Gourleyv.Nebraska Methodist Health Sys

Supreme Court of NebraskaMay 16, 2003
265 Neb. 918 (Neb. 2003)
265 Neb. 918663 N.W.2d 43

No. S-00-679.

Filed May 16, 2003.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

4. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below.

5. Statutes: Appeal and Error. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

6. Juries. The "any majority" rule applies to Neb. Rev. Stat. § 25-1125 (Reissue 1995); a juror is free to deliberate and vote on each issue presented to the jury, even if the juror has dissented from the majority on a previous issue.

7. Expert Witnesses. An expert's opinion need not be expressed with reasonable certainty within the expert's field of expertise, but may be expressed with reasonable probability.

8. ____. An expert's opinion must be sufficiently definite and relevant to provide a basis for the fact finder's determination of an issue or question.

9. ____. Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.

10. ____. When an expert's opinion is mere speculation or conjecture, it is irrelevant.

11. Trial: Expert Witnesses. Whether an expert's opinion is too speculative to be admitted is a question for the trial court's discretion.

12. New Trial: Appeal and Error. Only an error which is prejudicial to the rights of the unsuccessful party justifies a new trial.

13. Verdicts: Appeal and Error. In the absence of prejudicial error, the successful party, having sustained the burden and expense of trial, may keep the benefit of the verdict.

14. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence which unfairly prejudices a substantial right of the complaining litigant constitutes reversible error.

15. Jury Trials: Evidence: Appeal and Error. When it appears from the record that evidence wrongfully admitted in a jury trial did not affect the result of the trial unfavorably to the party against whom it was admitted, its reception is not prejudicial error.

16. Trial: Evidence: Appeal and Error. One may not on appeal assert a different ground for excluding evidence than was urged in the objection made to the trial court.

17. Trial: Appeal and Error. If a defendant does not offer an objection and does not expressly adopt a codefendant's objection, the matter is not preserved for him or her on appeal.

18. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

19. ____: ____: ____. Out-of-court statements, if not offered for the purpose of proving the truth of the facts asserted, are not hearsay.

20. Constitutional Law: Courts: Statutes. When specific constitutional questions are presented, courts will not search for constitutional authority that was not raised and argued by the parties to overthrow a legislative enactment.

21. Constitutional Law: Statutes: Special Legislation. The focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants "special favors" to a specific class.

22. ____: ____: ____. A legislative act constitutes special legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates a permanently closed class.

23. Constitutional Law: Special Legislation: Public Policy. A legislative classification, in order to be valid, must be based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to objects to be classified.

24. Special Legislation. Classifications for the purpose of legislation must be real and not illusive; they cannot be based on distinctions without a substantial difference.

25. Constitutional Law: Special Legislation. Classification for the purpose of legislation is proper if the special class has some reasonable distinction from other subjects of a like general character, which distinction bears some reasonable relation to the legitimate objectives and purposes of the legislation.

26. Constitutional Law: Statutes: Presumptions. Statutes are afforded a presumption of constitutionality, and the unconstitutionality of a statute must be clearly established before it will be declared void.

27. Constitutional Law: Legislature: Presumptions. The Nebraska Legislature is presumed to have acted within its constitutional power despite that, in practice, its laws may result in some inequality.

28. Statutes: Courts: Legislature: Intent. Courts will not reexamine independently the factual basis on which the Legislature justified a statute, nor will a court independently review the wisdom of the statute.

29. Statutes: Courts: Appeal and Error. An appellate court does not sit as a superlegislature to review the wisdom of legislative acts.

30. Constitutional Law: Statutes: Legislature: Intent. All reasonable intendments must be indulged to support the constitutionality of legislative acts, including classifications adopted by the Legislature.

31. Special Legislation: Legislature: Public Policy. If the Legislature had any evidence to justify its reasons for passing an act, then it is not special legislation if the class is based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation concerning the objects to be classified.

32. Special Legislation: Legislature: Intent. The determination whether an act of the Legislature is special legislation is reached by considering what the Legislature could have found at the time the act was passed.

33. Statutes: Legislature: Courts. It is up to the Legislature and not a court to decide whether its legislation continues to meet the purposes for which it was originally enacted.

34. Special Legislation: Statutes. The cap on damages in Neb. Rev. Stat. § 44-2825(1) (Reissue 1998) does not violate principles prohibiting special legislation.

35. Equal Protection: Statutes: Proof. The party attacking a statute as violative of equal protection has the burden to prove that the classification violates the Equal Protection Clause.

36. Equal Protection. The Equal Protection Clause does not forbid classifications; it simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.

37. ____. In any equal protection challenge to a statute, the degree of judicial scrutiny to which the statute is to be subjected may be dispositive.

38. Constitutional Law: Statutes. If a legislative classification involves either a suspect class or a fundamental right, courts will analyze the statute with strict scrutiny.

39. Constitutional Law: Statutes: Legislature: Intent. Under the strict scrutiny test, strict accordance must exist between the classification and the statute's purpose. The result the Legislature seeks to effectuate must be a compelling state interest, and the means employed in the statute must be such that no less restrictive alternative exists.

40. ____: ____: ____: ____. If a statute involves economic or social legislation not implicating a fundamental right or suspect class, courts will ask only whether a rational relationship exists between a legitimate state interest and the statutory means selected by the Legislature to accomplish that end. Upon a showing that such a rational relationship exists, courts will uphold the legislation.

41. Constitutional Law: Statutes: Appeal and Error. Some legislative classifications, such as those based on gender, are reviewed under an intermediate level of scrutiny.

42. Constitutional Law: Damages. The rational basis test is applied to review the damages cap in Neb. Rev. Stat. § 44-2825(1) (Reissue 1998).

43. Equal Protection. Under the rational basis test, the Equal Protection Clause is satisfied as long as there is (1) a plausible policy reason for the classification, (2) the legislative facts on which the classification is apparently based may rationally have been considered to be true by the governmental decisionmaker, and (3) the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.

44. ____. The rational relationship standard is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.

45. Constitutional Law: Statutes. When determining whether a rational basis exists for a legislative classification, courts look to see if any state of facts can be conceived to reasonably justify the disparate treatment which results.

46. Equal Protection: Statutes. In economics and social welfare, a statute does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.

47. Constitutional Law: Statutes. The fact that other legislative classification schemes could have been selected does not mean that the scheme chosen is constitutionally infirm.

48. Constitutional Law: Courts: Legislature: Statutes. As long as the classification scheme chosen by the Legislature rationally advances a reasonable and identifiable governmental objective, a court must disregard the existence of other methods that other individuals might have preferred.

49. Equal Protection: Courts: Legislature: Intent. Social and economic measures run afoul of the Equal Protection Clause only when the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that a court can only conclude that the Legislature's actions were irrational.

50. Equal Protection: Statutes: Damages. The cap on damages in Neb. Rev. Stat. § 44-2825 (Reissue 1998) satisfies principles of equal protection.

51. Legislature. The Legislature is free to create and abolish rights so long as no vested right is disturbed.

52. Constitutional Law. No one has a vested interest in any rule of the common law or a vested right in any particular remedy.

53. ____. If a common-law right is taken away, nothing need be given in return.

54. Constitutional Law: Statutes: Damages. The cap on damages in Neb. Rev. Stat. § 44-2825(1) (Reissue 1998) does not violate Neb. Const. art. I, § 13.

55. Constitutional Law: Jury Trials. The purpose of Neb. Const. art. I, § 6, is to preserve the right to a jury trial as it existed at common law and under the statutes in force when the constitution was adopted.

56. Actions: Juries. The remedy available in an action is a question of law, not fact, and is not a matter to be decided by the jury.

57. Constitutional Law: Statutes: Damages: Jury Trials. The cap on damages in Neb. Rev. Stat. § 44-2825 (Reissue 1998) does not violate the right to a jury trial.

58. Constitutional Law: Statutes: Damages: Property. The cap on damages in Neb. Rev. Stat. § 44-2825 (Reissue 1998) does not violate Neb. Const. art. I, § 21.

59. Constitutional Law: Statutes: Damages: Remittitur. The cap on damages in Neb. Rev. Stat. § 44-2825 (Reissue 1998) does not act as a legislative remittitur or otherwise violate principles of separation of powers.

60. Rules of the Supreme Court: Appeal and Error. A cross-appeal must be properly designated under Neb. Ct. R. of Prac. 9D(4) (rev. 2000) if affirmative relief is to be obtained.

Appeal from the District Court for Douglas County: MICHAEL McGILL, Judge. Affirmed in part, and in part reversed.

William M. Lamson, Jr., Raymond E. Walden, and William R. Settles, of Lamson, Dugan Murray, L.L.P., and John R. Klein for appellants.

Daniel B. Cullan and Paul W. Madgett, of Cullan Cullan, and John Vail for appellees Colin M. Gourley et al.

James A. Snowden and Andrew B. Koszewski, of Wolfe, Snowden, Hurd, Luers Ahl, for appellee Andrew Robertson, M.D.

Thomas J. Shomaker and Mary M. Schott, of Sodoro, Daly Sodoro, for appellee Nebraska Methodist Health System, Inc.

Charles M. Pallesen, Jr., of Cline, Williams, Wright, Johnson Oldfather, L.L.P., for amici curiae Nebraska Medical Association and Greater Nebraska Medical Coalition.

William F. Austin, of Erickson Sederstrom, P.C., for amici curiae Nebraska Association of Hospitals and Health Systems and Cherry County Hospital.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, and McCORMACK, JJ., and HANNON and CARLSON, Judges.


Neb. Rev. Stat. § 44-2825(1) (Reissue 1998) of the Nebraska Hospital-Medical Liability Act limits recoverable damages in medical malpractice actions to $1,250,000. The district court determined that the damages limitation was unconstitutional because it denied the appellees Colin M. Gourley and his parents, Michael J. Gourley and Lisa A. Gourley, equal protection of the law and a right to a jury trial. The appellants, Michelle S. Knolla, M.D., and Obstetricians-Gynecologists, P.C., doing business as the OB/GYN Group, contend that (1) the district court erred in determining that § 44-2825(1) was unconstitutional, (2) the jury verdict was invalid, and (3) the court erred in admitting hearsay and irrelevant evidence.

I. NATURE OF CASE

The Gourleys brought this medical malpractice action against Nebraska Methodist Health System, Inc., and Nebraska Methodist Hospital (collectively Methodist Hospital); Knolla; Marvin L. Dietrich, M.D.; Andrew Robertson, M.D.; Pauline R. Sleder, M.D.; OB/GYN Group; and Perinatal Associates, P.C. The Gourleys sought damages for injuries sustained by Colin because of the alleged negligent care Lisa received during her pregnancy. A jury awarded the Gourleys $5,625,000, and the district court entered judgment for the Gourleys in that amount and against Knolla and the OB/GYN Group.

II. BACKGROUND

During her pregnancy, Lisa received prenatal care from Knolla, an obstetrician and gynecologist employed with the OB/GYN Group. On November 15, 1993, in the 36th week of her pregnancy, Lisa informed Knolla that she noticed less movement from the twin fetuses she was carrying. Knolla assured Lisa that this was common and that everything appeared to be normal. Two days later, Lisa called the OB/GYN Group to again report a lack of fetal movement and was told to come to the office to meet with Dietrich. Dietrich's examination revealed that one of the fetuses suffered from bradycardia, a decrease in the fetus' heart rate, and a lack of amniotic fluid. Dietrich instructed Lisa to proceed to Methodist Hospital for examination by Robertson, who was employed by Perinatal Associates.

During his examination, Robertson determined that an immediate cesarean section should be performed. Shortly thereafter, Colin and his twin brother, Connor, were delivered. Colin was born with brain damage and currently suffers from cerebral palsy and significant physical, cognitive, and behavioral difficulties.

The Gourleys filed suit alleging that Knolla and the OB/GYN Group failed to monitor Lisa and Colin while they were under their care. At the close of the Gourleys' case in chief, Methodist Hospital moved for a directed verdict. The court granted the motion and dismissed Methodist Hospital.

The jury found Knolla and the OB/GYN Group to be 60 percent and 40 percent negligent, respectively. The jury awarded the Gourleys $5,625,000. The Gourleys moved for a new trial, arguing that the court erred in granting a directed verdict to Methodist Hospital. The jury found for Dietrich, Robertson, Sleder, and Perinatal Associates, and the court later dismissed them from the case.

The district court reduced the jury's award and entered judgment for the Gourleys and against Knolla and the OB/GYN Group, jointly and severally, in the amount of $1,250,000. The court found that § 44-2825(1) was constitutional.

The Gourleys filed a second motion for new trial, contending that the cap on damages imposed by § 44-2825 is unconstitutional because it violates their rights to (1) equal protection; (2) a jury trial; (3) an open court and full remedy; (4) substantive due process; and (5) life, liberty, and the pursuit of happiness. The Gourleys also alleged that the Legislature exceeded its power when imposing the cap and that the cap was unconstitutional special legislation.

Knolla and the OB/GYN Group also moved for a new trial because of 16 alleged errors, among which were that the verdict was not agreed to by five-sixths of the jury as required by Neb. Rev. Stat. § 25-1125 (Reissue 1995) and that the court erred in receiving certain exhibits and testimony into evidence.

The court (1) overruled the Gourleys' motion for new trial on Methodist Hospital's directed verdict and (2) overruled Knolla and the OB/GYN Group's motion for new trial, specifically rejecting their argument that the jury verdict was invalid. Knolla and the OB/GYN Group's other grounds for new trial were also overruled without explanation.

The court reversed its decision and concluded that the cap on damages in § 44-2825(1) violated equal protection under Neb. Const. art. I, § 3. The court also concluded that § 44-2825(1) violated the Gourleys' right to a jury trial under Neb. Const. art. I, § 6. The court found that § 44-2825(1) was severable from the rest of the act. The court vacated its previous order and entered judgment for the Gourleys and against Knolla and the OB/GYN Group, jointly and severally, in the full amount of $5,625,000. Knolla and the OB/GYN Group appeal.

III. ASSIGNMENTS OF ERROR

Knolla and the OB/GYN Group assign that the district court erred in (1) denying their motion for new trial when the jury returned an invalid verdict; (2) admitting unsupported and hearsay evidence in the form of a "Life Care Plan for Colin Gourley" by Terry Winkler, M.D.; (3) admitting a book, "What To Expect When You're Expecting," into evidence which contained hearsay, was itself hearsay, and was likely to confuse the jury; (4) overruling their motion for new trial; (5) declaring unconstitutional the damages cap of the Nebraska Hospital-Medical Liability Act, § 44-2825, and in reversing its order reducing the amount of the judgment to the statutory maximum of $1,250,000; and (6) applying its ruling on the constitutionality of the act retrospectively.

The Gourleys purported to file a cross-appeal, assigning that the court erred in granting Methodist Hospital's motion for directed verdict.

IV. STANDARD OF REVIEW

[1,2] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Green Tree Fin. Servicing v. Sutton, 264 Neb. 533, 650 N.W.2d 228 (2002). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838 (2002).

Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Newman v. Thomas, 264 Neb. 801, 652 N.W.2d 565 (2002).

Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the court below. Hass v. Neth, ante p. 321, 657 N.W.2d 11 (2003).

V. ANALYSIS 1. JURY VERDICT

Knolla and the OB/GYN Group argue that they are entitled to a new trial because the verdict was not agreed to by five-sixths of the jury as required by § 25-1125.

Section 25-1125 provides that "[i]n all trials in civil actions in any court in this state, a verdict shall be rendered if five-sixths or more of the members of the jury concur therein, and such verdict shall have the same force and effect as though agreed to by all members of the jury. . . ." Here, the jury signed and returned two verdict forms. We construe verdict form No. 2 as requiring the jury to determine which defendants were liable and verdict form No. 1 as requiring the jury to decide the amount of damages and how to apportion the defendants' negligence. Although 10 jurors signed both verdict forms, the forms were not signed by the same 10 jurors. This means that a juror who disagreed with the determination of who was liable provided the 10th vote necessary to decide the amount of damages and how to apportion the defendants' negligence. Thus, we must decide if a verdict is valid under § 25-1125 if the same five-sixths of the jury fails to agree on each essential issue embodied in that verdict.

In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Newman v. Thomas, supra. Nothing in the plain language of § 25-1125 indicates whether the same five-sixths of a jury must agree on each essential issue embodied in its verdict. Several jurisdictions, however, have addressed the issue within the context of similar statutory and constitutional provisions, and we turn to these cases for guidance in construing § 25-1125.

Other jurisdictions have answered the question in one of two ways. See David A. Lombardero, Do Special Verdicts Improve the Structure of Jury Decision-Making?, 36 Jurimetrics J. 275 (1996). One group has adopted the "same juror" rule. See, e.g., Stacy v. Truman Medical Center, 836 S.W.2d 911 (Mo. 1992); O'Connell v. Chesapeake Ohio RR., 58 Ohio St. 3d 226, 569 N.E.2d 889 (1991); Klanseck v. Anderson Sales, 136 Mich. App. 75, 356 N.W.2d 275 (1984); Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976); Clark v. Strain et al, 212 Or. 357, 319 P.2d 940 (1958); Fleischhacker v. State Farm Mut. Automobile Ins. Co., 274 Wis. 215, 79 N.W.2d 817 (1956). Under this rule, the same fractional group of jurors must concur on each issue necessary to support the ultimate verdict. See H. William Walker, Jr., Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash. Lee L. Rev. 360 (1970). If we adopt the same juror rule, the verdict would be invalid because the 10 jurors who determined which defendants were liable were not the same 10 jurors who apportioned the defendants' negligence and determined the amount of damages.

Other courts have rejected the "same juror" rule in favor of the "any majority" rule. See, e.g., Hendrix v. Docusort, Inc., 18 Kan. App. 2d 806, 860 P.2d 62 (1993); Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503 (Ky. 1989); Williams v. James, 113 N.J. 619, 552 A.2d 153 (1989); Schabe v. Hampton Bays, 103 A.D.2d 418, 480 N.Y.S.2d 328 (1984); Jaurez v. Superior Court of Los Angeles Cty., 31 Cal. 3d 759, 647 P.2d 128, 183 Cal. Rptr. 852 (1982); Tillman v. Thomas, 99 Idaho 569, 585 P.2d 1280 (1978); McChristian v. Hooten, 245 Ark. 1045, 436 S.W.2d 844 (1969); Ward v. Weekes, 107 N.J. Super. 351, 258 A.2d 379 (1969). Under this rule, all jurors are free to deliberate and vote on every issue "regardless of their votes on other issues. . . . Plaintiff prevails if the specified number of jurors find in her favor on each element." Lombardero, supra, at 298. If we adopt the any majority rule, the verdict would be valid, because at least 10 jurors found for the Gourleys on each element necessary to support a verdict in their favor.

Although there are persuasive arguments for both rules, we conclude that the "any majority" rule better serves the purposes underlying § 25-1125. See Volquardson v. Hartford Ins. Co., 264 Neb. 337, 352, 647 N.W.2d 599, 611 (2002) ("[w]hen construing a statute, an appellate court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it").

The movement to abolish the unanimous verdict requirement was meant to improve judicial efficiency while preserving fundamental fairness in the jury system. As one court has explained: "Nonunanimous verdicts decrease the number of mistrials and retrials and thus reduce court congestion, delay and the cost of maintaining the judicial system. They also reduce the number of unjust verdicts deriving from juror obstinacy or dishonesty and discourage compromise verdicts." Schabe v. Hampton Bays, 103 A.D.2d at 423, 480 N.Y.S.2d at 333. See, also, Ward v. Weekes, supra.

Courts have recognized that the "mechanistic" same juror rule does less to improve judicial efficiency than the any majority rule. Tillman v. Thomas, supra. Under the same juror rule, the same fractional group of jurors must agree on each issue necessary to support the ultimate verdict. For example, in a typical personal injury case, only the jurors in the five-sixths majority that agreed that a defendant was negligent could vote on the question of damages. The votes of any jurors who dissented on the negligence question could not be used to reach a five-sixths majority on the damages question. As a result, if the 10 jurors who agreed on the negligence question could not agree on the question of damages, the result would be a hung jury.

But under the any majority rule, a juror who dissents on one issue is allowed to vote on subsequent issues. A juror who disagreed on the question of negligence would still be eligible to provide the vote needed to reach a five-sixths majority on the question of damages. This flexibility reduces the risk of hung juries, as well as all of the associated costs and delays, thus advancing the policy of judicial efficiency underlying § 25-1125 better than the same juror rule. See, Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503 (Ky. 1989); Williams v. James, 113 N.J. 619, 552 A.2d 153 (1989); Schabe v. Hampton Bays, 103 A.D.2d 418, 480 N.Y.S.2d 328 (1984); Jaurez v. Superior Court of Los Angeles Cty., 31 Cal. 3d 759, 647 P.2d 128, 183 Cal. Rptr. 852 (1982).

Those courts that have adopted the same juror rule have generally conceded that it will lead to less judicial efficiency than the any majority rule. They have argued, however, that two other principles are more important than judicial efficiency, unanimity of the statutorily required minimum number of jurors and consistency in individual juror voting. David A. Lombardero, Do Special Verdicts Improve the Structure of Jury Decision-Making?, 36 Jurimetrics J. 275 (1996). We are not persuaded by either argument.

Those courts that have relied upon unanimity in adopting the same juror rule see the verdict as a "non-fragmentable totality," representing "one ultimate finding on the basis of several issues." H. William Walker, Jr., Comment, Vote Distribution in Non-Unanimous Jury Verdicts, 27 Wash. Lee L. Rev. 360, 363-64 (1970). Thus, the verdict cannot be "`the product of mixed thoughts.'" Clark v. Strain et al, 212 Or. 357, 364, 319 P.2d 940, 943 (1958) (quoting The State v. Bybee, 17 Kan. 462 (1877)). Instead, it must represent the unified thinking of the statutorily required minimum number of jurors.

This reasoning is misplaced. "The requirement of the same jurors agreeing, which is a necessary characteristic of a unanimous verdict, needs [sic] not remain when there has been a change permitting less than unanimity to be the jury's verdict." Naumburg v. Wagner, 81 N.M. 242, 245, 465 P.2d 521, 524 (N.M.App. 1970). We see no reason to "maintain the semblance of unanimity after the requirement of unanimity ceases to exist." Id. See, also, Williams v. James, supra.

More recent decisions adopting the same juror rule have relied primarily upon the principle of consistency. See, O'Connell v. Chesapeake Ohio RR., 58 Ohio St. 3d 226, 569 N.E.2d 889 (1991); Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976). These courts contend that inconsistent votes on related issues "indicate that the jurors disagree or do not comprehend." Lombardero, supra, at 301. They also question the ability of jurors in the dissenting minority on one issue "to cast aside their opinions and vote on subsequent issues as if they agreed with the majority." Id. Courts have been particularly concerned about the ability of a juror who dissented on the question of who was negligent to fairly participate on the question of how to apportion negligence. See, e.g., O'Connell v. Chesapeake Ohio RR., 58 Ohio St. 3d at 235, 569 N.E.2d at 897 ("where a juror finds that a plaintiff has not acted in a causally negligent manner, it is incomprehensible to then suggest that this juror may apportion some degree of fault to the plaintiff and thereby diminish or destroy the injured party's recovery").

We are not persuaded that the concerns over consistency are enough to reject the benefits of the any majority rule. We have more faith in the mental capabilities and ethical integrity of jurors than the courts that have adopted this line of reasoning. We refuse to presume that a juror who dissents on one issue will violate his or her oath and attempt to subvert the deliberations on a subsequent issue, even if the issues are integrally related. See Ward v. Weekes, 107 N.J. Super. 351, 258 A.2d 379 (1969). In our view, it is more likely that a juror who is outvoted on one issue can "`accept the outcome and continue to deliberate with other jurors honestly and conscientiously to decide the remaining issues.'" Jaurez v. Superior Court of Los Angeles Cty., 31 Cal. 3d 759, 768, 647 P.2d 128, 133, 183 Cal. Rptr. 852, 857 (1982) (quoting Ward v. Weekes, supra).

Moreover, the same juror rule sacrifices a principle of the jury system that is more fundamental than either unanimity or consistency. That principle is that "all members of a jury . . . partake meaningfully in [the] disposition of the case." Schabe v. Hampton Bays, 103 A.D.2d 418, 424, 480 N.Y.S.2d 328, 333 (1984). The same juror rule reduces the ability of a juror who dissents on one issue to meaningfully participate in the discussion of the remaining issues. The dissenter remains free to express his or her opinions on the remaining issues, but with the power to persuade divorced from the power to vote, the dissenter's influence is reduced to "a state of practical impotence." Schabe v. Hampton Bays, 103 A.D.2d at 424, 480 N.Y.S.2d at 333.

By contrast, the any majority rule preserves the principle of full participation in the deliberative process. A juror who dissents on one issue retains the ability to vote on subsequent issues. Thus, the power to vote remains united with the power to debate and the dissenter can deliberate fully and effectively on each issue presented to the jury.

Accordingly, because we believe that it furthers judicial efficiency while protecting fundamental fairness better than the same juror rule, we adopt the any majority rule. A juror is free to deliberate and vote on each issue presented to the jury, even if the juror has dissented from the majority on a previous issue. Even though a juror, who disagreed on the question of who was liable, provided the 10th vote necessary on the damages and apportionment questions, the verdict was valid.

2. LIFE CARE PLAN

At trial, the Gourleys called Winkler, a specialist in physical medicine and rehabilitation, to testify about the life care plan that he had developed for Colin. A life care plan is a comprehensive document which includes the items of service, medications, doctor's visits, and equipment a disabled person will need over the course of his or her life, as well as the costs associated with each of these items. During the direct examination of Winkler, each page of the life care plan was displayed to the jury and received into evidence.

As we understand their brief, Knolla and the OB/GYN Group make two complaints about Winkler's testimony and the life care plan. First, they claim that the life care plan and some of Winkler's testimony contained opinions that were too uncertain to be relevant. Second, they argue that the life care plan was inadmissible hearsay.

(a) Relevance

During direct examination, Winkler admitted that for several of the items that he included in Colin's life care plan, he could not state to a reasonable degree of medical certainty that Colin would require that item in the future. He explained that he included these items in the life care plan "to provide information to everybody involved just to help make decisions."

Knolla and the OB/GYN Group argue that the court erred in allowing Winkler to testify about those items for which he was not reasonably certain Colin would need in the future. Similarly, they argue that the life care plan should not have been admitted into evidence because it contained information about these items. We agree, but conclude that the error was harmless.

[7-11] An expert's opinion need not be expressed with reasonable certainty within the expert's field of expertise, but may be expressed with reasonable probability. The expert's opinion must be sufficiently definite and relevant to provide a basis for the fact finder's determination of an issue or question. Renne v. Moser, 241 Neb. 623, 490 N.W.2d 193 (1992). Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. Franksen v. Crossroads Joint Venture, 257 Neb. 597, 599 N.W.2d 603 (1999). When an expert's opinion is mere speculation or conjecture, it is irrelevant. See Snyder v. Contemporary Obstetrics Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000). Whether an expert's opinion is too speculative to be admitted is a question for the trial court's discretion. See, id.; Anderson/Couvillon v. Nebraska Dept. of Soc. Servs., 253 Neb. 813, 572 N.W.2d 362 (1998).

Winkler admitted that he included information in the life care plan about items for which he was not reasonably certain Colin would need in the future. The context of his testimony makes clear that he was guessing that Colin might possibly need these items. An expert opinion which is merely speculation or conjecture is inadmissible. Here, the court erred by allowing Winkler to testify about the items for which he admitted that he was not reasonably certain Colin would need in the future. Similarly, information about these items should have been redacted from the life care plan before it was accepted into evidence.

[12-15] That does not, however, end the inquiry. Not every error justifies a new trial; only an error which is prejudicial to the rights of the unsuccessful party does so. Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 547 N.W.2d 484 (1996). In the absence of such an error, the successful party, having sustained the burden and expense of trial, may keep the benefit of the verdict. Id. In a civil case, the admission or exclusion of evidence which unfairly prejudices a substantial right of the complaining litigant constitutes reversible error. State v. Whitlock, 262 Neb. 615, 634 N.W.2d 480 (2001). When it appears from the record that evidence wrongfully admitted in a jury trial did not affect the result of the trial unfavorably to the party against whom it was admitted, its reception is not prejudicial error. See Westgate Rec. Assn. v. Papio-Missouri River NRD, supra.

Here, the record shows that although information about items which Colin was not reasonably certain to need in the future was wrongfully admitted into evidence, the receipt did not affect the result of the trial. Instead, the record shows that the jury knew which items Winkler was not reasonably certain Colin would need; that the court instructed the jury to consider only items Colin was reasonably certain to need; and that consistent with the instruction, the jury excluded those items in making its award.

Winkler treated items differently in the life care plan if he was not reasonably certain Colin would need them, and he explained these differences to the jury.

The first part of the life care plan is a 28-page spreadsheet. It provided information about each item that Winkler believed Colin would need or might need because of his disability. The items are listed in horizontal rows. Spaces appear in each row that allowed Winkler to provide eight types of information about each item as follows: (1) when Colin would need the item, (2) how many years Colin would need it, (3) how often Colin would need it, (4) the purpose of the item, (5) the likely vendor of the item, (6) a range of per-unit prices for the item, (7) a range of per-year prices for the item, (8) and any additional comments that Winkler believed necessary to explain the item. Winkler testified that if he was reasonably certain that Colin would need an item in the future, he provided an estimate in the space for the range of per-year prices, but that if he was not reasonably certain that Colin would need the item, he left that space blank.

The second portion of the life care plan was designed to demonstrate how much an item would cost over the course of Colin's life. Every item listed in the first portion of the life care plan was also listed in the second. But, as he explained to the jury, Winkler included only an estimate as to how much an item would cost over the course of Colin's life if he was reasonably certain Colin would need the item in the future. If he was not reasonably certain Colin would need the item, he put zero for the cost of the item. At the end of the second section of the life care plan, Winkler provided a total sum of $12,461,500.22 for all of the items in the life care plan which he was reasonably certain Colin would need.

The jury was aware of exactly which items in the life care plan Winkler was not reasonably certain Colin would need in the future. Moreover, at the end of the trial, the jury was told that it could not consider such information. The court instructed the jury that it could award the "reasonable value of medical, hospital, nursing, therapy, rehabilitation, medical equipment and similar care and supplies reasonably needed by and actually provided to the Plaintiffs and reasonably certain to be provided in the future." (Emphasis supplied.)

It is clear that the jury followed the instruction and excluded from its final award those items which Winkler was not reasonably certain Colin would need. As noted, Winkler estimated the total cost to be $12,461,500.22 over the course of Colin's life for items which he was reasonably certain Colin would need. Later in the trial, an economist testified that the present value of that amount, depending on which discount factor was used, was a minimum of $5,943,111. But the jury awarded only $5 million in damages. Thus, the jury did not even award damages for each of the items Winkler had testified that he was reasonably certain Colin would need, let alone the items for which Winkler was not reasonably certain Colin would need. We conclude that although the court erroneously admitted irrelevant information about items which Winkler was not reasonably certain Colin would require, the error was harmless because it did not unfavorably affect the result of the trial.

(b) Hearsay

At trial, the Gourleys displayed each page of the life care plan to the jury during Winkler's testimony. When his testimony was over, the court received the life care plan into evidence. As we understand their brief, Knolla and the OB/GYN Group argue that the life care plan was hearsay. They claim that as a result, the Gourleys should not have been allowed to show the life care plan to the jury during Winkler's testimony and that the court should not have received the life care plan into evidence. See State v. Whitlock, 262 Neb. 615, 634 N.W.2d 480 (2001) (holding expert's written appraisal inadmissible as hearsay which would unfairly emphasize his trial testimony).

Knolla and the OB/GYN Group, however, failed to preserve a hearsay objection to the life care plan. One may not on appeal assert a different ground for excluding evidence than was urged in the objection made to the trial court. Benzel v. Keller Indus., 253 Neb. 20, 567 N.W.2d 552 (1997). The only grounds upon which Knolla and the OB/GYN Group objected to the life care plan were foundation, relevancy, speculation, and conjecture; they did not object to the life care plan because it was hearsay.

We note that one of their codefendants objected because the life care plan was a "narrative memorialization of testimony in a written form of the type that is normally not received." While this might be construed as a hearsay objection, Knolla and the OB/GYN Group did not join the objection. If a defendant does not offer an objection and does not expressly adopt a codefendant's objection, the matter is not preserved for him or her on appeal. See, Seaside Resorts v. Club Car, 308 S.C. 47, 416 S.E.2d 655 (S.C.App. 1992); Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983); Thomas v. Bank of Springfield, 631 S.W.2d 346 (Mo.App. 1982); Wolfe v. East Texas Seed Co., 583 S.W.2d 481 (Tex.Civ.App. 1979). We will not consider the argument that the life care plan was hearsay.

3. "WHAT TO EXPECT WHEN YOU'RE EXPECTING"

Knolla and the OB/GYN Group assert that the district court erred in receiving into evidence the book entitled "What to Expect When You're Expecting" (hereinafter the book). During the cross-examination of Knolla, the Gourleys marked the book as an exhibit and asked Knolla several questions about it. The Gourleys then offered the book into evidence. Knolla objected on the grounds that the book was hearsay and that it was irrelevant. In response, the Gourleys' counsel stated that the book was being offered only to show what information the OB/GYN Group would have provided to its patients in 1993. The court overruled the objections and received the book into evidence.

[18,19] Initially, Knolla and the OB/GYN Group claim that the book contained inadmissible hearsay statements. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Neb. Rev. Stat. § 27-801(3) (Reissue 1995). Out-of-court statements, if not offered for the purpose of proving the truth of the facts asserted, are not hearsay. Wiekhorst Bros. Excav. Equip. v. Ludewig, 247 Neb. 547, 529 N.W.2d 33 (1995). Here, the book was not offered for the truth of its contents, but instead was offered for the limited purpose of showing what information the OB/GYN Group would have provided to its patients in 1993. The book was not hearsay.

Knolla and the OB/GYN Group also argue that the court should have excluded the book under Neb. Rev. Stat. § 27-403 (Reissue 1995) because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. But, "one may not on appeal assert a different ground for excluding evidence than was urged in the objection made to the trial court." Benzel v. Keller Indus., Inc., 253 Neb. 20, 26, 567 N.W.2d 552, 557 (1997). The only objections Knolla and the OB/GYN Group made at trial about the book were hearsay and relevance, the first of which is without merit for the reasons set out above and the second of which has not been raised on appeal. We will not consider the § 27-403 argument.

4. CONSTITUTIONAL ISSUES

Knolla and the OB/GYN Group argue that the cap in § 44-2825(1) is constitutional. The Gourleys argue that the cap violates principles of (1) special legislation, (2) equal protection, (3) open courts and right to a remedy, (4) right to a jury trial, (5) taking of property, and (6) separation of powers. The Gourleys rely solely on provisions of the state Constitution.

The Gourleys do not argue that the cap violates substantive due process or deprives them of life, liberty, and the pursuit of happiness as listed in their motion for new trial. Other than arguing equal protection, the Gourleys do not argue that Neb. Const. art. I, § 3, applies to their case. The Gourleys also did not argue to the trial court that the cap is unconstitutional as applied, nor do they make that argument on appeal.

When specific constitutional questions are presented, courts will not search for constitutional authority that was not raised and argued by the parties to overthrow a legislative enactment. See, e.g., United States v. Spector, 343 U.S. 169, 72 S. Ct. 591, 96 L. Ed. 863 (1952) (alternate constitutional ground for overturning statute not considered when appellee did not brief and argue issue); Rice v. Rigsby and Davis v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963) (addressing only constitutional issues raised in appellee's brief). Thus, we will consider only the specific constitutional arguments that the Gourleys raise and argue. See Rice v. Rigsby and Davis v. Rigsby, supra. Because we are asked to review numerous alternate grounds for finding the cap unconstitutional, we generally address the constitutional issues concerning the Gourleys' contentions.

(a) Statutory Provisions and Background

The Nebraska Hospital-Medical Liability Act was created to address a perceived medical liability crisis. The act created a medical review panel, capped the amount of damages that could be recovered, and created the Excess Liability Fund. Neb. Rev. Stat. §§ 44-2801 et seq. (Reissue 1998). Under the act, health care providers that do not opt out of the act's coverage must file proof of financial responsibility with the Director of Insurance and pay surcharges for the excess liability fund. §§ 44-2821 and 44-2824. The act allows patients to opt out of the act's coverage. § 44-2821(3). Section 44-2825 provides:

(1) The total amount recoverable under the Nebraska Hospital-Medical Liability Act from any and all health care providers and the Excess Liability Fund for any occurrence resulting in any injury or death of a patient may not exceed . . . (c) one million two hundred fifty thousand dollars for any occurrence after December 31, 1992.

(2) A health care provider qualified under the act shall not be liable to any patient or his or her representative who is covered by the act for an amount in excess of two hundred thousand dollars for all claims or causes of action arising from any occurrence during the period that the act is effective with reference to such patient.

(3) Subject to the overall limits from all sources as provided in subsection (1) of this section, any amount due from a judgment or settlement which is in excess of the total liability of all liable health care providers shall be paid from the Excess Liability Fund pursuant to sections 44-2831 to 44-2833.

(b) Special Legislation

The Gourleys contend that § 44-2825(1) is unconstitutional special legislation because it provides a special privilege to health care professionals while placing a burden on the most severely injured plaintiffs.

Neb. Const. art. III, § 18, provides:

The Legislature shall not pass local or special laws in any of the following cases, that is to say:

. . . .

Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever. . . . In all other cases where a general law can be made applicable, no special law shall be enacted.

We described the purpose of the constitutional safeguard against special legislation in Haman v. Marsh, 237 Neb. 699, 709, 467 N.W.2d 836, 844-45 (1991), as follows:

By definition, a legislative act is general, and not special, if it operates alike on all persons of a class or on persons who are brought within the relations and circumstances provided for and if the classification so adopted by the Legislature has a basis in reason and is not purely arbitrary. . . . General laws embrace the whole of a subject, with their subject matter of common interest to the whole state. Uniformity is required in order to prevent granting to any person, or class of persons, the privileges or immunities which do not belong to all persons. . . . It is because the legislative process lacks the safeguards of due process and the tradition of impartiality which restrain the courts from using their powers to dispense special favors that such constitutional prohibitions against special legislation were enacted.

Thus, the focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants "special favors" to a specific class.

A legislative act constitutes special legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates a permanently closed class. Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 620 N.W.2d 339 (2000). This case does not involve a permanently closed class.

[23-25] We have consistently stated that the test for determining the constitutionality of classifications is as follows:

"A legislative classification, in order to be valid, must be based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to objects to be classified. Classifications for the purpose of legislation must be real and not illusive; they cannot be based on distinctions without a substantial difference. . . ." "Classification is proper if the special class has some reasonable distinction from other subjects of a like general character, which distinction bears some reasonable relation to the legitimate objectives and purposes of the legislation. The question is always whether the things or persons classified by the act form by themselves a proper and legitimate class with reference to the purpose of the act."

State ex rel. Douglas v. Marsh, 207 Neb. 598, 609, 300 N.W.2d 181, 187 (1980). See, e.g., Bergan Mercy Health Sys. v. Haven, supra; Big Johns Billiards v. Balka, 260 Neb. 702, 619 N.W.2d 444 (2000); Haman v. Marsh, supra.

We note that a special legislation analysis is similar to an equal protection analysis, and often the two are discussed together because, at times, both issues can be decided on the same facts. See, generally, Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 616 N.W.2d 326 (2000) (addressing equal protection and special legislation separately, but deciding issues for same reasons). As a result, language normally applied to an equal protection analysis is sometimes used to help explain the reasoning employed under a special legislation analysis. Id. But the focus of each test is different. The analysis under a special legislation inquiry focuses on the Legislature's purpose in creating the class and asks if there is a substantial difference of circumstances to suggest the expediency of diverse legislation. This is different from an equal protection analysis under which the state interest in legislation is compared to the statutory means selected by the Legislature to accomplish that purpose. Under an equal protection analysis, differing levels of scrutiny are applied depending on if the legislation involves a suspect class. See, e.g., Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995) (discussing special legislation and equal protection separately and applying differing tests); Lerma v. Keck, 186 Ariz. 228, 921 P.2d 28 (Ariz.App. 1996) (illustrating difference between equal protection and special legislation); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989) (upholding damages cap and discussing special legislation and equal protection separately).

This court has upheld the constitutionality of the Nebraska Hospital-Medical Liability Act. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977). Discussing equal protection, we first held there was a reasonable basis for the classification. Then, in response to the argument that the medical review panel constituted a special privilege for the health care provider and imposed an undue burden on the seriously injured patient, we stated:

In this respect it must be remembered the Nebraska procedure is an elective one. Under the election, the act guarantees the claimant an assured fund . . . for the payment of any malpractice claim he [or she] may have. Under the common law remedy [the claimant] had no such guarantee and, as in the case of the plaintiff Prendergast, who has been unable to acquire any malpractice insurance, the likelihood of collecting a substantial judgment could be quite remote.

Additionally, the claimant is assured of a procedure which will provide him access to an impartial medical review panel to determine whether the health care provider met the applicable standard of care. In return, claimant by his election agrees to the [cap]. . . . [T]he classification rests on reasons of public policy and a substantial difference between medical care providers and other tort-feasors. Suffice it to say that the constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state's objective.

. . . Nothing in the act suggests, as defendant infers, that the legislation involved was enacted for the relief of the medical care provider. The enactment was, and so appears to us to be, in the public interest. This is paramount.

Id. at 115, 256 N.W.2d at 669.

The Gourleys argue that Prendergast is not precedent because it did not have a four-judge majority. But, under Neb. Const. art. V, § 2, only three judges are necessary to determine that an act is constitutional. Further, even before Prendergast was decided, this court recognized the Legislature's concern over the rising cost of malpractice insurance and the substantial difference between medical practitioners and other tort-feasors. When holding that the statute of limitations for malpractice actions did not constitute special legislation, we stated:

There are substantial reasons for legislative discrimination in regard to this field. We have seen in recent years the growth of malpractice litigation to the point where numerous insurance companies have withdrawn from this field. Insurance rates are practically prohibitive so that many professional people must either remain unprotected or pass the insurance charges along to their patients and clientele in the form of exorbitant fees and charges. This unduly burdens the public which requires professional services.

Taylor v. Karrer, 196 Neb. 581, 586, 244 N.W.2d 201, 204 (1976), disapproved on other grounds, Jorgensen v. State Nat. Bank Trust, 255 Neb. 241, 583 N.W.2d 331 (1998).

After Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977), was decided, we relied on it when determining that a different cap on damages was constitutional. In Distinctive Printing Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989), we upheld the constitutionality of a limit of recovery of damages under the parental liability statute, Neb. Rev. Stat. § 43-801 (Reissue 1998). In determining that § 43-801 did not violate principles of equal protection or the prohibition against special legislation, we cited Prendergast for the proposition that "certain limitations on recovery and differentiation among types of tort-feasors are permissible." Distinctive Printing Packaging Co. v. Cox, 232 Neb. at 852, 443 N.W.2d at 572. We again cited Prendergast with favor in 1991. Haman v. Marsh, 237 Neb. 699, 713, 467 N.W.2d 836, 847 (1991) ("there are substantial reasons for legislative discrimination in regard to malpractice actions"). Further, in 2000, this court quoted and relied on language from Prendergast, stating that in Prendergast, we were "dealing with the fundamental right to adequate medical care" and affirming "`the right of the Legislature to exercise the police power to promote the general health and welfare of the citizens of this state.'" Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 857, 620 N.W.2d 339, 348 (2000). We also quoted Prendergast as follows:

"Defendant . . . assumes the legislation was enacted to relieve doctors or insurance companies of some of their burden. We do not accept defendant's premise. Doctors and insurance companies are able to protect themselves against financial burdens by passing the cost on to their patients. Because they were doing so, [they] created part of the problem. The Legislature deemed it necessary to exercise its police power to make available qualified medical services at reasonable prices for the Nebraska public. We find no constitutional violation of this effort."

Bergan Mercy Health Sys. v. Haven, 260 Neb. at 857, 620 N.W.2d at 348. Thus, we have recognized on repeated occasions that the classification in the Nebraska Hospital-Medical Liability Act is based upon a reason of public policy. Further, we have recognized the existence of a substantial difference of situation or circumstances that justified diverse legislation for the classification.

The Gourleys argue, however, that § 44-2825(1) was not justified. The Gourleys point out that there was disagreement in the Legislature at the time § 44-2825(1) was enacted and conflicting testimony at the hearing on the motion for new trial. Thus, they argue that there never was an insurance crisis and that lifting the cap would have little effect on the cost of medical services. The Gourleys essentially ask that we independently review the wisdom of enacting the cap. We decline to do so.

[26,27] Statutes are afforded a presumption of constitutionality, and the unconstitutionality of a statute must be clearly established before it will be declared void. Bergan Mercy Health Sys. v. Haven, supra. The Nebraska Legislature is presumed to have acted within its constitutional power despite that, in practice, its laws may result in some inequality. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

[28,29] It is commonly held that courts will not reexamine independently the factual basis on which a legislature justified a statute, nor will a court independently review the wisdom of the statute. See, e.g., Phillips v. Mirac, Inc., 251 Mich. App. 586, 651 N.W.2d 437 (2002); Guzman v. St. Francis Hospital, Inc., 240 Wis. 2d 559, 623 N.W.2d 776 (Wis.App. 2000); Robinson v. Charleston Area Med. Center, 186 W. Va. 720, 414 S.E.2d 877 (1991). See, generally, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002). Instead, courts have inquired into "whether the legislature reasonably could conceive to be true the facts on which the challenged statute was based." Robinson v. Charleston Area Med. Center, 186 W. Va. at 730, 414 S.E.2d at 887. See Prendergast v. Nelson, supra. See, also, Phillips v. Mirac, Inc., supra (considering whether any set of facts either known or which could be reasonably assumed supports legislature's judgment). As one author has stated:

The legislature has the ability to hear from everybody — plaintiff's lawyers, health care professionals, defense lawyers, consumer groups, unions, and large and small business. . . . And, ultimately, legislators make a judgment. If the people who elected the legislators do not like the solution, the voters have a good remedy every two years: retire those who supported laws the voter's disfavor. These are but a few reasons why, over the years, legislators have received some due deference from courts.

Victor Schwartz, Judicial Nullification of Tort Reform: Ignoring History, Logic, and Fundamentals of Constitutional Law, 31 Seton Hall L. Rev. 688 (2001). This court does not sit as a super-legislature to review the wisdom of legislative acts. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), disapproved on other grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986); Verba v. Ghaphery, 210 W. Va. 30, 552 S.E.2d 406 (2001).

[30-32] Also, all reasonable intendments must be indulged to support the constitutionality of legislative acts, including classifications adopted by the Legislature. State v. Hunt, supra. If the Legislature had any evidence to justify its reasons for passing the act, then it is not special legislation if the class is based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation concerning the objects to be classified. See Prendergast v. Nelson, supra. We reach this determination by considering what the Legislature could have found at the time the act was passed. See, generally, Ralston v. County of Dawson, 200 Neb. 678, 264 N.W.2d 868 (1978).

It is not this court's place to second-guess the Legislature's reasoning behind passing the act. Likewise, "it is up to the legislature and not this Court to decide whether its legislation continues to meet the purposes for which it was originally enacted." Verba v. Ghaphery, 210 W. Va. at 36, 552 S.E.2d at 412 (upholding constitutionality of damages cap). Because we give deference to legislative factfinding and presume statutes to be constitutional, any argument that the record contains evidence that the act was not wise or necessary when it was enacted does not change the analysis.

Section 44-2825 was adopted under 1976 Neb. Laws, L.B. 434, but the legislative history is found under 1976 Neb. Laws, L.B. 703. At the committee hearing, the Legislature heard from both proponents and opponents of the act. There was testimony from witnesses indicating that there was a problem recruiting physicians in the state and that increases in medical malpractice insurance were raising the cost of medical care. Public Health and Welfare Committee Hearing, L.B. 703, 84th Leg., 2d Sess. (Jan. 27, 1976). There was also testimony that a cap would not affect the cost of medical care, and some expressed the belief that the act was nothing more than a boon for insurance companies. Id. Generally, the proponents of the act expressed concern that an insurance crisis existed, but admitted that it was likely impossible to know if a cap on damages would solve the problem. Based on the information before it, the Legislature generally believed that a damages cap would solve the problem, especially when combined with the medical review panel and the Excess Liability Fund. Id. Thus, the Legislature set out a specific statement of findings and intent in the Nebraska Hospital-Medical Liability Act. In § 44-2801, the Legislature stated:

(1) The Legislature finds and declares that it is in the public interest that competent medical and hospital services be available to the public in the State of Nebraska at reasonable costs, and that prompt and efficient methods be provided for eliminating the expense as well as the useless expenditure of time of physicians and courts in nonmeritorious malpractice claims and for efficiently resolving meritorious claims. It is essential in this state to assure continuing availability of medical care and to encourage physicians to enter into the practice of medicine in Nebraska and to remain in such practice as long as such physicians retain their qualifications.

(2) The Legislature further finds that at the present time under the system in effect too large a percentage of the cost of malpractice insurance is received by individuals other than the injured party. The intent of sections 44-2801 to 44-2855 is to serve the public interest by providing an alternative method for determining malpractice claims in order to improve the availability of medical care, to improve its quality and to reduce the cost thereof, and to [e]nsure the availability of malpractice insurance coverage at reasonable rates.

Here, the Legislature had evidence to justify their reasons for passing the act. The class is based upon reasons of public policy and substantial differences of situation or circumstances that suggested the justice or expediency of diverse legislation.

Other states have also expressed agreement that a cap on damages for medical malpractice does not constitute special legislation. See Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). See, also, Kirkland v. Blaine County Medical Center, 134 Idaho 464, 4 P.3d 1115 (2000). There is recognition by both this court and others that there is evidence to justify the Legislature's actions.

To the extent that other courts have found damages caps to constitute special legislation, those cases do not conform to our legal precedent and are unpersuasive. See, e.g., Best v. Taylor Mach. Works, 179 Ill. 2d 367, 689 N.E.2d 1057, 228 Ill. Dec. 636 (1997) (Miller, J., concurring in part, and in part dissenting) (explaining reasons for disagreement with special legislation analysis as applied in Best). See, also, Matthew W. Light, Note, Who's the Boss?: Statutory Damage Caps, Courts, and State Constitutional Law, 58 Wash. Lee L. Rev. 315 (2001) (criticizing cases holding that damages caps are unconstitutional). We conclude that the cap does not violate principles prohibiting special legislation.

(c) Equal Protection

The Gourleys next contend that the cap violates the equal protection clause of the Nebraska Constitution. They first argue that the cap affects fundamental rights and ask that this court apply a "searching" or rigorous review. Brief for appellees the Gourleys at 56.

Neb. Const. art. I, § 3, states: "No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws." The party attacking a statute as violative of equal protection has the burden to prove that the classification violates the Equal Protection Clause. See Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995).

[36-41] The Equal Protection Clause does not forbid classifications; it simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike. Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 616 N.W.2d 326 (2000). In any equal protection challenge to a statute, the degree of judicial scrutiny to which the statute is to be subjected may be dispositive. If a legislative classification involves either a suspect class or a fundamental right, courts will analyze the statute with strict scrutiny. Under this test, strict accordance must exist between the classification and the statute's purpose. The result the Legislature seeks to effectuate must be a compelling state interest, and the means employed in the statute must be such that no less restrictive alternative exists. On the other hand, if a statute involves economic or social legislation not implicating a fundamental right or suspect class, courts will ask only whether a rational relationship exists between a legitimate state interest and the statutory means selected by the Legislature to accomplish that end. Upon a showing that such a rational relationship exists, courts will uphold the legislation. Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999); State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996). Some legislative classifications, such as those based on gender, are reviewed under an intermediate level of scrutiny. See, e.g., Friehe v. Schaad, 249 Neb. 825, 545 N.W.2d 740 (1996).

A majority of jurisdictions apply a rational basis or other similar test and determine that a statutory cap on damages does not violate equal protection. See, e.g., Phillips v. Mirac, Inc., 251 Mich. App. 586, 651 N.W.2d 437 (2002); Guzman v. St. Francis Hospital, Inc., 240 Wis. 2d 559, 623 N.W.2d 776 (Wis.App. 2000); Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo. 1993) (en banc); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992); Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. 1992) (en banc); Butler v. Flint Goodrich Hosp., 607 So. 2d 517 (La. 1992); Peters v. Saft, 597 A.2d 50 (Me. 1991); Robinson v. Charleston Area Med. Center, 186 W. Va. 720, 414 S.E.2d 877 (1991); Fein v. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989); Johnson v. St. Vincent's Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980), abrogated on other grounds, Collins v. Day, 644 N.E.2d 72 (Ind. 1994). See, also, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002) (reaching this conclusion but stating that it was not binding precedent); Trujillo v. City of Albuquerque, 125 N.M. 721, 965 P.2d 305 (1998) (overruling use of heightened standard, but remanding for determination of constitutionality under rational basis standard); Morris v. Savoy, 61 Ohio. St. 3d 684, 576 N.E.2d 765 (1991) (finding no violation of equal protection, but finding damages cap unconstitutional on other grounds). A few jurisdictions have applied a heightened standard under their state constitution. See, Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978).

The Gourleys contend that a heightened level of scrutiny should be applied to this case because the cap affects fundamental rights such as the right to a jury trial, full remedy, property, and medical care. They also argue that the cap affects a suspect class because plaintiffs with damages awards over the cap are "`saddled with disabilities.'" Brief for appellees the Gourleys at 51. They also appear to argue that heightened scrutiny should apply because the Nebraska Unicameral system is more susceptible to influences from special interests. We disagree that a heightened level of scrutiny should be applied.

The right of access to the courts is important, but that right is impaired only by state action that limits or blocks access to the courts. See, generally, Evans ex rel. Kutch v. State, supra. The damages cap at issue does not limit access to the courts. Instead, it limits a plaintiff's recovery in court. Id. Further, access to the courts to pursue redress for injuries is not the type of fundamental right which requires heightened scrutiny. Guzman v. St. Francis Hospital, Inc., supra. In addition, the classification created by § 44-2825 is not based on suspect criteria. Instead, the Gourleys' interest in unlimited damages is economic. See Guzman v. St. Francis Hospital, Inc., supra. See, generally, Evans ex rel. Kutch v. State, supra. We find no merit in the argument that plaintiffs with damages awards over the cap are a suspect class or that heightened scrutiny should be applied because Nebraska has a unicameral legislative system. Because the interests at issue are economic, we apply the rational basis test.

[43-45] Under the rational basis test, the Equal Protection Clause is satisfied as long as there is (1) a plausible policy reason for the classification, (2) the legislative facts on which the classification is apparently based may rationally have been considered to be true by the governmental decisionmaker, and (3) the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 616 N.W.2d 326 (2000). The rational relationship standard is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996). Thus, when determining whether a rational basis exists for a legislative classification, courts look to see if any state of facts can be conceived to reasonably justify the disparate treatment which results. Distinctive Printing Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

[46-49] As with their arguments about special legislation, the Gourleys contend that the act was unwise and unnecessary. But as we already discussed, we will not second guess the conclusions of the Legislature. Further, in economics and social welfare, a statute does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. Pfizer v. Lancaster Cty. Bd. of Equal., supra; State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996). The fact that other schemes could have been selected does not mean that the scheme chosen is constitutionally infirm. Id. See Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995). As long as the classification scheme chosen by the Legislature rationally advances a reasonable and identifiable governmental objective, a court must disregard the existence of other methods that other individuals might have preferred. See Pfizer v. Lancaster Cty. Bd. of Equal., supra. Social and economic measures run afoul of the Equal Protection Clause only when the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that a court can only conclude that the Legislature's actions were irrational. State v. Atkins, supra.

The district court concluded that § 44-2825 was unconstitutional partially because it is a cap on all damages instead of a cap on only noneconomic damages. This does not change the analysis. A statute will not offend equal protection if a rational relationship exists between a legitimate state interest and the statutory means selected by the Legislature to accomplish that end. We note that other courts have upheld statutes that cap all damages. See, Butler v. Flint Goodrich Hosp., 607 So. 2d 517 (La. 1992); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989); Johnson v. St. Vincent's Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980), abrogated on other grounds, Collins v. Day, 644 N.E.2d 72 (Ind. 1994).

Here, the Legislature was concerned about a perceived insurance crisis that could affect the ability of the state to recruit and retain physicians and increase the costs of medical care. Reducing health care costs and encouraging the provision of medical services are legitimate goals which can reasonably be thought to be furthered by lowering the amount of medical malpractice judgments. See, generally, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002).

We have previously recognized these goals as legitimate legislative concerns. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977); Taylor v. Karrer, 196 Neb. 581, 244 N.W.2d 201 (1976), disapproved on other grounds, Jorgensen v. State Nat. Bank Trust Co., 255 Neb. 241, 583 N.W.2d 331 (1998). Also, a rational relationship exists between the concern and the statutory means selected by the Legislature to accomplish its goal. We note that § 44-2825 was generally based on an Indiana act. Public Health and Welfare Committee Hearing, L.B. 703, 84th Leg., 2d Sess. 17 (Jan. 27, 1976). In Johnson v. St. Vincent's Hospital, supra, the Indiana Supreme Court upheld the damages cap in the Indiana act, and it noted that the act established a form of government-sponsored insurance, set limitations upon liability, and placed the burden upon persons injured by the industry. The court then stated:

An insurance operation cannot be sound if the funds collected are insufficient to meet the obligations incurred. It must, however, be accepted that the badly injured plaintiff who may require constant care will not recover full damages, yet at the same time we are impressed with the large amount which is recoverable and its probable ability to fully compensate a large proportion of injured patients. In the same vein, badly injured patients would have little or no chance of recovering large sums of money if the evil the act was intended to prevent were to come about, i.e., that an environment would develop in the State in which private or public malpractice insurance were unavailable or unused. Of some relevance here is also the fact that after suit and recovery against a health care provider is completed, there continues a total life-time dependency upon other health care providers for vital treatment of the residuum of illness from the prior negligence and of new and unrelated illnesses. Thus to the extent that the limitation upon recovery is successful in preserving the availability of health care services, it does so to the benefit of the entire community including the badly injured plaintiff.

Johnson v. St. Vincent's Hospital, 273 Ind. at 396, 404 N.E.2d at 599. Although one may disagree with this reasoning, the Nebraska Legislature heard similar comments when it was considering enacting § 44-2825. Public Health and Welfare Committee Hearing, L.B. 703, 84th Leg., 2d Sess. (Jan. 27, 1976).

Finally, we note that some jurisdictions have held that a cap on damages violates equal protection. In some cases, the jurisdiction applied a heightened level of scrutiny, which we reject. See, Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978). Another is unclear about the level of scrutiny. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991). Several fail to give deference to the Legislature and engage in judicial factfinding, which we also reject. See, Moore v. Mobile Infirmary Ass'n, supra; Arneson v. Olson, supra. Another requires the provision of a replacement remedy, quid pro quo, to limit recovery of damages, which we reject and which will be discussed when dealing with the open courts provision of the Nebraska Constitution. See, e.g., Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976). We find these cases unpersuasive. Thus, we conclude that the cap on damages in § 44-2825 satisfies principles of equal protection.

(d) Open Courts and Right to Remedy

The Gourleys contend that § 44-2825 violates the open courts provision of the Nebraska Constitution and denies them their right to a remedy. They argue that common-law rights and remedies that were in place at the time the constitution was adopted are protected from legislative change.

Neb. Const. art. I, § 13, provides: "All courts shall be open, and every person, for any injury done him or her in his or her lands, goods, person, or reputation, shall have a remedy by due course of law and justice administered without denial or delay. . . ."

A majority of jurisdictions have held that a cap on damages does not violate the open courts and right to remedy provisions of their state constitution. Guzman v. St. Francis Hospital, Inc., 240 Wis. 2d 559, 623 N.W.2d 776 (Wis.App. 2000); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992); Robinson v. Charleston Area Med. Center, 186 W. Va. 720, 414 S.E.2d 877 (1991); Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. 1992) (en banc); Johnson v. St. Vincent's Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980), abrogated on other grounds, Collins v. Day, 644 N.E.2d 72 (Ind. 1994); Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976). See, generally, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002); Trujillo v. City of Albuquerque, 125 N.M. 721, 965 P.2d 305 (1998). A minority of courts have held that a cap on damages violates a state constitution's open courts or right to remedy provision. Matter of Certif. of Questions of Law, 544 N.W.2d 183 (S.D. 1996); Lucas v. U.S., 757 S.W.2d 687 (Tex. 1988).

[51,52] It has long been the law of Nebraska, however, that the Legislature is free to create and abolish rights so long as no vested right is disturbed. Peterson v. Cisper, 231 Neb. 450, 436 N.W.2d 533 (1989). When upholding the constitutionality of the review panel provision of the act, we stated in Prendergast v. Nelson, 199 Neb. 97, 104, 256 N.W.2d 657, 663-64 (1977):

Basically the contention is that the Legislature is powerless to alter a common law right. The law itself as a rule of conduct may be changed at the will or even at the whim of the Legislature unless prevented by constitutional limitations. . . . The Constitution does not forbid the creation of new rights, nor the abolition of old ones recognized by the common law, to attain a permissible legislative object.

Thus, we have held that no one has a vested interest in any rule of the common law or a vested right in any particular remedy. Peterson v. Cisper, supra.

The Gourleys contend that rights that were in place when the constitution was adopted are an exception to these rules. In the alternative, they contend that the Legislature cannot change a remedy without providing an adequate replacement, or quid pro quo. We disagree.

Rejecting an argument that the common law in place at the time the constitution was adopted could not be changed, the Idaho Supreme Court stated: "To adopt that argument would be to hold that the common law as of 1890 governs the health, welfare and safety of the citizens of this state and is unalterable without constitutional amendment." Jones v. State Board of Medicine, 97 Idaho at 864, 555 P.2d at 404. Relying on a Colorado case, the court further noted that the open courts provision did not discuss the common law. Instead, the common law was adopted through another constitutional provision and through statute in Idaho. Jones v. State Board of Medicine, supra, citing Vogts v. Guerrette, 142 Colo. 527, 351 P.2d 851 (1960).

In Nebraska, the common law of England was adopted by statute. Neb. Rev. Stat. § 49-101 (Reissue 1998). Thus it exists here by legislative enactment and may be repealed. See Vogts v. Guerrette, supra. Section 44-2825(1) also does not bar access to the courts or deny a remedy. Instead it redefines the substantive law by limiting the amount of damages a plaintiff can recover. Although plaintiffs have a right to pursue recognized causes of action in court, they are not assured that a cause of action will remain immune from legislative or judicial limitation or elimination. Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. 1992) (en banc).

[53,54] We have also held that if a common-law right is taken away, nothing need be given in return. Prendergast v. Nelson, supra. Because the Legislature can eliminate a common-law cause of action entirely, it can also alter the remedy for a cause of action without providing a replacement remedy, or quid pro quo. We conclude that § 44-2825(1) does not violate Neb. Const. art. I, § 13.

(e) Jury Trial

The Gourleys contend that the cap violates their right to a trial by jury. Knolla and the OB/GYN Group counter that the Legislature can abolish a common-law cause of action and that therefore, it follows that it can limit the amount of damages that can be recovered.

Neb. Const. art. I, § 6, provides:

The right of trial by jury shall remain inviolate, but the Legislature may authorize trial by a jury of a less number than twelve in courts inferior to the District Court, and may by general law authorize a verdict in civil cases in any court by not less than five-sixths of the jury.

Courts are split on whether a cap on damages violates the right to a jury trial. The majority of courts hold that a cap does not violate the right to trial by jury. Phillips v. Mirac, Inc., 251 Mich. App. 586, 651 N.W.2d 437 (2002); Kirkland v. Blaine County Medical Center, 134 Idaho 464, 4 P.3d 1115 (2000); Guzman v. St. Francis Hospital, Inc., 240 Wis. 2d 559, 623 N.W.2d 776 (Wis.App. 2000); Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo. 1993) (en banc); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992); Adams v. Children's Mercy Hosp., supra; Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). See, generally, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002). In two of these cases, the constitutional provision at issue is generally the same as the provision in the Nebraska Constitution. Kirkland v. Blaine County Medical Center, supra; Adams v. Children's Mercy Hosp., supra. Other courts have applied language that is generally the same as the Nebraska Constitution and have concluded that a cap on damages does violate a plaintiff's right to a jury trial. Lakin v. Senco Products, Inc., 329 Or. 62, 987 P.2d 463 (1999); Matter of Certif. of Questions of Law, 544 N.W.2d 183 (S.D. 1996); Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991); Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989), amended 780 P.2d 260. We disagree with the reasoning of those courts.

[55,56] The purpose of article I, § 6, is to preserve the right to a jury trial as it existed at common law and under the statutes in force when the constitution was adopted. State ex rel. Cherry v. Burns, 258 Neb. 216, 602 N.W.2d 477 (1999); State ex rel. Douglas v. Schroeder, 222 Neb. 473, 384 N.W.2d 626 (1986). The primary function of a jury has always been factfinding, which includes a determination of a plaintiff's damages. See Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. 1992) (en banc). The court, however, applies the law to the facts. Id. Section 44-2825 provides the remedy in a medical malpractice action. The remedy is a question of law, not fact, and is not a matter to be decided by the jury. See, e.g., Adams v. Children's Mercy Hosp., supra; Murphy v. Edmonds, supra; Etheridge v. Medical Center Hospitals, supra. See, generally, Evans ex rel. Kutch v. State, supra. Instead, the trial court applies the remedy's limitation only after the jury has fulfilled its factfinding function. See, e.g., Murphy v. Edmonds, supra; Etheridge v. Medical Center Hospitals, supra. See, generally, Evans ex rel. Kutch v. State, supra.

Further, as we have discussed, the Legislature has the right to completely abolish a common-law cause of action. Peterson v. Cisper, 231 Neb. 450, 436 N.W.2d 533 (1989). If the Legislature has the constitutional power to abolish a cause of action, it also has the power to limit recovery in a cause of action. See, e.g., Adams v. Children's Mercy Hosp., supra. We conclude that § 44-2825 does not violate the right to a jury trial.

(f) Taking of Property

The Gourleys next contend that the cap acts to take property in violation of Neb. Const. art. I, § 21. They argue that a cause of action and a jury's determination of damages are property.

Article I, § 21, states: "The property of no person shall be taken or damaged for public use without just compensation therefor." Article I, § 21, applies to vested property rights. See Tracy v. City of Deshler, 253 Neb. 170, 568 N.W.2d 903 (1997).

As previously discussed, we have held that a person has no property and no vested interest in any rule of the common law or a vested right in any particular remedy. Peterson v. Cisper, supra. Further, courts have rejected the argument that a cause of action and determination of damages are property. Pulliam v. Coastal Emergency Services, 257 Va. 1, 509 S.E.2d 307 (1999). See, generally, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002). The cap on damages in § 44-2825 does not violate Neb. Const. art. I, § 21. We conclude that the Gourleys' argument is without merit.

(g) Separation of Powers

The Gourleys contend that § 44-2825 violates the separation of powers provision of Neb. Const. art. II, § 1. They argue that the cap legislatively transfers their property to another, acts as a legislative remittitur, and acts as a legislative judgment on damages.

We have already stated that a person has no property and no vested interest in any rule of the common law or a vested right in any particular remedy. Peterson v. Cisper, supra. The Gourleys' argument about the legislative transfer of property is without merit. We also find no merit in the argument that the cap acts as a legislative judgment of damages. As we have discussed, the Legislature may abolish a common-law right or remedy. Id. For the same reasons the cap does not violate the right to a jury trial, it also does not act as a legislative determination of the amount of damages in any specific case.

We note that one court has held that a cap on damages improperly delegates to the Legislature the power to remit verdicts and judgments. Best v. Taylor Mach. Works, 179 Ill. 2d 367, 689 N.E.2d 1057, 228 Ill. Dec. 636 (1997). See, also, Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989), amended 780 P.2d 260 (indicating in dicta that cap might violate separation of powers). In Best, the court concluded that the determination whether a verdict was excessive was a discretionary function of the trial court and that a cap on damages improperly delegated that function to the Legislature.

Other courts, however, have determined that a cap on damages does not violate principles of separation of powers. See, e.g., Verba v. Ghaphery, 210 W. Va. 30, 552 S.E.2d 406 (2001); Kirkland v. Blaine County Medical Center, 134 Idaho 464, 4 P.3d 1115 (2000); Guzman v. St. Francis Hospital, Inc., 240 Wis. 2d 559, 623 N.W.2d 776 (Wis.App. 2000); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). See, generally, Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002). Most of these courts have specifically disagreed with the reasoning that a cap acts as a legislative remittitur. Verba v. Ghaphery, supra; Kirkland v. Blaine County Medical Center, supra; Guzman v. St. Francis Hospital, Inc., supra. See, generally, Evans ex rel. Kutch v. State, supra.

In Kirkland, the Idaho Supreme Court noted that nothing about the damages cap purported to limit the exercise of the judiciary's constitutional powers or jurisdiction. The court stated:

Rather, if anything, the statute is a limitation on the rights of plaintiffs, not the judiciary. Because it is properly within the power of the legislature to establish statutes of limitations, statutes of repose, create new causes of action, and otherwise modify the common law without violating separation of powers principles, it necessarily follows that the legislature also has the power to limit remedies available to plaintiffs without violating the separation of powers doctrine.

Kirkland v. Blaine County Medical Center, 134 Idaho at 471, 4 P.3d at 1122.

We agree that the damages cap does not act as a legislative remittitur or otherwise violate principles of separation of powers. The cap does not ask the Legislature to review a specific dispute and determine the amount of damages. Instead — without regard to the facts of a particular case — the cap imposes a limit on recovery in all medical malpractice cases as a matter of legislative policy. We have stated repeatedly that the Legislature may change or abolish a cause of action. Thus, the ability to cap damages in a cause of action is a proper legislative function. See, Verba v. Ghaphery, supra; Kirkland v. Blaine County Medical Center, supra; Etheridge v. Medical Center Hospitals, supra. See, generally, Evans ex rel. Kutch v. State, supra. "Indeed, were a court to ignore the legislatively-determined remedy and enter an award in excess of the permitted amount, the court would invade the province of the legislature." Etheridge v. Medical Center Hospitals, 237 Va. at 101, 376 S.E.2d at 532. We determine that the cap on damages does not violate art. II, § 1.

5. CROSS-APPEAL

The Gourleys purported to file a cross-appeal assigning that the district court erred when it overruled the motion for new trial regarding the directed verdict for Nebraska Methodist. Nebraska Methodist filed a motion to dismiss, contending that this court lacks jurisdiction over the appeal because it was not filed within 10 days of the overruling of the motion for new trial. The motion was denied. Nebraska Methodist then filed a brief arguing that this court lacks jurisdiction over the cross-appeal and that the cross-appeal was not properly filed.

The Gourleys' brief states on the cover that it is the brief of appellees and cross-appellants. An assignment of error appears on page 2 of the brief. Statements about jurisdiction, scope of review, and propositions of law are covered together for both the brief and any cross-appeal. The brief does not set out a separately designated section of the brief as the brief on cross-appeal. Instead, portions of the purported cross-appeal are scattered throughout the brief.

Neb. Ct. R. of Prac. 9D(4) (rev. 2000) provides:

Where the brief of appellee presents a cross-appeal, it shall be noted on the cover of the brief and it shall be set forth in a separate division of the brief. This division shall be headed "Brief on Cross-Appeal" and shall be prepared in the same manner and under the same rules as the brief of appellant.

The appellate courts of this state have repeatedly held that a cross-appeal must be properly designated under rule 9D(4) if affirmative relief is to be obtained. Michael B. v. Donna M., 11 Neb. App. 346, 652 N.W.2d 618 (2002). See Schindler v. Walker, 256 Neb. 767, 592 N.W.2d 912 (1999).

The Gourleys admit that they "did not comply with most of the procedural requirements of [rule] 9D(4)." Reply brief for appellees the Gourleys at 8. They ask that this court exercise discretion and consider the cross-appeal although rule 9D(4) was not followed. We decline to do so.

VI. CONCLUSION

We reverse that portion of the district court's judgment finding that § 44-2825(1) is unconstitutional and affirm the judgment in all other respects. The district court shall enter judgment for the Gourleys in the amount of $1,250,000.

AFFIRMED IN PART, AND IN PART REVERSED.

STEPHAN and MILLER-LERMAN, JJ., not participating.