When Itts Broken, Donnt 'Fix' It: Why Noneconomic Damage Caps Fatally Flaw Federal Due Process Jurisprudence

Abstract

All state civil jury trial clauses, like their federal counterpart, find their interpretative basis in the English common law and all states recognize the historic origin of the civil jury trial right. Nevertheless, tort reformists have argued that excessive jury verdicts in personal injury cases have caused significant increases in tort litigation expenses and insurance premiums for medical professionals. Sufficiently convinced that civil jury trial procedure was broken, many state legislatures imposed fixed caps on recovery for noneconomic damage in personal injury cases. But no preliminary finding of excessiveness triggers any state’s noneconomic damage cap. Moreover, the Court has established the compensatory award, which consist of economic and noneconomic damages, as the starting point of a due process reasonableness review of a punitive award. This starting point erroneously assumes plaintiffs receive full compensation for the noneconomic value of an injury. This Article investigates state law statutory caps on noneconomic damage awards in personal injury cases. This Article discusses cap-affirming jurisprudence, which primarily relies on legislative authority to mandate juryless fact-finding but fails to reconcile traditional constitutional and common law norms. This Article also explores cap-disapproving jurisprudence, which primarily relies on the traditional fact-finding role of the civil jury but fails to address claims of excessiveness. This Article analogizes a similar tension in federal criminal jury trial clause jurisprudence between legislative authority to mandate juryless fact-finding at sentencing and the criminal jury trial right. This Article implores cap-approving state supreme courts to recognize traditional limits on legislative authority to alter constitutional rights and argues that noneconomic damage caps in common law-based personal injury cases significantly flaw the Court’s Due Process Clause reasonableness review of punitive damage awards. This Article maintains that caps are unnecessary, as excessive and arbitrary awards are a violation of due process. Unlike other works on this subject, this Article proposes a framework that advances the state’s dual interests to protect civil defendants from unreasonably high awards and severely injured plaintiffs from arbitrarily low awards. This framework also addresses and cures the constitutional defect that noneconomic damage caps produce in federal due process punitive damage jurisprudence.