that you see justice is gerald and may please the court my name is the in or olson i represent defendant appellant dr levy d and corner a cohen subdivided our time ten minutes ten minutes ten minutes i properly first of all i want to thank the court for according me the privilege of appearing here today before this court i am not a member of the bar of the state of illinois as you know i do feel close to the state i was born in chicago i have many close relationships here and it's a privilege to be here in this case is about what the illinois legislature after like the hearings and study found to be a health care crisis which in dangers the public safety welfare and health care for the citizens of this state specifically the legislature found increasing financial burdens on physicians and hospitals a reduction in availability of medical care and a descent disincentive to medical students from choosing illinois as a place to practice medicine a bipartisan majority of the legislature accordingly and that did precisely tailor agree forms to address and correct the crisis those reforms included increased oversight of physicians modest limits on the recovery of not economic damages restriction and increased oversight of insurers and non meritorious no practice actions the limits on non economic damages were comparable to those which are bent and acted and up held in many cases in twenty nine states the legislature expression he found who wrote to him in order to preserve the public health the current medical malpractise  reforms that limit not economic damages in healing art malpractise actions the standard of review indeed is a facial challenge to the constitutionality of these reforms is high in the first place because it's a facial challenge the plainest must prove that there are no set of circumstances under which the act may be valid statutes of course in this state are entitled to great deference and i have option of constitutionality review is de novo a rational basis review is whether what is attempted to accompany accomplished by the legislature is rationally related to a legitimate state interest certainly the health care for citizens of the state is a rational state an important legitimate state interest if a court can conceive of circumstances that justify the legislative judgment it must defer to that legislative just judgment legislative factual findings and policy judgments are entitled to great deference in order to be set aside the court must find that they are manifestly wrong is the words of this court could not reasonably be construed to be true the issue for the court is not the wisdom of the enactment or policy judgments of the legislature as long as it is even debatable that the crisis exists or that the measures adopted will address the crisis the legislature's judgment has to be accepted as true these are the words of this court here in the legislative legislature after extensive hearings testimony from all segments of the community doctors lawyers for persons injured by malpractise insurance companies scholars and others found crisis exists a crisis that the legislature has addressed before and a crisis that this court has repeatedly of knowledge does exist and that placing limits on the most objective types of damages the types of damages that are most consciously subject to abuse was not only appropriate and effective to address the problem but require the required use the words of the legislature means of solving  these conclusions unless manifestly wrong must be accepted by this court that is important separation of powers consideration the legislature is this court is held frequently does have the power alter the common law and to use the words of this court change or limit available remedies what the legislature did in this court is impose modest restrictions on the veil ability of those types of remedies think that emery miniature properly conceived going back as far as blackstone is a case by case analysis the judges undertake with respect to a particular case and whether a jury's judgment with respect to the amount of damages is excessive in a particular case other courts that have considered the issue about remits or have concluded and i suspect i submit just the correct conclusion that a generalized limit on the availability of damages is not a re miniature it's not a case by case analysis it is not the legislature substituting its judgment for a judge of the judgment of a judge in a particular case it is a substantive  what is inappropriate with respect to the separation of powers is and on due intrusion on the progressives of the judiciary and the in determining what would be an undue intrusion the court would consider the scope and nature of what the legislature did in this and in the best case was a very broad application of a limitation to all types of actions that sought personal injury or property damages this is a very folk in the court and the legislature the record is fairly clear that the legislature looked at the right solution which preceded the best decision and the best decision itself studied what the co said look to the language of the court that said yes it can it's legislature under appropriate circumstances limit available remedies under the common law focused on the crisis that did exist limited the to overturn best best after all was one could kids argue was judicial dicta in the sense that the court and in writing that opinion had already decided that the statute there was unconstitutional a special legislation the court going one on with an alternative to finding with respect to legislative remits or therefore the court can examine that case look at what the court specifically said that the legislature do these things this court is uphill restrictions on joint and several liability in medical malpractise cases it is is upheld statutes of limitations and statutes of repose is upheld legislative restrictions elimination appearance of damages this is the type of thing that the court has upheld in terms of the overall establishment of standards not for particular cases but for a category of cases where a problem exists because the would do would be to look at the scope and nature of what was being done the severity of the problem the justification for it and indeed if the court were to add here to the best decision the court would be very conscious of what the legislature was doing there that the court had found that the that the solution to the problem was much greater than the nature of the problem the justification didn't exist we submit and this court has recognized that the justification here is clea remedy is narrowly focused it's in witness within the scope of what this court has approved before but i do submit that what a general standard with respect to limitation on damages is not a r term and that to the extent that the court were to find the best disc and trolling that the legislature can't set limits on recovery of types of damages on the right there's a number of decisions of this court that would have to be set aside because you would then be saying that the legislature can't look at a severe problem that is hurting the people of this state and their entitlement to medical care and solve the problem with respect to what twenty nine other states repose because that is addressing the nature of the remedy now i want to be sure that i reserve time for my colleagues and like ten minutes is has been consumed going very fast and if it with the court's permission will turn this over very much thank you hundred seventy constitution prohibits all damage caps all liability limits on compensatory damages in all common law cases regardless of the circumstances and regardless of the rationale so what they're saying is to pick up on one of the questions that any damage cap any liability limit is a legislative or medical and therefore prohibited by the separation of powers clause and also that it's any capper or limit is inherently irrational and therefore per se invalid under the special legislation clause that was not the holding of best and right and what i'd like to talk about is that it could not have been the holding of bastion right because that conclusion cannot be reconciled principle is directly pertinent here because prior to nine hundred seventy the general simply hadn't acted compensatory damage caps and liability limitations in common law case the innkeeper protection act the breach of promise damages against the separation of powers challenging the special legislation challenge and the plaintiffs in that case argued and i'll quote the legislature has invaded the province of the judiciary by formulating rules measuring the amount of damages recoverable that it's almost exactly what the plaintiffs are arguing here the court in one nine hundred sixty rejected that argument and the framers in one nine hundred seventy did not indicate any intent to alter that understanding of the separation of powers or the special legislation clause and the framers had examples from other state constitutions where other states had incorporated into their constitutions  constitutional prohibition and statutory damage caps or liability women's the framers did not adopt that at any of those provisions and to the contrary they made clear that they intended to retain the pre nine hundred seventy understanding of the separation of powers and that can mean only one thing that the nine hundred seventy constitution does not categorically prohibit all damage calf's in live villany limits  it did in a way it operated along a different axis it didn't put a cap it didn't limit didn't put a numerical limit on a particular defendant's liability it was among the defendant's right it was among defendants but but the key point here is that unsecure shows that the general semele is not prohibited from changing how the common law gives effect to compensatory damages awards under the common law and i want to emphasize under to the common law jury awards for compensatory damages under the common law are sacrosanct it can't be changed but section eleven seventeen changed how the common law a faction waits jury awards just like  the provision upheld in bernier versus burress that up held the modification of the collateral source rule in medical malpractise cases for hospitals and doctors that also affected how the common law effect that here there's a million dollar limit for hospitals five hundred thousand dollars for physicians and if there are nine kept offense in the case those those those defendants a don't have any limits whatsoever  t in siegel the court held that the general assembly can eliminate noneconomic damages with respect to particular causes of action where the circumstances require and with the alienation effect of affections act let general somebody found that the act had been subject to uses and it had a step and to correct those abuses in a limited way by focusing on the subject of non economic damages so what the plaintiffs so that the plaintiffs are left in a very damages and imposing limits on it and no that's just an untenable position so what we have is a situation where there are some limits and caps that are valid and we know that from insecure you know that from bern r we know that from siegel and from the existence of the innkeeper protection at some caps and limits are invalid we know that from best and the question then becomes the hard question becomes how do you distinguish between valid caps from invalid caps and what our brief did and i i don't have the time to go through all of it is to trying to still from this court's precedents both in the cap contacts and just in the general separation of powers contacts three ninety four six seventy seven was not a tort reform statute unlike the civil justice reform act of one thousand nine hundred five it was not it's what reform statute it was a health care statute there was a problem doctors were leaving makes factual findings that are reasonable and supported by the evidence and as long as reasonable minds can disagree and in this instance there simply certainly could i believe those i do legislative findings are binding on the court and mr olson alluded to the fact that people could argue that the separation of powers holding in dicta it we have to follow your line of reasoning in the cases you argue do we have  conception of the separation of powers and in when we lay out the three considerations that recur throughout this court's separation of powers jurisprudence best is part and parcel of that analysis and best is reconcilable with  assembly said you know what you're a little bit right we're going to have greater insurance regulation to make sure that there's more competition we're going to have greater regulation of physicians to make sure to reduce bad medical outcomes which in turn caused medical malpractise premiums to rise and we're going to fix those components of the medical malpractise system litigation system that caused the most problem for insurers and they feel in each instance they they focused on the journal somebody attacked it from all sides and what the separation of powers is about is about the legislature moving too far into judicial training here it's just undeniable that the general simply was focusing on a health care problem and they attacked it on both sides i don't think the insurers very happy about the provisions about the amendments to the insurance co that require them to share proprietary data and subject them the right regulation i'm sure that the doctors were not happy with the amendments t medical practice act that put creates that website and doubles the number of investigators and increases the statute of limitations and true of the plainest i was not happy with what happened it was kind of like a good settlement everybody walked away a male practice injury yes that's part of it there are effects that a little bit that they're asked to provide to this this man right and what the general simply did here was to look at the greater good at the greater good and patience as a whole the state as a whole benefits from this legislation as a whole because by solving the medical malpractise insurance problem doctors will start practicing again we're going to get neurosurgeons we've got neurosurgeons south of i eighty o b g y n start practicing again and when there's an enhancement in the medical services available to the people of the state of illinois it benefits everybody and and  true there are some every component of the legislation everybody got necked in this legislation but it was for the greater good and that's really central to the separation of powers analysis because it shows that the general assembly was not simply interested in tinkering with how the judiciary handles med mal cases but it was interested in solving health care problem which is it one of its core functions i think i've gone over my time unless there are further questions i'll turn the purposes the constitutional analysis it's essential to understand that the act at issue here is a comprehensive holistic health care access bill it is not a litigation reform bill as was true in some of the acts to construct an historically and it's true your honor there have everyone has been asked to give something including of course those who have suffered injury the same was true in grand trunk and was shown in the cases upheld under the workers compensation act in which undoubtedly workers who  suffered injuries far in excess of the caps imposed with the limitations imposed by that legislation certainly bore part of the public policy response of part of the burden of public policy response to that again holistic legislative response to a public problem the legislature in this case received credible evidence of a health care access crisis in illinois state wide though naturally it had specific impacts in particular regions and specialties and they understood they had they had credible evidence that there were three potential causes of this there are different theories some point fingers at each other as mr feinerman pointed out but some blame doctors and not just doctors generally but frequently the testimony focused on repeat offender physicians issues that continuously engaged in negligent misconduct that was one theory another was that the insurance industry the med mail insurance industry required drastic new regulatory reform and the third was that the unpredictability of not economic damage awards was putting tremendous pressure on the medical practice premiums they heard evidence of all three not mutually exclusive explanations for what was causing this crisis in the state of illinois they rate reasonably and rationally responded to all three and just as freeman response to your earlier question absolutely there is a need for deference to these findings aaron gold speaks not only of deference to factual findings but even rational  in the face of these three explanations they came down hard on all three with regard to insurance cannot be overstated the extent to which the dramatic nature by which insurance regulation was improved in the state of illinois there is dramatic new authority over rate setting whereas in the past regulators had to choose between rejecting outright a proposed rate increase now they may fine tune rate  proposed rate increases by medical malpractise insurers and they may do so in a public forum which is the it's me hearing that we cite and quote from in our brief explains and is available online hundreds of pages of testimony by witnesses who came forward to express views and am careful in my new dissection of the calculus underlying the rate setting process that is to me used for that proposed rate increase the increase was improved in that case but by virtue of this act the  insurance regulators were able to put all sorts of other conditions on its me including different payouts and other efforts to reduce risk among physicians there's also far more public transparency here and that is of course essential point our out in our brief to additional competition it's my understanding that competition is increasing as more and more statistical information proprietary data that had been understandably held close to the to the to the best historically  being made public and this was being used as our grief explains to allow for far greater competition in the illinois insurance market i understand my my time is expired unless the court has any questions i'd be happy  it please the court i'm michael god isman i'm representing the plaintiff at least here i too appreciate the court soloing and out of staters to appear i did spend four years here at the university of chicago i love them dearly  we would like time permitting to talk both about separation of powers and about special legislation which would be an alternative ground for affirming here our central point about separation of powers is that best squarely and categorically stands for the proposition that this way of solving a problem that is putting a cap on damages and you can pencil and compensatory damages in a civil in a common law action is not permissible and i would quote the key paragraph of best the paragraph that captures that holding and i'm quoting the cap is mandatory and operates wholly apart from the specific circumstances of a particular plaintiff's non economic injuries therefore it unduly encroaches upon the fundamental judicial praga to determining whether a jury's assessment of damages is excessive no mr o just quoted tells us what it unduly encroaches means if it's if it operates wholly apart from the specific circumstances of particular plaintiffs non economic injuries therefore it unduly encroaches so it is a categorical holding and the dissenting justice in best understood it to be a categorical holding that justice said and i'm quoting the majority's brought holding on this question means in essence that the legislature may never impose a limit on damages at least in common law actions no mr olson also quoted another passage from best in which the courts said that the outcome was dependent on the nature and the scope of the particular change in the law but that passage did not come in the discussion of separation of powers that passage was a part of the court's discussion of sept special legislation and of course when the question is whether legislation is special rather than general of course one needs to focus on the nature and scope of the statute and it's entirely understandable that that passage was in that part of the opinion the key is there is no such passage in the part of the opinion that dealt with separation of powers because the court's holding there was categorical no the argument has been made by the defendants that this statute is not really with the correctness of the jury's determination of damages the legislature is not second guessing the jury it's simply declaring as a matter of law that images are not recoverable that it what it's really saying is as a matter of law even though you did suffer these damages you shall not receive that well that argument was made in best it was made by the attorney general and best in our brief at page thirty four we quote the passages from the the legislature isn't invading the remeasured or power the legislature is simply declaring as a matter of law that some damages are recoverable and though the attorney general argued that and the dissenting judge did argue that the court's opinion in best expressly rejected that in the passage that i read the argument has also been made by the defendants that it should make a difference here that this statute was not simply targeting the recoveries the plaintiffs received but it is multi dimensional that it also of course as it does regulates insurance and regulates physicians but that's irrelevant to the separation of powers consideration  fact that this statute contains regulation of insurance doesn't mean the legislature is entitle to come and unduly encroach upon the judiciary's domain there are ways of course to address problems changed simply because the statute has some other provisions that don't involve the judiciary at all the argument has been made here today that the best decision has somehow been eroded by this court's subsequent decision  here what we're doing is not imposing a cap that reduces the verdict it is as just as indicated in questioning earlier simply saying that a defendant can be limited to year of the fault and the court expressly said what made this different from best is that this statute does not reduce the amount of the jury's verdict now it's the legislative reduction of the amount of the jury's he siegel case has been invoked for the proposition that this court prior to nine hundred seventy had already said that the legislature could put caps on damages and that therefore some instances of is that the legislation dealing with alien and of affection actions he's not affecting the recovery of actual damages it is only affecting the recovery of punit the court said were affected were recoveries from humiliation and shame and surely those are actual damages even though this court apparently misunderstanding that said they were not actual damages but back then one did not recover for emotional injury in the absence of a physical injury that's what the common law was and that's why at that time the court would  understood that recovery of shame and humiliation which was ordinarily not recoverable by someone who would not recover to physical injury that's why the court would not have understood that to be an imposition on the normal compensatory damages available in a common law action so there really is nothing either before best or after that that casts the slightest up on the central holding of best holding that the legislature can not dictate and compel this court to reduce a verdict which is not excessive in a common law cause of action now we have also argued that this statute violates special legislation and the other side has suggested or at least one of the briefs on the other side has suggested that the court shouldn't reach invalid then the legislature would have an interest in finding a solution that would pass constitutional muster and that opportunity should not be delayed for a period of years by remanding on this and in talking about special legislation here i want to assume something which we've argued vigorously against in our brief we have suggested that the evidence before the legislature clearly demonstrated that it was not rising malpractise awards that were driving the increase in insurance premiums that indeed the data that had been supplied by its me itself the largest insurer the insurer of more than fifty percent of the policies in the state showed that what it's premiums had been rising dramatically its payouts both in lawsuits and in settlements had remained flat so that what was driving that increase were things quite totally unrelated to malpractise awards but for the moment let's assume that the legislature could have reasonably concluded otherwise and that therefore it would not be sufficient simply to impose the insurance reforms and the additional regulation of physicians that this statute proposed nonetheless the way the legislature went about it and let me back up and say suggested that in that circumstance it was necessary to get a contribution from health care consumers that is that what was needed here was not only some sacrifice by appendices as you know reasons why you should conclude that in fact the legislature didn't didn't rationally conclude that the recovery's and malpractise awards were a part of the problem that was presented but the points that i want to make assume for the moment that that the court would say as it has that in prior cases you may be right but the legislature might reasonably have concluded otherwise and we're not here to second guess them even on that assumption what the legislature did here was a violation of some special legislation and a violation in terms that were clearly shown to be violations in four prior can't decisions of this case best right grace and grass all of which found violations under the special legislation clause in circumstances like this there are several reasons for this  the first and the most obvious is one of the reasons that was given in both the best decision and the right decision both of those cases that violate special legislation to distinguish between the slightly injured and the seriously injured and to impose the entire burden the entire sacrifice if you will under most seriously injured people and of course that's what this statute does it says that  plaintive infant in this case who suffered at birth and will suffer for a lifetime severe brain injury cerebral palsy cognitive mental impairment the inability to feed normally such that she has to be through to for her entire life and inability to develop normal neurological function now here's a child who's noneconomic damages recovery would likely  liabilities five would likely exceed and perhaps exceed substantially the caps that are contained in the statute this child will make an enormous contribution to the solution of the problem assuming that contribution is needed but those who are injured modestly will make no contribution and of course those patients who were not injured at all but who could have been after all were talking about insurance premiums and the need to put controls on insurance premiums well at the point at which the insurance is being paid everybody is potentially the victim who it would be for whom the insurance proceeds would be needed but and even though the attorney general says health care consumers ought to contribute to this solution the only people being asked to contribute to this solution are the most seriously injured people almost by definition said constituted a violation of special legislation you can't get that contribution but imposing it solely on the most seriously injured people this statute  legislation in other ways that are somewhat different from those two cases as well it favors high wage earners as opposed to other citizens imagine two people who are  victims of medical malpractise one of them is a very high earner and suffers relatively little pain and suffering but has suffered an enormous loss of wages let's say three million dollars this statute does not happen the three million dollars that victim will recover three million dollars the other victim is someone like our plaintiff in this case whose pain and suffering would let's assume justify an award and would garner an award from a jury of three million dollars she will recover only a fraction of her recovery even though the jury's determination and appropriate determination is that each of them suffered the same amount one of them is going to recover fall here and the other is not and it is in that sense discrimination between high wage legislation now of course the special legislation clause in the constitution says that special legislation is invalid if there could be a general law that would say the same problem so our position here is not that even if it were true that the insurance reforms in the physician reforms alone wouldn't solve this problem and even if it were true that some contribution from health care consumers was needed our position is not well sorry you can't have that illinois illinois will just have to suffer all the horrible consequences that would flow from that and again i'm assuming for the moment that some contribution beyond the insurance reforms was necessary because there are myriad ways in which the legislature could have distributed this is an additional contribution that was required so that it didn't focus solely on the most seriously injured people and just go to sleep i'd like to go back maybe i didn't fully understand your argument with regard to the highway or low wage or isn't that true in every case where  what makes this statute different is that the high wage earner is going to recover the hundred percent of his or her damages but the low wage earner who suffered pain and suffering is not going to recover one hundred percent that's the distinction it's not that low wage earners ought to get the same wages as high wage earners it's that people who are similarly situated and they each suffer to three million dollars are going to be treated differently because one of them's injury was a l wages and the other is was a tragic set of such not economic circumstances that would justify an award of equal size just to suggest some of the ways that this additional contribution could have been ma e from health care consumers and again with the attorney general's brief says it is as some sacrifice was needed from health care consumers because all of them are going to benefit from the provisions of this statute well if that's right then all of them should be contributed that could be accomplished in several different ways one the legislature could do what it did in workers compensation it could say we are we are going to withdraw the medical malpractise common law action and replace it with a no fault compensation scheme that's one way a second way would be to say that premiums above a level would be paid by the from general revenues that would distribute the cost to everybody it would be health care consumers another way which at least in maryland is not and i don't know if other states has done have done this merlin has a rule that when you go to one of those categories of doctors who have been most affected o b g y n and neurosurgeons each office visit there is an eight cents that's all it is an is not that even if a contribution is needed the law doesn't allow you to have what our position is that if a contribution is needed then it ought to be shared by all who are getting the benefit of this just as the attorney general ar be the case that if are going to benefit all should sacrifice and there are ways to do it but i remember the last point about special legislation is that no sacrifice from the health care  consumers should be required unless the legislature first decides that the problem can't be so by correcting the wrongdoing there's no doubt that there were two aspects of the wrongdoing that were driving malpractise ra one i'm sorry you have now practice insurance premiums one is as is no dramatically clearer and it indeed was clear at the time the legislature was considering this ismy which virtually monopolize the insurance industry and in the state had raised its rates dramatically even though there were no pets and in fact we were told by the briefs of the other side that three years later this statute has been well why has it been a remarkable success does nothing to do with the caps on malpractise because everybody said at the time of the legislation we would begin to see the effect of the caps on practice awards for at least three years because it's only going to apply to injuries that occur after this that should occur it's occurred because the insurance premiums have dropped because the because it is me was required to disclose what its experience ha been the reason that other insurers were unwilling to come into illinois and compete with his me is because isn't illinois was virtually alone in not requiring insurance companies to disclose what their experience was by category of physician and setter in the absence of that information insurers were unwilling to come into and i guess they didn't know how to price their premiums what do you charge as a premium to an o b g y n we need to know what the experience is with that category the evidence was being withheld once it is me was required to disclose that data huge numbers of additional insurance companies came in we got exactly what you'd expect we got competition in premium or was that information co for the it states what the legislature had was the gross numbers that is the legislature knew that the medical malpractise i'm sorry that this means pets for both malpractise awards and for settlements had remained flat we described all of that in our pre that information was before the legislation so they had two pictures they had the picture of flat mail practice rates now practice awards and the picture of escalating malpractise premiums  and that's why we say that they really didn't have a justification for going beyond the insurance reforms and logically the physician reforms as well what was not before the legislature because it is needed never disc was well ok your pants were flat but we need to know what they were by category of physicians because what computing insurers were saying is we need to know how to price the premiums for various categories of doctors and unless we can get the information particular categories of doctors we don't know what to charge and as soon as he was required to give that data so we had to grow stated that there was no increase but we didn't have the test specific da to us that you are benson know two things number one that in fact the total amount of patents had not increased over the five years preceding the an act of this that both lawsuits and settlements there was not an increase in payouts by insurers or mt practice so that was we think really undisputed there was a there were a lot of people that when i say undisputed the empirical evidence was undisputed there were people getting up and saying oh the sky is falling in malpractise awards are rising it but there was no evidence to support that and the legislature also knew that well that figure was flat the premiums were rising dramatically the legislature also knew that it's me virtually monopolize the market in illinois and that others weren't competing and they were told that the reason others weren't competing is that other insurance companies didn't have the data th well we have argued in the best in the last part of your brief that as a matter of equal protection the statute is irrational and it is irrational because of this very things that i've just been talking about no but you certainly don't need to decide that  to decide that we're right on the separation of powers and on special legislation because remember the special a distillation arguments that i made were even assuming a contribution was required from patients it's inappropriate to put the entire contribution on the most seriously injured people because as the attorney general says everyone benefited you know every health care consumer is getting the benefit of the statute and therefore the health care  consumer class ought to contribute well even if you believe there was this neat and that the health care consumer quest should contribute we say it's a violation of special legislation to put the entire contribution on the shoulders of the people who suffer the most and that after all is what's best and right health so i've said my piece some course available if the court has any question i will attempt to limit my portion of rebuttal to seven half minutes and allow a seven and a half minutes for mr flamm and i understand it's our responsibility to do n o it's very important to put this in focus what the plaintiffs are saying and it's quite clear that the best case stands for squarely and unequivocally croly prohibits all legislative limits on the recovery of common law damages all caps unduly encroach therefore the legislature may not do it that is essentially saying that the legislature of illinois cannot do what every other state in the united states can and does do in connection with not just medical malpractise cases but other types of cases and the congress of the united states does it stablish is standards this court has said that it can the legislature can change the remedies and availability of recoveries under the common law mr goddess and says that the legislature cannot do that the but this court  already upheld restrictions on punitive damages on not economic damages in that state siegel case talk not just in terms of damages for humiliation but damages to reputation which are not economic damages the court  legislature of the state has changed joint and several liability it's changed its crew it's established legislation as one of the other briefs talk about it in the innkeeper liabilities area good samaritan laws all of those kinds of things are changes by the legislature up pursuant to the need to address specific problems so that the choice is either best does not stand for that absolute prohibition it stands for und encroachments the only way to determine what is an undue encroachments is to look at the nature of the alleged encroachments and the scope of the alleged encroachment and determine whether it is on do or not i submit that this court cannot adopt or should not adopt the categorical definition of the absolute limit on legislative authority that the plaintiffs are proposing in this case because the people have got to go to their legislature the legislature is equipped this court is not equipped to hold hearings and your testimony to decide what the policies of the state chill be with respect to recovery of damages under the common law now the alternative is either do to construe the best decision as limited to the circumstances there where it was a blunderbuss approach to all kinds of personal injury tort cases or to determine that in fact this is not a remittance or a standard with respect to recovery of damages is not a re minutes or an a case by case judgement in individual cases where the ridge or a has gone beyond the bounds permitted to it is a remit a term but that's not what the legislature did now what did the legislature do it it reserved all economic damages it imposed very high limits on the recovery of non economic damages those type of damages which are subject to very subjective and subject to abuse what affects the policy rates of insurance companies is the predictability and understanding of what kind of risk is out there  can make consider those statements but what the court must do what the hardest said it must do is give great deference to the legislature who heard all of that evidence who evaluated all that evidence and made a policy judgment with respect well with respect to the issue of the difference between the plaintiffs any cap on liability or any cap on damages is going to affect first and sue allegedly incurred the most damage but the london legislature did is what th very carefully described in the mega vs holy cross case a few years ago it valid we if the legislature concluded and did that there was a serious crisis in the availability of doctors hospitals and medical care in this state who does that affect the worst people who are in the least favorable economic segment of our society are the ones that are having the most would have the most trouble having access to doctors medical care specialists and that sort of thing so some judgment has to be made if there is a problem the legislature said there was a problem found it was a problem by doing its job by listening to all sides and taking the evidence and determined what the solution medical malpractise actions and the public's interest in having available to it affordable medical care all pieces of legislation are compromises their invariable invariably compromises but that's why we do have a separation of powers that's why we have elected representatives that can spend a year considering these things looking the problem as a whole not with respect to one particular case now it's important to emphasize that the compromise that the legislature made in this case is the same type of compromise that twenty nine other states have done many of those other states have lower caps on non economic damage recovery than the state of illinois did rest of them are either very adenike of what illinois did or or some a slightly higher but the point i guess with respect to that is not because you're going to decide that what the legislature in california or texas or nebraska did is is just what you have to do what the legislature judged the reasonableness of the judgments of the legislature are not just measured by deference to the nature of the problem and the nature of the solution that the legislature crafted which is debatable you have to defer to i submit but the fact that twenty nine other legislatures at least were looking at similar types of problems coming up with similar types of conclusions how irrational is that that can't be that irrational if that many other states are doing it with respect to that same point including the legislative remember to case we cited the five cases where were the courts have considered that and said that just is not consistent with what the separation  concepts are i submit and i want to let mr feinerman have the balance of the time of our rebuttal is that there was a serious problem here this court has recognized in a number of its cases that there is that serious problem in the mel practice area the legislature made compromises there always will be compromises and always will be people that would like things differently but the greater good that is to say that the preamble to the state constitution is the health benefit welfare of the people of the state overall in order to provide medical services in a in a way where the which are affordable and available to the people the legislature listened to all the evidence and said we've got to do a number of things one of which is limits  not economic damages in the same sense that other states have done it and have been successful doing it thank you  thank you i'm going to try and leave a little bit of time for mr skoda as well and i know we're we have to keep that time play as counsel said that the entire burden fell on injured plaintiffs that is not true in a number of respects the burden o e were there are no limits on liability for economic damages that includes lost wages medical care and the life care plan and with an injury of this nature those damages can go up into the eight  figures so we're not leaving somebody we're not leaving injured plaintiffs without any redress there's going to be significant redress with respect to these economic damages and you respond to mr his argument th constitutional principle that says that everybody in the state of illinois has to bear a burden in order for a statute to be constitutional and bernier versus burris the all of the burden fell on medical malpractise  points and that was declared constitutional the what the burden sharing shows in the burns are spread very widely across all stakeholders is that the general assembly was not focused on trying to take or with w what happens in the judiciary what happens in medical malpractise litigation what it shows is that the general simply was sincerely focused on a health care problem and it attacked that problem from all sides requiring sacrifice from a wide variety of stakeholders and that's key to the separation of powers analysis in bass there was no discernible relation between the means that the general assembly chose and the and  fixing what was wrong in the tort system here the general simply focused like a laser beam on persuasive the problem didn't affect any of the other professions focused on doctors didn't affect any of the other insurers focused on medical malpractise insur didn't focus on economic damages i did if didn't didn't focus on any other tour cases so we focused on medical malpractise cases and so we focused on the one element of medical malpractise cases and noneconomic damages that was that were they're they're all subject to the same cap and yes by definition a cap caps damages a liability limit limits liability and that will affect those who have suffered the most harm what mr g saying to the logical conclusion of what mr got just one sentence saying is that because caps a fact and limits affect the most severely injured plaintiffs caps and limits are per se kind of unconstitutional that's what he's asking you he's very candid that's what he's asking you to hold and that cannot be so that argument proves too much it's not that caps cap damages or that liability limits limit liability it's why what's the reason the general assembly chose to do so and here the general assembly had a very good reason there was a health care crisis there were no neurosurgeons treating brain injuries south of eye doctors were leaving the state the general simply chose a multifaceted comprehensive solution to that problem turned it over to appropriate police power on behalf of on the part of the general assembly and just to conclude a point that mr fein was also making the idea that there are certain individuals who will suffer or will end up i suppose being a greater burden here is true in this he said in bernie are those who would have been entitled to punitive damages would have been true and unser her those were the only solvent tortfeasor was liable for only twenty four percent of the liability in that case it would have been true anderson with th before your statute of repose in medical malpractise cases was upheld for the individual who first discovered their injury for years and one day after that occurred and it's certainly true in the workers compensation context where there were no caps the whole categories of common law liability was eliminated pain and suffering and so on that of course in exchange for a benefit for workers broadly to ensure access to payments but certainly those who would have been entitled to those common law remedies in a sense for a burden that workers who were