Mary R. Russell, Judge.
The family of Shannon Dodson ("Plaintiffs") brought a wrongful death action against defendant healthcare providers ("Defendants") after Ms. Dodson tragically died as a result of a dissection of her left main coronary artery during a cardiac catheterization. The jury returned a verdict in the amount of $1,831,155 for economic damages and $9 million for noneconomic damages. The trial court reduced the noneconomic damages to $350,000 pursuant to section 538.210(1).
Plaintiffs argue that the section 538.210(1) cap on noneconomic damages
Plaintiffs also contend that the trial court erred in granting a directed verdict on the issue of aggravating circumstances damages at the close of Defendants' evidence, while Defendants argue that the trial court erred in not granting the motion for directed verdict on aggravating circumstances damages earlier in the case, specifically at the end of Plaintiffs' evidence.
Defendants' other issues on appeal are that the trial court failed to grant their motion for new trial, which concerned the questioning of two defense witnesses, and their motion for a directed verdict on the issue of economic damages, and that the court erroneously gave jury instruction No. 4 advising the jury to not consider insurance benefits.
This Court holds that the section 538.210 noneconomic damages cap does not violate the right to trial by jury in wrongful death cases. This issue was previously resolved in Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc 2012), which controls here. Sanders held that the wrongful death action was not recognized at common law in 1820 in Missouri but is, instead, a statutory creation subject to statutory caps and limitations. Watts does not impact the outcome of this case as Watts involved a claim for personal injury, which was a cause of action recognized at common law and was "not subject to legislative limits on damages" when the constitution was adopted in 1820. 376 S.W.3d at 638-39. As a result, Watts held that the statutory cap on damages violated the right to trial by jury as applied to medical malpractice actions alleging common law personal injury claims. Id. at 640.
Plaintiffs' claim that section 538.210 violates the separation of powers was also rejected by this Court in Sanders, 364 S.W.3d at 204-205.
Further, the section 538.210 noneconomic damages cap does not violate equal protection as the distinction in the treatment of common law personal injury plaintiffs and wrongful death plaintiffs is a product of this Court's interpretation of the right to trial by jury as driven by the constitutional provisions of this state. See Watts, 376 S.W.3d at 640, and Sanders, 364 S.W.3d at 202-204.
Plaintiffs also contend that the trial court erred in granting a directed verdict on the issue of aggravating circumstances damages at the close of Defendants' evidence. To make a submissible case for aggravating circumstances damages against healthcare providers, Plaintiffs were required to show that the healthcare providers demonstrated "willful, wanton or malicious misconduct" in their actions causing the damages as alleged in the petition. In light of the actions of the healthcare providers here, the evidence does not clearly and convincingly demonstrate that the healthcare providers acted with complete indifference to or conscious disregard for the safety of Ms. Dodson.
This Court finds no error in Defendants' other issues on appeal.
The judgment of the trial court is affirmed.
The facts of this case are devastating. Shannon Dodson, a 34-year-old wife and mother, sought treatment for shortness of breath at Mercy Hospital St. Louis on February 8, 2011. She was diagnosed with bronchitis. After a stress echocardiogram
Dr. Robert Ferrara performed the heart catheterization on Ms. Dodson. During the procedure, Ms. Dodson suffered a left main coronary artery dissection, which cut off blood flow to the left anterior descending artery. Dr. Ferrara called for assistance, but no attempt was made to open the artery until approximately 30 minutes after the dissection occurred. Both doctors were unsuccessful in attempting to place a stent in the artery, and Ms. Dodson was transferred to the operating room for emergency surgery more than 45 minutes after Dr. Ferrara first noticed the dissection. The surgery was also unsuccessful, and Ms. Dodson died as a result of the dissection.
Ms. Dodson's spouse, Jason Dodson, and their three children sued Dr. Ferrara and his employer, Mercy Clinic Heart and Vascular, LLC, alleging that Dr. Ferrara's negligent care and treatment of Ms. Dodson caused or contributed to cause her death. They also sought aggravating circumstances damages.
The case was tried to a jury. At the close of all the evidence, the trial court gave a directed verdict in favor of Defendants on the claim for aggravating circumstances damages. The jury returned a verdict in favor of Plaintiffs on their negligence claim and assessed damages in the amount of $305,737 for past economic damages, $1,525,418 for future economic damages, $1 million in past noneconomic damages, and $8 million in future noneconomic damages.
After judgment was entered, both parties filed numerous post-trial motions. The trial court granted Defendants' motion to reduce the $9 million noneconomic damages award to $350,000 pursuant to section 538.210.1. Both parties appealed. Because Plaintiffs raise constitutional challenges to a state statute that are real and substantial, this Court has exclusive appellate jurisdiction.
Plaintiffs' first three points on appeal argue that the noneconomic damages cap in section 538.210 is unconstitutional. The interpretation of a statute is a question of law and is reviewed de novo. In re Care & Treatment of Coffman, 225 S.W.3d 439, 442 (Mo. banc 2007). Constitutional challenges to a statute are also issues of law that this Court reviews de novo. State v. Young, 362 S.W.3d 386, 390 (Mo. banc 2012).
In their final point on appeal, Plaintiffs claim that the trial court should not have granted a directed verdict on the issue of aggravating circumstances damages. Defendants also raise claims relating to the deferral or overruling of their motions for directed verdicts. The standard of review for a trial court's decision to grant or overrule a motion for a directed verdict is whether the plaintiff made a submissible case. Investors Title Co., Inc. v. Hammonds, 217 S.W.3d 288, 296, 299 (Mo. banc 2007). A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Id. at 299. When conducting its review, this Court views the evidence in the light most favorable to the plaintiff, and the plaintiff is given the benefit of all reasonable inferences. Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo.
Defendants additionally allege error in the trial court's failure to grant their motion for new trial, which was based in relevant part on the questioning of two defense witnesses. This Court reviews the overruling of a motion for a new trial for abuse of discretion. Kansas City v. Keene Corp., 855 S.W.2d 360, 372 (Mo. banc 1993). A new trial is available only when trial error or misconduct of the prevailing party incited prejudice in the jury. Id. Likewise, substantial deference is given to the trial court's determinations regarding the admissibility of evidence, which will not be disturbed absent an abuse of discretion. Id. The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration. Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000).
Finally, Defendants argue that the trial court erred in giving jury instruction No. 4 over Defendants' objections. Whether the jury was properly instructed is a question of law subject to de novo review. Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 90 (Mo. banc 2010). This Court reviews the evidence in the light most favorable to submission of the instruction. Edgerton v. Morrison, 280 S.W.3d 62, 65-66 (Mo. banc 2009). To reverse a jury verdict, the party claiming instructional error must show that: (1) the instruction as submitted misled, misdirected, or confused the jury; and (2) prejudice resulted from the instruction. Fleshner, 304 S.W.3d at 90-91.
Before addressing the merits of Plaintiffs' constitutional arguments, it must first be determined whether the claims were preserved for appellate review. Defendants argue that Plaintiffs did not raise their constitutional challenges to section 538.210 at the earliest opportunity and, thereby, failed to preserve those claims for review by this Court. Section 538.210.1 imposes a cap on noneconomic damages in the amount of $350,000.
To properly raise a constitutional challenge, a party must: (1) raise the constitutional question at the first opportunity; (2) state with specificity the constitutional provision on which the challenge rests, either by explicit reference to the article and section or by quoting the provision itself; (3) set forth facts showing the violation; and (4) preserve the constitutional question throughout the proceedings for appellate review. Mayes v. Saint Luke's Hosp. of Kansas City, 430 S.W.3d 260, 266 (Mo. banc 2014). This rule is intended to prevent surprise to the opposing party and accord the trial court an opportunity to fairly identify and rule on the issue. Id.
Defendants cited section 538.210 in their answer to Plaintiffs' petition, but they acknowledge
Although Plaintiffs could have theoretically raised their constitutional challenges at the pleading stage of the case in anticipation of a jury verdict awarding Plaintiffs noneconomic damages in excess of the statutory cap, such action would serve no purpose. Section 538.210.1 has no application in a lawsuit unless an award exceeding the statutory cap is rendered. Until such time, the trial court would have no reason to rule on the constitutional validity of a statute whose application to the case in front of it is only hypothetical. The appropriate time for the court to hear and rule on arguments regarding the validity of section 538.210.1 is after the provisions of the statute are relevant to the lawsuit, i.e., after an award of noneconomic damages exceeding the statutory cap has been made. Prior to that time, arguments challenging the validity of section 538.210.1 or any ruling on that issue would be premature, and a rule necessitating that outcome would be nonsensical and inefficient.
In this case, Defendants moved for application of the noneconomic damages cap of section 538.210 after the jury returned its verdict. Plaintiffs timely filed their suggestions in opposition to the motion and raised their constitutional challenges to the cap, which are the subject of their appeal here. The trial court heard exhaustive arguments by both parties and issued its ruling granting Defendants' motion. Defendants suffered no surprise that impeded their ability to effectively respond to Plaintiffs' constitutional claims. Under the facts here, Plaintiffs timely raised their constitutional questions and thereby properly preserved them for appellate review.
Plaintiffs contend that the trial court erred in applying the section 538.210 noneconomic damages cap because it violates the right to trial by jury.
Article I, section 22(a) of the Missouri Constitution provides "[t]hat the right of a trial by jury as heretofore enjoyed shall remain inviolate." The Court has interpreted this provision to mean that the right to a jury trial is "beyond the reach of hostile legislation and [is] preserved" as it existed at common law before the state constitution's first adoption in 1820. State ex rel. St. Louis, Keokuk & Nw. Ry. Co. v. Withrow, 133 Mo. 500, 36 S.W. 43, 48 (1896). The phrase "heretofore enjoyed" means that "the constitution protects the right as it existed when the constitution was adopted and does not provide a jury trial for proceedings subsequently created." Hammons v. Ehney, 924 S.W.2d 843, 848 (Mo. banc 1996).
Sanders v. Ahmed squarely answers the question raised by Plaintiffs here. 364 S.W.3d 195 (Mo. banc 2012). In Sanders, the plaintiff's wife died as a result of the seizure medication prescribed by her doctor. Id. at 201. The jury found for the plaintiff, awarding him $920,745.88 in economic damages and $9.2 million in noneconomic damages. Id. at 202. On the defendant's motion, the trial court reduced the noneconomic damages in accordance with the damages cap in section 538.210, RSMo 2000.
The facts of this case are virtually indistinguishable from those in Sanders. In both cases, plaintiffs filed wrongful death medical malpractice actions, both sets of plaintiffs received jury awards in excess of the statutorily prescribed cap, and the trial courts accordingly reduced the noneconomic damages awarded in both cases to the maximum amount permitted by the statute. Sanders is directly on point, and its holding would seemingly control the outcome of this case.
Nonetheless, Plaintiffs argue that Sanders is not dispositive. First, Plaintiffs contend that Sanders upheld a pre-2005 version of section 538.210 that is fundamentally different from the 2005 statute applicable to this case. Second, they argue that Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012), not Sanders, actually controls the outcome of this case. Finally, they claim that section 538.210.1 is not severable and, consequently, that there was no valid statute for the trial court to apply in this case due to the holding in Watts, which held that the damages cap is unconstitutional when applied to common law personal injury claims. See id.
Addressing each of these arguments in turn, Plaintiffs first claim that Sanders interpreted section 538.210 prior to its amendment in 2005 and that the 2005 statute is fundamentally different from the previous version upheld in Sanders. Prior to 2005, section 538.210 capped noneconomic damages awards at $350,000 "per occurrence" and "per defendant." Section 538.210.1, RSMo 2000. The pre-2005 version of section 538.210 also permitted courts to adjust the cap for inflation. Id. The 2005 amendment limited the potential recovery to $350,000 "irrespective of the number of defendants" and removed the adjustment for inflation. Section 538.210.1, RSMo Supp. 2013.
Sanders affirms the ability of the legislature to define the recovery available for a statutorily created wrongful death cause of action. 364 S.W.3d at 204. It did not discuss the specific limits on the recovery available under the previous version of section 538.210, nor did it give any indication that its analysis would be altered if the legislature decided to place different limitations on plaintiffs under the statute. This Court's analysis in Sanders is not affected by any changes the legislature enacted regarding the recovery available under section 538.210. Consequently, Sanders controls in this case despite the 2005 amendment to the statute.
Next Plaintiffs argue that Watts, not Sanders, governs the outcome of this
Watts did not overrule Sanders.
Plaintiffs also contend that the right to a jury trial attaches to a wrongful death claim even if such claims were not cognizable at common law prior to 1820 and, therefore, Watts still prohibits legislative limitations on jury awards in wrongful death cases. They look to State ex rel. Diehl v. O'Malley for support. 95 S.W.3d 82 (Mo. banc 2003). In Diehl, a plaintiff asserting claims under the Missouri Human Rights Act (MHRA) was denied the opportunity to try her case to a jury because her claims were statutorily created and did not exist at common law. Id. at 84-85. This Court determined that the right to a jury trial attaches if the claim being asserted is "analogous to" actions existing at common law prior to 1820 that carried the right to a jury trial. Id. at 86. Actions that carried the right to a jury trial at common law were civil actions for damages. Id. at 92. Finding that the plaintiff's action under the MHRA was "a civil action for damages" "analogous to" the kinds of actions triable by juries prior to 1820, the Court held that the right to a jury trial attached and, consequently, the plaintiff had the right to try her case to a jury. Id. at 87-88, 92. The analysis in Diehl, which focuses exclusively on whether the claimant brings a civil action for damages as opposed to an equitable claim or an administrative action, is of no relevance in determining whether the constitutional right to a jury trial bars enforcement of legislatively created limitations on the amount of damages recoverable under a statutory wrongful death cause of action.
Instead, Sanders and Watts set forth a different analysis for determining whether the constitutional right to a jury trial is
Sanders, 364 S.W.3d at 203 (quoting Estate of Overbey v. Chad Franklin Nat'l Auto Sales N., LLC, 361 S.W.3d 364, 375 (Mo. banc 2012)) (emphasis added). As this Court stated in Sanders:
364 S.W.3d at 205.
In Watts, on the other hand, the Court held that such caps "infringe[] on the right to trial by jury when applied to a cause of action to which the right to jury trial attaches at common law." 376 S.W.3d at 640 (emphasis added).
Plaintiffs alternatively contend that Watts should control because Missouri did, in fact, recognize a wrongful death claim at common law prior to 1820. This Court has consistently rejected the existence of any common law cause of action for wrongful death.
Although the plaintiff in James was allowed to recover for the lost services of his son under common law, that action is not the same as an action for the wrongful death of his son. Missouri courts have repeatedly distinguished the "loss of services" action from a true wrongful death claim and have consistently held that a loss of services action akin to the one in James is not related to wrongful death claims. James is "an action for a wrong done to the property rights of the father"; it is "not [considered] an action for injuries to the person of the [father]." Stanley v. Bircher's Ex'r, 78 Mo. 245, 248 (Mo.1883). Actions like James "rest upon entirely different principles, and involve rights arising out of the relation of parent and child, and [are] not questions of tort." Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 46 S.W. 966, 967 (1898).
As this Court stated in the decades immediately following James, "it is clear that, if the father in [James] had brought an action for the death of the infant son" rather than an action for loss of services, "he could not have recovered" because the case was decided two years prior to the enactment of the first wrongful death statute and "the death of a human being gave rise to no civil action [at common law] in behalf of any person under any circumstances." Bates v. Sylvester, 205 Mo. 493, 104 S.W. 73 (1907). James is not evidence that Missouri recognized a wrongful death claim at common law because James is not a wrongful death case.
Further, modem statutory wrongful death claims are not "analogous to" loss of services actions like the one in James, as Judge Teitelman's dissent suggests. On the contrary, James rests "on the theory that the relationship between the plaintiff father and his minor son" is akin to "the contractual relationship of master and servant." Mennemeyer v. Hart, 359 Mo. 423, 221 S.W.2d 960, 961 (1949). The father's recovery in James flowed from the impairment of his property rights under that quasi-contractual relationship,
The loss of services action is not dependent on the death of the minor child, nor does it hinge on proof of negligence. See Berry v. Majestic Milling Co., 210 S.W. 434, 434-35 (Mo.1919). The loss of services action in James, which sounds in contract, is not analogous to a modem wrongful death claim, which sounds in tort. They may both be civil actions for monetary damages, but they arise from completely different principles of law.
Plaintiffs finally argue that section 538.210.1 is not severable, so the entire noneconomic damages cap is invalid and cannot be applied to their claim. As noted above, Watts only invalidated section 538.210 to the extent that its limitations infringed on the right to a jury trial for common law personal injury actions. Watts, 376 S.W.3d at 636. If the invalid portion of the statute cannot be severed from the other provisions as Plaintiffs here contend, then the entirety of the provision would be invalid and unenforceable.
Upon a finding of invalidity as to one provision of a statute, courts are to presume that the legislature intended to give effect to the other parts of the statute that are not invalidated. Akin v. Dir. of Revenue, 934 S.W.2d 295, 300-301 (Mo. banc 1996). The presumption in favor of severability is codified at section 1.140, RSMo 2000:
Accordingly, this Court must uphold valid portions of a statute despite the invalidity of other portions when: (1) after separating the invalid portions, the remaining portions are in all respects complete and susceptible of constitutional enforcement; and (2) the remaining statute is one that the legislature would have enacted if it had known that the rescinded portion was invalid. Simpson v. Kilcher, 749 S.W.2d 386, 393 (Mo. banc 1988).
In their next point on appeal, Plaintiffs argue that the section 538.210 noneconomic damages cap denies wrongful death medical malpractice plaintiffs the equal protection of the law as guaranteed by both the federal and state constitutions. See U.S. CONST. amend. XIV, sec. 1; Mo. CONST. art. I, sec. 2. They claim that, as a result of the holdings in Sanders and Watts, section 538.210 arbitrarily limits the recovery when medical malpractice resulted in the death of the patient, but allows unlimited recovery to persons who were only injured by medical malpractice.
Missouri Constitution article I, section 2 and the 14
If a law impacts a "fundamental right" or distinguishes between groups based on a "suspect classification," it is subject to strict scrutiny, meaning that the state must justify the law by showing that it is necessary to accomplish a compelling state interest. Doe v. Phillips, 194 S.W.3d 833, 845 (Mo. banc 2006). Plaintiffs do not claim that wrongful death medical malpractice plaintiffs are a suspect class. They do allege, however, that the noneconomic
Plaintiffs maintain that even under rational basis review, the noneconomic damages cap of section 538.210 does not pass constitutional muster because it now arbitrarily differentiates between wrongful death medical malpractice plaintiffs and the similarly situated group of personal injury medical malpractice plaintiffs due to the holdings in Sanders and Watts. They point out the illogic in limiting the recovery available when medical malpractice results in death while permitting unlimited recovery when the patient survives.
This Court rejected an equal protection challenge to the damages cap of section 538.210 in Adams By and Through Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992).
Adams discussed at length the history of section 538.210 and its intended purpose of alleviating the perceived medical malpractice insurance crisis in the state:
Id. at 904. Despite the conflicting evidence as to the existence and severity of any medical malpractice insurance crisis, this Court found that the damages cap in section 538.210 was rationally related to a legitimate state interest:
Id.
As recognized in Adams, the legislature created the damages cap in an effort to reduce perceived rising medical malpractice premiums and prevent physicians from leaving "high risk" medical fields. It is not for this Court to evaluate the wisdom or desirability of the policy decisions made by the legislature when it passed section 538.210.
Section 538.210's treatment of all medical malpractice plaintiffs remained the same until this Court decided Watts. This Court in Watts distinguished medical malpractice plaintiffs based on whether they brought a statutory wrongful death claim or a common law personal injury claim. The classification of medical malpractice plaintiffs that Plaintiffs complain of was not created by the legislature but is instead the result of this Court's interpretation of article I, section 22(a) of the Missouri Constitution in Watts. This Court's classification was driven by the constitutional provisions of this state. Plaintiffs do not challenge the constitutional provision itself as violating their equal protection rights. Instead, they challenge the Court's interpretation of it. This argument does not properly raise an equal protection challenge.
The noneconomic damages cap of section 538.210 does not deny Plaintiffs the equal protection of the law.
Plaintiffs finally argue that the section 538.210 noneconomic damages cap is unconstitutional because it violates separation of powers as required by article II, section 1 of the Missouri Constitution. Plaintiffs argue that the cap interferes with the judicial prerogative of remittitur, but they cite no Missouri authority in support of this argument other than the dissenting opinion in Sanders.
"It is difficult to point out the precise boundary which separates legislative from judicial duties." Sanders, 364 S.W.3d at 204-205. This Court recognizes the wide discretion vested with the legislature in determining the means through which laws are executed. Id. at 205.
This Court in Sanders rejected an argument that section 538.210 violates the separation of powers. Id. The legislature created the wrongful death cause of action, which was well within its power as the lawmaking authority of the state. See id. It follows that the legislature has the power to prescribe the remedy for the cause of action it created without infringing on the role and authority of the judiciary. "The limit on damages within section 538.210 interferes neither with the jury's ability to render a verdict nor with the judge's task of entering judgment; rather, it informs those duties." Id. The noneconomic damages cap of section 538.210 does not impinge on the judicial power of remitter, and it does not violate separation of powers.
Both parties allege error in the trial court's actions concerning Plaintiffs' claim for aggravating circumstances damages. Plaintiffs argue that the trial court should not have directed a verdict for Defendants on this claim. Defendants argue that the trial court was correct to grant their motion for "Directed Verdict at the Close of All Evidence" as to the aggravating circumstances damages claim. They claim, however, that the trial court committed reversible error by waiting until the close of all the evidence to do so when Defendants first moved for a directed verdict at the close of Plaintiffs' evidence. Defendants argue that by failing to grant their motion when it was first made, the trial court forced them to defend against the unmeritorious claim for aggravating circumstances damages by putting on evidence of other dissections that Dr. Ferrara either observed or participated in, and that this evidence was irrelevant to the negligence claim against them and highly prejudicial to the defense. As both parties' arguments concern the same issue, they will be addressed together.
To make a submissible case for aggravating circumstances damages against health care providers in a medical negligence action, a plaintiff must show that the health care provider demonstrated "willful, wanton or malicious misconduct with respect to his actions which are found to have injured or caused or contributed to cause the damages claimed in the petition." Section 538.210.5. Section 538.205(10) defines "punitive damages" as those intended to punish or deter willful, wanton or malicious misconduct, which includes exemplary damages and damages for aggravating circumstances. To support a claim for aggravating circumstances damages or for punitive damages, the
Defendants correctly point out that damages for aggravating circumstances are not generally recoverable in negligence actions because "negligence, a mere omission of the duty to exercise care, is the antithesis of willful or intentional conduct." Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 435-36 (Mo. banc 1985). Nonetheless, both Missouri Approved Instruction (MAI) 10.02 and MAI 10.07 provide that punitive damages may be awarded for a negligent act or omission if the jury finds that the conduct of the defendant "showed complete indifference to or conscious disregard for the safety of others." MAI 6.02 states that the same showing is necessary for an award of aggravating circumstances damages in a wrongful death case when the theory of liability is negligence.
Plaintiffs failed to prove that Dr. Ferrara acted with complete indifference to or a conscious disregard for the safety of others. Plaintiffs introduced portions of Dr. Ferrara's videotaped deposition at trial. Dr. Ferrara indicated that he noticed the dissection in the left main coronary artery at approximately 3:53 p.m. He said he did not take immediate action to prepare to stent Ms. Dodson or to send her to the operating room for a bypass surgery because she was alert and vitally stable for a period of approximately 12 minutes after the dissection occurred. During that time, Dr. Ferrara: (1) called another physician for assistance in determining whether to attempt to stent Ms. Dodson; (2) called the operating room to inform the surgeons that they may need to perform a surgery on Ms. Dodson; and (3) performed a number of procedures to evaluate the extent of the dissection and the condition of the right side of Ms. Dodson's heart. Before assistance arrived, Ms. Dodson reported severe chest pain and subsequently went in to cardiac arrest. Cardiopulmonary resuscitation (CPR) was administered to her, and she came back to full alertness. At that point, Dr. Ferrara decided to insert an intra-aortic balloon pump, a device which is used to support the heart. Once assistance arrived about 25 minutes after Dr. Ferrara first noticed the dissection, an attempt to stent the artery was unfortunately unsuccessful.
By the time Ms. Dodson got to the operating room, almost 48 minutes after Dr. Ferrara first noticed the dissection, she was once again in cardiac arrest and in need of CPR and chest compressions. The surgeons who performed the bypass surgery stated in their videotaped depositions that they knew she had a poor chance of survival given her condition going into the surgery.
All of Plaintiffs' expert witnesses, as well as Dr. Ferrara and the physician who assisted him, agreed that a dissection was an emergent condition that required immediate
Plaintiffs failed to make a submissible case demonstrating that Dr. Ferrara acted with complete indifference to or conscious disregard for the safety of Ms. Dodson. The Plaintiffs' own evidence indicates that Dr. Ferrara took affirmative action to address the dissection by placing a call to another physician for assistance and to the operating room and by inserting an intra-aortic balloon pump to support Ms. Dodson's heart. The timeliness and appropriateness of Dr. Ferrara's decisions may be questionable, but the evidence indicates that he did take steps to save Ms. Dodson's life. His conduct may have been negligent, but it did not show a conscious disregard for Ms. Dodson's safety.
This is not to say that the trial court erred by failing to grant Defendants' motion for a directed verdict immediately after the close of Plaintiffs' case. A directed verdict is a drastic measure that is not appropriate when the facts are such that reasonable minds could draw differing conclusions. Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo. banc 1997). A defendant's case may also be relevant to determining whether there is sufficient evidence to support an award for aggravating circumstances damages. A jury may conclude that an "aggressive defense at trial on either the issue of breach of duty or causation may supply" the element of complete indifference or conscious disregard necessary to an award of aggravating circumstances damages. Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226, 248 (Mo. banc 2001).
The record here reflects that, at the close of Plaintiffs' case, the trial court was unsure whether Plaintiffs had made a submissible case for aggravating circumstances damages, which indicates that reasonable minds could differ as to whether Plaintiffs had established the requisite elements at that point. The trial court did not err in delaying a decision on Defendants' motion for "Directed Verdict at the Close of All Evidence" until after it heard Defendants' case.
Defendants next argue that the trial court committed reversible error by overruling their objection to Plaintiffs' questioning of one of the expert witnesses for the defense. They claim that the questioning introduced irrelevant and prejudicial information into the trial and impermissibly impugned the credibility of all doctors from the St. Louis area, including other expert witnesses called by the defense. In response to a question asking whether the witness had reviewed potential medical negligence cases for plaintiffs, he stated:
Defendants did not object at this point in the questioning. Plaintiffs' counsel followed up with further questions regarding
This Court finds no abuse of discretion here. Evidence of the interest or bias of a witness and his relation to or feeling toward a party is always relevant. Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. banc 2010). Attorneys are given wide latitude to test the qualifications, credibility, skill or knowledge, and value and accuracy of opinions given by an expert witness. Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000). When he stated in court without objection that testifying against local St. Louis doctors would be bad for his referral business, the witness opened the door to further questioning. This matter was relevant to the issue of his bias in this case as he was testifying in favor of Dr. Ferrara, a St. Louis doctor.
Defendants additionally claim that the trial court abused its discretion in allowing Plaintiffs to play a portion of Dr. Ferrara's deposition and in failing to grant Defendants' motion for new trial for the same reason. In the relevant section of the deposition, Dr. Ferrara stated that he did not speak to the surgeons who performed Ms. Dodson's unsuccessful bypass surgery to inquire about the results. Defendants argue that this material was irrelevant and prejudicial. This Court disagrees.
As noted above, there is wide latitude to test the qualifications, credibility, skill or knowledge, and value and accuracy of opinions by an expert witness on cross-examination. Nelson, 9 S.W.3d at 604. Generally, the credibility of witnesses is always a relevant issue in a lawsuit. Mitchell, 313 S.W.3d at 676. Dr. Ferrara offered opinions regarding the events leading up to Ms. Dodson's death and the cause of her death. Whether he spoke with the surgeons who attempted to operate on Ms. Dodson is relevant to his credibility as a witness and the value of his opinion on those matters. The answer to this question informs the jury what information Dr. Ferrara did or did not take into account when forming his opinions. There was no abuse of discretion in admitting this videotaped testimony.
Defendants also argue that the trial court committed reversible error by
The improper injection of insurance coverage in a jury-tried case may constitute reversible error, especially if reference to the issue of insurance is done purposefully or in bad faith. Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 787 (Mo. banc 1977). Defendants argue that the only mention of insurance in the trial occurred when Plaintiffs introduced evidence of the decedent's health insurance benefits to establish Plaintiffs' economic damages. Plaintiffs then requested an instruction directing the jury not to consider the issue of insurance coverage. Defendants contend that, as such, instruction No. 4 served no real purpose in the case except to impermissibly and needlessly remind the jury of the existence of insurance.
Even if the testimony regarding Ms. Dodson's health insurance benefits was the only mention of insurance in the case, Defendants give no explanation as to how the instruction prejudiced them. If there is any ambiguity in giving this instruction where loss of health insurance benefits is claimed as an element of damages by Plaintiffs, the instruction could only have inured to the benefit of Defendants because it instructs the jury to disregard the existence of the insurance.
Further, the record reflects at least two other mentions of insurance. First, during voir dire, a juror made unsolicited comments that insurance companies pay for medical malpractice claims and that juries often give large awards for medical malpractice plaintiffs because they know the defendant doctors and hospitals are insured. Second, a hospital bill was admitted into evidence revealing the original amount owed for Ms. Dodson's medical care as well as the amount actually paid with insurance.
MAI 2.07 is intended to prevent the jury from considering insurance coverage in cases in which such matters are irrelevant and potentially prejudicial to one or both of the parties.
Finally, Defendants argue that the trial court should have granted their motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial because Plaintiffs failed to prove their
A plaintiff is entitled to full compensation for past or present injuries that the plaintiff has shown by a preponderance of the evidence were caused by the defendant. Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 130-31 (Mo. banc 2007). The ultimate test for damages is whether the award will fairly and reasonably compensate the plaintiff for his or her injuries. Sampson v. Missouri Pac. R. Co., 560 S.W.2d 573, 588 (Mo. banc 1978). Damages for loss of future earnings must be established with reasonable certainty through the introduction of substantial evidence. Id. at 589. They may not be based on conjecture or speculation. Id. Absolute certainty in predicting future economic damages is not required, however. See id. This Court has recognized that "[i]nevitably there is a degree of speculative nature to the determination of a fairly approximated present-value award compensating plaintiff for what he would have earned." Id. Such inherent uncertainty does not improperly influence a jury's verdict when the evidence "afford[s] the jury a basis for a reasonable estimate" of the amount of the plaintiff's future losses. Messina v. Prather, 42 S.W.3d 753, 765 (Mo.App.2001).
Plaintiffs' evidence of future economic damages consisted of the testimony of Ms. Dodson's supervisor, Mr. Dodson, and an economic expert retained by Plaintiffs. The testimony indicated that the decedent, Ms. Dodson, worked as an assistant for a property management group and earned approximately $42,000 annually, that Ms. Dodson was an excellent employee, that it was reasonable to expect that Ms. Dodson would likely have received a promotion in the next year with a $3,000 pay increase, and that within five years, Ms. Dodson would likely have earned as much as $55,000 per year. The testimony was based on the supervisor's 33 years of experience in the field of commercial property management and her personal knowledge of Ms. Dodson.
Mr. Dodson testified that his three children had been insured through Ms. Dodson's work because it was significantly more expensive to insure them through his employer's insurance. The expert testified that he estimated the additional cost to the family of insuring the children on Mr. Dodson's insurance policy to be about $500 per month based on the information he had been provided, and that this information was of the kind traditionally relied upon by experts in performing these calculations.
The testimony provided facts regarding Ms. Dodson's career, skills, and annual income at the time of her death from which the jury could reasonably estimate the future earnings of Ms. Dodson. This was the best evidence of these facts due to the supervisor's great experience in the field of commercial property management and her personal knowledge of Ms. Dodson's work abilities. Additionally, the expert testimony regarding Ms. Dodson's health benefits and estimated future earnings was reasonably certain and definite and was properly based on the sources economists traditionally rely on in estimating future economic damages. This testimony provided a sufficiently certain foundation upon which the jury could reasonably estimate the future economic damages suffered by Plaintiffs.
This Court recognizes the inadequacy of $350,000 to compensate the Dodson family
Breckenridge, C.J., and Stith, J., concur; Fischer and Wilson, JJ., concur in result in separate opinion filed; Draper, J., dissents in separate opinion filed; Teitelman, J., concurs in opinion of Draper, J.; Teitelman, J., dissents in separate opinion filed.
Zel M. Fischer and Paul C. Wilson, Judges, concurring
We concur with the result in the principal opinion but write separately to address Plaintiffs' argument that Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc 2012), does not control in this case. For the reasons set forth below, Sanders controls, and we are constrained to vote accordingly.
The issue in this case is whether the constitutional right to a jury trial prohibits the legislature from capping the amount of noneconomic damages recoverable in a statutorily created cause of action. In answering this question, the Court does not write upon a blank slate. The nature and extent of the constitutional right to a jury trial in civil cases has been litigated often in this Court in recent years. In State ex rel. Diehl v. O'Malley, 95 S.W.3d 82 (Mo. banc 2003), this Court held that the trial court erred in not allowing the jury to determine the plaintiff's damages in a claim brought under the Missouri Human Rights Act. Diehl, therefore, did not address the question of statutory caps on damages. Instead, it addressed only whether the plaintiff had a constitutional right to a jury trial. The Court held that the plaintiff had that right.
Id. at 92.
In Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140 (Mo. banc 2005), the Court again faced the question of whether a plaintiff has a constitutional right to have the jury determine the propriety and amount of punitive damages even though the claim was statutory (i.e., under the Missouri Merchandising Practices Act ("MMPA")). Referring to Diehl, Scott states:
Scott, 176 S.W.3d at 142 (citations omitted). Accordingly, Scott — like Diehl — holds that "a statute is not valid that provides for punitive damages but precludes a jury trial to determine those damages." Id.
In Estate of Overbey v. Chad Franklin Nat'l Auto Sales N., LLC, 361 S.W.3d 364 (Mo. banc 2012), as in Scott, the Court was faced with a claim for punitive damages under the MMPA. But, even though Scott holds that the constitutional right to a jury trial attaches to such a claim, Overbey holds that this constitutional right is no bar to the enforcement of legislatively enacted caps on the amount of punitive damages recoverable in a statutory cause of action.
Id. at 376 (citations omitted).
As a result, Overbey makes it clear that the analysis in Diehl and Scott — an analysis that focuses solely on whether a cause of action (statutory or common law) is one for damages rather than an equitable claim or administrative action — is not the analysis to be used in determining whether the constitutional right to a jury trial bars enforcement of legislatively enacted caps on the amount of damages recoverable under a statutory cause of action. Instead, in Overbey, the Court held that such caps would be enforced even though the constitution protected the right to a jury trial. Id.
Sanders reinforced this point. There, the Court held that — because wrongful death was a statutory cause of action — the
Plaintiffs in the present case contend that Sanders was overruled by Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012). This is incorrect. First, the principal opinion in Watts does not mention Sanders, and this Court is loath to consider its precedents to have been overruled by implication. See State v. Honeycutt, 421 S.W.3d 410, 422 (Mo. banc 2013) ("this Court presumes, absent a contrary showing, that an opinion of this Court has not been overruled sub silentio"). Second, and more importantly, Watts could not have overruled Sanders because the issue before the Court in Watts was the constitutional validity of statutorily enacted caps on the amount of damages recoverable under a common law theory. Sanders, on the other hand, dealt with the constitutional validity of such caps on the amount of damages recoverable under a statutory cause of action, and Overbey and Sanders emphasize that the two issues are to be treated differently.
Lewellen v. Franklin, 441 S.W.3d 136 (Mo. banc 2014), reinforces this distinction. There, the plaintiff sought recovery for actual and punitive damages, both under the MMPA and for common law fraud. The jury awarded $25,000 in actual damages and $1 million in punitive damages on each claim. The plaintiff did not challenge the application of the caps in section 510.265, RSMo Supp.2013, to the punitive damages award under the MMPA because Overbey previously held that caps on the amount of damages recoverable under a statutory cause of action were not unconstitutional. Id. at 142 n.9. The plaintiff in Lewellyn did challenge the application of section 510.265 to the punitive damages award on the common law fraud claim, however, and Lewellen — bound by Watts — held that the constitution prohibits the enforcement of statutory caps on the amounts recoverable on a common law claim. Id. at 144.
Now, the Court returns to the precise question that was decided in Sanders, i.e., whether the constitution prohibits the enforcement of statutory caps on the amounts recoverable under a statutory cause of action. Sanders holds that it does not, and this Court is bound to follow Sanders in this case.
Judge Teitelman's dissent in this case argues that the Court must apply the same analysis used in Diehl and Scott to decide whether the constitutional right to a jury trial prohibits the enforcement of statutory caps on the amounts that may be recovered under a statutory cause of action. But that analysis has never been used to answer this question. Diehl and Scott did not address the constitutional validity of statutory caps on damages recoverable under statutory causes of action but, instead, determined that the legislature could not take away the plaintiff's right to a jury trial regardless of whether the claim was a common law or statutory cause of action. Overbey and Sanders make clear, however,
The argument made in Judge Teitelman's dissent in this case was made by the dissent in Overbey and rejected by the Court in that case. The argument made in Judge Teitelman's dissent in this case also was made by the dissent — and rejected by the Court — in Sanders. Now, the Court must again reject this argument and hold that — under Overbey, Sanders, Watts, and Lewellyn — the constitutional validity of legislatively enacted caps turns on whether the legislature is attempting to limit recovery on a common law cause of action (which the constitutional jury trial right does not allow) or under a statutory cause of action (which the constitution permits). This is so even though Diehl and Scott hold that the right to a jury trial applies in both cases.
If the analysis in Diehl and Scott were the proper way to determine the constitutional validity of legislative caps on statutory causes of action, as Judge Teitelman's dissent argues it should be, we would be compelled to vote with Judge Teitelman's dissent in this case. But, if the analysis in Diehl and Scott were the proper way to determine the constitutional validity of legislative caps on statutory causes of action, the Court could not have reached the results it did in Overbey and Sanders. As a result, we can reach no conclusion other than to follow Overbey and Sanders and hold that the constitutional right to jury trial does not prohibit the enforcement of legislative caps on the amounts recoverable under a statutory cause of action.
The question is not whether we believe Diehl, Scott, Overbey, Sanders, Watts, or Lewellyn were correctly decided. The holdings of Diehl and Scott that the constitutional jury trial right applies in all cases whether the claim arises under the common law or by statute — and the line drawn in Overbey, Sanders, Watts, and Lewellyn that the constitutional jury trial right prohibits the enforcement of statutory caps on amounts recoverable on a common law cause of action but is not offended by such caps on amounts recoverable under a statutory cause of action — are authoritative constructions of one of our most important constitutional rights. They have been applied faithfully by this Court and have engendered substantial reliance by the General Assembly and other stakeholders. Accordingly, these cases cannot be ignored or overruled without a substantial showing that they were incorrectly decided or that they reached a proper result on improper grounds. No such showing has been made here.
George W. Draper III, Judge
I dissent from the principal opinion. In Adams By and Through Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992),
A clear, cogent argument exists that this medical malpractice "crisis" was manufactured and continues to be exacerbated today by a special interest group that persistently labels, for shock value, and characterizes some jurisdictions as "judicial hellholes." These characterizations and the underlying "support" for these characterizations have been criticized roundly. See e.g., Adam Liptak, The Worst Courts for Business? It's a Matter of Opinion, N.Y. TIMES, December 24, 2007, at A10; Douglas A. Kysar, Thomas O. McGarity, and Karen Sokol, Medical Malpractice Myths and Realities: Why an Insurance Crisis is not a Lawsuit Crisis, 39 Loy. L.A. L. Rev. 785, 804 (August 2006); and Elizabeth G. Thornburg, Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia, 110 W. VA. L. Rev. 1097, 1103 (Spring 2008). Despite the clearly faulty premise, this special interest group's tactics are effective at achieving its desired purpose: To appeal to the voting public, to scare state politicians into making changes in the law in order to ameliorate the fabricated "judicial hellhole" label, and to oust judges whose rulings do not comport or align with the group's purported interests. Judicial Hellholes, 110 W. VA. L. REV. at 1103.
It should be noted our legislature took subsequent remedial measures in the 2015 session to amend section 538.210 to increase the noneconomic damages caps for personal injury and wrongful death, including an adjustment to account for inflation. 2015 Mo. Legis. Serv. S.B. 239 (West).
The foregoing argument could have been asserted to challenge section 538.210 under a rational basis test, but it was not raised here. I respectfully dissent.
Richard B. Teitelman, Judge
I respectfully dissent. The principal opinion holds that the section 538.210(1), RSMo Supp.2013, cap on noneconomic damages does not violate the right to a trial by jury as applied to wrongful death medical malpractice claims. This holding is premised on the conclusion that wrongful death actions are statutory and did not exist at common law. That may be true, but the issue is not whether the modem statutory wrongful death action is mirrored
Article I, section 22(a) is one of the fundamental guarantees of the Missouri Constitution, providing "the right of trial by jury as heretofore enjoyed shall remain inviolate...." Watts, 376 S.W.3d at 637. "The right to trial by jury ... is a constitutional right, [and it] applies `regardless of any statutory provision,' and is `beyond the reach of hostile legislation.'" Diehl, 95 S.W.3d at 92 (quoting Lee v. Conran, 213 Mo. 404, 111 S.W. 1151, 1153 (1908)). In this case, the statutory damage cap violates the state constitutional right to trial by jury because: (1) the Dodsons' wrongful death action and claim for non-economic damages is within "the right of trial by jury as heretofore enjoyed," and (2) the Dodsons' right to trial by jury does not remain "inviolate" after application of the statutory cap on noneconomic damages. Watts, 376 S.W.3d at 637-638.
"The phrase `heretofore enjoyed' means that `[c]itizens of Missouri are entitled to a jury trial in all actions to which they would have been entitled to a jury when the Missouri Constitution was adopted' in 1820." Id. at 638 (quoting Diehl, 95 S.W.3d at 85). The jury trial right is also defined by common law limitations on the amount of a jury's damage award. Watts, 376 S.W.3d at 638, citing Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 775 (Mo. banc 2010) (J. Wolff, concurring).
Although the common law is the analytical benchmark, the fundamental constitutional right to a jury trial is not limited to the precise contours of the common law circa 1820. Instead, the constitutional right to a jury trial attaches to a modem statutory cause of action when the statutory cause of action is a civil action for damages that is "analogous to" or a "modem variant of" the kinds of cases triable by juries when the Missouri Constitution was originally adopted. Diehl, 95 S.W.3d at 87, 92; see also Briggs v. St. Louis & S.F. Ry. Co., 111 Mo. 168,20 S.W. 32, 33 (Mo.1892) (the constitutional right to a jury trial "is implied in all cases in which an issue of fact, in an action for the recovery of money only, is involved, whether the right or liability is one at common law or is one created by statute.").
In Diehl, this Court held that the right to trial by jury attached to a statutory age and sex employment discrimination claim. The right to a jury trial did not apply due to the existence of early 19th century common law precedent recognizing a woman's right to sue for age and sex based employment discrimination. Rather, Ms. Diehl had a right to a jury trial because her statutory civil action for damages was "analogous to" the type of cases triable by juries in 1820. Id. at 87. By focusing on the existence of analogous common law causes of action, the jury trial analysis as explained in Diehl ensures that the right to a jury trial as "heretofore enjoyed" in fact remains "inviolate" as it limits the legislature's power to statutorily restrict the right to a jury trial by simply recasting common law damages as statutory damages. Watts, 376 S.W.3d at 640. If, as the principal opinion implies, the right to a jury trial is precisely coextensive with the common law causes of action recognized in 1820, then the practical vitality of this fundamental constitutional right will wither according to legislative whim and as the law evolves to mediate disputes unforeseen in the early 19th century.
The Dodsons' statutory wrongful death claim, like the statutory discrimination claims at issue in Diehl, is analogous to common law causes of action that traditionally carried the right to a jury trial because it seeks redress for wrongs to a person. In James v. Christy, a father filed a civil action to recover money damages after his son was killed due to the defendant's negligence. 18 Mo. at 163. The father died during the pendency of the suit. This Court permitted the father's estate to recover the value of the son's services. Allowing recovery of the value of the son's services is analogous to the economic damages recoverable in a modern, statutory wrongful death action. This Court then noted that the estate was not entitled to "to any remuneration for the loss of the society or comforts afforded by a child to his parent. Damages of this character died with the parent...." Id. at 164. In other words, while the father's estate — an inanimate legal entity — could not recover noneconomic damages due to the boy's death, the father would have been entitled to damages for the "loss of society or comforts" due to his son's death. This Court's untroubled discussion of the matter in James establishes that Missouri common law permitted actions that are plainly "analogous to" the modem statutory wrongful death action and that the recovery in these actions included noneconomic damages.
Despite the fact that James unequivocally permitted the recovery of damages for loss of services, while also noting that the law recognized noneconomic damages for "loss of society and comforts," the majority opinion discounts James because it "is not the same as an action for the wrongful death of his son." Majority opinion, pg. 557. As established, the fact that the action in James is not identical to the modem, statutory wrongful death action is irrelevant, just as it was irrelevant in Diehl that there was no apparent common law precedent recognizing a woman's right to sue for sex discrimination in the workplace. The right to a jury trial in a modem statutory action is not dependent on the existence of an identical common law cause of action. Diehl plainly holds that
As the principal opinion notes, there are a number of cases asserting that the common law did not recognize a cause of action for wrongful death. This observation does not, however, negate the existence of analogous common law actions permitting the recovery of damages for a death caused by the negligence of another. To the contrary, in Sullivan v. Carlisle, 851 S.W.2d 510, 513 (Mo. banc 1993), this Court observed that the modem, statutory cause of action for a wrongful death action "was designed to compensate specifically designated relatives for the loss of the decedent's economic support." This is precisely what happened in James v. Christy when this Court specifically permitted the father's estate to recover the loss of the son's services. Whether that loss is characterized as a loss of a property interest, a personal interest, or any other type of interest one can conjure, the fact remains that James evidences that the common law permitted the recovery of money damages sustained when negligence results in the death of a loved one. The Dodson family has a right to a jury trial on their statutory wrongful death action. The dispositive issue is whether application of the cap violates that right.
"Missouri law always has recognized that `the jury's role in a civil case is to determine the facts relating to both liability and damages and to enter a verdict accordingly.'" Watts, 376 S.W.3d at 640, quoting Estate of Overbey v. Chad Franklin Nat'l Auto Sales N., LLC, 361 S.W.3d 364, 382 (Mo. banc 2012). The amount of noneconomic damages is a fact that must be determined by the jury and is subject to the protections of the article I, section 22(a) right to trial by jury. Watts, 376 S.W.3d at 640. Once the right to a trial by jury attaches, as it does in this case, the plaintiff has the full benefit of that right free from the reach of hostile legislation. Id. Section 538.210 imposes a cap on the jury's award of noneconomic damages that operates wholly independent of the facts of the case and, therefore, directly curtails the jury's determination of damages. "The individual right to trial by jury cannot `remain inviolate' when an injured party is deprived of the jury's constitutionally assigned role of determining damages according to the particular facts of the case." Id.
The principal opinion sidesteps the fact that the cap violates the Dodsons' right to a jury trial by asserting that Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. banc 2012), establishes that the legislature is free to modify a cause of action it created. The legislature is of course free to modify a cause of action it created, but it is equally obvious that this power is subject to constitutional limitations. Specifically, once the right to a jury trial attaches, as it does in this case, then exercise of that right is "beyond the reach of hostile legislation," including statutory caps on a jury's damage award. Watts, 376 S.W.3d at 640. Although Sanders, decided prior to Watts, held that caps on noneconomic damages in wrongful death actions do not violate the right to a jury trial, this rationale is incorrect because it authorizes legislative curtailment of individual constitutional rights. Sanders was wrongly decided.
The judgment should be reversed to the extent that it applies the damage cap to the jury's award of noneconomic damages.
