to pay

for more damages than they caused or for which they are

responsible. We need not resolve, however, the conflict between

the Coney court's analysis of joint and several liability and

defendants' justification for abolishing the doctrine. We believe

that, because of the way in which it is drafted, section 2--1117

violates the special legislation clause of the Illinois Constitution.

Section 2--1117 purports to eliminate the doctrine of joint

and several liability. However, it does not do so completely.

Paragraph (b) of section 2--1117 automatically reinstates joint

and several liability for medical malpractice defendants if the

cap on noneconomic damages in section 2--1115.1 is

invalidated. Because we have held that the cap on noneconomic

damages is unconstitutional, section 2--1117(b) has been

activated.

The justification for imposing joint and several liability

upon medical malpractice defendants in the absence of a

damages cap is not immediately apparent. See J. Zimmerman,

P. Phillips & J. Bisceglia, A Review of the Illinois Civil Justice

Reform Act of 1995, 83 Ill. B.J. 282 , 285 (1995) ("Neither the

statutory language preserving joint and several liability in these

narrow circumstances nor the legislative purpose for doing so

are clear"). One reason for enacting section 2--1117(b) which

was given during the debate on House Bill 20 was that section

2--1117(b) was needed to achieve fairness for plaintiffs bringing

medical malpractice actions. Representative Cross, in response

to a question asking whether section 2--1117(b) was intended as

an exclusive benefit for the medical profession, explained that

the legislature was "trying to be fair to people that have services

of ... from [physicians], from nurses, from hospitals, anyone

associated with the health care industry." 89th Ill. Gen. Assem.,

House Proceedings, February 16, 1995, at 150 (statements of

Representative Cross).

The differences between proportionate several liability and

joint and several liability can have a significant, practical impact

upon tort plaintiffs. As one commentator has explained:

"If all the tortfeasors are available and solvent, joint

and several liability with contribution and proportionate

several liability both ultimately achieve the same result:

liability is apportioned among the multiple responsible

causes according [to] their comparative responsibility.

However, two major practical differences exist between

joint and several liability and proportionate several

liability. Under proportionate several liability, the

plaintiff can recover full compensation for his injury

only if he locates, sues, and collects from each party

who tortiously contributed to his injury. The plaintiff

therefore bears a substantial risk of receiving less than

full compensation if any tortfeasor is missing, insolvent,

or has an expected share of liability that would not be

worth the cost of litigation. In addition, the costs in

time and dollars of the multiple actions required to

obtain theoretically full compensation will substantially

delay and reduce the plaintiff's actual net compensation

even if all the tortfeasors can be sued successfully.

Conversely, under joint and several liability the risk of

insolvent or otherwise unavailable tortfeasors and the

expense of multiple actions is placed on the solvent

tortfeasors, if any, from whom the plaintiff initially

obtains compensation. The plaintiff can obtain full

compensation in the initial suit, and the tortfeasors who

pay the plaintiff must seek contribution or indemnity

from the other tortfeasors." U.C. Davis L. Rev. at 1142-

43.

See also Coney, 97 Ill. 2d at 123-24 .

Section 2--1117(b)'s abatement of proportionate several

liability in the context of medical malpractice arbitrarily benefits

only medical malpractice plaintiffs. These plaintiffs will not

have to bring several separate actions to recover full

compensation for their injuries. Nor will these plaintiffs bear the

risk of any tortfeasor being insolvent or otherwise unavailable.

However, other tort plaintiffs, whose injuries are not caused by

medical malpractice, will face these burdens. Neither the

plaintiffs nor the defendants in the case at bar have offered any

explanation as to why a select group of medical malpractice

plaintiffs should enjoy the practical benefits of joint and several

liability to the exclusion of all other tort plaintiffs. The

legislature, of course, may reasonably and justifiably be

concerned with achieving fairness for tort plaintiffs. But the

legislature may not adopt an arbitrary means of achieving that

goal. Grace, 51 Ill. 2d at 485 . If, in fact, a real need exists to

eliminate the harshness of several liability, then logically this

need exists for all plaintiffs who have suffered physical injury

or loss of property at the hands of joint tortfeasors, and not just

medical malpractice plaintiffs. The stated legislative goal of

achieving fairness does not justify singling out a select group of

tort plaintiffs for special treatment. Therefore, we conclude that

section 2--1117(b) arbitrarily and unconstitutionally provides a

special benefit for medical malpractice plaintiffs. See generally

Grasse, 412 Ill. 179 .

We further note that section 2--1117(b) contradicts the

stated purpose for enacting proportionate several liability. The

preamble to Public Act 89--7 declares that "it is the public

policy of this State that a defendant should not be liable for

damages in excess of its proportional share of fault." Plaintiffs

and defendants both agree that this policy was the basis for the

adoption of proportionate several liability in section 2--

1117(a).[fn8] Section 2--1117(b) inexplicably contradicts this

rationale. If the premise underlying Public Act 89--7's abolition

of joint and several liability is that the doctrine unfairly permits

a plaintiff to recover more in damages than is justified from an

individual defendant then, logically, that unfairness is only

exacerbated if there is no cap on the total amount of the

damages which the plaintiff can recover. Thus, the invalidation

of the cap on noneconomic damages does not justify or explain

the exemption provided by 2--1117(b) from the general rule of

several liability.

In sum, there is no discernable rational basis for treating

medical malpractice plaintiffs differently from other plaintiffs in

death, bodily injury and property damage cases. Moreover,

treating these plaintiffs differently in the absence of a damages

cap is directly contrary to the legislature's acknowledged

purpose for enacting proportionate several liability. The

proscription against special legislation prevents the legislature

from preferentially and arbitrarily discriminating in favor of a

select group. Village of Vernon Hills, 168 Ill. 2d at 122 .

Accordingly, we conclude that section 2--1117(b) violates the

special legislation clause of the Illinois Constitution.

Plaintiffs contend that section 2--1117(b) cannot be severed

from section 2--1117(a) and, therefore, that if section 2--1117(b)

is invalid then all of section 2--1117 must be stricken. For the

reasons stated more fully in part VI of this opinion, we agree

that without section 2--1117(b), the remainder of section 2--

1117 no longer reflects the legislature's intentions regarding the

scope and nature of its enactment of proportionate several

liability. See, e.g., Lee v. Retirement Board of the Policeman's

Annuity & Benefit Fund, 31 Ill. 2d 252 (1964). Therefore, we

hold that section 2--1117(b) cannot be severed from section 2--

1117(a) and that the entirety of section 2--1117 is

unconstitutional.

V. Constitutionality of the Physician-Patient Disclosure Rules

We next consider the constitutionality of certain provisions

of Public Act 89--7 that significantly alter existing discovery

practice in Illinois. Section 2--1003(a) of the Act imposes a

mandatory consent requirement by which every patient who files

a personal injury lawsuit is deemed to agree to the unlimited

disclosure of his or her medical history, records, and other

medical information to any party who has appeared in the action

and who requests such information. 735 ILCS 5/2--1003(a)

( West 1996 ). Section 2--1003, which is entitled "Discovery and

depositions" sets forth the disclosure requirements in

detail.[fn9] If the plaintiff fails to supply the requested consent

form within 28 days, the court is required, upon motion of a

defendant, to compel the plaintiff's compliance or to issue an

order of involuntary dismissal of the plaintiff's action. The

mandatory consent of section 2--1003 operates as a waiver of

any privilege between the injured person and each health care

provider who has furnished care at any time. The consent or

waiver extends to ex parte conferences between the plaintiff's

treating physicians or other health care personnel and the

defendant and his or her representatives. As such, section 2--

1003(a) is directly contrary to what has been referred to as the

"Petrillo doctrine," which prohibits defendants and their

attorneys from engaging in ex parte discussions with the injured

plaintiff's treating physicians. Petrillo v. Syntex Laboratories,

Inc., 148 Ill. App. 3d 581 (1986).

We note that the prior version of section 2--1003 consisted

of five paragraphs, the first of which provided in its entirety:

"Discovery, admissions of fact and of genuineness of documents

and answers to interrogatories shall be in accordance with

rules." 735 ILCS 5/2--1003(a) (West 1992). This provision has

been retained as subsection (a--1) of the amended statute and the

remaining provisions of the prior statute have also been retained.

Public Act 89--7 adds a new subsection to the discovery and

depositions statute, which provides in its entirety:

"(a) Any party who by pleading alleges any claim for

bodily injury or disease, including mental health injury

or disease, shall be deemed to waive any privilege

between the injured person and each health care

provider who has furnished care at any time to the

injured person. `Health care provider' means any person

or entity who delivers or has delivered health care

services, including diagnostic services, and includes, but

is not limited to, physicians, psychologists,

chiropractors, nurses, mental health workers, therapists,

and other healing art practitioners. Any party alleging

any such claim for bodily or mental health injury or

disease shall, upon written request of any other party

who has appeared in the action, sign and deliver within

28 days to the requesting party a separate Consent

authorizing each person or entity who has provided

health care at any time to the allegedly injured person

to:

(1) furnish the requesting party or the party's

attorney a complete copy of the chart or record of

health care in the possession of the provider,

including reports sent to any third party, including

any records generated by other health care providers

and in the possession of the health care provider, and

including radiographic films of any type;

(2) permit the requesting party or the party's

attorney to inspect the original chart or record of

health care during regular business hours and at the

regular business location of the health care provider,

upon written request made not less than 7 days prior

to the inspection;

(3) accept and consider charts and other records of

health care by others, radiographic films, and

documents, including reports, deposition transcripts,

and letters, furnished to the health care provider by

the requesting party or the party's attorney, before

giving testimony in any deposition or trial or other

hearing;

(4) confer with the requesting party's attorney

before giving testimony in any deposition or trial or

other hearing and engage in discussion with the

attorney on the subjects of the health care provider's

observations related to the allegedly injured party's

health, including the following: the patient history,

whether charted or otherwise recorded or not; the

health care provider's opinions related to the patient's

state of health, prognosis, etiology, or cause of the

patient's state of health at any time, and the nature

and quality of care by other health care providers,

including whether any standard of care was or was

not breached; and the testimony the health care

provider would give in response to any point of

interrogation, and the education, experience, and

qualifications of the health care provider.

The form of the Consent furnished pursuant to this

subsection (a) shall recite that it is signed and delivered

under the authority of this subsection. Any variation in

the form of the Consent required by any health care

provider, not subject to the jurisdiction of the circuit

court before which the action is pending, to whom a

request is directed under subdivision (1) or (2) of this

subsection (a) shall be accepted by the allegedly injured

party and the revised form requested by the health care

provider shall be signed and delivered to the requesting

party within 28 days after it is tendered for signature.

All documents and information obtained pursuant to

a Consent shall be considered confidential. Disclosure

may be made only to the parties to the action, their

attorneys, their insurers' representatives, and witnesses

and consultants whose testimony concerns medical

treatment prognosis, or rehabilitation, including expert

witnesses.

A request for a Consent under this subsection (a) does

not preclude such subsequent requests as may

reasonably be made seeking to expand the scope of an

earlier Consent which was limited to less than all the

authority permitted by subdivisions (1) through (4) of

this subsection (a) or seeking additional Consents for

other health care providers.

The provisions of this subsection (a) do not restrict

the right of any party to discovery pursuant to rule.

Should a plaintiff refuse to timely comply with a

request for signature and delivery of a consent permitted

by this subsection (a) the court, on motion, shall issue

an order authorizing disclosure to the party or parties

requesting said consent of all records and information

mentioned herein or order the cause dismissed pursuant

to Section 2--619(a)(9)." 735 ILCS 5/2--1003(a) (West

1996).

In the case at bar, plaintiffs challenged the medical

disclosure requirements in the circuit court on several grounds,

arguing that section 2--1003(a) violates separation of powers,

the right to privacy, the right to certain remedy and access to

the courts, and the prohibition against special legislation. The

circuit court ruled that section 2--1003(a) and the corollary

provisions of Public Act 89--7 unduly encroach on the authority

of the judiciary and conflict with present supreme court rules.

The court also held that the provisions violate the "fundamental

right to privacy and access to the courts enjoyed by the citizens

of this state," and that there was not "a rational basis for

requiring a citizen to reveal medical conditions unrelated to the

litigation in which she is engaged." The circuit court further

observed that mandating plaintiffs' consent to unlimited

disclosure of confidential medical information unrelated to the

injury on which the lawsuit was brought would "likely force

many persons to avoid the courthouse to redress their wrongs."

The circuit court specifically upheld "Petrillo [as] well-reasoned

law which protects the rights outlined above" and concluded that

the "usual discovery procedures and the Supreme Court rules

together" provide defendants with adequate opportunity to test

plaintiffs' allegations.

This court has declared section 2--1003(a) unconstitutional

in Kunkel v. Walton, No. 81176 (November 20, 1997), a case

which, we note, was under advisement at the same time as the

case at bar. The parties incorporate by reference the arguments

made in Kunkel, which include several amici curiae briefs filed

on behalf of defendants. We have reviewed all of the briefs filed

in this court which relate to the constitutionality of section 2--

1003(a). Of the various constitutional challenges made to this

provision, we resolve its constitutionality primarily upon the

separation of powers doctrine. We also consider plaintiffs'

argument that the Illinois Constitution of 1970 grants a privacy

interest to the citizens of this state and, as part of that analysis,

we examine the reasoning of the appellate court in Petrillo.

A. Separation of Powers

As we have noted elsewhere in this opinion, the separation

of powers clause of the Illinois Constitution provides that each

branch of government is separate and may not exercise the

powers of another branch. Ill. Const. 1970, art. II, sec. 1; People

v. Warren, 173 Ill. 2d 348 (1996); Murneigh v. Gainer, 177 Ill.

2d 287. The judicial power is vested in the supreme court, the

appellate court, and the circuit courts. Ill. Const. 1970, art. VI,

sec. 1. In addition, the judicial article of the constitution vests

this court with supervisory and rulemaking authority over the

judicial system of Illinois. See Ill. Const. 1970, art. VI, sec. 16.

It is the constitutional duty of this court to preserve the integrity

and independence of the judiciary and to protect the judicial

power from encroachment by the other branches of government.

People v. Davis, 93 Ill. 2d 155, 161 (1982). See also People v.

Joseph, 113 Ill. 2d 36 (1986); People v. Flores, 104 Ill. 2d 40,

49 (1984).

In the case at bar, plaintiffs maintain that section 2--1003(a)

violates the separation of powers clause because the statute

abrogates the judiciary's inherent authority to restrict discovery

to relevant information and to provide appropriate sanctions for

discovery abuses. Specifically, section 2--1003(a) provides that

the circuit court "shall issue an order authorizing disclosure to

the party or parties requesting said consent of all records and

information mentioned herein or order the cause dismissed

pursuant to Section 2--619(a)(9)." (Emphasis added.) 735 ILCS

5/2--1003(a) ( West 1996 ). Plaintiffs contend that this mandatory

directive upon the circuit courts unduly infringes upon the

powers of the judiciary because it not only undercuts the

inherent authority of the courts in the exercise of judicial

functions but also directly conflicts with certain discovery rules

of this court.

Defendants maintain that the challenged provision serves the

important societal function of expediting discovery and

curtailing potential abuses of the discovery process by

unscrupulous plaintiffs or attorneys who do not disclose all facts

necessary for defendants to prepare a defense. Defendants

further observe that this court has often recognized the

legislature's power to regulate practice and procedure. See, e.g.,

People v. Walker, 119 Ill. 2d 465 (1988); DeLuna v. St.

Elizabeth's Hospital, 147 Ill. 2d 57 (1992). According to

defendants, there is no conflict between section 2--1003(a) and

the rules of this court which pertain to discovery procedures.

Defendants contend that the circuit courts remain free to issue

protective orders or discovery sanctions as needed to curtail

abuses of the discovery process.

We agree with plaintiffs that section 2--1003(a) creates an

irreconcilable conflict with the inherent authority of the

judiciary. Although we acknowledge that the legislature may, in

some instances, share concurrent power with this court to

prescribe procedural rules governing discovery (see, e.g.,

O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 281 (1986);

Niven v. Siqueira, 109 Ill. 2d 357, 368 (1985)), "we have not

hesitated to strike down those procedural legislative enactments

which unduly infringe upon our constitutional rule-making

authority" to regulate the judicial system of Illinois. O'Connell

v. St. Francis Hospital, 112 Ill. 2d 273, 281 (1986).

In O'Connell, this court reaffirmed the established principle

that where a statutory procedure conflicts with a rule of this

court relating to the same procedure, the rule necessarily

prevails. This court held that provisions of the Code of Civil

Procedure which permitted plaintiffs to nonsuit their actions and

then to commence a new action within a year following such

dismissal unduly infringed upon the judiciary's powers, to the

extent that the procedures allowed a plaintiff to avoid

compliance with Supreme Court Rule 103(b) (134 Ill. 2d R.

103(b)). Rule 103(b) requires reasonable diligence in the service

of process and specifies the consequences which result from a

plaintiff's untimely service of process, either before or after the

expiration of the statute of limitations. Because the statutory

provisions under review in O'Connell gave the plaintiff an

unconditional right to take a voluntary dismissal and to refile

within a year of such dismissal, without regard to the expiration

of the limitations period and without regard to the diligence

provision of Rule 103(b), this court held that the statutes

impermissibly conflicted with the rule.

In Gibellina v. Handley, 127 Ill. 2d 122 (1989), this court

reaffirmed its authority to manage the court system by

prohibiting an abuse of certain procedures, even though the

statutes in issue did not directly conflict with a supreme court

rule. The Gibellina court prospectively limited plaintiffs'

statutory right to dismiss their actions and refile within one year,

where, prior to the plaintiff's motion for voluntary dismissal, the

defendants filed a motion for summary judgment. This court

determined that a plaintiff should not be permitted to abuse the

statutory right to refile a nonsuited action within a year where

a defendant files a motion that would dispose of the lawsuit on

the merits. Accordingly, the Gibellina court upheld its authority

to manage the court system of Illinois and to cure an abusive

use of civil procedures which had burdened the courts and

infringed upon the judiciary's ability to discharge its duties

fairly and expeditiously.

In a different context, this court has reaffirmed the inherent

power of the judiciary to exercise certain judicial functions, such

as the power of contempt, without being bound by legislative

regulation of such power. In Murneigh, 177 Ill. 2d 287 , a

statutory and administrative blood-collection scheme provided

that judges "shall" enter orders requiring incarcerated sex

offenders to give blood specimens. The scheme further required

the courts to punish the violation of such compliance orders as

contempt of court. We ruled that the provisions in issue violated

separation of powers principles by conscripting the judiciary into

the service of an essentially administrative function and by

mandating the courts to enter contempt sanctions. Murneigh, 177

Ill. 2d at 313. This in turn intruded upon the judiciary's inherent

and essential power of contempt, a power held exclusively by

the judiciary. See also Agran v. Checker Taxi Co., 412 Ill. 145

(1952); Wright, 63 Ill. 2d 313 .

In the case at bar, as in Murneigh, the challenged legislation

provides that the courts shall enter an order of compliance and

further prescribes the sole sanction to be imposed if compliance

is not met. Section 2--1003(a) directs that if a plaintiff fails to

furnish the requested consent form within 28 days, "the court,

on motion, shall issue an order authorizing disclosure to the

party or parties requesting said consent of all records and

information mentioned herein or order the case dismissed

pursuant to section 2--619(a)(9)." The language of this section

is mandatory rather than permissive. Therefore, section 2--

1003(a) obligates the courts of this state to become party to the

forced disclosure of confidential medical information even if

such material is wholly unrelated to the lawsuit in issue, or, if

the plaintiff refuses to comply, to enter an order of involuntary

dismissal.

Because involuntary dismissals are considered to be

adjudications on the merits (134 Ill. 2d R. 273), a plaintiff

injured through the fault of another would lose his or her right

of action as the penalty for not consenting to the blanket

disclosure of all confidential medical information, irrespective

of how irrelevant to the lawsuit and however personal, sensitive,

or embarrassing the confidential medical information may be to

the plaintiff.

Defendants rely on cases in which this court has upheld as

constitutional certain legislative regulations of procedure and the

filing of claims. For example, in People v. Williams, 124 Ill. 2d

300 (1988), this court held that a statute which provided for the

substitution of judges did not unduly encroach on the powers of

the judiciary. Similarly, defendants assert, this court has upheld

statutes requiring the filing of certain materials as a prerequisite

for obtaining judicial relief. See DeLuna v. St. Elizabeth's

Hospital, 147 Ill. 2d 57 (1992) (requiring health care provider's

affidavit certifying that plaintiff's medical malpractice claim had

merit); People ex rel. County Collector v. Jeri, Ltd., 40 Ill. 2d

293 (1968) (requiring that a transcript of evidence relating to the

trial court's findings be attached to the order of tax deed).

We believe that the particular statutes upheld by this court

in the above-cited cases withstood constitutional scrutiny for

reasons not present in the instant case. In Williams, the

provision allowing for a substitution of judges in certain

instances caused only a minimal encroachment upon judicial

authority and did not prevent the courts from deciding cases or

managing their dockets. In Jeri, the requirement that a transcript

of evidence be attached to the order for tax deed was part of a

purely statutory proceeding and its purpose was to safeguard

against fraud. The challenged provision did not impede the

courts in the performance of their functions and therefore did

not violate separation of powers principles. In DeLuna, the

certificate of merit requirement was found, inter alia, to be

reasonably related to the legislative goal of discouraging the

filing of frivolous medical malpractice actions by imposing the

threshold requirement that a plaintiff obtain an expert medical

opinion that his or her claim had merit. DeLuna, 147 Ill. 2d at

75. Unlike the mandatory consent and disclosure requirements

of section 2--1003(a), the medical malpractice certificate of

merit requirement upheld in DeLuna may be viewed as directly

relevant, and explicitly tailored, to the plaintiff's cause of action.

The certificate of merit requirement did not extend to medical

information or expert opinion relating to health conditions of the

plaintiff which were unrelated to the subject matter of the

medical malpractice complaint. We conclude that the cases cited

by defendants are distinguishable from the circumstances of the

case at bar and are therefore inapposite.

Evaluating the relevance of discovery requests and limiting

such requests to prevent abuse or harassment are, we believe,

uniquely judicial functions. Similarly, the court's imposition of

sanctions for a party's failure to comply with legitimate

discovery requests in a timely fashion is an inherently judicial

power. However, nothing in the express terms of section 2--

1003(a) authorizes the circuit courts to assess the relevance of

discovery or limit the scope of the defendant's demand for

unlimited disclosure of all medical information in the possession

of anyone who provided health care to the plaintiff at any time.

To the extent that a statute unduly interferes with the exercise

of inherently judicial functions or powers, the statute cannot

prevail. See Gibellina, 127 Ill. 2d 122 . We believe that section

2--1003(a) impermissibly interferes with the inherently judicial

authority to manage the orderly discovery of information

relevant to specific cases. Therefore, the statute violates the

separation of powers clause of the Illinois Constitution.

The judicial authority to limit discovery requests and to

impose sanctions for discovery violations is, moreover, expressly

embodied in the discovery rules of this court. Supreme Court

Rule 201(a) contains the general statement that "[i]nformation

is obtainable as provided in these rules." 166 Ill. 2d R. 201(a).

The requirement that discovery requests be relevant to the

subject matter of the litigation is specified in Rule 201(b) (166

Ill. 2d R. 201(b)). Rule 201(c)(1) prescribes the procedures for

obtaining protective orders as a means of preventing abuse. 166

Ill. 2d R. 201(c)(1). In addition, Rule 219 provides the circuit

courts with a range of options for imposing sanctions for a

party's failure to comply with the discovery rules of this court

or with orders of the circuit court pertaining to discovery. 166

Ill. 2d R. 219.

Rule 201(b)(1) provides, "Except as provided in these rules,

a party may obtain by discovery full disclosure regarding any

matter relevant to the subject matter involved in the pending

action ***." (Emphasis added.) 166 Ill. 2d R. 201(b)(1). This

rule expressly limits a party's right of "full disclosure" to

matters which are relevant to the subject matter of the pending

lawsuit. In contrast, section 2--1003(a) omits any mention of

relevance in the consent requirements. Indeed, the statute

contemplates maximum disclosure of confidential medical

information, without regard to whether the information is

relevant to the particular injuries upon which the plaintiff's

lawsuit is based. The statute provides that a plaintiff must waive

"any privilege between the injured person and each health care

provider who has furnished care at any time to the injured

person." (Emphasis added.) 735 ILCS 5/2--1003(a) ( West 1996 ).

The unlimited scope of defendants' discovery in section 2--

1003(a) therefore creates a direct conflict with Rule 201(b),

which embodies an express rule of relevance regarding matters

obtainable through discovery. Such conflict is resolved in favor

of the rule of this court. See, e.g., O'Connell, 112 Ill. 2d 273 .

For similar reasons, we hold that section 2--1003(a)

conflicts with Supreme Court Rule 201(c)(1), which governs the

issuance of protective orders. Rule 201(c)(1) provides: "The

court may at any time on its own initiative, or on motion of any

party or witness, make a protective order as justice requires,

denying, limiting, conditioning, or regulating discovery to

prevent unreasonable annoyance, expense, embarrassment,

disadvantage, or oppression." 166 Ill. 2d R. 201. In contrast,

section 2--1003(a) fails to provide any means by which the

circuit court may deny a disclosure request or narrow the scope

of the consent. By its terms, therefore, the statute does not

permit the circuit court to issue a protective order. Therefore,

the statute conflicts with Rule 201(c)(1).

Section 2--1003(a) also fails to explicitly accommodate or

recognize the judge's discretion to impose a discovery sanction

other than a dismissal on the merits if the plaintiff fails to

comply with the consent requirement. Supreme Court Rule 219

enumerates a range of noninclusive sanctions to address

discovery violations and abuses, including the award of

expenses, the barring of a witness, the suppression of otherwise

discoverable information as a sanction for abuse, the striking of

any or all pleadings relating to an issue, and other options for

the circuit court to choose in the exercise of its sound discretion.

Because section 2--1003(a) directs the circuit court's selection

of just one sanction for a plaintiff's noncompliance with the

consent request--involuntary dismissal--the statute conflicts with

Rule 219 as well as the previously discussed provisions of Rule

201. Accordingly, we conclude that section 2--1003(a) violates

the separation of powers clause of the Illinois Constitution

because the statute directly conflicts with the discovery

procedures that have been expressly promulgated as rules of this

court pursuant to its constitutional rulemaking authority.

Defendants insist that nothing in section 2--1003(a)

precludes a plaintiff from filing, and the circuit court from

granting, a protective order pursuant to Supreme Court Rule

201(c). In fact, during oral argument of Kunkel v. Walton, No.

81176, attorneys for the defendants and for the Attorney

General, as intervenor, contended that circuit court judges

remain free to enter protective orders and to enter sanctions

other than dismissal, despite the fact that such measures are not

included within the express terms of section 2--1003(a). The

defendants contend that section 2--1003(a) does not conflict with

this court's rules and may be construed in a constitutional

manner. For the reasons stated below, however, we believe that

the defendants' proposed construction of section 2--1003(a) is

inconsistent with the plain terms and intent of the mandatory

consent and disclosure requirements, and we therefore reject as

untenable the defendants' attempt to harmonize section 2--

1003(a) with this court's rules. We further determine that the

defendants' proposed construction of the statute does not cure

the separation of powers violation created by the application of

the statute.

To evaluate the defendants' statutory construction argument,

we again look to the specific language in the statute and the

reasonable inferences that may be drawn therefrom. As we have

already determined, the plain terms of the statute do not

encompass any explicit procedures by which a plaintiff may

object to the request for unlimited consent to the disclosure of

confidential medical information. Nor does the statute refer to

the court's authority to enter protective orders to prevent

discovery abuses under Rule 201(c)(1), or to enter any sanctions

other than dismissal of a plaintiff's action. Accordingly, we

conclude that under a "plain terms" construction of section 2--

1003(a), the statute cannot reasonably be construed as allowing

the circuit court to limit the scope of a consent request through

protective orders. In light of the express requirements of the

statute, the circuit court is not permitted to impose a sanction

for noncompliance other than dismissal of the plaintiff's cause

of action.

The defendants nonetheless argue that the statute may be

construed to permit the circuit court judges to retain discretion

over the scope of the discovery because of the following

sentence in section 2--1003(a): "The provisions of this

subsection (a) do not restrict the right of any party to discovery

pursuant to rule."[fn10]

In our view, this sentence does not support the defendants'

argument that section 2--1003(a) may be construed as permitting

the circuit court to enter protective orders and to impose

discretionary sanctions for noncompliance. The quoted sentence

does not incorporate any limits or rules that might narrow the

scope of the consent requirements of the statute. Instead, the

quoted sentence refers to a party's general right to obtain

discovery pursuant to this court's rules. To read in limiting

language which is not expressly included in the framework of

section 2--1003(a) is to create a contradiction within the statute

itself. For example, if a plaintiff sought a protective order

requesting the court to prohibit defense counsel from engaging

in ex parte conferences with the plaintiff's treating physician,

the court would be required to either (1) ignore the express

language of the statute or (2) determine that, because of the

sentence quoted above, the court retained discretion to determine

that an ex parte conference was an abuse of discovery. The

dilemma facing such a court is obvious: the court must apply

the statute as written, or else adopt an expansive interpretation

that would defeat the essential purpose and express language of

the statute. Allowing courts to freely limit the scope of the

mandatory consent requirement would thwart the legislative

intent to permit the broadest possible disclosure of medical

information and to authorize unlimited ex parte conferences with

the plaintiff's treating health care practitioners. Therefore, we

reject the defendants' statutory construction analysis as contrary

to the plain terms and intent of the provision.

But even if we were to accept the statutory construction

proposed by the defendants, there is a remaining flaw in the

analysis which underscores the separation of powers concerns

previously identified. A discovery procedure which authorizes

unlimited disclosure of information in the first instance, subject

only to particularized protective orders, shifts a significant

burden to the courts of this state to repeatedly assess and limit,

through entry of protective orders, discovery requests that may

well be overbroad on their face. The expansive impact of the

statutory consent requirements virtually demands that plaintiffs'

attorneys file motions for protective orders as a matter of course

whenever a consent form is requested by defense counsel.

Although the judiciary is the proper entity to determine the need

for protective orders, on a case-by-case basis, one of the effects

of section 2--1003(a) is to create an assembly line of overbroad

discovery requests followed by motions for protective orders.

We believe, therefore, that section 2--1003(a) impermissibly

burdens and significantly infringes upon the inherent judicial

powers that are constitutionally granted to the courts. See, e.g.,

Murneigh, 177 Ill. 2d 287 (rejecting legislative mandate that the

contempt power be used to facilitate administrative or executive

scheme); People v. Joseph, 113 Ill. 2d 36 (1986) (striking

statute requiring all post-conviction proceedings to be conducted

by judge who was not involved in original proceeding as

encroaching upon court administration); People v. Flores, 104

Ill. 2d 40, 49 (1984) (invalidating statute which interfered with

the ability of a trial judge to control his own docket after the

trial of a cause had begun); see also Gibellina, 127 Ill. 2d 122 .

It is the duty of this court to invalidate legislation that

significantly burdens or otherwise curtails the inherent and

constitutionally granted authority of the judiciary. See Davis, 93

Ill. 2d at 161. Accordingly, we hold that section 2--1003(a) is

invalid as violating the separation of powers clause of the

Illinois Constitution.

B. Right to Privacy and The Petrillo Doctrine

We next consider plaintiffs' argument that section 2--

1003(a) violates the privacy rights of Illinois citizens. In support

of this argument, plaintiffs cite to the two clauses in the Illinois

Constitution which expressly refer to privacy. See Ill. Const.

1970, art. I, secs. 6, 12. They further ground their privacy

argument in the Petrillo doctrine, which recognized a strong

public policy in preserving the confidential and fiduciary

physician-patient relationship and held that such public policy

is violated by ex parte communications between defendants or

their counsel and plaintiffs' treating physicians.

Defendants counter that there is no constitutional right to

privacy in medical information under federal or state decisions.

Furthermore, the defendants argue, the branch of government

charged with declaring the public policy of this state is the

legislature. According to defendants, the legislature acted well

within its authority in providing for ex parte conferences

between the plaintiff's health care practitioners and

representatives of the defendants. Finally, defendants posit that

the Petrillo doctrine was never expressly adopted by this court

and that the legislature is free to overturn it.

In 1970, the Illinois Constitution was amended to include

two separate provisions which expressly refer to a citizen's

expectations of privacy. Section 12 of the Illinois Constitution's

Bill of Rights provides that "[e]very person shall find a certain

remedy in the laws for all injuries and wrongs which he receives

to his person, privacy, property or reputation. He shall obtain

justice by law, freely, completely, and promptly." (Emphasis

added.) Ill. Const. 1970, art. I, sec. 12. Section 6 of the Illinois

Bill of Rights states, "The people shall have the right to be

secure in their persons, houses, papers and other possessions

against unreasonable *** invasions of privacy ***." Ill. Const.

1970, art. I, sec. 6.[fn11]

The Constitutional Commentary to section 6 of the Bill of

Rights explains that "[t]he protection against `invasion of

privacy' is new and is stated broadly" and "expands upon the

individual rights which were contained in Section 6 of Article

II of the 1870 Constitution and the guarantees of the Fourth and

Fourteenth Amendments to the United States Constitution." Ill.

Ann. Stat., 1970 Const., art. I, sec. 6, Constitutional

Commentary, at 522 (Smith-Hurd 1997). With reference to

section 6, this court has observed that "[b]ecause the Illinois

Constitution recognizes a zone of privacy, the protections

afforded by the Illinois Constitution go beyond the guarantees

of the Federal Constitution. In re May 1991 Will County Grand

Jury (1992), 152 Ill. 2d 381 ." King v. Ryan, 153 Ill. 2d 449, 464

(1992); see also Fink v. Ryan, 174 Ill. 2d 302 (1996); cf. People

v. DiGuida, 152 Ill. 2d 104, 119 (1992) (referring to a 1984

decision in which this court indicated it would interpret section

6 of the Illinois Bill of Rights as consistent with its counterpart,

the fourth amendment to the federal constitution). This court has

stated that governmental conduct or "state action" must be

present before a citizen claiming a violation of the privacy right

referenced in section 6 of the Illinois Bill of Rights may obtain

relief. See Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 526

(1985) (rejecting plaintiff's argument that employer's alleged

violation of free speech, equal protection, due process, and

privacy rights provided a proper foundation on which to premise

plaintiff's action for retaliatory discharge); see also People v.

DiGuida, 152 Ill. 2d at 121-24 (rejecting defendant's free speech

and free elections challenge as a means to challenge his

conviction for criminal trespass to private store owner's land).

In considering section 6 of the Illinois Bill of Rights in

conjunction with section 12, this court has stated that the

"constitutional right to be free from governmental invasions of

privacy [in section 6] is supplemented by the constitutional right

to a certain remedy for invasions or injuries to one's privacy

provided for in article I, section 12, of the Illinois Constitution

of 1970." In re A Minor, 149 Ill. 2d 247, 256 (1992). In Minor,

a news organization attending a juvenile court hearing sought

permission to disclose the names of the minor victims of abuse.

Pursuant to a provision of the Juvenile Court Act, the circuit

court prohibited the newspaper from disclosing the identities of

the minor victims. The newspaper appealed. This court affirmed,

holding that the statutory provision which permitted the news

media to attend hearings closed to the general public did not

grant the media a right to disclose the minor victims' names.

This court held that the circuit court's order barring disclosure

of the victims' identities was not an unconstitutional prior

restraint on the freedom of the press. Minor, 149 Ill. 2d at 253 -

57. After citing the two privacy clauses of the Illinois

Constitution, the court determined that the minor victims had a

compelling privacy interest at stake. Minor, 149 Ill. 2d at 255 .

In reviewing the history of section 12 of the Illinois Bill of

Rights, the Minor court held it does not require the presence of

state action. The court concluded,

"It is clear from the debates in the Sixth Illinois

Constitutional Convention that article I, section 12, was

intended to protect an individual's privacy from

invasions or injuries caused by another nongovernmental

individual or company. 3 Record of Proceedings, Sixth

Illinois Constitutional Convention 1531-32." (Emphasis

in original.) Minor, 149 Ill. 2d at 256 .

Consistent with this court's holding in the Minor case, we

recognize that section 12 of the Illinois Constitution, unlike

section 6, does not require state action before its protections are

activated. However, the precise nature and scope of the privacy

interest set forth in section 12 has not been the subject of much

case law in this state. Plaintiffs cite cases in which a

constitutional right to privacy was found in bank records

(People v. Jackson, 116 Ill. App. 3d 430, 434-35 (1983)) and

telephone records (People v. DeLaire, 240 Ill. App. 3d 1012,

1020 (1993); cf. People v. Smith, 72 Ill. App. 3d 956, 964

(1979)). In addition, plaintiffs rely on Petrillo for the

proposition that the "privacy rights of individual patients" and

the "confidential and fiduciary relationship existing between

patients and their physicians" are compelling interests deserving

of protection for reasons of public policy. Petrillo, 148 Ill. App.

3d at 607.

In Petrillo, a product liability action, defense counsel

informed the trial court that he had previously met in private

with a treating physician for one of the 26 plaintiffs in the case.

Upon learning of the meeting, plaintiffs' counsel moved to bar

any future ex parte communications between defense counsel

and any other physician. The trial court granted the motion and

entered an order to that effect. Defense counsel, however,

informed the court that he did not intend to comply with the

order. The trial court, therefore, held the attorney in direct

contempt, and the attorney appealed.

In affirming the trial court's order, the appellate court

initially noted that ex parte conferences were not necessary to

obtain information for defending a lawsuit because the discovery

methods outlined by Supreme Court Rule 201 were sufficient.

The court determined that a review of case law from other

jurisdictions revealed that there was not a single instance in

which a court found that an ex parte conference was necessary

to assist defense counsel in obtaining information that they were

unable to acquire through "regular channels of discovery."

Petrillo, 148 Ill. App. 3d at 587 .

The Petrillo court emphasized that society places a high

value on the professional duties under which a physician

operates, including the dual duties of confidentiality and loyalty.

Petrillo, 148 Ill. App. 3d at 589-92 . The court noted that certain

conduct could be against public policy even in the absence of an

express constitutional or statutory prohibition because public

policy could be inferred from such sources as statutes or

constitutions. Reasoning that there exists a strong public policy

in preserving the sanctity of the patient-physician relationship

and acknowledging the plaintiff's privacy interests, the court

determined that ex parte conferences unduly threatened society's

interest in maintaining the fiduciary and confidential nature of

the relationship. Petrillo, 148 Ill. App. 3d at 589-96 .

Accordingly, the court held that ex parte conferences between

a plaintiff's physician and defendant or his counsel should not

be permitted. Petrillo, 148 Ill. App. 3d at 596 .

In the years following the decision in Petrillo, all five

districts of our appellate court have followed the decision and,

although the specific application of Petrillo to various facts has

differed in some respects, "the fundamental holding that ex parte

discussions between defense counsel and plaintiff's treating

physician shall be conducted only through authorized methods

of discovery has been overwhelmingly approved in subsequent

Illinois Appellate Court cases." L. Bonaguro & M. Jochner, The

Petrillo Doctrine: A Review and Update, 83 Ill. B.J. 16 , 16

(1995). Other articles, which have analyzed the policy grounds

on which the Petrillo court based its decision, have either

endorsed the prohibition of ex parte communications (see P.

Corboy, Ex Parte Contacts Between Plaintiff's Physician and

Defense Attorneys: Protecting the Patient-Litigant's Right to a

Fair Trial, 21 Loy. U. Chi. L.J 1001 (1990)) or questioned the

"new type of witness privilege" created in Petrillo and the

perceived expansion of the original decision beyond its natural

boundaries (see W. McVisk, A More Balanced Approach to Ex

Parte Interviews by Treating Physicians, 20 Loy. U. Chi. L.J.

819 (1989); see also C. Redden & W. Bower, Qualifications to

the Bar of Ex Parte Contacts With Physicians, 79 Ill. B.J. 442

(1991)).

We do not believe it is necessary, practical, or appropriate

for this court to review every case in which the Petrillo rule has

been applied, distinguished, or otherwise discussed. However,

because the legislative decision to eviscerate the Petrillo "rule"

has been questioned by plaintiffs as part of their challenge to

section 2--1003(a), we find it appropriate to examine the

rationale of the Petrillo decision and to ascertain whether there

exists a constitutional source for the recognition of a strong

public policy interest in preserving the sanctity of the physician-

patient relationship. We acknowledge that the Petrillo decision

did not directly recognize a constitutional basis for its holding,

and we further acknowledge that there was no issue raised in

Petrillo that the plaintiff's privacy interest in confidential

medical information was protected by the Illinois Constitution.

However, the Petrillo court expressly acknowledged that the

public policy of this state is reflected in constitutional provisions

as well as statutes. We believe that it is proper for this court to

consider the Illinois Constitution's privacy provisions as

reflective of an important policy. With that in mind, we consider

the important public policy considerations that the Petrillo court

found compelling enough to bar ex parte conferences.

In his appeal from the order holding him in contempt of

court, the attorney in Petrillo raised several arguments. A group

of arguments, collectively referred to as the "waiver" challenges,

stated that a plaintiff, by filing suit, places his mental and

physical condition at issue, thereby waiving the physician-

patient privilege. The waiver issue was further broken down into

10 related arguments in which the attorney sought to justify ex

parte conferences between defense counsel and the treating

physicians of the plaintiff. In addition, the attorney posited that

prohibiting defense counsel from engaging in ex parte

conferences with a plaintiff's treating physician violated defense

counsel's first amendment rights. Petrillo, 148 Ill. App. 3d at

584.

After initially concluding that ex parte conferences were not

necessary for the preparation of a defense, the Petrillo court

announced its disagreement with the defense attorney's

contention that no public policy in Illinois prohibited ex parte

conferences. According to the court, "Public policy is found in

a State's constitution and statutes, and where those are silent, in

the decisions of the judiciary." Petrillo, 148 Ill. App. 3d at 587 .

Noting that public policy forbids "that conduct which tends to

harm an established and beneficial interest of society the

existence of which is necessary for the good of the public," the

court held that "modern public policy strongly favors the

confidential and fiduciary relationship existing between a patient

and his physician." Petrillo, 148 Ill. App. 3d at 587 . The court

stated its belief that this public policy was reflected in at least

two separate indicia: (1) the code of ethics adopted by the

medical profession, upon which the public necessarily relies as

a protection of the confidential relationship existing between a

patient and his physician; and (2) the fiduciary relationship

which exists between a physician and his patient, which is

widely recognized in court opinions.

The first indicia of the public policy invaded by ex parte

conferences, the medical profession's code of ethics, was further

broken down by the Petrillo court into three "prongs": (1) the

Hippocratic Oath; (2) The American Medical Association's

Principles of Medical Ethics; and (3) the Current Opinions of

the Judicial Council of the AMA (1984 ed.)[fn12]

Observing that the relationship between doctor and patient

remains confidential only for so long as a patient can trust that

his consent is a prerequisite to the disclosure of the information

he conveyed to his doctor, the Petrillo court concluded that

when a physician and defense counsel engage in ex parte

conferences without the consent of the patient, the

confidentiality which once existed between the doctor and

patient is irreparably breached and the "sanctity of the

relationship existing between a patient and his physician is

thereby destroyed." Petrillo, 148 Ill. App. 3d at 591 .

Significantly, the Petrillo court distinguished between medical

information which is considered waived by the filing of a

lawsuit and information which is not waived. The court noted

that disclosure of information could be accomplished by either

an express consent or one implied at law by the patient's

conduct, such as the filing of a lawsuit. With respect to the

latter situation, the patient filing suit implicitly agrees to his or

her doctor's release of any medical information related to the

specific physical or mental condition which the patient has

placed in issue. However, the plaintiff's implied consent (or

waiver of information) "is obviously and necessarily limited; he

consents only to the release of his medical information (relative

to the lawsuit) pursuant to the methods of discovery authorized

by Supreme Court Rule 201(a) (87 Ill. 2d R. 201(a))."

(Emphasis in original.) Petrillo, 148 Ill. App. 3d at 591 . The

plaintiff-patient does not, by the simple act of filing suit,

consent to ex parte discussions between his treating doctor and

defense counsel, nor does he consent to disclosure of

confidential information unrelated to the subject matter of the

lawsuit. The Petrillo court concluded, consistent with the courts

of other jurisdictions, that patients have the right to rely on their

physicians' compliance with the ethical obligations of

confidentiality, and barring ex parte conferences is a necessary

adjunct to preserve that right.

The Petrillo court also discussed what it considered to be

the second "indicia" of the public policy against ex parte

conferences between defense counsel and plaintiff's treating

physicians. Similar to the confidentiality/privacy discussion

addressed above, this portion of the appellate court's opinion

found that society has an established interest in the fiduciary

quality of the physician-patient relationship. Citing cases from

Illinois and other jurisdictions, the Petrillo court stated that the

fiduciary relationship between doctor and patient is founded

upon trust and confidence. Implied in this fiduciary relationship

is a "good faith" requirement that the physician will not engage

in conduct adverse to his or her patient, including ex parte

conferences with the patient's opposing counsel. Emphasizing

that at the heart of a fiduciary relationship is trust, loyalty, and

faith in the discretion of the fiduciary, the court in Petrillo

concluded that ex parte conferences with defense counsel

constituted a serious breach of trust. Petrillo, 148 Ill. App. 3d

at 596.

We believe that the rationale of the Petrillo court is sound

and that there is a strong public policy against ex parte

conferences between the plaintiffs' health care practitioners and

defendants or their representatives. We further believe that the

privacy interest referred to in the "certain remedy" clause of

section 12 provides a constitutional source for the protection of

the patient's privacy interest in medical information and records

that are not related to the subject matter of the plaintiff's

lawsuit. We acknowledge that the certain remedy provision has

been referred to in general as a statement of philosophy rather

than a guarantee of a specific remedy. See Sullivan v.

Midlothian Park District, 51 Ill. 2d 274, 277 (1972).

Nonetheless, we believe that a statement of "constitutional

philosophy" is reflective of the strong public policy that was

recognized in Petrillo. Therefore, we conclude that patients in

Illinois have a privacy interest in confidential medical

information, and that the Petrillo court properly recognized a

strong public policy in preserving patients' fiduciary and

confidential relationship with his or her physicians. [fn13]

VI. Severability

We have declared that certain provisions of Public Act 89--

7 violate the Illinois Constitution. Specifically, we have

invalidated the cap on noneconomic damages, the provision

which gives a credit to third-party tortfeasors in the amount of

the employer's proportionate share of liability, the abolition of

joint and several liability, and the provision of the Code of Civil

Procedure which requires the wholesale disclosure of

confidential medical information upon the filing of a personal

injury lawsuit. Our next determination is whether the legislature

would have passed the Act in the truncated form that remains

after these invalid provisions are eliminated. Under principles of

severability, we consider whether the provisions that we have

not declared invalid may be given effect independently, without

doing violence to the legislative intent in passing the

comprehensive tort reform legislation. See, e.g., Murneigh, 177

Ill. 2d at 313-14. If, however, the invalid portions may not be

severed from the remainder of the Act, the legislation is

rendered void in its entirety. See, e.g., City of Chicago Heights

v. Public Service Co., 408 Ill. 604, 610-11 (1951); Dornfeld v.

Julian, 104 Ill. 2d 261 (1984).

Whether or not an act is severable is a question of

legislative intent. E.g., Russell Stewart Oil Co. v. State, 124 Ill.

2d 116, 128 (1988); Dornfeld, 104 Ill. 2d at 265-66 . It has been

noted that this inquiry is twofold, because the legislature must

have intended that the act be severable, and the act must be

capable of severability in fact. See 2 N. Singer, Sutherland on

Statutory Construction sec. 44.03, at 495 (5th ed. 1993); see also

City of Chicago Heights, 408 Ill. at 610-11 . To determine

whether an act is severable this court has often repeated, as the

"settled and governing test of severability," whether the valid

and invalid provisions of the Ac

This text is long and has been trimmed here. Open the source document for the complete record.