Former GOP chief justice says cap on medical claims "unconstitutional"

Former GOP Chief Justice says cap on awards "unconstitutional"

Former Republican Chief Justice Bev Lake, a one-time GOP nominee for governor, has told state Senate leaders that a proposed cap on jury awards would be unconstitutional. Lake's letter comes at an awkward time for the new Republican majority running the legislature for the first time in more than a century. The majority wants to impose a $250.000 limit on non-economic jury awards in medical malpractice cases, as a way to hold down medical insurance costs, and no doubt won't welcome Lake's conclusions about the proposal. 

Lake told Sen. Pete Brunstetter, R-Forsyth, chairman of the Senate Judiciary committee, that such a cap is "unnecessary as well as unconstitutional."  The bill in question is S 33.
Lake said 'North Carolina citizens have a “sacred and inviolable” right to have a jury determine the amount of compensatory damages, including non-economic damages, under our Constitution.  The right to have a jury make that decision cannot be eliminated or restricted by the General Assembly.'

Lake has been a Democrat as well as Republican during his carrer. He served in the state Senate and as a depty attorney general, and was elected chief justice of the state Supreme Court in 2000.

Here's the text of Lake's letter to Brunstetter:

 Dear Senator Brunstetter:

I understand that the Senate Judiciary I Committee will soon be considering Senate Bill 33, which would implement several medical liability reforms.  In my opinion, Section 3 of the bill – the proposed  cap on non-economic damages – is unconstitutional.

I served on the North Carolina Supreme Court for 12 years, and was Chief Justice from 2000 to 2006.  I previously served as a Superior Court Judge for six years, was a State Senator for two terms, and was Deputy Attorney General for seven years. Throughout my legal career, which has spanned over 50 years, I have sought to uphold the North Carolina Constitution, the foundation of our laws.

For over 200 years, Article I, Section 25 of the North Carolina Constitution has provided that, in “matters respecting property,” the right to trial by jury is “sacred and inviolable.”  Our Supreme Court has repeatedly stated that, “under the North Carolina Constitution, a party has a right to a jury trial in ‘all controversies at law respecting property.’”  Dockery v. Hocutt, 357 N.C. 210, 217, 581 S.E.2d 431, 436 (2003) (quoting N.C. Const. art I, § 25).  The Court has also long recognized that compensatory damages is a form of  “property” protected by the constitutional right to a trial by jury.

In Osborn v. Leach, 135 N.C. 628, 633, 47 S.E. 811, 813 (1904), the Court determined that a libel law was constitutional, even though it abolished a plaintiff’s right to recover punitive damages.  Id. at 632-33, 47 S.E. at 813.  The Court noted, however, that if the law had restricted the recovery of actual or compensatory damages, it would have been unconstitutional.  Id. at 640, 47 S.E. at 815.  In drawing this distinction, the Court stated: “The right to have punitive damages assessed is . . . not property.  The right to recover actual or compensatory damages is property.”  Id. at 633, 47 S.E. at 813 (emphasis in original).  The Court elaborated:


The plaintiff is entitled to recover compensation for mental and physical pain and injury to reputation.  These are actual damages, and these are property.  The right to recover damages for an injury is a species of property and vests in the injured party immediately on the commission of the wrong.  . . . Being property, it is protected by the ordinary constitutional guarantees. . . . It cannot be extinguished except by act of the parties or by operation of the statute of limitation.


Id. (emphasis in original).


When I served as Chief Justice, a unanimous Court reaffirmed this principle in Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).  We stated that compensatory damages “represent a type of property interest vesting in plaintiffs,” while punitive damages are not a vested property interest.  Id. at 177, 594 S.E.2d at 12; see also id. at 179, 594 S.E.2d at 14 (concluding that N.C. Gen. Stat. § 1D-25 did not violate Article I, Section 25 because the statute restricted only punitive damages).


The clear import of Osborn and Rhyne is that Section 3 of SB 33 is unconstitutional.  North Carolina citizens have a “sacred and inviolable” right to have a jury determine the amount of compensatory damages, including non-economic damages, under our Constitution.  The right to have a jury make that decision cannot be eliminated or restricted by the General Assembly.

The Georgia Supreme Court recently reached the same conclusion, striking down a similar law in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010).  In 2005, the Georgia legislature enacted a $350,000 cap on non-economic damages in medical malpractice cases.  Georgia’s state constitution protects the right to a jury trial, as does ours, stating “[t]he right to trial by jury shall remain inviolate.”  Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a).  Because the determination of damages has always been the jury’s province, and non-economic damages have always been a component of compensatory damages, the damages cap unconstitutionally infringed on the right to a jury trial.  Id. at 223.  The Court concluded: “The very existence of the caps, in any amount, is violative of the right to trial by jury.”  Id. 

 Finally, the cap on non-economic damages is unnecessary as well as unconstitutional.  As a Superior Court Judge, I presided over many civil jury trials.  If a verdict is excessive, the trial judge has the well-established power and duty to offer the plaintiff the choice between a remittitur (decreased damages award) and a new trial.  The trial judge, unlike the legislature, has actually heard the evidence and can make a sound judgment about whether the verdict is excessive.  In doing so, the judge operates within the Constitution; instead of imposing his own view of the proper amount of the verdict, he must instead give the plaintiff the choice of a reduced verdict or a new trial.

The legislature has the responsibility to enact laws that are constitutional. With that duty in mind, I hope that your committee will remove Section 3 from SB 33. 

Thank you for your consideration.

With kindest personal regards, I am, cordially,

 I. Beverly Lake, Jr.

Cc: Members of the Senate


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