McClay v. Airport Mgmt. Servs., LLC

Full title: Jodi MCCLAY v. AIRPORT MANAGEMENT SERVICES, LLC

Court: Supreme Court of Tennessee, AT NASHVILLE.

Date published: Feb 26, 2020

596 S.W.3d 686 (Tenn. 2020)

Opinion

No. M2019-00511-SC-R23-CV

02-26-2020

Jodi MCCLAY v. AIRPORT MANAGEMENT SERVICES, LLC

Jeffrey S. Bivins, C.J.

OPINION

Jeffrey S. Bivins, C.J.

We accepted certification of the following questions of law from the United States District Court for the Middle District of Tennessee regarding the constitutionality of Tennessee’s statutory cap on noneconomic damages, codified at Tennessee Code Annotated section 29-39-102 : "(1) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution ?; (2) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?; (3) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women?" Upon review, we answer each of the District Court’s questions in the negative.

Factual and Procedural Background

The certified questions of law at issue in this appeal arise from a personal injury action brought in the United States District Court for the Middle District of Tennessee ("District Court"). Plaintiff Jodi McClay filed suit against Defendant Airport Management Services, LLC, seeking damages for injuries she sustained in a store at the Nashville International Airport in August 2016. A jury returned a verdict for Plaintiff in the amount of $444,500 for future medical expenses and $930,000 for noneconomic damages, including pain and suffering, permanent injury, and loss of enjoyment of life. The District Court entered judgment against Defendant in accordance with the verdict. Defendant then moved to apply the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102, which generally limits noneconomic damages in civil liability actions to $750,000. Plaintiff responded to Defendant’s motion by arguing the statutory cap on noneconomic damages is unconstitutional. The District Court then certified the following questions of law to this Court:

1. Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution ?

2. Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?

3. Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women?

On June 19, 2019, we accepted certification of these three questions of Tennessee law.

In addition to the parties, the State of Tennessee entered an appearance under Tennessee Rule of Appellate Procedure 32 to defend the constitutionality of the statute. Numerous amici curiae also have filed briefs to address the issues before the Court, and we appreciate the perspectives they have provided.

Applicable Legal Standards

Tennessee Supreme Court Rule 23 provides that this Court "may, at its discretion, answer questions of law certified to it by ... a District Court of the United States in Tennessee" if the questions of state law are "determinative of the cause" and "there is no controlling precedent in the decisions of the Supreme Court of Tennessee." Tenn. Sup. Ct. R. 23, § 1. "Rather than requiring a federal court to make the law of this State or to abstain from deciding the case until the state courts resolve the point of law, answering certified questions from federal courts promotes judicial efficiency and comity and protects this State’s sovereignty." Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 803 (Tenn. 2015).

Each of the questions certified by the District Court in this case requires us to determine whether Tennessee’s statutory cap on noneconomic damages violates the Tennessee Constitution. In making that determination, we "start with a strong presumption that acts passed by the legislature are constitutional." Lynch v. City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006). We further " ‘indulge every presumption and resolve every doubt in favor of the statute’s constitutionality.’ " Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003) (quoting State v. Taylor , 70 S.W.3d 717, 721 (Tenn. 2002) ). "This presumption applies with even greater force when, as here, the facial constitutional validity of a statute is challenged." State v. Decosimo, 555 S.W.3d 494, 506 (Tenn. 2018).

Analysis

The General Assembly enacted the statutory cap on noneconomic damages as part of the Tennessee Civil Justice Act of 2011. See 2011 Tenn. Pub. Acts, ch. 510, §§ 1, 10. Specifically, Tennessee Code Annotated section 29-39-102(a)(2) provides that, in a civil action, awards may include

[c]ompensation for any noneconomic damages suffered by each injured plaintiff not to exceed seven hundred fifty thousand dollars ($750,000) for all injuries and occurrences that were or could have been asserted, regardless of whether the action is based on a single act or omission or a series of acts or omissions that allegedly caused the injuries or death.

The cap is increased to $1,000,000 for certain "catastrophic loss or injury." Tenn. Code Ann. §§ 29-39-102(c) - (d). The statute also exempts certain kinds of cases from the cap, such as those in which the defendant had a specific intent to inflict serious physical injury, the defendant was intoxicated, or the defendant committed a felony in causing the injury. Tenn. Code Ann. § 29-39-102(h). None of those exemptions is at issue in this case. The statute was enacted to apply prospectively to actions that accrue on or after October 1, 2011. See 2011 Tenn. Pub. Acts, ch. 510, § 24.

Plaintiff, having obtained a judgment of noneconomic damages in excess of the statutory cap, argues that the statutory cap is unconstitutional, and thus unenforceable. More specifically, Plaintiff argues that, under the Tennessee Constitution, the statutory cap violates the right to trial by jury, the doctrine of separation of powers, and discriminates disproportionately against women in violation of equal protection guarantees. We address each of these arguments in turn.¹ A. Whether Tennessee’s Statutory Cap on Noneconomic Damages Violates a Plaintiff’s Right to Trial by Jury.

1 We note that the statutory cap on noneconomic damages was enacted to apply prospectively and thus raises no issues regarding constitutional prohibitions against retrospective laws.

First, Plaintiff contends that the statutory cap violates the Plaintiff’s right to trial by jury. The right to a jury trial in Tennessee is expressly guaranteed by Article 1, Section 6, of the Tennessee Constitution, which mandates that "the right of trial by jury shall remain inviolate[.]" We have explained that this provision guarantees the right to trial by jury as it existed at common law under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796. Young v. City of LaFollette, 479 S.W.3d 785, 793 (Tenn. 2015) (citing Helms v. Tenn. Dep't of Safety, 987 S.W.2d 545, 547 (Tenn. 1999) ; Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 506 (1968) ). We further have held that "[t]he right to a jury trial envisions that all contested factual issues will be decided by jurors who are unbiased and impartial." State v. Smith, 418 S.W.3d 38, 45 (Tenn. 2013) (citing Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996) ; Wolf v. Sundquist, 955 S.W.2d 626, 629 (Tenn. Ct. App. 1997) ). We also have long-recognized that the ascertainment of damages is a question of fact for the jury. See Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994) (jury’s determination of damages is a question of fact); Fort v. Orndoff, 54 Tenn. 167, 173 (Tenn. 1872) (the ascertainment of damages was a question of fact "eminently proper to be ascertained by [the] jury"). We assume for purposes of this opinion that noneconomic damages were available at the time of the adoption of the Tennessee Constitution.² Thus, we also assume that a plaintiff has the right to an unbiased and impartial jury to decide, as a question of fact, the amount of any noneconomic damages sustained by the plaintiff. We now turn to what restrictions, if any, the General Assembly may place on the ability of a plaintiff to recover noneconomic damages.

2 The parties vigorously disputed this issue in this case. We conclude that the resolution of this issue is not material to the resolution of this case.

As an initial matter, we recognize that it is within our General Assembly’s authority to legislatively alter the common law. See Mills v. Wong, 155 S.W.3d 916, 923 (Tenn. 2005) ("The Tennessee General Assembly itself has the power to weigh and to balance competing public and private interests in order to place reasonable limitations on rights of action in tort which it also has the power to create or to abolish."); Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 712 (Tenn. 2002) (stating that "the General Assembly unquestionably has the constitutional and legislative authority to change the common law of this state"); Wooley v. Parker, 222 Tenn. 104, 432 S.W.2d 882, 884 (1968) (explaining that "the Legislature of the State for obvious reasons sets the public policy of the State by their Acts, and we have held time and time again that the common law is applicable in Tennessee unless the Legislature enacts a statute otherwise"). Indeed, there are numerous examples of the General Assembly altering common law causes of action and available remedies. For example, in Lavin v. Jordon, 16 S.W.3d 362, 363 (Tenn. 2000), we held that the common law tort of negligent control and supervision of a child had been superseded by statute when the damage caused by the child was intentional or malicious. As a result, damages against parents in such actions are now limited by a statutory cap that provides "[t]he recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollars ($10,000) in addition to taxable court costs." Id. at 365 (quoting Tenn. Code Ann. § 37-10-102 ).³ In Lavin, we expressed our "distaste" for the result compelled by the statute, which prevents plaintiffs with damages exceeding the cap from being made whole, but acknowledged that it was within the legislature’s authority to enact such legislation.⁴ Id. at 369. The General Assembly also has expressly abrogated common law causes of action, including alienation of affectations, seduction, and criminal conversation. Tenn. Code Ann. § 36-3-701 ("The common law tort action of alienation of affections is hereby abolished."); Tenn. Code Ann. § 39-13-508(a) ("No cause of action shall be maintained that is based upon the common law torts of seduction or criminal conversation, and those torts are abolished."). This Court has recognized that the abrogation of those causes of action was within the General Assembly’s authority and represented the legislative expression of the public policy of the state. See Hanover v. Ruch, 809 S.W.2d 893, 895 (Tenn. 1991) ; Dupuis v. Hand, 814 S.W.2d 340, 346 (Tenn. 1991). Here, one could view the statutory cap on noneconomic damages as a limitation on the available remedy for certain causes of action, or as an abrogation of causes of action for claims exceeding the statutory limit. Under either view, the General Assembly was within its legislative authority to alter the common law by enacting the statutory cap on noneconomic damages. Of course, the General Assembly may only exercise its authority to alter the common law within constitutional limits. See Hodge v. Craig, 382 S.W.3d 325, 338 (Tenn. 2012) (stating that it is "beyond reasoned argument that the General Assembly, subject only to constitutional limitations, has plenary power to alter the common law"); Lavin, 16 S.W.3d at 368 (stating that "the General Assembly has plenary power within constitutional limits to change the common law by statute"). Thus, we further examine whether, by enacting the statutory cap on noneconomic damages, the General Assembly has interfered with the constitutional right to trial by jury.

3 In her dissent, Justice Lee states that "[t]he statute in Lavin, therefore, gave tort victims something that had not existed at common law, so the right to trial by jury that accompanies a common law action was never implicated." Respectfully, we disagree. In fact, the Lavin Court specifically held that

[b]ecause the General Assembly sought to regulate by statute that which was already governed by common law, and because a conflict exists with respect to damages between the parental liability statute and the common law, we must hold that the statute prevails over the common law and that damages in this case are capped at $10,000.

4 In her dissent, Justice Clark contends that Lavin is distinguishable because it did not involve a challenge to the constitutionality of the statutory cap. In fact, we do not rely on Lavin for that proposition. Instead, we have cited Lavin because it is highly persuasive on the issue of the General Assembly’s authority to alter the common law, given that the Lavin Court specifically held that a common law tort had been superseded by a statute including a damages cap. As the Lavin Court made clear, this by no means should be interpreted as our agreement with the public policy choice adopted by the General Assembly. See Lavin, 16 S.W.3d at 369.

As set forth above, the right to a jury trial mandates that all contested factual issues be decided by an unbiased and impartial jury. Smith, 418 S.W.3d at 45. However, the right to a jury trial under the Tennessee Constitution does not entitle a plaintiff to any particular cause of action or any particular remedy. Instead, what causes of action a plaintiff may bring, or what remedies a plaintiff may seek, are matters of law subject to determination by the legislature.⁵ Hopkins v. Nashville, C. & St. L. R. R., 96 Tenn. 409, 34 S.W. 1029, 1040 (1896) ("The rights of parties must be determined according to the established law of the land as declared by the legislature or expounded by the courts, and not according to what the jury, in their own opinion, may suppose the law is or ought to be[.]") (quoting Whirley v. Whiteman, 38 Tenn. 610 (Tenn. 1858) ); Collins v. E. Tenn., V. & G. R. Co., 56 Tenn. 841, 847 (Tenn. 1874) ("The State has complete control over the remedies of its citizens in the Courts. It may give a new and additional remedy for a right already in existence--or may abolish old and substitute new remedies. It may modify an existing remedy[.]").

5 Both dissents rely upon our decision in Borne v. Celadon Trucking Services, Inc., 532 S.W.3d 274 (2017), for the proposition that a plaintiff must consent to a reduction of a jury verdict to avoid a violation of the constitutional right to a jury trial if one is suggested by the trial court. We did so hold in Borne. However, the dissents then make the leap to apply this reasoning to the statutory caps adopted by the legislature. This fails to recognize the critical distinction of the lack of authority of a trial judge to alter the common law as opposed to the General Assembly expressly having that authority. See Mills, 155 S.W.3d at 923. Moreover, the dissents’ position fails to recognize the distinction between a trial judge suggesting an additur or remittitur because the trial judge disagrees with the reasonableness of the jury’s assessment of damages based on the evidence presented and the application of a statutory cap on damages as a matter of law.

Under Tennessee Code Annotated section 29-39-102(g), the statutory cap on noneconomic damages is not disclosed to the jury, but is instead applied by the trial court to any award of noneconomic damages. Thus, a jury determines, as a question of fact, the amount of any noneconomic damages sustained by a plaintiff. The trial judge then applies, as a matter of law determined by the legislature, the statutory cap on noneconomic damages in entering the final judgment. This application of law by the trial judge does not violate the plaintiff’s right to have a jury determine the underlying facts of the case. In reaching this conclusion, we find persuasive the reasoning from many of our sister states that have similarly concluded a variety of statutory caps on damages do not violate a plaintiff’s right to trial by jury. In Murphy v. Edmonds, 325 Md. 342, 374, 601 A.2d 102 (Md. 1992), Maryland’s highest court held that a statutory cap on noneconomic damages did not violate the right to a jury trial. The court reasoned that "[a] remedy is a matter of law, not a matter of fact.... A trial court applies the remedy’s limitation only after the jury has fulfilled its fact-finding function. Thus, [the statutory cap] does not infringe upon the right to a jury trial[.]" Id. (quoting Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 376 S.E. 2d 525, 529 (1989) ). The Supreme Court of Idaho similarly held in Kirkland v. Blaine County Medical Center, 134 Idaho 464, 4 P.3d 1115, 1120 (2000), that a statutory cap on noneconomic damages did not violate the right to a jury trial, explaining that "[t]he jury is still allowed to act as the fact finder in personal injury cases. The statute simply limits the legal consequences of the jury’s finding." The court went on to explain that the plaintiffs "had a jury trial during which they were entitled to present all of their claims and evidence to the jury and have the jury render a verdict based on that evidence. That is all to which the right to jury entitles them. The legal consequences and effect of a jury’s verdict are a matter for the legislature (by passing laws) and the courts (by applying those laws to the facts as found by the jury)." Id. The Supreme Court of Ohio in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 880 N.E.2d 420, 431 (2007), also upheld a statutory cap on noneconomic damages, stating that

[s]o long as the fact-finding process is not intruded upon and the resulting findings of fact are not ignored or replaced by another body’s findings, awards may be altered as a matter of law. There is no dispute that the right to a trial by jury does not extend to the determination of questions of law.... Thus, without violating the Constitution, a court may apply the law to the facts determined by a jury.

See also Evans ex rel. Kutch v. State, 56 P.3d 1046, 1051 (Alaska 2002) (agreeing with the Third Circuit Court of Appeals "that a damages cap did not intrude on the jury’s fact-finding function, because the cap was a ‘policy decision’ applied after the jury’s determination, and did not constitute a re-examination of the factual question of damages.") (citing Davis v. Omitowoju, 883 F.2d 1155, 1159-65 (3d Cir. 1989) ); Horton v. Or. Health & Sci. Univ., 359 Or. 168, 376 P.3d 998, 1046 (2016) ("In applying the statutory limit on damages ... the court was applying a legal limit, expressed in the statute, to the facts that the jury had found."); Gourley ex rel. Gourley v. Neb. Methodist Health Sys., Inc., 265 Neb. 918, 663 N.W.2d 43, 75 (2003) (holding statutory cap on damages does not violate right to a jury trial because the legislature "has the power to limit recovery in a cause of action" and "the trial court applies the remedy’s limitation only after the jury has fulfilled its factfinding function"); Tam v. Eighth Jud. Dist. Court, 131 Nev. 792, 358 P.3d 234, 236 (2015) (explaining that the "cap does not interfere with the jury’s factual findings because it takes effect only after the jury has made its assessment of damages, and thus, it does not implicate a plaintiffs right to a jury trial"); Judd ex rel. Montgomery v. Drezga, 103 P.3d 135, 144 (Utah 2004) ("The damage cap enacted by the legislature represents law, similar to an element of a claim to which the trial court must comport the jury’s factual determinations."); Wright v. Colleton Cnty. Sch. Dist., 301 S.C. 282, 391 S.E.2d 564, 569-70 (1990) ("A remedy is a matter of law, not a matter of fact. Although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award, the legal consequences of its assessments."); Phillips v. Mirac, Inc., 470 Mich. 415, 685 N.W.2d 174, 183 (2004) ("Plaintiff’s right to a jury trial is not implicated. She has had a jury trial and the jury determined the facts of her case. The jury’s function is complete. It is up to the court to determine the legal effect of those findings, whether it be that her damages are capped, reduced, increased, tripled, reduced to present value, or completely unavailable.").

We conclude that the right to trial by jury under the Tennessee Constitution is satisfied when an unbiased and impartial jury makes a factual determination regarding the amount of noneconomic damages, if any, sustained by the plaintiff. That right is not violated when a judge then applies, as a matter of law, the statutory cap on noneconomic damages. Thus, we hold that the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102 does not violate the right to trial by jury under the Tennessee Constitution.⁶ B. Whether Tennessee’s Statutory Cap on Noneconomic Damages Violates the Separation of Powers Doctrine.

6 While the instant case involves the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102, we acknowledge that the United State Court of Appeals for the Sixth Circuit in Lindenberg v. Jackson National Life Insurance Company, 912 F.3d 348 (6th Cir. 2018), held that the statutory cap on punitive damages in Tennessee Code Annotated section 29-39-104 violates the right to a jury trial under the Tennessee Constitution. As a preliminary matter, we note that decisions by federal circuit court of appeals are not binding on this Court. Frazier v. E. Tenn. Baptist Hosp., Inc., 55 S.W.3d 925, 928 (Tenn. 2001). We also find the reasoning of the majority in Lindenberg unpersuasive in this case. Moreover, in Lindenberg, we declined to accept a certified question from the federal district court regarding the constitutionality of the statutory cap on punitive damages because antecedent questions regarding the availability of those damages had not also been certified. Lindenberg v. Jackson Nat'l Life Ins. Co., No. M2015-02349-SC-R23-CV (Tenn. June 23, 2016) (per curiam). In our order declining to answer the certified questions, we stated: "Nothing in the Court’s Order is intended to suggest any predisposition by the Court with respect to the United States Court of Appeals for the Sixth Circuit’s possible certification to this Court of both the question of the availability of the remedy of common law punitive damages in addition to the remedy of the statutory bad faith penalty and the question of the constitutionality of the statutory caps on punitive damages, in the event of an appeal from the final judgment in this case." Id. The Sixth Circuit majority, however, chose not to certify such questions to this Court, and, instead, held that the statutory cap on punitive damages violates the right to trial by jury under the Tennessee Constitution. We simply point out that the procedure for certifying questions of state law to this Court is designed to promote judicial efficiency and comity, and to protect this State’s sovereignty. See Yardley, 470 S.W.3d at 803 ; see also Lindenberg, 912 F.3d at 371-72 (observing that the constitutionality of the punitive damages cap is an unsettled question on which there is no Tennessee Supreme Court authority and is ideally suited for certification) (Larsen, J., dissenting). However, we note that the statutory cap on punitive damages in Tennessee Code Annotated section 29-39-104 is not at issue in this case, and we express no opinion on this issue.

Second, Plaintiff argues that the statutory cap violates the separation of powers provisions of the Tennessee Constitution. Article II, section 1 of the Tennessee Constitution provides that "[t]he powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial." Section 2 of the same Article provides that "[n]o person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted." "In general, the ‘legislative power’ is the authority to make, order, and repeal law; the ‘executive power’ is the authority to administer and enforce the law; and the ‘judicial power’ is the authority to interpret and apply law." Bredesen v. Tenn. Judicial Selection Comm'n, 214 S.W.3d 419, 434 (Tenn. 2007) (quoting State v. King, 973 S.W.2d 586, 588 (Tenn. 1998) ); see also Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995). We have recognized, however, that "while the three branches of government are independent and co-equal, they are to a degree interdependent as well, with the functions of one branch often overlapping that of another." Bredesen, 214 S.W.3d at 434 (quoting King, 973 S.W.2d at 588 ).

We have further explained that this Court alone "has the inherent power to promulgate rules governing the practice and procedure of the courts of this state," which "cannot be constitutionally exercised by any other branch of government." State v. Lowe, 552 S.W.3d 842, 857 (Tenn. 2018) (quoting State v. Mallard, 40 S.W.3d 473, 480-81 (Tenn. 2001) ). Thus, this Court previously has held that the General Assembly oversteps constitutional boundaries in violation of the separation of powers when it exercises its legislative power in a way that directly contradicts existing procedural rules of the courts. Lowe, 552 S.W.3d at 857. However, the separation of powers doctrine in our constitution does not prevent the Generally Assembly from enacting substantive law. See Bredesen, 214 S.W.3d at 434 (legislative power is the authority to make, order, and repeal law); see also Zdrojewski v. Murphy, 254 Mich.App. 50, 657 N.W.2d 721 (2002) (holding statutory cap on noneconomic damages did not violate separation of powers because it was a substantive change in the law that did not regulate the procedural operations of the judiciary); Gourley, 663 N.W.2d at 76 (holding statutory cap on damages was a proper legislative function that did not violate separation of powers); Judd, 103 P.3d at 144 (holding statutory cap on damages represented the law to be applied and did not violate separation of powers). As we discussed supra, the statutory cap on noneconomic damages is a substantive change in the law that was within the General Assembly’s legislative authority to enact. The statutory cap does not interfere with the judicial power of the courts to interpret and apply law. To the contrary, courts exercise their judicial authority, and fulfill their constitutional responsibilities, by applying the statutory cap on noneconomic damages to the cases before them. Thus, we hold that the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102 does not violate the separation of powers doctrine under the Tennessee Constitution.

C. Whether Tennessee’s Statutory Cap on Noneconomic Damages Violates the Equal Protection Clause by Discriminating Disproportionately Against Women.

Finally, Plaintiff contends that the statutory cap violates the equal protection provision of the Tennessee Constitution. The right to equal protection is guaranteed by the Fourteenth Amendment of the United States Constitution. Equal protection also is guaranteed by Article I, section 8, and Article XI, section 8, of the Tennessee Constitution. We have held that the Tennessee and United States Constitutions confer essentially the same protections, and we have followed the framework developed by the United States Supreme Court for analyzing equal protection claims. Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993) ("[T]he Court has stated in previous decisions that Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the Constitution of the United States confer essentially the same protection upon the individuals subject to those provisions.") (citing Marion Cnty. Tenn. River Transp. Co. v. Stokes, 173 Tenn. 347, 117 S.W.2d 740, 741 (1938) ; Motlow v. State, 125 Tenn. 547, 145 S.W. 177, 180 (1912) ); Newton v. Cox, 878 S.W.2d 105, 109 (Tenn. 1994) ("[T]his Court has followed the framework developed by the United States Supreme Court for analyzing equal protection claims[.]"). "The concept of equal protection espoused by the federal and of our state constitutions guarantees that ‘all persons similarly circumstanced shall be treated alike.’ " Doe v. Norris, 751 S.W.2d 834, 841 (Tenn. 1988) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920) ).

Here, Plaintiff acknowledges that the statutory cap on noneconomic damages is facially neutral, and she makes no allegation that the General Assembly had a discriminatory intent or purpose in enacting the statute. Instead, Plaintiff simply argues that the statutory cap on noneconomic damages has a disparate impact on women. The United States Supreme Court has held repeatedly that the Equal Protection Clause of the Federal Constitution does not provide for disparate impact claims. See Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (holding that disproportionate impact, standing alone, does not violate the Equal Protection Clause); Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450, (1977) ("[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause[.]"); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (holding that "the Fourteenth Amendment guarantees equal laws, not equal results"); Lewis v. Casey, 518 U.S. 343, 375, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("We rejected a disparate-impact theory of the Equal Protection Clause altogether in Washington v. Davis....") (Thomas, J., concurring); Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 42, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) (recognizing that disparate impact alone is insufficient to prove a constitutional violation). We similarly have held that a party asserting an equal protection violation must show discriminatory purpose. See State v. Banks, 271 S.W.3d 90, 155 (Tenn. 2008) (holding a defendant in a criminal proceeding who asserts an equal protection violation must prove the existence of purposeful discrimination) (citing Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555) ; State v. Keen, 31 S.W.3d 196, 217 (Tenn. 2000) (same). Accordingly, without evidence of discriminatory purpose, disparate impact alone does not violate the equal protection provisions of the Tennessee Constitution. Therefore, with no allegation or evidence that the General Assembly acted with the purpose of discriminating against women in enacting the statutory cap on noneconomic damages, we hold that Tennessee Code Annotated section 29-39-102 does not violate the Tennessee Constitution by discriminating disproportionately against women.⁷

7 Because we hold that a disparate impact, without evidence of discriminatory purpose, is not cognizable under the equal protection provisions of the Tennessee Constitution, we need not examine the veracity of Plaintiff’s disparate impact allegations. We note, however, that Plaintiff has done little more than reference a 2004 law journal article regarding tort reform, and has provided no evidence that Tennessee’s statutory cap on noneconomic damages has a disparate impact on women in Tennessee.

Conclusion

We hold that the statutory cap on noneconomic damages in Tennessee Code Annotated section 29-39-102 does not violate the right to trial by jury, the doctrine of separation of powers, or the equal protection provisions of the Tennessee Constitution.

The Clerk is directed to transmit a copy of this opinion to the United States District Court for the Middle District of Tennessee in accordance with Tennessee Supreme Court Rule 23, section 8. Costs in this Court are taxed to Plaintiff Jodi McClay, for which execution may issue if necessary.

Cornelia A. Clark, J., filed a separate dissenting opinion. Sharon G. Lee, J., also filed a separate dissenting opinion. Holly Kirby, J., filed a separate concurring opinion.

Cornelia A. Clark, J., dissenting.

I dissent. I would hold that Tennessee Code Annotated section 29-39-102(e) (2012) violates article I, section 6 of the Tennessee Constitution by usurping the jury’s essential and constitutionally protected fact-finding function.

Every version of the Tennessee Constitution dating back to the attainment of statehood in 1796 has declared "[t]hat the right of trial by jury shall remain inviolate."^{1 1 1} The contours of this right thus " ‘have remained unchanged’ " for the past 223 years. Sneed v. City of Red Bank, Tenn., 459 S.W.3d 17, 29 n.8 (Tenn. 2014) (quoting Jones v. Greene, 946 S.W.2d 817, 823 (Tenn. Ct. App. 1996) ). This constitutional guarantee preserves "the right of trial by jury as it existed at common law and was in force and use under the laws and Constitution of North Carolina at the time of the formation and adoption" of the Tennessee Constitution of 1796. Newport Hous. Auth. v. Ballard, 839 S.W.2d 86, 88 (Tenn. 1992) (citing Trigally v. Mayor of Memphis, 46 Tenn. 382 (1869) ); see also Helms v. Tenn. Dep't of Safety, 987 S.W.2d 545, 547 (Tenn. 1999). As for claims that would have been tried to a jury at common law, this constitutional guarantee ensures that the right of trial by jury "shall remain inviolate." Newport Hous. Auth., 839 S.W.2d at 88 ; see also Young v. City of LaFollette, 479 S.W.3d 785, 793-94 (Tenn. 2015) (stating that the constitutional right to trial by jury does not apply to statutory rights and remedies first created after the adoption of the 1796 Constitution, although the General Assembly remains free to provide expressly for a statutory right of trial by jury); Smith Cnty. Educ. Ass'n v. Anderson, 676 S.W.2d 328, 336 (Tenn. 1984) (recognizing that the constitutional right to trial by jury does not apply to inherently equitable claims that would not have been tried to a jury at common law); Jones, 946 S.W.2d at 823-24 (enumerating the claims at common law to which the right to trial by jury did not apply).^{2 2 2} Article I, section 6 therefore preserves the essential functions of the jury. One of those essential functions "is that all contested factual issues be determined by an unbiased, impartial jury." Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996) ; see also State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991) ("Among the essentials of the right to trial by jury is the right guaranteed to every litigant in jury cases to have the facts involved tried and determined by twelve jurors."). This constitutionally guaranteed fact-finding function encompasses the jury’s determination of the type and amount of damages. Indeed, only seventeen years after the current version of article I, section 6 was adopted, this Court declared:

1 Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834) ; Tenn. Const. art. I, § 6 (1870). The full text of article I, section 6, the current constitutional guarantee, states "[t]hat the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors." Tenn. Const. art. I, § 6 (1870).

1 Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834) ; Tenn. Const. art. I, § 6 (1870).

1 Participants in the First Continental Congress in 1774 protested royal administrators’ acts to remove certain categories of cases to England for trial and interfere with the election of jurors; they adopted a declaration stating that the colonies were "entitled ... to the great and inestimable privilege of being tried by their peers of the vicinage...." Declaration and Resolves of the First Continental Congress, Res. 5 (1774), available at https://www.ushistory.org/declaration/related/decres.html.

2 The parties do not dispute that the constitutional right to trial by jury applied at common law to personal injury tort claims, although some dispute has arisen about whether noneconomic damages were available at common law. The majority has assumed for purposes of this appeal that such damages were available, so I have accepted that assumption as well.

2 The Seventh Amendment to the United States Constitution guarantees the right to trial by jury: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...." U.S. Const. amend. VII.

2 Advocates of a constitutional right to jury trial frequently cited a statement by Blackstone:

The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity; it is not to be expected from human nature that the few should be always attentive to the interests and good of the many.

Landsman, The Civil Jury in America , 44 Hastings L.J. at 599–600 (quoting William Blackstone, 3 Commentaries on the Laws of England 682 (1783) (Nourse Publishing Co. 1959)).

In trials at common law, the jury are the proper judges of damages; and, where there is no certain measure of damages, the court ordinarily will not disturb their verdict, unless on grounds of prejudice, passion, or corruption in the jury. To this rule we have conformed our practice, and it is the only safe one on the subject. In view of the rule at common law, and as discovered in the decisions of our predecessors on this bench, we hold that, in actions for damages for personal torts, it is within the strict province of the jury to estimate the extent of the injury, and assess the damages; and unless there is a manifest abuse of this trust, such as to indicate passion, prejudice, partiality, or unaccountable caprice, or corruption, that the trial judge ought not to interfere.

Tenn. Coal & R.R. Co. v. Roddy, 85 Tenn. 400, 5 S.W. 286, 290 (1887) (emphasis added) (internal quotation marks omitted) (citing Goodall v. Thurman, 38 Tenn. 209, 218 (1858) ); Dimick v. Schiedt, 293 U.S. 474, 480, 55 S.Ct. 296, 79 L.Ed. 603 (1935) ("[T]he common-law rule as it existed at the time of the adoption of the Constitution" was that "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it." (citations and internal quotation marks omitted)). Article I, section 6 squarely places the determination of damages "within the strict province of the jury." Roddy, 5 S.W. at 290 ; see also Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn. 2013) ("We entrust the responsibility of resolving questions of disputed fact, including the assessment of damages, to the jury."); Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 308 (Tenn. 2017) ("Where a party invokes the right to a jury trial, our constitution requires ‘that the jury be allowed to determine all disputed issues of fact.’ " (citations omitted)). Indeed, the jury’s constitutionally protected function of determining damages is so well established that, "[t]o avoid contravention of the right to jury trial clauses of the federal and state constitutions, the trial court must obtain the consent of the party against whom [an] additur or remittitur is to be entered; if that party does not consent, the trial court must order a new trial." Borne, 532 S.W.3d at 309 (citing Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994) ; Tenn. Code Ann. §§ 20-10-101, -102 (2009)).

Tennessee Code Annotated section 29-39-102(e) usurps and replaces the jury’s constitutionally protected function of determining damages with an arbitrary ceiling on damages mostly unrelated to the specific facts and circumstances of each litigant’s claim. The effect of Tennessee Code Annotated section 29-39-102(e) is a mandatory remittitur that would otherwise be unenforceable unless a trial court first determined that the evidence in a particular case preponderated against the jury’s determination of damages and the plaintiff then consented to the remittitur. See Borne, 532 S.W.3d at 309-10 ; see also Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 163 (Ala. 1991) (describing a statute capping noneconomic damages as "patently inconsistent with the doctrines of remittitur or new trial as we have applied them"). By usurping the jury’s constitutionally protected function of determining damages and rendering the jury’s factual findings meaningless, Tennessee Code Annotated section 29-39-102(e) clearly contravenes article I, section 6.

In so concluding, I adopt the reasoning of the high courts of Alabama, Georgia, Kansas, Missouri, and Washington, which have eloquently explained how statutes capping damages in their own jurisdictions violate their own state constitutional provisions preserving "inviolate" the right to trial by jury. Moore, 592 So. 2d 156 ; Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 691 S.E.2d 218 (2010) ; Hilburn v. Enerpipe. Ltd., 309 Kan. 1127, 442 P.3d 509 (2019) ; Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633 (Mo. 2012) ; Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711 (1989), amended by 780 P.2d 260 (Wash. 1989).^{3 3 3} See also Lindenberg v. Jackson Nat'l Life Ins. Co., 912 F.3d 348, 353 (6th Cir. 2018) (holding that Tennessee Code Annotated section 29-39-104, the statute capping punitive damages, violates article I, section 6 of the Tennessee Constitution ). As the Alabama Supreme Court explained, "[b]ecause the statute caps the jury’s verdict automatically and absolutely, the jury’s function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status." Moore, 592 So. 2d at 164. See also Smith v. Dep't of Ins., 507 So. 2d 1080, 1088-89 (Fla. 1987) (striking down a statute capping noneconomic damages as a violation of the Florida constitutional provision guaranteeing a right of access to the courts and also commenting that "because the jury verdict is being arbitrarily capped," the statute deprived the plaintiff of "the constitutional benefit of a jury trial as we have heretofore understood that right"). The Missouri Supreme Court pointed out that a statute imposing an arbitrary limit on damages "directly curtail[s] the individual right to one of the most significant constitutional roles performed by the jury—the determination of damages." Watts, 376 S.W.3d at 642. The Georgia Supreme Court reasoned that, by requiring courts "to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit," a statute capping damages, "clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function." Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 223 (citing Lakin v. Senco Prods., Inc., 329 Or. 62, 987 P.2d 463, 473 (1999) ). Like the Kansas Supreme Court, I "simply cannot square a right specially designated by the people as ‘inviolate’ with the practical effect of the damages cap: substituting juries’ factual determinations of actual damages with an across-the-board legislative determination of the maximum conceivable amount of actual damages." Hilburn, 442 P.3d at 523. Finally, as the Washington Supreme Court noted, a statute capping damages "directly changes the outcome of a jury determination" by altering a jury’s factual finding "to conform to a predetermined formula[,]" and thereby "robs the [jury] of its function." Sofie, 771 P.2d at 720, 721.

3 Although eight other state courts interpreting constitutional provisions that use the term "inviolate" to secure the right of trial by jury have upheld statutory damages caps, five other state courts have struck down statutory damages caps as unconstitutional under constitutional provisions that use the term "inviolate" to describe the jury trial right. Hilburn, 442 P.3d at 522-23 (Kan. 2019) (collecting cases).

3 Any amendment ... to this Constitution may be proposed in the Senate or House of Representatives, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment ... shall be entered on their journals with the yeas and nays thereon, and referred to the general assembly then next to be chosen; and shall be published six months previous to the time of making such choice; and if in the general assembly then next chosen ... such proposed amendment ... shall be agreed to by two-thirds of all the members elected to each house, then it shall be the duty of the general assembly to submit such proposed amendment ... to the people at the next general election in which a Governor is to be chosen. And if the people shall approve and ratify such amendment ... by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment ... shall become a part of this Constitution. When any amendment ... to the Constitution shall be proposed in pursuance of the foregoing provisions the same shall at each of said sessions be read three times on three several days in each house.
Tenn. Const. art. XI, § 3.

3 See also John T. Nockleby, What’s a Jury Good For? 9 n.19 (Loyola-LA Legal Studies, Paper No. 2007-15, 2005) [hereinafter "Nockleby, What’s a Jury Good For? , at ___"] (citing Leonard Levy, The Palladium of Justice 56–57 (1999)), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=965065 ("For more than a century bracketing the founding of the country, many authorities insisted that the jury had the right and power to determine for itself the law as well as the facts."). It is unclear whether North Carolina had this practice in the late 1700s when Tennessee became a state.

The majority acknowledges that article I, section 6 protects the jury’s fact-finding determination of damages but nevertheless concludes that Tennessee Code Annotated section 29-39-102(e) does not violate article I, section 6. The majority advances several arguments to support this conclusion, but none of these arguments is persuasive.

First, the majority characterizes section 29-39-102(e) as merely a permissible legislative alteration of the common law. The General Assembly unquestionably has authority to alter the common law. State v. Howard, 504 S.W.3d 260, 270 (Tenn. 2016). But, the General Assembly cannot modify the Tennessee Constitution, and that is what section 29-39-102(e) does. Article I, section 6 unequivocally declares that the common law right to trial by jury as it existed at the time of the adoption of the Tennessee Constitution "shall remain inviolate." By this declaration, article I, section 6 divests the General Assembly of all authority to modify the common law right of trial by jury. The United States Supreme Court has succinctly explained the distinction between permissible legislation that modifies the common law and impermissible legislation that has the effect of modifying constitutional provisions:

It is said that the common law is susceptible of growth and adaptation to new circumstances and situations, and that the courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule; and some attempt is made to apply that principle here. The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. But here we are dealing with a constitutional provision which has in effect adopted the rules of the common law in respect of trial by jury as these rules existed in 1791. To effectuate any change in these rules is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental ....

Dimick, 293 U.S. at 487, 55 S.Ct. 296 (emphasis added) (citations omitted). Other states addressing statutes capping damages have recognized this distinction as well. See Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 223 (rejecting the notion that the authority to modify or abrogate the common law "empowers the Legislature to abrogate constitutional rights that may inhere in common law causes of action"); Hilburn, 442 P.3d at 524 ("[T]he cap’s effect is to disturb the jury’s finding of fact on the amount of the award. Allowing this substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment. The people deprived the Legislature of that power when they made the right to trial by jury inviolate."); Sofie, 771 P.2d at 720 ("The scope of the right to trial by jury may be defined by the common law through a historical analysis, but the right itself is protected by the state constitution."). The majority erroneously characterizes Tennessee Code Annotated section 29-39-102(e) as a permissible legislative alteration of the common law. Thus, the majority’s characterization is fatally flawed and unpersuasive.^{4 4 4}

4 The majority’s reliance upon Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000), also is misplaced. There was no challenge in Lavin to the constitutionality of the statute capping damages at $10,000.

4 Perhaps to avoid constitutional problems with the damages cap statute, resolutions were introduced in 2019 in the Senate and House of Representatives to amend the Constitution to add: "The legislature has the power to enact laws limiting the amount of noneconomic and punitive damages in civil actions, and any such limit does not diminish the right of trial by jury." H.J.R. 135, 111th Gen. Assemb., 1st Reg. Sess. (Tenn. 2019); S.J.R. 176, 111th Gen. Assemb., 1st Reg. Sess. (Tenn. 2019).

4 See also Sparf v. United States , 156 U.S. 51, 89–90, 15 S.Ct. 273, 39 L.Ed. 343 (1895) (quoting Whart. Cr. Pl. (8th Ed.) § 806) (citing Williams v. State , 32 Miss. (3 George) 389, 396 (1856) ) (explaining that indications by some "in the early history of the country" that juries could disregard the law as given by the court were likely because "in many of the states the arbitrary temper of the colonial judges, holding office directly from the crown, had made the independence of the jury, in law as well as in fact, of much popular importance.").

Equally unconvincing is the fact-law dichotomy the majority relies upon to uphold the constitutionality of the statute. Admittedly, almost every court that has upheld statutes capping damages has relied upon this dichotomy. See Hilburn, 442 P.3d at 521-22 ("The fact-law or fact-policy distinction has been relied on in varying degrees by almost all courts that have upheld damages caps in the face of jury trial-based challenges." (collecting cases)). But, as the Washington Supreme Court explained when rejecting it:

[t]his argument ignores the constitutional magnitude of the jury’s fact-finding province, including its role to determine damages. Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function.

Sofie, 771 P.2d at 721. "The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name.... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L.Ed. 356 (1866). "In other words, a constitutional protection cannot be bypassed by allowing it to exist in form but letting it have no effect in function." Sofie, 771 P.2d at 724. The fact-law dichotomy exalts form over substance. It serves as a means of obfuscating the true effect of statutes capping damages, which is to render a jury’s constitutionally protected fact-finding function an exercise in futility—a façade, a sham, and a pretense.^{5 5 5}

5 Also unpersuasive is the defendant’s argument that statutes capping damages are no different than statutes multiplying damages. A statute capping damages arbitrarily and unconstitutionally usurps and alters a jury’s constitutionally protected determination of damages. A statute multiplying damages adopts and validates a jury’s constitutionally protected determination of damages and utilizes that determination to implement a policy decision that certain conduct should be further penalized. See Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 224 ("Nor does ... the existence of statutes authorizing double or treble damages attest to the validity of the caps on noneconomic damages.... [T]reble damages do not in any way nullify the jury’s damages award but rather merely operate upon and thus affirm the integrity of that award.").

5 Statements made during the debate on noneconomic damages caps in the Tennessee House of Representatives make it clear that the sole purpose of the caps was to provide businesses with financial certainty in litigation. Representative Gerald McCormick explained that now businesses "can run their numbers and say ... if we really mess up or one of our employees really makes a mistake, well, we're gonna pay for it, but at least we know how much we're gonna have to pay, we don't think it'll bankrupt us. We can plan for it." Hearings on H.B. 2008 Before the H. Comm. on the Judiciary , 107th Gen. Assemb. (Tenn. May 9, 2011). Former United States Senator Fred Thompson, testifying before the Tennessee Senate, commented, "This is a civil justice act, and all I've heard about is business" and stated that "the desire for certainty [for businesses] ... [is] going to do grave injustice to our system." Hearings on S.B. 1522 Before the S. Comm. on the Judiciary , 107th Gen. Assemb. (Tenn. Apr. 19, 2011). Representative Sherry Jones opposed the statutory caps because "we're about to do some really bad things to some people that may not have much to start with because we're trying to help businesses .... I just can't vote for something that I think is going to hurt ... average people in the long run." Hearings on H.B. 2008 Before the H. Comm. on the Judiciary , 107th Gen. Assemb. (Tenn. May 9, 2011) (emphasis added).

5 In my partial dissent in Meals , I described in detail the evidence of Billy Meals’ grievous injuries, but I did not put "[l]egal analysis aside"; detailing that evidence was pertinent to the legal analysis. It demonstrated that the evidence fully supported the jury’s verdict and did not support the intermediate appellate majority’s significant remittitur of the jury’s verdict. Meals , 2012 WL 1264454, at *25 (Kirby, J. dissenting in part). This Court granted permission to appeal and reversed the remittitur on that basis. See Meals , 417 S.W.3d 414.

"The common law and trial by jury in case of disputed facts is the birthright of the people, and the best preservative of their constitutional rights." Rogers v. Waller, 5 Tenn. 205, 208 (1817). As this Court explained only nine years ago:

The citizen jury provides the foundation of this Nation’s legal system. Encroachment on the right to trial by jury was

among the chief complaints registered by the American colonists in the Declaration of Independence. Alexander Hamilton considered the right to trial by jury to be "the very palladium of free government." Thomas Jefferson believed it to be "the only anchor, ever yet imagined by man, by which government can be held to the principles of [the] Constitution."

The right to trial by jury was held in equally "high estimation" by the framers of Tennessee’s constitutions. This Court has characterized the right as "an essential element of public liberty" and as "vital ... to the security of life, liberty, and property of the citizen."

State v. Hester, 324 S.W.3d 1, 50-51 (Tenn. 2010) (footnotes omitted) (alterations in original). Just thirty years after Tennessee became a State, this Court declared:

The right to a trial by jury ... is too sacred to be intermeddled with by any power upon earth; too inseparable from human happiness to be submitted to the discretion of any human Legislature; it stands upon eternal foundations, and as time grows old it grows in veneration and stability.

Tipton v. Harris, 7 Tenn. 414, 419 (1824). Indeed, the Tennessee Constitution’s use of "[t]he term ‘inviolate’ connotes deserving of the highest protection." Sofie, 771 P.2d at 721. As a judge of Tennessee’s highest court wrote in 1833:

[T]he preservation of the trial by jury in all its purity is of the first importance; a strict adherence to its form, in all its parts, is not to be dispensed with, or to be considered as captious or trifling. It is to be watched with a jealous assiduity, and the slightest deviation from the established mode of proceeding regarded as affecting our dearest interests, and as such to be instantly put down —bearing constantly in our minds, that it is one of the best guards of our rights, of our property, of our liberty and our lives.

Garner v. State, 13 Tenn. 160, 179 (1833) (Whyte, J.) (emphasis added).

Tennessee Code Annotated section 29-39-102(e) constitutes far more than a slight deviation from the established mode and function of the jury. It amounts to a legislative usurpation of the jury’s constitutionally protected fact-finding function. As such, it should be "instantly put down" as a violation of article I, section 6. Garner, 13 Tenn. at 179.

For all these reasons, I dissent from the majority’s decision and would hold that Tennessee Code Annotated section 29-39-102(e) violates article I, section 6 of the Tennessee Constitution.

Sharon G. Lee, J., dissenting.

The Tennessee Constitution guarantees that the "right of trial by jury shall remain inviolate."¹ Tennessee Code Annotated section 29-39-102 (2012) ("the damages cap statute"), which forbids awards for noneconomic damages that exceed $750,000 (or $1,000,000 in catastrophic injury cases), is an unconstitutional invasion of the right to trial by jury. Thus, it cannot stand.

Section 29-39-102 improperly "amends" Article I, section 6 of the Tennessee Constitution to diminish the right to trial by jury. Now section 6 might as well read: "the right of trial by jury shall remain inviolate—as long as the jury, which has considered all the evidence and followed the law, awards an injured party less than $750,000 in noneconomic damages (or more than $1,000,000 when the injuries are catastrophic)." Under this legislative "amendment" to the Constitution, a jury’s verdict for noneconomic damages is meaningless when the verdict exceeds the damages cap. The cap on damages is one-size-fits-all and fails to consider the extent of a party’s noneconomic losses. And the injured party has to accept the reduced award of damages. Thus, the damages cap statute unconstitutionally takes away a citizen’s right to trial by jury on noneconomic damages. The jury’s role in a civil jury trial becomes a mere procedural formality.

Noneconomic damages include compensation for physical and emotional pain; suffering; inconvenience; disfigurement; mental anguish; emotional distress; loss of enjoyment of normal activities, benefits, and pleasures of life; and loss of physical health, well-being, or bodily functions. Tenn. Code Ann. § 29-39-101(2) (2012). Noneconomic damages are necessarily subjective and not as easily determined as economic damages, which include medical bills and lost wages. Duran v. Hyundai Motor Am., Inc. , 271 S.W.3d 178, 210–11 (Tenn. Ct. App. 2008) (citations omitted). That is why we have long considered noneconomic damages to be especially within the province of the jury. Id.

This Court has explained that "[a] jury has wide latitude in assessing non-economic damages. We trust jurors to use their personal experiences and sensibilities to value the intangible harms such as pain, suffering, and the inability to engage in normal activities." Meals ex rel. Meals v. Ford Motor Co. , 417 S.W.3d 414, 425 (Tenn. 2013). "It is not our role to second-guess the jury and to substitute our judgment...." Id. It is the jury’s role to observe the witnesses and examine the evidence to make these intangible findings—how much pain and suffering the injured person has endured, how much the quality of that person’s life has been diminished, how great is the severity and permanency of the injuries—that is, what the plaintiff has lost. Thus, the constitutional right to a jury trial requires that the "community" decide the subjective element of noneconomic damages. Johnson v. Nunis , 383 S.W.3d 122, 136 (Tenn. Ct. App. 2012) (quoting Smartt v. NHC Healthcare/McMinnville, LLC , No. M2007-02026-COA-R3-CV, 2009 WL 482475, at *21 (Tenn. Ct. App. Mar. 10, 2011) ). By enacting the statutory caps, the legislature has impermissibly substituted its judgment for the jury’s assessment of noneconomic damages, without regard for the value a jury might place on those intangible losses.

The majority’s ruling is inconsistent with this Court’s previous decisions. Just two years ago in Borne v. Celadon Trucking Services, Inc. , we reaffirmed that the jury’s role is to decide both the "type and amount of any damages awarded to the plaintiff. " 532 S.W.3d 274, 308 (Tenn. 2017) (citing Meals , 417 S.W.3d at 419–20 ) (emphasis added). Yet under the damages cap statute, the jury’s decision about the amount of damages is an empty exercise because of the arbitrary limitation on the jury’s award of noneconomic damages.

In deference to a jury’s decision, this Court’s past rulings recognized that a jury’s verdict should be affirmed when any material evidence supported the verdict because "if it were otherwise, the parties would be deprived of their constitutional right to trial by jury. " Crabtree Masonry Co. v. C & R Constr. , 575 S.W.2d 4, 5 (Tenn. 1978) (emphasis added) (citing City of Chattanooga v. Rogers , 201 Tenn. 403, 299 S.W.2d 660, 661 (Tenn. 1956) ; D.M. Rose & Co. v. Snyder , 185 Tenn. 499, 206 S.W.2d 897, 901 (1947) ; Dynamic Motel Mgmt., Inc. v. Erwin , 528 S.W.2d 819, 822 (Tenn. Ct. App. 1975) ; City of Chattanooga v. Ballew , 49 Tenn.App. 310, 354 S.W.2d 806, 808–09 (1961) ). The appellate court’s role is "only to determine whether there was any substantial evidence to support the verdict; and it must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict ...." D.M. Rose & Co. , 206 S.W.2d at 901 (emphasis added) (citations omitted).

In addition, a court has limited authority to add to (additur) or reduce (remittitur) a jury’s award of damages. For example, an additur or remittitur cannot destroy a jury’s verdict—that is, it cannot be "so large that the resulting judgment bears no meaningful relationship to the original jury verdict." Walton ex rel. Walton v. Tullahoma HMA, LLC , 572 S.W.3d 180, 188 (Tenn. Ct. App. 2018), perm. app. denied (Tenn. Oct. 10, 2018); see also Johnson , 383 S.W.3d at 134 (quoting Long v. Mattingly , 797 S.W.2d 889, 896 (Tenn. Ct. App. 1990) ) (" ‘[A]djustments that ‘totally destroy’ the jury’s verdict are impermissible.’ "). Also, a court may not force a party to accept the increased or reduced award. Additur and remittitur are constitutionally permissible only because a party does not have to accept the modified award and can receive a new trial. Spence v. Allstate Ins. Co. , 883 S.W.2d 586, 594 (Tenn. 1994) (holding that the right to a jury trial under both the Tennessee and United States Constitutions requires a defendant’s consent to an additur because the trial court is "essentially disagreeing with the jury’s determination of damages—which is a question of fact" required to be decided by the jury); McCall v. Waer , 487 S.W.2d 308, 310 (Tenn. 1972) (stating that additur does not impinge on the defendant’s constitutional right to a jury trial because a defendant can refuse additur and have a new trial).

In Borne , this Court held that a trial court must obtain the plaintiff’s consent before reducing a jury’s award of damages "[t]o avoid contravention of the right to jury trial clauses of the federal and state constitutions." 532 S.W.3d at 309 (emphasis added) (citations omitted). Likewise, the United States Supreme Court has held that mandatory remittitur without the option of a new trial violates the plaintiff’s right to trial by jury under the Seventh Amendment to the United States Constitution.² Hetzel v. Prince William Cnty., Va. , 523 U.S. 208, 211, 118 S.Ct. 1210, 140 L.Ed.2d 336 (1998) (citations omitted) (holding that an appellate court’s order that required a trial court to enter judgment for less than the jury’s verdict without the option of a new trial "cannot be squared with the Seventh Amendment"). Thus, if courts cannot require a party to accept a reduction in a jury’s award of damages, then it stands to reason that the legislature cannot by statutory enactment preempt a jury’s award.

By usurping the jury’s role in awarding noneconomic damages, the General Assembly has, in effect, amended Article I, section 6 of the Tennessee Constitution to dilute the right to trial by jury so it is no longer inviolate. But the General Assembly may only propose a constitutional amendment; it is up to the voters to amend the Constitution by ratification. Tenn. Const. art. XI, § 3 ;³ Illustration Design Grp., Inc. v. McCanless , 224 Tenn. 284, 454 S.W.2d 115, 118 (1970) (citing Cummings v. Beeler , 189 Tenn. 151, 223 S.W.2d 913, 924 (1949) ; Derryberry v. State Bd. of Election Comm'rs , 150 Tenn. 525, 266 S.W. 102, 105 (1924) ).⁴ Under Article XI, section 3, if a majority of the members of the Senate and House of Representatives approves a resolution to amend the Constitution, and if in the next session of the General Assembly the proposed amendment is approved by two-thirds of the members of both houses, then the voters at the next general election may ratify the amendment. Tennessee voters, in deciding whether to amend the Constitution to cap damages awards, could consider that the purpose of the amendment is to help businesses.⁵ Voters could also consider whether the damages cap is a solution looking for a problem. In every year since 2000, the average combined amount of economic and noneconomic damages awarded in tort cases has been far below the amount of the statutory cap for noneconomic damages.⁶ Thus, in Tennessee, we do not have a problem with "runaway juries." The damages cap applies to only a few cases each year and affects the most seriously injured individuals.

6 Average damages awards in Tennessee that include both economic and noneconomic damages for fiscal years:

Legal analysis aside, we should not ignore the real-life consequences of the damages cap statute. For example, in 2002, six-year-old Billy Meals was involved in a car wreck. Meals , 417 S.W.3d at 417–18. The collision seriously injured Billy and killed his father and grandfather. Id. at 418. The force of the impact fractured Billy’s spine. He also suffered a closed head injury and massive internal injuries. Id. Billy spent nearly two months in the hospital undergoing many surgeries, including removal of part of his small intestine, bowel resection, and a spinal fusion requiring the placement of rods, screws, and wires in his back, followed by nearly a month in a rehabilitation facility. Id. He returned to the hospital several times for treatment of infections and other complications. Id. Billy became a paraplegic; he would never run or walk again. Id. at 424. He had to have ongoing physical therapy. Id. His legs atrophied, and his toes became claw-like. Id. Billy’s doctors said he would likely never father a child or have normal sexual functioning. Id. His doctors expected that Billy would suffer from frequent infections and medical problems for the rest of his life, estimated to be 55.79 years. Id. Billy’s mother sued on his behalf. The jury awarded Billy a substantial verdict that included more than $1,000,000 in noneconomic damages. Id. at 417. The Court of Appeals suggested that his verdict be reduced by 70.55% or that a new trial be granted. Id. at 417. This Court reversed the Court of Appeals and affirmed the jury’s award, finding the Court of Appeals had gone too far in its suggested reduction and that the verdict was reasonable and properly supported by the evidence. Id. at 428.

Had Billy’s injuries occurred after October 1, 2011, when the damages cap statute went into effect, he would have received only $1,000,000 in noneconomic damages—a 97.5% reduction in the noneconomic damages the jury had awarded and this Court found to be reasonable. Had the verdict been reduced by 97.5%, the remittitur would have destroyed the jury’s verdict and would have been impermissible. See Myers v. Myers , No. E2004-02135-COA-R3-CV, 2005 WL 1521952, at *5 (Tenn. Ct. App. June 27, 2005) (concluding that a 70% remittitur destroyed the jury’s verdict); Guess v. Maury , 726 S.W.2d 906, 913 (Tenn. Ct. App. 1987) (holding that a 75% remittitur destroyed the jury’s verdict), overruled on other grounds by Elliott v. Cobb , 320 S.W.3d 246 (Tenn. 2010).

Consider whether $1,000,000 (or realistically, a net recovery of less than two-thirds of the $1,000,000 after payment of lawyer fees and litigation expenses) would have been adequate and fair compensation for Billy’s physical and emotional pain; suffering; inconvenience; physical impairment; disfigurement; mental anguish; emotional distress; loss of enjoyment of normal activities, benefits, and pleasures of life; and loss of physical health, well-being or bodily functions. Not at all.

We are just beginning to see the unfortunate effects the damages cap statute is having on persons injured after October 1, 2011. Courts are being forced to disregard the damages that juries—after considering the evidence presented at trial and being duly instructed on the law—have awarded to injured parties only because the injuries occurred after October 1, 2011. See, e.g. , Wortham v. Kroger Ltd. P’ship I , No. CT-003147-17, 2019 WL 1958147, at *1 (Tenn. Cir. Ct. Feb. 11, 2019) (Trial Order) (reducing noneconomic damages to injured plaintiff by 71%); Patterson v. STHS Heart, LLC , No. 15C1058, 2019 WL 1291942, at *1 (Tenn. Cir. Ct. Jan. 28, 2019) (Trial Order) (reducing noneconomic damages awarded by the jury by 92% in a wrongful death case); Yebuah v. Ctr. for Urological Treatment, PLC , No. 14C4972, 2018 WL 1901975, at *2 (Tenn. Cir. Ct. Mar. 19, 2018) (Trial Order) (reducing noneconomic damages by 83% in a case in which a medical provider left a foreign object in a patient’s body for eight years after surgery); Reid v. Hunt , No. CT-005475-11, 2016 WL 8650047, at *1 (Tenn. Cir. Ct. Nov. 28, 2016) (Trial Order) (reducing noneconomic damages by 59% where a plaintiff lost both legs after being hit by a drunk driver).

The majority tries to justify its holding with two basic arguments, neither of which holds water. First, the majority points to the General Assembly’s authority to alter common law causes of action and available remedies, citing Lavin v. Jordon , 16 S.W.3d 362 (Tenn. 2000). But Lavin does not apply. In Lavin , the Supreme Court considered the meaning of Tennessee Code Annotated section 37-10-103(a), not its constitutionality. Section 37-10-103(a) was a statutory remedy designed "to alleviate the harshness of the common law rule" that parents could not be held liable for their children’s intentional torts. 16 S.W.3d at 366. The statute allowed lawsuits against negligent parents whose children intentionally caused personal injuries or property damage. Id. The statute in Lavin , therefore, gave tort victims something that had not existed at common law , so the right to trial by jury that accompanies a common law action was never implicated. The damages cap statute neither creates nor abolishes a cause of action, and it does not create a statutory remedy that did not exist at common law. Instead, the statute impermissibly takes away the right to a jury trial constitutionally vested in causes of action, such as negligence, that existed under common law.

The majority suggests that the General Assembly simply exercised its power to alter the common law by enacting the statutory cap. But the damages cap statute did not change the common law negligence cause of action. As long as the negligence cause of action is available, parties injured because of the carelessness of others have the constitutional right to have a jury decide the amount of fair and adequate compensation. The right to a jury trial is a constitutional right that cannot be eliminated by the enactment of a statute.

As the United States Court of Appeals for the Sixth Circuit noted when it held that the cap on punitive damages in Tennessee Code Annotated section 29-39-104 (2012 & Supp. 2019) violated the Tennessee Constitution,⁷ the argument that the General Assembly has the authority to alter the common law "merely begs the question" because that authority has constitutional limits. Lindenberg v. Jackson Nat'l Life Ins. Co. , 912 F.3d 348, 367 (6th Cir. 2018) (citing Lavin , 16 S.W.3d at 368 ). For statutory damages caps, the authority of the General Assembly is constrained by "the constitutional right to submit factual questions for determination by a jury." Id. at 368. The Lindenberg court also rejected the applicability of Lavin because the only issue before the Lavin court was statutory construction, not the constitutionality of caps on damages. Id.

7 The United States Supreme Court denied certiorari, allowing the Sixth Circuit’s ruling to stand. Jackson Nat'l Life Ins. Co. v. Lindenburg , ––– U.S. ––––, 140 S.Ct. 624, 205 L.Ed.2d 385 (2019).

The majority also notes that the General Assembly has the authority to eliminate causes of action that existed under common law, pointing out statutes abolishing the torts of alienation of affection, seduction, and criminal conversation. That’s true. Once a common law tort is abolished, the right to a jury trial for that cause of action ends. But here, the injured party’s claim was based on negligence, and the legislature has not abolished negligence as a cause of action. Thus, the right to trial by jury in a negligence cause of action remains (or should remain) inviolate.

Other jurisdictions hold that the legislature’s authority to modify the common law does not justify taking away the constitutional right to trial by jury. See Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt , 286 Ga. 731, 691 S.E.2d 218, 223 (2010) (stating that although "the Legislature has authority to modify or abrogate the common law," it is not entitled "to abrogate constitutional rights that may inhere in common law causes of action"); Hilburn v. Enerpipe Ltd. , 309 Kan. 1127, 442 P.3d 509, 516 (2019) (quoting Miller v. Johnson , 295 Kan. 636, 289 P.3d 1098, 1140 (2012) (Beier, J., concurring in part and dissenting in part)) (correcting course and overturning its prior ruling that statutory damage caps were constitutional, stating that although the legislature had the power to modify common law, when the people elevated the common law right to a jury trial to "enumerated constitutional status" by ratifying the state constitution, they put that right "beyond everyday legislative meddling"); Watts v. Lester E. Cox Med. Ctrs. , 376 S.W.3d 633, 643 (Mo. 2012) (observing that if constitutional protections existed only until the legislature took them away, their value would be purely theoretical and "would not be rights at all but merely privileges that could be withdrawn"); Sofie v. Fibreboard Corp. , 112 Wash.2d 636, 771 P.2d 711, 720 (1989) ("Because of the constitutional nature of the right to jury trial, ... it simply cannot be removed by legislative action.... [The right to jury trial] remains as long as the cause of action does. Otherwise, [the constitutional jury trial guarantee] means nothing."); see also Dimick v. Schiedt , 293 U.S. 474, 487, 55 S.Ct. 296, 79 L.Ed. 603 (1935) ("To effectuate any change in [the constitutional right to trial by jury] is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental....").

The majority’s second justification for upholding the statutory caps is that the jury still determines the amount of any noneconomic damages sustained by an injured party, and it is only after the jury returns its verdict that the trial court applies the cap and cuts the award. This is smoke and mirrors. A jury’s award of damages that exceeds the damages cap is ignored; the jury might as well have not deliberated and made its award.

The Supreme Courts in Kansas, Alabama, Missouri, Washington, and Georgia, whose constitutions contain the same "inviolate" right to a jury trial provision as in the Tennessee Constitution, have rejected the majority’s analysis and held that the cap on damages is unconstitutional. The Kansas Supreme Court in Hilburn observed that even if a damages cap is found to be "technically or theoretically applied as a matter of law," it intrudes on the amount of the award that the jury has found as an issue of fact. 442 P.3d at 524. This intrusion "substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment. The people deprived the Legislature of that power when they made the right to a jury trial inviolate." Id.

The Alabama Supreme Court also soundly rejected the same hyper-technical argument in Moore v. Mobile Infirmary Ass'n , 592 So. 2d 156, 163 (Ala. 1991), noting that it was irrelevant that the right to empanel a jury still existed—the relevant inquiry was whether the jury’s function was impaired. The Moore court determined that the caps relegated the jury’s verdict to "less than an advisory status," which did not satisfy the constitutional mandate. Id. at 164.

The Missouri Supreme Court rejected the justification that the cap on damages was constitutional when the jury was nominally allowed to determine damages before the judge applied the cap because "a statutory limit on the state constitutional right to trial by jury amounts to an impermissible legislative alteration of the Constitution." Watts , 376 S.W.3d at 642 (citing State ex rel. Diehl v. O'Malley , 95 S.W.3d 82, 92 (Mo. 2003) ; Mo. Alliance for Retired Ams. v. Dep't of Labor and Indust. Relations , 277 S.W.3d 670, 682 (Mo. 2009) ).

The Washington Supreme Court also rejected this distinction in Sofie when the defendants argued that the cap on damages only affected the judgment ultimately entered by the court but did not affect the jury’s finding of fact. 771 P.2d at 721. In other words, the defendants argued that the jury trial right was not violated if the jury was allowed to make a factual finding on damages that would be ignored when the court issued the judgment. Id. The court observed that "[s]uch an argument pays lip service to the form of the jury but robs the institution of its function" and that it was impermissible to bypass a constitutional right "by allowing it to exist in form but letting it have no effect in function." Id. at 721, 724.

Similarly, the Georgia Supreme Court cited longstanding United States Supreme Court precedent in stating that " ‘[t]he right to a jury trial includes the right to have a jury determine the amount of ... damages, if any, awarded to the [plaintiff]. ’ " Nestlehutt , 691 S.E.2d at 222 (second emphasis added) (quoting Feltner v. Columbia Pictures Television, Inc. , 523 U.S. 340, 353, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) ). The Nestlehutt court found that the statutory cap on damages violated the constitutional right to a jury trial because the cap nullified the jury’s findings of fact on damages and undermined the jury’s basic function by requiring the trial court to reduce the jury’s award to comply with the statutory cap. Id. at 223.

Finally, the United States Court of Appeals for the Sixth Circuit in Lindenburg rejected the argument that the damages cap on punitive damages did "not invade the province of the jury" because the jury made the factual finding when it assessed the plaintiff’s damages, and the trial court then reduced the verdict to comply with the law. 912 F.3d at 369. The Lindenburg court characterized this argument as "the parties’ attempt to recast the General Assembly’s invasion of the province of the jury as akin to a regulation of remittitur," which this Court has repeatedly rejected. Id. The Lindenburg court emphasized that "allowing a trial judge, after considering the attendant circumstances and proof in a case, to offer a plaintiff the choice to avoid a new trial is a far cry from legislatively reversing a jury’s assessment of the amount of damages...." Id. at 369–70. It goes without saying that this Court does not make policy—that is for the legislature. Smith v. Gore , 728 S.W.2d 738, 747 (Tenn. 1987) (quoting Cavender v. Hewitt , 145 Tenn. 471, 239 S.W. 767, 768 (1921) ); Estrin v. Moss , 221 Tenn. 657, 430 S.W.2d 345, 350 (1968) (citations omitted). Tennessee Code Annotated section 29-39-102 is unconstitutional without regard to the General Assembly’s purpose in enacting it or the real-life fallout from it. The majority’s decision that Tennessee Code Annotated section 29-39-102 is constitutional tells the citizens of Tennessee that their right to trial by jury and their right to be fairly compensated for noneconomic damages are trumped by the desire to limit the financial exposure of big corporations and insurance companies in civil negligence lawsuits. I will not join in sending this message.

I dissent.

Holly Kirby, J., concurring.

I join fully in the majority’s conclusion that the statutory cap on noneconomic damages enacted by our legislature does not violate either the separation of powers clause or the equal protection clause in the Tennessee Constitution. A much closer question is presented on whether the statutory cap violates the clause in the Tennessee Constitution guaranteeing a right to trial by jury. I agree with the majority’s analysis and conclusion on this issue but write separately to further explain my reasoning.

In her scholarly dissent, Justice Clark explains the significance Tennessee’s founding citizens placed on the right to a jury trial, putting language in the Constitution that makes the right "inviolate," and argues forcefully that the statutory cap on noneconomic damages is "a legislative usurpation of the jury’s constitutionally protected fact-finding function." I agree that our founding citizens considered the right to a jury trial to be of profound importance. However, the plaintiffs in this case have not shown that the constitutional right to a jury trial was intended to protect plaintiffs from substantive legislative enactments limiting noneconomic damages.

I agree with Maryland’s High Court that "the constitutional right to a jury trial is concerned with whether the court or the jury shall decide those issues which are to be resolved in a judicial proceeding." Murphy v. Edmonds , 325 Md. 342, 601 A.2d 102, 116 (1992) (citations omitted). In holding that Maryland’s statutory cap on noneconomic damages did not violate the right to a jury trial in Maryland’s constitution, the Maryland Court in Murphy explained:

If the General Assembly had provided in [the statutory cap on noneconomic damages] that the trial judge, rather than the jury, should determine the amount of noneconomic damages or the amount of noneconomic damages in excess of $350,000, a substantial issue concerning the validity of the statute would be presented. The General Assembly, however, did not attempt to transfer what is traditionally a jury function to the trial judge. Instead, the General Assembly abrogated any cause of action for noneconomic tort damages in excess of $350,000; it removed the issue from the judicial arena. No question exists concerning the role of the judge versus the jury with respect to noneconomic tort damages in excess of $350,000. Therefore, no question concerning the constitutional right to a jury trial is presented.

Murphy , 601 A.2d at 117.

Maryland’s interpretation is borne out by the national discussion among American revolutionaries during the time period in which Tennessee attained Statehood in 1796 and the accompanying adoption of the 1796 Constitution declaring "[t]hat the Right of trial by Jury shall remain inviolate." Tenn. Const. art. XI, § 6 (1796). During this period, "the jury represented the most effective means available to secure the independence and integrity of the judicial branch of the colonial government" and the struggle with British authorities "over jury rights was, in reality, an important aspect of the fight for American independence." Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History , 44 Hastings L.J. 579, 596 (1993) [hereinafter "Landsman, The Civil Jury in America , 44 Hastings L.J. at ___"].¹

The arguments of those advocating a right to jury trial "centered on their belief that the courts should not become the exclusive province of the judges." Id. at 599.² The right to jury trial served not only as a "symbol of democracy" but also a "restraint on judicial power." Id. at 600.

In post-revolutionary America, the conflicts surrounding juries focused on the degree to which judges should be allowed to intrude on the jury’s role. Id. at 597–605 (describing several such conflicts). For example, in some states during this era, juries generally "had the right to decide questions of law as well as fact." Id. at 602.³ This practice had proven useful when juries helped colonists resist unfair laws foisted upon them by British authorities.⁴ Id. at 594–95.

Demand for a more predictable justice system for the new nation eventually "led to the curtailment of the jury’s power, especially with respect to the determination of law." Id. at 605 (citations omitted). States, including Tennessee, settled on a power-sharing arrangement, in both civil and criminal cases, in which "the judges should adjudicate finally upon the whole question of law, and the jury upon the whole question of fact." Sparf v. United States , 156 U.S. 51, 80, 15 S.Ct. 273, 39 L.Ed. 343 (1895) (citing Commonwealth. v. Anthes , 71 Mass. 185, 193 (1855) ); Hopkins v. Nashville, Chattanooga & St. Louis Ry. , 96 Tenn. 409, 34 S.W. 1029, 1031 (1896) (citation omitted) ("The jury are a body of laymen, selected by lot, to ascertain, under the guidance of a judge, the truth, in questions of fact.... Their province is strictly limited to questions of fact, and within that province they are still further restricted to the exclusive consideration of matters that have been proved by evidence in the course of the trial.").

As described by the Maryland Court in Murphy , the genesis of the right to jury trial was establishing the role of juries vis-à-vis judges. Murphy , 601 A.2d at 117. The right to jury trial is not implicated by the legislature’s alteration of the remedies available to litigants.

Respectfully, this distinction explains much of how Justice Lee’s dissent goes astray. The Lee dissent cites case after case on remittitur and additur, which of course involve judicial actions that impact juries’ factual findings. Since the constitutional right to a jury trial concerns directly whether the court or the jury will decide issues in a judicial proceeding, of course there are many cases cautioning that judges’ undue use of remittitur and additur may contravene the Constitution. See, e.g. , Borne v. Celadon Trucking Servs., Inc. , 532 S.W.3d 274, 309 (Tenn. 2017) (citations omitted) ("To avoid contravention of the right to jury trial clauses of the federal and state constitutions, the trial court must obtain the consent of the party against whom the additur or remittitur is to be entered; if that party does not consent, the trial court must order a new trial."); Johnson v. Nunis , 383 S.W.3d 122, 136 (Tenn. Ct. App. 2012) (quoting Smartt v. NHC Healthcare/McMinnville, LLC , No. M2007-02026-COA-R3-CV, 2009 WL 482475, at *21 (Tenn. Ct. App. Mar. 10, 2011) ) ("[T]he determination of such non-pecuniary losses as pain and suffering damages involves a subjective element not present in the determination of ordinary facts. The jury trial guarantee requires that the subjective element involved be that of the community and not of judges. " (emphasis added)).

Appellate decisions indicating that a judge’s undue limitation on a jury’s damage assessment may violate the constitutional right to jury trial are of no use to determine whether the legislature’s enactment does so, even for purpose of analogy. None of these cases elucidate how the constitutional right to jury trial, intended to limit judges’ interference with juries, applies to legislative action limiting remedies available to claimants. Indeed, at least one specifically differentiates between the courts and the legislature in this regard. See Meals v. Ford Motor Co. , No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *23 (Tenn. Ct. App. Apr. 13, 2012) (Kirby, J., dissenting in part) ("In the absence of a basis under the law for [the majority’s] remittitur, I believe that the majority’s decision amounts to a policy determination, limiting the size verdict a jury may award. It may be that our Legislature can appropriately make such a policy decision, but the courts are not authorized to do so."), rev'd sub nom. Meals ex rel. Meals v. Ford Motor Co. , 417 S.W.3d 414 (Tenn. 2013).

Putting "[l]egal analysis aside," the Lee dissent then goes on to castigate Tennessee’s legislature for enacting a statute with which the dissent disagrees based on policy. It cites statistics suitable for a legislative committee hearing and describes in vivid detail the injuries in Meals , cited above, as an example of how the legislature’s policy choice will be unfair to such seriously injured claimants.⁵

This Court has on occasion expressed dislike for particular statutes. See, e.g. Lavin v. Jordon , 16 S.W.3d 362, 369–70 (Tenn. 2000) ("[W]e find that the result compelled by the statute in this case is particularly distasteful in that the plaintiffs ... are denied the opportunity to be made whole for their loss.... Perhaps the General Assembly will revisit the issue of whether the statutory cap on damages contained in section 37-10-102 provides an adequate and sufficient remedy...."). Importantly, this is normally done to demonstrate that this Court will uphold statutes despite displeasure with the legislature’s policy choice. It reinforces the principle of judicial restraint, demonstrating that the Court adheres to the longstanding precept that "[T]he wisdom, or unwisdom of a statute lies solely with the Legislature and is not the concern of the Court." Hoover Motor Exp. Co. v. Hammer , 201 Tenn. 270, 298 S.W.2d 724, 726 (1957) (citing Davidson Cnty. v. Rogers , 184 Tenn. (20 Beeler), 327, 331–332, 198 S.W.2d 812 (1947) ).

Unfortunately, the Lee dissent does the converse. In a case in which this Court is asked to render one of the most consequential decisions any court can make—hold a statute unconstitutional—the Lee dissent first strongly advocates striking down Tennessee Code Annotated section 29-39-102 as unconstitutional, and then describes at length why the dissent disagrees with the legislature’s policy decision to enact it in the first place. This sequence could give a misimpression that the two points are linked.

This Court has stated:

A challenge to a statute’s constitutionality does not give the Court a license to second-guess the General Assembly’s policy judgments.... It is not our prerogative to inquire into the motives of the General Assembly. Nor may we review the statute’s wisdom, expediency, reasonableness, or desirability. These are matters entrusted to the electorate, not the courts.

Waters v. Farr , 291 S.W.3d 873, 917–18 (Tenn. 2009) (citations and footnotes omitted). Admittedly, this can sometimes be a hard principle to maintain. But maintain it we must.

For all of the reasons discussed herein, I concur in the majority opinion.

2000-2001 $209,284 2001-2002 $306,358 2002-2003 $119,829 2003-2004 $140,517 2004-2005 $166,458 2005-2006 $503,954 2006-2007 $182,745 2007-2008 $242,803 2008-2009 $296,519 2009-2010 $400,359 2010-2011 $168,691 2011-2012 $628,985 2012-2013 $191,745 2013-2014 $349,406 2014-2015 $404,323 2015-2016 $253,734 2016-2017 $408,963 2017-2018 $493,289 in healthcare liability cases and $98,350 in personal injury and wrongful death cases

Annual Report of the Tennessee Judiciary, Fiscal Years 2000-2001 through 2017-2018.