The slip opinion is the first version of an opinion released by the Chief Clerk of the 

Supreme Court. Once an opinion is selected for publication by the Court, it is 

assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-

112 NMRA, authenticated and formally published. The slip opinion may contain 

deviations from the formal authenticated opinion.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ____________________

Filing Date: March 15, 2021

NO. S-1-SC-37231

SUSAN L. SIEBERT,

Plaintiff-Appellee,

v.

REBECCA C. OKUN, M.D., 

and WOMEN’S SPECIALISTS 

OF NEW MEXICO, LTD.,

Defendants-Appellants.

CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS

Victor S. Lopez, District Judge

Hinkle Shanor, LLP

William P. Slattery

Dana Simmons Hardy

Santa Fe, NM

Dickinson Wright, PLLC

Bennett Evan Cooper

Phoenix, AZ

Lorenz Law

Alice Tomlinson Lorenz

Albuquerque, NM

for Appellants 
Curtis & Co.

Lisa Curtis

Laura R. Callanan

Albuquerque, NM

The Law Office of Amalia S. Lucero, LLC

Amalia J. Skogen Lucero

Placitas, NM

for Appellee

John W. Anderson, Attorney at Law P.C.

John William Anderson

Albuquerque, NM

Shook, Hardy & Bacon, LLP

Mark A. Behrens

Cary Silverman

Washington, D.C.

for Amici Curiae New Mexico Medical Society and American Medical 

Association

Rodey, Dickason, Sloan, Akin & Robb, P.A.

Edward R. Ricco

Albuquerque, NM

for Amicus Curiae New Mexico Hospital Association

University of New Mexico School of Law

Michael B. Browde

David J. Stout

Albuquerque, NM

American Association for Justice 

Elsie Sanguinetti, President

Jeffrey White, Senior Associate General Counsel

Washington, DC

for Amici Curiae New Mexico Trial Lawyers Association

and American Association for Justice
OPINION

VIGIL, Justice.

{1} This case requires us to consider whether the cap on all damages other than 

medical care and punitive damages under the Medical Malpractice Act (MMA), 

NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 2015), violates the right 

to trial by jury guaranteed by Article II, Section 12 of the New Mexico Constitution. 

Plaintiff Susan L. Siebert successfully sued her doctor, Rebecca C. Okun, M.D., and 

Women’s Specialists of New Mexico, Ltd. (WSNM) for medical malpractice under 

the MMA. Following the return of the jury’s verdict, Defendants Dr. Okun and 

WSNM moved to reduce the jury award of $2,600,000 to conform with the $600,000 

cap on all nonmedical and nonpunitive damages in MMA actions. See NMSA 1978, 

§ 41-5-6(A) (1992). 

{2} The district court denied Defendants’ motion, concluding that the MMA 

nonmedical, nonpunitive damages cap infringed the state constitutional right to a 

trial by jury. In doing so, the district court ruled in direct opposition to the Court of 

Appeals’ holding in Salopek v. Friedman, 2013-NMCA-087, ¶ 58, 308 P.3d 139. In 

addition, the district court suggested without deciding that the cap might implicate 

the equal protection, substantive due process, and separation of powers provisions 

of the New Mexico Constitution. N.M. Const. art. II, § 18; N.M. Const. art. III, § 1. 
2

{3} We review this case upon acceptance of certification from the Court of 

Appeals. Siebert v. Okun, A-1-CA-36067, Order of Certification to the New Mexico 

Supreme Court (Sept. 4, 2018); Siebert v. Okun, S-1-SC-37231, Order (Sept. 24, 

2018). As we explain herein, we hold that the MMA nonmedical, nonpunitive 

damages cap does not violate Article II, Section 12, and we reverse the district 

court’s denial of Defendants’ motion to conform the judgment in accordance with 

the statutory cap. See § 41-5-6(A).

I. BACKGROUND

{4} Plaintiff suffered injuries due to perforations in her uterus and intestine after 

a hysteroscopy performed by Dr. Okun, an employee of WSNM. Subsequently, 

Plaintiff brought suit against Defendants. Because Defendants were “qualified” 

health care providers as defined by the MMA, NMSA 1978, § 41-5-5(A) (1992), the 

provisions of the MMA applied to Plaintiff’s suit for medical malpractice.

{5} The MMA statutory scheme is a quid pro quo, whereby qualified health care 

providers are afforded certain legal protections only if they take financial action in 

anticipation of medical negligence lawsuits. Specifically, a qualified health care 

provider under the MMA must pay an annual surcharge into the statutorily-created 

patient’s compensation fund and either provide proof of professional liability 

insurance of at least $200,000 per occurrence or, for an individual health care 
3

provider, have a continuous deposit of $600,000 with the state superintendent of 

insurance. NMSA 1978, §§ 41-5-3(A) (1977), -5(A), -25 (1997). In exchange for 

these financial contributions and assurances, the MMA provides qualified health 

care providers with various benefits. See generally Baker v. Hedstrom, 2013-NMSC043, ¶ 18, 309 P.3d 1047 (reviewing the benefits provided by the MMA to qualified 

health care providers). Among those benefits, the MMA caps nonmedical, 

nonpunitive damages awards at $600,000 and limits the qualified health care 

provider’s personal liability to $200,000. Section 41-5-6; NMSA 1978, § 41-5-7(E) 

(1992). Any remaining amount of the judgment exceeding the personal liability cap 

is paid out of the patient’s compensation fund. Sections 41-5-7(E), -25(G). Most 

pertinent to this case is the cap on an award of nonmedical, nonpunitive damages 

under Section 41-5-6(A).

{6} Section 41-5-6(A) provides that, “[e]xcept for punitive damages and medical 

care and related benefits, the aggregate dollar amount recoverable by all persons for 

or arising from any injury or death to a patient as a result of malpractice shall not 

exceed six hundred thousand dollars ($600,000) per occurrence.” The amount 

recoverable for a malpractice claim under the MMA does not include awards for 

future medical expenses, but if the jury finds that a successful plaintiff is in need of 

future medical care, that plaintiff may receive payment for reasonable future medical 
4

expenses as they are incurred. Sections 41-5-6(C), -7(A)-(B), -(D). Awards for those 

future medical expenses are not capped. Section 41-5-7(C). In other words, the jury 

in an MMA action determines whether a plaintiff is entitled to future damages but 

does not award a specific amount following the trial. The amount awarded for future 

medical care is established in subsequent evidentiary hearings. Section 41-5-7.

{7} The jury in this case awarded Plaintiff $2,600,000 in total damages. The 

damages award was not disaggregated into various categories of damages. This is 

because the district court failed to give the required special interrogatory asking the 

jury to state the amount of damages it awarded for past medical care and benefits. 

UJI 13-1126 NMRA. In addition, the jury was incorrectly instructed to award 

damages for Plaintiff’s future medical care in violation of Section 41-5-7. The jury 

was not given the required special interrogatory asking if Plaintiff was in need of 

future medical care, UJI 13-1125 NMRA. For these reasons, we are not certain how 

much of the jury’s verdict was intended to compensate for past medical care and 

nonmedical injuries, and we do not know whether any amount of the jury’s award 

was intended to compensate for future medical care. However, the jury was 

instructed that Plaintiff’s medical expenses totaled $935,916.15. We therefore accept 

that this amount of the jury’s verdict was intended to compensate Plaintiff for her 

existing medical expenses by the time of the trial. The jury was also instructed that 
5

it could award compensation for various nonmedical injuries, such as pain and 

suffering, loss of household services, and loss of enjoyment of life, among other 

injuries. The jury was not instructed on punitive damages. 

{8} The district court entered judgment against Defendants for the total amount of 

the jury’s verdict. Defendants subsequently moved to amend the judgment to 

conform to the damages cap of Section 41-5-6(A). Defendants argued that the total 

award should be reduced to $1,535,916.15, representing the stipulated amount of 

Plaintiff’s existing medical expenses ($935,916.15) plus $600,000 for Plaintiff’s 

capped nonmedical damages. In response, Plaintiff argued that the MMA 

nonmedical, nonpunitive damages cap was unconstitutional, specifically violating 

the right to a jury trial as guaranteed by Article II, Section 12, the separation of 

powers provision of Article III, Section 1, and the equal protection and substantive 

due process clauses of Article II, Section 18. 

{9} After an evidentiary hearing on the constitutional issues, the district court 

issued its memorandum opinion and order, which concluded that Article II, Section 

12 was “clearly implicated and dispositive” and that the MMA nonmedical, 

nonpunitive damages cap violated Plaintiff’s right to a jury trial. The district court 

stated that the constitutional separation of powers, equal protection, and due process 

provisions might also be implicated but declined to decide those issues. 
6

{10} Defendants appealed to the Court of Appeals. Because the Court of Appeals 

had already addressed the issues presented by this case in Salopek, 2013-NMCA087, it certified the case to this Court pursuant to NMSA 1978, Section 34-5-14(C) 

(1972), and Rule 12-606 NMRA. Siebert, A-1-CA-36067, Order (Sept. 4, 2018).

II. DISCUSSION

{11} In its certification order, the Court of Appeals identified the following 

significant questions of law: (1) whether the district court erred by concluding that 

the MMA nonmedical, nonpunitive damages cap violates the right to a trial by jury; 

(2) whether the district court erred in suggesting that the MMA nonmedical, 

nonpunitive damages cap violates the separation of powers provision; and (3) 

whether the district court erred in suggesting that the MMA nonmedical, nonpunitive 

damages cap violates equal protection and substantive due process. Id. We accepted 

certification. Siebert, S-1-SC-37231, Order (Sept. 24, 2018). With this opinion, we 

answer the first question posed by the Court of Appeals—whether the MMA 

nonmedical, nonpunitive damages cap violates the state constitutional right to trial 

by jury. We do not address the remaining certified questions because the district 

court merely suggested that the separation of powers, substantive due process, and 

equal protection provisions of the New Mexico Constitution “may also be 

implicated.” The district court did not definitively rule that the cap violated any 
7

constitutional guarantees aside from the right to trial by jury. For that reason, 

analysis of any other constitutional issues is not necessary to the disposition of the 

case before us. We therefore decline to answer the second and third questions posed 

by the Court of Appeals. See Schlieter v. Carlos, 1989-NMSC-037, ¶ 13, 108 N.M. 

507, 775 P.2d 709 (“It is an enduring principle of constitutional jurisprudence that 

courts will avoid deciding constitutional questions unless required to do so. We have 

repeatedly declined to decide constitutional questions unless necessary to the 

disposition of the case.”). For the reasons that follow, we hold that the MMA 

nonmedical, nonpunitive damages cap does not violate Article II, Section 12.

{12} Constitutional challenges to a statute are reviewed de novo. Bounds v. State 

ex rel. D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457. When reviewing a statute 

under a constitutional challenge, a “strong presumption in favor of constitutional 

validity . . . attaches to legislative enactments.” Otto v. Buck, 1956-NMSC-040, ¶ 

16, 61 N.M. 123, 295 P.2d 1028.

{13} The New Mexico Constitution provides that “[t]he right of trial by jury as it 

has heretofore existed shall be secured to all and remain inviolate.” N.M. Const. art. 

II, § 12. This right pertains to civil causes of action that were triable by jury at the 
8

time the New Mexico Constitution was adopted and took effect.1 State ex rel. Bliss 

v. Greenwood, 1957-NMSC-071, ¶ 15, 63 N.M. 156, 315 P.2d 223 (“[I]n that class 

of cases where the right to a trial by jury existed prior to the Constitution, it cannot 

be denied by the legislature.”).

{14} Defendants bring this appeal, arguing that Plaintiff’s right to trial by jury was 

not violated for two reasons. First, relying on the Court of Appeals’ holding in 

Salopek, 2013-NMCA-087, ¶¶ 49-58, Defendants claim that the jury right does not 

attach to medical malpractice cases under the MMA because the MMA is a statutory 

cause of action that did not exist at the time the New Mexico Constitution came into 

effect. Second, Defendants argue that the MMA nonmedical, nonpunitive damages 

cap does not even implicate the right to a jury trial because the cap merely gives 

legal effect to the jury’s damages award; the cap does not invade the jury’s role as 

fact-finder. Put another way, regardless of whether the right to a jury trial attaches 

 

1This case implicates only the state constitutional right to a jury trial in civil 

cases as the analogous federal right articulated in the Seventh Amendment applies 

only to “Court[s] of the United States.” Despite this distinction, we consider federal 

precedent relevant to our analysis of the state right to a jury trial in civil cases. Bd. 

of Educ. of Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, ¶ 34, 118 N.M. 470, 

882 P.2d 511. This is because both constitutional provisions preserve the right to 

jury trial as it existed in the jurisdiction at the time each constitution was adopted. 

See id. ¶¶ 33-34 (providing that both the Seventh Amendment to the United States 

Constitution and Article II, Section 12 of the New Mexico Constitution “preserve[] 

the common law right to jury trial and do[] not create a new or broader right” 

(internal quotation marks and citation omitted)).
9

to actions brought under the MMA, the damages cap does not violate the jury right 

but instead limits the scope of a plaintiff’s available legal remedy.

{15} We address each argument in turn and conclude that the MMA nonmedical, 

nonpunitive damages cap does not violate the right to trial by jury. While we agree 

with the outcome in Salopek, in which the Court of Appeals held that the cap did not 

violate Article II, Section 12, we must overrule its conclusion that the constitutional 

jury right does not attach to MMA causes of action. To the contrary, we hold that 

the constitutional right to trial by jury applies in cases brought under the MMA. 

Though the constitutional jury right applies in MMA cases, we further hold that the 

damages cap of Section 41-5-6(A) does not violate the right to trial by jury because 

the cap does not invade the province of the jury. Rather, this statutory damages cap 

merely gives legal consequence to the jury’s determination of the amount of the 

verdict.

A. The Constitutional Right to Trial by Jury Attaches to Causes of Action 

Brought Under the MMA

{16} To determine whether the right to trial by jury extends to a specific cause of 

action, we assess the general nature of the claim to determine whether the specific 

cause of action would have been tried to a jury prior to the effective date of the New 

Mexico Constitution. In identifying the general cause of action at issue, we “must 

consider whether such an action fits within that ‘class of cases’ in which the right 
10

[to a jury trial] existed either at common law or by statute at the time” the New 

Mexico Constitution was adopted and took effect. See Greenwood, 1957-NMSC071, ¶ 15. We have explained that to determine whether the cause of action at issue 

lies within the class of cases to which the jury right applied, “the relevant question 

is whether the more generally described cause of action, such as breach of contract 

or breach of fiduciary duty, was triable to a jury.”2 Lisanti v. Alamo Title Ins. of Tex., 

2002-NMSC-032, ¶ 13, 132 N.M. 750, 55 P.3d 962 (emphasis added). It is “the 

cause of action, not its specific manifestation, [that is] dispositive.” Id. ¶ 14 (citing

Harrell, 1994-NMSC-096). 

{17} When assessing the general cause of action, we must also consider whether 

the requested relief is legal or equitable in nature. See Harrell, 1994-NMSC-096, ¶¶ 

35-37; see also Granfinanciera, 492 U.S. at 41 (“‘Suits at common law’ . . . refer[s] 

to ‘suits in which legal rights were to be ascertained and determined, in 

contradistinction to those where equitable rights alone were recognized, and 

 

2The Lisanti rule is substantively similar to the analysis used by federal courts 

to determine which cases trigger the jury right under the Seventh Amendment. In 

Granfinanciera, SA v. Nordberg, the United States Supreme Court explained that the 

right to a jury trial in civil cases “applies to actions brought to enforce statutory rights 

that are analogous to common-law causes of action ordinarily decided in English 

law courts” at the time the United States Constitution was adopted. 492 U.S. 33, 41-

42 (1989).
11

equitable remedies were administered.’” (citations omitted)). If the sought relief is 

solely equitable in nature, the right to jury trial does not attach. See id. We need not 

linger on this consideration because Plaintiff seeks a legal remedy in the form of 

monetary damages for negligence. The critical inquiry in this case is two-fold: (a) 

whether causes of action brought under the MMA can be “more generally described” 

as causes of action in common-law medical negligence, see Lisanti, 2002-NMSC032, ¶ 13, and (b) whether claims of common-law medical negligence were triable 

to a jury at the time the New Mexico Constitution was adopted and took effect. We 

begin our analysis with an examination of the Court of Appeals’ opinion in Salopek, 

the principal case upon which Defendants rely in bringing this appeal.

1. A claim under the MMA can be more generally described as a cause of 

action in common-law medical negligence

{18} In Salopek, the Court of Appeals concluded that the MMA created a new 

statutory cause of action that was distinct from a claim of common-law medical 

negligence. 2013-NMCA-087, ¶ 58. In that case, the plaintiff sued his doctor for 

medical malpractice under the MMA. Id. ¶ 5. The jury found that the doctor was 

negligent in failing to pressurize the plaintiff’s colon in order to locate a perforation 

and awarded the plaintiff $1,000,000 in damages. Id. ¶¶ 3, 5. The district court 

reduced the damages award to $600,000 pursuant to the damages cap of Section 41-

5-6(A). Id. ¶ 5. On appeal, the plaintiff argued, among other things, that the cap on 
12

damages violated his constitutional right to trial by jury under Article II, Section 12. 

Id. ¶¶ 49, 51. The Court of Appeals disagreed and held that the constitutional jury 

right did not attach in the plaintiff’s case because an action for medical malpractice 

under the MMA was “an entirely new statutory cause of action that was not 

recognized under the common law.” Id. ¶ 50.

{19} In support of this conclusion, the Court of Appeals described four ways in 

which it considered a claim under the MMA distinct from a common-law claim of 

medical negligence. Id. ¶¶ 53-58. First, under the MMA, a plaintiff must submit his 

or her claim to the statutorily-created medical review commission, which assesses 

the plaintiff’s likelihood of success and, upon determining that the acts complained 

of “might constitute malpractice,” provides the plaintiff assistance in obtaining “a 

physician qualified in the field of medicine involved” to serve as a consultant and 

expert witness at trial. Id. ¶ 54; NMSA 1978, §§ 41-5-14, -15, -20, -23 (1976). No 

such review of the case and conditional provision of an expert is afforded the 

plaintiff in a common-law medical negligence claim. Salopek, 2013-NMCA-087, 

¶ 54.

{20} Second, the MMA provides a statute of repose requiring a plaintiff to bring a 

claim within three years of the act of malpractice, NMSA 1978, § 41-5-13 (1976), 

as opposed to the statute of limitations for common-law medical negligence claims 
13

which permits claims to be brought “within three years from the time that the patient 

discovers, or with reasonable diligence should have discovered, that a claim exists.” 

Salopek, 2013-NMCA-087, ¶ 55.

{21} Third, the MMA caps the defendant health care provider’s personal liability 

at $200,000 for “all medical care and related benefit payments,” § 41-5-7(E), and 

the MMA also created the patient’s compensation fund to cover any amount that 

exceeds the personal liability cap. Salopek, 2013-NMCA-087, ¶ 56; §§ 41-5-6(D), -

25. No such cap or compensation fund exists at common law, so a defendant in a 

common-law medical negligence case “is liable for all actual damages proximately 

caused.” Salopek, 2013-NMCA-087, ¶ 56.

{22} Finally, under the MMA, a successful plaintiff found to be in need of future 

medical care is not awarded future medical damages at trial but is instead 

compensated for continuing medical care as those expenses are incurred, § 41-5-

7(B), (D), and the district court maintains continuing jurisdiction to enforce payment 

to the plaintiff, NMSA 1978, §§ 41-5-9, -10 (1976). Salopek, 2013-NMCA-087, ¶ 

57. In contrast, a successful plaintiff in a common-law medical negligence claim 

may recover only once for future medical care if the jury accounts for those expenses 

within its damages award. Id.; see UJI 13-1804 NMRA. In other words, under a 
14

traditional common-law medical negligence lawsuit, there is no determination of 

future medical expenses beyond the jury’s award of damages at trial.

{23} In light of these distinctions and the aim of the Legislature to create a statutory 

scheme for medical malpractice that would benefit patients as well as appease 

insurance providers, the Court of Appeals held that the MMA was sufficiently 

distinct from common-law medical negligence so as to constitute an entirely new 

statutory cause of action to which the constitutional jury right did not attach. 

Salopek, 2013-NMCA-087, ¶ 58 (“[W]here the Legislature creates a right of action 

pursuant to a special statutory proceeding, there is no right to a jury trial under our 

constitution unless the statute so provides.” (brackets omitted) (internal quotation 

marks and citation omitted)).

{24} We disagree with the Court of Appeals’ analysis and conclusion that an MMA 

claim is a cause of action that is distinct from common-law medical negligence. In 

reaching its conclusion, the Salopek Court relied on procedural distinctions between 

MMA and non-MMA medical negligence cases. Id. ¶¶ 53-58. These procedural 

distinctions evidence only the Legislature’s intent to alter the way in which a medical 

negligence claim is brought against a qualified health care provider. Id. ¶¶ 52-53, 

58. While procedural requirements dictate how a claim may be asserted, they do not 

affect the general substantive nature of a cause of action. Thus, heavy reliance solely 
15

on the procedural differences between MMA and non-MMA claims runs counter to 

the principles we pronounced in Lisanti. Consistent with our precedent, in order to 

determine whether an MMA claim can be “more generally described” as a claim of 

medical negligence at common law, we must examine the core substantive elements 

of each type of claim. See Lisanti, 2002-NMSC-032, ¶ 13.

{25} The substantive elements of a medical malpractice claim under the MMA and 

the substantive elements of a medical negligence claim at common law are 

indistinguishable. This is reflected in our jury instructions. The same jury 

instructions are used for MMA and non-MMA cases alike to explain “the basic 

elements of a medical negligence (malpractice) action.” Rule Set 13 (“Uniform Jury 

Instructions—Civil”), Ch. 11 (“Medical Negligence”) Intro. NMRA. These 

elements include duty, breach of that duty “by departing from the proper standard of 

medical practice recognized in the community[,]” and proximate causation of the 

plaintiff’s injuries. Diaz v. Feil, 1994-NMCA-108, ¶ 5, 118 N.M. 385, 881 P.2d 745; 

see UJI 13-1101 (duty and breach of duty), -1116A (causation for failure to warn of 

potential injury arising from treatment of conditions), -1116B NMRA (causation for 

failure to warn of potential injury resulting from untreatment of conditions). Under 

both types of claims, the jury is asked to assess damages. See Rule Set 13, Ch. 18 
16

(“Damages”) Intro. NMRA (“Instructions on damages follow as a matter of course 

in all cases wherein an issue is submitted to a jury on the recovery of damages.”).

{26} There are only two slight statutory differences affecting how the jury is 

instructed in MMA cases and cases of common-law medical negligence, neither of 

which pertain to the elements a plaintiff must prove in these types of cases. We 

consider these differences procedural rather than substantive. First, in an MMA case, 

the jury is not informed of the statutory damages cap. See § 41-5-6(A) (“[T]he jury 

shall not be given any instructions dealing with th[e] limitation [on damages.]”). 

Second, if the jury finds a health care provider negligent in an MMA case, it must 

then answer whether the plaintiff is in need of future medical care and benefits as a 

result of the injury. See § 41-5-7(A). However, the jury in an MMA case is not 

permitted to determine “the value of future medical care and related benefits, and 

evidence relating to the value of future medical care shall not be admissible.” Id. 

Uniform Jury Instructions 13-1125 and -1126 provide special interrogatories for 

MMA juries in accordance with these requirements. See UJI 13-1125 (“If your 

verdict is for the plaintiff, do you find that plaintiff is in need of future medical care 

and related benefits?”); UJI 13-1126 (“What do you find was the value or cost of 

past medical care and related benefits received by the plaintiff?”). Other than these 
17

differing procedural instructions, the same jury instructions are used for medical 

malpractice claims under the MMA and medical negligence claims at common law.

{27} The procedural differences between MMA and non-MMA claims 

demonstrate that the Legislature intended to change how the courts facilitate and 

administer remedies when a plaintiff brings a medical malpractice action against a 

qualified health care provider under the MMA. See Inc. Cnty. of Los Alamos v. 

Johnson, 1989-NMSC-045, ¶ 4, 108 N.M. 633, 776 P.2d 1252 (“We . . . presume 

that the legislature intends to change existing law when it enacts a new statute.”). 

However, in passing the MMA, the Legislature did not change the essential 

substantive elements that a plaintiff must prove in order to hold any health care 

provider liable for medical negligence. Put differently, with respect to the required 

elements a plaintiff must prove in order to succeed in either an MMA claim for 

medical malpractice or a common-law claim for medical negligence, the core 

substance of the causes of action is the same. The identical substantive jury 

instructions for both MMA and non-MMA cases belie any argument to the contrary.

{28} In applying our approach in Lisanti, we conclude that a claim under the MMA 

is “more generally described” as a cause of action in medical negligence. See 2002-

NMSC-032, ¶ 13. Our conclusion satisfies the first of our two-part inquiry to 

determine whether the constitutional jury right attaches to Plaintiff’s claim under the 
18

MMA. We turn now to the second question whether common-law medical 

negligence claims were tried by a jury when the New Mexico Constitution took 

effect.

2. Medical negligence claims were triable by jury prior to the adoption and 

effective date of the New Mexico Constitution

{29} Having concluded that claims under the MMA are essentially claims of 

medical negligence, we now examine whether medical negligence claims would 

have been tried by juries in New Mexico at the time the New Mexico Constitution 

was adopted on January 21, 1911, to become effective on January 6, 1912, when 

New Mexico was admitted into the union. See N.M. Const. art. XXII, § 1 (“This 

constitution shall take effect and be in full force immediately upon the admission of 

New Mexico into the union as a state.”); Proclamation of President Taft, 37 Stat. 

1723 (1912). The district court determined in its March 23, 2018, order that the 

constitutional jury right attached to causes of action under the MMA because juries 

heard medical negligence cases at American common law prior to the adoption of 

the New Mexico Constitution. Based on the following historical analysis, we agree.

{30} There does not appear to have been a reported appellate opinion concerning a 

claim of medical negligence prior to the effective date of the New Mexico 

Constitution. See Jerrald J. Roehl, The Law of Medical Malpractice in New Mexico, 

3 N.M. L. Rev. 294, 294 n.6 (1973). In fact, medical negligence as a cause of action 
19

does not appear in the state appellate record until 1954. Id.; Los Alamos Med. Ctr., 

Inc. v. Coe, 1954-NMSC-090, 58 N.M. 686, 275 P.2d 175. Broadening the scope of 

our review of state case law to include causes of action that are similar to medical 

negligence, we find that cases of personal injury tort were tried by juries in the 

Territory of New Mexico prior to statehood. See, e.g., Schmidt v. Sw. Brewery & Ice 

Co., 1910-NMSC-001, ¶¶ 8-9, 15 N.M. 232, 107 P. 677. In 1876, the New Mexico 

Territorial Legislature adopted “the common law as recognized in the United States 

of America,” NMSA 1978, § 38-1-3 (1876), so we turn to review the common law 

of other American jurisdictions, as well as that of England.

{31} The first reported case of medical negligence occurred in England in 1374. 

Roehl, supra, at 294 n.2. Medical negligence claims were tried by juries in the 

United States as early as 1794. See Cross v. Guthery, 2 Root 90, 91 (Conn. 1794). A 

survey of these historical pieces leads us to conclude that, even though there is not 

an appellate record of a medical negligence case that was tried by a jury in New 

Mexico prior to the middle of the twentieth century, causes of action arising in 

medical negligence would have been triable by a jury under the common law of New 

Mexico at the time the New Mexico Constitution took effect.

{32} Based on these historical examples and our conclusion that causes of action 

under the MMA can be more generally described as causes of action in medical 
20

negligence, we hold that the constitutional right to trial by jury attaches to causes of 

action brought under the MMA. To the extent that the Court of Appeals’ opinion in 

Salopek differs from this conclusion, that opinion is hereby overruled. Though we 

overrule Salopek on the grounds noted herein, we must address the district court’s 

failure to apply Salopek in its consideration of Defendants’ motion to reduce the 

judgment from the full jury award in this case.

3. The district court erred by declining to apply binding precedent

{33} In denying Defendants’ motion to conform the amount of the jury verdict with 

the MMA nonmedical, nonpunitive damages cap, the district court concluded that 

the Legislature did not create a wholly new statutory cause of action with the 

enactment of the MMA. While we agree with this conclusion in substance, the 

district court erred by failing to apply the Court of Appeals’ holding in Salopek that 

the MMA nonmedical, nonpunitive damages cap did not violate Plaintiff’s state 

constitutional right to a jury trial. See Salopek, 2013-NMCA-087, ¶ 58. “The general 

rule is that a court lower in rank than the court which made the decision invoked as 

a precedent cannot deviate therefrom and decide contrary to that precedent, 

irrespective of whether it considers the rule laid down therein as correct or 

incorrect.” Alexander v. Delgado, 1973-NMSC-030, ¶ 9, 84 N.M. 717, 507 P.2d 778 
21

(internal quotation marks and citation omitted). In this instance, the district court 

was bound by the Court of Appeals’ opinion in Salopek.

B. The MMA Nonmedical, Nonpunitive Damages Cap Does Not Invade the 

Province of the Jury 

{34} Though we hold that the constitutional right to trial by jury attaches to causes 

of action brought under the MMA, we must now address Defendants’ argument that 

the damages cap of Section 41-5-6(A) does not infringe the right to trial by jury 

because the cap merely “restricts the scope” of the remedy available to Plaintiff. 

According to Defendants, the MMA nonmedical, nonpunitive damages cap does not 

interfere with the jury’s duty to decide the “true issues of fact.” See Sanchez v. 

Gomez, 1953-NMSC-053, ¶ 8, 57 N.M. 383, 259 P.2d 346. Rather, the damages cap 

applies only after the jury has completed its role as fact-finder. 

{35} Plaintiff responds that the determination of the full amount of damages 

awarded a given plaintiff is “within the exclusive province of the jury,” relying on 

Hood v. Fulkerson, 1985-NMSC-048, ¶ 10, 102 N.M. 677, 699 P.2d 608. Plaintiff 

contends that “capping damages amounts to a partial abrogation of the jury-trial 

right.” In light of the “inviolate” nature of the constitutional jury right, Amici, New 

Mexico Trial Lawyers Association and American Association for Justice, assert that 

outside the context of judicial remittitur, any limit on the jury-found damages award 

violates the right to trial by jury. 
22

{36} Plaintiff’s reliance on Hood is not dispositive of the question before us: 

whether the constitutional right to trial by jury invalidates the MMA’s nonmedical, 

nonpunitive damages cap and guarantees Plaintiff full recovery of the jury’s verdict. 

In Hood, we concluded that the district court erred when it altered the amount of the 

jury’s verdict in a negligence action based on the district court’s understanding that 

the jury may have been confused. See 1985-NMSC-048, ¶¶ 2-4, 10. We explained 

that “if the court felt the jury verdict was not clear or correct, it should have 

instructed the jury to amend the verdict to clearly state the wishes of the jury.” Id. ¶ 

11. For the district court to alter the amount of the jury’s verdict was impermissible. 

Id. ¶¶ 10-11. Though we stated that determining the “proper amount for damages” 

was in the “exclusive province of the jury,” the holding of Hood does not answer the 

question whether a jury-found damages award is immune from subsequent reduction 

pursuant to a statutory damages cap. See id. ¶ 10.

{37} We agree with the Court of Appeals’ framing of this analysis: “[T]he 

‘inviolate’ guarantee of a jury trial ‘simply means that the jury right is protected 

absolutely in cases where it applies; the term does not establish what that right 

encompasses.’” Salopek, 2013-NMCA-087, ¶ 51 (quoting Learmonth v. Sears, 

Roebuck & Co., 710 F.3d 249, 263 (5th Cir. 2013)). However, because the Salopek

Court determined that the constitutional jury right did not apply to MMA claims, see 
23

id. ¶ 50, it did not engage the second part of the inquiry: What does the constitutional 

right to trial by jury encompass?

{38} To answer this question, we start with the language of Article II, Section 12 

and conduct a historical review of the jury trial right as it existed in the United States 

prior to the adoption and effective date of the New Mexico Constitution. We then 

delineate the role of the jury based on New Mexico precedent and statutory history, 

as well as the United States Supreme Court’s interpretation of the jury’s function. 

Finally, we examine several out-of-state cases where courts were asked, as we are 

today, whether statutory damages caps violate their respective constitutional 

provisions guaranteeing the right to trial by jury. Following this analysis, we 

conclude that the MMA nonmedical, nonpunitive damages cap merely gives legal 

consequence to the jury’s finding on damages and therefore does not infringe the 

guarantee of Article II, Section 12.

{39} As we have previously stated, Article II, Section 12 provides that “[t]he right 

of trial by jury as it has heretofore existed shall be secured to all and remain 

inviolate.” To interpret this constitutional provision, we must determine (a) the 

proper definition of the term “inviolate” and (b) the scope of the right to trial by jury 

in civil actions at the time the New Mexico Constitution took effect.
24

1. Interpretation of “inviolate”

{40} The Court of Appeals has stated that the constitution’s requirement that the 

right to jury trial shall “remain inviolate” means that the right is “protected 

absolutely” where it applies. Salopek, 2013-NMCA-087, ¶ 51 (internal quotation 

marks and citation omitted). Similarly, Black’s Law Dictionary defines “inviolate” 

as “[f]ree from violation; not broken, infringed, or impaired.” Inviolate, Black’s Law 

Dictionary (11th ed. 2019). Some state courts have interpreted “inviolate” to mean 

“not disturbed or limited” and have used this definition to strike down statutory 

damages caps. Hilburn v. Enerpipe Ltd., 442 P.3d 509, 514-16, 524 (Kan. 2019) 

(internal quotation marks and citation omitted); see Sofie v. Fibreboard Corp., 771 

P.2d 711, 721-22, 728 (Wash. 1989) (“Applied to the right to trial by jury, this 

[constitutional] language indicates that the right must remain the essential 

component of our legal system that it has always been. For such a right to remain 

inviolate, it must not diminish over time and must be protected from all assaults to 

its essential guarantees.”). Other courts have interpreted “inviolate” to mean 

“freedom from . . . partial destruction or substantial impairment” but have 

emphasized that an “inviolate” right is not “immun[e] from all regulation.” 

Humphrey v. Eakley, 60 A. 1097, 1098 (N.J. 1905); see Commonwealth v. Fugmann, 
25

198 A. 99, 111 (Pa. 1938) (concluding that “‘inviolate’ . . . does not import rigidity 

of regulation in the manner of impaneling a jury”). 

{41} Our Court of Appeals adopted this broader interpretation in concluding that 

the procedural requirements to make a timely jury demand under a precursor to Rule 

1-038 NMRA were “reasonable rules” that were not precluded by Article II, Section 

12. Carlile v. Continental Oil Co., 1970-NMCA-051, ¶¶ 7-9, 81 N.M. 484, 468 P.2d 

885 (“[R]easonable regulatory provisions, although different in form and substance 

from those in effect at the adoption of the Constitution, do not abridge, limit or 

modify the right which is to remain inviolate.” (internal quotation marks and citation 

omitted)). The common thread through all these interpretations is that an inviolate 

right is one that must remain intact and unbroken. We conclude that an inviolate 

right is not beyond the reach of regulation, so long as that regulation does not 

substantially impair the core essence of the right. We now consider how the framers 

of our constitution understood the right to trial by jury so we may determine how the 

core essence of that right must be protected and applied today.

2. Historical analysis of the right to jury trial

{42} The role of the jury has evolved significantly since the first jury trials were 

held in colonial America. From the late-seventeenth century through the American 

Revolution, juries in some of the colonies wielded broad authority over both legal 
26

and factual issues. See Stephan Landsman, The Civil Jury in America: Scenes from 

an Unappreciated History, 44 Hastings L.J. 579, 592-93 (1993); Morton J. Horwitz, 

The Transformation of American Law, 1780-1860 142-43 (1977). For this reason, 

the colonists were “preoccupied with safeguarding the jury right, relying upon the 

jury to restrain government.” Landsman, supra, at 593. For example, in 

Massachusetts, juries “were the chief assessors of legal claims and the primary 

enforcers of legal rights for their communities.” Id. at 592. Jury trials were conducted 

before three judges, who were empowered to instruct the jury on their “divergent 

view[s] of the law.” Id. In these cases, counsel was allowed to argue legal questions 

to the jury during closing arguments. Id. By returning a verdict that both interpreted 

the law and applied that law to the facts of the case, “the jury had broad control over 

legal as well as factual issues and was therefore the ultimate authority in the 

courtroom process.” Id. at 593; cf. Horwitz, supra, at 143 (“[T]he practice of 

Connecticut judges was simply to submit both law and facts to the jury, without 

expressing any opinion or giving them any direction on how to find their verdict.”).

{43} By way of contrast, in New York, the jury was theoretically bound to apply 

the instructed law to the facts of the case. Landsman, supra, at 593. However, the 

practice of jury nullification, where in some circumstances jurors reviewed and 

rejected the instructed law, gave the jury tremendous power to subvert the British 
27

legal system and wrest control from British judges. See id. In a prominent 1734 

seditious libel case, the jury was instructed to convict the defendant journalist, John 

Peter Zenger, if it found that he had in fact printed accusations of corruption and 

misfeasance against the Governor of New York, William Cosby. Id. The evidence 

was clear that the accusations were printed by Zenger, but Zenger’s counsel argued 

that the jury could contravene the judge’s legal instructions and acquit Zenger if it

found that Zenger’s accusations were true. Id. The jury’s ultimate acquittal of Zenger 

sent a message that “judges do not necessarily have absolute control over questions 

they designate as ‘legal,’” and fortified the colonists’ defense of the right to trial by 

jury as a means of popular control of the justice system. Id.

{44} Following the Revolution, the jury lost much of the prominence it had once 

enjoyed and ceased being the primary method of asserting democratic control over 

local government. Id. at 597-98. Juries were no longer required as a check on biased 

British judges, and the emergence of democratically elected state legislatures meant 

that “the right to jury review or nullification of laws was less important amidst 

legitimately established democratic laws.” Id. at 598. Accordingly, the United States 

Constitution did not include any reference to civil juries. Id. However, this exclusion 

garnered significant protest led by the Antifederalists who feared an “unconstrained 

federal judiciary.” Id. at 599-600. That protest resulted in the drafting of the Seventh 
28

Amendment, preserving the right to a jury in civil cases where the value in 

controversy exceeded twenty dollars. Id. at 600; U.S. Const. amend. VII.

{45} In the decades that followed, the power of the jury to shape the law through 

jury nullification was greatly diminished. The nineteenth century saw a wave of 

judicial reform intended to vest more power in judges to determine the legal outcome 

in tort cases. See Landsman, supra, at 605; Horwitz, supra, at 143-44. One vehicle 

for this reform was the rise of the doctrine of contributory negligence, which was 

recognized in the Territory of New Mexico as early as 1884, Alexander v. Tennessee 

& Los Cerrillos Gold & Silver Mining Co., 1884-NMSC-021, ¶ 19, 3 N.M. 255, 3 

P. 735, and was not abandoned in our jurisprudence until 1981, Scott v. Rizzo, 1981-

NMSC-021, ¶¶ 4-5, 96 N.M. 682, 634 P.2d 1234 (replacing the doctrine of 

contributory negligence with the doctrine of comparative fault) superseded in part 

by statute, NMSA 1978, § 41-3A-1 (1987). See Landsman, supra, at 606. Under the 

doctrine of contributory negligence, a plaintiff was completely barred from recovery 

if it could be shown that the plaintiff’s own negligence contributed to his or her 

injury. See Scott, 1981-NMSC-021, ¶ 11 (explaining the holding of Butterfield v. 

Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809), which is widely considered 

the progenitor of the doctrine of contributory negligence). In cases where the facts 

supported a plaintiff’s contributory negligence, “the judge could dismiss a case as a 
29

matter of law, without ever submitting the matter to the jury.” Landsman, supra, at 

606. Alternatively, the judge could instruct the jury that the plaintiff could not 

recover any damages if the plaintiff acted negligently and “brought an injury on 

himself[.]” Alexander, 1884-NMSC-021, ¶¶ 36-37 (internal quotation marks and 

citation omitted). In this respect, the doctrine of contributory negligence operated to 

curtail the jury’s power to award damages in tort cases. See Landsman, supra, at 

606.

{46} At the same time, legislative restrictions began mandating that juries apply 

the legal instructions provided by the judge. Horwitz, supra, at 142-43 (“By 1810, it 

was clear that the instructions of the court, originally advisory, had become 

mandatory and therefore juries no longer possessed the power to determine the 

law.”). These procedural reforms worked to further limit the jury’s function to solely 

that of fact-finder. See id.; Landsman, supra, at 605.

{47} The twentieth century saw a crystallization of the jury’s singular function to 

resolve issues of fact. The United States Supreme Court declared that the purpose of 

the jury in civil cases was “to assure a fair and equitable resolution of factual issues,” 

Colgrove v. Battin, 413 U.S. 149, 157 (1973), and clarified that the finding of 

damages is one of the factual issues within the ambit of the jury, see Dimick v. 

Schiedt, 293 U.S. 474, 480 (1935). In Feltner v. Columbia Pictures Television, Inc., 
30

the United States Supreme Court reviewed the historical role of juries in determining 

damages awards, concluding that it was commonplace for the jury to award damages 

in civil cases at common law prior to the adoption of the United States Constitution. 

See 523 U.S. 340, 353 (1998) (“[T]he common law rule as it existed at the time of 

the adoption of the Constitution was that in cases where the amount of damages was 

uncertain, their assessment was a matter so peculiarly within the province of the jury 

that the Court should not alter it.” (brackets omitted) (internal quotation marks and 

citation omitted)).

{48} In Feltner, the plaintiff sued for copyright infringement under the Copyright 

Act of 1976. Id. at 343. In lieu of actual damages, the plaintiff sought statutory 

damages under the Copyright Act, which were capped at $20,000 per instance of 

infringement. Id. The district court denied the defendant’s demand for a jury trial on 

statutory damages, instead ruling that statutory damages would be determined at a 

bench trial. Id. at 344. The defendant asserted that a bench trial on damages violated 

his right to a jury under the Seventh Amendment. See id. at 342. The United States 

Supreme Court agreed, holding that “if a party so demands, a jury must determine 

the actual amount of statutory damages under [the Copyright Act] in order to 

preserve the substance of the common-law right of trial by jury.” Id. at 355 (internal 

quotation marks and citation omitted). Feltner stands for the proposition that the 
31

right to a trial by jury includes the right to have the jury—not the judge—find the 

amount of damages. New Mexico history conforms with the Feltner Court’s 

determination that juries found the amount of damages at common law prior to the 

adoption of both the United States and New Mexico Constitutions.

{49} During the territorial period, juries in New Mexico heard civil tort cases and 

determined the amount of damages in those cases. See, e.g., Schmidt, 1910-NMSC001, ¶¶ 8-9 (upholding the jury’s verdict on damages in a case of employer liability 

for personal injury). The territorial laws in effect at the time of the adoption of the 

New Mexico Constitution instructed that “after hearing the evidence, the jury shall 

be kept together . . . until they agree upon a verdict . . . , and when the jurors shall 

agree upon a verdict, they shall deliver the same to the justice, who is required to 

give judgment thereon and to award execution as hereinafter directed.” Section 

3267, C.L. 1897. This territorial statute serves to illustrate Defendants’ argument 

that a jury verdict is a resolution of fact that only becomes a legal requirement to 

compensate the plaintiff once the court enters judgment on the verdict. 

{50} Our historical analysis of the evolving role of the jury reveals that though the 

jury may once have exercised an ability to shape the legal as well as factual 

resolutions in a civil case, by the time the New Mexico Constitution took effect in 

1912, the jury’s role was limited to that of fact-finder. Based on this analysis, we 
32

conclude that the right to trial by jury is satisfied when evidence is presented to a 

jury, which then deliberates and returns a verdict based on its factual findings. The 

legal consequence of that verdict is a matter of law, which the Legislature has the 

authority to shape. See Jones v. Murdoch, 2009-NMSC-002, ¶ 25, 145 N.M. 473, 

200 P.3d 523 (“We have long recognized that the Legislature may exercise its 

plenary power to alter the common law.”). 

{51} In passing the damages cap of Section 41-5-6(A), the Legislature restricted 

the scope of the available legal remedy for injury resulting from the medical 

malpractice of a qualified health care provider. However, nothing in Section 41-5-6 

abridges Plaintiff’s right to present evidence before a jury for “a fair and equitable 

resolution” of the facts of the case. See Colgrove, 413 U.S. at 157. Therefore we 

hold that the MMA nonmedical, nonpunitive damages cap of Section 41-5-6(A) does 

not violate Plaintiff’s right to a jury trial under Article II, Section 12.

{52} The great weight of persuasive authority on the question whether statutory 

damages caps violate the constitutional jury right supports our conclusion in this 

case. In Wachocki v. Bernalillo Cnty. Sheriff’s Dep’t, the Court of Appeals rejected 

the plaintiffs’ argument that the cap on damages under the Tort Claims Act infringed 

the right to trial by jury. See 2010-NMCA-021, ¶¶ 44-45, 147 N.M. 720, 228 P.3d 

504, cert. quashed, 2010-NMCERT-002, 147 N.M. 705, 228 P.3d 489. Though the 
33

case was decided on other grounds, the Court of Appeals stated that it failed to see 

how “the right to a jury incorporate[s] a right to maximum recovery.” Id. ¶ 45. We 

agree.
34

{53} Turning to out-of-state cases,3the Oregon Supreme Court in Horton v. Oregon 

Health & Sci. Univ. conducted a thorough historical analysis of the right to jury trial. 

376 P.3d 998, 1036-40 (Or. 2016). That court concluded that the history of the jury 

right in England and America revealed that the constitutional provision of an 

“inviolate” right to jury trial does not “limit[] the legislature’s authority to define, as 

a matter of law, the substantive elements of a cause of action or the extent to which 

damages will be available in that action.” Id. at 1036, 1040.

{54} The Virginia Supreme Court concluded similarly, holding that the statutory 

damages cap in medical malpractice actions does not violate Virginia’s 

constitutional provision that a “trial by jury is preferable to any other, and ought to 

be held sacred.” Pulliam v. Coast Emergency Servs. of Richmond, Inc., 509 S.E.2d 

307, 312-15 (Va. 1999) (quoting Va. Const. art. I, § 11). That court reasoned that 

“[i]f it is permissible for a legislature to enact a statute of limitations completely 

barring recovery in a particular cause of action without impinging upon the right of

trial by jury, it should be permissible for the legislature to impose a limitation upon 

the amount of recovery as well.” Id. at 314. Following this logic, since we have 

upheld the New Mexico Legislature’s authority to foreclose a medical malpractice 

action three years after the alleged act of malpractice under the MMA’s statute of 

repose, Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶¶ 1, 39-42, 
35

 

3Of the thirty jurisdictions to consider whether a statutory cap on damages 

violates the constitutional right to trial by jury, twenty-four have upheld such caps, 

reasoning that a statutory limit on recovery is a matter of law within the purview of 

the state legislature. Sixteen of these jurisdictions analyzed constitutional provisions 

of an “inviolate” right to trial by jury. See Evans ex rel. Kutch v. State, 56 P.3d 1046, 

1050 (Alaska 2002) (deciding in an equally divided opinion that the damages cap 

does not infringe the jury right); Chan v. Curran, 188 Cal. Rptr. 3d 59, 80-82 (Cal. 

Ct. App. 2015) (concluding that the damages cap does not infringe the “inviolate” 

jury right); Univ. of Miami v. Echarte, 618 So. 2d 189, 191 (Fla. 1993) (deciding 

without discussion that damages cap does not “violate the right to trial by jury,” 

which the state constitution declares “inviolate”); Kirkland v. Blaine Cnty. Med. Ctr., 

4 P.3d 1115, 1118-20 (Idaho 2000) (same); Johnson v. St. Vincent Hosp., Inc., 404 

N.E.2d 585, 601-02 (Ind. 1980) (same), overruled on other grounds by In re 

Stephens, 867 N.E.2d 148, 156 (Ind. 2007); Murphy v. Edmonds, 601 A.2d 102, 106 

& n.3, 118 (Md. 1992) (concluding that the damages cap does not infringe on the 

jury right that must be “inviolably preserved” as stated in Article 23 of the Maryland 

Declaration of Rights); English v. New England Med. Ctr., 541 N.E.2d 329, 331-32 

(Mass. 1989) (concluding that the damages cap for charitable institutions in medical 

malpractice actions does not violate the jury right); Phillips v. Mirac, Inc., 685 

N.W.2d 174, 180-83 (Mich. 2004) (concluding that the damages cap does not 

infringe the “inviolate” jury right); Gourley ex rel. Gourley v. Neb. Methodist Health 

Sys., Inc., 663 N.W.2d 43, 74-75 (Neb. 2003) (per curiam) (concluding that the 

damages cap does not infringe the “inviolate” jury right); Tam v. Eighth Jud. Dist. 

Ct., 358 P.3d 234, 238 (Nev. 2015) (same); Larimore Pub. Sch. Dist. No. 44 v. 

Aamodt, 2018 ND 71 ¶¶ 24, 27-28, 908 N.W.2d 442, 453-54 (concluding that the 

tort damages cap does not infringe the “inviolate” jury right); Arbino v. Johnson & 

Johnson, 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶¶ 32, 36-42

(concluding that the general tort damages cap does not infringe the “inviolate” jury 

right); Horton, 376 P.3d at 1036, 1044 (concluding that the damages cap does not 

infringe the “inviolate” jury right); Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096, 

1132-33 (Pa. 2014) (same); McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 

690-93 (Tenn. 2020) (same); Judd v. Drezga, 2004 UT 91, ¶ 35, 103 P.3d 135 

(concluding that the cap on “quality of life” damages does not infringe the 

“inviolate” jury right); Etheridge v. Med. Ctr. Hosps., 376 S.E.2d 525, 528-29 (Va. 

1989) (concluding that the statutory limit on recovery “effects no impingement upon 

the right to a jury trial”); MacDonald v. City Hosp., Inc., 715 S.E.2d 405, 414-15 

(W. Va. 2011) (concluding that the legislative limit on claims for pain and suffering 
36

121 N.M. 821, 918 P.2d 1321; § 41-5-13, we must also conclude that the Legislature 

may impose a damages cap in such actions. Both restrictions are aimed at curtailing 

the legal remedy available to redress a plaintiff’s injury and are consistent with the 

constitutional jury right.

{55} Finally, in Learmonth, a case cited by the Court of Appeals in Salopek, the 

Fifth Circuit concluded that a statutory noneconomic damages cap did not violate 

Mississippi’s “inviolate” constitutional jury right. Learmonth, 710 F.3d at 258; Miss. 

Const. art. III, § 31. Because the jury was unaware of the damages cap, the 

 

has no impact on the constitutional right to trial by jury); Maurin v. Hall, 2004 WI 

100, ¶¶ 96-100, 274 Wis. 2d 28, 682 N.W.2d 866 (concluding that the damages cap 

does not infringe the “inviolate” jury right), overruled on other grounds by 

Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 

2006 WI 91, ¶¶ 16-18, 293 Wis.2d 38, 717 N.W.2d 216; see also Davis v. 

Omitowoju, 883 F.2d 1155, 1159-61 (3d Cir. 1989) (concluding that the Seventh 

Amendment does not preclude the damages cap); Boyd v. Bulala, 877 F.2d 1191, 

1196 (4th Cir. 1989) (same); Smith v. Botsford Gen. Hosp., 419 F.3d 513, 519 (6th 

Cir. 2005) (same); Learmonth, 710 F.3d at 258-61 (concluding that the damages cap 

does not infringe Mississippi’s “inviolate” jury right); Schmidt v. Ramsey, 860 F.3d 

1038, 1045-46 (8th Cir. 2017) (concluding that Nebraska’s statutory damages cap 

does not violate the Seventh Amendment); but see Moore v. Mobile Infirmary Ass’n, 

592 So. 2d 156, 159-65 (Ala. 1991) (concluding that the damages cap infringes the 

“inviolate” jury right); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 

218, 221-24 (Ga. 2010) (same); Hilburn, 442 P.3d at 514-16 (same); Watts v. Lester 

E. Cox Med. Ctrs., 376 S.W.3d 633, 640-41 (Mo. banc 2012) (same); Knowles v. 

United States, 1996 SD 10, ¶¶ 9-16, 544 N.W.2d 183, 186-88 (same), superseded by 

statute on other grounds as stated in Millea v. Erickson, 2014 S.D. 34, ¶ 13, 849 

N.W.2d 272, 276; Sofie, 771 P.2d at 721-22 (same).
37

Learmonth Court reasoned that the statute did “not invade the jury’s factfinding 

process.” Id. at 260. Section 41-5-6(A) likewise provides that the jury shall not be 

informed of the damages cap, so we are further affirmed that the MMA nonmedical, 

nonpunitive damages cap does not invade the jury’s role as fact-finder. 

III. CONCLUSION

{56} For the foregoing reasons, we hold that the MMA nonmedical, nonpunitive 

damages cap does not violate the constitutional right to trial by jury of Article II, 

Section 12. We remand this case to the district court to conform the judgment in 

accordance with Section 41-5-6(A).

{57} IT IS SO ORDERED.

______________________________

BARBARA J. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice
38

JUDITH K. NAKAMURA, Justice, Retired 

Sitting by designation

CONRAD F. PEREA, Judge

Sitting by designation