Best v. Taylor Machine Works, Inc.

Annotate this Case

Docket Nos. 81890, 81891, 81892, 81893 cons.--Agenda
18--May 1997.
VERNON BEST, Appellee, v. TAYLOR MACHINE WORKS
et al., Appellants.--JONATHAN ISBELL, Administrator of
the Estate of Steven A. Kelso, Appellee, v. UNION PACIFIC
RAILROAD COMPANY et al., Appellants.
Opinion filed December 18, 1997.
JUSTICE McMORROW delivered the opinion of the court:
This consolidated appeal arises from two personal injury
tort actions filed in the circuit court of Madison County, in
which the plaintiffs sought declaratory and injunctive relief
against enforcement of "An Act to amend certain Acts in
relation to civil actions, *** the Civil Justice Reform
Amendments of 1995." Pub. Act 89--7, eff. March 9, 1995
(hereafter Public Act 89--7 or the Act). In both cases, plaintiffs
sought partial summary judgment on the grounds that the Act
violated the Illinois Constitution of 1970. The circuit court of
Madison County held the following provisions of Public Act 89-
-7 unconstitutional: (1) the $500,000 limit on compensatory
damages for noneconomic injuries (735 ILCS 5/2--1115.1 (West
1996)), (2) the allocation of fault and several liability provisions
(735 ILCS 5/2--1116, 2--1117 (West 1996)), (3) the
amendments to the Joint Tortfeasor Contribution Act (740 ILCS
100/3.5, 5 (West 1996)), (4) certain jury instructions (735 ILCS
5/2--1107.1 (West 1996)), (5) the product liability certificate of
merit (735 ILCS 5/2--623 (West 1996)), (6) the product liability
statute of repose (735 ILCS 5/13--213(b) (West 1996)), (7) the
product liability presumptions (735 ILCS 5/2--2103, 2--2104, 2--
2106 (West 1996)) and (8) the discovery statutes which require
mandatory disclosure of all of plaintiffs' medical information
and records (735 ILCS 5/2--1003, 8--802, 8--2001, 8--2003
(West 1996)). The court also held that Public Act 89--7 is
unconstitutional as a whole.
Defendants timely appealed the circuit court's order to this
court, and we consolidated the cases. We allowed the Attorney
General, James E. Ryan, to intervene to defend the
constitutionality of Public Act 89--7.
We also granted the following organizations leave to submit
briefs amicus curiae: (1) Illinois Hospital & Healthsystems
Association and the Metropolitan Chicago Healthcare Council,
(2) Illinois State Medical Society, (3) Product Liability Advisory
Council, Inc., (4) Illinois Manufacturers' Association, (5) Illinois
Association of Defense Trial Counsel, (6) Illinois Civil Justice
League, (7) Illinois State Federation of Labor and Congress of
Industrial Organization and Ironworker's District Council of
Greater Chicago, (8) Illinois State Council of Senior Citizens,
Families Advocating Injury Reduction (FAIR), Union of
Needletrades, Industrial and Textile Employees (UNITE),
Coalition for Consumer Rights, Citizen Action/Illinois Chapter,
Metro Seniors in Action, Tenth Congressional District AFL-
CIO, Champaign County Health Care Consumers, Citizen
Advocacy Center and Coalition of Citizens With Disabilities in
Illinois, (9) Illinois State Bar Association, (10) National
Association for the Advancement of Colored People and the
Cook County Bar Association, (11) Illinois NOW Legal and
Education Fund and Breast Implant Information Exchange, (12)
Chicago Bar Association and (13) the Brotherhood of Heat and
Frost Insulators, Local 17, and the Southeast Environmental
Task Force.
The parties agree that Public Act 89--7 effects substantial
changes to numerous aspects of tort law. The parties further
agree that the challenged provisions of Public Act 89--7 pertain
primarily to personal injury actions as distinct from business-
related torts, defamation, or other actions not involving physical
injury. There is also no dispute that the heart of Public Act 89--
7 is the $500,000 limit on compensatory damages for injuries
that are considered "non-economic" in nature (735 ILCS 5/2--
1115.1 (West 1996)).
Defendants characterize the Act as a legitimate reform
measure that is within the scope of the Illinois General
Assembly's power to change the common law, shape public
policy, and regulate the state's economic health. Plaintiffs
counter that the Act uses the guise of reform to erect arbitrary
and irrational barriers to meritorious claims, and, therefore, that
the Act violates the Illinois Constitution of 1970. Specifically,
plaintiffs maintain that the following constitutional provisions
are violated by various aspects of the legislation at issue: special
legislation (Ill. Const. 1970, art. IV, sec. 13), equal protection
and due process (Ill. Const. 1970, art. I, sec. 2), separation of
powers (Ill. Const. 1970, art. II, sec. 1), right to a jury (Ill.
Const. 1970, art. I, sec. 13) and right to a certain remedy (Ill.
Const. 1970, art. I, sec. 12).
The role of this court in considering the constitutionality of
Public Act 89--7 is not to judge the prudence of the General
Assembly's decision that reform of the civil justice system is
needed. We recognize that we should not and need not balance
the advantages and disadvantages of reform. See People v.
Warren, 173 Ill. 2d 348 (1996); see also Cutinello v. Whitley,
(1994). Rather, as the highest court in this state,
we must determine the meaning and effect of the Illinois
Constitution in light of the challenges made to the legislation in
issue. Warren, 173 Ill. 2d at 355-56.
Courts should begin any constitutional analysis with the
presumption that the challenged legislation is constitutional
(People v. Shephard, (1992)), and it is the
plaintiff's burden to clearly establish that the challenged
provisions are unconstitutional (Bernier v. Burris, (1986)). However, the Illinois Constitution is not a grant,
but a limitation on legislative power. People v. Chicago Transit
Authority, 392 Ill. 77 (1945); Italia America Shipping Corp. v.
Nelson, 323 Ill. 427 (1926); Taylorville Sanitary District v.
Winslow, 317 Ill. 25 (1925). It is this court's duty to interpret
the law and to protect the rights of individuals against acts
beyond the scope of the legislative power. People ex rel.
Huempfner v. Benson, 294 Ill. 236 (1920). If a statute is
unconstitutional, this court is obligated to declare it invalid.
Wilson v. Department of Revenue, 169 Ill. 2d 306 (1996). This
duty cannot be evaded or neglected, no matter how desirable or
beneficial the legislation may appear to be. Wilson, 169 Ill. 2d
at 310; Grasse v. Dealer's Transport Co., , 190
(1952).
For the reasons stated below, we determine that the
following provisions of Public Act 89--7 violate the Illinois
Constitution: (1) the limitation on compensatory damages for
noneconomic injury (735 ILCS 5/2--1115.1 (West 1996)), (2)
section 3.5(a) of the Joint Tortfeasor Contribution Act (740
ILCS 100/3.5(a) (West 1996)), (3) the abolition of joint and
several liability (735 ILCS 5/2--1117 (West 1996)), and (4) the
discovery statutes which mandate the unlimited disclosure of
plaintiffs' medical information and records (735 ILCS 5/2--
1003, 8--802, 8--2001, 8--2003 (West 1996)). We further hold
that because these unconstitutional provisions may not be
severed from the remainder of the act, Public Act 89--7 as a
whole is invalid.

BACKGROUND
Plaintiff, Vernon Best, was injured on July 24, 1995, while
he was operating a forklift for his employer, Laclede Steel
Company, in Alton, Illinois. The forklift was designed and
manufactured by Taylor Machine Works (Taylor) and sold by
Allied Industrial Equipment Corporation (Allied). Best sustained
injuries when the forklift's mast and support assembly collapsed
while Best was moving slabs of hot steel. As a result of the
collapse, flammable hydraulic fluid manufactured by Lee Helms,
Inc. (Helms), ignited and engulfed Best in a fireball. While on
fire, Best leaped from the cab of the forklift and fractured both
heels. Best also suffered second and third degree burns over
40% of his body, including his face, torso, arms and hands.
Best filed a product liability action seeking damages against
Taylor, Allied and Helms. In his amended complaint, Best
alleges that the forklift and hydraulic fluid were defective and
not reasonably safe. As to Taylor and Allied, Best alleges strict
product liability, negligence, breaches of implied and express
warranties, and breach of warranty for a particular purpose. As
to Helms, Best alleges strict product liability, negligence and
breach of implied warranty.
Best alleges that he sustained lost earnings, he anticipates
diminished future earnings, he has incurred past medical
expenses, and he will incur future medical expenses as a result
of his injuries. Best anticipates that he will need vocational
rehabilitation and convalescent care because of his injuries. He
further alleges that his injuries are severe, disfiguring and
permanent. Best states that he has suffered and will continue to
suffer from grievous pain and anguish from his injuries. He
further asserts that he has had a painful and lengthy experience
as a patient in a hospital burn unit, and has undergone numerous
surgeries.
In his amended complaint, Best seeks compensatory
damages for all injuries. Best alleges that he has and will incur
noneconomic damages in excess of $500,000. He also seeks
declaratory and injunctive relief against Public Act 89--7 on the
grounds that the Act violates the Illinois Constitution.
The second action arises out of the death of 20-year-old
Steven Kelso, who was killed by a train at a railroad crossing
in Madison County, Illinois, on December 12, 1995. At the time
of his death, Kelso was driving a truck for his employer. Union
Pacific owned the train that killed Kelso, and Donald Cain
operated the train at the time of Kelso's death.
Plaintiff Jonathan Isbell, the administrator of Kelso's estate,
filed a complaint against Union Pacific and Cain. In the
complaint, Isbell alleges that the train that killed Kelso was
negligently operated. He states that the train's speed was
excessive, it did not adequately warn of its approach, and it
failed to slow or stop before the crash. The complaint also
alleges that the railroad crossing was negligently constructed,
inspected, and maintained, with inadequate warning signals and
other deficiencies. Isbell seeks damages under the Wrongful
Death Act (740 ILCS 180/1 (West 1996)), the Probate Act of
1975 (755 ILCS 5/27--6 (West 1996)) and the Rights of Married
Persons Act (750 ILCS 65/15 (West 1996)). Like Best, Isbell
also seeks declaratory and injunctive relief challenging the
constitutionality of Public Act 89--7.
In the circuit court, defendants in both actions moved to
dismiss the counts for declaratory and injunctive relief, on the
grounds that the constitutionality of Public Act 89--7 was not
ripe for adjudication. Both plaintiffs filed motions for partial
summary judgment on those counts, and entreated the circuit
court to invalidate Public Act 89--7. Plaintiffs filed expert
opinion affidavits in support of their partial motions for
summary judgment. Defendants did not file counteraffidavits.
Upon consolidating the cases, the circuit court denied
defendants' motions to dismiss, and granted plaintiffs' motions
for partial summary judgment. The circuit court ruled that 15
specific provisions of Public Act 89--7 were unconstitutional
and that the Act as a whole was unconstitutional. The court
noted that the Act overruled more than 70 decisions of this court
and the appellate court, and constituted a "wholesale
reconstruction of the judiciary." Pursuant to Supreme Court Rule
302(a) (134 Ill. 2d R. 302(a)), defendants appealed directly to
this court from the circuit court's order declaring Public Act 89-
-7 invalid.

ANALYSIS
Initially, we note that in striking down Public Act 89--7, the
circuit court referenced the "demeanor" of the legislature during
consideration of the Act, as shown by the legislative history.
The history of Public Act 89--7 shows that the Act was initially
introduced in the House of Representative as House Bill 20, on
November 30, 1994. See generally 25 ILCS 25/2 (West 1994).
The legislative synopsis indicates that Public Act 89--7 made "a
technical change in a provision relating to product liability
actions." House Bill 20 consisted of a suggestion that the word
"any" be changed to "a" in the first sentence of section 2--621
of the Code of Civil Procedure (735 ILCS 5/2--621 (West
1992)).
More than two months later, on February 14, 1995, House
Bill 20 was released to members of the House as "amended."
The amendment to House Bill 20 consisted of 67 pages of text,
and mirrors the currently enacted provisions of Public Act 89--7
now before this court. On February 15, 1995, the House
Executive Committee held a meeting to consider House Bill 20,
and approved it without change. The day following committee
approval, House Bill 20 was presented to the full House of
Representatives. A majority of the House voted in favor of
House Bill 20.
Two weeks later, the Illinois Senate Judiciary Committee
held a two-day hearing to consider House Bill 20, and voted to
adopt it without change. The bill went to the Senate, where it
received the votes necessary for adoption. On March 9, 1995,
House Bill 20 was signed into law as Public Act 89--7.
Before the circuit court, plaintiffs argued, and the court
agreed, that the "fast track" stratagem adopted by the bill's
proponents was designed to curtail deliberation of the bill.
Defendants agree that the passage of Public Act 89--7 was swift
and drew significant objections on the grounds that adequate
time for debate was lacking. However, defendants contend that
this fact is not relevant to the determination of the constitutional
issues before this court. Because the manner in which Public
Act 89--7 was passed is not dispositive of the merits of the
constitutional challenges raised by plaintiffs, we do not further
consider its genesis. We note, however, that the legislative
history of Public Act 89--7 may be considered in ascertaining
the intent of the legislature if the resolution of an issue so
requires. See, e.g., People ex rel. Chicago Bar Ass'n v. State
Board of Elections, , 537 (1990) (legislative
history is relevant to severability analysis).

I. Ripeness
In the circuit court, pursuant to section 2--615 of the Code
of Civil Procedure (735 ILCS 5/2--615 (West 1992)), defendants
moved to dismiss plaintiffs' counts for injunctive and
declaratory relief on the grounds that they were not ripe for
adjudication. The circuit court rejected defendants' arguments
and determined that plaintiffs had standing and that the issues
were ripe.
Before this court, defendants maintain that the majority of
the circuit court's rulings do not involve an actual case or
controversy, which is required to sustain an action for
declaratory judgment. They argue that the underlying facts and
issues in this case are so premature as to require the court to
pass judgment on mere abstract propositions of law, or render
an advisory opinion.
The question of ripeness requires a determination with
respect to whether there is a case or controversy under section
2--701 of the Code of Civil Procedure (735 ILCS 5/2--701
(West 1992)). A complaint for declaratory judgment must recite
in sufficient detail an actual and legal controversy between the
parties and must demonstrate that the plaintiff is interested in
the controversy. First of America Bank, Rockford, N.A. v.
Netsch, (1995) (declaratory judgment actions
permit early resolution of dispositive issues, to fix rights of
parties before irrevocable change in their positions jeopardizes
their claims of right); see also Illinois Gamefowl Breeders Ass'n
v. Block, (1979). This court has repeatedly held
that the declaratory judgment statute must be liberally construed
and should not be restricted by unduly technical interpretations.
See, e.g., Netsch, 166 Ill. 2d at 174.
We believe that plaintiffs' complaint challenging the
constitutionality of Public Act 89--7 portends "the ripening seeds
of litigation." Miles Kimball Co. v. Anderson, 128 Ill. App. 3d
805, 807 (1984). For example, plaintiff Best asserts a product
liability claim to recover compensatory damages for bodily
injuries allegedly sustained at the hands of defendants Allied,
Taylor, and Helms. Best alleges that his compensatory damages
for noneconomic injuries will exceed $500,000. Public Act 89--
7, inter alia, limits such damages to $500,000 in all negligence
and product liability actions brought on account of death, bodily
injury, or physical damage to property. See 735 ILCS 5/2--
1115.1 (West 1996). The limitation applies irrespective of
whether the court or jury otherwise would have found a larger
amount to be appropriate under the facts of the particular case.
We believe that plaintiffs have alleged a sufficient and
direct interest in the application of the challenged provisions of
Public Act 89--7 to their lawsuits. In deciding the
constitutionality of Public Act 89--7 we are not ruling on mere
abstract principles of law or prematurely deciding issues in the
absence of an actual case or controversy. The course of future
litigation in these consolidated cases necessarily will be
controlled by resolution of the constitutional challenges to
Public Act 89--7. We hold that the issues presented in the
instant controversy are ripe for review.

II. The Cap on Noneconomic Damages
Plaintiffs challenge the $500,000 limit on compensatory
damages for noneconomic injuries set forth in section 2--1115.1
of the Code of Civil Procedure (735 ILCS 5/2--1115.1 (West
1996)).

A. Background to Section 2--1115.1
Section 2--1115.1(a) provides:
"In all common law, statutory or other actions that
seek damages on account of death, bodily injury, or
physical damage to property based on negligence, or
product liability based on any theory or doctrine,
recovery of non-economic damages shall be limited to
$500,000 per plaintiff. There shall be no recovery for
hedonic damages." 735 ILCS 5/2--1115.1(a) (West
1996).
Section 2--1115.1(d) provides that nothing in section 2--
1115.1 shall be construed to create a right to recover
noneconomic damages. The statute defines "non-economic
damages" as "damages which are intangible, including but not
limited to damages for pain and suffering, disability,
disfigurement, loss of consortium, and loss of society." 735
ILCS 5/2--1115.2(b) (West 1996). Economic damages, defined
as "all damages which are tangible, such as damages for past
and future medical expenses, loss of income or earnings and
other property loss" (735 ILCS 5/2--1115.2(a) (West 1996)), are
not limited. By its terms, the statute defines "compensatory" or
"actual" damages as "the sum of economic and non-economic
damages." 735 ILCS 5/2--1115.2(c) (West 1996). Thus,
compensatory damages, i.e., damages which are intended to
make an injured plaintiff whole, are limited by section 2--
1115.1.
The cap on compensatory damages for noneconomic injury
is, as the parties acknowledge, at the heart of Public Act 89--7.
The key role of this cap is reflected in the preamble to the Act,
which contains 18 specific "findings" and eight listed "purposes"
based on those findings. Eight of the 18 findings in the
preamble pertain to noneconomic damages. These findings
declare that: (1) limiting noneconomic damages will improve
health care in rural Illinois, (2) more than 20 states limit
noneconomic damages, (3) the cost of health care has decreased
in those states, (4) noneconomic losses have no monetary
dimension, and no objective criteria or jurisprudence exists for
assessing or reviewing noneconomic damages awards, (5) such
awards are highly erratic and depend on subjective preferences
of the trier of fact, (6) highly erratic noneconomic damages
awards subvert the credibility of such awards and undercut the
deterrent function of tort law, (7) such awards must be limited
to provide consistency and stability for all parties and society
and (8) "a federal executive branch working group" determined
that limiting noneconomic damages was the most effective step
toward legislative reform of tort law because it reduces litigation
costs and expedites settlement.
In addition to the above legislative "findings," the preamble
to Public Act 89--7 states legislative "purposes" which relate to
the limit on noneconomic damages. These purposes may be
summarized as follows: reduce the cost of health care and
increase accessibility to health care, promote consistency in
awards, reestablish the credibility of the civil justice system,
establish parameters or guidelines for noneconomic damages,
protect the economic health of the state by decreasing systemic
costs, and ensure the affordability of insurance.
The preamble also declares, "It is the public policy of this
State that injured persons injured through negligence or
deliberate misconduct of another be afforded a legal mechanism
to seek compensation for their injuries."
In the circuit court, defendants maintained that the Act and
its specified goals represent a return to fairness, predictability,
responsibility and rationality in the tort arena. Specifically,
defendants argued that the limit on noneconomic damages
provides rationality to the system of awarding damages for
personal injury.
Plaintiffs, in their motion for partial summary judgment,
challenged the legislature's use of chiefly anecdotal evidence to
justify the Act.[fn1] Citing a 1992 report from the National
Center for State Courts, plaintiffs noted that businesses, not
private personal injury plaintiffs, constitute the most active
group of litigants in the state. Plaintiffs further argued that the
uncontested empirical evidence that they presented in
conjunction with their motion clearly shows that the legislative
"findings" listed in the preamble do not provide a rational
justification for the limitation of compensatory damages for
noneconomic injuries. In support, plaintiffs submitted several
affidavits with their motion for summary judgment on the
constitutionality of section 2--1115.1.
Neil Vidmar, Professor of Social Science and Law at Duke
Law School in Durham, North Carolina, submitted an affidavit
in which he explains that many of the assertions about medical
malpractice litigation contained in the preamble of Public Act
89--7, as well as statements made at the hearing and debates
which preceded its passage, have no empirical basis and were
based on unsubstantiated perceptions or unreliable data. For
example, the perception that damages caps result in a decrease
in the number of medical malpractice cases filed was rebutted
by the experience in Indiana, a state in which damages caps
were adopted in 1975. Vidmar cites studies revealing that
Indiana actually has experienced an increase in claims. See E.
Kinney, W. Gronfein & T. Gannon, Indiana's Medical
Malpractice Act: Results of a Three-Year Study, 24 Ind. L. Rev.
1275, 1286 (1991). Vidmar states that he is aware of no reliable
evidence in the formal studies which indicate that a limit on
noneconomic damages corresponds to a significant impact on
the cost or availability of health care or that noneconomic
damages and the costs of liability insurance are directly linked.
In a separate affidavit, Marc Galanter, Evjue-Bascom
Professor of Law at the University of Wisconsin Law School,
agrees that there is little evidence, apart from anecdotes, to
support the perceived deleterious effects of the present civil
litigation system. He cites to an article he authored entitled Real
World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093
(1996). He maintains that the only consequences which clearly
flow from the passage of Public Act 89--7 are increased
profitability of insurance companies and a reduction in the
payments to the most seriously injured tort victims. According
to Galanter, court filings in the law division of the circuit court
of Cook County have actually declined during the period from
1980 to 1994. Galanter asserts that arguments which rely on
systemic costs of the civil litigation system and its negative
effect on health care and jobs are purely speculative. Similarly,
he states that the salutary effects attributed to the type of tort
reform attempted in Public Act 89--7 are largely speculative.
Galanter concludes that when comparing isolated instances or
anecdotal evidence against the reliable empirical data that does
exist, it is apparent that the findings which form the basis for
Public Act 89--7 are erroneous.
In addition to the above affidavits, plaintiffs offered the
joint affidavit of Stephen Daniels, M.A., Ph.D., a senior research
fellow at the American Bar Foundation in Chicago, and Joanne
Martin, M.M., J.D., an assistant director of the same foundation.
Their affidavit summarizes the key empirical findings of
scholarly literature and compares them to the factual
underpinnings of Public Act 89--7. Like Vidmar and Galanter,
Daniels and Martin state that the facts which form the stated
intention or goals of Public Act 89--7 are not substantiated by
the empirical data and critical analyses found in published,
scholarly literature. Daniels and Martin summarize data which
show that only a tiny fraction of accidental deaths and injuries
are pursued through the litigation system as claims for
compensation. They further maintain, based on studies, that jury
awards are not erratic or capricious, but rather relate closely to
the severity of the particular injury.
After considering the arguments of the parties and the
materials presented, the circuit court invalidated section 2--
1115.1 on the grounds that it violated the following provisions
of the Illinois Constitution: special legislation (Ill. Const. 1970,
art. IV, sec. 13), equal protection and due process (Ill. Const.
1970, art. I, sec. 2), separation of powers (Ill. Const. 1970, art.
II, sec. 1), right to a jury (Ill. Const. 1970, art. I, sec. 13) and
right to a certain remedy (Ill. Const. 1970, art. I, sec. 12). The
circuit court held that "no conceivable argument [could] be
made in good faith to suggest that arbitrarily limiting
[compensatory] damages complies with the [Illinois
Constitution]." The court determined that section 2--1115.1
constitutes special legislation because it eliminates fairness and
impartiality in the awarding of compensatory damages, thereby
bestowing on certain tortfeasors a disproportionate, undeserved
benefit of escaping liability for a portion of compensatory
damages. The court further found that the affidavits filed in
support of plaintiffs' opposition to the findings in the preamble
to Public Act 89--7 demonstrate that there is no rational basis
for section 2--1115.1.
Our review of the circuit court's ruling is de novo. See
Bernier, 113 Ill. 2d at 230. As such, our scope of review is not
limited to or bound by any specific material relied upon by the
circuit court. We acknowledge that the trial court considered the
affidavits of Vidmar, Galanter, Martin and Daniels in its ruling
on plaintiffs' motions for partial summary judgment. The
materials were admitted in support of plaintiffs' claim that the
provisions of the Act are not rationally related to its purposes.
While we note that it was permissible for plaintiffs to introduce
empirical evidence by way of affidavit, plaintiffs may not
prevail on their constitutional challenges merely by showing that
the General Assembly was mistaken in its legislative findings of
fact. Bernier, 113 Ill. 2d at 229-30, citing United States v.
Carolene Products Co., , 153-54, 82 L. Ed. 1234,
1242, 58 S. Ct. 778, 784 (1938). Courts are not empowered to
"adjudicate" the accuracy of legislative findings. The legislative
fact-finding authority is broad and should be accorded great
deference by the judiciary. Therefore, to the extent the affidavits
of record may have been offered to contest the wisdom of the
legislative enactment, we reiterate that the legislature is not
required to convince this court of the correctness of its judgment
that the civil justice system needs reform. See Bernier, 113 Ill. 2d at 229, citing Vance v. Bradley, , 111, 59 L. Ed. 2d 171, 184-85, 99 S. Ct. 939, 949-50 (1979); see also Cutinello
v. Whitley, (1994). Our task is limited to
determining whether the challenged legislation is constitutional,
and not whether it is wise. Bernier, 113 Ill. 2d at 230.

B. Special Legislation
In this court, plaintiffs challenge the constitutionality of the
damages cap, section 2--1115.1, on the basis that it violates the
special legislation clause of the Illinois Constitution (Ill. Const.
1970, art. IV, sec. 13). Plaintiffs maintain that for individuals
whose injuries are minor or moderate, the limit will rarely, if
ever, be implicated. Instead, the limit is imposed only when a
jury or trial court finds, and the reviewing court agrees, that an
award of compensatory noneconomic damages in excess of
$500,000 is required to make the plaintiff whole. According to
plaintiffs, section 2--1115.1 impermissibly penalizes the most
severely injured individuals, whose pain and suffering,
disfigurement, and other noneconomic injuries would be most
likely to result in a compensatory award in excess of $500,000
but for the statutory limit. Similarly, plaintiffs reason, the
damages cap arbitrarily benefits certain tortfeasors, who are
relieved of liability for fully compensating plaintiffs. Thus,
plaintiffs maintain, section 2--1115.1 constitutes special
legislation.
The special legislation clause of the Illinois Constitution
provides:
"The General Assembly shall pass no special or local
law when a general law is or can be made applicable.
Whether a general law is or can be made applicable
shall be a matter for judicial determination." (Emphasis
added.) Ill. Const. 1970, art. IV, sec. 13.
It has been noted that the prohibition against special
legislation is the "one provision in the legislative articles that
specifically limits the lawmaking power of the General
Assembly." S. Grove & R. Carlson, The Legislature, in Con-
Con: Issues for the Illinois Constitutional Convention 101, 103
(1970). The special legislation clause expressly prohibits the
General Assembly from conferring a special benefit or exclusive
privilege on a person or a group of persons to the exclusion of
others similarly situated. In re Petition of the Village of Vernon
Hills, , 122 (1995). This court has consistently
held that the purpose of the special legislation clause is to
prevent arbitrary legislative classifications that discriminate in
favor of a select group without a sound, reasonable basis.
Wright v. Central Du Page Hospital Ass'n, (1976)
(invalidating $500,000 cap on damages in medical malpractice
actions); Grace v. Howlett, (1972) (striking
classifications that conditioned recovery for personal injuries
upon fortuity of whether negligent driver was using vehicle for
commercial or private purposes); Grasse v. Dealer's Transport
Co., (1952) (invalidating discriminatory
classifications of employers, employees, and third-party
tortfeasors in workers' compensation provision).
Special legislation analysis is deeply embedded in the
constitutional jurisprudence of this state. The ban on special
legislation originally arose in the nineteenth century in response
to the General Assembly's abuse of the legislative process by
granting special charters for various economic entities. D.
Ruder, Business Regulation: Corporations, in Con-Con: Issues
for the Illinois Constitutional Convention 382, 382-83 (1970).
The special legislation clause in the Constitution of 1870
enumerated over 20 specific categories in which the General
Assembly was prohibited from passing a local or special law.
Ill. Const. 1870, art. IV, sec. 22. The distinction between special
and local laws may be stated as follows:
"A local law is one which applies only to the
government of a portion of the territory of the state, and
a special law is one which applies only to a portion of
the state--its people, its institutions, its economy--in
some sense other than geographical." G. Braden & R.
Cohn, The Illinois Constitution: An Annotated &
Comparative Analysis 206-07 (1969).
Delegates to the 1870 constitutional convention criticized
special legislation because, instead of establishing and enforcing
general principles applicable to every class of citizens, special
legislation enriched particular classes of individuals at the
expense of others. I Debates and Proceedings of the
Constitutional Convention of the State of Illinois 578 (remarks
of Delegate Anderson). Delegate Anderson spoke in favor of the
prohibition against special legislation and stated:
"Governments were not made to make the `rich richer
and the poor poorer,' nor to advance the interest of the
few against the many; but that the weak might be
protected from the will of the strong; that the poor
might enjoy the same rights with the rich; that one
species of property might be as free as another--that one
class or interest should not flourish by the aid of
government, whilst another is oppressed with all the
burdens." I Debates, at 578 (remarks of Delegate
Anderson).
Evidently in recognition of the value of the prohibition
against special legislation, the framers of the Illinois
Constitution of 1970 decided to retain the clause, with some
modifications. See Anderson v. Wagner, , 313-14
(1979). First, because the enumerated categories in the
constitution of 1870 clearly reflected the nineteenth century
concerns which had lost their relevance with the passage of
time, the framers of the 1970 constitution omitted the "laundry
list" of prohibited categories. See G. Braden & R. Cohn, The
Illinois Constitution: An Annotated & Comparative Analysis
225-26 (1969). Additionally, the 1970 constitution rejected the
previous rule which had vested in the legislature the power to
determine whether a general law could be made applicable.
Bridgewater v. Hotz, , 110 (1972). Thus, the
present version of the special legislation clause contains an
express grant of power to the judiciary: "Whether a general law
is or can be made applicable shall be a matter for judicial
determination." Ill. Const. 1970, art. IV, sec. 13.
The framers of the 1970 constitution retained the special
legislation prohibition even though an equal protection/due
process clause was included in the Illinois Constitution for the
first time. See Ill. Const. 1970, art. I, sec. 2 ("No person shall
be deprived of life, liberty or property without due process of
law nor be denied the equal protection of the laws").
A special legislation challenge generally is judged under the
same standards applicable to an equal protection challenge.
Village of Vernon Hills, 168 Ill. 2d at 123. Public Act 89--7
does not affect a fundamental right or involve a suspect or
quasi-suspect classification. See Bernier, 113 Ill. 2d at 227-
29.[fn2] Thus, the appropriate standard for our review of
Public Act 89--7 is the rational basis test. "Under this standard,
a court must determine whether the statutory classification is
rationally related to a legitimate State interest." Village of
Vernon Hills, 168 Ill. 2d at 123.
Our task in determining whether the damages cap violates
the special legislation clause is not without difficulty. See
Grasse, 412 Ill. at 194. Indeed, the dilemma in discerning
whether or not a particular statute constitutes special legislation
has been described as follows:
"It is impossible to conceive of a law that has universal
impact and affects everyone or everything in the same
way. By enacting laws, the legislature can hardly avoid
excluding some category of people or objects. In
enforcing this prohibition, the courts must decide if the
legislature has made a reasonable classification.
Differences of opinion are bound to exist in such
situations and the ultimate decision must rest with some
judgment as to the soundness of the legislature's
action." S. Grove & R. Carlson, The Legislature, in
Con-Con: Issues for the Illinois Constitutional
Convention 106 (1970).
The difficulty is not overcome by merely reiterating that a
classification has been made, i.e., that the legislature has in
some way classified groups of people. Rather, we must
determine whether the classifications created by section 2--
1115.1 are based upon reasonable differences in kind or
situation, and whether the basis for the classifications is
sufficiently related to the evil to be obviated by the statute.
Grasse, 412 Ill. at 195. We note that the legislature has wide
discretion in the exercise of its police power. However, in
evaluating a challenged provision the court must consider the
natural and reasonable effect of the legislation on the rights
affected by the provision. Grasse, 412 Ill. at 193.
While it is unnecessary to discuss every Illinois Supreme
Court case which has evaluated legislation in the context of the
special legislation clause, we note the many cases cited by both
plaintiffs and defendants in the case at bar. Defendants cite
numerous cases in which this court has rejected challenges to
legislation on special legislation and equal protection grounds.
See, e.g., Brown's Furniture, Inc. v. Wagner, 171 Ill. 2d 410
(1996) (upholding constitutionality of a use tax); Cutinello v.
Whitley, (1994) (upholding constitutionality of
a county motor fuel tax law); People v. Shephard, (1992) (upholding constitutionality of criminal statute which
allowed an enhanced penalty for selling narcotics with an intent
to deliver if the situs of the crime is within 1,000 feet of public
housing); Chicago National League Ball Club, Inc. v.
Thompson, (1985) (upholding constitutionality
of an environmental regulation which monitored nighttime
baseball games); Bilyk v. Chicago Transit Authority, (1988) (upholding constitutionality of immunity for a transit
authority for failure to protect against criminal acts of third
parties).
In contrast to the above cases, this court has invalidated
legislative classifications under the special legislation clause
where they have an artificially narrow focus and which appear
to be designed primarily to confer a benefit on a particular
private group without a reasonable basis, rather than to promote
the general welfare. See, e.g., In re Belmont Fire Protection
District, , 381-86 (1986) (invalidating a statute
which authorized only counties with populations of between
600,000 and 1 million residents to consolidate all fire protection
services into one district); Wright v. Central Du Page Hospital
Ass'n, , 325-30 (1976) (invalidating $500,000 limit
on compensatory damages in medical malpractice actions);
Grace v. Howlett, , 486-87 (1972) (invalidating a
limit on recovery applicable to damages inflicted by commercial
motorists, but not private motorists); Skinner v. Anderson, , 459-60 (1967) (invalidating a statute of repose for
construction-related injuries for architects and contractors, but
not other potential defendants in the construction process); see
also Lorton v. Brown County Community Unit School District
No. I, , 364-66 (1966); Hutchings v. Kraject, , 380-82 (1966); Harvey v. Clyde Park District, , 64-67 (1964). As the above-cited cases reveal, the
hallmark of an unconstitutional classification is its arbitrary
application to similarly situated individuals without adequate
justification or connection to the purpose of the statute.
In the case at bar, plaintiffs specifically rely on the
following three decisions of this court which held invalid as
special legislation certain statutes which created arbitrary
classifications between groups of similarly situated injured
plaintiffs or tortfeasors: Wright v. Central Du Page Hospital
Ass'n, (1976); Grace v. Howlett,
(1972); Grasse v. Dealer's Transport Co., (1952).
Because plaintiffs maintain that these precedents of this court
are controlling with respect to the constitutionality of section 2--
1115.1, we discuss them in detail.
In Wright, this court held that a $500,000 limit on
compensatory damages in medical malpractice actions (Ill. Rev.
Stat. 1975, ch. 70, par. 101) violated the equal protection and
special legislation provisions of the Illinois Constitution. Like
plaintiffs in the case at bar, the plaintiff in Wright argued that
the compensatory damages limit arbitrarily classified and
unreasonably discriminated against the most seriously injured
victims of medical malpractice. Like defendants in the case at
bar, the defendants in Wright argued that a compensatory
damage limit was necessary to manage a liability crisis,
specifically a "medical malpractice crisis." The plaintiff
maintained, however, that the burden of the legislative effort to
reduce or maintain malpractice insurance premiums arbitrarily
fell exclusively on those most deserving of compensation: the
severely injured.
The Wright court noted that unlike statutorily created causes
of action (see Hall v. Gillins, (1958); Cunningham
v. Brown, (1961)), the right to recover for injuries
arising from medical malpractice existed at common law.[fn3]
See Ritchey v. West, 23 Ill. 329 (1860). Thus, the limitations on
that right of action were subject to constitutional scrutiny.
Specifically, in Wright, this court concluded that the General
Assembly did not have the power to prescribe arbitrary
limitations on an injured plaintiff's compensatory damages. The
limitation on compensatory damages in medical malpractice
actions was determined to be arbitrary and a special law in
violation of the special legislation clause of the Illinois
Constitution of 1970. The damages limit conferred a special
privilege on medical malpractice tortfeasors by insulating them
from fully compensating plaintiffs for fairly assessed damages.
Consequently, relief to an injured plaintiff depended solely on
an arbitrary classification, in violation of the prohibition against
special legislation. Wright, 63 Ill. 2d at 329-30.
Similarly, in Grace, this court held that a statute which
limited recovery for certain automobile accident victims
constituted an arbitrary and unreasonable legislative
classification in violation of the prohibition against special
legislation. At issue in Grace was a newly enacted article to the
Illinois Insurance Code (Ill. Rev. Stat. 1971, ch. 73, pars.
1065.150 through 1065.163). The plaintiffs brought an action for
injunctive relief against state officers to enjoin them from
expending funds appropriated for the enforcement of the new
article. The combined effect of certain provisions of the new
law was to limit an injured plaintiff's ability to recover
compensatory damages, including damages for pain and
suffering, depending on whether the party at fault was using the
automobile for commercial or personal purposes.
The defendants in Grace described the amendment to the
Insurance Code as a response to the growing public demand for
a change in the way society copes with the enormous legal,
social and economic problems produced by car accidents. The
defendants identified small personal injury actions as one of the
major evils of the system of compensating car accident victims.
Grace, 51 Ill. 2d at 484. The defendants further maintained that
the studies regarding car accident compensation identified many
problems with the system of compensating injured individuals.
Specifically, the defendants maintained that the studies showed
the inequitable distribution of compensation among victims, the
excessive expense of the claim system, and the excessive burden
on limited judicial resources. According to the defendants, the
changes to the Insurance Code were rationally connected to
legitimate government concerns.
In determining whether the provisions at issue violated
special legislation and equal protection, the Grace court
assumed that the problems described by the defendants in fact
existed. However, the court reasoned, the fact that a problem
exists does not permit the adoption of an arbitrary or unrelated
means of addressing the problem. Grace, 51 Ill. 2d at 485. In
rejecting the defendants' argument that the legislation was a
permissible exercise of legislative power, the Grace court stated,
"Unless this court is to abdicate its constitutional
responsibility to determine whether a general law can be
made applicable, the available scope for legislative
experimentation with special legislation is limited, and
this court cannot rule that the legislature is free to enact
special legislation simply because `reform may take one
step at a time.' [Citation.]" Grace, 51 Ill. 2d at 487.
This court concluded that to the extent that recovery is
permitted or denied on an arbitrary basis, a special privilege was
granted in violation of the prohibition against special legislation.
Grace, 51 Ill. 2d at 487-90.
In Grasse, this court invalidated a provision of the Worker's
Compensation Act that created arbitrary classifications. At issue
in Grasse was a provision which automatically transferred to an
employer, in certain cases, an employee's common law right of
action against a third-party tortfeasor. In Grasse, the plaintiff
and his employer filed claims against a private defendant to
recover damages stemming from an automobile collision which
was allegedly caused by the negligence of the defendant's
employee. Because both the plaintiff and defendant's employee
were acting in the course of their employment at the time of the
accident, paragraph 1 of section 29 of the Worker's
Compensation Act applied to the subsequent litigation. This
provision authorized the automatic transfer of the plaintiff-
employee's claim against the third-party tortfeasor to the
plaintiff's employer. The circuit court consequently dismissed
the plaintiff's claim against the third-party tortfeasor.
On appeal to this court, the plaintiff alleged, in part, that the
statute violated the special legislation clause of the Illinois
Constitution (Ill. Const. 1870, art. IV, sec. 22) because it created
arbitrary and unreasonable classifications. This court agreed,
holding that the statute created unreasonable classifications in
which the plaintiff's ability to recover complete compensation
was determined by fortuitous circumstances. The statute divided
injured employees into two arbitrary classes based solely on the
fortuity of whether or not the third-party tortfeasor was also
bound by the provision. One class was deprived of the right to
collect compensatory damages from the tortfeasor and the other
class, which was similarly situated, was conferred such right.
This court concluded that there was no substantial or rational
difference between the injured employees in the two classes and,
therefore, the statute offended the prohibition against special
legislation.
In addition to the unequal treatment of injured employees,
the Grasse court determined that the statute divided third-party
tortfeasors into two classes: those bound by the worker's
compensation provision, who were freed from paying
compensatory damages to employees of other entities under the
act, and all other tortfeasors, who remained liable for the full
amount of fairly assessed compensatory damages. The first class
of tortfeasors were only required to pay amounts sought by the
employer as reimbursement for worker's compensation
payments. In contrast, the second class of tortfeasors remained
liable to the plaintiff for the full amount of compensatory
damages assessed by a trier of fact. Therefore, the distinctions
were arbitrary and constituted a violation of the special
legislation clause. Grasse, 412 Ill. 2d at 199.
Defendants maintain that plaintiffs' reliance on Wright,
Grace, and Grasse is misplaced. According to defendants, these
cases were limited by Anderson v. Wagner,
(1979), in a way that renders their holdings inapplicable to the
legislation in the case at bar.
At issue in Anderson was section 21.1 of the Limitations
Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provided a
special statute of limitations period for medical malpractice
actions against physicians and hospitals. The plaintiffs in
Anderson contended that section 21.1 violated the due process
and equal protection provisions of the state and federal
constitutions, and the special legislation provision of the Illinois
Constitution. The plaintiff maintained that section 21.1 violated
the special legislation clause because it (1) set medical
malpractice apart from all other professional malpractice and (2)
conferred a special privilege upon only two classes of medical
health providers, physicians and hospitals. Following an
extensive analysis of the development of the discovery rule in
medical malpractice cases, and the impact on physicians and
hospitals, this court rejected the plaintiff's constitutional
challenge to the statute of limitations provision at issue.
In analyzing the plaintiff's challenges, the Anderson court
retraced the evolution of the "discovery rule" in medical
malpractice cases. Under the discovery rule, a cause of action
accrued when a person learned of his injury or reasonably
should have learned of it. Because the discovery rule came to be
applied extensively in medical malpractice cases, statutes of
limitation in existence no longer provided repose for malpractice
defendants. The discovery rule was perceived to be partly
responsible for the medical malpractice crisis because it created
a "long tail" of liability for medical malpractice defendants.
Thus, the statute of limitations provision at issue in Anderson
was enacted to place an outside limit on the applicability of the
discovery rule to physicians and hospitals. Anderson, 79 Ill. 2d
at 316-21. We find that Anderson is distinguishable from the
instant case because in Anderson, the General Assembly was
responding to judicial expansion of the discovery rule, which
had undermined the medical malpractice statute of limitation by
creating a tolling provision of potentially unlimited duration.
Defendants in the instant case also rely upon language in
Anderson which responded to critics of Wright. In dicta, the
Anderson court explained that Wright did not hold that all
statutory provisions creating medical malpractice review panels
were unconstitutional. The Anderson court also noted that
Wright's holding regarding the limit on economic damages was
consistent with American Bar Association standards which
recommend against any limitation on economic loss. Anderson,
79 Ill. 2d at 304. However, this court in Anderson did not
consider the General Assembly's authority to place a limit on
compensatory damages for noneconomic injuries. We reject
defendants' argument that our decision in Anderson limits
Wright's application in the case at bar.
Plaintiffs argue that section 2--1115.1 merely stitches
together legislative classifications previously rejected in Wright,
Grasse and Grace, and then adds product liability cases.
According to plaintiffs, section 2--1115.1 contains three arbitrary
classifications that have no reasonable connection to the stated
legislative goals: (1) the limitation on noneconomic damages
distinguishes between slightly and severely injured individuals,
(2) the limitation on noneconomic damages arbitrarily
distinguishes between individuals with identical injuries, and (3)
the limitation arbitrarily distinguishes types of injury. At oral
argument, plaintiffs offered examples illustrating how the
limitation on noneconomic damages is disconnected from the
stated legislative purposes of providing rationality and
consistency to jury verdicts.
In the first example, it is assumed that three plaintiffs are
injured as a result of the same tortfeasor's negligence. Plaintiff
A is injured moderately, and suffers pain, disability and
disfigurement for a month. Plaintiff B is severely injured and
suffers one year of pain and disability. Plaintiff C is drastically
injured, and suffers permanent pain and disability. For purposes
of this example, it is further assumed that a jury awards
plaintiffs A and B $100,000 in compensatory damages for
noneconomic injuries. Plaintiff C receives $1 million for his
permanent, life-long pain and disability.
In the above hypothetical, section 2--1115.1 fails to provide
consistency or rationality to a jury's seemingly inconsistent
decision to award plaintiffs A and B the same amount for very
different noneconomic injuries. Therefore, the legislative goal of
providing consistency is not met by the damages cap. With
respect to plaintiff C, section 2--1115.1 arbitrarily and
automatically reduces the jury's award for a lifetime of pain and
disability, without regard to whether or not the verdict, before
reduction, was reasonable and fair.
The tortfeasors in this example are also treated differently,
without any justification. The tortfeasor who injures plaintiffs A
and B is liable for the full amount of fairly assessed
compensatory damages. In contrast, section 2--1115.1 confers a
benefit on the similarly situated tortfeasor who injures plaintiff
C. This tortfeasor pays only a portion of fairly assessed
compensatory damages because of the limitation in section 2--
1115.1. Therefore, the statute discriminates between slightly and
severely injured plaintiffs, and also between tortfeasors who
cause severe and moderate or minor injuries.
Plaintiffs suggest that section 2--1115.1 creates a second
arbitrary legislative classification by distinguishing between
injured individuals who suffer identical injuries. For example,
we are asked to assume that an individual loses his leg due to
a defectively manufactured forklift today, and he loses his other
leg in a car accident the following year. Both injuries are caused
by the negligent conduct of others. The injured individual brings
two different actions against two different defendants, and a jury
assesses compensatory damages for noneconomic injuries at
$400,000 in each case. Section 2--1115.1 would allow the
plaintiff to recover both verdicts in full. However, if the same
plaintiff lost both legs in a single accident due to the negligence
of another, and if the jury fairly assessed $800,000 in
compensatory damages for noneconomic injuries, then the cap
in section 2--1115.1 would eliminate a substantial portion of that
tortfeasor's liability, without regard to the facts of the case.
To illustrate the third arbitrary classification created by the
limitation on noneconomic damages in personal injury actions,
plaintiffs argue that section 2--1115.1 improperly discriminates
among types of injuries. Plaintiffs maintain that the legislative
statements concerning the supposed difficulties of assessing
damages for noneconomic injuries apply equally to all tort
claims for pure noneconomic loss, and not just those involving
death, bodily injury or property damage. Other torts that remain
unaffected by the legislation at issue are invasion of privacy,
defamation, intentional infliction of emotional distress, negligent
infliction of emotional distress, damage to reputation and breach
of fiduciary duty. The speculative nature of noneconomic
damages for these torts, which do not involve personal injury,
is not addressed by the cap in section 2--1115.1.
Plaintiffs maintain that the above illustrations demonstrate
the arbitrariness of the classifications created by section 2--
1115.1, in violation of the prohibition against special legislation.
Plaintiffs contend that the classifications contained within
section 2--1115.1 allow certain culpable tortfeasors to escape
liability for a portion of fairly assessed compensatory damages,
while requiring others to pay the full amount of assessed
damages. Similarly, certain injured plaintiffs are denied
compensatory damages, while other similarly situated injured
plaintiffs are awarded full compensation, without any rational
justification for the distinction.
Defendants raise a series of related arguments in opposition
to plaintiffs' contention that section 2--1115.1 is arbitrary and
not rationally related to a legitimate government interest.
Defendants contend that plaintiffs' arguments are "fatally
flawed" in that they are based on the erroneous assumption that
noneconomic injuries, which are difficult to assess, should be
monetarily compensable. Defendants further argue that section
2--1115.1 is rationally related to the legislative goal of reducing
systemic costs of the civil justice system, which may be
accomplished "one step at a time"; that the General Assembly
has the power to change the common law; and that other
jurisdictions have upheld statutory limitations on damages
similar to section 2--1115.1. We address each of defendants'
arguments in turn.
At oral argument, in rebuttal, defendants stated that "it is
not true that money can compensate for noneconomic damages,
[or] at least the legislature could find that that is the case."
Defendants do not dispute the general proposition that
noneconomic injuries are "real." Rather, defendants argue that
noneconomic damages are "inherently unmeasurable." Thus,
according to defendants, the legislature's adoption of an
"objective" limitation on noneconomic damages is reasonable
and must be upheld as a legitimate exercise of legislative
judgment.
Defendants' argument contradicts the statute under
consideration. Subsection (b) of section 2--1115.1 defines
noneconomic loss or noneconomic damages as "damages which
are intangible, including but not limited to damages for pain and
suffering, disability, disfigurement, loss of consortium and loss
of society." Subsection (c) provides that "compensatory
damages" or "actual damages" are "the sum of the economic and
noneconomic damages." Section 2--1115.1 itself demonstrates
that the legislature believed that remuneration is an appropriate
means by which to compensate tort victims for their
noneconomic injuries. Therefore, the application of a limit to the
noneconomic damages of some, but not all, injured plaintiffs is
not justified by the difficulty of assessing such damages.
We do not disagree with defendants' assertion that damages
for noneconomic injuries are difficult to assess. We simply
determine that it does not follow that the difficulty in
quantifying compensatory damages for noneconomic injuries is
alleviated by imposing an arbitrary limitation or cap on all
cases, without regard to the facts or circumstances. Further, the
preamble to Public Act 89--7 states that "[i]t is the public policy
of this State that persons injured through the negligence or
deliberate misconduct of another be afforded a legal mechanism
to seek compensation for their injuries." Pub. Act 89--7, eff.
March 9, 1995. There is universal agreement that the
compensatory goal of tort law requires that an injured plaintiff
be made whole. See, e.g., Peterson v. Lou Bachrodt Chevrolet
Co., , 363 (1979); 25 C.J.S. Damages sec. 17
(1966). In this case, the arbitrary and automatic cap on
compensatory damages for noneconomic injuries in only certain
tort cases parallels the harm of the arbitrary classifications
stricken by this court in Wright, Grace, and Grasse. Therefore,
the $500,000 limit does not reestablish the credibility of the tort
system, and does nothing to assist the trier of fact in
determining appropriate damages for noneconomic injuries. The
limitation actually undermines the stated goal of providing
consistency and rationality to the civil justice system.
We reject defendants' argument that the damages cap in
section 2--1115.1 should be upheld because reform can be
undertaken "one step at a time." As previously noted in this
opinion, this court has rejected the "one step" rationale to
support a classification if the classification is arbitrary. Grace,
51 Ill. 2d at 487. We need not address this justification further.
Defendants also argue that the legislative interest in
reducing the "systemic costs of tort liability" is sufficient to
overcome plaintiffs' special legislation challenge. The "systemic
costs of tort liability" are not defined in Public Act 89--7 and
we are uncertain as to the meaning and scope of these terms.
Even if we assume that the reduction of these undefined
systemic costs is a legitimate state interest, we do not discern
how the limiting of noneconomic damages in personal injury
actions may be considered rationally related to the achievement
of that interest. See Wright, (rejecting defendants'
argument that lower insurance premiums and medical
malpractice costs for all recipients of medical care legitimately
offset the loss of compensatory damages to some malpractice
victims); Grace, 51 Ill. 2d at 487-88 (rejecting cost-based
justification for imposing limits on the recovery of personal
injury claims as to certain class of plaintiffs). Cf. Bernier, (punitive damages cap upheld).[fn4] In the instant
case, we are unable to discern any connection between the
automatic reduction of one type of compensatory damages
awarded to one class of injured plaintiffs and a savings in the
systemwide costs of litigation. Even assuming that a systemwide
savings in costs were achieved by the cap, the prohibition
against special legislation does not permit the entire burden of
the anticipated cost savings to rest on one class of injured
plaintiffs. E.g., Grace, 51 Ill. 2d at 485. We therefore reject
defendants' systemic costs rationale as a basis for upholding
section 2--1115.1.
Defendants additionally argue that the General Assembly
has the power to change the common law and, therefore, the
limitation on compensatory damages is constitutional. See V.
Schwartz, M. Behrens & M. Taylor, Illinois Tort Law: A Rich
History of Cooperation and Respect Between the Courts and the
Legislature, 28 Loy. U. Chi. L.J. 745 (1997). For example,
defendants cite to the Worker's Compensation Act as an
instance of the legislature's valid exercise of the police power
in limiting liability of an employer for injuries sustained by an
employee during the course of his or her employment. Grand
Trunk Western Ry. Co. v. Industrial Comm'n, 291 Ill. 167
(1919).
Plaintiffs do not dispute that the legislature has the power
to change the common law, and we do not question defendants'
argument insofar as it stands for the general principle that the
General Assembly may alter the common law and change or
limit available remedies. This principle is well grounded in the
jurisprudence of this state. See, e.g., Grand Trunk Western Ry.
Co., 291 Ill. 167. However, defendants' argument assumes too
much. The legislature is not free to enact changes to the
common law which are not rationally related to a legitimate
government interest. The General Assembly's authority to
exercise its police power by altering the common law and
limiting available remedies is also dependent upon the nature
and scope of the particular change in the law. We hold in the
case at bar that the statutory cap on compensatory damages for
noneconomic losses is arbitrary.
Finally, defendants support their contention that the
limitation on noneconomic damages in section 2--1115.1 is
constitutional by referring to several other state court decisions
which have upheld damage limitations. See Fein v. Permanente
Medical Group, , , (1985); Samsel v. Wheeler Transport Services, Inc., 246
Kan. 336, (1990); Murphy v. Edmonds, 325 Md.
342, 601 A.2d 102 (1992); Adams v. Children's Mercy Hospital,
(Mo. 1992); Greist v. Phillips, 322 Or. 281,
(1995); Robinson v. Charleston Area Medical
Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991); Johnson
v. St. Vincent Hospital, Inc., 273 Ind. 374,
(1980); Etheridge v. Medical Center Hospitals, 237 Va. 87, (1989); Butler v. Flint Goodrich Hospital of Dillard
University, (La. 1992); Prendergast v. Nelson,
199 Neb. 97, (1977); see also Davis v.
Omitowoju, 883 F.2d 1155 (3d Cir. 1989).
However, other jurisdictions have held statutory damages
caps unconstitutional. Moore v. Mobile Infirmary Ass'n, , 158 (Ala. 1991); Morris v. Savoy, 61 Ohio 684, 688-89,
576 N.E.2d 765, 769 (1991), Arneson v. Olson, , 135-36 (N.D. 1978); Lucas v. United States, , 690-92 (Tex. 1988); Sofie v. Fibreboard Corp., , 771 P.2d 711 (1989). The amount of noneconomic
damages caps that have been invalidated in other states varies.
See, e.g., Smith v. Department of Insurance, ,
1088-89 (Fla. 1987) ($450,000 cap); Brannigan v. Usitalo, 134
N.H. 50, 58, 587 A.2d 1232, 1236-37 (1991) ($875,000 cap).
The statutory caps on damages which have been enacted by
other states vary considerably in scope and effect. Similarly, the
state constitutional provisions and precedents under which these
damage caps have been challenged are unique to each
jurisdiction. Although the decisions from other states may be
instructive in some respects, we believe that these decisions are
of limited assistance in answering the specific question of
whether section 2--1115.1 offends the special legislation clause
of the Illinois Constitution. We hold that it does.

C. Separation of Powers
Plaintiffs also assert that section 2--1115.1 violates the
separation of powers clause (Ill. Const. 1970, art. II, sec. 1) by
improperly delegating to the legislature the power of remitting
verdicts and judgments, which is a power unique to the
judiciary. See Ill. Const. 1970, art. VI, sec. 1 (judicial power is
vested in the supreme, appellate and circuit courts). According
to plaintiffs, because section 2--1115.1 limits damages for
noneconomic injuries, the section violates the constitutional
separation of powers doctrine by invading the province of the
judiciary and imposing a "one-size-fits-all `legislative
remittitur.' " Plaintiffs argue that the cap on damages
contravenes the traditional authority of the courts to assess, on
a case-by-case basis, whether a jury's damages award is
excessive.
Defendants disagree with plaintiffs' characterization of the
operation of section 2--1115.1 as a legislative remittitur. They
argue that the damages cap merely "sets an outer parameter by
which wholly subjective damages are limited" and in no respect
displaces traditional judicial functions.
Under our constitution, the three branches of government--
legislative, executive, and judicial--are separate and one branch
shall not "exercise powers properly belonging to another." Ill.
Const. 1970, art. II, sec. 1. Although our state constitution does
not define legislative, executive, and judicial power (People v.
Walker, , 473 (1988)), in "both theory and
practice, the purpose of the [separation of powers] provision is
to ensure that the whole power of two or more branches of
government shall not reside in the same hands." Walker, 119 Ill. 2d at 473; Knuepfer v. Fawell, , 292 (1983).
Each branch of government has its own unique sphere of
authority that cannot be exercised by another branch. See, e.g.,
Murneigh v. Gainer, 177 Ill. 2d 287, 312-13 (1997) (holding
invalid an attempted delegation of an executive or administrative
function to the judicial branch); Wright v. Central Du Page
Hospital Ass'n, , 322 (1976) (holding invalid an
attempted delegation of judicial power to nonjudicial member of
medical malpractice review board); Fields Jeep-Eagle, Inc. v.
Chrysler Corp., , 478-79 (1994) (holding invalid
attempted delegation of legislative or administrative
decisionmaking to the judiciary); see also Agran v. Checker Taxi
Co., , 149 (1952) ("If the power is judicial in its
nature, it necessarily follows that the legislature is expressly
prohibited from exercising it").
This court has often recognized that the separation of the
three branches of government is not absolute and unyielding.
See, e.g., Strukoff v. Strukoff, , 58 (1979). The
separation of powers clause is not contravened merely because
separate spheres of governmental authority may overlap. County
of Kane v. Carlson, , 208 (1987). However, it
should be emphasized that the determination of when, and under
what circumstances, a violation of the separation of powers
doctrine has occurred remains with the judiciary. See, e.g.,
Murneigh, 177 Ill. 2d at 303; People v. Warren, 173 Ill. 2d 348
(1996). In furtherance of the authority of the judiciary to carry
out its constitutional obligations, the legislature is prohibited
from enacting laws that unduly infringe upon the inherent
powers of judges. See, e.g., In re S.G., 175 Ill. 2d 471, 487
(1997); Walker, 119 Ill. 2d at 474; People v. Bainter, , 303 (1989); Agran, 412 Ill. at 149.
For over a century it has been a traditional and inherent
power of the judicial branch of government to apply the doctrine
of remittitur, in appropriate and limited circumstances, to correct
excessive jury verdicts. E.g., Hansen v. Boyd, , , 40 L. Ed. 746, 751, 16 S. Ct. 571, 576 (1896); Dimick v.
Schiedt, , 484-85, 79 L. Ed. 603, 610, 55 S. Ct. 296, 300 (1935). In Dimick, 293 U.S. at 486, 79 L. Ed. at 611,
55 S. Ct. at 301, the United States Supreme Court recognized
that remittitur of an excessive portion of a jury verdict is a
question of law for the court.
The practice of ordering a remittitur of excessive damages
has long been recognized and accepted as part of Illinois law.
See, e.g., Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997);
Lee v. Chicago Transit Authority, (1992); Carter
v. Kirk, 256 Ill. App. 3d 938 (1993). The remittitur doctrine has
been acknowledged as promoting both the administration of
justice and the conclusion of litigation. See Carter, 256 Ill. App.
3d at 947; McElroy v. Patton, 130 Ill. App. 2d 872, 877 (1970).
This court has stated that "[a]n award of damages will be
deemed excessive if it falls outside the range of fair and
reasonable compensation or results from passion or prejudice, or
if it is so large that it shocks the judicial conscience."
Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). However,
a damages award will not be subject to remittitur where it "falls
within the flexible range of conclusions which can reasonably
be supported by the facts" because the assessment of damages
is primarily an issue of fact for jury determination. Lee, 152 Ill. 2d at 470; see also Barry v. Owens-Corning Fiberglas Corp.,
282 Ill. App. 3d 199, 207 (1996) (noting that evaluations of a
plaintiff's pain and suffering depend on jurors' combined
wisdom and experience); Riley v. Koneru, 228 Ill. App. 3d 883,
887-88 (1992) (noting reluctance of courts to interfere with
damages awards unless the award is the result of passion or
prejudice) .
The deference given to the careful deliberative process of
the jury is overcome if, after examining the evidence presented
at trial, the trial judge determines that the jury verdict is
excessive. In such a case, "the judge may not allow the verdict
to stand but must act to correct the injustice; and the failure to
do so is, itself, error." Haid v. Tingle, 219 Ill. App. 3d 406, 410
(1991). Under such circumstances the court has a duty to correct
the excessive verdict, and may do so by ordering a remittitur of
a portion of the damages, with the plaintiff's consent. As a
check on excessive verdicts, therefore, the inherent power of the
court to order a remittitur or, if the plaintiff does not consent, a
new trial, is essential to the judicial management of trials. See
Haid, 219 Ill. App. 3d at 412.
Case law reflects that the application of remittitur should be
considered on a case-by-case basis because the evidence and
circumstances supporting verdicts must be carefully examined
before a jury's assessment of damages is reduced. See
Richardson v. Chapman, 175 Ill. 2d 98 (1997) (remitting one
plaintiff's $11 million award for future medical expenses by $1
million and reducing by half the other plaintiff's pain and
suffering award). See also Carter v. Kirk, 256 Ill. App. 3d 938
(1993) (finding that trial court properly granted $20,000
remittitur where the jury's verdict was excessive because
medical evidence failed to support the plaintiff's claims). In
other circumstances, courts have declined to enter a remittitur,
even in cases involving large awards, because the evidence
supported the jury's verdicts. Cf. Holston v. Sisters of the Third
Order of St. Francis, (1995) (declining to reduce
as excessive a $7.3 million verdict in a wrongful death and
survival case); Barry, 282 Ill. App. 3d at 208 (declining to apply
a remittitur to $12 million verdict).
In the case at bar, we conclude that section 2--1115.1
undercuts the power, and obligation, of the judiciary to reduce
excessive verdicts. In our view, section 2--1115.1 functions as
a "legislative remittitur." Unlike the traditional remittitur power
of the judiciary, the legislative remittitur of section 2--1115.1
disregards the jury's careful deliberative process in determining
damages that will fairly compensate injured plaintiffs who have
proven their causes of action. The cap on damages is mandatory
and operates wholly apart from the specific circumstances of a
particular plaintiff's noneconomic injuries. Therefore, section 2--
1115.1 unduly encroaches upon the fundamentally judicial
prerogative of determining whether a jury's assessment of
damages is excessive within the meaning of the law.
We additionally note that the cap provision of section 2--
1115.1 forces the successful plaintiff to forgo part of his or her
jury award without the plaintiff's consent, in clear violation of
the well-settled principle that a trial court does not have
authority to reduce a damages award by entry of a remittitur if
the plaintiff objects or does not consent. See, e.g., Haid, 219 Ill.
App. 3d at 411. A plaintiff's refusal to consent to remittitur will
result in the ordering of a new trial. See McCausland v.
Wonderly, 56 Ill. 410 (1870); Congregation of the Passion, Holy
Cross Province v. Touche Ross & Co., 224 Ill. App. 3d 559,
588 (1991). As such, the statutory scheme unduly expands the
remittitur doctrine. See P. Weiss, Reforming Tort Reform: Is
There Substance to the Seventh Amendment, 38 Cath. U.L. Rev.
737, 757 (1989).
We find persuasive the discussion of legislative remittitur
contained in an opinion of the Supreme Court of Washington,
Sofie v. Fireboard Corp., , 771 P.2d 711
(1989). In that case, the court found unconstitutional
Washington's statutory limit on noneconomic damages. The
Sofie court held the statutory damages cap unconstitutional on
the basis that it violated the plaintiffs' right to a trial by jury, an
issue we do not determine in the instant case. The court's
secondary discussion, which considered the plaintiffs' separation
of powers challenge, is instructive to our separation of powers
analysis.
In addressing the plaintiffs' arguments that the statutory
damages cap operated as a "legislative remittitur" in violation of
the separation of powers doctrine, the Washington Supreme
Court observed that the statute "directly changes the outcome of
a jury determination *** by taking a jury's finding of fact and
altering it to conform to a predetermined formula." Sofie, 112 Wash. 2d at 653, 771 P.2d at 720. The court observed that
remittitur is wholly within the power of the trial judge, and it is
the judge who is empowered to make the legal conclusion, on
a case-by-case basis, that the jury's damage award is excessive
in light of the evidence. Consequently, because the "[l]egislature
cannot make such case-by-case determinations," separation of
powers concerns would be violated by the "legislative attempt
to mandate legal conclusions." Sofie, 112 Wash. 2d at 654, 771 P.2d at 721. Although the Sofie court did not base its decision
squarely upon separation of powers concerns, the court
observed, "[T]he [statutory damages] limit may, indeed, violate
the separation of powers." Sofie, 112 Wash. 2d at 654, 771 P.2d
at 721.
In the case at bar, we conclude that section 2--1115.1
invades the power of the judiciary to limit excessive awards of
damages. The courts are constitutionally empowered, and indeed
obligated, to reduce excessive verdicts where appropriate in light
of the evidence adduced in a particular case. Section 2--1115.1,
however, reduces damages by operation of law, without regard
to the specific circumstances of individual jury awards.
Although legislative limits upon certain types of damages may
be permitted, such as damages recoverable in statutory causes
of action, we hold that the cap in section 2--1115.1 violates the
separation of powers clause of the Illinois Constitution.
In summary, we hold that the compensatory damages cap
of section 2--1115.1 violates the constitutional prohibition
against special legislation and also violates the separation of
powers clause. Because we have so determined, we decline to
address the parties' additional arguments questioning the validity
of section 2--1115.1 as violating the right to a jury trial and the
right to a certain remedy under the Illinois Constitution.

III. Section 3.5 of the Joint Tortfeasor Contribution Act
Plaintiffs challenge the constitutionality of the "contribution
credit" created by Public Act 89--7. This credit is set forth in a
new provision, section 3.5(a), which has been added to the Joint
Tortfeasor Contribution Act (740 ILCS 100/3.5(a) (West 1996)).
Section 3.5(a) provides:
"sec. 3.5. Contribution against the plaintiff's
employer.
(a) If a tortfeasor brings an action for contribution
against the plaintiff's employer, the employer's liability
for contribution shall not exceed the amount of the
employer's liability to the plaintiff under the Workers'
Compensation Act or the Workers' Occupational
Diseases Act. The tortfeasor seeking contribution from
the plaintiff's employer is not entitled to recover money
from the employer. The tortfeasor shall receive a credit
against his or her liability to the plaintiff in an amount
equal to the amount of contribution, if any, for which
the employer is found to be liable to that tortfeasor,
even if the amount exceeds the employer's liability
under the Workers' Compensation Act or the Workers'
Occupational Diseases Act." 740 ILCS 100/3.5(a) (West
1996).
The circuit court held that section 3.5(a) violated the due
process and equal protection clause of the Illinois Constitution
(Ill. Const. 1970, art. I, sec. 2), the right to a certain remedy (Ill.
Const. 1970, art. I, sec. 12), and the separation of powers
provision (Ill. Const. 1970, art. II, sec. 1). The court concluded
that the section would deprive an injured party of "full
compensation due to [its] constitutional infirmities." The court
also noted that "working mathematically through different
scenarios demonstrates that illogical and surely unintended
results occur from [applying the principles of section 3.5(a)]."
Initially, we note the fundamental inconsistency between
section 3.5(a) and the amendments made by Public Act 89--7 to
section 2--1117 of the Code of Civil Procedure (735 ILCS 5/2--
1117 (West 1996)). The amended version of section 2--1117
abolishes the doctrine of joint and several liability in all actions
brought on account of death, bodily injury to person, or physical
damage to property. The doctrine of joint and several liability
is replaced in these actions with proportionate several liability,
whereby a defendant is liable "only for that proportion of
recoverable economic and non-economic damages, if any, that
the amount of that defendant's fault, if any, bears to the
aggregate amount of fault of all other tortfeasors." 735 ILCS
5/2--1117 (West 1996).[fn5] At the same time, however,
section 2(b) of the Contribution Act, which is unaltered by
Public Act 89--7, provides that "[t]he right of contribution exists
only in favor of a tortfeasor who has paid more than his pro rata
share of the common liability." 740 ILCS 100/2(b) (West 1996).
Thus, because a tortfeasor is only liable for his or her
proportionate share of damages as defined by section 2--1117,
it appears that a tortfeasor would never need, or be able, to
pursue a contribution action against an employer and, therefore,
that section 3.5(a) could never be given effect. See R. Michael,
Joint Liability: Should It Be Reformed or Abolished?--The
Illinois Experience, 27 Loy. U. Chi. L.J. 867, 910 (1996); S.
O'Neil, A New Day, The Civil Justice Reform Amendments of
1995, 9 CBA Rec. at 18, 28 (May 1995) ("Contribution claims
against employers are now technically unnecessary because a
defendant's liability is limited to his own percentage of fault");
see also N.M. Stat. Ann. sec. 41--3A--1(E) (Michie 1996)
(expressly noting that defendants who are subject to
proportionate several liability are not entitled to contribution);
Ind. Code Ann. sec. 34--4--33--7 (Michie 1986).
The legislature's enactment of section 3.5(a) and
simultaneous adoption of proportionate several liability in
section 2--1117 raises a serious question as to whether, on the
basis of this conflict alone, the section 3.5(a) credit must be
stricken. We need not resolve this issue, however, for even if we
assume that the two provisions can coexist, we determine that
section 3.5(a) is invalid.
The first sentence of section 3.5(a) states that an employer's
"liability for contribution" is limited to the amount of the
employer's liability to the plaintiff under the Workers'
Compensation Act (820 ILCS 305/1 et seq. (West 1996)), or the
Workers' Occupational Diseases Act (820 ILCS 310/1 et seq.
(West 1996)). Standing alone, this sentence would be a
codification of this court's decision in Kotecki v. Cyclops
Welding Corp., (1991). However, the next two
sentences of section 3.5(a) negate the meaning of the first
sentence. The second sentence of section 3.5(a) states that a
tortfeasor seeking contribution from an employer may not
receive money from that employer. The third sentence then
begins by stating that the tortfeasor, instead of receiving money,
will receive a credit for the "amount of contribution" for which
the employer is "found to be liable" to the tortfeasor. This credit
is to be applied against the tortfeasor's liability to the plaintiff.
Because the first sentence of section 3.5(a) limits the
employer's "liability for contribution" to the employer's
workers' compensation liability, one might reasonably assume
that the amount of the credit in the third sentence, which is
defined as being equal to the "amount of contribution" for which
the employer is "found to be liable," would also be equal to the
employer's workers' compensation liability. However, this is not
the case. The final clause of the third sentence unequivocally
states that the amount of the credit may exceed the employer's
workers' compensation liability. Thus, section 3.5(a) is not only
inconsistent with section 2--1117, it is also internally
inconsistent: if the second and third sentences of section 3.5(a)
are given effect, the first sentence is rendered meaningless.
The internal contradiction within section 3.5(a) further
suggests that a consistent and intelligible construction of the
provision may not be possible. Again, however, we need not
decide whether the section 3.5(a) credit must be invalidated on
this basis alone. Even if the second and third sentences of
section 3.5(a) are enforced to the exclusion of the first sentence,
the credit remains invalid.
Plaintiffs contend that if the section 3.5(a) credit is given
effect, then an employee's recovery from a third-party tortfeasor
will be unjustifiably subjected to a "double reduction." Plaintiffs
maintain that this double reduction will occur because of the
combined effect of the section 3.5(a) credit and the
proportionate several liability of section 2--1117. According to
plaintiffs, the employee's recovery from the third-party
tortfeasor would first be reduced by the percentage of the
employer's comparative fault because section 2--1117 makes the
defendant only severally liable. Then, because the section 3.5(a)
credit may exceed the employer's workers' compensation
liability, the employee's recovery would be reduced again by the
percentage of the employer's fault. Thus, plaintiffs argue that in
an action by an employee against a third-party tortfeasor, the
employee will bear the burden of his employer's fault twice. See
27 Loy. U. Chi. L.J. at 912.
As an illustration of how the double reduction would occur
in practice, plaintiffs offer the following examples. Consider an
action involving an employee plaintiff, an employer, and a third-
party tortfeasor. Assume that the plaintiff is awarded $500,000
in damages and that the tortfeasor and the employer are each
50% at fault. Pursuant to the amended version of section 2--
1117, the tortfeasor would be liable only for his or her
proportionate share of the damages, or $250,000. Then, under
section 3.5(a), the tortfeasor would obtain a credit against his or
her liability to the plaintiff in an amount equal to the employer's
proportionate share of the damages, in this case, 50% or
$250,000. Thus, because $250,000 minus $250,000 equals zero,
the tortfeasor would incur no liability to the plaintiff.
A similar situation occurs when the contributory fault of the
plaintiff and the employer's fault together equals 50% or more.
Assume the same verdict of $500,000. Further assume that the
plaintiff's percentage of contributory fault is 10%, the
tortfeasor's percentage of fault is 50%, and the employer's
percentage of fault is 40%. The $500,000 verdict would first be
reduced by the plaintiff's degree of contributory fault. This
reduction would be 10% of $500,000, or $50,000. The tortfeasor
is liable for 50% of the verdict, or $250,000, but then gets a
credit for the amount of liability allocated to the employer (in
this example, 40%, or $200,000). Thus, the tortfeasor, whose
percentage of fault is 50%, is liable for only $50,000, or 10%
of the total damages.
Plaintiffs argue that in both of the examples above, the
employee's recovery from the third-party tortfeasor is subjected
to a double reduction. Plaintiffs maintain that this double
reduction is arbitrary and discriminatory, and in violation of
principles of due process and equal protection.
Defendants do not contend that the double reduction effect
is constitutional. Instead, defendants assert that the section 3.5(a)
credit should be construed in a limited fashion so that the
double reduction will not occur. Specifically, defendants
maintain that the section 3.5(a) credit should be available only
in those situations where the third-party tortfeasor settles with
the plaintiff for an amount greater than his or her proportionate
share of liability. In these situations, according to defendants,
the proportionate several liability of section 2--1117 would not
apply. Thus, the application of the section 3.5(a) credit to the
settlement amount would not produce a double reduction.
We do not believe that this construction of section 3.5(a) is
permitted by the statute. Under section 3.5(a), a third-party
tortfeasor seeking contribution from an employer may not
receive money. Instead, the tortfeasor receives a credit which is
applied against the tortfeasor's "liability to the plaintiff."
However, once the tortfeasor settles with the plaintiff, the
tortfeasor is no longer liable for the plaintiff's damages. Thus,
if the tortfeasor settles, there is no liability to which the credit
can be applied. Therefore, under the plain language of the
statute, section 3.5(a) cannot apply to those situations where the
third-party tortfeasor settles with the plaintiff. See also 27 Loy.
U. Chi. L.J. at 910 n.257.
Defendants also assert that, as a practical matter, the double
reduction will never occur. They point out that under section 2--
1117, a tortfeasor will never be liable for more than his or her
proportionate share of the damages and, therefore, will never
meet the threshold requirement for contribution. See 740 ILCS
100/2(b) (West 1992). According to defendants, the double
reduction effect described by plaintiffs is merely a hypothetical
event which will not happen in practice.
Defendants are correct to point out that, logically, the
section 3.5(a) credit cannot exist in the face of the proportionate
several liability of section 2--1117, but this fact only serves to
highlight the conflict between the two provisions. Furthermore,
while defendants' argument that the section 3.5(a) credit will
never occur resolves the conflict with section 2--1117 and the
internal contradiction within section 3.5(a), it also renders the
second and third sentences of section 3.5(a) a complete nullity,
in violation of well-established principles of statutory
construction. See, e.g., Kraft, Inc. v. Edgar, , 189
(1990) ("A statute should be construed so that no word or
phrase is rendered superfluous or meaningless"); 2A N. Singer,
Sutherland on Statutory Construction sec. 46.06 (5th ed.
1993).[fn6]
Section 3.5(a) was discussed only briefly during the debate
on House Bill 20 and the comments which were offered provide
no guidance in resolving the ambiguities of the provision. See
89th Ill. Gen. Assem., House Proceedings, February 16, 1995,
at 53-57, 129-30. Accordingly, we conclude that the credit set
forth in the second and third sentences of section 3.5(a) is either
arbitrary and unconstitutional, as plaintiffs propose, or entirely
superfluous, as defendants propose. In either case, the section
3.5(a) credit is invalid and must be stricken.

IV. The Abolition of Joint and Several Liability
The common law doctrine of joint and several liability
provides, in general, that when two or more defendants
tortiously contribute to the same, indivisible injury, each
defendant may be held jointly and severally liable for the entire
injury. See generally 3 F. Harper, F. James & O. Gray, Torts,
secs. 10.1, 10.2 (2d ed. 1986); W. Keeton, Prosser & Keeton on
Torts sec. 47, secs. 50 through 52 (5th ed. 1984); Coney v.
J.L.G. Industries, Inc., , 119-20 (1983).
Significantly, under this doctrine, the plaintiff may recover
compensation for the full amount of the injury from any one of
defendants responsible for the injury. Coney, 97 Ill. 2d at 119-
20.
As noted previously, Public Act 89--7 eliminates the
doctrine of joint and several liability in all actions brought on
account of death, bodily injury to person, or physical damage to
property. In amendments made to section 2--1117 of the Code
of Civil Procedure, Public Act 89--7 replaces joint and several
liability with proportionate several liability. The amended
version of section 2--1117 provides in full:
"sec. 2--1117. Several liability.
(a) In any action brought on account of death, bodily
injury to person, or physical damage to property in
which recovery is predicated upon fault as defined in
Section 2--1116, a defendant is severally liable only and
is liable only for that proportion of recoverable
economic and non-economic damages, if any, that the
amount of that defendant's fault, if any, bears to the
aggregate amount of fault of all other tortfeasors, as
defined in Section 2--1116, whose fault was a proximate
cause of the death, bodily injury, economic loss, or
physical damage to property for which recovery is
sought.
(b) Notwithstanding the provisions of subsection (a),
in any healing art malpractice action based on
negligence or wrongful death, any defendants found
liable shall be jointly and severally liable if the
limitations on non-economic damages in Section 2--
1115.1 of this Act are for any reason deemed or found
to be invalid." 735 ILCS 5/2--1117 (West 1996).
The circuit court concluded that, with "absolute certainty,"
section 2--1117 deprives the citizens of Illinois of their right to
"find a certain remedy in the laws for all injuries and wrongs"
(Ill. Const. 1970, art. I, sec. 12). The court further determined
that section 2--1117 " `unreasonably mandates an allocation of
percentages of negligence to nonparties without any kind of
procedural safeguard' " (quoting Newville v. State of Montana
Department of Family Services, 267 Mont. 237, 252, 883 P.2d 793, 802-03 (1994)) and, hence, violates the constitutional right
to due process (Ill. Const. 1970, art. I, sec. 2). The circuit court
also held that section 2--1117 violates the separation of powers
provision of the Illinois Constitution (Ill. Const. 1970, art. II,
sec. 1) and the courts provision (Ill. Const. 1970, art. VI, sec.
1).
In part III of this opinion, we noted that section 2--1117 is
fundamentally at odds with the basic principles of the
Contribution Act and with section 3.5(a). Section 2--1117 also
directly conflicts with section 4 of the Contribution Act (740
ILCS 100/4 (West 1996)). Public Act 89--7 amended section 4
by adding the words "[e]xcept as provided in Section 3.5 of this
Act." Pub. Act 89--7, eff. March 9, 1995. Section 4 now
provides:
"sec. 4. Rights of Plaintiff Unaffected. Except as
provided in Section 3.5 of this Act, a plaintiff's right to
recover the full amount of his judgment from any one
or more defendants subject to liability in tort for the
same injury to person or property, or for wrongful
death, is not affected by the provisions of this Act." 740
ILCS 100/4 (West 1996).
Section 4 evidently retains the doctrine of joint and several
liability because it expressly preserves a plaintiff's right to
obtain a full recovery of damages from any one or more
defendants, subject only to section 3.5. See Coney, 97 Ill. 2d at
123. Yet, at the same time, section 2--1117 unquestionably
abolishes joint and several liability. See 27 Loy. U. Chi. L.J. at
910 n.258. The simultaneous adoption and retention of two
substantive, contradictory doctrines in a single act creates a
significant obstacle to discerning the legislative intent behind
Public Act 89--7. Because section 2--1117 and section 4 of the
Contribution Act are diametrically opposed, any attempt to
harmonize them would necessarily be futile. Moreover, we
cannot assume that the retention of section 4 was merely an
oversight by the legislature because the section itself was
amended by Public Act 89--7. Hence, the legislature was
mindful of both section 2--1117 and section 4 at the time Public
Act 89--7 was passed and was presumptively aware of their
meanings.
As with the section 3.5(a) credit, the irreconcilable conflict
between section 2--1117 and section 4 raises a serious question
as to whether section 2--1117 can be enforced without
substantially, and improperly, rewriting Public Act 89--7. See,
e.g., Kozak v. Retirement Board of the Firemen's Annuity &
Benefit Fund, , 220 (1983) (statute may not be
rewritten to make it consistent with the court's view of sound
public policy). However, we need not resolve this issue. Like
the section 3.5(a) credit, we believe that even if section 2--1117
can be considered in isolation, it is invalid.
Defendants contend that the legislature's adoption of
proportionate several liability in section 2--1117 is a reasonable
legislative action, in light of problems which allegedly exist
with the doctrine of joint and several liability. According to
defendants, the foremost problem with joint and several liability
is that it unfairly holds tortfeasors liable for damages which they
do not cause.[fn7] In an argument dependent upon this
assertion, defendants also maintain that, under joint and several
liability, "deep pocket" defendants are improperly forced to bear
the costs of misconduct caused by others. Defendants assert that
these costs, which are initially borne by the "deep pocket"
defendant, are eventually passed on to others in the form of
higher consumer costs and increased taxes. See also IDC
Quarterly, at 7 (Second Quarter 1996) (contending that joint and
several liability inherently gives rise to economic inefficiency
and that the doctrine creates a "skewing of economic
incentives"). Defendants maintain that these failings of joint and
several liability are cured, either partially or fully, by
proportionate several liability. Therefore, according to
defendants, the legislature was justified in enacting section 2--
1117.
We note that the proposition which defendants offer as the
primary explanation for abolishing the doctrine of joint and
several liability, i.e., the assertion that the doctrine requires
tortfeasors to pay for more damages than they caused, is at odds
with this court's explanation of joint and several liability in
Coney, . In Coney, this court was asked to decide,
inter alia, whether the doctrine of comparative negligence or
fault necessitated the elimination of joint and several liability.
Coney, 97 Ill. 2d at 110. The defendant in Coney urged this
court to abandon joint and several liability, arguing that "[w]ith
the adoption of comparative negligence where damages are
apportioned according to each party's fault, *** it is no longer
rational to hold a defendant liable beyond his share of the total
damages." Coney, 97 Ill. 2d at 120. The court rejected this
argument and held that the adoption of comparative negligence
did not mandate the abolition of joint and several liability. In so
holding, the Coney court stated:
"The feasibility of apportioning fault on a
comparative basis does not render an indivisible injury
`divisible' for purposes of the joint and several liability
rule. A concurrent tortfeasor is liable for the whole of
an indivisible injury when his negligence is a proximate
cause of that damage. *** The mere fact that it may be
possible to assign some percentage figure to the relative
culpability of one negligent defendant as compared to
another does not in any way suggest that each
defendant's negligence is not a proximate cause of the
entire indivisible injury." (Emphasis added.) Coney, 97 Ill. 2d at 121-22.
See also Burke v. 12 Rochschild's Liquor Mart, Inc., , 452-53 (1992) (recognizing that the adoption of
comparative negligence principles does not alter a joint
tortfeasor's full responsibility for a plaintiff's single, indivisible
injury).
The principle that tortfeasors who are held jointly and
severally liable are each fully responsible for the entirety of the
plaintiff's injury has been explained:
"Joint and several liability only applies to injuries for
which the defendant herself is fully responsible. She is
responsible for the entirety of some injury only if her
tortious behavior was an actual and proximate cause of
the entire injury. [Emphasis added.] She is not liable for
injuries, including separable portions of injuries, to
which she did not contribute. She is not liable unless
the tortious aspect of her conduct was an actual cause
of the injury. Moreover, even then, she is not liable if,
for reasons of policy or principle, her connection to the
injury is considered too remote or minimal to be
`proximate.'
A defendant's individual full responsibility for an
injury that was an actual and proximate result of her
tortious behavior is not diminished if some other
person's tortious behavior also was an actual and
proximate cause of the injury. Rather each defendant
whose tortious behavior was an actual and proximate
cause of the injury is individually fully responsible for
the entire injury. This is most obvious when a
defendant's tortious behavior was either necessary or
independently sufficient for the occurrence of the injury,
but it remains true whenever a defendant's tortious
behavior was an actual and proximate cause of the
injury.
* * *
[There is a fundamental difference] between each
[joint] defendant's individual full responsibility for the
damages that she tortiously caused and the comparative
responsibility percentages that are obtained by
comparing the defendants' individual full
responsibilities for the injury. [In situations where two
defendants are held jointly and severally liable for
negligently injuring a plaintiff] [n]either defendant ***
[is] merely `50% negligent' or `50% responsible.' Such
statements make as much sense as saying that someone
is `50% pregnant.' Nor did either defendant's
negligence cause or occasion only 50% of the plaintiff's
injury. Rather, each defendant was 100% negligent,
each defendant's negligence was an actual and
proximate cause of 100% of the injury, and each
defendant therefore is fully responsible for the entire
injury. Only when we compare their individual full
responsibilities, and assume that they were equally
negligent, does it make sense to say that each
defendant, when compared to the other, bears 50% of
the total comparative responsibility for the injury."
(Emphasis in original.) R. Wright, The Logic and
Fairness of Joint and Several Liability, 23 Memphis St.
U.L. Rev. 45, 54-56 (1992).
See also Restatement (Second) of Torts sec. 875, Comment c,
at 315 (1979) (under the rules of causation set forth by the
Restatement, "any one of a number of persons whose tortious
conduct is a substantial factor in causing harm is liable for the
harm in the absence of a superseding cause"); Lilly v. Marcal
Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 1113-16 (1997);
27 Loy. U. Chi. L.J. at 907-08; 21 U.C. Davis L. Rev. at 1141-
93.
This court's reasoning in Coney places into question
defendants' primary justification for abolishing joint and several
liability, i.e., that the doctrine requires some defendants to pay
for more damages than they caused or for which they are
responsible. We need not resolve, however, the conflict between
the Coney court's analysis of joint and several liability and
defendants' justification for abolishing the doctrine. We believe
that, because of the way in which it is drafted, section 2--1117
violates the special legislation clause of the Illinois Constitution.
Section 2--1117 purports to eliminate the doctrine of joint
and several liability. However, it does not do so completely.
Paragraph (b) of section 2--1117 automatically reinstates joint
and several liability for medical malpractice defendants if the
cap on noneconomic damages in section 2--1115.1 is
invalidated. Because we have held that the cap on noneconomic
damages is unconstitutional, section 2--1117(b) has been
activated.
The justification for imposing joint and several liability
upon medical malpractice defendants in the absence of a
damages cap is not immediately apparent. See J. Zimmerman,
P. Phillips & J. Bisceglia, A Review of the Illinois Civil Justice
Reform Act of 1995, 83 Ill. B.J. 282, 285 (1995) ("Neither the
statutory language preserving joint and several liability in these
narrow circumstances nor the legislative purpose for doing so
are clear"). One reason for enacting section 2--1117(b) which
was given during the debate on House Bill 20 was that section
2--1117(b) was needed to achieve fairness for plaintiffs bringing
medical malpractice actions. Representative Cross, in response
to a question asking whether section 2--1117(b) was intended as
an exclusive benefit for the medical profession, explained that
the legislature was "trying to be fair to people that have services
of ... from [physicians], from nurses, from hospitals, anyone
associated with the health care industry." 89th Ill. Gen. Assem.,
House Proceedings, February 16, 1995, at 150 (statements of
Representative Cross).
The differences between proportionate several liability and
joint and several liability can have a significant, practical impact
upon tort plaintiffs. As one commentator has explained:
"If all the tortfeasors are available and solvent, joint
and several liability with contribution and proportionate
several liability both ultimately achieve the same result:
liability is apportioned among the multiple responsible
causes according [to] their comparative responsibility.
However, two major practical differences exist between
joint and several liability and proportionate several
liability. Under proportionate several liability, the
plaintiff can recover full compensation for his injury
only if he locates, sues, and collects from each party
who tortiously contributed to his injury. The plaintiff
therefore bears a substantial risk of receiving less than
full compensation if any tortfeasor is missing, insolvent,
or has an expected share of liability that would not be
worth the cost of litigation. In addition, the costs in
time and dollars of the multiple actions required to
obtain theoretically full compensation will substantially
delay and reduce the plaintiff's actual net compensation
even if all the tortfeasors can be sued successfully.
Conversely, under joint and several liability the risk of
insolvent or otherwise unavailable tortfeasors and the
expense of multiple actions is placed on the solvent
tortfeasors, if any, from whom the plaintiff initially
obtains compensation. The plaintiff can obtain full
compensation in the initial suit, and the tortfeasors who
pay the plaintiff must seek contribution or indemnity
from the other tortfeasors." U.C. Davis L. Rev. at 1142-
43.
See also Coney, 97 Ill. 2d at 123-24.
Section 2--1117(b)'s abatement of proportionate several
liability in the context of medical malpractice arbitrarily benefits
only medical malpractice plaintiffs. These plaintiffs will not
have to bring several separate actions to recover full
compensation for their injuries. Nor will these plaintiffs bear the
risk of any tortfeasor being insolvent or otherwise unavailable.
However, other tort plaintiffs, whose injuries are not caused by
medical malpractice, will face these burdens. Neither the
plaintiffs nor the defendants in the case at bar have offered any
explanation as to why a select group of medical malpractice
plaintiffs should enjoy the practical benefits of joint and several
liability to the exclusion of all other tort plaintiffs. The
legislature, of course, may reasonably and justifiably be
concerned with achieving fairness for tort plaintiffs. But the
legislature may not adopt an arbitrary means of achieving that
goal. Grace, 51 Ill. 2d at 485. If, in fact, a real need exists to
eliminate the harshness of several liability, then logically this
need exists for all plaintiffs who have suffered physical injury
or loss of property at the hands of joint tortfeasors, and not just
medical malpractice plaintiffs. The stated legislative goal of
achieving fairness does not justify singling out a select group of
tort plaintiffs for special treatment. Therefore, we conclude that
section 2--1117(b) arbitrarily and unconstitutionally provides a
special benefit for medical malpractice plaintiffs. See generally
Grasse, .
We further note that section 2--1117(b) contradicts the
stated purpose for enacting proportionate several liability. The
preamble to Public Act 89--7 declares that "it is the public
policy of this State that a defendant should not be liable for
damages in excess of its proportional share of fault." Plaintiffs
and defendants both agree that this policy was the basis for the
adoption of proportionate several liability in section 2--
1117(a).[fn8] Section 2--1117(b) inexplicably contradicts this
rationale. If the premise underlying Public Act 89--7's abolition
of joint and several liability is that the doctrine unfairly permits
a plaintiff to recover more in damages than is justified from an
individual defendant then, logically, that unfairness is only
exacerbated if there is no cap on the total amount of the
damages which the plaintiff can recover. Thus, the invalidation
of the cap on noneconomic damages does not justify or explain
the exemption provided by 2--1117(b) from the general rule of
several liability.
In sum, there is no discernable rational basis for treating
medical malpractice plaintiffs differently from other plaintiffs in
death, bodily injury and property damage cases. Moreover,
treating these plaintiffs differently in the absence of a damages
cap is directly contrary to the legislature's acknowledged
purpose for enacting proportionate several liability. The
proscription against special legislation prevents the legislature
from preferentially and arbitrarily discriminating in favor of a
select group. Village of Vernon Hills, 168 Ill. 2d at 122.
Accordingly, we conclude that section 2--1117(b) violates the
special legislation clause of the Illinois Constitution.
Plaintiffs contend that section 2--1117(b) cannot be severed
from section 2--1117(a) and, therefore, that if section 2--1117(b)
is invalid then all of section 2--1117 must be stricken. For the
reasons stated more fully in part VI of this opinion, we agree
that without section 2--1117(b), the remainder of section 2--
1117 no longer reflects the legislature's intentions regarding the
scope and nature of its enactment of proportionate several
liability. See, e.g., Lee v. Retirement Board of the Policeman's
Annuity & Benefit Fund, (1964). Therefore, we
hold that section 2--1117(b) cannot be severed from section 2--
1117(a) and that the entirety of section 2--1117 is
unconstitutional.

V. Constitutionality of the Physician-Patient Disclosure Rules
We next consider the constitutionality of certain provisions
of Public Act 89--7 that significantly alter existing discovery
practice in Illinois. Section 2--1003(a) of the Act imposes a
mandatory consent requirement by which every patient who files
a personal injury lawsuit is deemed to agree to the unlimited
disclosure of his or her medical history, records, and other
medical information to any party who has appeared in the action
and who requests such information. 735 ILCS 5/2--1003(a)
(West 1996). Section 2--1003, which is entitled "Discovery and
depositions" sets forth the disclosure requirements in
detail.[fn9] If the plaintiff fails to supply the requested consent
form within 28 days, the court is required, upon motion of a
defendant, to compel the plaintiff's compliance or to issue an
order of involuntary dismissal of the plaintiff's action. The
mandatory consent of section 2--1003 operates as a waiver of
any privilege between the injured person and each health care
provider who has furnished care at any time. The consent or
waiver extends to ex parte conferences between the plaintiff's
treating physicians or other health care personnel and the
defendant and his or her representatives. As such, section 2--
1003(a) is directly contrary to what has been referred to as the
"Petrillo doctrine," which prohibits defendants and their
attorneys from engaging in ex parte discussions with the injured
plaintiff's treating physicians. Petrillo v. Syntex Laboratories,
Inc., 148 Ill. App. 3d 581 (1986).
We note that the prior version of section 2--1003 consisted
of five paragraphs, the first of which provided in its entirety:
"Discovery, admissions of fact and of genuineness of documents
and answers to interrogatories shall be in accordance with
rules." 735 ILCS 5/2--1003(a) (West 1992). This provision has
been retained as subsection (a--1) of the amended statute and the
remaining provisions of the prior statute have also been retained.
Public Act 89--7 adds a new subsection to the discovery and
depositions statute, which provides in its entirety:
"(a) Any party who by pleading alleges any claim for
bodily injury or disease, including mental health injury
or disease, shall be deemed to waive any privilege
between the injured person and each health care
provider who has furnished care at any time to the
injured person. `Health care provider' means any person
or entity who delivers or has delivered health care
services, including diagnostic services, and includes, but
is not limited to, physicians, psychologists,
chiropractors, nurses, mental health workers, therapists,
and other healing art practitioners. Any party alleging
any such claim for bodily or mental health injury or
disease shall, upon written request of any other party
who has appeared in the action, sign and deliver within
28 days to the requesting party a separate Consent
authorizing each person or entity who has provided
health care at any time to the allegedly injured person
to:
(1) furnish the requesting party or the party's
attorney a complete copy of the chart or record of
health care in the possession of the provider,
including reports sent to any third party, including
any records generated by other health care providers
and in the possession of the health care provider, and
including radiographic films of any type;
(2) permit the requesting party or the party's
attorney to inspect the original chart or record of
health care during regular business hours and at the
regular business location of the health care provider,
upon written request made not less than 7 days prior
to the inspection;
(3) accept and consider charts and other records of
health care by others, radiographic films, and
documents, including reports, deposition transcripts,
and letters, furnished to the health care provider by
the requesting party or the party's attorney, before
giving testimony in any deposition or trial or other
hearing;
(4) confer with the requesting party's attorney
before giving testimony in any deposition or trial or
other hearing and engage in discussion with the
attorney on the subjects of the health care provider's
observations related to the allegedly injured party's
health, including the following: the patient history,
whether charted or otherwise recorded or not; the
health care provider's opinions related to the patient's
state of health, prognosis, etiology, or cause of the
patient's state of health at any time, and the nature
and quality of care by other health care providers,
including whether any standard of care was or was
not breached; and the testimony the health care
provider would give in response to any point of
interrogation, and the education, experience, and
qualifications of the health care provider.
The form of the Consent furnished pursuant to this
subsection (a) shall recite that it is signed and delivered
under the authority of this subsection. Any variation in
the form of the Consent required by any health care
provider, not subject to the jurisdiction of the circuit
court before which the action is pending, to whom a
request is directed under subdivision (1) or (2) of this
subsection (a) shall be accepted by the allegedly injured
party and the revised form requested by the health care
provider shall be signed and delivered to the requesting
party within 28 days after it is tendered for signature.
All documents and information obtained pursuant to
a Consent shall be considered confidential. Disclosure
may be made only to the parties to the action, their
attorneys, their insurers' representatives, and witnesses
and consultants whose testimony concerns medical
treatment prognosis, or rehabilitation, including expert
witnesses.
A request for a Consent under this subsection (a) does
not preclude such subsequent requests as may
reasonably be made seeking to expand the scope of an
earlier Consent which was limited to less than all the
authority permitted by subdivisions (1) through (4) of
this subsection (a) or seeking additional Consents for
other health care providers.
The provisions of this subsection (a) do not restrict
the right of any party to discovery pursuant to rule.
Should a plaintiff refuse to timely comply with a
request for signature and delivery of a consent permitted
by this subsection (a) the court, on motion, shall issue
an order authorizing disclosure to the party or parties
requesting said consent of all records and information
mentioned herein or order the cause dismissed pursuant
to Section 2--619(a)(9)." 735 ILCS 5/2--1003(a) (West
1996).
In the case at bar, plaintiffs challenged the medical
disclosure requirements in the circuit court on several grounds,
arguing that section 2--1003(a) violates separation of powers,
the right to privacy, the right to certain remedy and access to
the courts, and the prohibition against special legislation. The
circuit court ruled that section 2--1003(a) and the corollary
provisions of Public Act 89--7 unduly encroach on the authority
of the judiciary and conflict with present supreme court rules.
The court also held that the provisions violate the "fundamental
right to privacy and access to the courts enjoyed by the citizens
of this state," and that there was not "a rational basis for
requiring a citizen to reveal medical conditions unrelated to the
litigation in which she is engaged." The circuit court further
observed that mandating plaintiffs' consent to unlimited
disclosure of confidential medical information unrelated to the
injury on which the lawsuit was brought would "likely force
many persons to avoid the courthouse to redress their wrongs."
The circuit court specifically upheld "Petrillo [as] well-reasoned
law which protects the rights outlined above" and concluded that
the "usual discovery procedures and the Supreme Court rules
together" provide defendants with adequate opportunity to test
plaintiffs' allegations.
This court has declared section 2--1003(a) unconstitutional
in Kunkel v. Walton, No. 81176 (November 20, 1997), a case
which, we note, was under advisement at the same time as the
case at bar. The parties incorporate by reference the arguments
made in Kunkel, which include several amici curiae briefs filed
on behalf of defendants. We have reviewed all of the briefs filed
in this court which relate to the constitutionality of section 2--
1003(a). Of the various constitutional challenges made to this
provision, we resolve its constitutionality primarily upon the
separation of powers doctrine. We also consider plaintiffs'
argument that the Illinois Constitution of 1970 grants a privacy
interest to the citizens of this state and, as part of that analysis,
we examine the reasoning of the appellate court in Petrillo.

A. Separation of Powers
As we have noted elsewhere in this opinion, the separation
of powers clause of the Illinois Constitution provides that each
branch of government is separate and may not exercise the
powers of another branch. Ill. Const. 1970, art. II, sec. 1; People
v. Warren, 173 Ill. 2d 348 (1996); Murneigh v. Gainer, 177 Ill. 2d 287. The judicial power is vested in the supreme court, the
appellate court, and the circuit courts. Ill. Const. 1970, art. VI,
sec. 1. In addition, the judicial article of the constitution vests
this court with supervisory and rulemaking authority over the
judicial system of Illinois. See Ill. Const. 1970, art. VI, sec. 16.
It is the constitutional duty of this court to preserve the integrity
and independence of the judiciary and to protect the judicial
power from encroachment by the other branches of government.
People v. Davis, , 161 (1982). See also People v.
Joseph, (1986); People v. Flores, ,
49 (1984).
In the case at bar, plaintiffs maintain that section 2--1003(a)
violates the separation of powers clause because the statute
abrogates the judiciary's inherent authority to restrict discovery
to relevant information and to provide appropriate sanctions for
discovery abuses. Specifically, section 2--1003(a) provides that
the circuit court "shall issue an order authorizing disclosure to
the party or parties requesting said consent of all records and
information mentioned herein or order the cause dismissed
pursuant to Section 2--619(a)(9)." (Emphasis added.) 735 ILCS
5/2--1003(a) (West 1996). Plaintiffs contend that this mandatory
directive upon the circuit courts unduly infringes upon the
powers of the judiciary because it not only undercuts the
inherent authority of the courts in the exercise of judicial
functions but also directly conflicts with certain discovery rules
of this court.
Defendants maintain that the challenged provision serves the
important societal function of expediting discovery and
curtailing potential abuses of the discovery process by
unscrupulous plaintiffs or attorneys who do not disclose all facts
necessary for defendants to prepare a defense. Defendants
further observe that this court has often recognized the
legislature's power to regulate practice and procedure. See, e.g.,
People v. Walker, (1988); DeLuna v. St.
Elizabeth's Hospital, (1992). According to
defendants, there is no conflict between section 2--1003(a) and
the rules of this court which pertain to discovery procedures.
Defendants contend that the circuit courts remain free to issue
protective orders or discovery sanctions as needed to curtail
abuses of the discovery process.
We agree with plaintiffs that section 2--1003(a) creates an
irreconcilable conflict with the inherent authority of the
judiciary. Although we acknowledge that the legislature may, in
some instances, share concurrent power with this court to
prescribe procedural rules governing discovery (see, e.g.,
O'Connell v. St. Francis Hospital, , 281 (1986);
Niven v. Siqueira, , 368 (1985)), "we have not
hesitated to strike down those procedural legislative enactments
which unduly infringe upon our constitutional rule-making
authority" to regulate the judicial system of Illinois. O'Connell
v. St. Francis Hospital, , 281 (1986).
In O'Connell, this court reaffirmed the established principle
that where a statutory procedure conflicts with a rule of this
court relating to the same procedure, the rule necessarily
prevails. This court held that provisions of the Code of Civil
Procedure which permitted plaintiffs to nonsuit their actions and
then to commence a new action within a year following such
dismissal unduly infringed upon the judiciary's powers, to the
extent that the procedures allowed a plaintiff to avoid
compliance with Supreme Court Rule 103(b) (134 Ill. 2d R.
103(b)). Rule 103(b) requires reasonable diligence in the service
of process and specifies the consequences which result from a
plaintiff's untimely service of process, either before or after the
expiration of the statute of limitations. Because the statutory
provisions under review in O'Connell gave the plaintiff an
unconditional right to take a voluntary dismissal and to refile
within a year of such dismissal, without regard to the expiration
of the limitations period and without regard to the diligence
provision of Rule 103(b), this court held that the statutes
impermissibly conflicted with the rule.
In Gibellina v. Handley, (1989), this court
reaffirmed its authority to manage the court system by
prohibiting an abuse of certain procedures, even though the
statutes in issue did not directly conflict with a supreme court
rule. The Gibellina court prospectively limited plaintiffs'
statutory right to dismiss their actions and refile within one year,
where, prior to the plaintiff's motion for voluntary dismissal, the
defendants filed a motion for summary judgment. This court
determined that a plaintiff should not be permitted to abuse the
statutory right to refile a nonsuited action within a year where
a defendant files a motion that would dispose of the lawsuit on
the merits. Accordingly, the Gibellina court upheld its authority
to manage the court system of Illinois and to cure an abusive
use of civil procedures which had burdened the courts and
infringed upon the judiciary's ability to discharge its duties
fairly and expeditiously.
In a different context, this court has reaffirmed the inherent
power of the judiciary to exercise certain judicial functions, such
as the power of contempt, without being bound by legislative
regulation of such power. In Murneigh, 177 Ill. 2d 287, a
statutory and administrative blood-collection scheme provided
that judges "shall" enter orders requiring incarcerated sex
offenders to give blood specimens. The scheme further required
the courts to punish the violation of such compliance orders as
contempt of court. We ruled that the provisions in issue violated
separation of powers principles by conscripting the judiciary into
the service of an essentially administrative function and by
mandating the courts to enter contempt sanctions. Murneigh, 177 Ill. 2d at 313. This in turn intruded upon the judiciary's inherent
and essential power of contempt, a power held exclusively by
the judiciary. See also Agran v. Checker Taxi Co.,
(1952); Wright, .
In the case at bar, as in Murneigh, the challenged legislation
provides that the courts shall enter an order of compliance and
further prescribes the sole sanction to be imposed if compliance
is not met. Section 2--1003(a) directs that if a plaintiff fails to
furnish the requested consent form within 28 days, "the court,
on motion, shall issue an order authorizing disclosure to the
party or parties requesting said consent of all records and
information mentioned herein or order the case dismissed
pursuant to section 2--619(a)(9)." The language of this section
is mandatory rather than permissive. Therefore, section 2--
1003(a) obligates the courts of this state to become party to the
forced disclosure of confidential medical information even if
such material is wholly unrelated to the lawsuit in issue, or, if
the plaintiff refuses to comply, to enter an order of involuntary
dismissal.
Because involuntary dismissals are considered to be
adjudications on the merits (134 Ill. 2d R. 273), a plaintiff
injured through the fault of another would lose his or her right
of action as the penalty for not consenting to the blanket
disclosure of all confidential medical information, irrespective
of how irrelevant to the lawsuit and however personal, sensitive,
or embarrassing the confidential medical information may be to
the plaintiff.
Defendants rely on cases in which this court has upheld as
constitutional certain legislative regulations of procedure and the
filing of claims. For example, in People v. Williams, (1988), this court held that a statute which provided for the
substitution of judges did not unduly encroach on the powers of
the judiciary. Similarly, defendants assert, this court has upheld
statutes requiring the filing of certain materials as a prerequisite
for obtaining judicial relief. See DeLuna v. St. Elizabeth's
Hospital, (1992) (requiring health care provider's
affidavit certifying that plaintiff's medical malpractice claim had
merit); People ex rel. County Collector v. Jeri, Ltd., (1968) (requiring that a transcript of evidence relating to the
trial court's findings be attached to the order of tax deed).
We believe that the particular statutes upheld by this court
in the above-cited cases withstood constitutional scrutiny for
reasons not present in the instant case. In Williams, the
provision allowing for a substitution of judges in certain
instances caused only a minimal encroachment upon judicial
authority and did not prevent the courts from deciding cases or
managing their dockets. In Jeri, the requirement that a transcript
of evidence be attached to the order for tax deed was part of a
purely statutory proceeding and its purpose was to safeguard
against fraud. The challenged provision did not impede the
courts in the performance of their functions and therefore did
not violate separation of powers principles. In DeLuna, the
certificate of merit requirement was found, inter alia, to be
reasonably related to the legislative goal of discouraging the
filing of frivolous medical malpractice actions by imposing the
threshold requirement that a plaintiff obtain an expert medical
opinion that his or her claim had merit. DeLuna, 147 Ill. 2d at
75. Unlike the mandatory consent and disclosure requirements
of section 2--1003(a), the medical malpractice certificate of
merit requirement upheld in DeLuna may be viewed as directly
relevant, and explicitly tailored, to the plaintiff's cause of action.
The certificate of merit requirement did not extend to medical
information or expert opinion relating to health conditions of the
plaintiff which were unrelated to the subject matter of the
medical malpractice complaint. We conclude that the cases cited
by defendants are distinguishable from the circumstances of the
case at bar and are therefore inapposite.
Evaluating the relevance of discovery requests and limiting
such requests to prevent abuse or harassment are, we believe,
uniquely judicial functions. Similarly, the court's imposition of
sanctions for a party's failure to comply with legitimate
discovery requests in a timely fashion is an inherently judicial
power. However, nothing in the express terms of section 2--
1003(a) authorizes the circuit courts to assess the relevance of
discovery or limit the scope of the defendant's demand for
unlimited disclosure of all medical information in the possession
of anyone who provided health care to the plaintiff at any time.
To the extent that a statute unduly interferes with the exercise
of inherently judicial functions or powers, the statute cannot
prevail. See Gibellina, . We believe that section
2--1003(a) impermissibly interferes with the inherently judicial
authority to manage the orderly discovery of information
relevant to specific cases. Therefore, the statute violates the
separation of powers clause of the Illinois Constitution.
The judicial authority to limit discovery requests and to
impose sanctions for discovery violations is, moreover, expressly
embodied in the discovery rules of this court. Supreme Court
Rule 201(a) contains the general statement that "[i]nformation
is obtainable as provided in these rules." 166 Ill. 2d R. 201(a).
The requirement that discovery requests be relevant to the
subject matter of the litigation is specified in Rule 201(b) (166
Ill. 2d R. 201(b)). Rule 201(c)(1) prescribes the procedures for
obtaining protective orders as a means of preventing abuse. 166
Ill. 2d R. 201(c)(1). In addition, Rule 219 provides the circuit
courts with a range of options for imposing sanctions for a
party's failure to comply with the discovery rules of this court
or with orders of the circuit court pertaining to discovery. 166
Ill. 2d R. 219.
Rule 201(b)(1) provides, "Except as provided in these rules,
a party may obtain by discovery full disclosure regarding any
matter relevant to the subject matter involved in the pending
action ***." (Emphasis added.) 166 Ill. 2d R. 201(b)(1). This
rule expressly limits a party's right of "full disclosure" to
matters which are relevant to the subject matter of the pending
lawsuit. In contrast, section 2--1003(a) omits any mention of
relevance in the consent requirements. Indeed, the statute
contemplates maximum disclosure of confidential medical
information, without regard to whether the information is
relevant to the particular injuries upon which the plaintiff's
lawsuit is based. The statute provides that a plaintiff must waive
"any privilege between the injured person and each health care
provider who has furnished care at any time to the injured
person." (Emphasis added.) 735 ILCS 5/2--1003(a) (West 1996).
The unlimited scope of defendants' discovery in section 2--
1003(a) therefore creates a direct conflict with Rule 201(b),
which embodies an express rule of relevance regarding matters
obtainable through discovery. Such conflict is resolved in favor
of the rule of this court. See, e.g., O'Connell, .
For similar reasons, we hold that section 2--1003(a)
conflicts with Supreme Court Rule 201(c)(1), which governs the
issuance of protective orders. Rule 201(c)(1) provides: "The
court may at any time on its own initiative, or on motion of any
party or witness, make a protective order as justice requires,
denying, limiting, conditioning, or regulating discovery to
prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or oppression." 166 Ill. 2d R. 201. In contrast,
section 2--1003(a) fails to provide any means by which the
circuit court may deny a disclosure request or narrow the scope
of the consent. By its terms, therefore, the statute does not
permit the circuit court to issue a protective order. Therefore,
the statute conflicts with Rule 201(c)(1).
Section 2--1003(a) also fails to explicitly accommodate or
recognize the judge's discretion to impose a discovery sanction
other than a dismissal on the merits if the plaintiff fails to
comply with the consent requirement. Supreme Court Rule 219
enumerates a range of noninclusive sanctions to address
discovery violations and abuses, including the award of
expenses, the barring of a witness, the suppression of otherwise
discoverable information as a sanction for abuse, the striking of
any or all pleadings relating to an issue, and other options for
the circuit court to choose in the exercise of its sound discretion.
Because section 2--1003(a) directs the circuit court's selection
of just one sanction for a plaintiff's noncompliance with the
consent request--involuntary dismissal--the statute conflicts with
Rule 219 as well as the previously discussed provisions of Rule
201. Accordingly, we conclude that section 2--1003(a) violates
the separation of powers clause of the Illinois Constitution
because the statute directly conflicts with the discovery
procedures that have been expressly promulgated as rules of this
court pursuant to its constitutional rulemaking authority.
Defendants insist that nothing in section 2--1003(a)
precludes a plaintiff from filing, and the circuit court from
granting, a protective order pursuant to Supreme Court Rule
201(c). In fact, during oral argument of Kunkel v. Walton, No.
81176, attorneys for the defendants and for the Attorney
General, as intervenor, contended that circuit court judges
remain free to enter protective orders and to enter sanctions
other than dismissal, despite the fact that such measures are not
included within the express terms of section 2--1003(a). The
defendants contend that section 2--1003(a) does not conflict with
this court's rules and may be construed in a constitutional
manner. For the reasons stated below, however, we believe that
the defendants' proposed construction of section 2--1003(a) is
inconsistent with the plain terms and intent of the mandatory
consent and disclosure requirements, and we therefore reject as
untenable the defendants' attempt to harmonize section 2--
1003(a) with this court's rules. We further determine that the
defendants' proposed construction of the statute does not cure
the separation of powers violation created by the application of
the statute.
To evaluate the defendants' statutory construction argument,
we again look to the specific language in the statute and the
reasonable inferences that may be drawn therefrom. As we have
already determined, the plain terms of the statute do not
encompass any explicit procedures by which a plaintiff may
object to the request for unlimited consent to the disclosure of
confidential medical information. Nor does the statute refer to
the court's authority to enter protective orders to prevent
discovery abuses under Rule 201(c)(1), or to enter any sanctions
other than dismissal of a plaintiff's action. Accordingly, we
conclude that under a "plain terms" construction of section 2--
1003(a), the statute cannot reasonably be construed as allowing
the circuit court to limit the scope of a consent request through
protective orders. In light of the express requirements of the
statute, the circuit court is not permitted to impose a sanction
for noncompliance other than dismissal of the plaintiff's cause
of action.
The defendants nonetheless argue that the statute may be
construed to permit the circuit court judges to retain discretion
over the scope of the discovery because of the following
sentence in section 2--1003(a): "The provisions of this
subsection (a) do not restrict the right of any party to discovery
pursuant to rule."[fn10]
In our view, this sentence does not support the defendants'
argument that section 2--1003(a) may be construed as permitting
the circuit court to enter protective orders and to impose
discretionary sanctions for noncompliance. The quoted sentence
does not incorporate any limits or rules that might narrow the
scope of the consent requirements of the statute. Instead, the
quoted sentence refers to a party's general right to obtain
discovery pursuant to this court's rules. To read in limiting
language which is not expressly included in the framework of
section 2--1003(a) is to create a contradiction within the statute
itself. For example, if a plaintiff sought a protective order
requesting the court to prohibit defense counsel from engaging
in ex parte conferences with the plaintiff's treating physician,
the court would be required to either (1) ignore the express
language of the statute or (2) determine that, because of the
sentence quoted above, the court retained discretion to determine
that an ex parte conference was an abuse of discovery. The
dilemma facing such a court is obvious: the court must apply
the statute as written, or else adopt an expansive interpretation
that would defeat the essential purpose and express language of
the statute. Allowing courts to freely limit the scope of the
mandatory consent requirement would thwart the legislative
intent to permit the broadest possible disclosure of medical
information and to authorize unlimited ex parte conferences with
the plaintiff's treating health care practitioners. Therefore, we
reject the defendants' statutory construction analysis as contrary
to the plain terms and intent of the provision.
But even if we were to accept the statutory construction
proposed by the defendants, there is a remaining flaw in the
analysis which underscores the separation of powers concerns
previously identified. A discovery procedure which authorizes
unlimited disclosure of information in the first instance, subject
only to particularized protective orders, shifts a significant
burden to the courts of this state to repeatedly assess and limit,
through entry of protective orders, discovery requests that may
well be overbroad on their face. The expansive impact of the
statutory consent requirements virtually demands that plaintiffs'
attorneys file motions for protective orders as a matter of course
whenever a consent form is requested by defense counsel.
Although the judiciary is the proper entity to determine the need
for protective orders, on a case-by-case basis, one of the effects
of section 2--1003(a) is to create an assembly line of overbroad
discovery requests followed by motions for protective orders.
We believe, therefore, that section 2--1003(a) impermissibly
burdens and significantly infringes upon the inherent judicial
powers that are constitutionally granted to the courts. See, e.g.,
Murneigh, 177 Ill. 2d 287 (rejecting legislative mandate that the
contempt power be used to facilitate administrative or executive
scheme); People v. Joseph, (1986) (striking
statute requiring all post-conviction proceedings to be conducted
by judge who was not involved in original proceeding as
encroaching upon court administration); People v. Flores, , 49 (1984) (invalidating statute which interfered with
the ability of a trial judge to control his own docket after the
trial of a cause had begun); see also Gibellina, .
It is the duty of this court to invalidate legislation that
significantly burdens or otherwise curtails the inherent and
constitutionally granted authority of the judiciary. See Davis, 93 Ill. 2d at 161. Accordingly, we hold that section 2--1003(a) is
invalid as violating the separation of powers clause of the
Illinois Constitution.

B. Right to Privacy and The Petrillo Doctrine
We next consider plaintiffs' argument that section 2--
1003(a) violates the privacy rights of Illinois citizens. In support
of this argument, plaintiffs cite to the two clauses in the Illinois
Constitution which expressly refer to privacy. See Ill. Const.
1970, art. I, secs. 6, 12. They further ground their privacy
argument in the Petrillo doctrine, which recognized a strong
public policy in preserving the confidential and fiduciary
physician-patient relationship and held that such public policy
is violated by ex parte communications between defendants or
their counsel and plaintiffs' treating physicians.
Defendants counter that there is no constitutional right to
privacy in medical information under federal or state decisions.
Furthermore, the defendants argue, the branch of government
charged with declaring the public policy of this state is the
legislature. According to defendants, the legislature acted well
within its authority in providing for ex parte conferences
between the plaintiff's health care practitioners and
representatives of the defendants. Finally, defendants posit that
the Petrillo doctrine was never expressly adopted by this court
and that the legislature is free to overturn it.
In 1970, the Illinois Constitution was amended to include
two separate provisions which expressly refer to a citizen's
expectations of privacy. Section 12 of the Illinois Constitution's
Bill of Rights provides that "[e]very person shall find a certain
remedy in the laws for all injuries and wrongs which he receives
to his person, privacy, property or reputation. He shall obtain
justice by law, freely, completely, and promptly." (Emphasis
added.) Ill. Const. 1970, art. I, sec. 12. Section 6 of the Illinois
Bill of Rights states, "The people shall have the right to be
secure in their persons, houses, papers and other possessions
against unreasonable *** invasions of privacy ***." Ill. Const.
1970, art. I, sec. 6.[fn11]
The Constitutional Commentary to section 6 of the Bill of
Rights explains that "[t]he protection against `invasion of
privacy' is new and is stated broadly" and "expands upon the
individual rights which were contained in Section 6 of Article
II of the 1870 Constitution and the guarantees of the Fourth and
Fourteenth Amendments to the United States Constitution." Ill.
Ann. Stat., 1970 Const., art. I, sec. 6, Constitutional
Commentary, at 522 (Smith-Hurd 1997). With reference to
section 6, this court has observed that "[b]ecause the Illinois
Constitution recognizes a zone of privacy, the protections
afforded by the Illinois Constitution go beyond the guarantees
of the Federal Constitution. In re May 1991 Will County Grand
Jury (1992), ." King v. Ryan, , 464
(1992); see also Fink v. Ryan, 174 Ill. 2d 302 (1996); cf. People
v. DiGuida, , 119 (1992) (referring to a 1984
decision in which this court indicated it would interpret section
6 of the Illinois Bill of Rights as consistent with its counterpart,
the fourth amendment to the federal constitution). This court has
stated that governmental conduct or "state action" must be
present before a citizen claiming a violation of the privacy right
referenced in section 6 of the Illinois Bill of Rights may obtain
relief. See Barr v. Kelso-Burnett Co., , 526
(1985) (rejecting plaintiff's argument that employer's alleged
violation of free speech, equal protection, due process, and
privacy rights provided a proper foundation on which to premise
plaintiff's action for retaliatory discharge); see also People v.
DiGuida, 152 Ill. 2d at 121-24 (rejecting defendant's free speech
and free elections challenge as a means to challenge his
conviction for criminal trespass to private store owner's land).
In considering section 6 of the Illinois Bill of Rights in
conjunction with section 12, this court has stated that the
"constitutional right to be free from governmental invasions of
privacy [in section 6] is supplemented by the constitutional right
to a certain remedy for invasions or injuries to one's privacy
provided for in article I, section 12, of the Illinois Constitution
of 1970." In re A Minor, , 256 (1992). In Minor,
a news organization attending a juvenile court hearing sought
permission to disclose the names of the minor victims of abuse.
Pursuant to a provision of the Juvenile Court Act, the circuit
court prohibited the newspaper from disclosing the identities of
the minor victims. The newspaper appealed. This court affirmed,
holding that the statutory provision which permitted the news
media to attend hearings closed to the general public did not
grant the media a right to disclose the minor victims' names.
This court held that the circuit court's order barring disclosure
of the victims' identities was not an unconstitutional prior
restraint on the freedom of the press. Minor, 149 Ill. 2d at 253-
57. After citing the two privacy clauses of the Illinois
Constitution, the court determined that the minor victims had a
compelling privacy interest at stake. Minor, 149 Ill. 2d at 255.
In reviewing the history of section 12 of the Illinois Bill of
Rights, the Minor court held it does not require the presence of
state action. The court concluded,
"It is clear from the debates in the Sixth Illinois
Constitutional Convention that article I, section 12, was
intended to protect an individual's privacy from
invasions or injuries caused by another nongovernmental
individual or company. 3 Record of Proceedings, Sixth
Illinois Constitutional Convention 1531-32." (Emphasis
in original.) Minor, 149 Ill. 2d at 256 .
Consistent with this court's holding in the Minor case, we
recognize that section 12 of the Illinois Constitution, unlike
section 6, does not require state action before its protections are
activated. However, the precise nature and scope of the privacy
interest set forth in section 12 has not been the subject of much
case law in this state. Plaintiffs cite cases in which a
constitutional right to privacy was found in bank records
(People v. Jackson, 116 Ill. App. 3d 430, 434-35 (1983)) and
telephone records (People v. DeLaire, 240 Ill. App. 3d 1012,
1020 (1993); cf. People v. Smith, 72 Ill. App. 3d 956, 964
(1979)). In addition, plaintiffs rely on Petrillo for the
proposition that the "privacy rights of individual patients" and
the "confidential and fiduciary relationship existing between
patients and their physicians" are compelling interests deserving
of protection for reasons of public policy. Petrillo, 148 Ill. App.
3d at 607.
In Petrillo, a product liability action, defense counsel
informed the trial court that he had previously met in private
with a treating physician for one of the 26 plaintiffs in the case.
Upon learning of the meeting, plaintiffs' counsel moved to bar
any future ex parte communications between defense counsel
and any other physician. The trial court granted the motion and
entered an order to that effect. Defense counsel, however,
informed the court that he did not intend to comply with the
order. The trial court, therefore, held the attorney in direct
contempt, and the attorney appealed.
In affirming the trial court's order, the appellate court
initially noted that ex parte conferences were not necessary to
obtain information for defending a lawsuit because the discovery
methods outlined by Supreme Court Rule 201 were sufficient.
The court determined that a review of case law from other
jurisdictions revealed that there was not a single instance in
which a court found that an ex parte conference was necessary
to assist defense counsel in obtaining information that they were
unable to acquire through "regular channels of discovery."
Petrillo, 148 Ill. App. 3d at 587.
The Petrillo court emphasized that society places a high
value on the professional duties under which a physician
operates, including the dual duties of confidentiality and loyalty.
Petrillo, 148 Ill. App. 3d at 589-92. The court noted that certain
conduct could be against public policy even in the absence of an
express constitutional or statutory prohibition because public
policy could be inferred from such sources as statutes or
constitutions. Reasoning that there exists a strong public policy
in preserving the sanctity of the patient-physician relationship
and acknowledging the plaintiff's privacy interests, the court
determined that ex parte conferences unduly threatened society's
interest in maintaining the fiduciary and confidential nature of
the relationship. Petrillo, 148 Ill. App. 3d at 589-96.
Accordingly, the court held that ex parte conferences between
a plaintiff's physician and defendant or his counsel should not
be permitted. Petrillo, 148 Ill. App. 3d at 596.
In the years following the decision in Petrillo, all five
districts of our appellate court have followed the decision and,
although the specific application of Petrillo to various facts has
differed in some respects, "the fundamental holding that ex parte
discussions between defense counsel and plaintiff's treating
physician shall be conducted only through authorized methods
of discovery has been overwhelmingly approved in subsequent
Illinois Appellate Court cases." L. Bonaguro & M. Jochner, The
Petrillo Doctrine: A Review and Update, 83 Ill. B.J. 16, 16
(1995). Other articles, which have analyzed the policy grounds
on which the Petrillo court based its decision, have either
endorsed the prohibition of ex parte communications (see P.
Corboy, Ex Parte Contacts Between Plaintiff's Physician and
Defense Attorneys: Protecting the Patient-Litigant's Right to a
Fair Trial, 21 Loy. U. Chi. L.J 1001 (1990)) or questioned the
"new type of witness privilege" created in Petrillo and the
perceived expansion of the original decision beyond its natural
boundaries (see W. McVisk, A More Balanced Approach to Ex
Parte Interviews by Treating Physicians, 20 Loy. U. Chi. L.J.
819 (1989); see also C. Redden & W. Bower, Qualifications to
the Bar of Ex Parte Contacts With Physicians, 79 Ill. B.J. 442
(1991)).
We do not believe it is necessary, practical, or appropriate
for this court to review every case in which the Petrillo rule has
been applied, distinguished, or otherwise discussed. However,
because the legislative decision to eviscerate the Petrillo "rule"
has been questioned by plaintiffs as part of their challenge to
section 2--1003(a), we find it appropriate to examine the
rationale of the Petrillo decision and to ascertain whether there
exists a constitutional source for the recognition of a strong
public policy interest in preserving the sanctity of the physician-
patient relationship. We acknowledge that the Petrillo decision
did not directly recognize a constitutional basis for its holding,
and we further acknowledge that there was no issue raised in
Petrillo that the plaintiff's privacy interest in confidential
medical information was protected by the Illinois Constitution.
However, the Petrillo court expressly acknowledged that the
public policy of this state is reflected in constitutional provisions
as well as statutes. We believe that it is proper for this court to
consider the Illinois Constitution's privacy provisions as
reflective of an important policy. With that in mind, we consider
the important public policy considerations that the Petrillo court
found compelling enough to bar ex parte conferences.
In his appeal from the order holding him in contempt of
court, the attorney in Petrillo raised several arguments. A group
of arguments, collectively referred to as the "waiver" challenges,
stated that a plaintiff, by filing suit, places his mental and
physical condition at issue, thereby waiving the physician-
patient privilege. The waiver issue was further broken down into
10 related arguments in which the attorney sought to justify ex
parte conferences between defense counsel and the treating
physicians of the plaintiff. In addition, the attorney posited that
prohibiting defense counsel from engaging in ex parte
conferences with a plaintiff's treating physician violated defense
counsel's first amendment rights. Petrillo, 148 Ill. App. 3d at
584.
After initially concluding that ex parte conferences were not
necessary for the preparation of a defense, the Petrillo court
announced its disagreement with the defense attorney's
contention that no public policy in Illinois prohibited ex parte
conferences. According to the court, "Public policy is found in
a State's constitution and statutes, and where those are silent, in
the decisions of the judiciary." Petrillo, 148 Ill. App. 3d at 587.
Noting that public policy forbids "that conduct which tends to
harm an established and beneficial interest of society the
existence of which is necessary for the good of the public," the
court held that "modern public policy strongly favors the
confidential and fiduciary relationship existing between a patient
and his physician." Petrillo, 148 Ill. App. 3d at 587. The court
stated its belief that this public policy was reflected in at least
two separate indicia: (1) the code of ethics adopted by the
medical profession, upon which the public necessarily relies as
a protection of the confidential relationship existing between a
patient and his physician; and (2) the fiduciary relationship
which exists between a physician and his patient, which is
widely recognized in court opinions.
The first indicia of the public policy invaded by ex parte
conferences, the medical profession's code of ethics, was further
broken down by the Petrillo court into three "prongs": (1) the
Hippocratic Oath; (2) The American Medical Association's
Principles of Medical Ethics; and (3) the Current Opinions of
the Judicial Council of the AMA (1984 ed.)[fn12]
Observing that the relationship between doctor and patient
remains confidential only for so long as a patient can trust that
his consent is a prerequisite to the disclosure of the information
he conveyed to his doctor, the Petrillo court concluded that
when a physician and defense counsel engage in ex parte
conferences without the consent of the patient, the
confidentiality which once existed between the doctor and
patient is irreparably breached and the "sanctity of the
relationship existing between a patient and his physician is
thereby destroyed." Petrillo, 148 Ill. App. 3d at 591.
Significantly, the Petrillo court distinguished between medical
information which is considered waived by the filing of a
lawsuit and information which is not waived. The court noted
that disclosure of information could be accomplished by either
an express consent or one implied at law by the patient's
conduct, such as the filing of a lawsuit. With respect to the
latter situation, the patient filing suit implicitly agrees to his or
her doctor's release of any medical information related to the
specific physical or mental condition which the patient has
placed in issue. However, the plaintiff's implied consent (or
waiver of information) "is obviously and necessarily limited; he
consents only to the release of his medical information (relative
to the lawsuit) pursuant to the methods of discovery authorized
by Supreme Court Rule 201(a) (87 Ill. 2d R. 201(a))."
(Emphasis in original.) Petrillo, 148 Ill. App. 3d at 591. The
plaintiff-patient does not, by the simple act of filing suit,
consent to ex parte discussions between his treating doctor and
defense counsel, nor does he consent to disclosure of
confidential information unrelated to the subject matter of the
lawsuit. The Petrillo court concluded, consistent with the courts
of other jurisdictions, that patients have the right to rely on their
physicians' compliance with the ethical obligations of
confidentiality, and barring ex parte conferences is a necessary
adjunct to preserve that right.
The Petrillo court also discussed what it considered to be
the second "indicia" of the public policy against ex parte
conferences between defense counsel and plaintiff's treating
physicians. Similar to the confidentiality/privacy discussion
addressed above, this portion of the appellate court's opinion
found that society has an established interest in the fiduciary
quality of the physician-patient relationship. Citing cases from
Illinois and other jurisdictions, the Petrillo court stated that the
fiduciary relationship between doctor and patient is founded
upon trust and confidence. Implied in this fiduciary relationship
is a "good faith" requirement that the physician will not engage
in conduct adverse to his or her patient, including ex parte
conferences with the patient's opposing counsel. Emphasizing
that at the heart of a fiduciary relationship is trust, loyalty, and
faith in the discretion of the fiduciary, the court in Petrillo
concluded that ex parte conferences with defense counsel
constituted a serious breach of trust. Petrillo, 148 Ill. App. 3d
at 596.
We believe that the rationale of the Petrillo court is sound
and that there is a strong public policy against ex parte
conferences between the plaintiffs' health care practitioners and
defendants or their representatives. We further believe that the
privacy interest referred to in the "certain remedy" clause of
section 12 provides a constitutional source for the protection of
the patient's privacy interest in medical information and records
that are not related to the subject matter of the plaintiff's
lawsuit. We acknowledge that the certain remedy provision has
been referred to in general as a statement of philosophy rather
than a guarantee of a specific remedy. See Sullivan v.
Midlothian Park District, , 277 (1972).
Nonetheless, we believe that a statement of "constitutional
philosophy" is reflective of the strong public policy that was
recognized in Petrillo. Therefore, we conclude that patients in
Illinois have a privacy interest in confidential medical
information, and that the Petrillo court properly recognized a
strong public policy in preserving patients' fiduciary and
confidential relationship with his or her physicians. [fn13]

VI. Severability
We have declared that certain provisions of Public Act 89--
7 violate the Illinois Constitution. Specifically, we have
invalidated the cap on noneconomic damages, the provision
which gives a credit to third-party tortfeasors in the amount of
the employer's proportionate share of liability, the abolition of
joint and several liability, and the provision of the Code of Civil
Procedure which requires the wholesale disclosure of
confidential medical information upon the filing of a personal
injury lawsuit. Our next determination is whether the legislature
would have passed the Act in the truncated form that remains
after these invalid provisions are eliminated. Under principles of
severability, we consider whether the provisions that we have
not declared invalid may be given effect independently, without
doing violence to the legislative intent in passing the
comprehensive tort reform legislation. See, e.g., Murneigh, 177 Ill. 2d at 313-14. If, however, the invalid portions may not be
severed from the remainder of the Act, the legislation is
rendered void in its entirety. See, e.g., City of Chicago Heights
v. Public Service Co., , 610-11 (1951); Dornfeld v.
Julian, (1984).
Whether or not an act is severable is a question of
legislative intent. E.g., Russell Stewart Oil Co. v. State, , 128 (1988); Dornfeld, 104 Ill. 2d at 265-66. It has been
noted that this inquiry is twofold, because the legislature must
have intended that the act be severable, and the act must be
capable of severability in fact. See 2 N. Singer, Sutherland on
Statutory Construction sec. 44.03, at 495 (5th ed. 1993); see also
City of Chicago Heights, 408 Ill. at 610-11. To determine
whether an act is severable this court has often repeated, as the
"settled and governing test of severability," whether the valid
and invalid provisions of the Act are "so mutually `connected
with and dependent on each other, as conditions, considerations
or compensations for each other, as to warrant the belief that the
legislature intended them as a whole, and if all could not be
carried into effect the legislature would not pass the residue
independently ***.' " [Citation.] The provisions are not
severable if `they are essentially and inseparably connected in
substance.' " Fiorito v. Jones, , 540-41 (1968);
accord People ex rel. Rudman v. Rini, , 329
(1976); Northern Illinois Home Builders Ass'n v. County of
Du Page, , 48-49 (1995); see also Commercial
National Bank v. City of Chicago, , 73-74 (1982)
(and cases cited therein).
Determining whether portions of an act are severable is a
matter of statutory construction, and the existence of a
severability clause within the statute is not conclusive of the
issue. Instead, an express severability clause may be viewed as
a rebuttable presumption of legislative intent. See, e.g.,
Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 329
(1996); Commercial National Bank, 89 Ill. 2d at 75; Grennan v.
Sheldon, 401 Ill. 351, 360-61 (1948). In the case at bar, Public
Act 89--7 includes a general severability provision, which states:
"The provisions of this Act, including both the new and the
amendatory provisions, are severable under section 1.31 of the
Statute [on] Statutes." Pub. Act 89--7 sec. 990, citing 5 ILCS
70/1.31 (West 1996). Although the enactment of a severability
provision reflects a legislative effort to preserve an act
notwithstanding a declaration of partial invalidity, it has been
noted that "[b]ecause of the very frequency with which it is
used, the severability clause is regarded as little more than a
mere formality." 2 N. Singer, Sutherland on Statutory
Construction sec. 44.08, at 521 (5th ed. 1993). This court has
noted that a severability clause "may be useful as an aid in
determining legislative intent, [but] it is not an `inexorable
command' [citation] *** `*** and [it] must be applied in
conformity with the rules of constitutional law.' [Citation.]"
Commercial National Bank, 89 Ill. 2d at 74. See also People ex
rel. Chicago Bar Ass'n v. State Board of Elections, , 532 (1990) (noting that this court "has frequently held that
unconstitutional provisions of a statute were not severable from
the remainder of the statute even though the statute itself
contained a severability clause").
In Jacobson, 171 Ill. 2d at 329, we held that the
presumption of severability reflected by an express severability
clause will be overcome and the entire statute held
unconstitutional if the legislature would not have passed the
statute without the provision deemed invalid. Jacobson, 171 Ill. 2d at 329, citing Northern Illinois Home Builders Ass'n, 165 Ill. 2d at 48. To determine whether the legislature would have
passed the statute without the provision declared invalid, the
courts consider whether the legislative purpose or object in
passing the act is significantly undercut or altered by the
elimination of the invalid provisions. For example, in Grennan,
this court invalidated the entire Hospital Authorities Act of 1947
after finding that the invalid provisions, which contained an
arbitrary classification of voters, could not be severed from the
remaining provisions without defeating the object of the act.
Grennan, 401 Ill. at 360-61.
Similarly, in City of Chicago Heights, this court held invalid
in its entirety a public utility regulatory scheme after finding
that the license and permit fees imposed by the ordinance were
excessive and unreasonable as a matter of law. City of Chicago
Heights, 408 Ill. at 609-10. This court next addressed whether
the invalid license and permit fee provisions were severable
from the remainder of the ordinance, which regulated other
supervisory duties imposed upon the department of streets.
Holding that the stricken provisions were "manifestly the most
important part of the regulatory system," this court concluded
that it could not determine that the council would have adopted
the ordinance without the provisions that had been declared
invalid; consequently, the entire ordinance was held null and
void. City of Chicago Heights, 408 Ill. at 611. See also People
ex rel. Barrett v. Union Bank & Trust Co., 362 Ill. 164, 170
(1935) (invalid provision of banking statute held not severable
from remainder of statute).
Even in cases where the valid sections of an act are
complete and capable of being executed, the entire act will be
declared void if, after striking the invalid provisions, the act that
remains does not reflect the legislative purpose in enacting the
legislation. For example in Village of Schaumburg v. Jeep Eagle
Sales Corp., 285 Ill. App. 3d 481, 489 (1996), the court held
that certain provisions of a sign ordinance which imposed
restrictions as to the type, number, and height of flags
impermissibly distinguished corporate and official flags from all
other flags. In holding invalid the content-based restrictions, the
court held that the other restrictions, although complete and
capable of being executed, could not be severed from the invalid
portions because the effect of enforcing the remaining provisions
would be contrary to the original intent of the ordinance. Village
of Schaumburg, 285 Ill. App. 3d at 489. Similarly, in Lee v.
Retirement Board of the Policeman's Annuity & Benefit Fund,
(1964), the invalidation of a portion of an
amendment rendered the entire amendment void because it no
longer reflected the legislature's intention, which was to grant
special pension credits to policemen on a particular eligibility
roster. Removing the language that limited the preference to the
one group of officers would have had the unintended effect of
expanding the application of the preference to a much larger
group of policemen, thereby increasing the taxpayers' burden.
Such a result would not be consistent with the legislature's goals
in enacting the amendment. Lee, 31 Ill. 2d at 255-56. See also
Union Bank & Trust Co., 362 Ill. at 170; People ex rel. Chicago
Bar Ass'n, 136 Ill. 2d at 534-36.
In contrast to the above cases, statutes have been upheld
notwithstanding the invalidation of a provision where such
provision was not considered to be so inextricably connected to
the rest of the act that the legislature would not have passed the
one portion without the other. For example, in Dornfeld, this
court held that a two-year limitation period for bringing a
paternity action violated the equal protection rights of the
children of unwed parents. Dornfeld, 104 Ill. 2d at 265. On the
question of severability, this court held that the limitations
provision could be removed from the Paternity Act without
violating the purpose of the legislation and thus did not render
the entire act invalid. Dornfeld, 104 Ill. 2d at 266-67. Similarly,
in Northern Illinois Home Builders Ass'n, this court reviewed
and rejected several constitutional challenges to a scheme under
which Du Page County was authorized to impose transportation
impact fees on new land developments. One provision under
review was held invalid under equal protection and uniformity
principles, as unduly burdening the appeal rights of certain fee
payers. Northern Illinois Home Builders Ass'n, 165 Ill. 2d at 48.
In holding that this provision was severable from the remainder
of the ordinance, we held that the ordinance still served the
legislature's intent of ensuring that new developments pay their
fair share of road improvements. Northern Illinois Home
Builders Ass'n, 165 Ill. 2d at 49. See also Murneigh, 177 Ill. 2d
at 313-14; Tully v. Edgar, 171 Ill. 2d 297 (1996).
After reviewing the general principles of severability
reflected in the foregoing authorities, we consider the General
Assembly's intent in passing the legislation introduced as House
Bill 20 and enacted, without compromise or revisions, as Public
Act 89--7. As this court has previously noted, legislative history
is relevant to our analysis of severability. See, e.g., People ex
rel. Chicago Bar Ass'n, 136 Ill. 2d at 536-37; People v. Porter,
, 81 (1988). It is not disputed that the sponsors
and supporters of the bill intended to effectuate comprehensive
reform of the current tort system in Illinois. As such, House Bill
20 represented a major piece of tort legislation, of unparalleled
scope and potential impact on the citizens of this state. The
transcripts of the legislative debate reflect that House Bill 20
was presented to the full house for vote as a whole, integrated
piece, and that the presentation of any modifications or
amendments was discouraged. See 89th Ill. Gen. Assem., House
Proceedings, February 16, 1995, at 136. It is undisputed that the
bill was distributed to the full membership of the house minutes
before midnight on the evening before the floor debates were to
be held. It is also undisputed that opponents of the bill objected
to the speed with which the bill, and its restructuring of Illinois
tort law, was pushed through the legislative process. This
lengthy piece of legislation with its numerous provisions
affecting the landscape of tort liability was presented to the full
house for discussion just hours after its distribution, and was put
to a vote the next day. No amendments were considered or
accepted. On the contrary, House Bill 20 was adopted
unchanged, as an integrated "reform package." One inference to
be drawn from the manner in which the legislation was adopted
is that the individual pieces of the package are inseparable from
the whole.
Strong support for this inference is defendants' concession
that the cap on noneconomic damages was considered essential
to the legislation enacted. According to Representative Cross,
the sponsor of the bill in the House, "this cap is the centerpiece
of all these reforms." 89th Ill. Gen. Assem., House Proceedings,
February 16, 1995, at 19 (statements of Representative Cross).
The language of the preamble to the Act reinforces that key role
of the damages cap; out of 17 clauses in the preamble
characterized as "legislative findings," no less than eight cite
noneconomic damages as a major concern of the legislature.
During oral argument of this case, counsel for defendants
confirmed that the noneconomic cap on damages is central to
the legislative scheme of tort reform. In fact, so vital to the
Act's purpose is the cap on noneconomic damages that the
legislature included, in section 2--1117, an express exception to
several liability that would operate only in the event that the cap
was declared invalid. In such a case, the imposition of several
liability as applied to health care providers is to be replaced
with joint and several liability, which Public Act 89--7 abolished
in all types of personal injury cases. As we held elsewhere in
this opinion, such an attempt to create a limited exception to the
abolition of joint liability constitutes invalid special legislation.
For purposes of severability analysis, this legislative attempt to
single out one class of plaintiffs or tortfeasors for separate
treatment, based on the eventuality that the cap was invalidated,
demonstrates that key provisions of the Act are interconnected
and mutually dependent upon each other.
In addition to the emphasis that the preamble places on the
noneconomic damages cap, another important goal expressed in
the preamble is to reinforce fault-based liability and to insure
that tortfeasors bear only their proportionate share of liability to
injured plaintiffs. As a means to accomplish this express goal,
Public Act 89--7 abolishes joint liability in favor of several
liability. Ergo, the abolition of joint liability is, like the cap,
central to the purposes of the Act. The removal of these two
central goals of Public Act 89--7 (the imposition of the cap and
the abolition of joint liability) defeats, in large part, its raison
d'etre.
The legislation under review is a collection of
interconnected provisions which address different aspects of tort
liability, but nonetheless share the overriding determination to
fulfill the goals set forth in the preamble. The summary of
legislative purpose in the preamble enumerates these goals,
which reflect the legislative intent to replace tort liability in its
current form with a system featuring a damages cap, several
liability instead of joint and several liability, and a reduction in
the number of medical malpractice and product liability lawsuits
filed. Other stated goals include protecting the economic health
of business and units of local government, protecting the
availability of affordable liability insurance, and decreasing the
systemic costs of tort recovery. It is evident from the language
of the preamble, the provisions of the Act itself, the legislative
history, and defendants' arguments in the case at bar that Public
Act 89--7 was intended to have a broad, systemwide impact on
the litigation of personal injury lawsuits. As such,
implementation of the Act's provisions would modify or
supplant a vast body of tort principles developed in many
decisions of Illinois courts. For purposes of severability analysis,
we cannot conclude that the legislature would have intended to
pass a version of tort reform that did not include the measures
by which to accomplish its goals.
In summary, core provisions of Public Act 89--7 have been
declared unconstitutional by this court. Without these core
provisions, which were essential to the passage of the Act and
which are inseparable from the remainder of Public Act 89--7,
the legislation must fail in toto. We conclude that we cannot
hold independently enforceable that residue which remains of
Public Act 89--7 after eliminating the core provisions through
which the Act intended to accomplish its goals. To do so we
would be, in effect, rewriting Public Act 89--7 and refashioning
it into another piece of legislation that the legislature cannot be
presumed to have intended to enact. As this court observed in
Commercial National Bank, 89 Ill. 2d at 75, " `[t]he new law
would be created by this court and not by the General
Assembly, because it enacted a different one. This would
amount to a delegation of legislative powers to the courts, which
is contrary to article III of the constitution, as well as numerous
decisions of this court.' [Citation]." Accordingly, we hold that
Public Act 89--7 is void in its entirety.

VII. Other Provisions of Public Act 89--7
Because of our severability holding, we address only briefly
the other specific provisions of the Act that were challenged in
the instant appeal. The circuit court ruled that section 2--1107.1,
which describes three jury instructions to be given in tort
actions, is unconstitutional. One jury instruction would prevent
the jury from being informed about the cap on noneconomic or
punitive damages. Clearly, this instruction is nullified by our
declaration that the cap itself is unconstitutional. See 2 N.
Singer, Sutherland on Statutory Construction sec. 44.04, at 502
(5th ed. 1993) ("Even where part of an act is independent and
valid, other parts which are not themselves substantively invalid
but have no separate function to perform independent of the
invalid portions of the act are also held invalid"). The other two
jury instructions are not clearly invalid, however. One of these
jury instructions would require the court to inform the jury that
compensatory and punitive damage awards are not taxable. The
other instruction would prevent the jury from being informed
that the plaintiff would not recover any damages if his or her
contributory negligence exceeded 50% percent. Because of our
determination that the valid provisions of the Act are not
severable from the invalid provisions, we strike these two
instructions without expressing any opinion regarding their
constitutionality independent of the Act.
The circuit court also invalidated five specific provisions
that relate to product liability actions. One provision, section 2--
623, requires product liability plaintiffs to attach a certificate of
merit to their complaint as a prerequisite for initiating an action
to recover damages. 735 ILCS 5/2--623 (West 1996). Although
a certificate of merit requirement in medical malpractice actions
was upheld by this court in DeLuna v. St. Elizabeth's Hospital,
, 75 (1992), plaintiffs attempt to distinguish
DeLuna and also, in the alternative, request us to reconsider the
DeLuna holding. Another section, which amends the existing
product liability statute of repose, extends the limitation periods
and outside period of repose to include all theories of product
liability. 735 ILCS 5/13--213(b) (West 1996). In contrast, the
prior version of the repose statute excluded negligence from its
scope. See 735 ILCS 5/13--213(b) (West 1994). Defendants
contend that this court's decision in Mega v. Holy Cross
Hospital, , 422 (1986), which upheld a four-year
statute of repose in medical malpractice actions, is persuasive
authority for upholding the constitutional validity of section 13--
213(b). Two other provisions that were declared invalid by the
circuit court, sections 2--2103 and 2--204, create statutory
presumptions as to when a product is considered reasonably
safe. Section 2--2103 attaches a presumption of safety to any
product that meets state or federal safety standards. 735 ILCS
5/2--2103 (West 1996). Section 2--2104 provides that the design
of a product or component shall be presumed to be reasonably
safe unless the plaintiff can establish that, at the time the
product left the manufacturer's control, "a practical and
technically feasible alternative design was available that would
have prevented the harm without significantly impairing the
usefulness, desirability, or marketability of the product." 735
ILCS 5/2--2104 (West 1996). The fifth provision, section 2--
2106, imposes a presumption that if written warnings are given
to users of products, such warnings shall be deemed adequate if
they conform to generally recognized standards in the industry
at the time the product was introduced into the stream of
commerce. 735 ILCS 5/2--2106 (West 1996).
We do not determine, in this case, whether or not the above
product liability provisions are infirm as a matter of substantive
constitutional law. We note that defendants, in addition to
arguing in favor of the constitutionality of the provisions, have
raised waiver and ripeness as reasons for this court to reject the
circuit court's holding that the product liability provisions in
issue are unconstitutional. For example, defendants contend that
plaintiff Best waived his challenge to the filing of a certificate
of merit because he did, in fact, obtain and file an expert's
affidavit in support of his cause of action. Plaintiff Best
responds that his filing of the product liability certificate of
merit was done under protest, without waiving his challenge.
Defendants also challenge, at this early stage in the litigation,
the ripeness of a constitutional challenge to the provisions which
allow product liability defendants to benefit from evidentiary
presumptions. Plaintiffs dispute defendants' ripeness argument
and urge this court to resolve the constitutionality of the
provisions under review.
We believe that we should exercise caution and restraint in
making any ruling, apart from our severability holding, on the
constitutionality of these product liability provisions. Without
indicating how this court might rule in a future case involving
a possibly reenacted version of the challenged provisions, we
simply note that if we were to hold that the provisions in issue
were not facially invalid, we would be rendering an advisory
opinion on a portion of Public Act 89--7 that has been held
inseverable from the unconstitutional provisions. If we were to
hold that some but not all five of the provisions were
unconstitutional, we would be making a selective determination
of individual provisions within the larger product liability
scheme that is contemplated by the instant Act. We decline to
engage in speculative analysis or to render an advisory opinion
on the efficacy of the product liability provisions where, as in
the instant case, such analysis or opinion is not necessary for the
disposition of the cause.
In conclusion, although the circuit court declared the
product liability provisions of the Act invalid, as well as the
provisions setting forth three jury instructions to be given in tort
actions, we decline to reach the substantive merits of the
constitutional challenges made to those provisions for the
reasons stated. Accordingly, we vacate that portion of the circuit
court's holding that reached the substantive merits of the
products liability issues and the jury instructions, but otherwise
affirm the judgment of the circuit court in its entirety. We
emphasize that all of the remaining provisions of Public Act 89-
-7, which were not challenged in the instant cases, are deemed
invalid in this case solely on grounds of severability. As such,
the General Assembly is free to reenact whatever provisions it
deems desirable or appropriate.
The problems addressed in the briefs and in oral arguments
in the case at bar represent some of the most critical concerns
which confront our society today. We acknowledge and wish to
commend the attorneys for the plaintiffs, the defendants, amici,
and Attorney General on the scholarly and impressive briefs and
oral arguments submitted by each.

Circuit court judgment affirmed.

JUSTICE HEIPLE took no part in the consideration or
decision of this case.

JUSTICE BILANDIC, specially concurring:
I concur in the majority's judgment invalidating Public Act
89--7 in its entirety. I write separately to state that I do not join
in the majority's discussion of the constitutionality of the
damages cap under the separation of powers doctrine as that
discussion is wholly unnecessary and constitutes dicta.

JUSTICE MILLER, concurring in part and dissenting in
part:
I joined the court's opinion in Kunkel v. Walton, No. 81176
(November 20, 1997), and therefore I concur in the portion of
the present judgment that reaffirms our holding in that case. I do
not agree with the majority's disposition of the remaining issues
addressed in the present opinion, however, and accordingly I
dissent from those portions of the majority opinion.

I
Legislation is presumed to be valid, and a party challenging
the constitutionality of a statute has the burden of establishing
its invalidity. DeLuna v. St. Elizabeth's Hospital, ,
67 (1992); Pre-School Owners Ass'n of Illinois, Inc. v.
Department of Children & Family Services, 119 Ill. 2d 268, 275
(1988); Sayles v. Thompson, , 124-25 (1983). This
court's role in evaluating these provisions is necessarily limited.
Our function here is not to determine whether the legislature has
chosen the best or most effective means of resolving the
problems addressed in the legislation. "Our nation was founded
in large part on the democratic principle that the powers of
government are to be exercised by the people through their
elected representatives in the legislature, subject only to certain
constitutional limitations. Although this court has never hesitated
to invalidate laws that it believes to be unconstitutional, we
emphasize that our role is a limited one. The issue here is `not
what the legislature should do but what the legislature can do.'
[Citation.]" People v. Kohrig, , 392-93 (1986).
Accordingly, the question before this court is not whether the
measures contained in the Civil Justice Reform Amendments of
1995 (the Act) are wise, but simply whether they are
constitutional. Bernier v. Burris, , 229-30 (1986).
Our cases have repeatedly recognized that no one possesses
a vested right in the continuation of any particular remedy or
mode of recovery. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 291 (1996); Bernier v. Burris, , 236
(1986); Trexler v. Chrysler Corp., , (1984).
Subject only to the collective will of the voters and to the
constraints of the federal and state constitutions, the legislature
enjoys broad power to change the common law, and to modify
and even eliminate statutory and common law rights and
remedies. In People v. Gersch, , 395 (1990), this
court explained, "The legislature is formally recognized as
having a superior position to that of the courts in establishing
common law rules of decision. The Illinois General Assembly
has the inherent power to repeal or change the common law, or
do away with all or part of it. [Citations.]" "[T]his pervasive
power of the legislature to alter the common law" (Gersch, 135
Ill. 2d at 395) reflects the legislature's superior role in
articulating public policy. In Collins v. Metropolitan Life
Insurance Co., 232 Ill. 37, 44 (1907), this court explained the
proper hierarchy between the legislative and judicial branches in
matters of public policy:
"When the sovereign power of the State has by written
constitution declared the public policy of the State on a
particular subject, the legislative and judicial
departments of the government must accept such
declaration as final. When the legislature has declared,
by law, the public policy of the State, the judicial
department must remain silent, and if a modification or
change in such policy is desired the law-making
department must be applied to, and not the judiciary,
whose function is to declare the law but not to make it."
See also Roanoke Agency, Inc. v. Edgar, , 327
(1984) (quoting Collins); Stroh v. Blackhawk Holding Corp., , 483 (1971) (same).
Our cases are replete with references to the legislature's
authority to determine public policy, to prescribe solutions to
problems, and to alter the common law. For example, in Maki
v. Frelk, , 196 (1968), this court declined to adopt
a system of comparative negligence, concluding instead that
"such a far-reaching change, if desirable, should be made by the
legislature rather than by the court. The General Assembly is the
department of government to which the constitution has
entrusted the power of changing the laws." Although this court
later decided to adopt comparative negligence on its own,
without waiting for legislative action (see Alvis v. Ribar, (1981)), the court did so not because it believed that the
legislature lacked the authority to make that change, but for
other reasons. Later, the legislature rejected the pure form of
comparative fault adopted by this court in Alvis, replacing it
with a modified version (735 ILCS 5/2--1116 through 2--1118
(West 1996)), which has withstood constitutional challenge (see
Reuter v. Korb, 248 Ill. App. 3d 142 (1993)).
More recently, in Committee for Educational Rights v.
Edgar, 174 Ill. 2d 1, 29-32 (1996), this court declined to rule
that the current method of funding public schools is
unconstitutional, deciding instead to defer to the legislature's
superior ability to establish public policy and to devise
appropriate answers to questions facing our society. Although it
is certainly true that the power of the legislature to act in a
particular field is not a license to act unconstitutionally, the
legislature generally enjoys broad discretion in its determinations
of public policy.
The majority does not disagree with these basic principles
of review, yet the court reaches conclusions that are far different
from what our precedents require, and that strike at the heart of
the venerable and fundamental relationship between the
legislative and judicial branches. The majority undermines these
principles when it effectively substitutes its own view of public
policy for the legislature's considered judgment.

II
The majority devotes a substantial part of its opinion to a
discussion of the $500,000 limit imposed by the Act on the
recovery of noneconomic losses in personal injury actions. The
majority's principal conclusion is that the statute violates the
Illinois Constitution's prohibition on special legislation. Ill.
Const. 1970, art. IV, sec. 13. Applying the rational basis test,
the majority assiduously attempts to locate its special legislation
analysis within the framework of our case law, but the
majority's analysis actually marks a significant departure from
precedent.
The Act's limitation on the recovery of noneconomic
damages is found in section 2--1115.1 of the Code of Civil
Procedure (735 ILCS 5/2--1115.1 (West 1996)). Section 2--
1115.1(a) provides:
"In all common law, statutory or other actions that
seek damages on account of death, bodily injury, or
physical damage to property based on negligence, or
product liability based on any theory or doctrine,
recovery of non-economic damages shall be limited to
$500,000 per plaintiff. There shall be no recovery for
hedonic damages."
Noneconomic damages are defined 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). In contrast,
economic damages, upon which no limit is imposed, are "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 amount of the
limitation on noneconomic damages is to be adjusted annually
to reflect changes in the consumer price index. 735 ILCS 5/2--
1115.1(b) (West 1996).
"It is well settled that review of a special legislation
challenge is governed by the same standard that applies to
review of equal protection challenges. [Citations.]" Cutinello v.
Whitley, , 417 (1994). The statute at issue does
not impinge on a fundamental right or delimit a suspect or
quasi-suspect classification, so the appropriate standard of
review that governs the plaintiffs' special-legislation challenge
is the rational basis test, as the majority correctly determines. A
court applying this standard must decide whether the challenged
classification is rationally related to a legitimate governmental
interest. Nevitt v. Langfelder, , 125 (1993);
Chicago National League Ball Club, Inc. v. Thompson, , 368 (1985). The considerations that govern a court's
review of a statute under the rational basis test are familiar and
have been stated as follows:
"A statute will be held unconstitutional as special
legislation and as violative of the equal protection
guarantee only if it was enacted for reasons totally
unrelated to the pursuit of a legitimate State goal.
[Citation.] The legislature has broad latitude and
discretion in drawing statutory classifications to benefit
the general welfare, and the classifications it makes are
presumed to be valid. A legislative classification will be
upheld if any set of facts can be reasonably conceived
which justify distinguishing the class to which the law
applies from the class to which the statute is
inapplicable. [Citations.]" Bilyk v. Chicago Transit
Authority, , 236 (1988).
Contrary to the majority's holding, I would conclude that
the limit on noneconomic losses contained in the Act does not
violate the special legislation prohibition of the Illinois
Constitution, for the provision at issue readily satisfies the
requirements of the rational basis test. Reform of the civil
justice system is surely a legitimate governmental goal, and
imposing a $500,000 limit on the recovery of noneconomic
damages is rationally related to those ends. Noneconomic losses
by their nature resist precise measurement. Economic losses,
which include items such as medical expenses, lost income, and
lost support, are objective and are readily quantifiable. In
contrast, noneconomic losses, which includes pain and suffering,
among other things, are subjective and therefore more difficult
to quantify. There is great difficulty in determining proper
compensation for noneconomic losses, and awards for such
damages will vary greatly from case to case. Thus, there is a
rational basis for the legislature's decision to distinguish
between economic and noneconomic damages.
Limiting compensation for noneconomic losses is rationally
related to the objectives of the legislation. As the preamble to
the Act evidences, the legislature was concerned about
disparities, inconsistencies, and the lack of predictability in the
awarding of noneconomic damages, and about the costs to
society of unrestricted compensation for those damages. The
legislature believed that imposing a limit on the recovery of
noneconomic losses would promote fairness and would help
reduce the costs of the tort system. Some will argue that the
amount selected by the legislature in the provision at issue here
is too low. Although that might be a valid objection to the Act
as an expression of public policy, for each of us would probably
set the limit at a greater or lesser level, it is not a constitutional
defect in the legislation. Like a repose statute, the limit on the
recovery of noneconomic losses reflects the balance struck by
the legislature between an individual's interest in compensation
for his or her own injuries, and the public's interest in an
affordable system of tort law. See Mega v. Holy Cross Hospital,
, 428 (1986).
Again, to uphold the statute we need not be convinced of
the correctness of the legislature's judgment--we need only find
that the question is debatable and that the legislature has
adopted a rational means of achieving the desired ends. Bernier
v. Burris, , 229-30 (1986). In Minnesota v.
Clover Leaf Creamery Co., , 464, 66 L. Ed. 2d 659, 668-69, 101 S. Ct. 715, 724 (1981), the Supreme Court
articulated the appropriate degree of deference:
"But States are not required to convince the courts of
the correctness of their legislative judgments. Rather,
`those challenging the legislative judgment must
convince the court that the legislative facts on which the
classification is apparently based could not reasonably
be conceived to be true by the governmental
decisionmaker.' Vance v. Bradley [, 111, 59 L. Ed. 2d 171, 184-85, 99 S. Ct. 939, 949-50 (1979)].
[Citations.]
Although parties challenging legislation under the
Equal Protection Clause may introduce evidence
supporting their claim that it is irrational, United States
v. Carolene Products Co. [, 153-54, 82 L. Ed. 1234, 1242, 58 S. Ct. 778, 784 (1938)], they cannot
prevail so long as `it is evident from all the
considerations presented to [the legislature], and those
of which we may take judicial notice, that the question
is at least debatable.' [304 U.S. at 154, 82 L. Ed. at
1243, 58 S. Ct. at 784.] Where there was evidence
before the legislature reasonably supporting the
classification, litigants may not procure invalidation of
the legislation merely by tendering evidence in court
that the legislature was mistaken."
Thus, under rational basis review, "a legislative choice is not
subject to courtroom factfinding and may be based on rational
speculation unsupported by evidence or empirical data.
[Citations.]" Federal Communications Comm'n v. Beach
Communications, Inc., , 315, 124 L. Ed. 2d 211,
222, 113 S. Ct. 2096, 2102 (1993).
In deciding that the cap on noneconomic losses is invalid
special legislation, the majority tests the provision against
specially selected hypothetical cases that are obviously designed
to illustrate defects in the statute. Slip op. at 24-26. The
legislature, however, makes no pretense that the reform
measures at issue here are a panacea for all the ills, perceived
or otherwise, in our system of tort law. Nor is it necessary that
legislation like this have such miraculous effect. Under rational
basis review, we ask only whether the means chosen by the
legislature are rationally related to the purposes of the law. In
contrast to the examples posited by the majority, one could as
easily select hypothetical cases that support and sustain the
remedy devised by the legislature. We have never before
required legislation under rational basis scrutiny to qualify under
a standard as rigorous as that applied by the majority. In People
v. Kohrig, , 402-03 (1986), in the course of
sustaining the validity of the mandatory seat belt law, we
observed, " `[T]he law need not be in every respect logically
consistent with its aims to be constitutional. It is enough that
there is an evil at hand for correction, and that it might be
thought that the particular legislative measure was a rational
way to correct it.' (Williamson v. Lee Optical of Oklahoma, Inc.,
(1955), , 487-88, 99 L. Ed. 2d 563, 572, 75 S. Ct. 461, 464.)"
Nor is today's decision compelled by Wright v. Central Du
Page Hospital Ass'n, (1976), Grace v. Howlett,
(1972), or Grasse v. Dealer's Transport Co., (1952), as the majority believes. In all three cases the
court found special legislation violations. The statutes at issue
in those cases, however, were much different from the measure
involved here. The statute challenged in Wright imposed a limit
of $500,000 on the total amount of damages, both economic and
noneconomic, that could be recovered by a plaintiff in a medical
malpractice action. The court found the statute to be a violation
of the special legislation prohibition, concluding that medical
malpractice plaintiffs had been arbitrarily selected to bear the
burden of being limited in the total amount of compensation
they were allowed to receive for their injuries. Both these
concerns are alleviated in the provision at issue here, which is
broader in scope but narrower in effect: the statute applies to all
actions for personal injury, but it limits only a plaintiff's
recovery of noneconomic losses and does not impose any cap on
the recovery of economic losses. Moreover, in Anderson v.
Wagner, , 304-05 (1979), this court counseled that
Wright should not be read "too broadly," noting that the statute
in Wright could have prevented the full recovery of medical
expenses. Anderson rejected constitutional challenges, including
one of special legislation, to a statute of limitations for medical
malpractice actions.
Grace and Grasse are also distinguishable. The legislation
challenged in Grace limited an injured plaintiff's ability to
recover compensation for injuries incurred in traffic accidents,
depending on whether the other party was using the vehicle for
personal or commercial purposes. In Grasse a provision of the
Worker's Compensation Act would have transferred an injured
employee's action against a third-party tortfeasor to the
plaintiff's employer if the third party's employee was also
covered by the Act. In neither case was the court able to discern
a rational basis for the classifications drawn by the legislature.
I believe that the opposite conclusion is required here. In
contrast to the measures at issue in Wright, Grace, and Grasse,
the limit on the recovery of noneconomic losses bears a rational
relationship to a legitimate governmental purpose. Here, the
legislature could find that a $500,000 limitation on noneconomic
damages would reduce the costs to society of allowing
compensation for damages that, by their nature, are subjective
and difficult to measure. For these reasons, I would join the
group of jurisdictions that have upheld, against corresponding
challenges on equal protection grounds, similar limits on the
recovery of damages in tort actions. See, e.g., Davis v.
Omitowoju, 883 F.2d 1155 (3d Cir. 1989) (applying Virgin
Islands law; $250,000 limit on noneconomic damages in medical
malpractice actions); Boyd v. Bulala, 877 F.2d 1191 (4th Cir.
1989) (applying Virginia law; $750,000 limit on damages in
medical malpractice actions); Fein v. Permanente Medical
Group, , ,
(1985); Scholz v. Metropolitan Pathologists, P.C.,
(Colo. 1993) ($250,000 limit on noneconomic damages and
$1,000,000 on total damages in medical malpractice actions);
Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, (1980) ($500,000 limit on damages in medical malpractice
actions); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102
(1992) ($350,000 limit on noneconomic damages in personal
injury actions); Etheridge v. Medical Center Hospitals, 237 Va.
87, (1989) ($750,000 limit on damages in
medical malpractice actions); Robinson v. Charleston Area
Medical Center, 186 W. Va. 720, 414 S.E.2d 877 (1991)
($1,000,000 limit on noneconomic damages in medical
malpractice actions).
Perhaps uncertain of its own conclusion, the majority
opinion goes on to consider an alternative argument against the
limit on noneconomic damages, hoping to persuade the reader
by prolixity, if not by force of reasoning. Here, the majority
finds that the limit on the recovery of noneconomic damages
functions as a legislatively imposed remittitur and for that
reason violates the separation of powers doctrine. The majority's
discussion of this additional argument is entirely unnecessary,
given the majority's prior holding that the same measure is
invalid special legislation. On the merits, I disagree with the
majority's conclusion that the cap on noneconomic damages
improperly intrudes on the judicial power of remittitur. The
challenged provision does not represent a finding about the
evidence of any particular case, and it does not detract from the
power of a court to reduce an award of damages in appropriate
circumstances. Remittitur pertains to judges and juries, not the
legislature; by characterizing the cap on damages as a remittitur,
the majority is simply erecting and demolishing a strawman.
The majority's broad holding on this question means, in essence,
that the legislature may never impose a limit on damages, at
least in common law actions. Given the implications of this
holding and the absence of any need to discuss the issue, I
would not join this part of the majority opinion even if I agreed
with the court that the caps provision was invalid special
legislation.

III
The majority's lengthy treatment of several other provisions
of the Act is also superfluous, given the court's conclusion that
the $500,000 limit on the recovery of noneconomic damages is
invalid special legislation, and the court's subsequent holding
that the damages cap is not severable from the remainder of the
Act. The majority's discussion of these other issues is simply
unnecessary to the court's resolution of the appeals and should
be recognized as the dicta that it is.
First, the majority considers section 3.5 of the Contribution
Act. The majority concludes that the new provision is internally
inconsistent and could allow an improper "double reduction" of
damages awarded to an injured employee in an action against a
third-party tortfeasor. I agree with the defendants that the
legislature could not have intended to permit a double reduction
in damages and that the measure should be interpreted
accordingly. In that manner, the constitutionality of the
provision can be preserved.
The majority next considers the validity of the modification
made to section 2--1117 of the Code of Civil Procedure (735
ILCS 5/2--1117 (West 1996)), abolishing joint and several
liability. In discussing this provision the majority initially
pursues several lines of thought until it finally settles on one,
determining that the measure violates the special legislation
prohibition of our state constitution because it selectively
restores joint and several liability in medical malpractice cases
in the event that the cap on noneconomic losses is found
invalid. Although the purpose of the provision restoring joint
and several liability in the area of medical malpractice might be
somewhat obscure, I do not agree that it is unconstitutional on
that ground alone. Separately, because I believe that the cap on
noneconomic losses is not invalid for the reasons found by the
majority, I cannot agree with the majority's conclusion that the
provision restoring joint and several liability in medical
malpractice cases has even been triggered.
The majority also considers the constitutionality of the
physician-patient disclosure provisions. Just last month, in
Kunkel v. Walton, No. 81176 (November 20, 1997), this court
invalidated the same provisions. The majority in the present case
now relies on a somewhat different rationale to reach the same
conclusion. While I agree with the result, I do not agree with its
alternative holding that the statutes violate a right of privacy that
the majority locates in the "certain remedy" provision found in
article I, section 12, of the Illinois Constitution (Ill. Const. 1970,
art. I, sec. 12).
Contrary to the majority's view, our prior cases construing
the "certain remedy" provision of the constitution have
characterized it as an expression of a philosophy rather than as
a guarantee of the continued existence of any particular cause of
action or form of recovery. See Mega v. Holy Cross Hospital,
, 424 (1986); Sullivan v. Midlothian Park
District, , 277 (1972). It should be noted,
moreover, that the majority's discussion of the certain remedy
provision is entirely unnecessary, for the majority finds the
discovery statutes invalid on the separate and independent
ground that they violate the separation of powers doctrine.

IV
As a final matter, I disagree with the majority's conclusion
that the portions of the Civil Justice Reform Amendments of
1995 found unconstitutional here and in Kunkel v. Walton, No.
81176 (November 20, 1997), cannot be severed from the
remainder of the Act and that the invalidity of those measures
therefore dooms the entire body of legislation. Contrary to the
majority's holding, there is compelling evidence that the
legislature intended for the different provisions of the Act to be
severable from each other.
The question of severability is essentially one of legislative
intent. People v. Warren, 173 Ill. 2d 348, 371 (1996); Tully v.
Edgar, 171 Ill. 2d 297, 313 (1996); Russell Stewart Oil Co. v.
State of Illinois, , 128 (1988); Springfield Rare
Coin Galleries, Inc. v. Johnson, , 237 (1986). As
expressed by this court in Fiorito v. Jones, , 541
(1968):
"The settled and governing test of severability is
whether the valid and invalid provisions of the Act are
`so mutually "connected with and dependent on each
other, as conditions, considerations or compensations for
each other, as to warrant the belief that the legislature
intended them as a whole, and if all could not be
carried into effect the legislature would not pass the
residue independently ***".' [Citation.] The provision
are not severable if `they are essentially and inseparably
connected in substance.' [Citations.]"
Notably, the Act contains an express severability clause,
which states, "The provisions of this Act, including both the
new and the amendatory provisions, are severable under Section
1.31 of the Statute o[n] Statutes." Pub. Act 89--7, sec. 990, eff.
March 9, 1995. The general severability provision found in
section 1.31 of the Statute on Statutes provides:
"If any provision of an Act *** or application thereof
to any person or circumstance is held invalid, such
invalidity does not affect other provisions or
applications of the Act which can be given effect
without the invalid application or provision, and to this
end the provisions of each Act *** are severable, unless
otherwise provided by the Act." 5 ILCS 70/1.31 (West
1996).
Although the presence of an express severability clause is not
dispositive of the question, it does establish a presumption that
the various provisions of a body of legislation are severable.
Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 329
(1996); People ex rel. Chicago Bar Ass'n v. State Board of
Elections, , 532 (1990).
Moreover, the various provisions of the Act are not so
interrelated that one must conclude that the elimination of the
provisions struck down by the majority means that the
remainder of the Act also falls. Although the majority
characterizes the invalid portions of the Act as "core provisions"
whose removal yields an unenforceable "residue" (slip op. at 80-
81), the remaining provisions are actually substantial measures
in their own right that are independent of the provisions
invalidated here. In Grasse v. Dealer's Transport Co., , 202 (1952), this court stated:
"The established rule is that only the invalid parts of a
statute are without legal effect, unless all the provisions
are so connected as to depend upon each other.
[Citations.] If that which remains after the
unconstitutional portion is stricken is complete in itself
and capable of being executed wholly independently of
that which is rejected, the invalid portion does not
render the entire section or act unconstitutional."
Although all the provisions contained in the Act are related
to tort law generally, they are not so intertwined or interrelated
that the failure of any one measure, such as the provision
limiting the recovery of noneconomic damages, necessitates the
corresponding failure of any other measure, such as the
provision requiring a certificate of merit in products liability
actions. The limit on the recovery of noneconomic damages and
the requirement of a certificate of merit function independently
of each other, and there is no reason to believe that the
legislature would not have enacted one in the absence of the
other. Moreover, although the legislature might have viewed the
limit on noneconomic losses as one of the most significant parts
of the legislative package, the invalidity of that provision does
not undermine the operation of the remaining provisions. As this
court explained in People ex rel. Dougherty v. City of Rock
Island, 271 Ill. 412, 422 (1915):
" `If a statute attempts to accomplish two or more
objects and is void as to one, it may still be in every
respect complete and valid as to the other; but if its
purpose is to accomplish a single object, only, and some
of its provisions are void, the whole must fail unless
sufficient remains to effect the object without the aid of
the invalid portion.' "
In the present case, whether the Act is viewed as having
multiple purposes accomplished in multiple ways, or a single
purpose accomplished in multiple ways, I believe that the
legislature intended that the measures found invalid by the
majority would be severed from the remaining provisions of the
Act.
The Act itself contains further proof that the legislature
believed that any portion found to be invalid would be
severable. The provision restoring joint and several liability in
medical malpractice actions in the event that the cap on
noneconomic damages is found unconstitutional represents
compelling evidence that the legislature intended for the various
provisions of the Act--or at least the cap on damages, the crux
of the majority's antiseverability argument--to be severable from
the other. The majority believes that the provision restoring joint
and several liability "demonstrates that key provisions of the Act
are interconnected and mutually dependent upon each other"
(slip op. at 80) and thus supports a finding of nonseverability.
In my view, however, the provision compels the opposite
conclusion, for it establishes that the legislature was concerned
about the possible invalidation of the cap on noneconomic
damages and intended for the remaining portions of the Act to
survive any adverse judicial ruling. Clearly, the legislators
would not have crafted a response to that contingency if they
had thought that a ruling invalidating the limit on noneconomic
damages would drag down the remaining provisions of the Act.
Whether or not the legislature considered the cap on
noneconomic damages to be the most important feature of the
Act, as the majority asserts, it is clear that the legislature did not
believe that the failure of that measure would doom the rest of
the Act.
In sum, given the presence of a severability clause in the
Act, the ability of the valid measures to stand independently of
those found invalid, and the legislature's concern about a ruling
striking down a portion of this body of legislation, I would
conclude that the provisions found unconstitutional here are
severable from the remainder of the Act.

* * *
Although I agree with the majority that the physician-patient
disclosure provisions are invalid, for the reasons expressed by
the court in Kunkel v. Walton, No. 81176 (November 20, 1997),
I do not agree that the limit on noneconomic damages is invalid
special legislation or violates the separation of powers clause.
Nor do I agree with the majority's further conclusion that the
provisions found invalid here and in Kunkel are not severable
from the remainder of the Act, and I would therefore consider
in this appeal the plaintiffs' remaining challenges to the
provisions of the Act. As I have noted, the judicial role in
assessing the constitutionality of legislation is quite limited, and
the majority's result here cannot be defended under traditional
standards of review. Today'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.

[fn1] An example which was cited frequently in the legislative
debates is the infamous McDonald's spilled coffee case. See,
e.g., 89th Ill. Gen. Assem., House Proceedings, February 16,
1995, at 79, 89-90, 117-18. As one author has noted, the facts
of this case were presented to the public in a skewed fashion.
M. Rustad, Nationalizing Tort Law: The Republican Attack on
Women, Blue Collar Workers and Consumers, 48 Rutgers L.
Rev. 673, 720-21 (1996). In that case, it was reported that an
81-year-old woman received a $2.9 million punitive damages
verdict for injures incurred after she spilled hot coffee in her
lap. However, less widely reported was that the verdict was
reduced by the court to $480,000, the elderly woman underwent
numerous skin graft operations for third degree burns, and
McDonald's had prior knowledge of hundreds of similar
scalding incidents. 48 Rutgers L. Rev. at 719 n.228. Also, the
excessive award was for punitive, not compensatory, damages.

[fn2] In Bernier, this court declined to apply a standard stricter
than rationality review to medical malpractice legislation. This
court rejected the intermediate test employed by the Supreme
Court of New Hampshire in Carson v. Maurer, 120 N.H. 925,
424 A.2d 825 (1980) and by the Supreme Court of North
Dakota in Arneson v. Olson, (N.D. 1978). We
adhere to the Bernier holding for purposes of evaluating section
2--1115.1.

[fn3] In Hall v. Gillins, (1958), this court upheld
as constitutional a cap on damages obtainable under the
Wrongful Death Act because the legislature created both the
right and the remedy. As such, this court held that the
legislature's right to limit the maximum recovery could not be
questioned. Hall, 13 Ill. 2d at 29. Likewise, in Cunningham v.
Brown, (1961), this court held that the damages
cap contained in the Dramshop Act of 1872 passed
constitutional muster because the cause of action was a creature
of statute; i.e., no common law cause of action existed against
a supplier of alcohol.

[fn4] In Bernier, this court held that the elimination of punitive
damages in medical malpractice cases served the legitimate
legislative goal of reducing damages against the medical
profession. In doing so, the court expressly stated: "That this
court previously has invalidated, as special legislation, limits on
recovery of compensatory damages in medical malpractice
actions [citation], does not require that punitive damages be
available in every case. The two are readily distinguishable;
punitive damages, as their name suggests, are intended to punish
rather than compensate." Bernier, 113 Ill. 2d at 246.

[fn5] "Fault" is defined in section 2--1116 as "any act or
omission that (i) is negligent, willful and wanton, or reckless, is
a breach of an express or implied warranty, gives rise to strict
liability in tort, or gives rise to liability under the provisions of
any State statute, rule, or local ordinance and (ii) is a proximate
cause of death, bodily injury to person, or physical damage to
property for which recovery is sought." 735 ILCS 5/2--1116(b)
(West 1996). "Contributory fault" is any fault which may be
attributed to the plaintiff. 735 ILCS 5/2--1116(b) (West 1996).
For purposes of our discussion regarding the apportionment of
liability under section 3.5(a), we adhere to these definitions of
fault and contributory fault. But see R. Wright, Allocating
Liability Among Multiple Responsible Causes: A Principled
Defense of Joint and Several Liability for Actual Harm and Risk
Exposure, 21 U.C. Davis L. Rev. 1141, 1143-46 (1988) (arguing
that the appropriate terminology to use when discussing the
apportionment of liability is "comparative responsibility"); see
also L. Pressler & K. Schieffer, Joint and Several Liability: A
Case for Reform, 64 Denv. U.L. Rev. 650, 665 n.79 (1988).

[fn6] In the circuit court, defendants contended that the section
3.5(a) credit could be saved by construing it so that "multiple
tortfeasors [would receive] a cumulative total credit for the
employer's liability assessment." See also S. Miller,
Contribution Claims Under the New Act, 6 IDC Quarterly ii, iv
(First Quarter 1996) (suggesting that the section 3.5(a) be
construed so that "the employer's share of fault [is] deducted
from the total damages rather than from each individual's
share"). However, the tortfeasors already receive a "cumulative
total credit for the employer's liability" under section 2--1117.
Thus, this argument does nothing to eliminate the double
reduction which occurs when the section 3.5(a) credit is given
effect.

[fn7] The proponents of the amended version of section 2--1117
have uniformly asserted that, under the doctrine of joint and
several liability, tortfeasors are held liable for damages which
they do not cause. See, e.g., 89th Ill. Gen. Assem., House
Proceedings, February 16, 1995, at 17 (statements of
Representative Cross) ("[Section 2--1117] would abolish the
doctrine of joint and several liability to hold people who are
responsible for other's damages responsible for only their share
of the losses and not for the losses which they did not cause");
K. Dillard, Illinois' Landmark Tort Reform: The Sponsor's
Policy Explanation, 27 Loy. U. Chi. L.J. 805, 813 (1996)
("[T]he system [of joint and several liability] unfairly forced
defendants to pay more than the damages which they caused");
M. Redish, The Constitutionality of Illinois Tort Reform III--The
Repeal of Joint and Several Liability, IDC Quarterly, at 5, 10
(Second Quarter 1996) ("In repealing joint-and-several liability,
the General Assembly decided that fundamental notions of
morality dictate the conclusion that defendants should not be
obligated to pay for harm which they did not cause"); S. O'Neil,
A New Day, The Civil Justice Reform Amendments of 1995, 9
CBA Rec. 18, 20 (May 1995) ("Although it may seem unjust to
leave a plaintiff uncompensated for the entire loss, it may be
equally unfair to require a defendant who caused a small portion
of those damages to pay them in their entirety").

[fn8] Before the circuit court, defendants contended that the
"only" means by which the legislature could give effect to this
policy was to adopt proportionate several liability.

[fn9] These requirements are expressly incorporated into several
other amendments to the Code of Civil Procedure as well:
section 8--802 (privilege between healthcare practitioner and
patient), section 8--2001 (inspection of hospital records), section
8--2003 (physician's and other healthcare practitioner's records)
and section 8--2004 (records of clinical psychologists and
clinical social workers). 735 ILCS 5/2--1003, 8--802, 8--2001,
8--2003, 8--2004 (West Supp. 1995). Because the challenged
medical disclosure requirements originate in section 2--1003(a),
our discussion hereafter will focus on that section.

[fn10] We note that the legislative debate provides little insight
into whether the sponsors of Public Act 89--7 intended that the
circuit courts would retain their discretion to enter protective
orders and to impose sanctions other than the dismissal specified
in section 2--1003(a).

[fn11] Because plaintiffs do not base their claim on a federal
right to privacy, we do not discuss any federal cases involving
privacy interests.

[fn12] The Hippocratic Oath, according to the Judicial Council
of the AMA, was conceived during the fifth century B.C. and
stands as the oldest statement of ethics governing the medical
profession. It requires the oath taker to keep secret confidential
matters relating to patients. Similarly, the AMA's principles of
medical ethics and the opinions of the Judicial Council of the
AMA emphasize duties of honesty and confidentiality to the
patient and preservation of the patient's confidential information.
Additionally, the prior express consent of the patient to
disclosure of confidential information is considered a right of
the patient. See Petrillo, 148 Ill. App. 3d at 590.

[fn13] We do not, however, create a broad-based remedy for
perceived violations of a person's privacy interests by private
parties. Instead, we focus narrowly on the constitutional source
of the privacy interest that can be deemed a part of the public
policy of this state.

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