Lebron v. Gottlieb Memorial Hospital

Docket Nos. 105741, 105745 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

ABIGAILE LEBRON, a Minor, et al., Appellees, v. GOTTLIEB

MEMORIAL HOSPITAL et al., Appellants.

Opinion filed February 4, 2010.

CHIEF JUSTICE FITZGERALD delivered the judgment of the

court, with opinion.

Justices Freeman, Kilbride and Burke concurred in the judgment

and opinion.

Justice Karmeier concurred in part and dissented in part, with

opinion, joined by Justice Garman.

Justice Thomas took no part in the decision.

OPINION

At issue in this appeal is the constitutionality of section 2–1706.5

of the Code of Civil Procedure (Code) (735 ILCS 5/2–1706.5 (West

2008)), which was adopted as part of Public Act 94–677 (Act) (see

Pub. Act 94–677, §330, eff. August 25, 2005). Section 2–1706.5 sets

certain caps on noneconomic damages in medical malpractice cases.

Relying on this court’s decision in Best v. Taylor Machine Works,

179 Ill. 2d 367 (1997), the circuit court of Cook County ruled that the

statutory caps violate the separation of powers clause of the Illinois

Constitution (Ill. Const. 1970, art. II, §1) and declared the entire Act

invalid, pursuant to its inseverability provision (Pub. Act 94–677,

§995, eff. August 25, 2005).

For the reasons discussed below, we affirm in part and reverse in

part the judgment of the circuit court, and remand this matter for

further proceedings.

BACKGROUND

In November 2006, plaintiffs Abigaile Lebron (Abigaile), a

minor, and her mother, Frances Lebron (Lebron), filed a medical

malpractice and declaratory judgment action in the Cook County

circuit court against defendants Gottlieb Memorial Hospital, Roberto

Levi-D’Ancona, M.D., and Florence Martinoz, R.N. According to the

five-count amended complaint, Lebron was under the care of Dr.

Levi-D’Ancona during her pregnancy. On October 31, 2005, Lebron

was admitted to Gottlieb, where Dr. Levi-D’Ancona delivered

Abigaile by Caesarean section. Martinoz assisted in the delivery and

provided the principal nursing care from the time of Lebron’s

admission. In counts I through IV, plaintiffs alleged that as the direct

and proximate result of certain acts and omissions by defendants,

Abigaile sustained numerous permanent injuries including, but not

limited to, “severe brain injury, cerebral palsy, cognitive mental

impairment, inability to be fed normally such that she must be fed by

a gastronomy tube, and inability to develop normal neurological

function.”

In count V, relevant to this appeal, plaintiffs sought a judicial

determination of their rights with respect to Public Act 94–677 and

a declaration that certain provisions of the Act, applicable to

plaintiffs’ cause of action, violate the Illinois Constitution. Although

plaintiffs challenged several provisions of the Act, at issue here is

plaintiffs’ challenge to the caps on noneconomic damages set forth in

section 2–1706.5 of the Code.1 Plaintiffs alleged that Abigaile “has

1

Plaintiffs also challenged the Act’s amendment of section 2–622 of the

Code that changed the certificate of merit requirements for medical

malpractice actions; the Act’s adoption of section 2–1704.5 that, inter alia,

permits future medical expenses and costs of life care to be paid through

purchase of an annuity; the Act’s amendment of section 8–1901 that

-2-

sustained disability, disfigurement, pain and suffering to the extent

that damages for those injuries will greatly exceed the applicable

limitations on noneconomic damages under Public Act 94–677.”

Citing Best, plaintiffs alleged that the limitation on damages violates

the separation of powers clause of the Illinois Constitution (Ill. Const.

1970, art. II, §1) by permitting the General Assembly to supplant the

judiciary’s authority in determining whether a remittitur is

appropriate under the facts of the case. Again citing to Best, plaintiffs

further alleged that the limitation on non-economic damages

constitutes improper special legislation (Ill. Const. 1970, art. IV, §13)

in that “the restrictions on noneconomic damages grant limited

liability specially and without just cause to a select group of health

care provider[s].” Plaintiffs additionally alleged that the damages caps

violate Abigaile’s right to a trial by jury (Ill. Const. 1970, art. I, §13),

due process (Ill. Const. 1970, art. I, §2), equal protection (Ill. Const.

1970, art. I, §2), and a certain and complete remedy (Ill. Const. 1970,

art. I, §12).2

Plaintiffs filed a motion for partial judgment on the pleadings as

to count V, and Gottlieb and Martinoz countered with a motion for

partial summary judgment on count V. Dr. Levi-D’Ancona moved for

judgment on the pleadings as to his counterclaim seeking a

declaration that the challenged statutory provisions do not violate the

Illinois Constitution. After briefing and oral argument, the circuit

court granted plaintiffs’ motion for partial judgment on the pleadings,

established an evidentiary rule concerning a health-care provider’s

admission of liability; and the Act’s amendment of section 8–2501 that

changed the expert witness standards in medical malpractice actions. See

Pub. Act 94–677, §330, eff. August 25, 2005, amending 735 ILCS 5/2–622,

8–1901, 8–2501, and adding 735 ILCS 5/2–1704.5.

2

Anticipating other challenges to Public Act 94–677, the presiding judge

of the Law Division of the Cook County circuit court ordered that all

pending and subsequently filed motions in any case challenging the

constitutionality of the Act be consolidated before the same judge presiding

over plaintiffs’ case. Thus, Lebron v. Gottlieb became the lead case. The

record identifies two other cases pending in Cook County in which a party

challenged the constitutionality of the Act: Alexander v. Nacopoulos, No.

07– L–2207, and Zago v. Resurrection Medical Center, No. 07–L–1720.

-3-

and denied Dr. Levi-D’Ancona’s motion for judgment on the

pleadings as to his counterclaim to the extent it sought a declaration

that the damages caps are consistent with the separation of powers

clause. The circuit court did not expressly deny the motion for partial

summary judgment as to count V filed by Gottlieb and Martinoz.

The circuit court determined that the statutory cap on

noneconomic damages in section 2–1706.5, like the statutory

damages cap at issue in Best, operates as a legislative remittitur in

violation of the separation of powers clause of the Illinois

Constitution (Ill. Const. 1970, art. II, §1). Based on the Act’s

inseverability provision (Pub. Act 94–677, §995, eff. August 25,

2005), the circuit court invalidated the Act in its entirety. The circuit

court declined to consider plaintiffs’ other constitutional challenges

to the Act. The circuit court later amended its order to add the

findings required by Supreme Court Rule 18 (210 Ill. 2d R. 18) and,

on the motion of Gottlieb and Martinoz, made a Rule 304(a) finding

of appealability (210 Ill. 2d R. 304(a)).

Pursuant to Supreme Court Rule 302(a) (210 Ill. 2d R. 302(a)),

Gottlieb and Martinoz, and Dr. Levi-D’Ancona, filed appeals directly

with this court. We consolidated these appeals for review, and

allowed the Illinois Attorney General to intervene to defend the

constitutionality of the Act. See 210 Ill. 2d R. 19. We also allowed

numerous individuals and organizations to file briefs amicus curiae.

See 210 Ill. 2d R. 345.3

3

Amicus curiae briefs in support of plaintiffs were received from the

American Bar Association; Chicago Bar Association and Illinois State Bar

Association; Citizen Action/Illinois and Illinois Alliance for Retired

Americans; Illinois AFL-CIO and the Chicago Federation of Labor; Illinois

Trial Lawyers Association; National Association for the Advancement of

Colored People and Cook County Bar Association; Professors Neil Vidmar,

Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas

A. Eaton, Theodore Eisenberg, Neal Feigenson, Lucinda M. Finley, Marc

Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H.

Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne

Martin, Frank M. McClellan, Deborah Jones Merritt, Philip G. Peters, Jr.,

James T. Richardson, Charles Silver, and Richard W. Wright; and the

Women’s Bar Association of Illinois. Amicus curiae briefs in support of

-4-

ANALYSIS

I

This case comes to us following the grant of plaintiffs’ motion for

judgment on the pleadings. See 735 ILCS 5/2–615(e) (West 2008).

“ ‘[A] motion for judgment on the pleadings is like a motion for

summary judgment limited to the pleadings.’ ” Employers Insurance

of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138 (1999),

quoting 3 R. Michael, Illinois Practice §27.2, at 494 (1989), citing

Tompkins v. France, 21 Ill. App. 2d 227 (1959). Judgment on the

pleadings is proper if the pleadings disclose no genuine issue of

material fact and that the movant is entitled to judgment as a matter

of law. M.A.K. v. Rush-Presbyterian-St. Luke’s Medical Center, 198

Ill. 2d 249, 255 (2001); Employers Insurance of Wausau, 186 Ill. 2d

at 138. We review the grant of judgment on the pleadings de novo.

Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d

381, 385 (2005).

De novo review is also appropriate because the circuit court’s

grant of judgment on the pleadings rests on its determination that

section 2–1706.5 of the Code violates the Illinois Constitution.

Whether a statute is unconstitutional is a question of law subject to de

novo review. People v. Johnson, 225 Ill. 2d 573, 584 (2007). We are

mindful that section 2–1796.5, like every statute, enjoys a strong

presumption of constitutionality and that the burden of rebutting this

presumption rests with the party challenging the statute–here,

plaintiffs. In re Marriage of Miller, 227 Ill. 2d 185, 195 (2007); In re

Estate of Jolliff, 199 Ill. 2d 510, 517 (2002).

The circuit court ruled that section 2–1706.5 is unconstitutional

both on its face and as applied to plaintiffs. A statute is facially

invalid only if no set of circumstances exists under which the statute

would be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306

defendants were received from Advocate Health and Hospitals Corporation;

American Medical Association and Illinois State Medical Society; the Cook

County State’s Attorney; Illinois Hospital Association, American Hospital

Association, Illinois Catholic Health Association, and Illinois Rural Health

Association; and Loyola University Medical Center and Loyola University

Physician Foundation.

-5-

(2008). Therefore, the circuit court’s ruling that the statute is facially

invalid negates any notion that the statute could be validly applied to

these plaintiffs and the court’s “as applied” ruling was unnecessary.

Moreover, when there has been no evidentiary hearing and no

findings of fact, the constitutional challenge must be facial. In re

Parentage of John M., 212 Ill. 2d 253, 268 (2004), citing Reno v.

Flores, 507 U.S. 292, 300-01, 123 L. Ed. 2d 1, 15-16, 113 S. Ct.

1439, 1446 (1993). Accordingly, we reverse the circuit court’s “as

applied” ruling and limit our review to whether section 2–1706.5 is

facially invalid. See John M., 212 Ill. 2d at 268. We turn now to the

statute, itself.

Section 2–1706.5 provides in relevant part:

“(a) In any medical malpractice action or wrongful death

action based on medical malpractice in which economic and

non-economic damages may be awarded, the following

standards shall apply:

(1) In a case of an award against a hospital and its

personnel or hospital affiliates, as defined in Section 10.8

of the Hospital Licensing Act, the total amount of non-

economic damages shall not exceed $1,000,000 awarded

to all plaintiffs in any civil action arising out of the care.

(2) In a case of an award against a physician and the

physician’s business or corporate entity and personnel or

health care professional, the total amount of non-

economic damages shall not exceed $500,000 awarded to

all plaintiffs in any civil action arising out of the care.

(3) In awarding damages in a medical malpractice

case, the finder of fact shall render verdicts with a specific

award of damages for economic loss, if any, and a specific

award of damages for non-economic loss, if any.

The trier of fact shall not be informed of the provisions of

items (1) and (2) of this subsection (a).” 735 ILCS 5/2–1706.5

(West 2008).

The limitation on noneconomic damages set forth in section

2–1706.5 is one of several “significant reforms” to the civil justice

system the General Assembly adopted in response to a “health-care

crisis” in this state. Pub. Act 94–677, §101(4), eff. August 25, 2005.

-6-

According to the legislative findings set forth in the Act, the rising

cost of medical liability insurance increases the financial burdens on

physicians and hospitals and is believed to have contributed to a

reduction of available medical care in portions of Illinois. Pub. Act

94–677, §§101(1), (2), eff. August 25, 2005. The General Assembly

determined:

“[T]he current medical malpractice situation requires

reforms that enhance the State’s oversight of physicians and

ability to discipline physicians, that increase the State’s

oversight of medical liability insurance carriers, that reduce

the number of nonmeritorious healing art malpractice actions,

that limit non-economic damages in healing art malpractice

actions, that encourage physicians to provide voluntary

services at free medical clinics, that encourage physicians and

hospitals to continue providing health care services in Illinois,

and that encourage physicians to practice in medical care

shortage areas.” Pub. Act 94–677, §101(5), eff. August 25,

2005.

In addition to the caps on noneconomic damages, the reforms adopted

by the legislature included changes to the Illinois Insurance Code

(Pub. Act 94–677, §310, eff. August 25, 2005), the Medical Practice

Act of 1987 (Pub. Act 94–677, §315, eff. August 25, 2005), and the

Good Samaritan Act (Pub. Act 94–677, §340, eff. August 25, 2005),

as well as other changes to the Code (Pub. Act 94–677, §330, eff.

August 25, 2005), and new legislation known as the “Sorry Works!

Pilot Program Act” (Pub. Act 94–677, art. 4, eff. August 25, 2005).

We need not delve into the details of these reforms because the focus

of this appeal is one particular reform: the limitation on noneconomic

damages codified in section 2–1706.5.

The circuit court invalidated the statute for the sole reason that,

pursuant to our decision in Best, the limitation on noneconomic

damages in section 2–1706.5 violates the separation of powers clause

of the Illinois Constitution (Ill. Const. 1970, art. II, §1). Defendants

argue that the statute at issue in Best is distinguishable from the

present statute and that the circuit court’s ruling represents an

unjustified expansion of Best. Defendants maintain that the damages

provision in section 2–1706.5 constitutes a valid exercise of the

General Assembly’s police power in response to a public threat, as

-7-

reflected in the legislative findings, and that under our precedents, the

statute does not offend separation of powers principles. Plaintiffs

continue to argue that Best is controlling and that neither this court’s

precedents, nor the legislative findings on which defendants rely, can

save the statute. We consider the Best decision in detail.

In Best, this court considered constitutional challenges to several

provisions of Public Act 89–7, commonly referred to as the Tort

Reform Act of 1995 or the Civil Justice Reform Amendments of

1995. Pub. Act 89–7, eff. March 9, 1995. Among the challenged

provisions was a $500,000 cap on noneconomic damages. Codified

at section 2–1115.1(a) of the Code, this provision stated:

“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).

The statute defined “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). The statute defined

“economic damages,” which were not capped, 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). The sum of noneconomic and economic

damages constituted “compensatory damages.” 735 ILCS

5/2–1115.2(c) (West 1996). Thus, damages which were intended to

make a person whole were limited by section 2–1115.1. Best, 179 Ill.

2d at 384.

Before considering the specific constitutional challenges to this

provision, we noted that the cap on noneconomic damages was

supported by several legislative findings which, as we later

recognized, were entitled to “great deference.” Best, 179 Ill. 2d at

389. These findings declared that:

“(1) limiting noneconomic damages will improve health care

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

-8-

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) *** limiting noneconomic damages was the most

effective step toward legislative reform of tort law because it

reduces litigation costs and expedites settlement.” Best, 179

Ill. 2d at 385.

We further noted that the preamble to Public Act 89–7 identified

several “purposes” of the damages cap: reducing the cost of health

care, increasing accessibility to health care, promoting consistency in

awards, reestablishing the credibility of the civil justice system,

establishing parameters for noneconomic damages, protecting the

economic health of the state by decreasing systemic costs, and

ensuring the affordability of insurance. Best, 179 Ill. 2d at 385.

Proceeding from the premise that our task was to determine the

constitutionality of the statute, and not its wisdom (Best, 179 Ill. 2d

at 390), we first considered the plaintiffs’ special legislation challenge

(Ill. Const. 1970, art. IV, §13). We observed 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.” Best, 179 Ill. 2d at 391. The plaintiffs

argued that the statute impermissibly penalized the most severely

injured persons whose award for noneconomic damages would likely

exceed $500,000, but for the statutory cap, and that the statute

arbitrarily benefitted certain tortfeasors by relieving them of liability

for fully compensating injured persons. The plaintiffs relied on

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

(holding that a $500,000 limit on compensatory damages in medical

malpractice actions was arbitrary and violated the special legislation

clause), Grace v. Howlett, 51 Ill. 2d 478 (1972) (holding that a statute

that limited recovery for certain automobile accident victims was an

arbitrary and unreasonable classification in violation of the special

-9-

legislation clause), and Grasse v. Dealer’s Transport Co., 412 Ill. 179

(1952) (holding that a workers’ compensation provision violated the

special legislation clause by creating unreasonable classifications in

which the plaintiff’s ability to recover complete compensation was

determined by fortuitous events).

We agreed with the plaintiffs that under Wright, Grace and

Grasse the automatic $500,000 limit on noneconomic damages was

arbitrary and violated the special legislation clause. Best, 179 Ill. 2d

at 406. Although agreeing with the defendants that noneconomic

injuries are difficult to assess, we determined that such difficulty was

not alleviated by imposing an arbitrary damages limitation in all

cases, without regard to the facts or circumstances. Best, 179 Ill. 2d

at 406. Indeed, we determined that the damages limitation actually

undermined the statute’s stated goal of providing consistency and

rationality to the civil justice system. Best, 179 Ill. 2d at 406. We also

rejected the defendants’ argument that the legislature’s interest in

reducing the systemic costs of tort liability was sufficient to overcome

the plaintiffs’ special legislation challenge, noting that the entire

burden of any cost savings would impermissibly rest on one class of

injured plaintiffs. Best, 179 Ill. 2d at 407.

We continued our analysis of section 2–1115.1 by considering the

plaintiffs’ argument that section 2–1115.1 also violated the separation

of powers clause (Ill. Const. 1970, art. II, §1). The plaintiffs argued

that the statute invaded the province of the judiciary to assess, on a

case-by-case basis, whether a jury’s award is excessive, by imposing

a one-size-fits-all legislative remittitur. The defendants countered that

the statutory cap simply set an outer parameter by which subjective

damages were limited and did not displace traditional judicial

functions.

We explained that the purpose of the separation of powers clause

“ ‘is to ensure that the whole power of two or more branches of

government shall not reside in the same hands.’ ” Best, 179 Ill. 2d at

410, quoting People v. Walker, 119 Ill. 2d 465, 473 (1988). “Each

branch of government has its own unique sphere of authority that

cannot be exercised by another branch.” Best, 179 Ill. 2d at 410. Thus,

“the legislature is prohibited from enacting laws that unduly infringe

upon the inherent powers of judges.” Best, 179 Ill. 2d at 411. Though

recognizing that the separation between the three branches of

-10-

government is “not absolute and unyielding” and may “overlap,” we

emphasized that the determination of whether a statute violates the

separation of powers clause rests with the judiciary. Best, 179 Ill. 2d

at 411.

We also reviewed the doctrine of remittitur, which has long been

recognized as a part of Illinois law. Best, 179 Ill. 2d at 412. We noted

that, for over a century, application of this doctrine has been a

traditional and inherent power of the judicial branch, to be exercised

in appropriate circumstances to correct an excessive jury verdict, and

that its application presents a question of law for the court. Best, 179

Ill. 2d at 411-12. Where a jury verdict “ ‘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,’ ” a court has a

duty to correct the verdict by ordering a remittitur, with the plaintiff’s

consent. Best, 179 Ill. 2d at 412, quoting Richardson v. Chapman,

175 Ill. 2d 98, 113 (1997). If consent is not given, the court has a duty

to order a new trial. Best, 179 Ill. 2d at 413. Whether a remittitur

should be ordered is necessarily considered on a case-by-case basis.

That is, the court must carefully examine the particular evidence and

circumstances of the case to determine whether it must override the

jury’s verdict. Best, 179 Ill. 2d at 413.

In Best, we concluded that, although the legislature may limit

certain types of damages, such as damages recoverable in statutory

causes of action (Best, 179 Ill. 2d at 415), the limitation on damages

in section 2–1115.1 violated the separation of powers clause:

“[S]ection 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

-11-

excessive within the meaning of the law.” Best, 179 Ill. 2d at

413-14.

We also concluded that section 2–1115.1 unduly expanded the

remittitur doctrine by forcing a successful plaintiff to forgo part of the

jury award, “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.” Best, 179 Ill.

2d at 414.

After considering constitutional challenges to other portions of

Public Act 89–7 and invalidating several provisions (Best, 179 Ill. 2d

at 459), we ultimately held the act void in its entirety (Best, 179 Ill.

2d at 467). We concluded that what remained of Public Act 89–7

could not be independently enforced. Best, 179 Ill. 2d at 467. In the

course of our analysis, we noted that the General Assembly

considered the cap on noneconomic damages essential to the tort

reform scheme. Best, 179 Ill. 2d at 465.

Before turning to the parties’ arguments regarding the

applicability of Best to the present litigation, we consider defendants’

contention that the separation of powers analysis in Best was

unnecessary to the disposition of that case and is therefore dicta

entitled to little weight. See Best, 179 Ill. 2d at 471 (Bilandic, J.,

specially concurring) (declining to join the separation of powers

analysis because it was “wholly unnecessary and constitutes dicta”);

Best 179 Ill. 2d at 481 (Miller, J., concurring in part and dissenting in

part) (stating that the separation of powers analysis “is entirely

unnecessary, given the majority’s prior holding that the same measure

is invalid special legislation”).

We agree that the separation of powers analysis in Best was not

necessary to our decision. The court had already determined that

section 2–1115.1 violated the special legislation clause; a further

reason for finding the statute unconstitutional was not required. We

disagree, however, that our opinion on this matter is mere dicta

entitled to little weight. As this court has explained, dictum is of two

types: obiter dictum and judicial dictum. People v. Williams, 204 Ill.

2d 191, 206 (2003). “Obiter dictum,” frequently referred to as simply

“dictum,” is a remark or opinion that a court uttered as an aside.

Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 277 (2009);

Cates v. Cates, 156 Ill. 2d 76, 80 (1993). Obiter dictum is not

-12-

essential to the outcome of the case, is not an integral part of the

opinion, and is generally not binding authority or precedent within the

stare decisis rule. Exelon, 234 Ill. 2d at 277. “In contrast, ‘an

expression of opinion upon a point in a case argued by counsel and

deliberately passed upon by the court, though not essential to the

disposition of the cause, if dictum, is a judicial dictum. [Citation.] ***

[A] judicial dictum is entitled to much weight, and should be

followed unless found to be erroneous.’ (Emphasis added.)” Exelon,

234 Ill. 2d at 277-78, quoting Cates, 156 Ill. 2d at 80. See also Woods

v. Interstate Realty Co., 337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93

L. Ed. 1524, 1526 (1949) (“where a decision rests on two or more

grounds, none can be relegated to the category of obiter dictum”).

Although the separation of powers discussion in Best was not

essential to our disposition, the issue was briefed by the parties and

“deliberately passed upon” by this court. Our analysis, summarized

above, examined the nature of the separation of powers doctrine and

the interplay between the three branches of government; the contours

of the remittitur doctrine and its place in Illinois law; and the effect

of the statutory cap on the trial court’s inherent authority to correct

excessive verdicts. Further, our conclusion was expressed as a

holding. Best, 179 Ill. 2d at 415; see also Unzicker v. Kraft Food

Ingredients Corp., 203 Ill. 2d 64, 93 (2002) (stating that in Best, we

“held” that section 2–1115.1 of the Code was an unconstitutional

legislative remittitur). Our opinion on this matter can hardly be

considered an “aside” and, if a dictum, is a judicial dictum.

Accordingly, it is entitled to much weight and should be followed

unless found to be erroneous. See Exelon, 234 Ill. 2d at 278.

Defendants do not argue that the separation of powers analysis in

Best is necessarily erroneous. Rather, they argue that the statute at

issue here, section 2–1706.5, is distinguishable from the statute

invalidated in Best, section 2–1115.1. Defendants maintain that while

section 2–1115.1 was part of a broad-based effort to reduce

systemwide litigation costs, section 2–1706.5 is narrowly tailored to

address a specific issue: the health-care crisis. Based on this

distinction, defendants argue that Best is not controlling and section

2–1706.5 does not unduly encroach upon the judiciary.

We agree with defendants that the scope of the statute at issue in

Best was much broader than the statute we examine here. The

-13-

damages cap in section 2–1115.1 applied to all actions, whether based

on the common law or statute, that sought damages “on account of

death, bodily injury, or physical damage to property based on

negligence, or product liability based on any theory or doctrine.” 735

ILCS 5/2–1115.1(a) (West 1996). In contrast, the damages cap in

section 2–1706.5 applies to “any medical malpractice action or

wrongful death action based on medical malpractice.” 735 ILCS

5/2–1706.5(a) (West 2008). Notwithstanding this difference, the

encroachment upon the inherent power of the judiciary is the same in

the instant case as it was in Best.

Under section 2–1706.5, the court is required to override the

jury’s deliberative process and reduce any noneconomic damages in

excess of the statutory cap, irrespective of the particular facts and

circumstances, and without the plaintiff’s consent. Section 2–1706.5

thus violates the separation of powers clause because it “unduly

encroaches upon the fundamentally judicial prerogative of

determining whether a jury’s assessment of damages is excessive

within the meaning of the law.” Best, 179 Ill. 2d at 414. Section

2–1706.5, like section 2–1115.1, effects an unconstitutional

legislative remittitur. The fact that the legislative remittitur operates

in perhaps fewer cases under section 2–1706.5 than it would have

under section 2–1115.1 does not extinguish the constitutional

violation.

The Attorney General argues, however, that the damages cap at

issue in Best was found by this court to be “arbitrary” and “not

rationally related to a legitimate government interest” (Best, 179 Ill.

2d at 408), whereas the present damages cap is rationally related to

the Act’s narrow aim of addressing the mounting crisis in access to

health care by stemming the cost of malpractice insurance. See Pub.

Act 94–677, §101(4), eff. August 25, 2005 (identifying the limitation

on noneconomic damages as one of the significant reforms to the civil

justice system designed to combat the health-care crisis). This

argument conflates our special legislation analysis in Best and our

separation of powers analysis in that case.

In Best, we first considered the plaintiffs’ special legislation

challenge and determined that the rational basis test was appropriate.

Best, 179 Ill. 2d at 393. Under this test, “ ‘a court must determine

whether the statutory classification is rationally related to a legitimate

-14-

State interest.’ ” Best, 179 Ill. 2d at 393, quoting In re Petition of the

Village of Vernon Hills, 168 Ill. 2d 117, 123 (1995). We ultimately

concluded that the damages cap was arbitrary and was not rationally

related to a legitimate state interest. Best, 179 Ill. 2d at 406-08. We

did not, however, incorporate that holding, rely upon it, or even

reference it in our separation of powers discussion, nor was it

necessary to do so. Best, 179 Ill. 2d at 410-15.

The separation of powers clause prohibits one branch of

government from exercising “powers properly belonging to another.”

Ill. Const. 1970, art. II, §1. Thus, the inquiry under the separation of

powers clause is not whether the damages cap is rationally related to

a legitimate government interest but, rather, whether the legislature,

through its adoption of the damages cap, is exercising powers

properly belonging to the judiciary. In other words, does the statute

unduly encroach on the judiciary’s “sphere of authority” (Allegis

Realty Investors v. Novak, 223 Ill. 2d 318, 334 (2006); Best, 179 Ill.

2d at 410)) or “impede the courts in the performance of their

functions” (Best, 179 Ill. 2d at 443)? The rational basis test is not part

of that legal determination. Numerous cases from this court illustrate

the distinction between a separation of powers analysis and a special

legislation analysis. See, e.g., In re Estate of Jolliff, 199 Ill. 2d 510

(2002); Burger v. Lutheran General Hospital, 198 Ill. 2d 21 (2001);

DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57 (1992); Bernier v.

Burris, 113 Ill. 2d 219 (1986).

For similar reasons, we reject defendants’ argument that section

2–1706.5 should not be deemed invalid because, unlike the statute in

Best which burdened one class of plaintiffs (Best, 179 Ill. 2d at 407),

the Act here balances the benefits and burdens of resolving the

health-care crisis among insurers, health-care providers and patients.

This argument, like the one before it, confuses our separation of

powers and special legislation analyses. Our observation in Best

regarding the burden of any cost savings effected by the damages cap

was made in the course of our special legislation discussion. We

stated:

“[W]e 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

-15-

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. [Citation.] We therefore reject

defendants’ systemic costs rationale as a basis for upholding

section 2–1115.1.” (Emphasis added.) Best, 179 Ill. 2d at 407.

We did not, in the context of examining the plaintiffs’ separation

of powers argument, consider whether the statute burdened a

particular group. See Best, 179 Ill. 2d at 410-16. Consideration of that

issue was unnecessary because, as explained above, a separation of

powers analysis asks whether the statute unduly infringes upon the

judiciary’s sphere of authority. Thus, a proper separation of powers

analysis of section 2–1706.5 does not consider whether the Act

balances the benefits and burdens of resolving the health-care crisis

or burdens a particular group. The intrusion on the judicial authority

effected by section 2–1706.5 is no less simply because other

provisions of the Act may impose burdens on parties other than

plaintiffs.

In a related vein, the Attorney General posits that section

2–1706.5 is but one part of a massive “multidimensional” response

to the health-care crisis which requires all interested parties–insurers,

medical professionals and health-care consumers–to make tradeoffs

and sacrifices. According to the Attorney General, the Act, through

a number of interrelated measures, constitutes an equitable means of

ensuring that everyone who stands to benefit from a resolution of the

health-care crisis contributes to its resolution. The Attorney General

cites to the Workers’ Compensation Act (820 ILCS 305/1 et seq.

(West 2008)) as an example of a multidimensional exercise of the

General Assembly’s police power which, although modifying the

common law, has been upheld by this court in a long line of cases.

See Duley v. Caterpillar Tractor Co., 44 Ill. 2d 15 (1969); Moushon

v. National Garages, Inc., 9 Ill. 2d 407 (1956); Grand Trunk Western

Ry. Co. v. Industrial Comm’n, 291 Ill. 167 (1919); Matthiessen &

Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378 (1918). The

Attorney General argues that section 2–1706.1, like the Workers’

Compensation Act, constitutes a legitimate exercise of the General

Assembly’s police power.

-16-

Plaintiffs dispute the Attorney General’s contention that the Act

requires all stakeholders to make a sacrifice. Plaintiffs argue that

hospitals gain enormous benefits under the Act, but are not required

to give anything in return. This aside, plaintiffs further respond that

the multidimensional nature of a legislative enactment does not

determine whether the enactment is constitutional, and that the

statutes at issue in Grasse, Wright, and Best were deemed invalid

even though each statute was part of a multidimensional enactment.

According to plaintiffs, whether the Act is multidimensional is of no

constitutional significance. We agree with plaintiffs.

In Grasse, we held unconstitutional a provision of the Workers’

Compensation Act–the very legislation the Attorney General posits

is an example of a multidimensional enactment. Grasse, 412 Ill. at

200. In Wright, we held unconstitutional a statutory damages cap,

without regard to the fact that it was but one provision of what may

be called a multidimensional act revising the law in relation to

medical malpractice. Wright, 63 Ill. 2d at 318, 329-30. Similarly, in

Best, we held a damages cap unconstitutional, notwithstanding that

it was but one provision of an “integrated ‘reform package.’ ” Best,

179 Ill. 2d at 465. As these cases demonstrate, though nothing

precludes the General Assembly from adopting a so-called

“multidimensional” response to a threat to the public welfare, the

multidimensional character of a statute does not preclude a finding by

this court that the statute is unconstitutional.

Defendants further argue that our decision in Unzicker v. Kraft

Food Ingredients Corp., 203 Ill. 2d 64 (2002), which rejected a

separation of powers challenge based on Best, teaches that the

separation of powers clause does not prevent the General Assembly

from dictating when a defendant can be liable for the full amount of

a jury’s verdict and that application of Unzicker to the present case

demonstrates that section 2–1706.5 does not operate as a legislative

remittitur. Plaintiffs counter that if Unzicker has any relevance here,

it supports the circuit court’s judgment.

In Unzicker we considered the constitutionality of section 2–1117

of the Code (735 ILCS 5/2–1117 (West 1994)), which modified the

common law rule of joint and several liability. Under the common

law, a plaintiff could recover compensation for the full amount of his

or her injury from any responsible defendant. Unzicker, 203 Ill. 2d at

-17-

70. Pursuant to section 2–1117, however, any tortfeasor whose

percentage of fault the trier of fact determined to be “less than 25%

of the total fault attributable to the plaintiff, the defendants sued by

the plaintiff, and any third party defendant who could have been sued

by the plaintiff, shall be severally liable” for the plaintiff’s

nonmedical damages. 735 ILCS 5/2–1117 (West 1994). Relying on

the separation of powers analysis in Best, the plaintiffs argued that the

change in the common law rule of joint and several liability amounted

to an unconstitutional legislative remittitur. We rejected this

argument, noting that, unlike the statute in Best, section 2–1117 did

not set a cap on damages. Unzicker, 203 Ill. 2d at 94. Rather, section

2–1117 merely determined “when a defendant can be held liable for

the full amount of a jury’s verdict and when a defendant is liable only

in an amount equal to his or her percentage of fault.” Unzicker, 203

Ill. 2d at 94.

Defendants contend that section 2–1706.5, like the statute in

Unzicker, does not limit a plaintiff’s recovery and merely provides

that certain defendants can be held liable for noneconomic damages

only up to a particular amount. We disagree with defendants’ reading

of the statute. By its plain terms, section 2–1706.5 limits a plaintiff’s

noneconomic damages. Section 2–1706.5 states, with respect to an

award against a hospital and its personnel or hospital affiliates, that

“the total amount of non-economic damages shall not exceed

$1,000,000.” 735 ILCS 5/2–1706.5(a)(1) (West 2008). Section

2–1706.5 similarly states, with respect to an award against a

physician and the physician’s business or corporate entity and

personnel or health-care professional, that “the total amount of non-

economic damages shall not exceed $500,000.” 735 ILCS

5/2–1706.5(a)(2) (West 2008). Unlike the statute in Unzicker, which

required the court to enter judgment in conformity with the jury’s

assessment of fault where the defendant was minimally responsible,

the statute here requires the court to enter a judgment at variance with

the jury’s determination and without regard to the court’s duty to

consider, on a case-by-case basis, whether the jury’s verdict is

excessive as a matter of law. Defendants’ attempt to fit this statute

within the Unzicker analysis is unavailing.

Defendants also argue that the separation of powers clause

“allows the legislature to enact statutes affecting the conduct of

-18-

litigation if its purpose is to serve legitimate legislative goals,” and

that the statute here, although affecting the conduct of litigation, is

plainly intended to address a health-care crisis. In support, defendants

rely chiefly on our analysis in Burger v. Lutheran General Hospital,

198 Ill. 2d 21 (2001), upholding a statutory medical records

disclosure provision against a separation of powers challenge.

Defendants’ reliance on Burger is misplaced. As plaintiffs note,

Burger did not involve a statute affecting the conduct of litigation.

Burger, 198 Ill. 2d at 41. Although the plaintiff in Burger argued that

the statute at issue impermissibly infringed upon the judiciary’s

inherent authority to regulate discovery, we concluded that the plain

language of the statute did not did so, and therefore the statute did

“not impinge upon the power of the judiciary.” Burger, 198 Ill. 2d at

39, 45. Moreover, we discern no broad holding in Burger under

which a legislative enactment that would otherwise run afoul of

separation of powers principles will be deemed to pass constitutional

muster simply because the enactment “serves legitimate legislative

goals.” The other precedents defendants cite are also inapposite. See

Chicago National League Baseball Club, Inc. v. Thompson, 108 Ill.

2d 357, 364-66 (1985) (rejecting a separation of powers challenge to

a statute subjecting night baseball games to noise emission

standards); Strukoff v. Strukoff, 76 Ill. 2d 53, 57-60 (1979) (rejecting

a separation of powers challenge to a statute which required a waiting

period between the court’s determination that grounds exist for

dissolution of the marriage and the court’s disposition of property).

This is not to say that the legislative purpose or goal of a statute

is irrelevant to a separation of powers analysis. In Burger, Thompson,

and Strukoff, we considered what the statutes required or regulated

and the legislature’s goals in enacting them. Burger, 198 Ill. 2d at 41;

Thompson, 108 Ill. 2d at 364; Strukoff, 76 Ill. 2d at 60. Here, too, we

necessarily consider what the statute purports to do–limit

noneconomic damages in medical malpractice actions–and the

legislature’s goal in enacting the statute–responding to a health-care

crisis. Our separation of powers analysis, however, does not stop

there. The crux of our analysis is whether the statute unduly infringes

upon the inherent power of the judiciary. That such an infringement

was unintended, based on the language and stated purpose of the

statute, does not resolve the constitutional infirmity.

-19-

Defendants stress that the General Assembly has the authority to

change the common law, which the General Assembly has regularly

exercised, and that invalidating section 2–1706.5 undermines that

authority and calls into question this court’s precedents upholding

statutes that limit a plaintiff’s damages. See Bernier v. Burris, 113 Ill.

2d 219 (1986); Siegall v. Solomon, 19 Ill. 2d 145 (1960); Smith v.

Hill, 12 Ill. 2d 588 (1958).

The issue is not whether the General Assembly may change the

common law. As we recognized in Best, the General Assembly’s

authority to “alter the common law and change or limit available

remedies *** is well grounded in the jurisprudence of this state.”

Best, 179 Ill. 2d at 408, citing Grand Trunk Western Ry. Co., 291 Ill.

167. See also Michigan Avenue National Bank v. County of Cook,

191 Ill. 2d 493, 519 (2000) (“legislature has the inherent authority to

repeal or change the common law and may do away with all or part

of it”). The General Assembly’s authority, however, is not absolute;

it must be exercised within constitutional bounds. See, e.g., People

v. Gersch, 135 Ill. 2d 384, 395-98 (1990) (recognizing both the

legislature’s inherent power to alter the common law and the court’s

duty to invalidate unconstitutional actions of our legislature). Here,

the legislature’s attempt in section 2–1706.5 to limit common law

damages in medical malpractice actions runs afoul of the separation

of powers clause.

Invalidating section 2–1706.5 does not, as defendants claim,

undermine this court’s precedents. In Bernier, Siegall, and Smith,

cited by defendants, we rejected constitutional challenges to statues

that prohibited awards of punitive damages in actions for healing art

malpractice, alienation of affections, and breach of promise to marry,

respectively. In Smith, we expressly rejected a separation of powers

challenge to the ban on punitive damages, stating:

“With reference to the act violating article III of the

constitution, we have already pointed out that the act does not

affect compensatory damages, but only damages considered

in their nature as punitive. The act in restricting recovery to

actual damages, which term includes both general and special

damages and encompasses compensatory damages because

they are synonymous, does not invade any judicial functions

of the courts. The act in barring punitive damages merely

-20-

establishes a ‘public policy’ that in the interest of society in

the particular class of cases such damages should not be

awarded. Such damages being allowed in the interest of

society, and not to recompense solely the individual, to deny

them cannot be said to deny any constitutional right or to

encroach upon any judicial function, or to violate any

constitutional guaranty of separation of powers.” Smith, 12 Ill.

2d at 598.

Our analysis in Smith makes plain that a ban on punitive damages is

not akin to a cap on noneconomic compensatory damages.

Invalidating section 2–1706.5 thus does not call into question our

holdings in Bernier, Siegall, and Smith.

Defendants further argue that if section 2–1706.5 is invalidated,

statutes which limit common law liability cannot survive. See 745

ILCS 49/5 et seq. (West 2008) (Good Samaritan Act; eliminating

negligence liability for certain health-care professionals and others

who voluntarily engage in life-saving activities); 740 ILCS 90/1, 3.1,

3.2, 4 (West 2008) (Innkeeper Protection Act; limiting hotel’s

liability for loss or damage to guest property); 745 ILCS 65/4 (West

2008) (Recreational Use of Land and Water Areas Act; eliminating

negligence liability of landowners who allow others to use their land

free of charge for recreational or conservation purposes); 210 ILCS

50/3.150 (West 2008) (Emergency Medical Services (EMS) Systems

Act; eliminating negligence liability for emergency providers of

medical services); 730 ILCS 115/1(e) (West 2008) (Probation

Community Service Act; eliminating negligence liability for

organizations and individuals who agree to accept community service

from offenders).

We decline to comment on the constitutionality of statutes that are

not before us. We note, however, that, unlike section 2–1706.5, none

of the statutes defendants cite requires a court to reduce a jury’s

award of noneconomic damages to a predetermined limit, irrespective

of the facts of the case. Though the Innkeeper Protection Act does set

a dollar cap for a hotel’s liability for damage or loss to guest property,

the statute also allows the parties to contract around the statutory

limit. 740 ILCS 90/1, 3, 3.1, 3.2, 4 (West 2008). Thus, the Innkeeper

Protection Act does not parallel section 2–1706.5.

-21-

Defendants direct this court’s attention to statutes limiting

noneconomic damages in medical malpractice cases that have been

adopted in other states. See Alaska Stat. §09.55.549 (2007) ($250,000

to $400,000 cap); Cal. Civ. Code §3333.2 (West 2009) ($250,000

cap); Colo. Rev. Stat. §13–64–302 (2008) ($300,000 cap); Fla. Stat.

§766.118 (2009) ($150,000 to $1,500,000 cap); Ga. Code Ann.

§51–13-1(b) (2009) ($350,000 to $1,050,000 cap); Haw. Rev. Stat.

§663–8.7 (2009) ($375,000 cap); Idaho Code Ann. §6–1603 (2008)

($250,000 cap); Md. Code Ann. Cts. & Jud. Proc. §3–2A–09 (2009)

($650,000 cap with $15,000 annual increase beginning January 1,

2009); Miss. Code Ann. §11–1–60(2)(a) (2008) ($500,000 cap); Mo.

Rev. Stat. §538.210 (2009) ($350,000 cap); Nev. Rev. Stat. §41A.035

(2009) ($350,000 cap); N.D. Cent. Code §32–42–02 (2009)

($500,000 cap); Ohio Rev. Code Ann. §§2323.43(A)(2), (A)(3) (West

2009) ($250,000 to $1,000,000 cap); Okla. Stat. tit. 63, §§1–1708.1F,

1–1708.1F–1 (2009) ($300,000 cap which may be lifted in some

cases); S.C. Code Ann. §15–32–220 (2008) ($350,000 to $1,050,000

cap with annual adjustment); Tex. Civ. Prac. & Rem. Code Ann.

§74.301 (Vernon 2009) ($250,000 to $500,000 cap); Utah Code Ann.

§78B–3–410 (2008) ($400,000 cap beginning July 1, 2002, plus

yearly inflation adjustment); W. Va. Code §55–7B–8 (2008)

($250,000 to $500,000 cap, plus yearly inflation adjustment); Wis.

Stat. §893.55(4)(d)(1) (2008) ($750,000 cap). Defendants contend

that the limits on damages contained in section 2–1706.5 are well

within the range of reasonable limits adopted by these states, and that

the General Assembly is on solid constitutional footing when the

lines it draws are “within the general area of limits that had been set

by other States.” Anderson v. Wagner, 79 Ill. 2d 295, 312 (1979).

We have reviewed the statutes defendants cite and observe that

the limitations on noneconomic damages adopted in other states vary

widely, not only in the amount of the cap, but other specifics. For

example, the California statute provides simply: “In no [medical

malpractice] action shall the amount of damages for noneconomic

losses exceed two hundred fifty thousand dollars ($250,000).” Cal.

Civ. Code §3333.2(b) (West 2009). In contrast, the Florida statute

sets up a more complex scheme, in which the damages cap may be as

low as $150,000 and as high as $1.5 million, depending upon whether

the medical negligence is attributable to a practitioner or

-22-

nonpractitioner; the negligence results in a permanent vegetative state

or death; the negligence caused a catastrophic injury to the patient; or

the negligence occurred during the provision of emergency care. Fla.

Stat. §766.118 (2009). On what basis defendants have determined

that such disparate provisions are all reasonable is not known, and it

is not for this court to judge the reasonableness of other states’

legislation. Moreover, defendants’ contention that because the

damages caps established by section 2–1706.5 fit within the range of

caps established by other states is not dispositive of whether section

2–1706.5 runs afoul of the separation of powers clause of this state’s

constitution. That “everybody is doing it” is hardly a litmus test for

the constitutionality of the statute.

We are also not persuaded by defendants’ argument that the

circuit court’s judgment should be reversed because courts of other

states, which have considered whether a limitation on noneconomic

damages violates separation of powers, have rejected this argument.

Defendants cite Garhart v. Columbia/HealthOne, L.L.C., 95 P.3d

571, 581-82 (Colo. 2004), Zdrojewski v. Murphy, 254 Mich. App. 50,

81-82, 657 N.W.2d 721, 739 (2002); Judd v. Drezga, 2004 UT 91,

¶36, 103 P.3d 135, and Estate of Verba v. Ghaphery, 210 W. Va. 30,

35, 552 S.E.2d 406, 411 (2001). Our own research reveals additional

cases from other states rejecting separation of powers challenges to

their statutes capping noneconomic damages in medical malpractice

actions. See, e.g., Evans v. State, 56 P.3d 1046, 1055-56 (Alaska

2002); Kirkland v. Blaine County Medical Center, 134 Idaho 464,

470-71, 4 P.3d 1115, 1121-22 (2000); Owens-Corning v. Walatka,

125 Md. App. 313, 335-39, 725 A.2d 579, 590-02 (1999); Gourley v.

Nebraska Methodist Health System, Inc., 265 Neb. 918, 955-56, 663

N.W.2d 43, 76 (2003).

Although decisions from other jurisdictions can provide guidance

where precedent from Illinois is lacking, we do not write today on a

blank slate. Our decision in Best guides our analysis. That the courts

of other states would hold differently based on their constitutional

jurisprudence applied to their statutes is of no moment. “This court’s

jurisprudence of state constitutional law cannot be predicated on ***

the actions of our sister states ***.” People v. Caballes, 221 Ill. 2d

282, 313 (2006).

-23-

We hold that the limitation on noneconomic damages in medical

malpractice actions set forth in section 2–1706.5 of the Code violates

the separation of powers clause of the Illinois Constitution (Ill. Const.

1970, art. II, §1) and is invalid. Because the Act contains an

inseverability provision (Pub. Act 94–677, §995, eff. August 25,

2005), we hold the Act invalid and void in its entirety. We emphasize,

however, that because the other provisions contained in Public Act

94–677 are deemed invalid solely on inseverability grounds, the

legislature remains free to reenact any provisions it deems

appropriate.

II

The partial concurrence and partial dissent is in agreement with

the majority opinion on one relatively minor point (that this case

presents a facial, and not an “as applied,” constitutional challenge)

and is otherwise opposed to the majority’s legal analysis and holding.

Therefore, for ease of discussion, we will refer to the partial

concurrence and partial dissent simply as the “dissent.”

Among the dissent’s criticisms is that we have “rush[ed]” to

address the constitutionality of Public Act 94–677; that we only

“purport” to defend the constitution; and that we stand as an

“obstacle” to the legislature’s efforts to find an answer to the health-

care crisis, “put[ting] at risk the welfare of the people.” Slip op. at 33,

41, 52 (Karmeier, J., concurring in part and dissenting in part, joined

by Garman, J.). The dissent implies that the majority opinion is

somehow an affront to the health-care reform efforts of the Obama

Administration, and expressly cautions that if we “persist in

invalidating damages caps,” dire consequences will likely follow. Slip

op. at 27-28, 51 (Karmeier, J., concurring in part and dissenting in

part, joined by Garman, J.).

Plainly, the Obama Administration’s health-care reform efforts

are not the backdrop against which we have decided the

constitutionality of Public Act 94–677, and we express no

opinion–favorable or otherwise–as to those efforts. Rather, our

decision in this case, that Public Act 94–677 cannot stand, is based,

as it must be, on the binding provisions of our state constitution and

our case law interpreting the same. Although we do not expect that

-24-

the members of this court will always agree as to what the law is, or

how to apply the law in a given case, we do expect that our

disagreements will focus on the legal issues, providing a level of

discourse appropriate to the state’s highest court. The emotional and

political rhetoric that peppers the dissent is ill-suited to this pursuit.

As to the legal issues the dissent does raise, we accept that, with

respect to the applicability of the Best decision, the members of this

court cannot speak with a unanimous voice. The dissent is as firm in

its belief that Best was wrongly decided as the majority is in its

conclusion that Best is as valid today as it was in 1997 and controls

the disposition of the present case. Our reasons therefor have already

been set forth above, and we find it unnecessary to reiterate those

reasons in contradistinction to the dissent’s views.

We are constrained, however, to respond directly to one issue

raised by the dissent, namely, that this court lacks subject matter

jurisdiction to consider the constitutionality of Public Act 94–677.

Slip op. at 36 (Karmeier, J., concurring in part and dissenting in part,

joined by Garman, J.). Because a reviewing court has a “duty to

consider its jurisdiction and dismiss the appeal if it determines that

jurisdiction is wanting,” we will consider this issue. Archer Daniels

Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984). See also In re

M.W., 232 Ill. 2d 408, 417 (2009) (“lack of subject matter jurisdiction

is not subject to waiver”).

The dissent’s view that this court lacks jurisdiction is based on its

conclusion that plaintiffs lack standing to challenge the

constitutionality of Public Act 94–677 and that the constitutional

issue is not ripe for review. Slip op. at 39 (Karmeier, J., concurring

in part and dissenting in part, joined by Garman J.). As discussed

below, issues of standing and ripeness do not implicate our subject

matter jurisdiction.

The related doctrines of standing and ripeness “seek[ ] to insure

that courts decide actual controversies and not abstract questions.”

People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro

Van, 177 Ill. 2d 314, 328 (1997). See also Wexler v. Wirtz Corp., 211

Ill. 2d 18, 23, (2004) (“doctrine of standing is to insure that issues are

raised only by those parties with a real interest in the outcome of the

controversy”); People v. Glisson, 188 Ill. 2d 211, 221 (1999) (same);

Best, 179 Ill. 2d at 382-84 (discussing ripeness with respect to

-25-

declaratory judgment statute); Weber v. St. Paul Fire & Marine

Insurance Co., 251 Ill. App. 3d 371, 372-73 (1993) (“whether an

action is ‘premature,’ that is, not ripe for adjudication, focuses on an

evaluation of the fitness of the issue for judicial decision at that point

in time”).

Under Illinois law, lack of standing is an affirmative defense,

which is the defendant’s burden to plead and prove. Wexler, 211 Ill.

2d at 22-23; In re Estate of Schlenker, 209 Ill. 2d 456, 461, 464

(2004); Greer v. Illinois Housing Development Authority, 122 Ill. 2d

462, 494 (1988). While a lack of subject matter jurisdiction cannot be

forfeited (M.W., 232 Ill. 2d at 417), a lack of standing will be

forfeited if not raised in a timely manner in the trial court (Skolnick

v. Altheimer & Gray, 191 Ill. 2d 214, 237 (2000); Greer, 122 Ill. 2d

at 508; Lyons v. Ryan, 324 Ill. App. 3d 1094, 1101 n.5 (2001)).

Ripeness, like standing, is also subject to forfeiture if not raised in the

trial court. In the Interest of General Order of October 11, 1990, 256

Ill. App. 3d 693, 696 (1993).

In the present case, Gottlieb and Martinoz did not assert in the

trial court that plaintiffs lack standing, nor did they argue that the

constitutional issue was not ripe for review. Thus, we deem these

arguments forfeited by these defendants. Dr. Levi-D’Ancona,

however, did assert lack of standing and ripeness as his first and

second affirmative defenses, and moved for judgment on the

pleadings as to these two defenses. The circuit court rejected Dr.

Levi-D’Ancona’s arguments and denied his motion for judgment on

the pleadings. Relying on Best, the circuit court concluded that

plaintiffs at least had standing to challenge the statutory cap on

noneconomic damages and that the constitutionality of the statutory

cap was ripe for review. The circuit court observed that catastrophic

injuries similar to those pled by plaintiffs in the instant case were pled

in the complaints at issue in Best, and that this court held that

“plaintiffs have alleged a sufficient and direct interest in the

application of the challenged provisions *** to their lawsuits.” Best,

179 Ill. 2d at 383. Significantly, Dr. Levi-D’Ancona did not renew his

standing and ripeness arguments before this court. Under our Rule

341, “[p]oints not argued [in the appellant’s brief] are waived.” 210

Ill. 2d R. 341(h)(7). Accord Skolnick, 191 Ill. 2d at 237 (this court

“will not supply contentions not advanced by the parties”).

-26-

Because issues of standing and ripeness do not implicate this

court’s subject matter jurisdiction, and because the only party who

raised these issues below has abandoned them on review, we decline

to address these issues on the merits.4

CONCLUSION

For the reasons stated, we reverse the judgment of the circuit

court finding the statute unconstitutional as applied to plaintiffs,

affirm the judgment of the circuit court finding the statute facially

invalid, and remand this matter to the circuit court for further

proceedings.

Affirmed in part and reversed in part;

cause remanded.

JUSTICE THOMAS took no part in the consideration or decision

of this case.

4

The dissent’s conclusion that standing and ripeness raise jurisdictional

concerns which this court must address even if the parties have not done so

might be worthy of consideration if this case was proceeding in federal

court. Under federal law, standing is a threshold question under the case-or-

controversy requirement of article III of the United States Constitution

(U.S. Const., art. III, §2; Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d

343, 354, 95 S. Ct. 2197, 2205 (1975)), which plaintiffs bear the burden of

pleading and proving (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61, 119 L. Ed. 2d 351, 364, 112 S. Ct. 2130, 2136 (1992)). Accord Elk

Grove Unified School District v. Newdow, 542 U.S. 1, 11-12, 159 L. Ed. 2d

98, 108-09, 124 S. Ct. 2301, 2308-09 (2004). Article III standing is

jurisdictional and not subject to waiver. United States v. Hays, 515 U.S.

737, 742, 132 L. Ed. 2d 635, 642, 115 S. Ct. 2431, 2435 (1995). See also

Native American Arts, Inc. v. Waldron Corp., 253 F. Supp. 2d 1041, 1045

(N.D. Ill. 2003) (concluding that, by definition, article III standing is not an

affirmative defense). This court is not required to follow federal law on

issues of standing, and has expressly rejected federal principles of standing.

See Greer, 122 Ill. 2d at 494 (holding that, in Illinois, lack of standing is an

affirmative defense, and contrasting Illinois with federal courts “where lack

of article III (U.S. Const., art. III) standing is a bar to jurisdiction”).

-27-

JUSTICE KARMEIER, concurring in part and dissenting in part:

In a recent address to a joint session of the United States

Congress, President Obama admonished that our nation’s “collective

failure to meet [the] challenge [of health-care reform]–year after year,

decade after decade–has led us to the breaking point.” Millions are

unable to obtain health care coverage,” he asserted; “medical costs are

rising”; and the existing system is “placing an unsustainable burden

on taxpayers.” According to the President, the failure to take

immediate corrective action will be dire: “Our deficit will grow. More

families will go bankrupt. More businesses will close. More

Americans will lose their coverage when they are sick and need it the

most. And more will die as a result.”

In outlining his strategy for addressing this crisis, the President

advanced a multifaceted plan. Although his proposal focused on

expanding health insurance coverage, he also recognized that reform

of medical malpractice laws might aid in reducing our nation’s

health-care costs, while also improving the quality of care delivered

by physicians and received by their patients.

That medical malpractice reforms might have salutary effects on

the delivery of affordable health-care in Illinois was a view shared by

our General Assembly when it enacted Public Act 94–677 in 2005. In

enacting that law, the General Assembly specifically found:

“This health care crisis, which endangers the public

health, safety, and welfare of the citizens of Illinois, requires

significant reforms to the civil justice system currently

endangering health care for citizens of Illinois.” Pub. Act

94–677, §101(4), eff. August 25, 2005.

The types of reforms which the legislature determined to be necessary

were those which would

“enhance the State’s oversight of physicians and ability to

discipline physicians, *** increase the State’s oversight of

medical liability insurance carriers, *** reduce the number of

nonmeritorious healing art malpractice actions, *** limit non-

economic damages in healing art malpractice actions, ***

encourage physicians to provide voluntary services at free

medical clinics, *** encourage physicians and hospitals to

continue providing health care services in Illinois, and ***

-28-

encourage physicians to practice in medical care shortage

areas.” Pub. Act 94–677, §101(5), eff. August 25, 2005.

The majority’s opinion contains a brief description of the

measures adopted by the General Assembly to implement these

objectives. To fully understand what the legislature hoped to

accomplish, however, additional discussion of the particulars of the

program may be helpful.

Section 310 of Public Act 94–677 amended the Illinois Insurance

Code (215 ILCS 5/1 et seq. (West 2004)) to subject medical

malpractice insurance carriers to greater oversight and reporting

requirements. Pub. Act 94–677, §310, eff. August 25, 2005.

Section 315 revised the Medical Practice Act of 1987 (225 ILCS

60/1 et seq. (West 2004)) to modify certain aspects of the disciplinary

process for physicians and create an internet-based system for

providing public access to information regarding such matters as

physicians’ criminal and disciplinary histories, whether a physician’s

hospital privileges have been revoked or involuntarily restricted, and

any medical malpractice judgments or arbitration awards which may

have been entered against a physician. Pub. Act 94–677, §315, eff.

August 25, 2005.

Section 330 (Pub. Act 94–677, §330, eff. August 25, 2005)

amended the Code of Civil Procedure (735 ILCS 5/1–101 et seq.

(West 2004)) by making various changes to the affidavit and written

report requirements set forth in section 2–622 (735 ILCS 5/2–622

(West 2004)), including addition of a requirement that the reviewing

health-care professional’s written report contain the health-care

professional’s name, address, current license number and state of

licensure. Section 330 of the Act also added a new section 2–1704.5

to the Code (735 ILCS 5/2–1704.5 (West 2006)), which allowed

either party to elect to have payments for future medical expenses and

cost of life care made to the prevailing plaintiff in a medical

malpractice action through purchase of an annuity. Another new

provision of the Code added by section 330 of the Act was section

2–1706.5 (735 ILCS 5/2–1706.5 (West 2006)). That statute created

standards for economic and noneconomic damages, including

establishment of limitations on the total amount of noneconomic

damages which could be awarded to plaintiffs in a medical

-29-

malpractice action.5 Two other changes to the Code made by section

330 of the Act were:

(a) inclusion in section 8–1901 (735 ILCS 5/8–1901

(West 2006)) of a provision rendering inadmissible “[a]ny

expression of grief, apology, or explanation” made by a

health-care provider to a patient, a patient’s family or a

“patient’s legal representative” regarding “an inadequate or

unanticipated treatment or care outcome” provided within 72

hours of when “the provider knew or should have known of

the potential cause of such outcome”; and

(b) revision of section 8–2501 (735 ILCS 5/8–2501 (West

2006)) regarding expert witness standards.

Section 340 of the Act amended section 30 of the Good Samaritan

Act (745 ILCS 49/30 (West 2006)) to expressly include retired

physicians within its immunities and to add a provision allowing free

clinics to receive reimbursement from the Illinois Department of

Public Aid subject to the condition that any such reimbursements

shall be used exclusively to pay the overhead expenses of operating

the clinic and may not be used to provide a fee or other compensation

to physicians or health care professionals receiving an exemption

from liability under the law’s provisions. Pub. Act 94–677, §340, eff.

August 25, 2005.

Finally, article 4 of the Act (Pub. Act 94–677, §§401 through 495,

eff. August 25, 2005), codified at 710 ILCS 45/401 et seq. (West

2006)), created a new Sorry Works! Pilot Program Act. The program

was intended to assess whether prompt apologies by hospitals and

physicians for errors in patient care accompanied by prompt offers of

fair settlements have an effect on the costs the hospitals and

physicians ultimately expend on healing art malpractice claims. The

program was to be of limited duration, no more than two years unless

5

In the case of awards against “a hospital and its personnel or hospital

affiliates” based on medical malpractice, the total amount of noneconomic

damages awarded to all plaintiffs is limited to $1 million. When the action

is against “a physician and the physician’s business or corporate entity and

personnel or health care professional,” the limit is $500,000. 735 ILCS

5/2–1706.5 (West 2006).

-30-

terminated sooner by the program’s oversight committee. 710 ILCS

45/415 (West 2006). It also had limited participation. In its first year,

it was to include just one hospital. The following year, provided the

program was not terminated, one additional hospital could be added.

710 ILCS 45/405 (West 2006).

While the need for health-care reform has gained nearly universal

recognition, the means for achieving that reform have been the

subject of intense debate. Some fear that government-mandated

changes will distort the health-care market, impede access to health-

care resources and interfere with the physician-patient relationship.

Others insist that unless the government takes strong and immediate

action to overhaul the current system, the costs of medical care will

exceed our society’s ability to bear them, leaving increasing numbers

of our citizens without access to vital health-care services.

The sentiments expressed by President Obama in his recent

address to Congress and the action taken by our General Assembly

through enactment of Public Act 94–677 are clearly premised on the

latter view. Whether this view is a sound one is a judgment our court

is not competent to render. Public policy determinations of this kind

are ultimately a matter for the legislature. Household Bank, FSB v.

Lewis, 229 Ill. 2d 173, 182 (2008). It is not our function to weigh the

wisdom of legislation or decide whether the policy it expresses

offends public welfare. Roselle Police Pension Board v. Village of

Roselle, 232 Ill. 2d 546, 557 (2009). This is no less true in matters

pertaining to health care. To the contrary, we have repeatedly noted

that the General Assembly has wide regulatory power with respect to

the health-care professions and that it is within the broad discretion

of the legislature “ ‘to determine not only what the public interest and

welfare require, but to determine the measures needed to secure such

interest.’ ” Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 40-

41 (2001), quoting Chicago National League Ball Club, Inc. v.

Thompson, 108 Ill. 2d 357, 364 (1985).

In his partial dissent in Mohanty v. St. John Heart Clinic, S.C.,

225 Ill. 2d 52 (2006), another case involving physicians, Justice

Freeman recently reminded us that

“ ‘[t]he primary expression of Illinois public and social

policy should emanate from the legislature. This is especially

true regarding issues like the present one, where there is

-31-

disagreement on whether a new rule is warranted. The

members of our General Assembly, elected to their offices by

the citizenry of this State, are best able to determine whether

a change in the law is desirable and workable.

*** The General Assembly, by its very nature, has a

superior ability to gather and synthesize data pertinent to the

issue. It is free to solicit information and advice from the

many public and private organizations that may be impacted.

Moreover, it is the only entity with the power to weigh and

properly balance the many competing societal, economic, and

policy considerations involved.’ ” Mohanty, 225 Ill. 2d at 96

(Freeman, J., concurring in part and dissenting in part),

quoting Charles v. Seigfried, 165 Ill. 2d 482, 493 (1995).

Our appellate court expressed the same principles this way:

“the authority to determine appropriate public policy is vested

in the legislature, not the courts. [Citations.] This court has

explained the reason that courts should be very cautious in

establishing public policy:

‘Courts are ill equipped to determine what the public

policy should be. Seldom are all interested parties, all

facts, and all issues present in a single case, where the

court can rationally balance all the factors necessary to

establish a policy good for society. Further, establishing

public policy may entail the balancing of political

interests. This is a function of the legislature, not the

courts.’ [Citation.]” Board of Education of Dolton School

District 149 v. Miller, 349 Ill. App. 3d 806, 811 (2004).

Because the formulation and implementation of public policy are

principally legislative functions, the courts afford substantial

deference to legislative enactments. Under Illinois law, statutes carry

a strong presumption of constitutionality. People v. McCarty, 223 Ill.

2d 109, 135 (2006). The burden of rebutting that presumption is on

the party challenging the statute. The burden is a heavy one. The party

challenging the law must clearly establish that it violates the

constitution. People v. Johnson, 225 Ill. 2d 573, 584 (2007). If it is

reasonably possible to uphold the constitutionality of a statute, a court

must do so. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306-07

-32-

(2008). We cannot nullify a legislative enactment merely because we

consider it unwise or believe it offends the public welfare. Roselle

Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 558

(2009). For us to second-guess the wisdom of legislative

determinations would, in fact, be prohibited by article II, section 1, of

the Illinois Constitution of 1970, which expressly states that “[n]o

branch shall exercise powers properly belonging to another.” In my

view, the majority’s opinion today flatly violates this prohibition.

While my colleagues purport to defend separation of powers

principles, it is their decision, not the action of the General Assembly,

which constitutes the improper incursion into the power of another

branch of government.

One point on which I agree with the majority is that the circuit

court erred in holding the statutory provision at issue here

unconstitutional “as applied.” For the reasons given by the majority,

the only question properly before us is whether the statute is

unconstitutional on its face. See slip op. at 6.

A facial challenge to the constitutionality of a legislative

enactment, such as the one brought here, is the most difficult to

mount because the circumstances in which a statute is facially invalid

are so limited. The fact that the enactment could be found

unconstitutional under some set of circumstances does not establish

its facial invalidity. Napleton v. Village of Hinsdale, 229 Ill. 2d at

305-06. To successfully challenge a statute as unconstitutional on its

face, one must show that the statute would be invalid under any

imaginable set of circumstances. As long as there exists some

situation in which a statute could be validly applied, a facial challenge

must fail. In re M.T., 221 Ill. 2d 517, 536-37 (2006).

Reduced to its essence, the majority’s argument is that Public Act

94–677 is unenforceable because the limitation on noneconomic

damages contained in section 330 of the Act, codified as section

2–1706.5 of the Code of Civil Procedure (735 ILCS 5/2–1706.5

(West 2006)), constitutes an impermissible encroachment upon the

inherent power of the judiciary to correct jury verdicts through

remittitur. In the majority’s view, this conclusion is compelled by our

prior decision in Best v. Taylor Machine Works, 179 Ill. 2d 367

(1997), which invalidated Public Act 89–7 based on a provision in the

law which amended the Code of Civil Procedure by placing a

-33-

$500,000 cap on compensatory damages for noneconomic injuries 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.”

735 ILCS 5/2–1115.1(a) (West 1996).

Before addressing the merits of the majority’s analysis, there is a

preliminary matter I feel constrained to raise. While I agree that a

significant constitutional question is presented by the issue of whether

the limits on noneconomic damages in medical malpractice actions

imposed by section 330 of Public Act 94–677 violate separation of

powers principles under our decision in Best , I question whether this

particular case is an appropriate vehicle for resolving the question.

That is so for two reasons. The first is jurisprudential. The second

pertains to justiciability.

Best was decided more than a decade ago. Since that time, our

court has applied the standards governing constitutional challenges to

state statutes with heightened diligence. We made the point recently

in People v. Hampton, where we held:

“Shortly after the appellate court’s opinion was entered in

this case, this court reaffirmed our long-standing rule that

‘cases should be decided on nonconstitutional grounds

whenever possible, reaching constitutional issues only as a

last resort.’ In re E.H., 224 Ill. 2d 172, 178 (2006). We

reminded courts that they must avoid reaching constitutional

issues when a case can be decided on other, nonconstitutional

grounds. In re E.H., 224 Ill. 2d at 178. Constitutional issues

should be addressed only if necessary to decide a case. People

v. Waid, 221 Ill. 2d 464, 473 (2006), quoting People ex rel.

Sklodowski v. State of Illinois, 162 Ill. 2d 117, 131 (1994). As

noted in E.H., this court has gone so far as to add a

requirement to our rules that courts include a written

statement that the decision cannot rest upon an alternate,

nonconstitutional basis before deciding a case on

constitutional grounds. In re E.H., 224 Ill. 2d at 178, citing

210 Ill. 2d R. 18(c)(4) (effective September 1, 2006).” People

v. Hampton, 225 Ill. 2d 238, 243-44 (2007).

Applying these principles in Hampton, we held that the appellate

court had prematurely considered the constitutionality of the statute

-34-

challenged in that case and vacated the portion of its judgment

addressing that constitutional issue. People v. Hampton, 225 Ill. 2d

at 245. The same result is appropriate here.

In the case before us, the circuit court did enter an order under

Rule 18(c)(4) in which it held that its judgment could not rest on an

alternative, nonconstitutional ground. At this point, however, no basis

for that finding exists. Should defendants prevail or should the

damages awarded by the jury be less than the limits imposed under

Public Act 94–677, judgment can certainly be entered without

addressing the law’s constitutionality.

To be sure, an immediate ruling on the validity of the law may

yield efficiencies for the resolution of this particular case or other

cases in which Public Act 94–677’s limits on noneconomic damages

hover as a potential constraint on a party’s recovery. We have clearly

held, however, that interests of efficiency or judicial economy do not

justify addressing a constitutional issue before it is necessary to reach

it. People v. Hampton, 225 Ill. 2d at 244-45.

Jurisprudential restraint regarding constitutional questions is not

a principle we are free to follow or ignore as we see fit, for it goes to

the very foundations of our tripartite system of government. As we

explained in Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d

169, 176 (2007),

“[t]he Illinois Constitution establishes three coequal branches

of government, each with its own powers and functions. Ill.

Const. 1970, art. II, §1. The constitution declares that the

legislative branch makes laws, and that the judicial branch

decides cases. *** The determination of the constitutionality

of a statute when not required to decide the case can impinge

upon the lawmaking function of the legislature. [Citation.]

The policy of prudential judicial restraint is grounded in those

considerations that form the unique character of judicial

review of government action for constitutionality. The policy

is based on the delicacy of that function, the necessity of each

branch of government keeping within its power, and the

inherent limitations of the judicial process. [Citation.]”

By proceeding to the constitutional issue in this case, when doing so

is not yet necessary for resolution of the case, the majority has

-35-

disregarded these fundamental principles. Under the reasoning of

Ultsch, its decision impermissibly trenches upon the authority of the

General Assembly.

A second and equally fundamental concern regarding whether it

is appropriate for us to reach the constitutional question at this stage

of the proceedings is justiciability. Article VI, section 9, of the Illinois

Constitution of 1970 expressly provides that circuit courts have

original jurisdiction over “all justiciable matters except when the

Supreme Court has original and exclusive jurisdiction.” In order to

invoke the subject matter jurisdiction of the circuit court, a plaintiff’s

case, as framed by the complaint or petition, must therefore present

a justiciable matter. Belleville Toyota, Inc. v. Toyota Motor Sales,

U.S.A., Inc., 199 Ill. 2d 325, 334 (2002). See also In re M.W., 232 Ill.

2d 408, 426 (2009).

Generally, a “justiciable matter” is “ ‘a controversy appropriate

for review by the court, in that it is definite and concrete, as opposed

to hypothetical or moot, touching upon the legal relations of parties

having adverse legal interests.’ [Citation.]” In re M.W., 232 Ill. 2d at

424. In ascertaining whether a justiciable matter has been presented,

courts consider various criteria including standing and ripeness. See

Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). In the

circuit court, Dr. Levi-D’Ancona. raised both these issues. He argued

that plaintiffs lacked standing to challenge the statute or, in the

alternative, that plaintiffs’ challenge was not yet ripe for adjudication.

The circuit court rejected Dr. Levi-D’Ancona’s standing and ripeness

challenges in so far as they pertained to plaintiffs’ claim for a

declaratory judgment that the portion of Public Act 94–677 adding

section 2–1706.5 to the Code of Civil Procedure contravened the

separation of powers provision of our state’s constitution (Ill. Const.

1970, art. II, §1). In my view, however, that was error.6

6

Although Dr. Levi-D’Ancona did not argue the ripeness and standing

issues in the brief he filed in our court, the issues should not be deemed to

have been waived. Standing is not a procedural technicality, but rather is

an aspect or component of justiciability. Bridgestone/Firestone, Inc. v.

Aldridge, 179 Ill. 2d 141, 147 (1997). The same is true of ripeness. We

have therefore held that when a plaintiff lacks standing to assert a claim or

a dispute is not ripe for adjudication, the circuit court’s judgment must be

-36-

Standing is an aspect of justiciability in which the primary focus

is upon the personal stake in the outcome of the controversy of the

person seeking the adjudication of a particular issue. The person

seeking to invoke the jurisdiction of the court must have some real

interest in the cause of action, or a legal or equitable right, title or

interest in the subject matter of the controversy. See Illinois

Municipal League v. Illinois State Labor Relations Board, 140 Ill.

App. 3d 592, 598 (1986). This requirement is not excused in

declaratory judgment actions. To the contrary, we have expressly held

that standing is a preliminary question in all declaratory judgment

actions. Village of Chatham v. County of Sangamon, 216 Ill. 2d 402,

419 (2005).

The doctrine of standing ensures that issues are raised only by

parties with a real interest in the outcome of the controversy. Under

the law of this state, standing is shown by demonstrating some injury

to a legally cognizable interest. The claimed injury, whether actual or

threatened, must be distinct and palpable, fairly traceable to the

defendant’s actions, and substantially likely to be prevented or

redressed by the grant of the relief requested. In the context of a

declaratory judgment action, “ ‘there must be an actual controversy

between adverse parties, with the party requesting the declaration

possessing some personal claim, status, or right which is capable of

being affected by the grant of such relief.’ ” Village of Chatham v.

County of Sangamon, 216 Ill. 2d at 419-20, quoting Greer v. Illinois

Housing Development Authority, 122 Ill. 2d 462, 493 (1988).

While the essence of the standing inquiry is whether a particular

party is entitled to have the court decide the merits of a dispute,

ripeness is concerned with the fitness of the issue for judicial decision

at a particular point in time. See Preferred Personnel Services, Inc.

v. Meltzer, Purtill & Stelle, LLC, 387 Ill. App. 3d 933, 938 (2009). In

evaluating a ripeness challenge to a declaratory judgment action, the

court considers whether a ruling on the dispute would be premature,

for a “court cannot pass judgment on mere abstract propositions of

set aside for lack of subject matter jurisdiction. People v. Capitol News,

Inc., 137 Ill. 2d 162, 170 (1990). Lack of subject matter jurisdiction is not

subject to waiver and cannot be cured through consent of the parties. In re

M.W., 232 Ill. 2d at 417.

-37-

law, render an advisory opinion, or give legal advice as to future

events.” See Stokes v. Pekin Insurance Co., 298 Ill. App. 3d 278, 281

(1998) (upholding dismissal of action seeking declaration that

insurance policy limits exceeded $100,000 on the grounds that

underlying liability had yet to be determined and that bare allegations

in complaint were insufficient to establish existence of actual

controversy).

Where, as here, plaintiffs attack a statute as unconstitutional, they

must bring themselves within the class as to whom the law is

allegedly constitutionally objectionable. Whether the requisite

standing exists must be determined on a case-by-case basis.

Messenger v. Edgar, 157 Ill. 2d 162, 171 (1993). It is therefore

pertinent to inquire who is and who is not complaining. Courts do not

rule on the constitutionality of a statute where the complaining party

is only theoretically affected by the alleged invalidity of the provision.

See Illinois Municipal League v. Illinois State Labor Relations

Board, 140 Ill. App. 3d at 599. To have standing to bring a

declaratory judgment action challenging the validity of a statute, one

must have sustained, or be in immediate danger of sustaining, a direct

injury as a result of enforcement of the statute. Village of Chatham v.

County of Sangamon, 216 Ill. 2d at 419-20.

The plaintiffs in this case have not yet prevailed on any of their

medical malpractice claims against any of the defendants named in

their complaint. The case remains at the pleading stage, and the

allegations of malpractice contained in the complaint have been

denied. Whether defendants will ultimately be found liable for

plaintiffs’ injuries and, if liable, whether plaintiffs will succeed in

establishing a basis for an award of noneconomic damages in excess

of the limits imposed by that portion of Public Act 94–677 adding

section 2–1706.5 to the Code of Civil Procedure is therefore entirely

speculative.

In the circuit court, the sole factual predicate advanced by

plaintiffs in support of their assertion that they are already facing

sufficient harm to satisfy standing requirements was the allegations

set forth in their complaint. Plaintiffs’ position is that those

allegations are comparable to the allegations we found sufficient in

Best v. Taylor Machine Works, 179 Ill. 2d at 383-84, when rejecting

a ripeness challenge to the validity of the statute at issue there. There

-38-

is, however, in a fundamental difference between how the issue was

raised in this case and how it came before us in Best. In Best, the

particular question of ripeness was decided in the context of motions

to dismiss under section 2–615 of the Code of Civil Procedure (735

ILCS 5/2–615 (West 2006)) filed by the opposing parties. Best v.

Taylor Machine Works, 179 Ill. 2d at 382. The allegations in the

complaint could therefore be taken as true. Here, by contrast, the

matter was decided in the context of separate motions filed by

plaintiffs and defendant Dr. Levi-D’Ancona under section 2–615

motions which were directed at their own respective pleadings. By

electing to proceed in this way, plaintiffs and Dr. Levi-D’Ancona

have conceded that the allegations in their respective pleadings are

false in so far as they have been controverted by opposing pleadings.

See Christensen v. Wick Building Systems, Inc., 64 Ill. App. 3d 908,

912 (1978). As we have noted, Dr. Levi-D’Ancona has vigorously

contested the factual basis for plaintiffs’ claims against him. The

factual basis which enabled our court to reject the ripeness challenge

in Best is therefore absent here.

Our court has recognized that an issue which is otherwise

nonjusticiable may nevertheless be examined when the magnitude or

immediacy of the interests involved warrant action by the court. This

so-called “public interest” exception arises most often when a matter

has become moot and, in that context, requires (1) the existence of a

question of public importance; (2) the desirability of an authoritative

determination for the purpose of guiding public officers in the

performance of their duties; and (3) the likelihood that the question

will recur. People v. Jackson, 231 Ill. 2d 223, 228 (2008).

While this court has never extended the doctrine to cases where

the problem with justiciability pertains to standing or ripeness, our

appellate court has ruled that the reasoning of our “public interest

exception” cases should also permit an exception to the ripeness

doctrine. See In re General Order of October 11, 1990, 256 Ill. App.

3d 693, 696 (1993). Assuming, without deciding, that the appellate

court’s view is correct, invocation of the doctrine is not warranted

here.

The public interest exception is construed narrowly and requires

a clear showing of each element before it may be applied. People v.

Jackson, 231 Ill. 2d 223, 228 (2008). That standard cannot be met in

-39-

this case. While it is evident that plaintiffs and the numerous entities

which have filed friend of the court briefs are keenly interested in our

views on the validity of the Public Act 94–677’s caps on

noneconomic damages, the law has been in effect since 2005. It is

now 2010. To my knowledge, there has yet to be a single documented

instance from any circuit in which any victim of medical malpractice

has seen his or her award of noneconomic damages actually reduced

pursuant to this statute.

Had such a reduction occurred, it would be easy to identify. There

would be a specific court order reducing the plaintiff’s recovery. That

is so because, under the portion of section 330 of Public Act 94–677

(Pub. Act 94–677, §330, eff. August 25, 2005) adding section

2–1706.5 to the Code of Civil Procedure, the court is prohibited from

informing the trier of fact of the existence of the statutory caps. The

jury is therefore free to award any amount supported by the evidence

and the principles governing liability. The caps are implemented by

the court only if the jury’s award exceeds the statutory maximum.

In some venues, the absence of affected judgments may be

attributable to counsel’s decision to forebear from proceeding to trial

until they see how this case is resolved. I do not believe, however,

that this explanation can account for the apparently universal absence

of cases in which the statute has been applied to a plaintiff’s

detriment. Opponents of the statutory caps theorize that the caps are

most likely to be triggered where substantial economic damages have

been suffered. I point out later in this dissent that this assumption is

flawed, but let us assume for purposes of the present discussion that

it is valid. Given that resolution of this case could have no effect

whatever on compensable economic damages, recovery of which is

free from any statutory maximums, and considering the compelling

financial incentives which always exist for recouping substantial

economic losses as expeditiously as possible, I think it doubtful that

every lawyer in every serious medical malpractice case in this state

has refrained from prosecuting meritorious claims for economic

damages merely because of the prospect that the amount of

noneconomic damages his or her clients may recover may ultimately

be subject to the caps at issue here. In any event, whatever the

explanation, one can at least say this: there is nothing in the record

-40-

before us today that would justify bypassing the normal requirements

for justiciability.

Under these circumstances, the majority’s rush to address the

constitutionality of Public Act 94–677 is not only inconsistent with

established principles of appellate review and judicial restraint, it

violates a central requirement imposed by article VI, section 9, of the

Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, §9). This is

clearly impermissible. We have no business telling the General

Assembly that it has exceeded its constitutional power if we must

ignore the constitutional constraints on our own authority to do so.

Even if I agreed that this matter was properly before us for a

decision on the merits, I could not concur in the majority’s opinion.

The majority bases its analysis on that portion of this court’s decision

in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), which found

that the cap on noneconomic damages contained in Public Act 89–7,

eff. March 9, 1995, violated the separation of powers clause of the

Illinois Constitution of 1970 (Ill. Const. 1970, art. II, §1). As Justice

Bilandic noted in his special concurrence in Best, however, that

opinion’s discussion of “the constitutionality of the damage’s cap

under the separation of powers doctrine *** [was] wholly

unnecessary and constitutes dicta.” Best, 179 Ill. 2d at 471 (Bilandic,

J., specially concurring). Dicta is not binding authority. Geer v.

Kadera, 173 Ill. 2d 398, 414 (1996). Even a “judicial dictum” does

not preclude reconsideration of a point of law. Nothing in any of this

court’s decisions, including its recent decision Exelon Corp. v.

Department of Revenue, 234 Ill. 2d 266 (2009), holds otherwise.

I note, moreover, that the legislation at issue here is substantially

different from Public Act 89–7. Public Act 89–7 was a

comprehensive tort reform package which imposed limits on

noneconomic damages “[i]n 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.” 735 ILCS 5/2–1115.1(a) (West

1996). By contrast, Public Act 94–677 represents an attempt by the

General Assembly to deal in a focused and particular way with the

health-care crisis it believed was threatening the health and welfare

of our citizens.

-41-

A similar situation was recently faced by the Supreme Court of

Ohio in Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-

Ohio-6948, where it was called upon to consider the constitutionality

of four tort-reform statutes implemented by Ohio’s legislature in

2005. The plaintiff in that case argued that the statutes were

functionally equivalent to laws which the courts had previously

invalidated on, inter alia, separation of powers grounds, and that,

under stare decisis, the court should be compelled to declare the new

statutes invalid for the same reasons. In rejecting that argument, the

court wrote:

“While stare decisis applies to the rulings rendered in

regard to specific statutes, it is limited to circumstances

‘where the facts of a subsequent case are substantially the

same as a former case.’ [Citation.] We will not apply stare

decisis to strike down legislation enacted by the General

Assembly merely because it is similar to previous enactments

that we have deemed unconstitutional. To be covered by the

blanket of stare decisis, the legislation must be phrased in

language that is substantially the same as that which we have

previously invalidated.

A careful review of the statutes at issue here reveals that

they are more than a rehashing of unconstitutional statutes. In

its continued pursuit of reform, the General Assembly has

made progress in tailoring its legislation to address the

constitutional defects identified by the various majorities of

this court. The statutes before us here are sufficiently different

from the previous enactments to avoid the blanket application

of stare decisis and to warrant a fresh review of their

individual merits.” Arbino v. Johnson & Johnson, 116 Ohio

St. 3d 468, 2007-Ohio-6948, at ¶¶23-24.

In my view, these considerations militate in favor of undertaking

a new analysis, independent of what we may have said in Best,

regarding validity of the damages caps established by section 330 of

Public Act 94–677. However, even if I accepted, for the sake of

argument, that the rationale of Best was otherwise controlling, I still

could not join the majority’s opinion.

The doctrine of stare decisis is never an inexorable command.

When it is clear a court has made a mistake, it will not decline to

-42-

correct it, even if the mistake has been reasserted and acquiesced in

for many years. People v. Colon, 225 Ill. 2d 125, 146 (2007). Indeed,

while adherence to stare decisis is important to the stability of the

law, when doubts are raised in the mind of the court as to the

correctness of a prior decision, it is the court’s duty to reexamine the

question involved in the prior case. Doggett v. North American life

Insurance Co. of Chicago, 396 Ill. 354, 360-61 (1947). Good cause

exists to depart from stare decisis when serious detriment to the

public interest is otherwise likely to result or where the precedent is

poorly reasoned or has proven unworkable. Tuite v. Corbitt, 224 Ill.

2d 490, 506 (2006). As so defined, good cause exists to reject this

court’s separation of powers analysis in Best.

Best’s conclusion that legislative caps on noneconomic damages

offend the separation of powers clause of the Illinois Constitution

rests entirely on the notion that such caps are the equivalent of a

remittitur, which courts alone have the authority to grant. For the

reasons which follow, this proposition is untenable.

First, remittitur is not a power specifically vested in the courts by

our constitution or the Constitution of the United States. It was

introduced into American jurisprudence by Justice Story in Blunt v.

Little, 3 F. Cas. 760 (D. Mass. 1822), a case he decided while sitting

on circuit in the federal district court in Massachusetts. While the

doctrine has gained acceptance in most United States jurisdictions, it

has itself been challenged as an unconstitutional abridgment of the

right to trial by jury. See Dimick v. Schiedt, 293 U.S. 474, 484, 79 L.

Ed. 603, 610, 55 S. Ct. 296, 300 (1935) (recognizing validity of

doctrine based on historical practice in the federal courts after 1822,

but observing that “it *** may be that if the question of remittitur

were now before us for the first time, it would be decided

otherwise”).

Debate over the propriety of judicial remittitur has been recurrent.

As recently as 1985, for example, the doctrine of remittitur was

abolished in Missouri by that state’s supreme court, which noted that

its “application in the appellate courts has been questioned since its

inception in Missouri as an invasion of a party’s right to trial by jury

and an assumption of a power to weigh the evidence, a function

reserved to the trier(s) of fact.” Firestone v. Crown Center

Redevelopment Corp., 693 S.W.2d 99, 110 (Mo. 1985). The doctrine

-43-

exists in that state today only because it was subsequently authorized

by the Missouri legislature. See Myers v. Morrison, 822 S.W.2d 906,

910 (Mo. App. 1991).

The view taken by the majority in this case that judicial remittitur

enjoys special constitutional protection is therefore unsupported by

the doctrine’s origins and history. If anything, the opposite is true.

The doctrine is constitutionally suspect. Accordingly, while remittitur

may sometimes be employed by Illinois courts, it cannot, in any

meaningful way, be viewed as an essential component of the judicial

power vested in those courts by the Illinois Constitution of 1970.

Second, the majority’s analysis perpetuates the misconception,

followed in Best, that legislatively imposed limits on damages in civil

cases are comparable to traditional judicial remittiturs. They are not.

When a court reduces a jury award to comply with a statutory

damages cap, it is in no sense reexamining a jury’s verdict or

imposing its own factual determination regarding what a proper

award might be. Rather, it is simply implementing “a legislative

policy decision to reduce the amount recoverable to that which the

legislature deems reasonable.” See Estate of Sisk v. Manzanares, 270

F. Supp. 2d 1265, 1277-78 (D. Kan. 2003); see also Myers v. Central

Florida Investments, Inc., No. 6:04–cv–1542–Orl–28DAB, slip op.

at 20 (M.D. Fla. October 23, 2008). Because reduction of an award to

comport with legal limits does not involve a substitution of the

court’s judgment for that of the jury, but rather is a determination that

a higher award is not permitted as a matter of law, it is not a remittitur

at all. See Johansen v. Combustion Engineering, Inc., 170 F.3d 1320,

1330-31 (11th Cir. 1999).

Justice Miller correctly recognized this point in his partial dissent

in Best. See Best, 179 Ill. 2d at 481 (Miller, J., concurring in part and

dissenting in part). State courts of review considering damages caps

in the wake of Best have uniformly reached the same conclusion.

Rejecting Best, they have held that such caps are distinguishable from

judicial remittiturs and constitute a legitimate exercise of legislative

power. See Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-

Ohio-6948, at ¶¶73-76 (statutory limit on noneconomic damages did

not exceed legislature’s power and impermissibly intrude on judicial

power to decide damages); Garhart v. Columbia/Healthone, L.L.C.,

95 P.3d 571, 581-82 (Colo. 2004) (“[w]e *** join those states that

-44-

have upheld damages caps as not infringing impermissibly on the

judicial role in the separation of powers”); Rhyne v. K-Mart Corp.,

358 N.C. 160, 168-69, 594 S.E.2d 1, 8 (2004) (statutory damages

caps are a proper exercise of legislature’s policymaking authority, and

because they do not grant the legislature the authority to reduce

excessive awards on a case-by-case basis, they are not a form of

remittitur); Judd v. Drezga, 2004 UT 91, ¶38, 103 P.3d 135 (statutory

cap on noneconomic damages upheld against separation of powers

challenge on the grounds that it was a permissible exercise of the

legislature’s power to declare what the law shall be, not an improper

usurpation of the judiciary’s function to decide controversies);

Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918,

956, 663 N.W.2d 43, 77 (2003) (damages cap does not act as a

legislative remittitur or otherwise violate principles of separation of

powers because it does not ask legislature to review a specific dispute

and determine the amount of damages. Instead–without regard to the

facts of a particular case–the cap imposes a limit on recovery in all

medical malpractice cases as a matter of legislative policy); Waste

Disposal Center, Inc. v. Larson, 74 S.W.3d 578, 590 (Tex. App.

2002) (legislature had authority under state constitution to impose

statutory damages cap and such cap is not an impermissible limit on

judiciary’s constitutional powers or jurisdiction); Evans v. State, 56

P.3d 1046, 1055 (Alaska 2002) (“damages caps cannot violate the

separation of powers, because the caps do not constitute a form of

remittitur”); Zdrojewski v. Murphy, 254 Mich. App. 50, 82, 657

N.W.2d 721, 739 (2002) (statutory limit on noneconomic damages in

medical malpractice actions was legitimate exercise of legislature’s

authority to enact substantive law and did not impermissibly infringe

on power of the judiciary to instruct jury and provide forum for

redress of grievances); Verba v. Ghaphery, 210 W. Va. 30, 35, 552

S.E.2d 406, 411 (2001) (legislature may set reasonable limits on

damage caps in civil actions without violating separation of powers

principles); Kirkland v. Blaine County Medical Center, 134 Idaho

464, 471, 4 P.3d 1115, 1122 (2000) (statutory cap on noneconomic

damages does not impermissibly infringe on the judiciary’s traditional

power of remittitur and was within the legislature’s power to enact);

Guzman v. St. Francis Hospital, Inc., 2001 WI App. 21, ¶17, 240

Wis. 2d 559, 623 N.W.2d 776 (statute setting cap on noneconomic

-45-

damages does not interfere with court’s discretion to order remittitur,

and legislature’s action in adopting damages cap does not violate

separation of powers); Owens-Corning v. Walatka, 125 Md. App.

313, 335-39, 725 A.2d 579, 590-92 (1999) (it is within the power of

the legislature to enact statutory caps, and such caps do not interfere

with a litigant’s right to a jury trial or infringe upon the judiciary’s

control over court proceedings); Pulliam v. Coastal Emergency

Services of Richmond, Inc., 257 Va. 1, 21-23, 509 S.E.2d 307, 319

(1999) (legislative damage caps do not invade the province of the

judiciary).

In a law review note written shortly after Best was decided, a

student at Northwestern University Law School opined that the

court’s remittitur analysis offered “a powerful new weapon in the

arsenal of those opposed to damages caps.” Note, Best v. Taylor

Machine Works, The Remittitur Doctrine, and the Implications for

Tort Reform, 94 Nw. U.L. Rev. 227, 272 (1999). As the foregoing

discussion suggests, however, the weapon has proved to be a dud.

With the exception of the majority’s opinion today, Best’s remittitur

analysis has not only been rejected by the federal courts, it has failed

to carry the day in any reported decision in any other state in the

United States since it was filed 12 years ago.

The majority makes the point that we should not follow a

particular course of conduct merely because “everybody is doing it.”

Slip op. at 22. This is sound advice indeed, and I have always

encouraged my children to follow it. Here is another useful tip: “It

can be no dishonor to learn from others when they speak good sense.”

Sophicles, Antigone (trans. E. Wyckoff). In my opinion, the view

taken by the other states and by the federal courts, namely, that

statutory damages caps are not equivalent to remittitur, is eminently

sensible and should be adopted in Illinois.

The separation of powers analysis in Best is flawed for another

reason as well. It fails to acknowledge the legislature’s constitutional

power to make, amend, alter and abolish the laws of this state. See

Waste Disposal Center, Inc. v. Larson, 74 S.W.3d at 590.

The power of our legislature to change the law is not limited to

laws enacted by the General Assembly itself. It also extends to the

common law. Our Common Law Act (5 ILCS 50/0.01 et seq. (West

2008)) expressly provides:

-46-

“The common law of England, so far as the same is

applicable and of a general nature, and all statutes or acts of

the British parliament made in aid of, and to supply the

defects of the common law, prior to the fourth year of James

the First, excepting the second section of the sixth chapter of

43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth

chapter of 37th Henry Eighth, and which are of a general

nature and not local to that kingdom, shall be the rule of

decision, and shall be considered as of full force until

repealed by legislative authority.” (Emphasis added.) 5 ILCS

50/1 (West 2008).

Legislative authority in Illinois is vested in our General Assembly. Ill.

Const. 1970, art. IV, §1. Consistent with these principles, it has long

been recognized that “[t]he Illinois General Assembly has the

inherent power to repeal or change the common law, or do away with

all or part of it.” People v. Gersch, 135 Ill. 2d 384, 395 (1990);

Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,

519 (2000). Indeed, our legislature has been “formally recognized as

having a superior position to that of the courts in establishing

common law rules of decision.” People v. Gersch, 135 Ill. 2d at 395.

In accordance with its place in our constitutional and statutory

order, the legislature possesses broad discretion to determine whether

a proposed statute which would restrict or alter an existing remedy is

reasonably necessary to promote the general welfare. Bilyk v. Chicago

Transit Authority, 125 Ill. 2d 230, 245 (1988). It may not exercise that

discretion in a way which is not rationally related to a legitimate

government interest. As the majority points out, however, whether

there is a rational basis for damages caps was not part of Best’s

separation of powers analysis and is not relevant to the question

before us today. Slip op. at 14-20.

Limitation or abolition of common law remedies by the

legislature sometimes triggers challenges under article I, section 12,

of the Illinois Constitution, which provides:

“Every 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.” Ill. Const. 1970, art. I, §12.

-47-

The courts have held, however, that even this provision does not

prevent the legislature from doing such things as limiting the time

within which an action may be brought, even if the statute could have

the effect of barring a party’s cause of action before the discovery of

the ground for it; elevating the standard of care for tort liability from

ordinary negligence to wilful and wanton negligence; or, most

importantly for this case, restricting the type or amount of damages

a party may recover. Bilyk v. Chicago Transit Authority, 125 Ill. 2d

at 245.

The majority posits that the authority which the legislature would

otherwise have to change the common law is constrained in this case

by the separation of powers doctrine. For the reasons previously

discussed, however, the cap on noneconomic damages imposed by

section 330 of Public Act 94–677 in no way usurps the power of the

judiciary. It is an altogether proper exercise of the legislature’s

authority to change the common law. Given that the legislature is

fully empowered to alter common law remedies, it cannot contravene

separation of powers principles when it exercises that power as it did

in this case. See Kirkland v. Blaine County Medical Center, 134

Idaho at 471, 4 P.3d at 1122 (“[b]ecause it is properly within the

power of the legislature to establish statutes of limitations, statutes of

repose, create new causes of action, and otherwise modify the

common law without violating separation of powers principles, it

necessarily follows that the legislature also has the power to limit

remedies available to plaintiffs without violating the separation of

powers doctrine”).

Faced with universal rejection of Best’s separation of powers

analysis, the majority clings to the decision based on the principle that

“ ‘[t]his court’s jurisprudence of state constitutional law cannot be

predicated on *** the actions of our sister states ***.’ ” Slip op. at 23.

But the passage they cite, which is from People v. Caballes, 221 Ill.

2d 282, 313 (2006) (Caballes II), is taken out of context. At issue in

Caballes was whether a canine sniff constituted a “search” within the

meaning of the Illinois Constitution. While some other states had

found that canine sniffs were searches under their constitutions, the

United States Supreme Court declared that they do not constitute a

search for purposes of the fourth amendment to the United States

Constitution. Caballes II reaffirmed that Illinois follows a limited

-48-

lockstep approach and that under that approach, the search and

seizure provisions of the Illinois Constitution are to be interpreted the

same way as corresponding provisions of the federal constitution.

Caballes, 221 Ill. 2d at 315.

In reaching this conclusion regarding the relationship between

cognate provisions of the Illinois and federal constitutions, we relied

both on prior Illinois precedent and on the recognition that, in the end,

it is the intent of the framers of the Illinois Constitution of 1970 and

those who adopted it which controls our interpretation of its

provisions, including whether those provisions are to be interpreted

more expansively than federal law. Caballes, 221 Ill. 2d at 313. It is

because the intent of the framers and the voters who approved the

constitution must always be the guiding factor in construing that

document that we made the statement, abbreviated by the majority,

that our “jurisprudence of state constitutional law cannot be

predicated on trends in legal scholarship, the actions of our sister

states, a desire to bring about a change in the law, or a sense of

deference to the nation’s highest court.” Caballes, 221 Ill. 2d at 313.

In the matter before us, no one is suggesting that our view of the

separation of powers clause of the Illinois Constitution be predicated

on anything other than the intent of those who framed and adopted the

Constitution. The preeminence of that intent, however, does not

preclude reference to how other courts have analyzed similar

provisions under similar circumstances. In interpreting and applying

the law of Illinois, our court regularly considers how courts in other

jurisdictions have construed similar provisions of their law. See, e.g.,

People v. Pawlaczyk, 189 Ill. 2d 177, 195 (2000); P.R.S.

International, Inc. v. Shred Pax Corp., 184 Ill. 2d 224, 238-39

(1998); Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 29-

30 (1996); People ex rel. O’Malley v. 6323 North LaCrosse Ave., 158

Ill. 2d 453 (1994); People v. Wegielnik, 152 Ill. 2d 418, 426 (1992);

Bernier v. Burris, 113 Ill. 2d 219 (1986); People ex rel. Latimer v.

Board of Education of the City of Chicago, 394 Ill. 228, 236 (1946).

Moreover, as the foregoing authorities demonstrate, we have found

it appropriate to consider the well-reasoned decisions of other

jurisdictions not only when interpreting statutory provisions, but also

when examining the protections afforded by the Illinois Constitution.

We do this not because the views of the other states are in any way

-49-

controlling, but simply because the points they make may provide

insight into the intent of those who drafted and approved our own

laws.

No principle of appellate review bars us from following that same

course here. Contrary to the apparent view of the majority, taking into

account how other state courts have dealt with similar legal issues in

similar circumstances is no threat to Illinois’ sovereignty or the

authority of Illinois’ courts. It is simply good sense.

In summarizing the court’s decision in Best, the majority repeated

the argument made by the plaintiffs in that case that caps on non-

economic damages were objectionable because they “impermissibly

penalized the most severely injured persons.” Slip op. at 9. A similar

sentiment has been expressed with regard to the damages cap at issue

in this case. It is a moving appeal to the human desire to provide for

those in need. But at some point one must ask: is it true? Whether and

to what extent a person sustains noneconomic injury is affected by

many factors besides the severity of the physical harm he or she has

suffered. In some cases, such as high wage earners whose injuries

force them to miss work, major economic damages may be

accompanied by relatively modest noneconomic loss. In other

instances, a less serious but more traumatic injury may result in

significant noneconomic damage but relatively minor economic loss.

The total damages under both scenarios could be similar, yet the

extent of the underlying physical injury could be substantially

different. Contrary to the assumption of those who oppose Public Act

94–677, there would be no direct correlation between magnitude of

the physical injury and the size of noneconomic loss sustained. As a

result, application of the damages cap would not necessarily penalize

the most seriously injured plaintiffs.

Of course, it is not difficult to imagine situations in which a

severe injury is accompanied by both heavy economic losses and

profound noneconomic damages. If the cap on noneconomic damages

is truly problematic, however, one would expect to see situations in

which its application has resulted in hardship. That has not happened.

As I pointed out earlier in this dissent, we have yet to see a single

instance in which the caps have even been triggered.

One must also wonder whether opponents of caps on

noneconomic damages have fully considered the possible

-50-

consequences of declaring imposition of such caps to be beyond the

legislature’s authority. What the majority does not see or fails to

acknowledge is that by focusing on the fortunes of individual

plaintiffs, it looks at only a small part of the economic landscape. The

cap on noneconomic damages is premised on the assumption that the

potential for unlimited awards of such damages will imperil the

availability of medical care to the population as a whole. There is

nothing in the record in this case by which we can ascertain whether

this assumption will prove correct in practice, but we cannot say the

assumption is an unreasonable one. If it is correct, the cumulative

harm from reduced access to medical treatment could easily

overshadow the benefits a few individual plaintiffs stand to realize

from abolition of damages caps. Should that happen, the equities will

look far different than opponents of the caps have portrayed them.

Faced with this prospect, the General Assembly may respond to

today’s decision by eliminating all noneconomic damages in medical

malpractice cases. Nothing in the majority’s separation of powers

analysis would preclude it from doing so. Indeed, the legislature

could, without violating separation of powers principles, go so far as

to abolish civil actions for medical malpractice completely and

replace them with a claims system comparable to the one it has

established for workers compensation. If the majority persists in

invalidating damages caps, the legislature may be left with no

alternative. If our legislature fails to act, while caps are eliminated in

other states, imposition of restrictions by the federal government,

which would not be constrained by state constitutional provisions, is

a possibility. For those committed to insuring that victims of medical

malpractice receive the maximum possible compensation for their

injuries, these loom as sobering possibilities.

Illinois and the country are at a crossroads in the deepening

struggle to manage the health-care crisis. As the legislative branch

experiments with workable solutions, the courts must be vigilant

about ensuring that the laws enacted by the General Assembly

comport with constitutional requirements. In exercising our authority,

however, we must remain mindful that the constitution constrains the

courts as well.

In his partial dissent in Best, Justice Miller lamented that

-51-

“[t]oday’s decision represents a substantial departure from our

precedent on the respective roles of the legislative and judicial

branches in shaping the law of this state. Stripped to its

essence, the majority’s mode of analysis simply constitutes an

attempt to overrule, by judicial fiat, the considered judgment

of the legislature.” Best, 179 Ill. 2d at 487 (Miller, J.,

concurring in part and dissenting in part).

The same is true of the court’s opinion today.

Our job is to do justice under the law, not to make the law.

Formulating statutory solutions to social problems is the prerogative

of the legislature. Whether there is a solution to the health-care crisis

is anyone’s guess. I am certain, however, that if such a solution can

be found, it will not come from the judicial branch. It is critical,

therefore, that the courts not stand as an obstacle to legitimate efforts

by the legislature and others to find an answer. If courts exceed their

constitutional role and second-guess policy determinations by the

General Assembly under the guise of judicial review, they not only

jeopardize the system of checks and balances on which our

government is based, they also put at risk the welfare of the people

the government was created to serve.

For all of the foregoing reasons, I respectfully concur in part and

dissent in part.

JUSTICE GARMAN joins in this partial concurrence and partial

dissent.

-52-