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Full Opinion
AUSTIN SOFIE, ET AL, Appellants,
v.
FIBREBOARD CORPORATION, ET AL, Respondents.
The Supreme Court of Washington, En Banc.
Schroeter, Goldmark & Bender, William Rutzick, Janet L. Rice, and Kirk I. Mortensen; Stritmatter, Kessler & McCauley and Paul Stritmatter, for appellants.
Gibson, Dunn & Crutcher, by Steven T. Johnson, Kent T. van den Berg, Gary C. Grotz, and Mark Hughes, for respondents Fibreboard, Celotex, Owens-Illinois, and Keene Corporations.
Williams, Kastner & Gibbs, by William H. Mays, Mary H. Spillane, and Elizabeth A. Christianson, for respondent Eagle-Picher Industries.
McKay & Gaitan, by Linda E. Blohm, for respondent Raymark Industries.
Bryan P. Harnetiaux and Robert H. Whaley on behalf of Washington State Trial Lawyers Association; Daniel F. Sullivan and Jeffrey Robert White on behalf of Association of Trial Lawyers of America; Richard H. Robblee on behalf of United Association of Journeymen and Apprentices, amici curiae for appellants.
*638 Kenneth O. Eikenberry, Attorney General, Michael E. Tardif, Senior Assistant, and Michael Madden, Assistant; Bertha B. Fitzer and F. Ross Burgess on behalf of Washington Defense Trial Lawyers Association and Defense Research Institute; Jeffrey I. Tilden and Rex C. Browning on behalf of the Liability Reform Coalition, amici curiae for respondents.
[As amended by order of the Supreme Court September 27, 1989.]
UTTER, J.
Austin and Marcia Sofie challenge the constitutionality of RCW 4.56.250. This statute, part of the 1986 tort reform act, places a limit on the noneconomic damages recoverable by a personal injury or wrongful death plaintiff. The Sofies brought a direct appeal to this court after the trial judge in their tort action, under the direction of the statute, reduced the jury's award of noneconomic damages. The respondents subsequently cross-appealed to the Court of Appeals, raising several issues of trial court error, issues we consider here.
The Sofies argue that RCW 4.56.250 violates their constitutional rights to trial by jury, equal protection, and due process. We find that the statute's damages limit interferes with the jury's traditional function to determine damages. Therefore, RCW 4.56.250 violates article 1, section 21 of the Washington Constitution, which protects as inviolate the right to a jury. Because the statute is unconstitutional on this basis, we do not consider its constitutionality under the latter two doctrines raised by appellants, although we briefly survey the equal protection issues. Respondents' arguments concerning trial court error are without merit.
The Washington Legislature passed RCW 4.56.250 in 1986 partly as a response to rising insurance premiums for liability coverage. The damages limit that the statute creates operates on a formula based upon the age of the plaintiff.[1] As a result, the older a plaintiff is, the less he or *639 she will be able to recover in noneconomic damages. The trial judge applies the limit to the damages found by the trier of fact. If the case is tried before a jury, the jury determines the amount of noneconomic damages without knowledge of the limit. The jury goes about its normal business and the judge reduces, according to the statute's formula and without notifying the jury, any damage verdicts that exceed the limit.
In September 1987, the Sofies sued Fibreboard Corporation and other asbestos manufacturers for the harm caused to Mr. Sofie by their asbestos products. Mr. Sofie, then aged 67, was suffering from a form of lung cancer ย mesothelioma ย caused by exposure to asbestos during his career as a pipefitter. At trial, Mr. Sofie's attorneys presented evidence of the extreme pain he experienced as a result of the disease. The testimony indicated that Mr. Sofie spent what *640 remained of his life waiting for the next "morphine cocktail," for the next hot bath, for anything that would lessen his consuming physical agony.
At the end of the trial, the jury found the defendants at fault for Mr. Sofie's disease. They returned a verdict of $1,345,833 in favor of the Sofies. Of this amount, $1,154,592 went to compensate noneconomic damages: $477,200 for Mr. Sofie's pain and suffering and $677,392 for Mrs. Sofie's loss of consortium. While the trial judge specifically found the jury's finding of damages reasonable, he indicated he was compelled under the damages limit to reduce the noneconomic portion of the verdict to $125,136.45, resulting in a total judgment of $316,377.45.
I
Appellants argue that RCW 4.56.250 violates their right to equal protection under the law as guaranteed by Const. art. 1, ยง 12. This constitutional provision states:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
Although the language of article 1, section 12 differs from the fourteenth amendment to the federal Constitution, this court has generally followed the federal tiered scrutiny model of equal protection analysis originally developed by the United States Supreme Court. See, e.g., Daggs v. Seattle, 110 Wn.2d 49, 55, 750 P.2d 626 (1988). We have followed this approach because a separate analysis focusing on the language and history of our state constitution has not been urged. In one of their briefs, appellants point out that this court initially used an analysis based upon the different language of our own constitution. See, e.g., State v. Carey, 4 Wash. 424, 30 P. 729 (1892). They argue that it is appropriate to consider both the tiered scrutiny model of equal protection analysis as well as a language-specific analysis similar to the one developed by the Oregon Supreme Court. See, e.g., State v. Clark, 291 Or. 231, 630 *641 P.2d 810 (1981); State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981).
In the context of tiered scrutiny, appellants argue that this court should review the noneconomic damages limit under the midlevel scrutiny followed in State v. Phelan, 100 Wn.2d 508, 671 P.2d 1212 (1983) and Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810, 539 P.2d 845 (1975). They contend that Mr. Sofie belongs to a "semi-suspect class" ย discrete but not suspect ย of severely injured plaintiffs. Citing Hunter, they also claim that the damages limit affects an important right: the right to be indemnified for personal injuries. Under such a midtier analysis, this court generally requires that the challenged law further a substantial state interest. Daggs, 110 Wn.2d at 55.
Respondents contend that intermediate scrutiny should not apply because the damages limit amounts to economic legislation. Such legislation, they maintain, is reviewed under the deferential rational basis test. In support of this they cite, among other cases, Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 57 L.Ed.2d 595, 98 S.Ct. 2620 (1978) (upholding the Price-Anderson Act).
Courts in some other states have struck down similar tort damage limits on equal protection grounds. See, e.g., Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 830 (1980) (striking limit on noneconomic damages after finding right to recover for personal injuries an "important substantive right,") (citing Hunter); Arneson v. Olson, 270 N.W.2d 125, 132 (N.D. 1978) (applying heightened scrutiny to flat damages limit); see also Comment, Constitutional Challenges to Washington's Limit on Noneconomic Damages in Cases of Personal Injury and Death, 63 Wash. L. Rev. 653 (1988); Development in the Law: The 1986 Washington Tort Reform Act, 23 Willamette L. Rev. 211 (1987). Other courts, however, have upheld limits, analyzing the legislation under the rational basis test. See, e.g., Fein v. Permanente Med. Group, 38 Cal.3d 137, 695 P.2d 665, 211 Cal. Rptr. 368, appeal dismissed, 474 U.S. 892, 88 L.Ed.2d *642 215, 106 S.Ct. 214 (1985); see also Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986) (finding that damages limit passes the rational basis test under equal protection analysis but violates the right to a jury trial).
As for the analysis based on the language of our privileges and immunities clause, this question must wait for another case.[2]
II
The dispositive issue of this case is the right to a jury trial.
[1] This court has long approached the review of legislative enactments with great care. The wisdom of legislation is not justiciable; our only power is to determine the legislation's constitutional validity. Petstel, Inc. v. County of King, 77 Wn.2d 144, 151, 459 P.2d 937 (1969); State ex rel. Bolen v. Seattle, 61 Wn.2d 196, 198, 377 P.2d 454 (1963); Smith v. Centralia, 55 Wash. 573, 576, 104 P. 797 (1909). In *643 matters of economic legislation, we follow the rule giving every reasonable presumption in favor of the constitutionality of the law or ordinance. Shea v. Olson, 185 Wash. 143, 152, 53 P.2d 615, 111 A.L.R. 998 (1936).[3] We employ this caution to avoid substituting our judgment for the judgment of the Legislature. See State Pub. Employees' Bd. v. Cook, 88 Wn.2d 200, 206, 559 P.2d 991 (1977), adhered to on rehearing, 90 Wn.2d 89, 579 P.2d 359 (1978); Fritz v. Gorton, 83 Wn.2d 275, 283, 517 P.2d 911, appeal dismissed, 417 U.S. 902 (1974); Jones v. Jones, 48 Wn.2d 862, 868, 296 P.2d 1010, 54 A.L.R.2d 1403 (1956); see also Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 522-23 (1984).
*644 Other courts, faced with unconstitutional tort damage limits, have adhered to similar principles when reviewing those legislative actions. The Kansas Supreme Court put it well:
"This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution." The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.
(Citations omitted.) Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 340, 757 P.2d 251, 256-57 (1988).
[2] To determine the extent of the right to trial by jury as it applies here, we must first identify the source of the constitutional protection. The seventh amendment to the United States Constitution does not apply through the Fourteenth Amendment to the states in civil trials. Minneapolis & St. L.R.R. v. Bombolis, 241 U.S. 211, 60 L.Ed. 961, 36 S.Ct. 595 (1916); Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678 (1876). The right to jury trial in civil proceedings is protected solely by the Washington Constitution in article 1, section 21. Therefore, the relevant analysis must follow state doctrine; our result is based entirely on adequate and independent state grounds.[4]
Article 1, section 21 states:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
*645 [3] Our basic rule in interpreting article 1, section 21 is to look to the right as it existed at the time of the constitution's adoption in 1889. State ex rel. Goodner v. Speed, 96 Wn.2d 838, 840, 640 P.2d 13, cert. denied, 459 U.S. 863 (1982); In re Ellern, 23 Wn.2d 219, 224, 160 P.2d 639 (1945); State ex rel. Mullen v. Doherty, 16 Wash. 382, 384-85, 47 P. 58 (1897). We have used this historical standard to determine the scope of the right as well as the causes of action to which it applies. These two issues, scope and the applicable causes of action, merit separate discussion.
State ex rel. Mullen v. Doherty, supra, being close in time to 1889, provides some contemporary insight on the scope issue. In Mullen, we cited section 248 of the Code of 1881, in force at the time of the constitution's passage, to determine the jury's role in the constitutional scheme: "either party shall have the right in an action at law, upon an issue of fact, to demand a trial by jury." Mullen, 16 Wash. at 385. Subsequent cases underscore the jury's fact finding province as the essence of the right's scope. See, e.g., State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910); In re Ellern, supra.
[4] At issue in the present case is whether the measure of damages is a question of fact within the jury's province. Our past decisions show that it is indeed. The constitutional nature of the jury's damage-finding function is underscored by Baker v. Prewitt, 3 Wash. Terr. 595, 19 P. 149 (1888). In that case, the territorial Supreme Court stated:
Sections 204 and 289 of the [territorial] Code seem to require that in all actions for the assessment of damages the intervention of a jury must be had, save where a long account may authorize a referee, etc. This statute is mandatory, and we are satisfied that where the amount of damages is not fixed, agreed upon, or in some way liquidated, a jury must be called, unless expressly waived.
Baker, at 597-98. If our state constitution is to protect as inviolate the right to a jury trial at least to the extent as it *646 existed in 1889, then Baker's holding provides clear evidence that the jury's fact-finding function included the determination of damages. This evidence can only lead to the conclusion that our constitution, in article 1, section 21, protects the jury's role to determine damages.
The present case is not the first time we have recognized the constitutional nature of the jury's damage-determining role. In James v. Robeck, 79 Wn.2d 864, 869, 490 P.2d 878 (1971), we stated: "To the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts ย and the amount of damages in a particular case is an ultimate fact." See also Dacres v. Oregon Ry. & Nav. Co., 1 Wash. 525, 20 P. 601 (1889) (Act of 1883, creating a scheme for determining the value of train-killed animals by appraisers, was unconstitutional because it denied the right to a jury trial); Worthington v. Caldwell, 65 Wn.2d 269, 273, 396 P.2d 797 (1964) ("Questions of damages should be decided by the jury ..."); Anderson v. Dalton, 40 Wn.2d 894, 897, 246 P.2d 853, 35 A.L.R.2d 302 (1952); Kellerher v. Porter, 29 Wn.2d 650, 189 P.2d 223 (1948); Walker v. McNeill, 17 Wash. 582, 592-95, 50 P. 518 (1897).
The jury's role in determining noneconomic damages is perhaps even more essential. In Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985), the husband of a woman who died painfully 35 hours after giving birth, the result of medical malpractice, brought a wrongful death and survival action. The only issue before this court was whether the trial judge had properly reduced the jury's damage verdict of $412,000 for the woman's pain and suffering. In resolving the issue in the plaintiff's favor, we stated: "The determination of the amount of damages, particularly in actions of this nature, is primarily and peculiarly within the province of the jury, under proper instructions ..." (Italics ours.) 103 Wn.2d at 835. See also Lyster v. Metzger, 68 Wn.2d 216, 224-25, 412 P.2d 340 (1966) (issue of damages, here primarily noneconomic, is within the jury's province); Power v. Union Pac. R.R., 655 *647 F.2d 1380, 1388 (9th Cir.1981) (under Washington law, damages for loss of companionship determined by trier of fact).
United States Supreme Court jurisprudence on the Seventh Amendment's scope in civil trials, while not binding on the states, also provides some insight. In Dimick v. Schiedt, 293 U.S. 474, 79 L.Ed. 603, 55 S.Ct. 296, 95 A.L.R. 1150 (1935), the Court used historical analysis to determine whether the Seventh Amendment allowed additur. Citing cases and treatises dating from the time of the amendment's adoption, the Court found that determining damages, as an issue of fact, was very much within the jury's province and therefore protected by the Seventh Amendment. The Court also indicated that a judge should give more deference to a jury's verdict when the damages at issue concern a noneconomic loss. The Court quoted the English case of Beardmore v. Carrington, 2 Wils. 244, 248, 95 Eng. Rep. 790, 792 (K.B. 1764):
"... There is great difference between cases of damages which [may] be certainly seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and value may be measured, and actions of imprisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, ideal ..."
293 U.S. at 479. The Court clarified the implications of the difference between these two classes of actions by quoting from J. Mayne, Damages (9th ed. 1920) at page 571: "`in cases where the amount of damages was uncertain their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.'" 293 U.S. at 480.
Respondents and certain amici contend that Tull v. United States, 481 U.S. 412, 95 L.Ed.2d 365, 107 S.Ct. 1831 (1987), renders null the above analysis from Dimick. Using historical analysis, the Tull Court found that a defendant in an enforcement proceeding under the federal clean water act had the right to a jury trial but not to have *648 the jury determine the amount of the civil penalty. The distinction, however, between damages in a tort action and a civil penalty in a regulatory enforcement case is fundamental. Therefore, Tull is irrelevant on the issue before the court. Ultimately, however, because the Supreme Court's civil trial Seventh Amendment jurisprudence is not binding on the states, state courts can look on this area as educational rather than coercive: the federal cases may assist us, but they do not compel the result we reach. We find the noneconomic damages limit unconstitutional on adequate and independent state grounds. While we do this, we will examine federal cases which provide the most informative analysis on the issues we must decide. Dimick provides that analysis; Tull does not.
As our past decisions have shown, Washington has consistently looked to the jury to determine damages as a factual issue, especially in the area of noneconomic damages. This jury function receives constitutional protection from article 1, section 21.
The second issue we must address is the determination of which causes of action the right to trial by jury attaches to. We have held in the past that the right attaches to actions in which a jury was available at common law as of 1889 and to actions created by statutes in force at this same time allowing for a jury. See, e.g., State ex rel. Mullen v. Doherty, supra (as of 1889, quo warranto proceedings were not heard by a jury, therefore right did not attach); In re Ellern, supra; see also Trautman, Right to Jury Trial in Washington ย Present and Future, 34 Wash. L. Rev. 401 (1959).
Amici in favor of respondents' position suggest that the right to a jury does not apply to causes of action that did not exist at the time of the constitution's adoption. A fundamental problem exists with this argument. If the right to a jury trial applies only to those theories of recovery accepted in 1889 ย rather than the types of actions that, at common law, were heard by a jury at that time ย then the constitutional right to a jury will diminish over time. As a *649 method of construing a lasting constitutional right, this makes little sense.
As respondents themselves point out, this court stated in Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810, 539 P.2d 845 (1975), that constitutional analysis is not completely frozen in time. It would defeat the intention of our constitution's framers to interpret an essential right so that it slowly withers away. An interpretation more consistent with the intended longevity of a constitutional right adapts the application of that right according to developments in the law over time. As long as the scope and nature of the right are adequately defined ย and for that we can turn to a stricter historical analysis ย a more flexible historical approach for determining when the right attaches will better achieve the intent of the framers.
A method of historical analysis used by the United States Supreme Court in Tull v. United States, supra, provides further insight. The Tull Court looked for proceedings analogous to the enforcement action under the federal clean water act which were contemporary with the Seventh Amendment's adoption. Finding that the common law proceeding of debt, in which the litigants had a right to a jury, was analogous to the clean water act enforcement action, the Court applied the Seventh Amendment right to the modern action. Without stretching the analogy as far as the Supreme Court did, it is logical to apply the more recent tort theories by analogy to the common law tort actions that existed in 1889. We note again that we reach our result today on adequate and independent state grounds. The holding in Tull, like all United States Supreme Court precedent in the civil trial area of the Seventh Amendment, is not binding on the states and merely serves as an example to us. It does not compel the result we reach.
Ultimately, there is not even an issue whether the right to a jury attaches to the Sofies' case. While they asserted "newer" tort theories in their complaint, the heart of the appellants' cause of action centered on negligence and willful or wanton misconduct resulting in personal injury. See *650 Plaintiff's Summons and Complaint, at 4-5. These basic tort theories are the same as those that existed at common law in 1889. See, e.g., Columbia & P.S.R.R. v. Hawthorne, 3 Wash. Terr. 353, 19 P. 25 (1888) (worker injured by falling pulley, defect known to employer), rev'd on other grounds, 144 U.S. 202 (1892); Sayward v. Carlson, 1 Wash. 29, 23 P. 830 (1890) (plaintiff, injured at work due to employer's negligence, while on the way to the bathroom, was not contributorially negligent). Subsequent cases and statutes have recognized newer theories of recovery within the framework of these basic tort actions, but the basic cause of action remains the same. Therefore, the right to trial by jury ย with its scope as defined by historical analysis ย remains attached here.
III
Respondents argue that the Legislature has the power to alter the functions of civil trials, such alterations often affecting the role of the jury. They cite a number of cases in which our courts have upheld such changes against challenges based on the right to trial by jury. See, e.g., State v. Mountain Timber Co., 75 Wash. 581, 135 P. 645 (1913), aff'd, 243 U.S. 219, 61 L.Ed. 685, 37 S.Ct. 260 (1917) (upholding the workers' compensation statute); State ex rel. Clark v. Neterer, 33 Wash. 535, 74 P. 668 (1903) (upholding constitutionality of fees and time limits for requesting jury); Bellingham v. Hite, 37 Wn.2d 652, 225 P.2d 895 (1950) (certain municipal cases may be tried without a jury provided there is right to jury trial on appeal); Christie-Lambert Van & Storage Co. v. McLeod, 39 Wn. App. 298, 693 P.2d 161 (1984) (upholding mandatory arbitration statute). Respondents argue that the Legislature may, in fact, do away with causes of action altogether, replacing them with procedures such as workers' compensation which, at the initial stage at least, do not allow for a jury at all. In short, respondents contend, the Legislature can determine the "law of recovery."
*651 [5] The Legislature has power to shape litigation. Such power, however, has limits: it must not encroach upon constitutional protections. In this case, by denying litigants an essential function of the jury, the Legislature has exceeded those limits.
A review of the decisions cited by respondents provides insight into the limits of legislative power. These decisions show that the Legislature cannot intrude into the jury's fact-finding function in civil actions, including the determination of the amount of damages.
In the case of workers' compensation, this court in State v. Mountain Timber Co., supra, did not engage in the historical analysis regarding the right to a jury trial. Our analysis instead centered on the State's police power to abolish causes of action and replace them with a mandatory industrial insurance scheme. Because the use of such power was done for the public health and welfare and a comprehensive scheme of compensation was inserted in its place, the abolition of the cause of action was not unconstitutional.[5] 75 Wash. at 583.
The United States Supreme Court, in affirming our decision, found that the statute did not violate the Seventh Amendment as it would apply to trials in federal court. The Court stated:
So far as private rights of action are preserved, [the Seventh Amendment applies]; but with respect to those we find nothing in the act that excludes a trial by jury. As between employee and employer, the act abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be tried by jury.
Mountain Timber, 243 U.S. at 235. In other words, if the cause of action is completely done away with, then the right to trial by jury becomes irrelevant. Since the right attaches to civil trials, there can be no right ย and no constitutional violation ย if no civil trial is available.
*652 Respondents Eagle-Picher imply, without direct authority, that the Legislature's greater power to abolish causes of action includes the lesser power to alter jury functions, including that of determining damages. They cite the workers' compensation scheme as an example of the greater power. As part of this assertion, respondents refer to Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998 (1936) ย which upheld the automobile "guest statute" ย for the proposition that "[a] person has no vested interest in any rule of the common law." 1