Best v. Taylor Machine Works, Inc.

• Court: Illinois Supreme Court
• Decided: December 18, 1997
• Docket: 81890, 81891, 81892, 81893 cons.
• Status: Published

Opinion

               Docket Nos. 81890, 81891, 81892, 81893 cons.--Agenda

                       18--May 1997.

          VERNON BEST, Appellee, v. TAYLOR MACHINE WORKS

          et al., Appellants.--JONATHAN ISBELL, Administrator of

          the Estate of Steven A. Kelso, Appellee, v. UNION PACIFIC

            RAILROAD COMPANY et al., Appellants.

              Opinion filed December 18, 1997.

                                  JUSTICE McMORROW delivered the opinion of the court:

            This consolidated appeal arises from two personal injury

          tort actions filed in the circuit court of Madison County, in

          which the plaintiffs sought declaratory and injunctive relief

          against enforcement of "An Act to amend certain Acts in

          relation to civil actions, *** the Civil Justice Reform

          Amendments of 1995." Pub. Act 89--7, eff. March 9, 1995

          (hereafter Public Act 89--7 or the Act). In both cases, plaintiffs

          sought partial summary judgment on the grounds that the Act

          violated the Illinois Constitution of 1970. The circuit court of

          Madison County held the following provisions of Public Act 89-

          -7 unconstitutional: (1) the $500,000 limit on compensatory

          damages for noneconomic injuries (735 ILCS 5/2--1115.1 (West

          1996)), (2) the allocation of fault and several liability provisions

          (735 ILCS 5/2--1116, 2--1117 (West 1996)), (3) the

          amendments to the Joint Tortfeasor Contribution Act (740 ILCS

          100/3.5, 5 (West 1996)), (4) certain jury instructions (735 ILCS

          5/2--1107.1 (West 1996)), (5) the product liability certificate of

          merit (735 ILCS 5/2--623 (West 1996)), (6) the product liability

          statute of repose (735 ILCS 5/13--213(b) (West 1996)), (7) the

          product liability presumptions (735 ILCS 5/2--2103, 2--2104, 2--

          2106 (West 1996)) and (8) the discovery statutes which require

          mandatory disclosure of all of plaintiffs' medical information

          and records (735 ILCS 5/2--1003, 8--802, 8--2001, 8--2003

          (West 1996)). The court also held that Public Act 89--7 is

          unconstitutional as a whole.

            Defendants timely appealed the circuit court's order to this

          court, and we consolidated the cases. We allowed the Attorney

          General, James E. Ryan, to intervene to defend the

          constitutionality of Public Act 89--7.

            We also granted the following organizations leave to submit

          briefs amicus curiae: (1) Illinois Hospital & Healthsystems

          Association and the Metropolitan Chicago Healthcare Council,

          (2) Illinois State Medical Society, (3) Product Liability Advisory

          Council, Inc., (4) Illinois Manufacturers' Association, (5) Illinois

          Association of Defense Trial Counsel, (6) Illinois Civil Justice

          League, (7) Illinois State Federation of Labor and Congress of

          Industrial Organization and Ironworker's District Council of

          Greater Chicago, (8) Illinois State Council of Senior Citizens,

          Families Advocating Injury Reduction (FAIR), Union of

          Needletrades, Industrial and Textile Employees (UNITE),

          Coalition for Consumer Rights, Citizen Action/Illinois Chapter,

          Metro Seniors in Action, Tenth Congressional District AFL-

          CIO, Champaign County Health Care Consumers, Citizen

          Advocacy Center and Coalition of Citizens With Disabilities in

          Illinois, (9) Illinois State Bar Association, (10) National

          Association for the Advancement of Colored People and the

          Cook County Bar Association, (11) Illinois NOW Legal and

          Education Fund and Breast Implant Information Exchange, (12)

          Chicago Bar Association and (13) the Brotherhood of Heat and

          Frost Insulators, Local 17, and the Southeast Environmental

          Task Force.

            The parties agree that Public Act 89--7 effects substantial

          changes to numerous aspects of tort law. The parties further

          agree that the challenged provisions of Public Act 89--7 pertain

          primarily to personal injury actions as distinct from business-

          related torts, defamation, or other actions not involving physical

          injury. There is also no dispute that the heart of Public Act 89--

          7 is the $500,000 limit on compensatory damages for injuries

          that are considered "non-economic" in nature (735 ILCS 5/2--

          1115.1 (West 1996)).

            Defendants characterize the Act as a legitimate reform

          measure that is within the scope of the Illinois General

          Assembly's power to change the common law, shape public

          policy, and regulate the state's economic health. Plaintiffs

          counter that the Act uses the guise of reform to erect arbitrary

          and irrational barriers to meritorious claims, and, therefore, that

          the Act violates the Illinois Constitution of 1970. Specifically,

          plaintiffs maintain that the following constitutional provisions

          are violated by various aspects of the legislation at issue: special

          legislation (Ill. Const. 1970, art. IV, sec. 13), equal protection

          and due process (Ill. Const. 1970, art. I, sec. 2), separation of

          powers (Ill. Const. 1970, art. II, sec. 1), right to a jury (Ill.

          Const. 1970, art. I, sec. 13) and right to a certain remedy (Ill.

          Const. 1970, art. I, sec. 12).

            The role of this court in considering the constitutionality of

          Public Act 89--7 is not to judge the prudence of the General

          Assembly's decision that reform of the civil justice system is

          needed. We recognize that we should not and need not balance

          the advantages and disadvantages of reform. See People v.

          Warren, 173 Ill. 2d 348 (1996); see also Cutinello v. Whitley,

          161 Ill. 2d 409 (1994). Rather, as the highest court in this state,

          we must determine the meaning and effect of the Illinois

          Constitution in light of the challenges made to the legislation in

          issue. Warren, 173 Ill. 2d at 355-56.

            Courts should begin any constitutional analysis with the

          presumption that the challenged legislation is constitutional

          (People v. Shephard, 152 Ill. 2d 489 (1992)), and it is the

          plaintiff's burden to clearly establish that the challenged

          provisions are unconstitutional (Bernier v. Burris, 113 Ill. 2d

          219 (1986)). However, the Illinois Constitution is not a grant,

          but a limitation on legislative power. People v. Chicago Transit

          Authority, 392 Ill. 77 (1945); Italia America Shipping Corp. v.

          Nelson, 323 Ill. 427 (1926); Taylorville Sanitary District v.

          Winslow, 317 Ill. 25 (1925). It is this court's duty to interpret

          the law and to protect the rights of individuals against acts

          beyond the scope of the legislative power. People ex rel.

          Huempfner v. Benson, 294 Ill. 236 (1920). If a statute is

          unconstitutional, this court is obligated to declare it invalid.

          Wilson v. Department of Revenue, 169 Ill. 2d 306 (1996). This

          duty cannot be evaded or neglected, no matter how desirable or

          beneficial the legislation may appear to be. Wilson, 169 Ill. 2d

          at 310; Grasse v. Dealer's Transport Co., 412 Ill. 179, 190

          (1952).

            For the reasons stated below, we determine that the

          following provisions of Public Act 89--7 violate the Illinois

          Constitution: (1) the limitation on compensatory damages for

          noneconomic injury (735 ILCS 5/2--1115.1 (West 1996)), (2)

          section 3.5(a) of the Joint Tortfeasor Contribution Act (740

          ILCS 100/3.5(a) (West 1996)), (3) the abolition of joint and

          several liability (735 ILCS 5/2--1117 (West 1996)), and (4) the

          discovery statutes which mandate the unlimited disclosure of

          plaintiffs' medical information and records (735 ILCS 5/2--

          1003, 8--802, 8--2001, 8--2003 (West 1996)). We further hold

          that because these unconstitutional provisions may not be

          severed from the remainder of the act, Public Act 89--7 as a

          whole is invalid.

                    BACKGROUND

            Plaintiff, Vernon Best, was injured on July 24, 1995, while

          he was operating a forklift for his employer, Laclede Steel

          Company, in Alton, Illinois. The forklift was designed and

          manufactured by Taylor Machine Works (Taylor) and sold by

          Allied Industrial Equipment Corporation (Allied). Best sustained

          injuries when the forklift's mast and support assembly collapsed

          while Best was moving slabs of hot steel. As a result of the

          collapse, flammable hydraulic fluid manufactured by Lee Helms,

          Inc. (Helms), ignited and engulfed Best in a fireball. While on

          fire, Best leaped from the cab of the forklift and fractured both

          heels. Best also suffered second and third degree burns over

          40% of his body, including his face, torso, arms and hands.

            Best filed a product liability action seeking damages against

          Taylor, Allied and Helms. In his amended complaint, Best

          alleges that the forklift and hydraulic fluid were defective and

          not reasonably safe. As to Taylor and Allied, Best alleges strict

          product liability, negligence, breaches of implied and express

          warranties, and breach of warranty for a particular purpose. As

          to Helms, Best alleges strict product liability, negligence and

          breach of implied warranty.

            Best alleges that he sustained lost earnings, he anticipates

          diminished future earnings, he has incurred past medical

          expenses, and he will incur future medical expenses as a result

          of his injuries. Best anticipates that he will need vocational

          rehabilitation and convalescent care because of his injuries. He

          further alleges that his injuries are severe, disfiguring and

          permanent. Best states that he has suffered and will continue to

          suffer from grievous pain and anguish from his injuries. He

          further asserts that he has had a painful and lengthy experience

          as a patient in a hospital burn unit, and has undergone numerous

          surgeries.

            In his amended complaint, Best seeks compensatory

          damages for all injuries. Best alleges that he has and will incur

          noneconomic damages in excess of $500,000. He also seeks

          declaratory and injunctive relief against Public Act 89--7 on the

          grounds that the Act violates the Illinois Constitution.

            The second action arises out of the death of 20-year-old

          Steven Kelso, who was killed by a train at a railroad crossing

          in Madison County, Illinois, on December 12, 1995. At the time

          of his death, Kelso was driving a truck for his employer. Union

          Pacific owned the train that killed Kelso, and Donald Cain

          operated the train at the time of Kelso's death.

            Plaintiff Jonathan Isbell, the administrator of Kelso's estate,

          filed a complaint against Union Pacific and Cain. In the

          complaint, Isbell alleges that the train that killed Kelso was

          negligently operated. He states that the train's speed was

          excessive, it did not adequately warn of its approach, and it

          failed to slow or stop before the crash. The complaint also

          alleges that the railroad crossing was negligently constructed,

          inspected, and maintained, with inadequate warning signals and

          other deficiencies. Isbell seeks damages under the Wrongful

          Death Act (740 ILCS 180/1 (West 1996)), the Probate Act of

          1975 (755 ILCS 5/27--6 (West 1996)) and the Rights of Married

          Persons Act (750 ILCS 65/15 (West 1996)). Like Best, Isbell

          also seeks declaratory and injunctive relief challenging the

            In the circuit court, defendants in both actions moved to

          dismiss the counts for declaratory and injunctive relief, on the

          grounds that the constitutionality of Public Act 89--7 was not

          ripe for adjudication. Both plaintiffs filed motions for partial

          summary judgment on those counts, and entreated the circuit

          court to invalidate Public Act 89--7. Plaintiffs filed expert

          opinion affidavits in support of their partial motions for

          summary judgment. Defendants did not file counteraffidavits.

            Upon consolidating the cases, the circuit court denied

          defendants' motions to dismiss, and granted plaintiffs' motions

          for partial summary judgment. The circuit court ruled that 15

          specific provisions of Public Act 89--7 were unconstitutional

          and that the Act as a whole was unconstitutional. The court

          noted that the Act overruled more than 70 decisions of this court

          and the appellate court, and constituted a "wholesale

          reconstruction of the judiciary." Pursuant to Supreme Court Rule

          302(a) (134 Ill. 2d R. 302(a)), defendants appealed directly to

          this court from the circuit court's order declaring Public Act 89-

          -7 invalid.

                     ANALYSIS

            Initially, we note that in striking down Public Act 89--7, the

          circuit court referenced the "demeanor" of the legislature during

          consideration of the Act, as shown by the legislative history.

          The history of Public Act 89--7 shows that the Act was initially

          introduced in the House of Representative as House Bill 20, on

          November 30, 1994. See generally 25 ILCS 25/2 (West 1994).

          The legislative synopsis indicates that Public Act 89--7 made "a

          technical change in a provision relating to product liability

          actions." House Bill 20 consisted of a suggestion that the word

          "any" be changed to "a" in the first sentence of section 2--621

          of the Code of Civil Procedure (735 ILCS 5/2--621 (West

          1992)).

            More than two months later, on February 14, 1995, House

          Bill 20 was released to members of the House as "amended."

          The amendment to House Bill 20 consisted of 67 pages of text,

          and mirrors the currently enacted provisions of Public Act 89--7

          now before this court. On February 15, 1995, the House

          Executive Committee held a meeting to consider House Bill 20,

          and approved it without change. The day following committee

          approval, House Bill 20 was presented to the full House of

          Representatives. A majority of the House voted in favor of

          House Bill 20.

            Two weeks later, the Illinois Senate Judiciary Committee

          held a two-day hearing to consider House Bill 20, and voted to

          adopt it without change. The bill went to the Senate, where it

          received the votes necessary for adoption. On March 9, 1995,

          House Bill 20 was signed into law as Public Act 89--7.

            Before the circuit court, plaintiffs argued, and the court

          agreed, that the "fast track" stratagem adopted by the bill's

          proponents was designed to curtail deliberation of the bill.

          Defendants agree that the passage of Public Act 89--7 was swift

          and drew significant objections on the grounds that adequate

          time for debate was lacking. However, defendants contend that

          this fact is not relevant to the determination of the constitutional

          issues before this court. Because the manner in which Public

          Act 89--7 was passed is not dispositive of the merits of the

          constitutional challenges raised by plaintiffs, we do not further

          consider its genesis. We note, however, that the legislative

          history of Public Act 89--7 may be considered in ascertaining

          the intent of the legislature if the resolution of an issue so

          requires. See, e.g., People ex rel. Chicago Bar Ass'n v. State

          Board of Elections, 136 Ill. 2d 513, 537 (1990) (legislative

          history is relevant to severability analysis).

                    I. Ripeness

            In the circuit court, pursuant to section 2--615 of the Code

          of Civil Procedure (735 ILCS 5/2--615 (West 1992)), defendants

          moved to dismiss plaintiffs' counts for injunctive and

          declaratory relief on the grounds that they were not ripe for

          adjudication. The circuit court rejected defendants' arguments

          and determined that plaintiffs had standing and that the issues

          were ripe.

            Before this court, defendants maintain that the majority of

          the circuit court's rulings do not involve an actual case or

          controversy, which is required to sustain an action for

          declaratory judgment. They argue that the underlying facts and

          issues in this case are so premature as to require the court to

          pass judgment on mere abstract propositions of law, or render

          an advisory opinion.

            The question of ripeness requires a determination with

          respect to whether there is a case or controversy under section

          2--701 of the Code of Civil Procedure (735 ILCS 5/2--701

          (West 1992)). A complaint for declaratory judgment must recite

          in sufficient detail an actual and legal controversy between the

          parties and must demonstrate that the plaintiff is interested in

          the controversy. First of America Bank, Rockford, N.A. v.

          Netsch, 166 Ill. 2d 165 (1995) (declaratory judgment actions

          permit early resolution of dispositive issues, to fix rights of

          parties before irrevocable change in their positions jeopardizes

          their claims of right); see also Illinois Gamefowl Breeders Ass'n

          v. Block, 75 Ill. 2d 443 (1979). This court has repeatedly held

          that the declaratory judgment statute must be liberally construed

          and should not be restricted by unduly technical interpretations.

          See, e.g., Netsch, 166 Ill. 2d at 174.

            We believe that plaintiffs' complaint challenging the

          constitutionality of Public Act 89--7 portends "the ripening seeds

          of litigation." Miles Kimball Co. v. Anderson, 128 Ill. App. 3d

          805, 807 (1984). For example, plaintiff Best asserts a product

          liability claim to recover compensatory damages for bodily

          injuries allegedly sustained at the hands of defendants Allied,

          Taylor, and Helms. Best alleges that his compensatory damages

          for noneconomic injuries will exceed $500,000. Public Act 89--

          7, inter alia, limits such damages to $500,000 in all negligence

          and product liability actions brought on account of death, bodily

          injury, or physical damage to property. See 735 ILCS 5/2--

          1115.1 (West 1996). The limitation applies irrespective of

          whether the court or jury otherwise would have found a larger

          amount to be appropriate under the facts of the particular case.

            We believe that plaintiffs have alleged a sufficient and

          direct interest in the application of the challenged provisions of

          Public Act 89--7 to their lawsuits. In deciding the

          constitutionality of Public Act 89--7 we are not ruling on mere

          abstract principles of law or prematurely deciding issues in the

          absence of an actual case or controversy. The course of future

          litigation in these consolidated cases necessarily will be

          controlled by resolution of the constitutional challenges to

          Public Act 89--7. We hold that the issues presented in the

          instant controversy are ripe for review.

          II. The Cap on Noneconomic Damages

            Plaintiffs challenge the $500,000 limit on compensatory

          damages for noneconomic injuries set forth in section 2--1115.1

          of the Code of Civil Procedure (735 ILCS 5/2--1115.1 (West

          1996)).

          A. Background to Section 2--1115.1

           Section 2--1115.1(a) provides:

                     "In all common law, statutory or other actions that

                         seek damages on account of death, bodily injury, or

                         physical damage to property based on negligence, or

                         product liability based on any theory or doctrine,

                         recovery of non-economic damages shall be limited to

                         $500,000 per plaintiff. There shall be no recovery for

                         hedonic damages." 735 ILCS 5/2--1115.1(a) (West

                         1996).

            Section 2--1115.1(d) provides that nothing in section 2--

          1115.1 shall be construed to create a right to recover

          noneconomic damages. The statute defines "non-economic

          damages" as "damages which are intangible, including but not

          limited to damages for pain and suffering, disability,

          disfigurement, loss of consortium, and loss of society." 735

          ILCS 5/2--1115.2(b) (West 1996). Economic damages, defined

          as "all damages which are tangible, such as damages for past

          and future medical expenses, loss of income or earnings and

          other property loss" (735 ILCS 5/2--1115.2(a) (West 1996)), are

          not limited. By its terms, the statute defines "compensatory" or

          "actual" damages as "the sum of economic and non-economic

          damages." 735 ILCS 5/2--1115.2(c) (West 1996). Thus,

          compensatory damages, i.e., damages which are intended to

          make an injured plaintiff whole, are limited by section 2--

          1115.1.

            The cap on compensatory damages for noneconomic injury

          is, as the parties acknowledge, at the heart of Public Act 89--7.

          The key role of this cap is reflected in the preamble to the Act,

          which contains 18 specific "findings" and eight listed "purposes"

          based on those findings. Eight of the 18 findings in the

          preamble pertain to noneconomic damages. These findings

          declare that: (1) limiting noneconomic damages will improve

          health care in rural Illinois, (2) more than 20 states limit

          noneconomic damages, (3) the cost of health care has decreased

          in those states, (4) noneconomic losses have no monetary

          dimension, and no objective criteria or jurisprudence exists for

          assessing or reviewing noneconomic damages awards, (5) such

          awards are highly erratic and depend on subjective preferences

          of the trier of fact, (6) highly erratic noneconomic damages

          awards subvert the credibility of such awards and undercut the

          deterrent function of tort law, (7) such awards must be limited

          to provide consistency and stability for all parties and society

          and (8) "a federal executive branch working group" determined

          that limiting noneconomic damages was the most effective step

          toward legislative reform of tort law because it reduces litigation

          costs and expedites settlement.

            In addition to the above legislative "findings," the preamble

          to Public Act 89--7 states legislative "purposes" which relate to

          the limit on noneconomic damages. These purposes may be

          summarized as follows: reduce the cost of health care and

          increase accessibility to health care, promote consistency in

          awards, reestablish the credibility of the civil justice system,

          establish parameters or guidelines for noneconomic damages,

          protect the economic health of the state by decreasing systemic

          costs, and ensure the affordability of insurance.

            The preamble also declares, "It is the public policy of this

          State that injured persons injured through negligence or

          deliberate misconduct of another be afforded a legal mechanism

          to seek compensation for their injuries."

            In the circuit court, defendants maintained that the Act and

          its specified goals represent a return to fairness, predictability,

          responsibility and rationality in the tort arena. Specifically,

          defendants argued that the limit on noneconomic damages

          provides rationality to the system of awarding damages for

          personal injury.

            Plaintiffs, in their motion for partial summary judgment,

          challenged the legislature's use of chiefly anecdotal evidence to

          justify the Act.[fn1] Citing a 1992 report from the National

          Center for State Courts, plaintiffs noted that businesses, not

          private personal injury plaintiffs, constitute the most active

          group of litigants in the state. Plaintiffs further argued that the

          uncontested empirical evidence that they presented in

          conjunction with their motion clearly shows that the legislative

          "findings" listed in the preamble do not provide a rational

          justification for the limitation of compensatory damages for

          noneconomic injuries. In support, plaintiffs submitted several

          affidavits with their motion for summary judgment on the

          constitutionality of section 2--1115.1.

            Neil Vidmar, Professor of Social Science and Law at Duke

          Law School in Durham, North Carolina, submitted an affidavit

          in which he explains that many of the assertions about medical

          malpractice litigation contained in the preamble of Public Act

          89--7, as well as statements made at the hearing and debates

          which preceded its passage, have no empirical basis and were

          based on unsubstantiated perceptions or unreliable data. For

          example, the perception that damages caps result in a decrease

          in the number of medical malpractice cases filed was rebutted

          by the experience in Indiana, a state in which damages caps

          were adopted in 1975. Vidmar cites studies revealing that

          Indiana actually has experienced an increase in claims. See E.

          Kinney, W. Gronfein & T. Gannon, Indiana's Medical

          Malpractice Act: Results of a Three-Year Study, 24 Ind. L. Rev.

          1275, 1286 (1991). Vidmar states that he is aware of no reliable

          evidence in the formal studies which indicate that a limit on

          noneconomic damages corresponds to a significant impact on

          the cost or availability of health care or that noneconomic

          damages and the costs of liability insurance are directly linked.

            In a separate affidavit, Marc Galanter, Evjue-Bascom

          Professor of Law at the University of Wisconsin Law School,

          agrees that there is little evidence, apart from anecdotes, to

          support the perceived deleterious effects of the present civil

          litigation system. He cites to an article he authored entitled Real

          World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093

          (1996). He maintains that the only consequences which clearly

          flow from the passage of Public Act 89--7 are increased

          profitability of insurance companies and a reduction in the

          payments to the most seriously injured tort victims. According

          to Galanter, court filings in the law division of the circuit court

          of Cook County have actually declined during the period from

          1980 to 1994. Galanter asserts that arguments which rely on

          systemic costs of the civil litigation system and its negative

          effect on health care and jobs are purely speculative. Similarly,

          he states that the salutary effects attributed to the type of tort

          reform attempted in Public Act 89--7 are largely speculative.

          Galanter concludes that when comparing isolated instances or

          anecdotal evidence against the reliable empirical data that does

          exist, it is apparent that the findings which form the basis for

          Public Act 89--7 are erroneous.

            In addition to the above affidavits, plaintiffs offered the

          joint affidavit of Stephen Daniels, M.A., Ph.D., a senior research

          fellow at the American Bar Foundation in Chicago, and Joanne

          Martin, M.M., J.D., an assistant director of the same foundation.

          Their affidavit summarizes the key empirical findings of

          scholarly literature and compares them to the factual

          underpinnings of Public Act 89--7. Like Vidmar and Galanter,

          Daniels and Martin state that the facts which form the stated

          intention or goals of Public Act 89--7 are not substantiated by

          the empirical data and critical analyses found in published,

          scholarly literature. Daniels and Martin summarize data which

          show that only a tiny fraction of accidental deaths and injuries

          are pursued through the litigation system as claims for

          compensation. They further maintain, based on studies, that jury

          awards are not erratic or capricious, but rather relate closely to

          the severity of the particular injury.

            After considering the arguments of the parties and the

          materials presented, the circuit court invalidated section 2--

          1115.1 on the grounds that it violated the following provisions

          of the Illinois Constitution: special legislation (Ill. Const. 1970,

          art. IV, sec. 13), equal protection and due process (Ill. Const.

          1970, art. I, sec. 2), separation of powers (Ill. Const. 1970, art.

          II, sec. 1), right to a jury (Ill. Const. 1970, art. I, sec. 13) and

          right to a certain remedy (Ill. Const. 1970, art. I, sec. 12). The

          circuit court held that "no conceivable argument [could] be

          made in good faith to suggest that arbitrarily limiting

          [compensatory] damages complies with the [Illinois

          Constitution]." The court determined that section 2--1115.1

          constitutes special legislation because it eliminates fairness and

          impartiality in the awarding of compensatory damages, thereby

          bestowing on certain tortfeasors a disproportionate, undeserved

          benefit of escaping liability for a portion of compensatory

          damages. The court further found that the affidavits filed in

          support of plaintiffs' opposition to the findings in the preamble

          to Public Act 89--7 demonstrate that there is no rational basis

          for section 2--1115.1.

            Our review of the circuit court's ruling is de novo. See

          Bernier, 113 Ill. 2d at 230. As such, our scope of review is not

          limited to or bound by any specific material relied upon by the

          circuit court. We acknowledge that the trial court considered the

          affidavits of Vidmar, Galanter, Martin and Daniels in its ruling

          on plaintiffs' motions for partial summary judgment. The

          materials were admitted in support of plaintiffs' claim that the

          provisions of the Act are not rationally related to its purposes.

          While we note that it was permissible for plaintiffs to introduce

          empirical evidence by way of affidavit, plaintiffs may not

          prevail on their constitutional challenges merely by showing that

          the General Assembly was mistaken in its legislative findings of

          fact. Bernier, 113 Ill. 2d at 229-30, citing United States v.

          Carolene Products Co., 304 U.S. 144, 153-54, 82 L. Ed. 1234,

          1242, 58 S. Ct. 778, 784 (1938). Courts are not empowered to

          "adjudicate" the accuracy of legislative findings. The legislative

          fact-finding authority is broad and should be accorded great

          deference by the judiciary. Therefore, to the extent the affidavits

          of record may have been offered to contest the wisdom of the

          legislative enactment, we reiterate that the legislature is not

          required to convince this court of the correctness of its judgment

          that the civil justice system needs reform. See Bernier, 113 Ill.

          2d at 229, citing Vance v. Bradley, 440 U.S. 93, 111, 59 L. Ed.

          2d 171, 184-85, 99 S. Ct. 939, 949-50 (1979); see also Cutinello

          v. Whitley, 161 Ill. 2d 409 (1994). Our task is limited to

          determining whether the challenged legislation is constitutional,

          and not whether it is wise. Bernier, 113 Ill. 2d at 230.

              B. Special Legislation

            In this court, plaintiffs challenge the constitutionality of the

          damages cap, section 2--1115.1, on the basis that it violates the

          special legislation clause of the Illinois Constitution (Ill. Const.

          1970, art. IV, sec. 13). Plaintiffs maintain that for individuals

          whose injuries are minor or moderate, the limit will rarely, if

          ever, be implicated. Instead, the limit is imposed only when a

          jury or trial court finds, and the reviewing court agrees, that an

          award of compensatory noneconomic damages in excess of

          $500,000 is required to make the plaintiff whole. According to

          plaintiffs, section 2--1115.1 impermissibly penalizes the most

          severely injured individuals, whose pain and suffering,

          disfigurement, and other noneconomic injuries would be most

          likely to result in a compensatory award in excess of $500,000

          but for the statutory limit. Similarly, plaintiffs reason, the

          damages cap arbitrarily benefits certain tortfeasors, who are

          relieved of liability for fully compensating plaintiffs. Thus,

          plaintiffs maintain, section 2--1115.1 constitutes special

          legislation.

            The special legislation clause of the Illinois Constitution

          provides:

                     "The General Assembly shall pass no special or local

                         law when a general law is or can be made applicable.

                         Whether a general law is or can be made applicable

                         shall be a matter for judicial determination." (Emphasis

                         added.) Ill. Const. 1970, art. IV, sec. 13.

             It has been noted that the prohibition against special

          legislation is the "one provision in the legislative articles that

          specifically limits the lawmaking power of the General

          Assembly." S. Grove & R. Carlson, The Legislature, in Con-

          Con: Issues for the Illinois Constitutional Convention 101, 103

          (1970). The special legislation clause expressly prohibits the

          General Assembly from conferring a special benefit or exclusive

          privilege on a person or a group of persons to the exclusion of

          others similarly situated. In re Petition of the Village of Vernon

          Hills, 168 Ill. 2d 117, 122 (1995). This court has consistently

          held that the purpose of the special legislation clause is to

          prevent arbitrary legislative classifications that discriminate in

          favor of a select group without a sound, reasonable basis.

          Wright v. Central Du Page Hospital Ass'n, 63 Ill. 2d 313 (1976)

          (invalidating $500,000 cap on damages in medical malpractice

          actions); Grace v. Howlett, 51 Ill. 2d 478 (1972) (striking

          classifications that conditioned recovery for personal injuries

          upon fortuity of whether negligent driver was using vehicle for

          commercial or private purposes); Grasse v. Dealer's Transport

          Co., 412 Ill. 179 (1952) (invalidating discriminatory

          classifications of employers, employees, and third-party

          tortfeasors in workers' compensation provision).

            Special legislation analysis is deeply embedded in the

          constitutional jurisprudence of this state. The ban on special

          legislation originally arose in the nineteenth century in response

          to the General Assembly's abuse of the legislative process by

          granting special charters for various economic entities. D.

          Ruder, Business Regulation: Corporations, in Con-Con: Issues

          for the Illinois Constitutional Convention 382, 382-83 (1970).

          The special legislation clause in the Constitution of 1870

          enumerated over 20 specific categories in which the General

          Assembly was prohibited from passing a local or special law.

          Ill. Const. 1870, art. IV, sec. 22. The distinction between special

          and local laws may be stated as follows:

              "A local law is one which applies only to the

                         government of a portion of the territory of the state, and

                         a special law is one which applies only to a portion of

                         the state--its people, its institutions, its economy--in

                         some sense other than geographical." G. Braden & R.

                         Cohn, The Illinois Constitution: An Annotated &

                         Comparative Analysis 206-07 (1969).

            Delegates to the 1870 constitutional convention criticized

          special legislation because, instead of establishing and enforcing

          general principles applicable to every class of citizens, special

          legislation enriched particular classes of individuals at the

          expense of others. I Debates and Proceedings of the

          Constitutional Convention of the State of Illinois 578 (remarks

          of Delegate Anderson). Delegate Anderson spoke in favor of the

          prohibition against special legislation and stated:

              "Governments were not made to make the `rich richer

                         and the poor poorer,' nor to advance the interest of the

                         few against the many; but that the weak might be

                         protected from the will of the strong; that the poor

                         might enjoy the same rights with the rich; that one

                         species of property might be as free as another--that one

                         class or interest should not flourish by the aid of

                         government, whilst another is oppressed with all the

                         burdens." I Debates, at 578 (remarks of Delegate

                         Anderson).

            Evidently in recognition of the value of the prohibition

          against special legislation, the framers of the Illinois

          Constitution of 1970 decided to retain the clause, with some

          modifications. See Anderson v. Wagner, 79 Ill. 2d 295, 313-14

          (1979). First, because the enumerated categories in the

          constitution of 1870 clearly reflected the nineteenth century

          concerns which had lost their relevance with the passage of

          time, the framers of the 1970 constitution omitted the "laundry

          list" of prohibited categories. See G. Braden & R. Cohn, The

          Illinois Constitution: An Annotated & Comparative Analysis

          225-26 (1969). Additionally, the 1970 constitution rejected the

          previous rule which had vested in the legislature the power to

          determine whether a general law could be made applicable.

          Bridgewater v. Hotz, 51 Ill. 2d 103, 110 (1972). Thus, the

          present version of the special legislation clause contains an

          express grant of power to the judiciary: "Whether a general law

          is or can be made applicable shall be a matter for judicial

          determination." Ill. Const. 1970, art. IV, sec. 13.

            The framers of the 1970 constitution retained the special

          legislation prohibition even though an equal protection/due

          process clause was included in the Illinois Constitution for the

          first time. See Ill. Const. 1970, art. I, sec. 2 ("No person shall

          be deprived of life, liberty or property without due process of

          law nor be denied the equal protection of the laws").

            A special legislation challenge generally is judged under the

          same standards applicable to an equal protection challenge.

          Village of Vernon Hills, 168 Ill. 2d at 123. Public Act 89--7

          does not affect a fundamental right or involve a suspect or

          quasi-suspect classification. See Bernier, 113 Ill. 2d at 227-

          29.[fn2]  Thus, the appropriate standard for our review of

          Public Act 89--7 is the rational basis test. "Under this standard,

          a court must determine whether the statutory classification is

          rationally related to a legitimate State interest." Village of

          Vernon Hills, 168 Ill. 2d at 123.

            Our task in determining whether the damages cap violates

          the special legislation clause is not without difficulty. See

          Grasse, 412 Ill. at 194. Indeed, the dilemma in discerning

          whether or not a particular statute constitutes special legislation

          has been described as follows:

              "It is impossible to conceive of a law that has universal

                         impact and affects everyone or everything in the same

                         way. By enacting laws, the legislature can hardly avoid

                         excluding some category of people or objects. In

                         enforcing this prohibition, the courts must decide if the

                         legislature has made a reasonable classification.

                         Differences of opinion are bound to exist in such

                         situations and the ultimate decision must rest with some

                         judgment as to the soundness of the legislature's

                         action." S. Grove & R. Carlson, The Legislature, in

                         Con-Con: Issues for the Illinois Constitutional

                         Convention 106 (1970).

            The difficulty is not overcome by merely reiterating that a

          classification has been made, i.e., that the legislature has in

          some way classified groups of people. Rather, we must

          determine whether the classifications created by section 2--

          1115.1 are based upon reasonable differences in kind or

          situation, and whether the basis for the classifications is

          sufficiently related to the evil to be obviated by the statute.

          Grasse, 412 Ill. at 195. We note that the legislature has wide

          discretion in the exercise of its police power. However, in

          evaluating a challenged provision the court must consider the

          natural and reasonable effect of the legislation on the rights

          affected by the provision. Grasse, 412 Ill. at 193.

            While it is unnecessary to discuss every Illinois Supreme

          Court case which has evaluated legislation in the context of the

          special legislation clause, we note the many cases cited by both

          plaintiffs and defendants in the case at bar. Defendants cite

          numerous cases in which this court has rejected challenges to

          legislation on special legislation and equal protection grounds.

          See, e.g., Brown's Furniture, Inc. v. Wagner, 171 Ill. 2d 410

          (1996) (upholding constitutionality of a use tax); Cutinello v.

          Whitley, 161 Ill. 2d 409 (1994) (upholding constitutionality of

          a county motor fuel tax law); People v. Shephard, 152 Ill. 2d

          489 (1992) (upholding constitutionality of criminal statute which

          allowed an enhanced penalty for selling narcotics with an intent

          to deliver if the situs of the crime is within 1,000 feet of public

          housing); Chicago National League Ball Club, Inc. v.

          Thompson, 108 Ill. 2d 357 (1985) (upholding constitutionality

          of an environmental regulation which monitored nighttime

          baseball games); Bilyk v. Chicago Transit Authority, 125 Ill. 2d

          230 (1988) (upholding constitutionality of immunity for a transit

          authority for failure to protect against criminal acts of third

          parties).

            In contrast to the above cases, this court has invalidated

          legislative classifications under the special legislation clause

          where they have an artificially narrow focus and which appear

          to be designed primarily to confer a benefit on a particular

          private group without a reasonable basis, rather than to promote

          the general welfare. See, e.g., In re Belmont Fire Protection

          District, 111 Ill. 2d 373, 381-86 (1986) (invalidating a statute

          which authorized only counties with populations of between

          600,000 and 1 million residents to consolidate all fire protection

          services into one district); Wright v. Central Du Page Hospital

          Ass'n, 63 Ill. 2d 313, 325-30 (1976) (invalidating $500,000 limit

          on compensatory damages in medical malpractice actions);

          Grace v. Howlett, 51 Ill. 2d 478, 486-87 (1972) (invalidating a

          limit on recovery applicable to damages inflicted by commercial

          motorists, but not private motorists); Skinner v. Anderson, 38 Ill.

          2d 455, 459-60 (1967) (invalidating a statute of repose for

          construction-related injuries for architects and contractors, but

          not other potential defendants in the construction process); see

          also Lorton v. Brown County Community Unit School District

          No. I, 35 Ill. 2d 362, 364-66 (1966); Hutchings v. Kraject, 34

          Ill. 2d 379, 380-82 (1966); Harvey v. Clyde Park District, 32 Ill.

          2d 60, 64-67 (1964). As the above-cited cases reveal, the

          hallmark of an unconstitutional classification is its arbitrary

          application to similarly situated individuals without adequate

          justification or connection to the purpose of the statute.

            In the case at bar, plaintiffs specifically rely on the

          following three decisions of this court which held invalid as

          special legislation certain statutes which created arbitrary

          classifications between groups of similarly situated injured

          plaintiffs or tortfeasors: Wright v. Central Du Page Hospital

          Ass'n, 63 Ill. 2d 313 (1976); Grace v. Howlett, 51 Ill. 2d 478

          (1972); Grasse v. Dealer's Transport Co., 412 Ill. 179 (1952).

          Because plaintiffs maintain that these precedents of this court

          are controlling with respect to the constitutionality of section 2--

          1115.1, we discuss them in detail.

            In Wright, this court held that a $500,000 limit on

          compensatory damages in medical malpractice actions (Ill. Rev.

          Stat. 1975, ch. 70, par. 101) violated the equal protection and

          special legislation provisions of the Illinois Constitution. Like

          plaintiffs in the case at bar, the plaintiff in Wright argued that

          the compensatory damages limit arbitrarily classified and

          unreasonably discriminated against the most seriously injured

          victims of medical malpractice. Like defendants in the case at

          bar, the defendants in Wright argued that a compensatory

          damage limit was necessary to manage a liability crisis,

          specifically a "medical malpractice crisis." The plaintiff

          maintained, however, that the burden of the legislative effort to

          reduce or maintain malpractice insurance premiums arbitrarily

          fell exclusively on those most deserving of compensation: the

          severely injured.

            The Wright court noted that unlike statutorily created causes

          of action (see Hall v. Gillins, 13 Ill. 2d 26 (1958); Cunningham

          v. Brown, 22 Ill. 2d 23 (1961)), the right to recover for injuries

          arising from medical malpractice existed at common law.[fn3]

          See Ritchey v. West, 23 Ill. 329 (1860). Thus, the limitations on

          that right of action were subject to constitutional scrutiny.

          Specifically, in Wright, this court concluded that the General

          Assembly did not have the power to prescribe arbitrary

          limitations on an injured plaintiff's compensatory damages. The

          limitation on compensatory damages in medical malpractice

          actions was determined to be arbitrary and a special law in

          violation of the special legislation clause of the Illinois

          Constitution of 1970. The damages limit conferred a special

          privilege on medical malpractice tortfeasors by insulating them

          from fully compensating plaintiffs for fairly assessed damages.

          Consequently, relief to an injured plaintiff depended solely on

          an arbitrary classification, in violation of the prohibition against

          special legislation. Wright, 63 Ill. 2d at 329-30.

            Similarly, in Grace, this court held that a statute which

          limited recovery for certain automobile accident victims

          constituted an arbitrary and unreasonable legislative

          classification in violation of the prohibition against special

          legislation. At issue in Grace was a newly enacted article to the

          Illinois Insurance Code (Ill. Rev. Stat. 1971, ch. 73, pars.

          1065.150 through 1065.163). The plaintiffs brought an action for

          injunctive relief against state officers to enjoin them from

          expending funds appropriated for the enforcement of the new

          article. The combined effect of certain provisions of the new

          law was to limit an injured plaintiff's ability to recover

          compensatory damages, including damages for pain and

          suffering, depending on whether the party at fault was using the

          automobile for commercial or personal purposes.

            The defendants in Grace described the amendment to the

          Insurance Code as a response to the growing public demand for

          a change in the way society copes with the enormous legal,

          social and economic problems produced by car accidents. The

          defendants identified small personal injury actions as one of the

          major evils of the system of compensating car accident victims.

          Grace, 51 Ill. 2d at 484. The defendants further maintained that

          the studies regarding car accident compensation identified many

          problems with the system of compensating injured individuals.

          Specifically, the defendants maintained that the studies showed

          the inequitable distribution of compensation among victims, the

          excessive expense of the claim system, and the excessive burden

          on limited judicial resources. According to the defendants, the

          changes to the Insurance Code were rationally connected to

          legitimate government concerns.

            In determining whether the provisions at issue violated

          special legislation and equal protection, the Grace court

          assumed that the problems described by the defendants in fact

          existed. However, the court reasoned, the fact that a problem

          exists does not permit the adoption of an arbitrary or unrelated

          means of addressing the problem. Grace, 51 Ill. 2d at 485. In

          rejecting the defendants' argument that the legislation was a

          permissible exercise of legislative power, the Grace court stated,

                     "Unless this court is to abdicate its constitutional

                         responsibility to determine whether a general law can be

                         made applicable, the available scope for legislative

                         experimentation with special legislation is limited, and

                         this court cannot rule that the legislature is free to enact

                         special legislation simply because `reform may take one

                         step at a time.' [Citation.]" Grace, 51 Ill. 2d at 487.

            This court concluded that to the extent that recovery is

          permitted or denied on an arbitrary basis, a special privilege was

          granted in violation of the prohibition against special legislation.

          Grace, 51 Ill. 2d at 487-90.

            In Grasse, this court invalidated a provision of the Worker's

          Compensation Act that created arbitrary classifications. At issue

          in Grasse was a provision which automatically transferred to an

          employer, in certain cases, an employee's common law right of

          action against a third-party tortfeasor. In Grasse, the plaintiff

          and his employer filed claims against a private defendant to

          recover damages stemming from an automobile collision which

          was allegedly caused by the negligence of the defendant's

          employee. Because both the plaintiff and defendant's employee

          were acting in the course of their employment at the time of the

          accident, paragraph 1 of section 29 of the Worker's

          Compensation Act applied to the subsequent litigation. This

          provision authorized the automatic transfer of the plaintiff-

          employee's claim against the third-party tortfeasor to the

          plaintiff's employer. The circuit court consequently dismissed

          the plaintiff's claim against the third-party tortfeasor.

            On appeal to this court, the plaintiff alleged, in part, that the

          statute violated the special legislation clause of the Illinois

          Constitution (Ill. Const. 1870, art. IV, sec. 22) because it created

          arbitrary and unreasonable classifications. This court agreed,

          holding that the statute created unreasonable classifications in

          which the plaintiff's ability to recover complete compensation

          was determined by fortuitous circumstances. The statute divided

          injured employees into two arbitrary classes based solely on the

          fortuity of whether or not the third-party tortfeasor was also

          bound by the provision. One class was deprived of the right to

          collect compensatory damages from the tortfeasor and the other

          class, which was similarly situated, was conferred such right.

          This court concluded that there was no substantial or rational

          difference between the injured employees in the two classes and,

          therefore, the statute offended the prohibition against special

            In addition to the unequal treatment of injured employees,

          the Grasse court determined that the statute divided third-party

          tortfeasors into two classes: those bound by the worker's

          compensation provision, who were freed from paying

          compensatory damages to employees of other entities under the

          act, and all other tortfeasors, who remained liable for the full

          amount of fairly assessed compensatory damages. The first class

          of tortfeasors were only required to pay amounts sought by the

          employer as reimbursement for worker's compensation

          payments. In contrast, the second class of tortfeasors remained

          liable to the plaintiff for the full amount of compensatory

          damages assessed by a trier of fact. Therefore, the distinctions

          were arbitrary and constituted a violation of the special

          legislation clause. Grasse, 412 Ill. 2d at 199.

            Defendants maintain that plaintiffs' reliance on Wright,

          Grace, and Grasse is misplaced. According to defendants, these

          cases were limited by Anderson v. Wagner, 79 Ill. 2d 295

          (1979), in a way that renders their holdings inapplicable to the

          legislation in the case at bar.

            At issue in Anderson was section 21.1 of the Limitations

          Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provided a

          special statute of limitations period for medical malpractice

          actions against physicians and hospitals. The plaintiffs in

          Anderson contended that section 21.1 violated the due process

          and equal protection provisions of the state and federal

          constitutions, and the special legislation provision of the Illinois

          Constitution. The plaintiff maintained that section 21.1 violated

          the special legislation clause because it (1) set medical

          malpractice apart from all other professional malpractice and (2)

          conferred a special privilege upon only two classes of medical

          health providers, physicians and hospitals. Following an

          extensive analysis of the development of the discovery rule in

          medical malpractice cases, and the impact on physicians and

          hospitals, this court rejected the plaintiff's constitutional

          challenge to the statute of limitations provision at issue.

            In analyzing the plaintiff's challenges, the Anderson court

          retraced the evolution of the "discovery rule" in medical

          malpractice cases. Under the discovery rule, a cause of action

          accrued when a person learned of his injury or reasonably

          should have learned of it. Because the discovery rule came to be

          applied extensively in medical malpractice cases, statutes of

          limitation in existence no longer provided repose for malpractice

          defendants. The discovery rule was perceived to be partly

          responsible for the medical malpractice crisis because it created

          a "long tail" of liability for medical malpractice defendants.

          Thus, the statute of limitations provision at issue in Anderson

          was enacted to place an outside limit on the applicability of the

          discovery rule to physicians and hospitals. Anderson, 79 Ill. 2d

          at 316-21. We find that Anderson is distinguishable from the

          instant case because in Anderson, the General Assembly was

          responding to judicial expansion of the discovery rule, which

          had undermined the medical malpractice statute of limitation by

          creating a tolling provision of potentially unlimited duration.

            Defendants in the instant case also rely upon language in

          Anderson which responded to critics of Wright. In dicta, the

          Anderson court explained that Wright did not hold that all

          statutory provisions creating medical malpractice review panels

          were unconstitutional. The Anderson court also noted that

          Wright's holding regarding the limit on economic damages was

          consistent with American Bar Association standards which

          recommend against any limitation on economic loss. Anderson,

          79 Ill. 2d at 304. However, this court in Anderson did not

          consider the General Assembly's authority to place a limit on

          compensatory damages for noneconomic injuries. We reject

          defendants' argument that our decision in Anderson limits

          Wright's application in the case at bar.

            Plaintiffs argue that section 2--1115.1 merely stitches

          together legislative classifications previously rejected in Wright,

          Grasse and Grace, and then adds product liability cases.

          According to plaintiffs, section 2--1115.1 contains three arbitrary

          classifications that have no reasonable connection to the stated

          legislative goals: (1) the limitation on noneconomic damages

          distinguishes between slightly and severely injured individuals,

          (2) the limitation on noneconomic damages arbitrarily

          distinguishes between individuals with identical injuries, and (3)

          the limitation arbitrarily distinguishes types of injury. At oral

          argument, plaintiffs offered examples illustrating how the

          limitation on noneconomic damages is disconnected from the

          stated legislative purposes of providing rationality and

          consistency to jury verdicts.

            In the first example, it is assumed that three plaintiffs are

          injured as a result of the same tortfeasor's negligence. Plaintiff

          A is injured moderately, and suffers pain, disability and

          disfigurement for a month. Plaintiff B is severely injured and

          suffers one year of pain and disability. Plaintiff C is drastically

          injured, and suffers permanent pain and disability. For purposes

          of this example, it is further assumed that a jury awards

          plaintiffs A and B $100,000 in compensatory damages for

          noneconomic injuries. Plaintiff C receives $1 million for his

          permanent, life-long pain and disability.

            In the above hypothetical, section 2--1115.1 fails to provide

          consistency or rationality to a jury's seemingly inconsistent

          decision to award plaintiffs A and B the same amount for very

          different noneconomic injuries. Therefore, the legislative goal of

          providing consistency is not met by the damages cap. With

          respect to plaintiff C, section 2--1115.1 arbitrarily and

          automatically reduces the jury's award for a lifetime of pain and

          disability, without regard to whether or not the verdict, before

          reduction, was reasonable and fair.

            The tortfeasors in this example are also treated differently,

          without any justification. The tortfeasor who injures plaintiffs A

          and B is liable for the full amount of fairly assessed

          compensatory damages. In contrast, section 2--1115.1 confers a

          benefit on the similarly situated tortfeasor who injures plaintiff

          C. This tortfeasor pays only a portion of fairly assessed

          compensatory damages because of the limitation in section 2--

          1115.1. Therefore, the statute discriminates between slightly and

          severely injured plaintiffs, and also between tortfeasors who

          cause severe and moderate or minor injuries.

            Plaintiffs suggest that section 2--1115.1 creates a second

          arbitrary legislative classification by distinguishing between

          injured individuals who suffer identical injuries. For example,

          we are asked to assume that an individual loses his leg due to

          a defectively manufactured forklift today, and he loses his other

          leg in a car accident the following year. Both injuries are caused

          by the negligent conduct of others. The injured individual brings

          two different actions against two different defendants, and a jury

          assesses compensatory damages for noneconomic injuries at

          $400,000 in each case. Section 2--1115.1 would allow the

          plaintiff to recover both verdicts in full. However, if the same

          plaintiff lost both legs in a single accident due to the negligence

          of another, and if the jury fairly assessed $800,000 in

          compensatory damages for noneconomic injuries, then the cap

          in section 2--1115.1 would eliminate a substantial portion of that

          tortfeasor's liability, without regard to the facts of the case.

            To illustrate the third arbitrary classification created by the

          limitation on noneconomic damages in personal injury actions,

          plaintiffs argue that section 2--1115.1 improperly discriminates

          among types of injuries. Plaintiffs maintain that the legislative

          statements concerning the supposed difficulties of assessing

          damages for noneconomic injuries apply equally to all tort

          claims for pure noneconomic loss, and not just those involving

          death, bodily injury or property damage. Other torts that remain

          unaffected by the legislation at issue are invasion of privacy,

          defamation, intentional infliction of emotional distress, negligent

          infliction of emotional distress, damage to reputation and breach

          of fiduciary duty. The speculative nature of noneconomic

          damages for these torts, which do not involve personal injury,

          is not addressed by the cap in section 2--1115.1.

            Plaintiffs maintain that the above illustrations demonstrate

          the arbitrariness of the classifications created by section 2--

          1115.1, in violation of the prohibition against special legislation.

          Plaintiffs contend that the classifications contained within

          section 2--1115.1 allow certain culpable tortfeasors to escape

          liability for a portion of fairly assessed compensatory damages,

          while requiring others to pay the full amount of assessed

          damages. Similarly, certain injured plaintiffs are denied

          compensatory damages, while other similarly situated injured

          plaintiffs are awarded full compensation, without any rational

          justification for the distinction.

            Defendants raise a series of related arguments in opposition

          to plaintiffs' contention that section 2--1115.1 is arbitrary and

          not rationally related to a legitimate government interest.

          Defendants contend that plaintiffs' arguments are "fatally

          flawed" in that they are based on the erroneous assumption that

          noneconomic injuries, which are difficult to assess, should be

          monetarily compensable. Defendants further argue that section

          2--1115.1 is rationally related to the legislative goal of reducing

          systemic costs of the civil justice system, which may be

          accomplished "one step at a time"; that the General Assembly

          has the power to change the common law; and that other

          jurisdictions have upheld statutory limitations on damages

          similar to section 2--1115.1. We address each of defendants'

          arguments in turn.

            At oral argument, in rebuttal, defendants stated that "it is

          not true that money can compensate for noneconomic damages,

          [or] at least the legislature could find that that is the case."

          Defendants do not dispute the general proposition that

          noneconomic injuries are "real." Rather, defendants argue that

          noneconomic damages are "inherently unmeasurable." Thus,

          according to defendants, the legislature's adoption of an

          "objective" limitation on noneconomic damages is reasonable

          and must be upheld as a legitimate exercise of legislative

          judgment.

            Defendants' argument contradicts the statute under

          consideration. Subsection (b) of section 2--1115.1 defines

          noneconomic loss or noneconomic damages as "damages which

          are intangible, including but not limited to damages for pain and

          suffering, disability, disfigurement, loss of consortium and loss

          of society." Subsection (c) provides that "compensatory

          damages" or "actual damages" are "the sum of the economic and

          noneconomic damages." Section 2--1115.1 itself demonstrates

          that the legislature believed that remuneration is an appropriate

          means by which to compensate tort victims for their

          noneconomic injuries. Therefore, the application of a limit to the

          noneconomic damages of some, but not all, injured plaintiffs is

          not justified by the difficulty of assessing such damages.

            We do not disagree with defendants' assertion that damages

          for noneconomic injuries are difficult to assess. We simply

          determine that it does not follow that the difficulty in

          quantifying compensatory damages for noneconomic injuries is

          alleviated by imposing an arbitrary limitation or cap on all

          cases, without regard to the facts or circumstances. Further, the

          preamble to Public Act 89--7 states that "[i]t is the public policy

          of this State that persons injured through the negligence or

          deliberate misconduct of another be afforded a legal mechanism

          to seek compensation for their injuries." Pub. Act 89--7, eff.

          March 9, 1995. There is universal agreement that the

          compensatory goal of tort law requires that an injured plaintiff

          be made whole. See, e.g., Peterson v. Lou Bachrodt Chevrolet

          Co., 76 Ill. 2d 353, 363 (1979); 25 C.J.S. Damages sec. 17

          (1966). In this case, the arbitrary and automatic cap on

          compensatory damages for noneconomic injuries in only certain

          tort cases parallels the harm of the arbitrary classifications

          stricken by this court in Wright, Grace, and Grasse. Therefore,

          the $500,000 limit does not reestablish the credibility of the tort

          system, and does nothing to assist the trier of fact in

          determining appropriate damages for noneconomic injuries. The

          limitation actually undermines the stated goal of providing

          consistency and rationality to the civil justice system.

            We reject defendants' argument that the damages cap in

          section 2--1115.1 should be upheld because reform can be

          undertaken "one step at a time." As previously noted in this

          opinion, this court has rejected the "one step" rationale to

          support a classification if the classification is arbitrary. Grace,

          51 Ill. 2d at 487. We need not address this justification further.

            Defendants also argue that the legislative interest in

          reducing the "systemic costs of tort liability" is sufficient to

          overcome plaintiffs' special legislation challenge. The "systemic

          costs of tort liability" are not defined in Public Act 89--7 and

          we are uncertain as to the meaning and scope of these terms.

          Even if we assume that the reduction of these undefined

          systemic costs is a legitimate state interest, we do not discern

          how the limiting of noneconomic damages in personal injury

          actions may be considered rationally related to the achievement

          of that interest. See Wright, 63 Ill. 2d 313 (rejecting defendants'

          argument that lower insurance premiums and medical

          malpractice costs for all recipients of medical care legitimately

          offset the loss of compensatory damages to some malpractice

          victims); Grace, 51 Ill. 2d at 487-88 (rejecting cost-based

          justification for imposing limits on the recovery of personal

          injury claims as to certain class of plaintiffs). Cf. Bernier, 113

          Ill. 2d 219 (punitive damages cap upheld).[fn4] In the instant

          case, we are unable to discern any connection between the

          automatic reduction of one type of compensatory damages

          awarded to one class of injured plaintiffs and a savings in the

          systemwide costs of litigation. Even assuming that a systemwide

          savings in costs were achieved by the cap, the prohibition

          against special legislation does not permit the entire burden of

          the anticipated cost savings to rest on one class of injured

          plaintiffs. E.g., Grace, 51 Ill. 2d at 485. We therefore reject

          defendants' systemic costs rationale as a basis for upholding

          section 2--1115.1.

            Defendants additionally argue that the General Assembly

          has the power to change the common law and, therefore, the

          limitation on compensatory damages is constitutional. See V.

          Schwartz, M. Behrens & M. Taylor, Illinois Tort Law: A Rich

          History of Cooperation and Respect Between the Courts and the

          Legislature, 28 Loy. U. Chi. L.J. 745 (1997). For example,

          defendants cite to the Worker's Compensation Act as an

          instance of the legislature's valid exercise of the police power

          in limiting liability of an employer for injuries sustained by an

          employee during the course of his or her employment. Grand

          Trunk Western Ry. Co. v. Industrial Comm'n, 291 Ill. 167

          (1919).

            Plaintiffs do not dispute that the legislature has the power

          to change the common law, and we do not question defendants'

          argument insofar as it stands for the general principle that the

          General Assembly may alter the common law and change or

          limit available remedies. This principle is well grounded in the

          jurisprudence of this state. See, e.g., Grand Trunk Western Ry.

          Co., 291 Ill. 167. However, defendants' argument assumes too

          much. The legislature is not free to enact changes to the

          common law which are not rationally related to a legitimate

          government interest. The General Assembly's authority to

          exercise its police power by altering the common law and

          limiting available remedies is also dependent upon the nature

          and scope of the particular change in the law. We hold in the

          case at bar that the statutory cap on compensatory damages for

          noneconomic losses is arbitrary.

            Finally, defendants support their contention that the

          limitation on noneconomic damages in section 2--1115.1 is

          constitutional by referring to several other state court decisions

          which have upheld damage limitations. See Fein v. Permanente

          Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr.

          368 (1985); Samsel v. Wheeler Transport Services, Inc., 246

          Kan. 336, 789 P.2d 541 (1990); Murphy v. Edmonds, 325 Md.

          342, 601 A.2d 102 (1992); Adams v. Children's Mercy Hospital,

          832 S.W.2d 898 (Mo. 1992); Greist v. Phillips, 322 Or. 281,

          906 P.2d 789 (1995); Robinson v. Charleston Area Medical

          Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991); Johnson

          v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585

          (1980); Etheridge v. Medical Center Hospitals, 237 Va. 87, 376

          S.E.2d 525 (1989); Butler v. Flint Goodrich Hospital of Dillard

          University, 607 So. 2d 517 (La. 1992); Prendergast v. Nelson,

          199 Neb. 97, 256 N.W.2d 657 (1977); see also Davis v.

          Omitowoju, 883 F.2d 1155 (3d Cir. 1989).

            However, other jurisdictions have held statutory damages

          caps unconstitutional. Moore v. Mobile Infirmary Ass'n, 592 So.

          2d 156, 158 (Ala. 1991); Morris v. Savoy, 61 Ohio 684, 688-89,

          576 N.E.2d 765, 769 (1991), Arneson v. Olson, 270 N.W.2d

          125, 135-36 (N.D. 1978); Lucas v. United States, 757 S.W.2d

          687, 690-92 (Tex. 1988); Sofie v. Fibreboard Corp., 112 Wash.

          2d 636, 771 P.2d 711 (1989). The amount of noneconomic

          damages caps that have been invalidated in other states varies.

          See, e.g., Smith v. Department of Insurance, 507 So. 2d 1080,

          1088-89 (Fla. 1987) ($450,000 cap); Brannigan v. Usitalo, 134

          N.H. 50, 58, 587 A.2d 1232, 1236-37 (1991) ($875,000 cap).

            The statutory caps on damages which have been enacted by

          other states vary considerably in scope and effect. Similarly, the

          state constitutional provisions and precedents under which these

          damage caps have been challenged are unique to each

          jurisdiction. Although the decisions from other states may be

          instructive in some respects, we believe that these decisions are

          of limited assistance in answering the specific question of

          whether section 2--1115.1 offends the special legislation clause

          of the Illinois Constitution. We hold that it does.

              C. Separation of Powers

            Plaintiffs also assert that section 2--1115.1 violates the

          separation of powers clause (Ill. Const. 1970, art. II, sec. 1) by

          improperly delegating to the legislature the power of remitting

          verdicts and judgments, which is a power unique to the

          judiciary. See Ill. Const. 1970, art. VI, sec. 1 (judicial power is

          vested in the supreme, appellate and circuit courts). According

          to plaintiffs, because section 2--1115.1 limits damages for

          noneconomic injuries, the section violates the constitutional

          separation of powers doctrine by invading the province of the

          judiciary and imposing a "one-size-fits-all `legislative

          remittitur.' " Plaintiffs argue that the cap on damages

          contravenes the traditional authority of the courts to assess, on

          a case-by-case basis, whether a jury's damages award is

          excessive.

            Defendants disagree with plaintiffs' characterization of the

          operation of section 2--1115.1 as a legislative remittitur. They

          argue that the damages cap merely "sets an outer parameter by

          which wholly subjective damages are limited" and in no respect

          displaces traditional judicial functions.

            Under our constitution, the three branches of government--

          legislative, executive, and judicial--are separate and one branch

          shall not "exercise powers properly belonging to another." Ill.

          Const. 1970, art. II, sec. 1. Although our state constitution does

          not define legislative, executive, and judicial power (People v.

          Walker, 119 Ill. 2d 465, 473 (1988)), in "both theory and

          practice, the purpose of the [separation of powers] provision is

          to ensure that the whole power of two or more branches of

          government shall not reside in the same hands." Walker, 119 Ill.

          2d at 473; Knuepfer v. Fawell, 96 Ill. 2d 284, 292 (1983).

            Each branch of government has its own unique sphere of

          authority that cannot be exercised by another branch. See, e.g.,

          Murneigh v. Gainer, 177 Ill. 2d 287, 312-13 (1997) (holding

          invalid an attempted delegation of an executive or administrative

          function to the judicial branch); Wright v. Central Du Page

          Hospital Ass'n, 63 Ill. 2d 313, 322 (1976) (holding invalid an

          attempted delegation of judicial power to nonjudicial member of

          medical malpractice review board); Fields Jeep-Eagle, Inc. v.

          Chrysler Corp., 163 Ill. 2d 462, 478-79 (1994) (holding invalid

          attempted delegation of legislative or administrative

          decisionmaking to the judiciary); see also Agran v. Checker Taxi

          Co., 412 Ill. 145, 149 (1952) ("If the power is judicial in its

          nature, it necessarily follows that the legislature is expressly

          prohibited from exercising it").

            This court has often recognized that the separation of the

          three branches of government is not absolute and unyielding.

          See, e.g., Strukoff v. Strukoff, 76 Ill. 2d 53, 58 (1979). The

          separation of powers clause is not contravened merely because

          separate spheres of governmental authority may overlap. County

          of Kane v. Carlson, 116 Ill. 2d 186, 208 (1987). However, it

          should be emphasized that the determination of when, and under

          what circumstances, a violation of the separation of powers

          doctrine has occurred remains with the judiciary. See, e.g.,

          Murneigh, 177 Ill. 2d at 303; People v. Warren, 173 Ill. 2d 348

          (1996). In furtherance of the authority of the judiciary to carry

          out its constitutional obligations, the legislature is prohibited

          from enacting laws that unduly infringe upon the inherent

          powers of judges. See, e.g., In re S.G., 175 Ill. 2d 471, 487

          (1997); Walker, 119 Ill. 2d at 474; People v. Bainter, 126 Ill. 2d

          292, 303 (1989); Agran, 412 Ill. at 149.

            For over a century it has been a traditional and inherent

          power of the judicial branch of government to apply the doctrine

          of remittitur, in appropriate and limited circumstances, to correct

          excessive jury verdicts. E.g., Hansen v. Boyd, 161 U.S. 397,

          412, 40 L. Ed. 746, 751, 16 S. Ct. 571, 576 (1896); Dimick v.

          Schiedt, 293 U.S. 474, 484-85, 79 L. Ed. 603, 610, 55 S. Ct.

          296, 300 (1935). In Dimick, 293 U.S. at 486, 79 L. Ed. at 611,

          55 S. Ct. at 301, the United States Supreme Court recognized

          that remittitur of an excessive portion of a jury verdict is a

          question of law for the court.

            The practice of ordering a remittitur of excessive damages

          has long been recognized and accepted as part of Illinois law.

          See, e.g., Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997);

          Lee v. Chicago Transit Authority, 152 Ill. 2d 432 (1992); Carter

          v. Kirk, 256 Ill. App. 3d 938 (1993). The remittitur doctrine has

          been acknowledged as promoting both the administration of

          justice and the conclusion of litigation. See Carter, 256 Ill. App.

          3d at 947; McElroy v. Patton, 130 Ill. App. 2d 872, 877 (1970).

          This court has stated that "[a]n award of damages will be

          deemed excessive if it falls outside the range of fair and

          reasonable compensation or results from passion or prejudice, or

          if it is so large that it shocks the judicial conscience."

          Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). However,

          a damages award will not be subject to remittitur where it "falls

          within the flexible range of conclusions which can reasonably

          be supported by the facts" because the assessment of damages

          is primarily an issue of fact for jury determination. Lee, 152 Ill.

          2d at 470; see also Barry v. Owens-Corning Fiberglas Corp.,

          282 Ill. App. 3d 199, 207 (1996) (noting that evaluations of a

          plaintiff's pain and suffering depend on jurors' combined

          wisdom and experience); Riley v. Koneru, 228 Ill. App. 3d 883,

          887-88 (1992) (noting reluctance of courts to interfere with

          damages awards unless the award is the result of passion or

          prejudice) .

            The deference given to the careful deliberative process of

          the jury is overcome if, after examining the evidence presented

          at trial, the trial judge determines that the jury verdict is

          excessive. In such a case, "the judge may not allow the verdict

          to stand but must act to correct the injustice; and the failure to

          do so is, itself, error." Haid v. Tingle, 219 Ill. App. 3d 406, 410

          (1991). Under such circumstances the court has a duty to correct

          the excessive verdict, and may do so by ordering a remittitur of

          a portion of the damages, with the plaintiff's consent. As a

          check on excessive verdicts, therefore, the inherent power of the

          court to order a remittitur or, if the plaintiff does not consent, a

          new trial, is essential to the judicial management of trials. See

          Haid, 219 Ill. App. 3d at 412.

            Case law reflects that the application of remittitur should be

          considered on a case-by-case basis because the evidence and

          circumstances supporting verdicts must be carefully examined

          before a jury's assessment of damages is reduced. See

          Richardson v. Chapman, 175 Ill. 2d 98 (1997) (remitting one

          plaintiff's $11 million award for future medical expenses by $1

          million and reducing by half the other plaintiff's pain and

          suffering award). See also Carter v. Kirk, 256 Ill. App. 3d 938

          (1993) (finding that trial court properly granted $20,000

          remittitur where the jury's verdict was excessive because

          medical evidence failed to support the plaintiff's claims). In

          other circumstances, courts have declined to enter a remittitur,

          even in cases involving large awards, because the evidence

          supported the jury's verdicts. Cf. Holston v. Sisters of the Third

          Order of St. Francis, 165 Ill. 2d 150 (1995) (declining to reduce

          as excessive a $7.3 million verdict in a wrongful death and

          survival case); Barry, 282 Ill. App. 3d at 208 (declining to apply

          a remittitur to $12 million verdict).

            In the case at bar, we conclude that section 2--1115.1

          undercuts the power, and obligation, of the judiciary to reduce

          excessive verdicts. In our view, section 2--1115.1 functions as

          a "legislative remittitur." Unlike the traditional remittitur power

          of the judiciary, the legislative remittitur of section 2--1115.1

          disregards the jury's careful deliberative process in determining

          damages that will fairly compensate injured plaintiffs who have

          proven their causes of action. The cap on damages is mandatory

          and operates wholly apart from the specific circumstances of a

          particular plaintiff's noneconomic injuries. Therefore, section 2--

          1115.1 unduly encroaches upon the fundamentally judicial

          prerogative of determining whether a jury's assessment of

          damages is excessive within the meaning of the law.

            We additionally note that the cap provision of section 2--

          1115.1 forces the successful plaintiff to forgo part of his or her

          jury award without the plaintiff's consent, in clear violation of

          the well-settled principle that a trial court does not have

          authority to reduce a damages award by entry of a remittitur if

          the plaintiff objects or does not consent. See, e.g., Haid, 219 Ill.

          App. 3d at 411. A plaintiff's refusal to consent to remittitur will

          result in the ordering of a new trial. See McCausland v.

          Wonderly, 56 Ill. 410 (1870); Congregation of the Passion, Holy

          Cross Province v. Touche Ross & Co., 224 Ill. App. 3d 559,

          588 (1991). As such, the statutory scheme unduly expands the

          remittitur doctrine. See P. Weiss, Reforming Tort Reform: Is

          There Substance to the Seventh Amendment, 38 Cath. U.L. Rev.

          737, 757 (1989).

            We find persuasive the discussion of legislative remittitur

          contained in an opinion of the Supreme Court of Washington,

          Sofie v. Fireboard Corp., 112 Wash. 2d 636, 771 P.2d 711

          (1989). In that case, the court found unconstitutional

          Washington's statutory limit on noneconomic damages. The

          Sofie court held the statutory damages cap unconstitutional on

          the basis that it violated the plaintiffs' right to a trial by jury, an

          issue we do not determine in the instant case. The court's

          secondary discussion, which considered the plaintiffs' separation

          of powers challenge, is instructive to our separation of powers

          analysis.

            In addressing the plaintiffs' arguments that the statutory

          damages cap operated as a "legislative remittitur" in violation of

          the separation of powers doctrine, the Washington Supreme

          Court observed that the statute "directly changes the outcome of

          a jury determination *** by taking a jury's finding of fact and

          altering it to conform to a predetermined formula." Sofie, 112

          Wash. 2d at 653, 771 P.2d at 720. The court observed that

          remittitur is wholly within the power of the trial judge, and it is

          the judge who is empowered to make the legal conclusion, on

          a case-by-case basis, that the jury's damage award is excessive

          in light of the evidence. Consequently, because the "[l]egislature

          cannot make such case-by-case determinations," separation of

          powers concerns would be violated by the "legislative attempt

          to mandate legal conclusions." Sofie, 112 Wash. 2d at 654, 771

          P.2d at 721. Although the Sofie court did not base its decision

          squarely upon separation of powers concerns, the court

          observed, "[T]he [statutory damages] limit may, indeed, violate

          the separation of powers." Sofie, 112 Wash. 2d at 654, 771 P.2d

          at 721.

          invades the power of the judiciary to limit excessive awards of

          damages. The courts are constitutionally empowered, and indeed

          obligated, to reduce excessive verdicts where appropriate in light

          of the evidence adduced in a particular case. Section 2--1115.1,

          however, reduces damages by operation of law, without regard

          to the specific circumstances of individual jury awards.

          Although legislative limits upon certain types of damages may

          be permitted, such as damages recoverable in statutory causes

          of action, we hold that the cap in section 2--1115.1 violates the

          separation of powers clause of the Illinois Constitution.

            In summary, we hold that the compensatory damages cap

          of section 2--1115.1 violates the constitutional prohibition

          against special legislation and also violates the separation of

          powers clause. Because we have so determined, we decline to

          address the parties' additional arguments questioning the validity

          of section 2--1115.1 as violating the right to a jury trial and the

          right to a certain remedy under the Illinois Constitution.

          III. Section 3.5 of the Joint Tortfeasor Contribution Act

            Plaintiffs challenge the constitutionality of the "contribution

          credit" created by Public Act 89--7. This credit is set forth in a

          new provision, section 3.5(a), which has been added to the Joint

          Tortfeasor Contribution Act (740 ILCS 100/3.5(a) (West 1996)).

          Section 3.5(a) provides:

                     "sec. 3.5. Contribution against the plaintiff's

                         employer.

                     (a) If a tortfeasor brings an action for contribution

                         against the plaintiff's employer, the employer's liability

                         for contribution shall not exceed the amount of the

                         employer's liability to the plaintiff under the Workers'

                         Compensation Act or the Workers' Occupational

                         Diseases Act. The tortfeasor seeking contribution from

                         the plaintiff's employer is not entitled to recover money

                         from the employer. The tortfeasor shall receive a credit

                         against his or her liability to the plaintiff in an amount

                         equal to the amount of contribution, if any, for which

                         the employer is found to be liable to that tortfeasor,

                         even if the amount exceeds the employer's liability

                         under the Workers' Compensation Act or the Workers'

                         Occupational Diseases Act." 740 ILCS 100/3.5(a) (West

            The circuit court held that section 3.5(a) violated the due

          process and equal protection clause of the Illinois Constitution

          (Ill. Const. 1970, art. I, sec. 2), the right to a certain remedy (Ill.

          Const. 1970, art. I, sec. 12), and the separation of powers

          provision (Ill. Const. 1970, art. II, sec. 1). The court concluded

          that the section would deprive an injured party of "full

          compensation due to [its] constitutional infirmities." The court

          also noted that "working mathematically through different

          scenarios demonstrates that illogical and surely unintended

          results occur from [applying the principles of section 3.5(a)]."

            Initially, we note the fundamental inconsistency between

          section 3.5(a) and the amendments made by Public Act 89--7 to

          section 2--1117 of the Code of Civil Procedure (735 ILCS 5/2--

          1117 (West 1996)). The amended version of section 2--1117

          abolishes the doctrine of joint and several liability in all actions

          brought on account of death, bodily injury to person, or physical

          damage to property. The doctrine of joint and several liability

          is replaced in these actions with proportionate several liability,

          whereby a defendant is liable "only for that proportion of

          recoverable economic and non-economic damages, if any, that

          the amount of that defendant's fault, if any, bears to the

          aggregate amount of fault of all other tortfeasors." 735 ILCS

          5/2--1117 (West 1996).[fn5]  At the same time, however,

          section 2(b) of the Contribution Act, which is unaltered by

          Public Act 89--7, provides that "[t]he right of contribution exists

          only in favor of a tortfeasor who has paid more than his pro rata

          share of the common liability." 740 ILCS 100/2(b) (West 1996).

          Thus, because a tortfeasor is only liable for his or her

          proportionate share of damages as defined by section 2--1117,

          it appears that a tortfeasor would never need, or be able, to

          pursue a contribution action against an employer and, therefore,

          that section 3.5(a) could never be given effect. See R. Michael,

          Joint Liability: Should It Be Reformed or Abolished?--The

          Illinois Experience, 27 Loy. U. Chi. L.J. 867, 910 (1996); S.

          O'Neil, A New Day, The Civil Justice Reform Amendments of

          1995, 9 CBA Rec. at 18, 28 (May 1995) ("Contribution claims

          against employers are now technically unnecessary because a

          defendant's liability is limited to his own percentage of fault");

          see also N.M. Stat. Ann. sec. 41--3A--1(E) (Michie 1996)

          (expressly noting that defendants who are subject to

          proportionate several liability are not entitled to contribution);

          Ind. Code Ann. sec. 34--4--33--7 (Michie 1986).

            The legislature's enactment of section 3.5(a) and

          simultaneous adoption of proportionate several liability in

          section 2--1117 raises a serious question as to whether, on the

          basis of this conflict alone, the section 3.5(a) credit must be

          stricken. We need not resolve this issue, however, for even if we

          assume that the two provisions can coexist, we determine that

          section 3.5(a) is invalid.

            The first sentence of section 3.5(a) states that an employer's

          "liability for contribution" is limited to the amount of the

          Compensation Act (820 ILCS 305/1 et seq. (West 1996)), or the

          Workers' Occupational Diseases Act (820 ILCS 310/1 et seq.

          (West 1996)). Standing alone, this sentence would be a

          codification of this court's decision in Kotecki v. Cyclops

          Welding Corp., 146 Ill. 2d 155 (1991). However, the next two

          sentences of section 3.5(a) negate the meaning of the first

          sentence. The second sentence of section 3.5(a) states that a

          tortfeasor seeking contribution from an employer may not

          receive money from that employer. The third sentence then

          begins by stating that the tortfeasor, instead of receiving money,

          will receive a credit for the "amount of contribution" for which

          the employer is "found to be liable" to the tortfeasor. This credit

          is to be applied against the tortfeasor's liability to the plaintiff.

            Because the first sentence of section 3.5(a) limits the

          employer's "liability for contribution" to the employer's

          workers' compensation liability, one might reasonably assume

          that the amount of the credit in the third sentence, which is

          defined as being equal to the "amount of contribution" for which

          the employer is "found to be liable," would also be equal to the

          employer's workers' compensation liability. However, this is not

          the case. The final clause of the third sentence unequivocally

          states that the amount of the credit may exceed the employer's

          workers' compensation liability. Thus, section 3.5(a) is not only

          inconsistent with section 2--1117, it is also internally

          inconsistent: if the second and third sentences of section 3.5(a)

          are given effect, the first sentence is rendered meaningless.

            The internal contradiction within section 3.5(a) further

          suggests that a consistent and intelligible construction of the

          provision may not be possible. Again, however, we need not

          decide whether the section 3.5(a) credit must be invalidated on

          this basis alone. Even if the second and third sentences of

          section 3.5(a) are enforced to the exclusion of the first sentence,

          the credit remains invalid.

            Plaintiffs contend that if the section 3.5(a) credit is given

          effect, then an employee's recovery from a third-party tortfeasor

          will be unjustifiably subjected to a "double reduction." Plaintiffs

          maintain that this double reduction will occur because of the

          combined effect of the section 3.5(a) credit and the

          proportionate several liability of section 2--1117. According to

          plaintiffs, the employee's recovery from the third-party

          tortfeasor would first be reduced by the percentage of the

          employer's comparative fault because section 2--1117 makes the

          defendant only severally liable. Then, because the section 3.5(a)

          credit may exceed the employer's workers' compensation

          liability, the employee's recovery would be reduced again by the

          percentage of the employer's fault. Thus, plaintiffs argue that in

          an action by an employee against a third-party tortfeasor, the

          employee will bear the burden of his employer's fault twice. See

          27 Loy. U. Chi. L.J. at 912.

            As an illustration of how the double reduction would occur

          in practice, plaintiffs offer the following examples. Consider an

          action involving an employee plaintiff, an employer, and a third-

          party tortfeasor. Assume that the plaintiff is awarded $500,000

          in damages and that the tortfeasor and the employer are each

          50% at fault. Pursuant to the amended version of section 2--

          1117, the tortfeasor would be liable only for his or her

          proportionate share of the damages, or $250,000. Then, under

          section 3.5(a), the tortfeasor would obtain a credit against his or

          her liability to the plaintiff in an amount equal to the employer's

          proportionate share of the damages, in this case, 50% or

          $250,000. Thus, because $250,000 minus $250,000 equals zero,

          the tortfeasor would incur no liability to the plaintiff.

            A similar situation occurs when the contributory fault of the

          plaintiff and the employer's fault together equals 50% or more.

          Assume the same verdict of $500,000. Further assume that the

          plaintiff's percentage of contributory fault is 10%, the

          tortfeasor's percentage of fault is 50%, and the employer's

          percentage of fault is 40%. The $500,000 verdict would first be

          reduced by the plaintiff's degree of contributory fault. This

          reduction would be 10% of $500,000, or $50,000. The tortfeasor

          is liable for 50% of the verdict, or $250,000, but then gets a

          credit for the amount of liability allocated to the employer (in

          this example, 40%, or $200,000). Thus, the tortfeasor, whose

          percentage of fault is 50%, is liable for only $50,000, or 10%

          of the total damages.

            Plaintiffs argue that in both of the examples above, the

          employee's recovery from the third-party tortfeasor is subjected

          to a double reduction. Plaintiffs maintain that this double

          reduction is arbitrary and discriminatory, and in violation of

          principles of due process and equal protection.

            Defendants do not contend that the double reduction effect

          is constitutional. Instead, defendants assert that the section 3.5(a)

          credit should be construed in a limited fashion so that the

          double reduction will not occur. Specifically, defendants

          maintain that the section 3.5(a) credit should be available only

          in those situations where the third-party tortfeasor settles with

          the plaintiff for an amount greater than his or her proportionate

          share of liability. In these situations, according to defendants,

          the proportionate several liability of section 2--1117 would not

          apply. Thus, the application of the section 3.5(a) credit to the

          settlement amount would not produce a double reduction.

            We do not believe that this construction of section 3.5(a) is

          permitted by the statute. Under section 3.5(a), a third-party

          receive money. Instead, the tortfeasor receives a credit which is

          applied against the tortfeasor's "liability to the plaintiff."

          However, once the tortfeasor settles with the plaintiff, the

          tortfeasor is no longer liable for the plaintiff's damages. Thus,

          if the tortfeasor settles, there is no liability to which the credit

          can be applied. Therefore, under the plain language of the

          statute, section 3.5(a) cannot apply to those situations where the

          third-party tortfeasor settles with the plaintiff. See also 27 Loy.

          U. Chi. L.J. at 910 n.257.

            Defendants also assert that, as a practical matter, the double

          reduction will never occur. They point out that under section 2--

          1117, a tortfeasor will never be liable for more than his or her

          proportionate share of the damages and, therefore, will never

          meet the threshold requirement for contribution. See 740 ILCS

          100/2(b) (West 1992). According to defendants, the double

          reduction effect described by plaintiffs is merely a hypothetical

          event which will not happen in practice.

            Defendants are correct to point out that, logically, the

          section 3.5(a) credit cannot exist in the face of the proportionate

          several liability of section 2--1117, but this fact only serves to

          highlight the conflict between the two provisions. Furthermore,

          while defendants' argument that the section 3.5(a) credit will

          never occur resolves the conflict with section 2--1117 and the

          internal contradiction within section 3.5(a), it also renders the

          second and third sentences of section 3.5(a) a complete nullity,

          in violation of well-established principles of statutory

          construction. See, e.g., Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189

          (1990) ("A statute should be construed so that no word or

          phrase is rendered superfluous or meaningless"); 2A N. Singer,

          Sutherland on Statutory Construction sec. 46.06 (5th ed.

          1993).[fn6]

            Section 3.5(a) was discussed only briefly during the debate

          on House Bill 20 and the comments which were offered provide

          no guidance in resolving the ambiguities of the provision. See

          89th Ill. Gen. Assem., House Proceedings, February 16, 1995,

          at 53-57, 129-30. Accordingly, we conclude that the credit set

          forth in the second and third sentences of section 3.5(a) is either

          arbitrary and unconstitutional, as plaintiffs propose, or entirely

          superfluous, as defendants propose. In either case, the section

          3.5(a) credit is invalid and must be stricken.

          IV. The Abolition of Joint and Several Liability

            The common law doctrine of joint and several liability

          provides, in general, that when two or more defendants

          tortiously contribute to the same, indivisible injury, each

          defendant may be held jointly and severally liable for the entire

          injury. See generally 3 F. Harper, F. James & O. Gray, Torts,

          secs. 10.1, 10.2 (2d ed. 1986); W. Keeton, Prosser & Keeton on

          Torts sec. 47, secs. 50 through 52 (5th ed. 1984); Coney v.

          J.L.G. Industries, Inc., 97 Ill. 2d 104, 119-20 (1983).

          Significantly, under this doctrine, the plaintiff may recover

          compensation for the full amount of the injury from any one of

          defendants responsible for the injury. Coney, 97 Ill. 2d at 119-

          20.

            As noted previously, Public Act 89--7 eliminates the

          doctrine of joint and several liability in all actions brought on

          account of death, bodily injury to person, or physical damage to

          property. In amendments made to section 2--1117 of the Code

          of Civil Procedure, Public Act 89--7 replaces joint and several

          liability with proportionate several liability. The amended

          version of section 2--1117 provides in full:

                     "sec. 2--1117. Several liability.

                     (a) In any action brought on account of death, bodily

                         injury to person, or physical damage to property in

                         which recovery is predicated upon fault as defined in

                         Section 2--1116, a defendant is severally liable only and

                         is liable only for that proportion of recoverable

                         economic and non-economic damages, if any, that the

                         amount of that defendant's fault, if any, bears to the

                         aggregate amount of fault of all other tortfeasors, as

                         defined in Section 2--1116, whose fault was a proximate

                         cause of the death, bodily injury, economic loss, or

                         physical damage to property for which recovery is

                         sought.

                     (b) Notwithstanding the provisions of subsection (a),

                         in any healing art malpractice action based on

                         negligence or wrongful death, any defendants found

                         liable shall be jointly and severally liable if the

                         limitations on non-economic damages in Section 2--

                         1115.1 of this Act are for any reason deemed or found

                         to be invalid." 735 ILCS 5/2--1117 (West 1996).

            The circuit court concluded that, with "absolute certainty,"

          section 2--1117 deprives the citizens of Illinois of their right to

          "find a certain remedy in the laws for all injuries and wrongs"

          (Ill. Const. 1970, art. I, sec. 12). The court further determined

          that section 2--1117 " `unreasonably mandates an allocation of

          percentages of negligence to nonparties without any kind of

          procedural safeguard' " (quoting Newville v. State of Montana

          Department of Family Services, 267 Mont. 237, 252, 883 P.2d

          793, 802-03 (1994)) and, hence, violates the constitutional right

          to due process (Ill. Const. 1970, art. I, sec. 2). The circuit court

          also held that section 2--1117 violates the separation of powers

          provision of the Illinois Constitution (Ill. Const. 1970, art. II,

          sec. 1) and the courts provision (Ill. Const. 1970, art. VI, sec.

          1).

            In part III of this opinion, we noted that section 2--1117 is

          fundamentally at odds with the basic principles of the

          Contribution Act and with section 3.5(a). Section 2--1117 also

          directly conflicts with section 4 of the Contribution Act (740

          ILCS 100/4 (West 1996)). Public Act 89--7 amended section 4

          by adding the words "[e]xcept as provided in Section 3.5 of this

          Act." Pub. Act 89--7, eff. March 9, 1995. Section 4 now

                     "sec. 4. Rights of Plaintiff Unaffected. Except as

                         provided in Section 3.5 of this Act, a plaintiff's right to

                         recover the full amount of his judgment from any one

                         or more defendants subject to liability in tort for the

                         same injury to person or property, or for wrongful

                         death, is not affected by the provisions of this Act." 740

                         ILCS 100/4 (West 1996).

            Section 4 evidently retains the doctrine of joint and several

          liability because it expressly preserves a plaintiff's right to

          obtain a full recovery of damages from any one or more

          defendants, subject only to section 3.5. See Coney, 97 Ill. 2d at

          123. Yet, at the same time, section 2--1117 unquestionably

          abolishes joint and several liability. See 27 Loy. U. Chi. L.J. at

          910 n.258. The simultaneous adoption and retention of two

          substantive, contradictory doctrines in a single act creates a

          significant obstacle to discerning the legislative intent behind

          Public Act 89--7. Because section 2--1117 and section 4 of the

          Contribution Act are diametrically opposed, any attempt to

          harmonize them would necessarily be futile. Moreover, we

          cannot assume that the retention of section 4 was merely an

          oversight by the legislature because the section itself was

          amended by Public Act 89--7. Hence, the legislature was

          mindful of both section 2--1117 and section 4 at the time Public

          Act 89--7 was passed and was presumptively aware of their

          meanings.

            As with the section 3.5(a) credit, the irreconcilable conflict

          between section 2--1117 and section 4 raises a serious question

          as to whether section 2--1117 can be enforced without

          substantially, and improperly, rewriting Public Act 89--7. See,

          e.g., Kozak v. Retirement Board of the Firemen's Annuity &

          Benefit Fund, 95 Ill. 2d 211, 220 (1983) (statute may not be

          rewritten to make it consistent with the court's view of sound

          public policy). However, we need not resolve this issue. Like

          the section 3.5(a) credit, we believe that even if section 2--1117

          can be considered in isolation, it is invalid.

            Defendants contend that the legislature's adoption of

          proportionate several liability in section 2--1117 is a reasonable

          legislative action, in light of problems which allegedly exist

          with the doctrine of joint and several liability. According to

          defendants, the foremost problem with joint and several liability

          is that it unfairly holds tortfeasors liable for damages which they

          do not cause.[fn7] In an argument dependent upon this

          assertion, defendants also maintain that, under joint and several

          liability, "deep pocket" defendants are improperly forced to bear

          the costs of misconduct caused by others. Defendants assert that

          these costs, which are initially borne by the "deep pocket"

          defendant, are eventually passed on to others in the form of

          higher consumer costs and increased taxes. See also IDC

          Quarterly, at 7 (Second Quarter 1996) (contending that joint and

          several liability inherently gives rise to economic inefficiency

          and that the doctrine creates a "skewing of economic

          incentives"). Defendants maintain that these failings of joint and

          several liability are cured, either partially or fully, by

          proportionate several liability. Therefore, according to

          defendants, the legislature was justified in enacting section 2--

          1117.

            We note that the proposition which defendants offer as the

          primary explanation for abolishing the doctrine of joint and

          several liability, i.e., the assertion that the doctrine requires

          tortfeasors to pay for more damages than they caused, is at odds

          with this court's explanation of joint and several liability in

          Coney, 97 Ill. 2d 104. In Coney, this court was asked to decide,

          inter alia, whether the doctrine of comparative negligence or

          fault necessitated the elimination of joint and several liability.

          Coney, 97 Ill. 2d at 110. The defendant in Coney urged this

          court to abandon joint and several liability, arguing that "[w]ith

          the adoption of comparative negligence where damages are

          apportioned according to each party's fault, *** it is no longer

          rational to hold a defendant liable beyond his share of the total

          damages." Coney, 97 Ill. 2d at 120. The court rejected this

          argument and held that the adoption of comparative negligence

          did not mandate the abolition of joint and several liability. In so

          holding, the Coney court stated:

                     "The feasibility of apportioning fault on a

                         comparative basis does not render an indivisible injury

                         `divisible' for purposes of the joint and several liability

                         rule. A concurrent tortfeasor is liable for the whole of

                         an indivisible injury when his negligence is a proximate

                         cause of that damage. *** The mere fact that it may be

                         possible to assign some percentage figure to the relative

                         culpability of one negligent defendant as compared to

                         another does not in any way suggest that each

                         defendant's negligence is not a proximate cause of the

                         entire indivisible injury." (Emphasis added.) Coney, 97

                         Ill. 2d at 121-22.

          See also Burke v. 12 Rochschild's Liquor Mart, Inc., 148 Ill. 2d

          429, 452-53 (1992) (recognizing that the adoption of

          comparative negligence principles does not alter a joint

          tortfeasor's full responsibility for a plaintiff's single, indivisible

          injury).

            The principle that tortfeasors who are held jointly and

          severally liable are each fully responsible for the entirety of the

          plaintiff's injury has been explained:

              "Joint and several liability only applies to injuries for

                         which the defendant herself is fully responsible. She is

                         responsible for the entirety of some injury only if her

                         tortious behavior was an actual and proximate cause of

                         the entire injury. [Emphasis added.] She is not liable for

                         injuries, including separable portions of injuries, to

                         which she did not contribute. She is not liable unless

                         the tortious aspect of her conduct was an actual cause

                         of the injury. Moreover, even then, she is not liable if,

                         for reasons of policy or principle, her connection to the

                         injury is considered too remote or minimal to be

                         `proximate.'

                     A defendant's individual full responsibility for an

                         injury that was an actual and proximate result of her

                         tortious behavior is not diminished if some other

                         person's tortious behavior also was an actual and

                         proximate cause of the injury. Rather each defendant

                         whose tortious behavior was an actual and proximate

                         cause of the injury is individually fully responsible for

                         the entire injury. This is most obvious when a

                         defendant's tortious behavior was either necessary or

                         independently sufficient for the occurrence of the injury,

                         but it remains true whenever a defendant's tortious

                         behavior was an actual and proximate cause of the

                         injury.

                       * * *

                     [There is a fundamental difference] between each

                         [joint] defendant's individual full responsibility for the

                         damages that she tortiously caused and the comparative

                         responsibility percentages that are obtained by

                         comparing the defendants' individual full

                         responsibilities for the injury. [In situations where two

                         defendants are held jointly and severally liable for

                         negligently injuring a plaintiff] [n]either defendant ***

                         [is] merely `50% negligent' or `50% responsible.' Such

                         statements make as much sense as saying that someone

                         is `50% pregnant.' Nor did either defendant's

                         negligence cause or occasion only 50% of the plaintiff's

                         injury. Rather, each defendant was 100% negligent,

                         each defendant's negligence was an actual and

                         proximate cause of 100% of the injury, and each

                         defendant therefore is fully responsible for the entire

                         injury. Only when we compare their individual full

                         responsibilities, and assume that they were equally

                         negligent, does it make sense to say that each

                         defendant, when compared to the other, bears 50% of

                         the total comparative responsibility for the injury."

                         (Emphasis in original.) R. Wright, The Logic and

                         Fairness of Joint and Several Liability, 23 Memphis St.

                         U.L. Rev. 45, 54-56 (1992).

          See also Restatement (Second) of Torts sec. 875, Comment c,

          at 315 (1979) (under the rules of causation set forth by the

          Restatement, "any one of a number of persons whose tortious

          conduct is a substantial factor in causing harm is liable for the

          harm in the absence of a superseding cause"); Lilly v. Marcal

          Rope & Rigging, Inc., 289 Ill. App. 3d 1105, 1113-16 (1997);

          27 Loy. U. Chi. L.J. at 907-08; 21 U.C. Davis L. Rev. at 1141-

          93.

            This court's reasoning in Coney places into question

          defendants' primary justification for abolishing joint and several

          liability, i.e., that the doctrine requires some defendants to pay

          for more damages than they caused or for which they are

          responsible. We need not resolve, however, the conflict between

          the Coney court's analysis of joint and several liability and

          defendants' justification for abolishing the doctrine. We believe

          that, because of the way in which it is drafted, section 2--1117

          violates the special legislation clause of the Illinois Constitution.

            Section 2--1117 purports to eliminate the doctrine of joint

          and several liability. However, it does not do so completely.

          Paragraph (b) of section 2--1117 automatically reinstates joint

          and several liability for medical malpractice defendants if the

          cap on noneconomic damages in section 2--1115.1 is

          invalidated. Because we have held that the cap on noneconomic

          damages is unconstitutional, section 2--1117(b) has been

          activated.

            The justification for imposing joint and several liability

          upon medical malpractice defendants in the absence of a

          damages cap is not immediately apparent. See J. Zimmerman,

          P. Phillips & J. Bisceglia, A Review of the Illinois Civil Justice

          Reform Act of 1995, 83 Ill. B.J. 282, 285 (1995) ("Neither the

          statutory language preserving joint and several liability in these

          narrow circumstances nor the legislative purpose for doing so

          are clear"). One reason for enacting section 2--1117(b) which

          was given during the debate on House Bill 20 was that section

          2--1117(b) was needed to achieve fairness for plaintiffs bringing

          medical malpractice actions. Representative Cross, in response

          to a question asking whether section 2--1117(b) was intended as

          an exclusive benefit for the medical profession, explained that

          the legislature was "trying to be fair to people that have services

          of ... from [physicians], from nurses, from hospitals, anyone

          associated with the health care industry." 89th Ill. Gen. Assem.,

          House Proceedings, February 16, 1995, at 150 (statements of

          Representative Cross).

             The differences between proportionate several liability and

          joint and several liability can have a significant, practical impact

          upon tort plaintiffs. As one commentator has explained:

                     "If all the tortfeasors are available and solvent, joint

                         and several liability with contribution and proportionate

                         several liability both ultimately achieve the same result:

                         liability is apportioned among the multiple responsible

                         causes according [to] their comparative responsibility.

                         However, two major practical differences exist between

                         joint and several liability and proportionate several

                         liability. Under proportionate several liability, the

                         plaintiff can recover full compensation for his injury

                         only if he locates, sues, and collects from each party

                         who tortiously contributed to his injury. The plaintiff

                         therefore bears a substantial risk of receiving less than

                         full compensation if any tortfeasor is missing, insolvent,

                         or has an expected share of liability that would not be

                         worth the cost of litigation. In addition, the costs in

                         time and dollars of the multiple actions required to

                         obtain theoretically full compensation will substantially

                         delay and reduce the plaintiff's actual net compensation

                         even if all the tortfeasors can be sued successfully.

                         Conversely, under joint and several liability the risk of

                         insolvent or otherwise unavailable tortfeasors and the

                         expense of multiple actions is placed on the solvent

                         tortfeasors, if any, from whom the plaintiff initially

                         obtains compensation. The plaintiff can obtain full

                         compensation in the initial suit, and the tortfeasors who

                         pay the plaintiff must seek contribution or indemnity

                         from the other tortfeasors." U.C. Davis L. Rev. at 1142-

                         43.

          See also Coney, 97 Ill. 2d at 123-24.

            Section 2--1117(b)'s abatement of proportionate several

          liability in the context of medical malpractice arbitrarily benefits

          only medical malpractice plaintiffs. These plaintiffs will not

          have to bring several separate actions to recover full

          compensation for their injuries. Nor will these plaintiffs bear the

          risk of any tortfeasor being insolvent or otherwise unavailable.

          However, other tort plaintiffs, whose injuries are not caused by

          medical malpractice, will face these burdens. Neither the

          plaintiffs nor the defendants in the case at bar have offered any

          explanation as to why a select group of medical malpractice

          plaintiffs should enjoy the practical benefits of joint and several

          liability to the exclusion of all other tort plaintiffs. The

          legislature, of course, may reasonably and justifiably be

          concerned with achieving fairness for tort plaintiffs. But the

          legislature may not adopt an arbitrary means of achieving that

          goal. Grace, 51 Ill. 2d at 485. If, in fact, a real need exists to

          eliminate the harshness of several liability, then logically this

          need exists for all plaintiffs who have suffered physical injury

          or loss of property at the hands of joint tortfeasors, and not just

          medical malpractice plaintiffs. The stated legislative goal of

          achieving fairness does not justify singling out a select group of

          tort plaintiffs for special treatment. Therefore, we conclude that

          section 2--1117(b) arbitrarily and unconstitutionally provides a

          special benefit for medical malpractice plaintiffs. See generally

          Grasse, 412 Ill. 179.

            We further note that section 2--1117(b) contradicts the

          stated purpose for enacting proportionate several liability. The

          preamble to Public Act 89--7 declares that "it is the public

          policy of this State that a defendant should not be liable for

          damages in excess of its proportional share of fault." Plaintiffs

          and defendants both agree that this policy was the basis for the

          adoption of proportionate several liability in section 2--

          1117(a).[fn8] Section 2--1117(b) inexplicably contradicts this

          rationale. If the premise underlying Public Act 89--7's abolition

          of joint and several liability is that the doctrine unfairly permits

          a plaintiff to recover more in damages than is justified from an

          individual defendant then, logically, that unfairness is only

          exacerbated if there is no cap on the total amount of the

          damages which the plaintiff can recover. Thus, the invalidation

          of the cap on noneconomic damages does not justify or explain

          the exemption provided by 2--1117(b) from the general rule of

          several liability.

            In sum, there is no discernable rational basis for treating

          medical malpractice plaintiffs differently from other plaintiffs in

          death, bodily injury and property damage cases. Moreover,

          treating these plaintiffs differently in the absence of a damages

          cap is directly contrary to the legislature's acknowledged

          purpose for enacting proportionate several liability. The

          proscription against special legislation prevents the legislature

          from preferentially and arbitrarily discriminating in favor of a

          select group. Village of Vernon Hills, 168 Ill. 2d at 122.

          Accordingly, we conclude that section 2--1117(b) violates the

          special legislation clause of the Illinois Constitution.

            Plaintiffs contend that section 2--1117(b) cannot be severed

          from section 2--1117(a) and, therefore, that if section 2--1117(b)

          is invalid then all of section 2--1117 must be stricken. For the

          reasons stated more fully in part VI of this opinion, we agree

          that without section 2--1117(b), the remainder of section 2--

          1117 no longer reflects the legislature's intentions regarding the

          scope and nature of its enactment of proportionate several

          liability. See, e.g., Lee v. Retirement Board of the Policeman's

          Annuity & Benefit Fund, 31 Ill. 2d 252 (1964). Therefore, we

          hold that section 2--1117(b) cannot be severed from section 2--

          1117(a) and that the entirety of section 2--1117 is

          unconstitutional.

          V. Constitutionality of the Physician-Patient Disclosure Rules

            We next consider the constitutionality of certain provisions

          of Public Act 89--7 that significantly alter existing discovery

          practice in Illinois. Section 2--1003(a) of the Act imposes a

          mandatory consent requirement by which every patient who files

          a personal injury lawsuit is deemed to agree to the unlimited

          disclosure of his or her medical history, records, and other

          medical information to any party who has appeared in the action

          and who requests such information. 735 ILCS 5/2--1003(a)

          (West 1996). Section 2--1003, which is entitled "Discovery and

          depositions" sets forth the disclosure requirements in

          detail.[fn9] If the plaintiff fails to supply the requested consent

          form within 28 days, the court is required, upon motion of a

          defendant, to compel the plaintiff's compliance or to issue an

          order of involuntary dismissal of the plaintiff's action. The

          mandatory consent of section 2--1003 operates as a waiver of

          any privilege between the injured person and each health care

          provider who has furnished care at any time. The consent or

          waiver extends to ex parte conferences between the plaintiff's

          treating physicians or other health care personnel and the

          defendant and his or her representatives. As such, section 2--

          1003(a) is directly contrary to what has been referred to as the

          "Petrillo doctrine," which prohibits defendants and their

          attorneys from engaging in ex parte discussions with the injured

          plaintiff's treating physicians. Petrillo v. Syntex Laboratories,

          Inc., 148 Ill. App. 3d 581 (1986).

            We note that the prior version of section 2--1003 consisted

          of five paragraphs, the first of which provided in its entirety:

          "Discovery, admissions of fact and of genuineness of documents

          and answers to interrogatories shall be in accordance with

          rules." 735 ILCS 5/2--1003(a) (West 1992). This provision has

          been retained as subsection (a--1) of the amended statute and the

          remaining provisions of the prior statute have also been retained.

          Public Act 89--7 adds a new subsection to the discovery and

          depositions statute, which provides in its entirety:

                     "(a) Any party who by pleading alleges any claim for

                         bodily injury or disease, including mental health injury

                         or disease, shall be deemed to waive any privilege

                         between the injured person and each health care

                         provider who has furnished care at any time to the

                         injured person. `Health care provider' means any person

                         or entity who delivers or has delivered health care

                         services, including diagnostic services, and includes, but

                         is not limited to, physicians, psychologists,

                         chiropractors, nurses, mental health workers, therapists,

                         and other healing art practitioners. Any party alleging

                         any such claim for bodily or mental health injury or

                         disease shall, upon written request of any other party

                         who has appeared in the action, sign and deliver within

                         28 days to the requesting party a separate Consent

                         authorizing each person or entity who has provided

                         health care at any time to the allegedly injured person

                         to:

                       (1) furnish the requesting party or the party's

                                attorney a complete copy of the chart or record of

                                health care in the possession of the provider,

                                including reports sent to any third party, including

                                any records generated by other health care providers

                                and in the possession of the health care provider, and

                                including radiographic films of any type;

                       (2) permit the requesting party or the party's

                                attorney to inspect the original chart or record of

                                health care during regular business hours and at the

                                regular business location of the health care provider,

                                upon written request made not less than 7 days prior

                                to the inspection;

                       (3) accept and consider charts and other records of

                                health care by others, radiographic films, and

                                documents, including reports, deposition transcripts,

                                and letters, furnished to the health care provider by

                                the requesting party or the party's attorney, before

                                giving testimony in any deposition or trial or other

                                hearing;

                       (4) confer with the requesting party's attorney

                                before giving testimony in any deposition or trial or

                                other hearing and engage in discussion with the

                                attorney on the subjects of the health care provider's

                                observations related to the allegedly injured party's

                                health, including the following: the patient history,

                                whether charted or otherwise recorded or not; the

                                health care provider's opinions related to the patient's

                                state of health, prognosis, etiology, or cause of the

                                patient's state of health at any time, and the nature

                                and quality of care by other health care providers,

                                including whether any standard of care was or was

                                not breached; and the testimony the health care

                                provider would give in response to any point of

                                interrogation, and the education, experience, and

                                qualifications of the health care provider.

                     The form of the Consent furnished pursuant to this

                         subsection (a) shall recite that it is signed and delivered

                         under the authority of this subsection. Any variation in

                         the form of the Consent required by any health care

                         provider, not subject to the jurisdiction of the circuit

                         court before which the action is pending, to whom a

                         request is directed under subdivision (1) or (2) of this

                         subsection (a) shall be accepted by the allegedly injured

                         party and the revised form requested by the health care

                         provider shall be signed and delivered to the requesting

                         party within 28 days after it is tendered for signature.

                     All documents and information obtained pursuant to

                         a Consent shall be considered confidential. Disclosure

                         may be made only to the parties to the action, their

                         attorneys, their insurers' representatives, and witnesses

                         and consultants whose testimony concerns medical

                         treatment prognosis, or rehabilitation, including expert

                         witnesses.

                     A request for a Consent under this subsection (a) does

                         not preclude such subsequent requests as may

                         reasonably be made seeking to expand the scope of an

                         earlier Consent which was limited to less than all the

                         authority permitted by subdivisions (1) through (4) of

                         this subsection (a) or seeking additional Consents for

                         other health care providers.

                     The provisions of this subsection (a) do not restrict

                         the right of any party to discovery pursuant to rule.

                     Should a plaintiff refuse to timely comply with a

                         request for signature and delivery of a consent permitted

                         by this subsection (a) the court, on motion, shall issue

                         an order authorizing disclosure to the party or parties

                         requesting said consent of all records and information

                         mentioned herein or order the cause dismissed pursuant

                         to Section 2--619(a)(9)." 735 ILCS 5/2--1003(a) (West

            In the case at bar, plaintiffs challenged the medical

          disclosure requirements in the circuit court on several grounds,

          arguing that section 2--1003(a) violates separation of powers,

          the right to privacy, the right to certain remedy and access to

          the courts, and the prohibition against special legislation. The

          circuit court ruled that section 2--1003(a) and the corollary

          provisions of Public Act 89--7 unduly encroach on the authority

          of the judiciary and conflict with present supreme court rules.

          The court also held that the provisions violate the "fundamental

          right to privacy and access to the courts enjoyed by the citizens

          of this state," and that there was not "a rational basis for

          requiring a citizen to reveal medical conditions unrelated to the

          litigation in which she is engaged." The circuit court further

          observed that mandating plaintiffs' consent to unlimited

          disclosure of confidential medical information unrelated to the

          injury on which the lawsuit was brought would "likely force

          many persons to avoid the courthouse to redress their wrongs."

          The circuit court specifically upheld "Petrillo [as] well-reasoned

          law which protects the rights outlined above" and concluded that

          the "usual discovery procedures and the Supreme Court rules

          together" provide defendants with adequate opportunity to test

          plaintiffs' allegations.

            This court has declared section 2--1003(a) unconstitutional

          in Kunkel v. Walton, No. 81176 (November 20, 1997), a case

          which, we note, was under advisement at the same time as the

          case at bar. The parties incorporate by reference the arguments

          made in Kunkel, which include several amici curiae briefs filed

          on behalf of defendants. We have reviewed all of the briefs filed

          in this court which relate to the constitutionality of section 2--

          1003(a). Of the various constitutional challenges made to this

          provision, we resolve its constitutionality primarily upon the

          separation of powers doctrine. We also consider plaintiffs'

          argument that the Illinois Constitution of 1970 grants a privacy

          interest to the citizens of this state and, as part of that analysis,

          we examine the reasoning of the appellate court in Petrillo.

              A. Separation of Powers

            As we have noted elsewhere in this opinion, the separation

          of powers clause of the Illinois Constitution provides that each

          branch of government is separate and may not exercise the

          powers of another branch. Ill. Const. 1970, art. II, sec. 1; People

          v. Warren, 173 Ill. 2d 348 (1996); Murneigh v. Gainer, 177 Ill.

          2d 287. The judicial power is vested in the supreme court, the

          appellate court, and the circuit courts. Ill. Const. 1970, art. VI,

          sec. 1. In addition, the judicial article of the constitution vests

          this court with supervisory and rulemaking authority over the

          judicial system of Illinois. See Ill. Const. 1970, art. VI, sec. 16.

          It is the constitutional duty of this court to preserve the integrity

          and independence of the judiciary and to protect the judicial

          power from encroachment by the other branches of government.

          People v. Davis, 93 Ill. 2d 155, 161 (1982). See also People v.

          Joseph, 113 Ill. 2d 36 (1986); People v. Flores, 104 Ill. 2d 40,

          49 (1984).

            In the case at bar, plaintiffs maintain that section 2--1003(a)

          violates the separation of powers clause because the statute

          abrogates the judiciary's inherent authority to restrict discovery

          to relevant information and to provide appropriate sanctions for

          discovery abuses. Specifically, section 2--1003(a) provides that

          the circuit court "shall issue an order authorizing disclosure to

          the party or parties requesting said consent of all records and

          information mentioned herein or order the cause dismissed

          pursuant to Section 2--619(a)(9)." (Emphasis added.) 735 ILCS

          5/2--1003(a) (West 1996). Plaintiffs contend that this mandatory

          directive upon the circuit courts unduly infringes upon the

          powers of the judiciary because it not only undercuts the

          inherent authority of the courts in the exercise of judicial

          functions but also directly conflicts with certain discovery rules

          of this court.

            Defendants maintain that the challenged provision serves the

          important societal function of expediting discovery and

          curtailing potential abuses of the discovery process by

          unscrupulous plaintiffs or attorneys who do not disclose all facts

          necessary for defendants to prepare a defense. Defendants

          further observe that this court has often recognized the

          legislature's power to regulate practice and procedure. See, e.g.,

          People v. Walker, 119 Ill. 2d 465 (1988); DeLuna v. St.

          Elizabeth's Hospital, 147 Ill. 2d 57 (1992). According to

          defendants, there is no conflict between section 2--1003(a) and

          the rules of this court which pertain to discovery procedures.

          Defendants contend that the circuit courts remain free to issue

          protective orders or discovery sanctions as needed to curtail

          abuses of the discovery process.

            We agree with plaintiffs that section 2--1003(a) creates an

          irreconcilable conflict with the inherent authority of the

          judiciary. Although we acknowledge that the legislature may, in

          some instances, share concurrent power with this court to

          prescribe procedural rules governing discovery (see, e.g.,

          O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 281 (1986);

          Niven v. Siqueira, 109 Ill. 2d 357, 368 (1985)), "we have not

          hesitated to strike down those procedural legislative enactments

          which unduly infringe upon our constitutional rule-making

          authority" to regulate the judicial system of Illinois. O'Connell

          v. St. Francis Hospital, 112 Ill. 2d 273, 281 (1986).

            In O'Connell, this court reaffirmed the established principle

          that where a statutory procedure conflicts with a rule of this

          court relating to the same procedure, the rule necessarily

          prevails. This court held that provisions of the Code of Civil

          Procedure which permitted plaintiffs to nonsuit their actions and

          then to commence a new action within a year following such

          dismissal unduly infringed upon the judiciary's powers, to the

          extent that the procedures allowed a plaintiff to avoid

          compliance with Supreme Court Rule 103(b) (134 Ill. 2d R.

          103(b)). Rule 103(b) requires reasonable diligence in the service

          of process and specifies the consequences which result from a

          plaintiff's untimely service of process, either before or after the

          expiration of the statute of limitations. Because the statutory

          provisions under review in O'Connell gave the plaintiff an

          unconditional right to take a voluntary dismissal and to refile

          within a year of such dismissal, without regard to the expiration

          of the limitations period and without regard to the diligence

          provision of Rule 103(b), this court held that the statutes

          impermissibly conflicted with the rule.

            In Gibellina v. Handley, 127 Ill. 2d 122 (1989), this court

          reaffirmed its authority to manage the court system by

          prohibiting an abuse of certain procedures, even though the

          statutes in issue did not directly conflict with a supreme court

          rule. The Gibellina court prospectively limited plaintiffs'

          statutory right to dismiss their actions and refile within one year,

          where, prior to the plaintiff's motion for voluntary dismissal, the

          defendants filed a motion for summary judgment. This court

          determined that a plaintiff should not be permitted to abuse the

          statutory right to refile a nonsuited action within a year where

          a defendant files a motion that would dispose of the lawsuit on

          the merits. Accordingly, the Gibellina court upheld its authority

          to manage the court system of Illinois and to cure an abusive

          use of civil procedures which had burdened the courts and

          infringed upon the judiciary's ability to discharge its duties

          fairly and expeditiously.

            In a different context, this court has reaffirmed the inherent

          power of the judiciary to exercise certain judicial functions, such

          as the power of contempt, without being bound by legislative

          regulation of such power. In Murneigh, 177 Ill. 2d 287, a

          statutory and administrative blood-collection scheme provided

          that judges "shall" enter orders requiring incarcerated sex

          offenders to give blood specimens. The scheme further required

          the courts to punish the violation of such compliance orders as

          contempt of court. We ruled that the provisions in issue violated

          separation of powers principles by conscripting the judiciary into

          the service of an essentially administrative function and by

          mandating the courts to enter contempt sanctions. Murneigh, 177

          Ill. 2d at 313. This in turn intruded upon the judiciary's inherent

          and essential power of contempt, a power held exclusively by

          the judiciary. See also Agran v. Checker Taxi Co., 412 Ill. 145

          (1952); Wright, 63 Ill. 2d 313.

            In the case at bar, as in Murneigh, the challenged legislation

          provides that the courts shall enter an order of compliance and

          further prescribes the sole sanction to be imposed if compliance

          is not met. Section 2--1003(a) directs that if a plaintiff fails to

          furnish the requested consent form within 28 days, "the court,

          on motion, shall issue an order authorizing disclosure to the

          party or parties requesting said consent of all records and

          information mentioned herein or order the case dismissed

          pursuant to section 2--619(a)(9)." The language of this section

          is mandatory rather than permissive. Therefore, section 2--

          1003(a) obligates the courts of this state to become party to the

          forced disclosure of confidential medical information even if

          such material is wholly unrelated to the lawsuit in issue, or, if

          the plaintiff refuses to comply, to enter an order of involuntary

          dismissal.

            Because involuntary dismissals are considered to be

          adjudications on the merits (134 Ill. 2d R. 273), a plaintiff

          injured through the fault of another would lose his or her right

          of action as the penalty for not consenting to the blanket

          disclosure of all confidential medical information, irrespective

          of how irrelevant to the lawsuit and however personal, sensitive,

          or embarrassing the confidential medical information may be to

          the plaintiff.

            Defendants rely on cases in which this court has upheld as

          constitutional certain legislative regulations of procedure and the

          filing of claims. For example, in People v. Williams, 124 Ill. 2d

          300 (1988), this court held that a statute which provided for the

          substitution of judges did not unduly encroach on the powers of

          the judiciary. Similarly, defendants assert, this court has upheld

          statutes requiring the filing of certain materials as a prerequisite

          for obtaining judicial relief. See DeLuna v. St. Elizabeth's

          Hospital, 147 Ill. 2d 57 (1992) (requiring health care provider's

          affidavit certifying that plaintiff's medical malpractice claim had

          merit); People ex rel. County Collector v. Jeri, Ltd., 40 Ill. 2d

          293 (1968) (requiring that a transcript of evidence relating to the

          trial court's findings be attached to the order of tax deed).

            We believe that the particular statutes upheld by this court

          in the above-cited cases withstood constitutional scrutiny for

          reasons not present in the instant case. In Williams, the

          provision allowing for a substitution of judges in certain

          instances caused only a minimal encroachment upon judicial

          authority and did not prevent the courts from deciding cases or

          managing their dockets. In Jeri, the requirement that a transcript

          of evidence be attached to the order for tax deed was part of a

          purely statutory proceeding and its purpose was to safeguard

          against fraud. The challenged provision did not impede the

          courts in the performance of their functions and therefore did

          not violate separation of powers principles. In DeLuna, the

          certificate of merit requirement was found, inter alia, to be

          reasonably related to the legislative goal of discouraging the

          filing of frivolous medical malpractice actions by imposing the

          threshold requirement that a plaintiff obtain an expert medical

          opinion that his or her claim had merit. DeLuna, 147 Ill. 2d at

          75. Unlike the mandatory consent and disclosure requirements

          of section 2--1003(a), the medical malpractice certificate of

          merit requirement upheld in DeLuna may be viewed as directly

          relevant, and explicitly tailored, to the plaintiff's cause of action.

          The certificate of merit requirement did not extend to medical

          information or expert opinion relating to health conditions of the

          plaintiff which were unrelated to the subject matter of the

          medical malpractice complaint. We conclude that the cases cited

          by defendants are distinguishable from the circumstances of the

          case at bar and are therefore inapposite.

            Evaluating the relevance of discovery requests and limiting

          such requests to prevent abuse or harassment are, we believe,

          uniquely judicial functions. Similarly, the court's imposition of

          sanctions for a party's failure to comply with legitimate

          discovery requests in a timely fashion is an inherently judicial

          power. However, nothing in the express terms of section 2--

          1003(a) authorizes the circuit courts to assess the relevance of

          discovery or limit the scope of the defendant's demand for

          unlimited disclosure of all medical information in the possession

          of anyone who provided health care to the plaintiff at any time.

          To the extent that a statute unduly interferes with the exercise

          of inherently judicial functions or powers, the statute cannot

          prevail. See Gibellina, 127 Ill. 2d 122. We believe that section

          2--1003(a) impermissibly interferes with the inherently judicial

          authority to manage the orderly discovery of information

          relevant to specific cases. Therefore, the statute violates the

            The judicial authority to limit discovery requests and to

          impose sanctions for discovery violations is, moreover, expressly

          embodied in the discovery rules of this court. Supreme Court

          Rule 201(a) contains the general statement that "[i]nformation

          is obtainable as provided in these rules." 166 Ill. 2d R. 201(a).

          The requirement that discovery requests be relevant to the

          subject matter of the litigation is specified in Rule 201(b) (166

          Ill. 2d R. 201(b)). Rule 201(c)(1) prescribes the procedures for

          obtaining protective orders as a means of preventing abuse. 166

          Ill. 2d R. 201(c)(1). In addition, Rule 219 provides the circuit

          courts with a range of options for imposing sanctions for a

          party's failure to comply with the discovery rules of this court

          or with orders of the circuit court pertaining to discovery. 166

          Ill. 2d R. 219.

            Rule 201(b)(1) provides, "Except as provided in these rules,

          a party may obtain by discovery full disclosure regarding any

          matter relevant to the subject matter involved in the pending

          action ***." (Emphasis added.) 166 Ill. 2d R. 201(b)(1). This

          rule expressly limits a party's right of "full disclosure" to

          matters which are relevant to the subject matter of the pending

          lawsuit. In contrast, section 2--1003(a) omits any mention of

          relevance in the consent requirements. Indeed, the statute

          contemplates maximum disclosure of confidential medical

          information, without regard to whether the information is

          relevant to the particular injuries upon which the plaintiff's

          lawsuit is based. The statute provides that a plaintiff must waive

          "any privilege between the injured person and each health care

          provider who has furnished care at any time to the injured

          person." (Emphasis added.) 735 ILCS 5/2--1003(a) (West 1996).

          The unlimited scope of defendants' discovery in section 2--

          1003(a) therefore creates a direct conflict with Rule 201(b),

          which embodies an express rule of relevance regarding matters

          obtainable through discovery. Such conflict is resolved in favor

          of the rule of this court. See, e.g., O'Connell, 112 Ill. 2d 273.

            For similar reasons, we hold that section 2--1003(a)

          conflicts with Supreme Court Rule 201(c)(1), which governs the

          issuance of protective orders. Rule 201(c)(1) provides: "The

          court may at any time on its own initiative, or on motion of any

          party or witness, make a protective order as justice requires,

          denying, limiting, conditioning, or regulating discovery to

          prevent unreasonable annoyance, expense, embarrassment,

          disadvantage, or oppression." 166 Ill. 2d R. 201. In contrast,

          section 2--1003(a) fails to provide any means by which the

          circuit court may deny a disclosure request or narrow the scope

          of the consent. By its terms, therefore, the statute does not

          permit the circuit court to issue a protective order. Therefore,

          the statute conflicts with Rule 201(c)(1).

            Section 2--1003(a) also fails to explicitly accommodate or

          recognize the judge's discretion to impose a discovery sanction

          other than a dismissal on the merits if the plaintiff fails to

          comply with the consent requirement. Supreme Court Rule 219

          enumerates a range of noninclusive sanctions to address

          discovery violations and abuses, including the award of

          expenses, the barring of a witness, the suppression of otherwise

          discoverable information as a sanction for abuse, the striking of

          any or all pleadings relating to an issue, and other options for

          the circuit court to choose in the exercise of its sound discretion.

          Because section 2--1003(a) directs the circuit court's selection

          of just one sanction for a plaintiff's noncompliance with the

          consent request--involuntary dismissal--the statute conflicts with

          Rule 219 as well as the previously discussed provisions of Rule

          201. Accordingly, we conclude that section 2--1003(a) violates

          the separation of powers clause of the Illinois Constitution

          because the statute directly conflicts with the discovery

          procedures that have been expressly promulgated as rules of this

          court pursuant to its constitutional rulemaking authority.

            Defendants insist that nothing in section 2--1003(a)

          precludes a plaintiff from filing, and the circuit court from

          granting, a protective order pursuant to Supreme Court Rule

          201(c). In fact, during oral argument of Kunkel v. Walton, No.

          81176, attorneys for the defendants and for the Attorney

          General, as intervenor, contended that circuit court judges

          remain free to enter protective orders and to enter sanctions

          other than dismissal, despite the fact that such measures are not

          included within the express terms of section 2--1003(a). The

          defendants contend that section 2--1003(a) does not conflict with

          this court's rules and may be construed in a constitutional

          manner. For the reasons stated below, however, we believe that

          the defendants' proposed construction of section 2--1003(a) is

          inconsistent with the plain terms and intent of the mandatory

          consent and disclosure requirements, and we therefore reject as

          untenable the defendants' attempt to harmonize section 2--

          1003(a) with this court's rules. We further determine that the

          defendants' proposed construction of the statute does not cure

          the separation of powers violation created by the application of

          the statute.

            To evaluate the defendants' statutory construction argument,

          we again look to the specific language in the statute and the

          reasonable inferences that may be drawn therefrom. As we have

          already determined, the plain terms of the statute do not

          encompass any explicit procedures by which a plaintiff may

          object to the request for unlimited consent to the disclosure of

          confidential medical information. Nor does the statute refer to

          the court's authority to enter protective orders to prevent

          discovery abuses under Rule 201(c)(1), or to enter any sanctions

          other than dismissal of a plaintiff's action. Accordingly, we

          conclude that under a "plain terms" construction of section 2--

          1003(a), the statute cannot reasonably be construed as allowing

          the circuit court to limit the scope of a consent request through

          protective orders. In light of the express requirements of the

          statute, the circuit court is not permitted to impose a sanction

          for noncompliance other than dismissal of the plaintiff's cause

          of action.

            The defendants nonetheless argue that the statute may be

          construed to permit the circuit court judges to retain discretion

          over the scope of the discovery because of the following

          sentence in section 2--1003(a): "The provisions of this

          subsection (a) do not restrict the right of any party to discovery

          pursuant to rule."[fn10]

            In our view, this sentence does not support the defendants'

          argument that section 2--1003(a) may be construed as permitting

          the circuit court to enter protective orders and to impose

          discretionary sanctions for noncompliance. The quoted sentence

          does not incorporate any limits or rules that might narrow the

          scope of the consent requirements of the statute. Instead, the

          quoted sentence refers to a party's general right to obtain

          discovery pursuant to this court's rules. To read in limiting

          language which is not expressly included in the framework of

          section 2--1003(a) is to create a contradiction within the statute

          itself. For example, if a plaintiff sought a protective order

          requesting the court to prohibit defense counsel from engaging

          in ex parte conferences with the plaintiff's treating physician,

          the court would be required to either (1) ignore the express

          language of the statute or (2) determine that, because of the

          sentence quoted above, the court retained discretion to determine

          that an ex parte conference was an abuse of discovery. The

          dilemma facing such a court is obvious: the court must apply

          the statute as written, or else adopt an expansive interpretation

          that would defeat the essential purpose and express language of

          the statute. Allowing courts to freely limit the scope of the

          mandatory consent requirement would thwart the legislative

          intent to permit the broadest possible disclosure of medical

          information and to authorize unlimited ex parte conferences with

          the plaintiff's treating health care practitioners. Therefore, we

          reject the defendants' statutory construction analysis as contrary

          to the plain terms and intent of the provision.

            But even if we were to accept the statutory construction

          proposed by the defendants, there is a remaining flaw in the

          analysis which underscores the separation of powers concerns

          previously identified. A discovery procedure which authorizes

          unlimited disclosure of information in the first instance, subject

          only to particularized protective orders, shifts a significant

          burden to the courts of this state to repeatedly assess and limit,

          through entry of protective orders, discovery requests that may

          well be overbroad on their face. The expansive impact of the

          statutory consent requirements virtually demands that plaintiffs'

          attorneys file motions for protective orders as a matter of course

          whenever a consent form is requested by defense counsel.

          Although the judiciary is the proper entity to determine the need

          for protective orders, on a case-by-case basis, one of the effects

          of section 2--1003(a) is to create an assembly line of overbroad

          discovery requests followed by motions for protective orders.

          We believe, therefore, that section 2--1003(a) impermissibly

          burdens and significantly infringes upon the inherent judicial

          powers that are constitutionally granted to the courts. See, e.g.,

          Murneigh, 177 Ill. 2d 287 (rejecting legislative mandate that the

          contempt power be used to facilitate administrative or executive

          scheme); People v. Joseph, 113 Ill. 2d 36 (1986) (striking

          statute requiring all post-conviction proceedings to be conducted

          by judge who was not involved in original proceeding as

          encroaching upon court administration); People v. Flores, 104

          Ill. 2d 40, 49 (1984) (invalidating statute which interfered with

          the ability of a trial judge to control his own docket after the

          trial of a cause had begun); see also Gibellina, 127 Ill. 2d 122.

          It is the duty of this court to invalidate legislation that

          significantly burdens or otherwise curtails the inherent and

          constitutionally granted authority of the judiciary. See Davis, 93

          Ill. 2d at 161. Accordingly, we hold that section 2--1003(a) is

          invalid as violating the separation of powers clause of the

          Illinois Constitution.

          B. Right to Privacy and The Petrillo Doctrine

            We next consider plaintiffs' argument that section 2--

          1003(a) violates the privacy rights of Illinois citizens. In support

          of this argument, plaintiffs cite to the two clauses in the Illinois

          Constitution which expressly refer to privacy. See Ill. Const.

          1970, art. I, secs. 6, 12. They further ground their privacy

          argument in the Petrillo doctrine, which recognized a strong

          public policy in preserving the confidential and fiduciary

          physician-patient relationship and held that such public policy

          is violated by ex parte communications between defendants or

          their counsel and plaintiffs' treating physicians.

            Defendants counter that there is no constitutional right to

          privacy in medical information under federal or state decisions.

          Furthermore, the defendants argue, the branch of government

          charged with declaring the public policy of this state is the

          legislature. According to defendants, the legislature acted well

          within its authority in providing for ex parte conferences

          between the plaintiff's health care practitioners and

          representatives of the defendants. Finally, defendants posit that

          the Petrillo doctrine was never expressly adopted by this court

          and that the legislature is free to overturn it.

             In 1970, the Illinois Constitution was amended to include

          two separate provisions which expressly refer to a citizen's

          expectations of privacy. Section 12 of the Illinois Constitution's

          Bill of Rights provides that "[e]very person shall find a certain

          remedy in the laws for all injuries and wrongs which he receives

          to his person, privacy, property or reputation. He shall obtain

          justice by law, freely, completely, and promptly." (Emphasis

          added.) Ill. Const. 1970, art. I, sec. 12. Section 6 of the Illinois

          Bill of Rights states, "The people shall have the right to be

          secure in their persons, houses, papers and other possessions

          against unreasonable *** invasions of privacy ***." Ill. Const.

          1970, art. I, sec. 6.[fn11]

            The Constitutional Commentary to section 6 of the Bill of

          Rights explains that "[t]he protection against `invasion of

          privacy' is new and is stated broadly" and "expands upon the

          individual rights which were contained in Section 6 of Article

          II of the 1870 Constitution and the guarantees of the Fourth and

          Fourteenth Amendments to the United States Constitution." Ill.

          Ann. Stat., 1970 Const., art. I, sec. 6, Constitutional

          Commentary, at 522 (Smith-Hurd 1997). With reference to

          section 6, this court has observed that "[b]ecause the Illinois

          Constitution recognizes a zone of privacy, the protections

          afforded by the Illinois Constitution go beyond the guarantees

          of the Federal Constitution. In re May 1991 Will County Grand

          Jury (1992), 152 Ill. 2d 381." King v. Ryan, 153 Ill. 2d 449, 464

          (1992); see also Fink v. Ryan, 174 Ill. 2d 302 (1996); cf. People

          v. DiGuida, 152 Ill. 2d 104, 119 (1992) (referring to a 1984

          decision in which this court indicated it would interpret section

          6 of the Illinois Bill of Rights as consistent with its counterpart,

          the fourth amendment to the federal constitution). This court has

          stated that governmental conduct or "state action" must be

          present before a citizen claiming a violation of the privacy right

          referenced in section 6 of the Illinois Bill of Rights may obtain

          relief. See Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 526

          (1985) (rejecting plaintiff's argument that employer's alleged

          violation of free speech, equal protection, due process, and

          privacy rights provided a proper foundation on which to premise

          plaintiff's action for retaliatory discharge); see also People v.

          DiGuida, 152 Ill. 2d at 121-24 (rejecting defendant's free speech

          and free elections challenge as a means to challenge his

          conviction for criminal trespass to private store owner's land).

            In considering section 6 of the Illinois Bill of Rights in

          conjunction with section 12, this court has stated that the

          "constitutional right to be free from governmental invasions of

          privacy [in section 6] is supplemented by the constitutional right

          to a certain remedy for invasions or injuries to one's privacy

          provided for in article I, section 12, of the Illinois Constitution

          of 1970." In re A Minor, 149 Ill. 2d 247, 256 (1992). In Minor,

          a news organization attending a juvenile court hearing sought

          permission to disclose the names of the minor victims of abuse.

          Pursuant to a provision of the Juvenile Court Act, the circuit

          court prohibited the newspaper from disclosing the identities of

          the minor victims. The newspaper appealed. This court affirmed,

          holding that the statutory provision which permitted the news

          media to attend hearings closed to the general public did not

          grant the media a right to disclose the minor victims' names.

          This court held that the circuit court's order barring disclosure

          of the victims' identities was not an unconstitutional prior

          restraint on the freedom of the press. Minor, 149 Ill. 2d at 253-

          57. After citing the two privacy clauses of the Illinois

          Constitution, the court determined that the minor victims had a

          compelling privacy interest at stake. Minor, 149 Ill. 2d at 255.

          In reviewing the history of section 12 of the Illinois Bill of

          Rights, the Minor court held it does not require the presence of

          state action. The court concluded,

              "It is clear from the debates in the Sixth Illinois

                         Constitutional Convention that article I, section 12, was

                         intended to protect an individual's privacy from

                         invasions or injuries caused by another nongovernmental

                         individual or company. 3 Record of Proceedings, Sixth

                         Illinois Constitutional Convention 1531-32." (Emphasis

                         in original.) Minor, 149 Ill. 2d at 256 .

            Consistent with this court's holding in the Minor case, we

          recognize that section 12 of the Illinois Constitution, unlike

          section 6, does not require state action before its protections are

          activated. However, the precise nature and scope of the privacy

          interest set forth in section 12 has not been the subject of much

          case law in this state. Plaintiffs cite cases in which a

          constitutional right to privacy was found in bank records

          (People v. Jackson, 116 Ill. App. 3d 430, 434-35 (1983)) and

          telephone records (People v. DeLaire, 240 Ill. App. 3d 1012,

          1020 (1993); cf. People v. Smith, 72 Ill. App. 3d 956, 964

          (1979)). In addition, plaintiffs rely on Petrillo for the

          proposition that the "privacy rights of individual patients" and

          the "confidential and fiduciary relationship existing between

          patients and their physicians" are compelling interests deserving

          of protection for reasons of public policy. Petrillo, 148 Ill. App.

          3d at 607.

            In Petrillo, a product liability action, defense counsel

          informed the trial court that he had previously met in private

          with a treating physician for one of the 26 plaintiffs in the case.

          Upon learning of the meeting, plaintiffs' counsel moved to bar

          any future ex parte communications between defense counsel

          and any other physician. The trial court granted the motion and

          entered an order to that effect. Defense counsel, however,

          informed the court that he did not intend to comply with the

          order. The trial court, therefore, held the attorney in direct

          contempt, and the attorney appealed.

            In affirming the trial court's order, the appellate court

          initially noted that ex parte conferences were not necessary to

          obtain information for defending a lawsuit because the discovery

          methods outlined by Supreme Court Rule 201 were sufficient.

          The court determined that a review of case law from other

          jurisdictions revealed that there was not a single instance in

          which a court found that an ex parte conference was necessary

          to assist defense counsel in obtaining information that they were

          unable to acquire through "regular channels of discovery."

          Petrillo, 148 Ill. App. 3d at 587.

            The Petrillo court emphasized that society places a high

          value on the professional duties under which a physician

          operates, including the dual duties of confidentiality and loyalty.

          Petrillo, 148 Ill. App. 3d at 589-92. The court noted that certain

          conduct could be against public policy even in the absence of an

          express constitutional or statutory prohibition because public

          policy could be inferred from such sources as statutes or

          constitutions. Reasoning that there exists a strong public policy

          in preserving the sanctity of the patient-physician relationship

          and acknowledging the plaintiff's privacy interests, the court

          determined that ex parte conferences unduly threatened society's

          interest in maintaining the fiduciary and confidential nature of

          the relationship. Petrillo, 148 Ill. App. 3d at 589-96.

          Accordingly, the court held that ex parte conferences between

          a plaintiff's physician and defendant or his counsel should not

          be permitted. Petrillo, 148 Ill. App. 3d at 596.

            In the years following the decision in Petrillo, all five

          districts of our appellate court have followed the decision and,

          although the specific application of Petrillo to various facts has

          differed in some respects, "the fundamental holding that ex parte

          discussions between defense counsel and plaintiff's treating

          physician shall be conducted only through authorized methods

          of discovery has been overwhelmingly approved in subsequent

          Illinois Appellate Court cases." L. Bonaguro & M. Jochner, The

          Petrillo Doctrine: A Review and Update, 83 Ill. B.J. 16, 16

          (1995). Other articles, which have analyzed the policy grounds

          on which the Petrillo court based its decision, have either

          endorsed the prohibition of ex parte communications (see P.

          Corboy, Ex Parte Contacts Between Plaintiff's Physician and

          Defense Attorneys: Protecting the Patient-Litigant's Right to a

          Fair Trial, 21 Loy. U. Chi. L.J 1001 (1990)) or questioned the

          "new type of witness privilege" created in Petrillo and the

          perceived expansion of the original decision beyond its natural

          boundaries (see W. McVisk, A More Balanced Approach to Ex

          Parte Interviews by Treating Physicians, 20 Loy. U. Chi. L.J.

          819 (1989); see also C. Redden & W. Bower, Qualifications to

          the Bar of Ex Parte Contacts With Physicians, 79 Ill. B.J. 442

          (1991)).

            We do not believe it is necessary, practical, or appropriate

          for this court to review every case in which the Petrillo rule has

          been applied, distinguished, or otherwise discussed. However,

          because the legislative decision to eviscerate the Petrillo "rule"

          has been questioned by plaintiffs as part of their challenge to

          section 2--1003(a), we find it appropriate to examine the

          rationale of the Petrillo decision and to ascertain whether there

          exists a constitutional source for the recognition of a strong

          public policy interest in preserving the sanctity of the physician-

          patient relationship. We acknowledge that the Petrillo decision

          did not directly recognize a constitutional basis for its holding,

          and we further acknowledge that there was no issue raised in

          Petrillo that the plaintiff's privacy interest in confidential

          medical information was protected by the Illinois Constitution.

          However, the Petrillo court expressly acknowledged that the

          public policy of this state is reflected in constitutional provisions

          as well as statutes. We believe that it is proper for this court to

          consider the Illinois Constitution's privacy provisions as

          reflective of an important policy. With that in mind, we consider

          the important public policy considerations that the Petrillo court

          found compelling enough to bar ex parte conferences.

            In his appeal from the order holding him in contempt of

          court, the attorney in Petrillo raised several arguments. A group

          of arguments, collectively referred to as the "waiver" challenges,

          stated that a plaintiff, by filing suit, places his mental and

          physical condition at issue, thereby waiving the physician-

          patient privilege. The waiver issue was further broken down into

          10 related arguments in which the attorney sought to justify ex

          parte conferences between defense counsel and the treating

          physicians of the plaintiff. In addition, the attorney posited that

          prohibiting defense counsel from engaging in ex parte

          conferences with a plaintiff's treating physician violated defense

          counsel's first amendment rights. Petrillo, 148 Ill. App. 3d at

          584.

            After initially concluding that ex parte conferences were not

          necessary for the preparation of a defense, the Petrillo court

          announced its disagreement with the defense attorney's

          contention that no public policy in Illinois prohibited ex parte

          conferences. According to the court, "Public policy is found in

          a State's constitution and statutes, and where those are silent, in

          the decisions of the judiciary." Petrillo, 148 Ill. App. 3d at 587.

          Noting that public policy forbids "that conduct which tends to

          harm an established and beneficial interest of society the

          existence of which is necessary for the good of the public," the

          court held that "modern public policy strongly favors the

          confidential and fiduciary relationship existing between a patient

          and his physician." Petrillo, 148 Ill. App. 3d at 587. The court

          stated its belief that this public policy was reflected in at least

          two separate indicia: (1) the code of ethics adopted by the

          medical profession, upon which the public necessarily relies as

          a protection of the confidential relationship existing between a

          patient and his physician; and (2) the fiduciary relationship

          which exists between a physician and his patient, which is

          widely recognized in court opinions.

            The first indicia of the public policy invaded by ex parte

          conferences, the medical profession's code of ethics, was further

          broken down by the Petrillo court into three "prongs": (1) the

          Hippocratic Oath; (2) The American Medical Association's

          Principles of Medical Ethics; and (3) the Current Opinions of

          the Judicial Council of the AMA (1984 ed.)[fn12]

            Observing that the relationship between doctor and patient

          remains confidential only for so long as a patient can trust that

          his consent is a prerequisite to the disclosure of the information

          he conveyed to his doctor, the Petrillo court concluded that

          when a physician and defense counsel engage in ex parte

          conferences without the consent of the patient, the

          confidentiality which once existed between the doctor and

          patient is irreparably breached and the "sanctity of the

          relationship existing between a patient and his physician is

          thereby destroyed." Petrillo, 148 Ill. App. 3d at 591.

          Significantly, the Petrillo court distinguished between medical

          information which is considered waived by the filing of a

          lawsuit and information which is not waived. The court noted

          that disclosure of information could be accomplished by either

          an express consent or one implied at law by the patient's

          conduct, such as the filing of a lawsuit. With respect to the

          latter situation, the patient filing suit implicitly agrees to his or

          her doctor's release of any medical information related to the

          specific physical or mental condition which the patient has

          placed in issue. However, the plaintiff's implied consent (or

          waiver of information) "is obviously and necessarily limited; he

          consents only to the release of his medical information (relative

          to the lawsuit) pursuant to the methods of discovery authorized

          by Supreme Court Rule 201(a) (87 Ill. 2d R. 201(a))."

          (Emphasis in original.) Petrillo, 148 Ill. App. 3d at 591. The

          plaintiff-patient does not, by the simple act of filing suit,

          consent to ex parte discussions between his treating doctor and

          defense counsel, nor does he consent to disclosure of

          confidential information unrelated to the subject matter of the

          lawsuit. The Petrillo court concluded, consistent with the courts

          of other jurisdictions, that patients have the right to rely on their

          physicians' compliance with the ethical obligations of

          confidentiality, and barring ex parte conferences is a necessary

          adjunct to preserve that right.

            The Petrillo court also discussed what it considered to be

          the second "indicia" of the public policy against ex parte

          conferences between defense counsel and plaintiff's treating

          physicians. Similar to the confidentiality/privacy discussion

          addressed above, this portion of the appellate court's opinion

          found that society has an established interest in the fiduciary

          quality of the physician-patient relationship. Citing cases from

          Illinois and other jurisdictions, the Petrillo court stated that the

          fiduciary relationship between doctor and patient is founded

          upon trust and confidence. Implied in this fiduciary relationship

          is a "good faith" requirement that the physician will not engage

          in conduct adverse to his or her patient, including ex parte

          conferences with the patient's opposing counsel. Emphasizing

          that at the heart of a fiduciary relationship is trust, loyalty, and

          faith in the discretion of the fiduciary, the court in Petrillo

          concluded that ex parte conferences with defense counsel

          constituted a serious breach of trust. Petrillo, 148 Ill. App. 3d

          at 596.

            We believe that the rationale of the Petrillo court is sound

          and that there is a strong public policy against ex parte

          conferences between the plaintiffs' health care practitioners and

          defendants or their representatives. We further believe that the

          privacy interest referred to in the "certain remedy" clause of

          section 12 provides a constitutional source for the protection of

          the patient's privacy interest in medical information and records

          that are not related to the subject matter of the plaintiff's

          lawsuit. We acknowledge that the certain remedy provision has

          been referred to in general as a statement of philosophy rather

          than a guarantee of a specific remedy. See Sullivan v.

          Midlothian Park District, 51 Ill. 2d 274, 277 (1972).

          Nonetheless, we believe that a statement of "constitutional

          philosophy" is reflective of the strong public policy that was

          recognized in Petrillo. Therefore, we conclude that patients in

          Illinois have a privacy interest in confidential medical

          information, and that the Petrillo court properly recognized a

          strong public policy in preserving patients' fiduciary and

          confidential relationship with his or her physicians. [fn13]

                 VI. Severability

            We have declared that certain provisions of Public Act 89--

          7 violate the Illinois Constitution. Specifically, we have

          invalidated the cap on noneconomic damages, the provision

          which gives a credit to third-party tortfeasors in the amount of

          the employer's proportionate share of liability, the abolition of

          joint and several liability, and the provision of the Code of Civil

          Procedure which requires the wholesale disclosure of

          confidential medical information upon the filing of a personal

          injury lawsuit. Our next determination is whether the legislature

          would have passed the Act in the truncated form that remains

          after these invalid provisions are eliminated. Under principles of

          severability, we consider whether the provisions that we have

          not declared invalid may be given effect independently, without

          doing violence to the legislative intent in passing the

          comprehensive tort reform legislation. See, e.g., Murneigh, 177

          Ill. 2d at 313-14. If, however, the invalid portions may not be

          severed from the remainder of the Act, the legislation is

          rendered void in its entirety. See, e.g., City of Chicago Heights

          v. Public Service Co., 408 Ill. 604, 610-11 (1951); Dornfeld v.

          Julian, 104 Ill. 2d 261 (1984).

            Whether or not an act is severable is a question of

          legislative intent. E.g., Russell Stewart Oil Co. v. State, 124 Ill.

          2d 116, 128 (1988); Dornfeld, 104 Ill. 2d at 265-66. It has been

          noted that this inquiry is twofold, because the legislature must

          have intended that the act be severable, and the act must be

          capable of severability in fact. See 2 N. Singer, Sutherland on

          Statutory Construction sec. 44.03, at 495 (5th ed. 1993); see also

          City of Chicago Heights, 408 Ill. at 610-11. To determine

          whether an act is severable this court has often repeated, as the

          "settled and governing test of severability," whether the valid

          and invalid provisions of the Act are "so mutually `connected

          with and dependent on each other, as conditions, considerations

          or compensations for each other, as to warrant the belief that the

          legislature intended them as a whole, and if all could not be

          carried into effect the legislature would not pass the residue

          independently ***.' " [Citation.] The provisions are not

          severable if `they are essentially and inseparably connected in

          substance.' " Fiorito v. Jones, 39 Ill. 2d 531, 540-41 (1968);

          accord People ex rel. Rudman v. Rini, 64 Ill. 2d 321, 329

          (1976); Northern Illinois Home Builders Ass'n v. County of

          Du Page, 165 Ill. 2d 25, 48-49 (1995); see also Commercial

          National Bank v. City of Chicago, 89 Ill. 2d 45, 73-74 (1982)

          (and cases cited therein).

            Determining whether portions of an act are severable is a

          matter of statutory construction, and the existence of a

          severability clause within the statute is not conclusive of the

          issue. Instead, an express severability clause may be viewed as

          a rebuttable presumption of legislative intent. See, e.g.,

          Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 329

          (1996); Commercial National Bank, 89 Ill. 2d at 75; Grennan v.

          Sheldon, 401 Ill. 351, 360-61 (1948). In the case at bar, Public

          Act 89--7 includes a general severability provision, which states:

          "The provisions of this Act, including both the new and the

          amendatory provisions, are severable under section 1.31 of the

          Statute [on] Statutes." Pub. Act 89--7 sec. 990, citing 5 ILCS

          70/1.31 (West 1996). Although the enactment of a severability

          provision reflects a legislative effort to preserve an act

          notwithstanding a declaration of partial invalidity, it has been

          noted that "[b]ecause of the very frequency with which it is

          used, the severability clause is regarded as little more than a

          mere formality." 2 N. Singer, Sutherland on Statutory

          Construction sec. 44.08, at 521 (5th ed. 1993). This court has

          noted that a severability clause "may be useful as an aid in

          determining legislative intent, [but] it is not an `inexorable

          command' [citation] *** `*** and [it] must be applied in

          conformity with the rules of constitutional law.' [Citation.]"

          Commercial National Bank, 89 Ill. 2d at 74. See also People ex

          rel. Chicago Bar Ass'n v. State Board of Elections, 136 Ill. 2d

          513, 532 (1990) (noting that this court "has frequently held that

          unconstitutional provisions of a statute were not severable from

          the remainder of the statute even though the statute itself

          contained a severability clause").

            In Jacobson, 171 Ill. 2d at 329, we held that the

          presumption of severability reflected by an express severability

          clause will be overcome and the entire statute held

          unconstitutional if the legislature would not have passed the

          statute without the provision deemed invalid. Jacobson, 171 Ill.

          2d at 329, citing Northern Illinois Home Builders Ass'n, 165 Ill.

          2d at 48. To determine whether the legislature would have

          passed the statute without the provision declared invalid, the

          courts consider whether the legislative purpose or object in

          passing the act is significantly undercut or altered by the

          elimination of the invalid provisions. For example, in Grennan,

          this court invalidated the entire Hospital Authorities Act of 1947

          after finding that the invalid provisions, which contained an

          arbitrary classification of voters, could not be severed from the

          remaining provisions without defeating the object of the act.

          Grennan, 401 Ill. at 360-61.

            Similarly, in City of Chicago Heights, this court held invalid

          in its entirety a public utility regulatory scheme after finding

          that the license and permit fees imposed by the ordinance were

          excessive and unreasonable as a matter of law. City of Chicago

          Heights, 408 Ill. at 609-10. This court next addressed whether

          the invalid license and permit fee provisions were severable

          from the remainder of the ordinance, which regulated other

          supervisory duties imposed upon the department of streets.

          Holding that the stricken provisions were "manifestly the most

          important part of the regulatory system," this court concluded

          that it could not determine that the council would have adopted

          the ordinance without the provisions that had been declared

          invalid; consequently, the entire ordinance was held null and

          void. City of Chicago Heights, 408 Ill. at 611. See also People

          ex rel. Barrett v. Union Bank & Trust Co., 362 Ill. 164, 170

          (1935) (invalid provision of banking statute held not severable

          from remainder of statute).

            Even in cases where the valid sections of an act are

          complete and capable of being executed, the entire act will be

          declared void if, after striking the invalid provisions, the act that

          remains does not reflect the legislative purpose in enacting the

          legislation. For example in Village of Schaumburg v. Jeep Eagle

          Sales Corp., 285 Ill. App. 3d 481, 489 (1996), the court held

          that certain provisions of a sign ordinance which imposed

          restrictions as to the type, number, and height of flags

          impermissibly distinguished corporate and official flags from all

          other flags. In holding invalid the content-based restrictions, the

          court held that the other restrictions, although complete and

          capable of being executed, could not be severed from the invalid

          portions because the effect of enforcing the remaining provisions

          would be contrary to the original intent of the ordinance. Village

          of Schaumburg, 285 Ill. App. 3d at 489. Similarly, in Lee v.

          Retirement Board of the Policeman's Annuity & Benefit Fund,

          31 Ill. 2d 252 (1964), the invalidation of a portion of an

          amendment rendered the entire amendment void because it no

          longer reflected the legislature's intention, which was to grant

          special pension credits to policemen on a particular eligibility

          roster. Removing the language that limited the preference to the

          one group of officers would have had the unintended effect of

          expanding the application of the preference to a much larger

          group of policemen, thereby increasing the taxpayers' burden.

          Such a result would not be consistent with the legislature's goals

          in enacting the amendment. Lee, 31 Ill. 2d at 255-56. See also

          Union Bank & Trust Co., 362 Ill. at 170; People ex rel. Chicago

          Bar Ass'n, 136 Ill. 2d at 534-36.

            In contrast to the above cases, statutes have been upheld

          notwithstanding the invalidation of a provision where such

          provision was not considered to be so inextricably connected to

          the rest of the act that the legislature would not have passed the

          one portion without the other. For example, in Dornfeld, this

          court held that a two-year limitation period for bringing a

          paternity action violated the equal protection rights of the

          children of unwed parents. Dornfeld, 104 Ill. 2d at 265. On the

          question of severability, this court held that the limitations

          provision could be removed from the Paternity Act without

          violating the purpose of the legislation and thus did not render

          the entire act invalid. Dornfeld, 104 Ill. 2d at 266-67. Similarly,

          in Northern Illinois Home Builders Ass'n, this court reviewed

          and rejected several constitutional challenges to a scheme under

          which Du Page County was authorized to impose transportation

          impact fees on new land developments. One provision under

          review was held invalid under equal protection and uniformity

          principles, as unduly burdening the appeal rights of certain fee

          payers. Northern Illinois Home Builders Ass'n, 165 Ill. 2d at 48.

          In holding that this provision was severable from the remainder

          of the ordinance, we held that the ordinance still served the

          legislature's intent of ensuring that new developments pay their

          fair share of road improvements. Northern Illinois Home

          Builders Ass'n, 165 Ill. 2d at 49. See also Murneigh, 177 Ill. 2d

          at 313-14; Tully v. Edgar, 171 Ill. 2d 297 (1996).

            After reviewing the general principles of severability

          reflected in the foregoing authorities, we consider the General

          Assembly's intent in passing the legislation introduced as House

          Bill 20 and enacted, without compromise or revisions, as Public

          Act 89--7. As this court has previously noted, legislative history

          is relevant to our analysis of severability. See, e.g., People ex

          rel. Chicago Bar Ass'n, 136 Ill. 2d at 536-37; People v. Porter,

          122 Ill. 2d 64, 81 (1988). It is not disputed that the sponsors

          and supporters of the bill intended to effectuate comprehensive

          reform of the current tort system in Illinois. As such, House Bill

          20 represented a major piece of tort legislation, of unparalleled

          scope and potential impact on the citizens of this state. The

          transcripts of the legislative debate reflect that House Bill 20

          was presented to the full house for vote as a whole, integrated

          piece, and that the presentation of any modifications or

          amendments was discouraged. See 89th Ill. Gen. Assem., House

          Proceedings, February 16, 1995, at 136. It is undisputed that the

          bill was distributed to the full membership of the house minutes

          before midnight on the evening before the floor debates were to

          be held. It is also undisputed that opponents of the bill objected

          to the speed with which the bill, and its restructuring of Illinois

          tort law, was pushed through the legislative process. This

          lengthy piece of legislation with its numerous provisions

          affecting the landscape of tort liability was presented to the full

          house for discussion just hours after its distribution, and was put

          to a vote the next day. No amendments were considered or

          accepted. On the contrary, House Bill 20 was adopted

          unchanged, as an integrated "reform package." One inference to

          be drawn from the manner in which the legislation was adopted

          is that the individual pieces of the package are inseparable from

          the whole.

            Strong support for this inference is defendants' concession

          that the cap on noneconomic damages was considered essential

          to the legislation enacted. According to Representative Cross,

          the sponsor of the bill in the House, "this cap is the centerpiece

          of all these reforms." 89th Ill. Gen. Assem., House Proceedings,

          February 16, 1995, at 19 (statements of Representative Cross).

          The language of the preamble to the Act reinforces that key role

          of the damages cap; out of 17 clauses in the preamble

          characterized as "legislative findings," no less than eight cite

          noneconomic damages as a major concern of the legislature.

          During oral argument of this case, counsel for defendants

          confirmed that the noneconomic cap on damages is central to

          the legislative scheme of tort reform. In fact, so vital to the

          Act's purpose is the cap on noneconomic damages that the

          legislature included, in section 2--1117, an express exception to

          several liability that would operate only in the event that the cap

          was declared invalid. In such a case, the imposition of several

          liability as applied to health care providers is to be replaced

          with joint and several liability, which Public Act 89--7 abolished

          in all types of personal injury cases. As we held elsewhere in

          this opinion, such an attempt to create a limited exception to the

          abolition of joint liability constitutes invalid special legislation.

          For purposes of severability analysis, this legislative attempt to

          single out one class of plaintiffs or tortfeasors for separate

          treatment, based on the eventuality that the cap was invalidated,

          demonstrates that key provisions of the Act are interconnected

          and mutually dependent upon each other.

            In addition to the emphasis that the preamble places on the

          noneconomic damages cap, another important goal expressed in

          the preamble is to reinforce fault-based liability and to insure

          that tortfeasors bear only their proportionate share of liability to

          injured plaintiffs. As a means to accomplish this express goal,

          Public Act 89--7 abolishes joint liability in favor of several

          liability. Ergo, the abolition of joint liability is, like the cap,

          central to the purposes of the Act. The removal of these two

          central goals of Public Act 89--7 (the imposition of the cap and

          the abolition of joint liability) defeats, in large part, its raison

          d'etre.

            The legislation under review is a collection of

          interconnected provisions which address different aspects of tort

          liability, but nonetheless share the overriding determination to

          fulfill the goals set forth in the preamble. The summary of

          legislative purpose in the preamble enumerates these goals,

          which reflect the legislative intent to replace tort liability in its

          current form with a system featuring a damages cap, several

          liability instead of joint and several liability, and a reduction in

          the number of medical malpractice and product liability lawsuits

          filed. Other stated goals include protecting the economic health

          of business and units of local government, protecting the

          availability of affordable liability insurance, and decreasing the

          systemic costs of tort recovery. It is evident from the language

          of the preamble, the provisions of the Act itself, the legislative

          history, and defendants' arguments in the case at bar that Public

          Act 89--7 was intended to have a broad, systemwide impact on

          the litigation of personal injury lawsuits. As such,

          implementation of the Act's provisions would modify or

          supplant a vast body of tort principles developed in many

          decisions of Illinois courts. For purposes of severability analysis,

          we cannot conclude that the legislature would have intended to

          pass a version of tort reform that did not include the measures

          by which to accomplish its goals.

            In summary, core provisions of Public Act 89--7 have been

          declared unconstitutional by this court. Without these core

          provisions, which were essential to the passage of the Act and

          which are inseparable from the remainder of Public Act 89--7,

          the legislation must fail in toto. We conclude that we cannot

          hold independently enforceable that residue which remains of

          Public Act 89--7 after eliminating the core provisions through

          which the Act intended to accomplish its goals. To do so we

          would be, in effect, rewriting Public Act 89--7 and refashioning

          it into another piece of legislation that the legislature cannot be

          presumed to have intended to enact. As this court observed in

          Commercial National Bank, 89 Ill. 2d at 75, " `[t]he new law

          would be created by this court and not by the General

          Assembly, because it enacted a different one. This would

          amount to a delegation of legislative powers to the courts, which

          is contrary to article III of the constitution, as well as numerous

          decisions of this court.' [Citation]." Accordingly, we hold that

          Public Act 89--7 is void in its entirety.

          VII. Other Provisions of Public Act 89--7

            Because of our severability holding, we address only briefly

          the other specific provisions of the Act that were challenged in

          the instant appeal. The circuit court ruled that section 2--1107.1,

          which describes three jury instructions to be given in tort

          actions, is unconstitutional. One jury instruction would prevent

          the jury from being informed about the cap on noneconomic or

          punitive damages. Clearly, this instruction is nullified by our

          declaration that the cap itself is unconstitutional. See 2 N.

          Singer, Sutherland on Statutory Construction sec. 44.04, at 502

          (5th ed. 1993) ("Even where part of an act is independent and

          valid, other parts which are not themselves substantively invalid

          but have no separate function to perform independent of the

          invalid portions of the act are also held invalid"). The other two

          jury instructions are not clearly invalid, however. One of these

          jury instructions would require the court to inform the jury that

          compensatory and punitive damage awards are not taxable. The

          other instruction would prevent the jury from being informed

          that the plaintiff would not recover any damages if his or her

          contributory negligence exceeded 50% percent. Because of our

          determination that the valid provisions of the Act are not

          severable from the invalid provisions, we strike these two

          instructions without expressing any opinion regarding their

          constitutionality independent of the Act.

            The circuit court also invalidated five specific provisions

          that relate to product liability actions. One provision, section 2--

          623, requires product liability plaintiffs to attach a certificate of

          merit to their complaint as a prerequisite for initiating an action

          to recover damages. 735 ILCS 5/2--623 (West 1996). Although

          a certificate of merit requirement in medical malpractice actions

          was upheld by this court in DeLuna v. St. Elizabeth's Hospital,

          147 Ill. 2d 57, 75 (1992), plaintiffs attempt to distinguish

          DeLuna and also, in the alternative, request us to reconsider the

          DeLuna holding. Another section, which amends the existing

          product liability statute of repose, extends the limitation periods

          and outside period of repose to include all theories of product

          liability. 735 ILCS 5/13--213(b) (West 1996). In contrast, the

          prior version of the repose statute excluded negligence from its

          scope. See 735 ILCS 5/13--213(b) (West 1994). Defendants

          contend that this court's decision in Mega v. Holy Cross

          Hospital, 111 Ill. 2d 416, 422 (1986), which upheld a four-year

          statute of repose in medical malpractice actions, is persuasive

          authority for upholding the constitutional validity of section 13--

          213(b). Two other provisions that were declared invalid by the

          circuit court, sections 2--2103 and 2--204, create statutory

          presumptions as to when a product is considered reasonably

          safe. Section 2--2103 attaches a presumption of safety to any

          product that meets state or federal safety standards. 735 ILCS

          5/2--2103 (West 1996). Section 2--2104 provides that the design

          of a product or component shall be presumed to be reasonably

          safe unless the plaintiff can establish that, at the time the

          product left the manufacturer's control, "a practical and

          technically feasible alternative design was available that would

          have prevented the harm without significantly impairing the

          usefulness, desirability, or marketability of the product." 735

          ILCS 5/2--2104 (West 1996). The fifth provision, section 2--

          2106, imposes a presumption that if written warnings are given

          to users of products, such warnings shall be deemed adequate if

          they conform to generally recognized standards in the industry

          at the time the product was introduced into the stream of

          commerce. 735 ILCS 5/2--2106 (West 1996).

            We do not determine, in this case, whether or not the above

          product liability provisions are infirm as a matter of substantive

          constitutional law. We note that defendants, in addition to

          arguing in favor of the constitutionality of the provisions, have

          raised waiver and ripeness as reasons for this court to reject the

          circuit court's holding that the product liability provisions in

          issue are unconstitutional. For example, defendants contend that

          plaintiff Best waived his challenge to the filing of a certificate

          of merit because he did, in fact, obtain and file an expert's

          affidavit in support of his cause of action. Plaintiff Best

          responds that his filing of the product liability certificate of

          merit was done under protest, without waiving his challenge.

          Defendants also challenge, at this early stage in the litigation,

          the ripeness of a constitutional challenge to the provisions which

          allow product liability defendants to benefit from evidentiary

          presumptions. Plaintiffs dispute defendants' ripeness argument

          and urge this court to resolve the constitutionality of the

          provisions under review.

            We believe that we should exercise caution and restraint in

          making any ruling, apart from our severability holding, on the

          constitutionality of these product liability provisions. Without

          indicating how this court might rule in a future case involving

          a possibly reenacted version of the challenged provisions, we

          simply note that if we were to hold that the provisions in issue

          were not facially invalid, we would be rendering an advisory

          opinion on a portion of Public Act 89--7 that has been held

          inseverable from the unconstitutional provisions. If we were to

          hold that some but not all five of the provisions were

          unconstitutional, we would be making a selective determination

          of individual provisions within the larger product liability

          scheme that is contemplated by the instant Act. We decline to

          engage in speculative analysis or to render an advisory opinion

          on the efficacy of the product liability provisions where, as in

          the instant case, such analysis or opinion is not necessary for the

          disposition of the cause.

            In conclusion, although the circuit court declared the

          product liability provisions of the Act invalid, as well as the

          provisions setting forth three jury instructions to be given in tort

          actions, we decline to reach the substantive merits of the

          constitutional challenges made to those provisions for the

          reasons stated. Accordingly, we vacate that portion of the circuit

          court's holding that reached the substantive merits of the

          products liability issues and the jury instructions, but otherwise

          affirm the judgment of the circuit court in its entirety. We

          emphasize that all of the remaining provisions of Public Act 89-

          -7, which were not challenged in the instant cases, are deemed

          invalid in this case solely on grounds of severability. As such,

          the General Assembly is free to reenact whatever provisions it

          deems desirable or appropriate.

            The problems addressed in the briefs and in oral arguments

          in the case at bar represent some of the most critical concerns

          which confront our society today. We acknowledge and wish to

          commend the attorneys for the plaintiffs, the defendants, amici,

          and Attorney General on the scholarly and impressive briefs and

          oral arguments submitted by each.

          Circuit court judgment affirmed.

                                                      JUSTICE HEIPLE took no part in the consideration or

          decision of this case.

            JUSTICE BILANDIC, specially concurring:

            I concur in the majority's judgment invalidating Public Act

          89--7 in its entirety. I write separately to state that I do not join

          in the majority's discussion of the constitutionality of the

          damages cap under the separation of powers doctrine as that

          discussion is wholly unnecessary and constitutes dicta.

            JUSTICE MILLER, concurring in part and dissenting in

          part:

            I joined the court's opinion in Kunkel v. Walton, No. 81176

          (November 20, 1997), and therefore I concur in the portion of

          the present judgment that reaffirms our holding in that case. I do

          not agree with the majority's disposition of the remaining issues

          addressed in the present opinion, however, and accordingly I

          dissent from those portions of the majority opinion.

                         I

            Legislation is presumed to be valid, and a party challenging

          the constitutionality of a statute has the burden of establishing

          its invalidity. DeLuna v. St. Elizabeth's Hospital, 147 Ill. 2d 57,

          67 (1992); Pre-School Owners Ass'n of Illinois, Inc. v.

          Department of Children & Family Services, 119 Ill. 2d 268, 275

          (1988); Sayles v. Thompson, 99 Ill. 2d 122, 124-25 (1983). This

          court's role in evaluating these provisions is necessarily limited.

          Our function here is not to determine whether the legislature has

          chosen the best or most effective means of resolving the

          problems addressed in the legislation. "Our nation was founded

          in large part on the democratic principle that the powers of

          government are to be exercised by the people through their

          elected representatives in the legislature, subject only to certain

          constitutional limitations. Although this court has never hesitated

          to invalidate laws that it believes to be unconstitutional, we

          emphasize that our role is a limited one. The issue here is `not

          what the legislature should do but what the legislature can do.'

          [Citation.]" People v. Kohrig, 113 Ill. 2d 384, 392-93 (1986).

          Accordingly, the question before this court is not whether the

          measures contained in the Civil Justice Reform Amendments of

          1995 (the Act) are wise, but simply whether they are

          constitutional. Bernier v. Burris, 113 Ill. 2d 219, 229-30 (1986).

            Our cases have repeatedly recognized that no one possesses

          a vested right in the continuation of any particular remedy or

          mode of recovery. First of America Trust Co. v. Armstead, 171

          Ill. 2d 282, 291 (1996); Bernier v. Burris, 113 Ill. 2d 219, 236

          (1986); Trexler v. Chrysler Corp., 104 Ill. 2d 26, 30 (1984).

          Subject only to the collective will of the voters and to the

          constraints of the federal and state constitutions, the legislature

          enjoys broad power to change the common law, and to modify

          and even eliminate statutory and common law rights and

          remedies. In People v. Gersch, 135 Ill. 2d 384, 395 (1990), this

          court explained, "The legislature is formally recognized as

          having a superior position to that of the courts in establishing

          common law rules of decision. The Illinois General Assembly

          has the inherent power to repeal or change the common law, or

          do away with all or part of it. [Citations.]" "[T]his pervasive

          power of the legislature to alter the common law" (Gersch, 135

          Ill. 2d at 395) reflects the legislature's superior role in

          articulating public policy. In Collins v. Metropolitan Life

          Insurance Co., 232 Ill. 37, 44 (1907), this court explained the

          proper hierarchy between the legislative and judicial branches in

          matters of public policy:

              "When the sovereign power of the State has by written

                         constitution declared the public policy of the State on a

                         particular subject, the legislative and judicial

                         departments of the government must accept such

                         declaration as final. When the legislature has declared,

                         by law, the public policy of the State, the judicial

                         department must remain silent, and if a modification or

                         change in such policy is desired the law-making

                         department must be applied to, and not the judiciary,

                         whose function is to declare the law but not to make it."

          See also Roanoke Agency, Inc. v. Edgar, 101 Ill. 2d 315, 327

          (1984) (quoting Collins); Stroh v. Blackhawk Holding Corp., 48

          Ill. 2d 471, 483 (1971) (same).

            Our cases are replete with references to the legislature's

          authority to determine public policy, to prescribe solutions to

          problems, and to alter the common law. For example, in Maki

          v. Frelk, 40 Ill. 2d 193, 196 (1968), this court declined to adopt

          a system of comparative negligence, concluding instead that

          "such a far-reaching change, if desirable, should be made by the

          legislature rather than by the court. The General Assembly is the

          department of government to which the constitution has

          entrusted the power of changing the laws." Although this court

          later decided to adopt comparative negligence on its own,

          without waiting for legislative action (see Alvis v. Ribar, 85 Ill.

          2d 1 (1981)), the court did so not because it believed that the

          legislature lacked the authority to make that change, but for

          other reasons. Later, the legislature rejected the pure form of

          comparative fault adopted by this court in Alvis, replacing it

          with a modified version (735 ILCS 5/2--1116 through 2--1118

          (West 1996)), which has withstood constitutional challenge (see

          Reuter v. Korb, 248 Ill. App. 3d 142 (1993)).

            More recently, in Committee for Educational Rights v.

          Edgar, 174 Ill. 2d 1, 29-32 (1996), this court declined to rule

          that the current method of funding public schools is

          unconstitutional, deciding instead to defer to the legislature's

          superior ability to establish public policy and to devise

          appropriate answers to questions facing our society. Although it

          is certainly true that the power of the legislature to act in a

          particular field is not a license to act unconstitutionally, the

          legislature generally enjoys broad discretion in its determinations

          of public policy.

            The majority does not disagree with these basic principles

          of review, yet the court reaches conclusions that are far different

          from what our precedents require, and that strike at the heart of

          the venerable and fundamental relationship between the

          legislative and judicial branches. The majority undermines these

          principles when it effectively substitutes its own view of public

          policy for the legislature's considered judgment.

                        II

            The majority devotes a substantial part of its opinion to a

          discussion of the $500,000 limit imposed by the Act on the

          recovery of noneconomic losses in personal injury actions. The

          majority's principal conclusion is that the statute violates the

          Illinois Constitution's prohibition on special legislation. Ill.

          Const. 1970, art. IV, sec. 13. Applying the rational basis test,

          the majority assiduously attempts to locate its special legislation

          analysis within the framework of our case law, but the

          majority's analysis actually marks a significant departure from

          precedent.

            The Act's limitation on the recovery of noneconomic

          damages is found in section 2--1115.1 of the Code of Civil

          Procedure (735 ILCS 5/2--1115.1 (West 1996)). Section 2--

          1115.1(a) provides:

                         hedonic damages."

          Noneconomic damages are defined as "damages which are

          intangible, including but not limited to damages for pain and

          suffering, disability, disfigurement, loss of consortium, and loss

          of society." 735 ILCS 5/2--1115.2(b) (West 1996). In contrast,

          economic damages, upon which no limit is imposed, are "all

          damages which are tangible, such as damages for past and future

          medical expenses, loss of income or earnings and other property

          loss." 735 ILCS 5/2--1115.2(a) (West 1996). The amount of the

          limitation on noneconomic damages is to be adjusted annually

          to reflect changes in the consumer price index. 735 ILCS 5/2--

          1115.1(b) (West 1996).

            "It is well settled that review of a special legislation

          challenge is governed by the same standard that applies to

          review of equal protection challenges. [Citations.]" Cutinello v.

          Whitley, 161 Ill. 2d 409, 417 (1994). The statute at issue does

          not impinge on a fundamental right or delimit a suspect or

          quasi-suspect classification, so the appropriate standard of

          review that governs the plaintiffs' special-legislation challenge

          is the rational basis test, as the majority correctly determines. A

          court applying this standard must decide whether the challenged

          classification is rationally related to a legitimate governmental

          interest. Nevitt v. Langfelder, 157 Ill. 2d 116, 125 (1993);

          Chicago National League Ball Club, Inc. v. Thompson, 108 Ill.

          2d 357, 368 (1985). The considerations that govern a court's

          review of a statute under the rational basis test are familiar and

          have been stated as follows:

              "A statute will be held unconstitutional as special

                         legislation and as violative of the equal protection

                         guarantee only if it was enacted for reasons totally

                         unrelated to the pursuit of a legitimate State goal.

                         [Citation.] The legislature has broad latitude and

                         discretion in drawing statutory classifications to benefit

                         the general welfare, and the classifications it makes are

                         presumed to be valid. A legislative classification will be

                         upheld if any set of facts can be reasonably conceived

                         which justify distinguishing the class to which the law

                         applies from the class to which the statute is

                         inapplicable. [Citations.]" Bilyk v. Chicago Transit

                         Authority, 125 Ill. 2d 230, 236 (1988).

            Contrary to the majority's holding, I would conclude that

          the limit on noneconomic losses contained in the Act does not

          violate the special legislation prohibition of the Illinois

          Constitution, for the provision at issue readily satisfies the

          requirements of the rational basis test. Reform of the civil

          justice system is surely a legitimate governmental goal, and

          imposing a $500,000 limit on the recovery of noneconomic

          damages is rationally related to those ends. Noneconomic losses

          by their nature resist precise measurement. Economic losses,

          which include items such as medical expenses, lost income, and

          lost support, are objective and are readily quantifiable. In

          contrast, noneconomic losses, which includes pain and suffering,

          among other things, are subjective and therefore more difficult

          to quantify. There is great difficulty in determining proper

          compensation for noneconomic losses, and awards for such

          damages will vary greatly from case to case. Thus, there is a

          rational basis for the legislature's decision to distinguish

          between economic and noneconomic damages.

            Limiting compensation for noneconomic losses is rationally

          related to the objectives of the legislation. As the preamble to

          the Act evidences, the legislature was concerned about

          disparities, inconsistencies, and the lack of predictability in the

          awarding of noneconomic damages, and about the costs to

          society of unrestricted compensation for those damages. The

          legislature believed that imposing a limit on the recovery of

          noneconomic losses would promote fairness and would help

          reduce the costs of the tort system. Some will argue that the

          amount selected by the legislature in the provision at issue here

          is too low. Although that might be a valid objection to the Act

          as an expression of public policy, for each of us would probably

          set the limit at a greater or lesser level, it is not a constitutional

          defect in the legislation. Like a repose statute, the limit on the

          recovery of noneconomic losses reflects the balance struck by

          the legislature between an individual's interest in compensation

          for his or her own injuries, and the public's interest in an

          affordable system of tort law. See Mega v. Holy Cross Hospital,

          111 Ill. 2d 416, 428 (1986).

            Again, to uphold the statute we need not be convinced of

          the correctness of the legislature's judgment--we need only find

          that the question is debatable and that the legislature has

          adopted a rational means of achieving the desired ends. Bernier

          v. Burris, 113 Ill. 2d 219, 229-30 (1986). In Minnesota v.

          Clover Leaf Creamery Co., 449 U.S. 456, 464, 66 L. Ed. 2d

          659, 668-69, 101 S. Ct. 715, 724 (1981), the Supreme Court

          articulated the appropriate degree of deference:

                     "But States are not required to convince the courts of

                         the correctness of their legislative judgments. Rather,

                         `those challenging the legislative judgment must

                         convince the court that the legislative facts on which the

                         classification is apparently based could not reasonably

                         be conceived to be true by the governmental

                         decisionmaker.' Vance v. Bradley [440 U.S. 93, 111, 59

                         L. Ed. 2d 171, 184-85, 99 S. Ct. 939, 949-50 (1979)].

                         [Citations.]

                     Although parties challenging legislation under the

                         Equal Protection Clause may introduce evidence

                         supporting their claim that it is irrational, United States

                         v. Carolene Products Co. [304 U.S. 144, 153-54, 82 L.

                         Ed. 1234, 1242, 58 S. Ct. 778, 784 (1938)], they cannot

                         prevail so long as `it is evident from all the

                         considerations presented to [the legislature], and those

                         of which we may take judicial notice, that the question

                         is at least debatable.' [304 U.S. at 154, 82 L. Ed. at

                         1243, 58 S. Ct. at 784.] Where there was evidence

                         before the legislature reasonably supporting the

                         classification, litigants may not procure invalidation of

                         the legislation merely by tendering evidence in court

                         that the legislature was mistaken."

          Thus, under rational basis review, "a legislative choice is not

          subject to courtroom factfinding and may be based on rational

          speculation unsupported by evidence or empirical data.

          [Citations.]" Federal Communications Comm'n v. Beach

          Communications, Inc., 508 U.S. 307, 315, 124 L. Ed. 2d 211,

          222, 113 S. Ct. 2096, 2102 (1993).

            In deciding that the cap on noneconomic losses is invalid

          special legislation, the majority tests the provision against

          specially selected hypothetical cases that are obviously designed

          to illustrate defects in the statute. Slip op. at 24-26. The

          legislature, however, makes no pretense that the reform

          measures at issue here are a panacea for all the ills, perceived

          or otherwise, in our system of tort law. Nor is it necessary that

          legislation like this have such miraculous effect. Under rational

          basis review, we ask only whether the means chosen by the

          legislature are rationally related to the purposes of the law. In

          contrast to the examples posited by the majority, one could as

          easily select hypothetical cases that support and sustain the

          remedy devised by the legislature. We have never before

          required legislation under rational basis scrutiny to qualify under

          a standard as rigorous as that applied by the majority. In People

          v. Kohrig, 113 Ill. 2d 384, 402-03 (1986), in the course of

          sustaining the validity of the mandatory seat belt law, we

          observed, " `[T]he law need not be in every respect logically

          consistent with its aims to be constitutional. It is enough that

          there is an evil at hand for correction, and that it might be

          thought that the particular legislative measure was a rational

          way to correct it.' (Williamson v. Lee Optical of Oklahoma, Inc.,

          (1955), 348 U.S. 483, 487-88, 99 L. Ed. 2d 563, 572, 75 S. Ct.

          461, 464.)"

            Nor is today's decision compelled by Wright v. Central Du

          Page Hospital Ass'n, 63 Ill. 2d 313 (1976), Grace v. Howlett,

          51 Ill. 2d 478 (1972), or Grasse v. Dealer's Transport Co., 412

          Ill. 179 (1952), as the majority believes. In all three cases the

          court found special legislation violations. The statutes at issue

          in those cases, however, were much different from the measure

          involved here. The statute challenged in Wright imposed a limit

          of $500,000 on the total amount of damages, both economic and

          noneconomic, that could be recovered by a plaintiff in a medical

          malpractice action. The court found the statute to be a violation

          of the special legislation prohibition, concluding that medical

          malpractice plaintiffs had been arbitrarily selected to bear the

          burden of being limited in the total amount of compensation

          they were allowed to receive for their injuries. Both these

          concerns are alleviated in the provision at issue here, which is

          broader in scope but narrower in effect: the statute applies to all

          actions for personal injury, but it limits only a plaintiff's

          recovery of noneconomic losses and does not impose any cap on

          the recovery of economic losses. Moreover, in Anderson v.

          Wagner, 79 Ill. 2d 295, 304-05 (1979), this court counseled that

          Wright should not be read "too broadly," noting that the statute

          in Wright could have prevented the full recovery of medical

          expenses. Anderson rejected constitutional challenges, including

          one of special legislation, to a statute of limitations for medical

          malpractice actions.

            Grace and Grasse are also distinguishable. The legislation

          challenged in Grace limited an injured plaintiff's ability to

          recover compensation for injuries incurred in traffic accidents,

          depending on whether the other party was using the vehicle for

          personal or commercial purposes. In Grasse a provision of the

          Worker's Compensation Act would have transferred an injured

          employee's action against a third-party tortfeasor to the

          plaintiff's employer if the third party's employee was also

          covered by the Act. In neither case was the court able to discern

          a rational basis for the classifications drawn by the legislature.

            I believe that the opposite conclusion is required here. In

          contrast to the measures at issue in Wright, Grace, and Grasse,

          the limit on the recovery of noneconomic losses bears a rational

          relationship to a legitimate governmental purpose. Here, the

          legislature could find that a $500,000 limitation on noneconomic

          damages would reduce the costs to society of allowing

          compensation for damages that, by their nature, are subjective

          and difficult to measure. For these reasons, I would join the

          group of jurisdictions that have upheld, against corresponding

          challenges on equal protection grounds, similar limits on the

          recovery of damages in tort actions. See, e.g., Davis v.

          Omitowoju, 883 F.2d 1155 (3d Cir. 1989) (applying Virgin

          Islands law; $250,000 limit on noneconomic damages in medical

          malpractice actions); Boyd v. Bulala, 877 F.2d 1191 (4th Cir.

          1989) (applying Virginia law; $750,000 limit on damages in

          medical malpractice actions); Fein v. Permanente Medical

          Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368

          (1985); Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901

          (Colo. 1993) ($250,000 limit on noneconomic damages and

          $1,000,000 on total damages in medical malpractice actions);

          Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d

          585 (1980) ($500,000 limit on damages in medical malpractice

          actions); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102

          (1992) ($350,000 limit on noneconomic damages in personal

          injury actions); Etheridge v. Medical Center Hospitals, 237 Va.

          87, 376 S.E.2d 525 (1989) ($750,000 limit on damages in

          medical malpractice actions); Robinson v. Charleston Area

          Medical Center, 186 W. Va. 720, 414 S.E.2d 877 (1991)

          ($1,000,000 limit on noneconomic damages in medical

          malpractice actions).

            Perhaps uncertain of its own conclusion, the majority

          opinion goes on to consider an alternative argument against the

          limit on noneconomic damages, hoping to persuade the reader

          by prolixity, if not by force of reasoning. Here, the majority

          finds that the limit on the recovery of noneconomic damages

          functions as a legislatively imposed remittitur and for that

          reason violates the separation of powers doctrine. The majority's

          discussion of this additional argument is entirely unnecessary,

          given the majority's prior holding that the same measure is

          invalid special legislation. On the merits, I disagree with the

          majority's conclusion that the cap on noneconomic damages

          improperly intrudes on the judicial power of remittitur. The

          challenged provision does not represent a finding about the

          evidence of any particular case, and it does not detract from the

          power of a court to reduce an award of damages in appropriate

          circumstances. Remittitur pertains to judges and juries, not the

          legislature; by characterizing the cap on damages as a remittitur,

          the majority is simply erecting and demolishing a strawman.

          The majority's broad holding on this question means, in essence,

          that the legislature may never impose a limit on damages, at

          least in common law actions. Given the implications of this

          holding and the absence of any need to discuss the issue, I

          would not join this part of the majority opinion even if I agreed

          with the court that the caps provision was invalid special

                        III

            The majority's lengthy treatment of several other provisions

          of the Act is also superfluous, given the court's conclusion that

          the $500,000 limit on the recovery of noneconomic damages is

          invalid special legislation, and the court's subsequent holding

          that the damages cap is not severable from the remainder of the

          Act. The majority's discussion of these other issues is simply

          unnecessary to the court's resolution of the appeals and should

          be recognized as the dicta that it is.

            First, the majority considers section 3.5 of the Contribution

          Act. The majority concludes that the new provision is internally

          inconsistent and could allow an improper "double reduction" of

          damages awarded to an injured employee in an action against a

          third-party tortfeasor. I agree with the defendants that the

          legislature could not have intended to permit a double reduction

          in damages and that the measure should be interpreted

          accordingly. In that manner, the constitutionality of the

          provision can be preserved.

            The majority next considers the validity of the modification

          made to section 2--1117 of the Code of Civil Procedure (735

          ILCS 5/2--1117 (West 1996)), abolishing joint and several

          liability. In discussing this provision the majority initially

          pursues several lines of thought until it finally settles on one,

          determining that the measure violates the special legislation

          prohibition of our state constitution because it selectively

          restores joint and several liability in medical malpractice cases

          in the event that the cap on noneconomic losses is found

          invalid. Although the purpose of the provision restoring joint

          and several liability in the area of medical malpractice might be

          somewhat obscure, I do not agree that it is unconstitutional on

          that ground alone. Separately, because I believe that the cap on

          noneconomic losses is not invalid for the reasons found by the

          majority, I cannot agree with the majority's conclusion that the

          provision restoring joint and several liability in medical

          malpractice cases has even been triggered.

            The majority also considers the constitutionality of the

          physician-patient disclosure provisions. Just last month, in

          Kunkel v. Walton, No. 81176 (November 20, 1997), this court

          invalidated the same provisions. The majority in the present case

          now relies on a somewhat different rationale to reach the same

          conclusion. While I agree with the result, I do not agree with its

          alternative holding that the statutes violate a right of privacy that

          the majority locates in the "certain remedy" provision found in

          article I, section 12, of the Illinois Constitution (Ill. Const. 1970,

          art. I, sec. 12).

            Contrary to the majority's view, our prior cases construing

          the "certain remedy" provision of the constitution have

          characterized it as an expression of a philosophy rather than as

          a guarantee of the continued existence of any particular cause of

          action or form of recovery. See Mega v. Holy Cross Hospital,

          111 Ill. 2d 416, 424 (1986); Sullivan v. Midlothian Park

          District, 51 Ill. 2d 274, 277 (1972). It should be noted,

          moreover, that the majority's discussion of the certain remedy

          provision is entirely unnecessary, for the majority finds the

          discovery statutes invalid on the separate and independent

          ground that they violate the separation of powers doctrine.

                        IV

            As a final matter, I disagree with the majority's conclusion

          that the portions of the Civil Justice Reform Amendments of

          1995 found unconstitutional here and in Kunkel v. Walton, No.

          81176 (November 20, 1997), cannot be severed from the

          remainder of the Act and that the invalidity of those measures

          therefore dooms the entire body of legislation. Contrary to the

          majority's holding, there is compelling evidence that the

          legislature intended for the different provisions of the Act to be

          severable from each other.

            The question of severability is essentially one of legislative

          intent. People v. Warren, 173 Ill. 2d 348, 371 (1996); Tully v.

          Edgar, 171 Ill. 2d 297, 313 (1996); Russell Stewart Oil Co. v.

          State of Illinois, 124 Ill. 2d 116, 128 (1988); Springfield Rare

          Coin Galleries, Inc. v. Johnson, 115 Ill. 2d 221, 237 (1986). As

          expressed by this court in Fiorito v. Jones, 39 Ill. 2d 531, 541

          (1968):

              "The settled and governing test of severability is

                         whether the valid and invalid provisions of the Act are

                         `so mutually "connected with and dependent on each

                         other, as conditions, considerations or compensations for

                         each other, as to warrant the belief that the legislature

                         intended them as a whole, and if all could not be

                         carried into effect the legislature would not pass the

                         residue independently ***".' [Citation.] The provision

                         are not severable if `they are essentially and inseparably

                         connected in substance.' [Citations.]"

            Notably, the Act contains an express severability clause,

          which states, "The provisions of this Act, including both the

          new and the amendatory provisions, are severable under Section

          1.31 of the Statute o[n] Statutes." Pub. Act 89--7, sec. 990, eff.

          March 9, 1995. The general severability provision found in

          section 1.31 of the Statute on Statutes provides:

                     "If any provision of an Act *** or application thereof

                         to any person or circumstance is held invalid, such

                         invalidity does not affect other provisions or

                         applications of the Act which can be given effect

                         without the invalid application or provision, and to this

                         end the provisions of each Act *** are severable, unless

                         otherwise provided by the Act." 5 ILCS 70/1.31 (West

          Although the presence of an express severability clause is not

          dispositive of the question, it does establish a presumption that

          the various provisions of a body of legislation are severable.

          (1996); People ex rel. Chicago Bar Ass'n v. State Board of

          Elections, 136 Ill. 2d 513, 532 (1990).

            Moreover, the various provisions of the Act are not so

          interrelated that one must conclude that the elimination of the

          provisions struck down by the majority means that the

          remainder of the Act also falls. Although the majority

          characterizes the invalid portions of the Act as "core provisions"

          whose removal yields an unenforceable "residue" (slip op. at 80-

          81), the remaining provisions are actually substantial measures

          in their own right that are independent of the provisions

          invalidated here. In Grasse v. Dealer's Transport Co., 412 Ill.

          179, 202 (1952), this court stated:

              "The established rule is that only the invalid parts of a

                         statute are without legal effect, unless all the provisions

                         are so connected as to depend upon each other.

                         [Citations.] If that which remains after the

                         unconstitutional portion is stricken is complete in itself

                         and capable of being executed wholly independently of

                         that which is rejected, the invalid portion does not

                         render the entire section or act unconstitutional."

            Although all the provisions contained in the Act are related

          to tort law generally, they are not so intertwined or interrelated

          that the failure of any one measure, such as the provision

          limiting the recovery of noneconomic damages, necessitates the

          corresponding failure of any other measure, such as the

          provision requiring a certificate of merit in products liability

          actions. The limit on the recovery of noneconomic damages and

          the requirement of a certificate of merit function independently

          of each other, and there is no reason to believe that the

          legislature would not have enacted one in the absence of the

          other. Moreover, although the legislature might have viewed the

          limit on noneconomic losses as one of the most significant parts

          of the legislative package, the invalidity of that provision does

          not undermine the operation of the remaining provisions. As this

          court explained in People ex rel. Dougherty v. City of Rock

          Island, 271 Ill. 412, 422 (1915):

              " `If a statute attempts to accomplish two or more

                         objects and is void as to one, it may still be in every

                         respect complete and valid as to the other; but if its

                         purpose is to accomplish a single object, only, and some

                         of its provisions are void, the whole must fail unless

                         sufficient remains to effect the object without the aid of

                         the invalid portion.' "

          In the present case, whether the Act is viewed as having

          multiple purposes accomplished in multiple ways, or a single

          purpose accomplished in multiple ways, I believe that the

          legislature intended that the measures found invalid by the

          majority would be severed from the remaining provisions of the

          Act.

            The Act itself contains further proof that the legislature

          believed that any portion found to be invalid would be

          severable. The provision restoring joint and several liability in

          medical malpractice actions in the event that the cap on

          noneconomic damages is found unconstitutional represents

          compelling evidence that the legislature intended for the various

          provisions of the Act--or at least the cap on damages, the crux

          of the majority's antiseverability argument--to be severable from

          the other. The majority believes that the provision restoring joint

          and several liability "demonstrates that key provisions of the Act

          are interconnected and mutually dependent upon each other"

          (slip op. at 80) and thus supports a finding of nonseverability.

          In my view, however, the provision compels the opposite

          conclusion, for it establishes that the legislature was concerned

          about the possible invalidation of the cap on noneconomic

          damages and intended for the remaining portions of the Act to

          survive any adverse judicial ruling. Clearly, the legislators

          would not have crafted a response to that contingency if they

          had thought that a ruling invalidating the limit on noneconomic

          damages would drag down the remaining provisions of the Act.

          Whether or not the legislature considered the cap on

          noneconomic damages to be the most important feature of the

          Act, as the majority asserts, it is clear that the legislature did not

          believe that the failure of that measure would doom the rest of

          the Act.

            In sum, given the presence of a severability clause in the

          Act, the ability of the valid measures to stand independently of

          those found invalid, and the legislature's concern about a ruling

          striking down a portion of this body of legislation, I would

          conclude that the provisions found unconstitutional here are

          severable from the remainder of the Act.

            Although I agree with the majority that the physician-patient

          disclosure provisions are invalid, for the reasons expressed by

          the court in Kunkel v. Walton, No. 81176 (November 20, 1997),

          I do not agree that the limit on noneconomic damages is invalid

          special legislation or violates the separation of powers clause.

          Nor do I agree with the majority's further conclusion that the

          provisions found invalid here and in Kunkel are not severable

          from the remainder of the Act, and I would therefore consider

          in this appeal the plaintiffs' remaining challenges to the

          provisions of the Act. As I have noted, the judicial role in

          assessing the constitutionality of legislation is quite limited, and

          the majority's result here cannot be defended under traditional

          standards of review. Today's decision represents a substantial

          departure from our precedent on the respective roles of the

          legislative and judicial branches in shaping the law of this state.

          Stripped to its essence, the majority's mode of analysis simply

          constitutes an attempt to overrule, by judicial fiat, the considered

          judgment of the legislature.

          [fn1] An example which was cited frequently in the legislative

          debates is the infamous McDonald's spilled coffee case. See,

          e.g., 89th Ill. Gen. Assem., House Proceedings, February 16,

          1995, at 79, 89-90, 117-18. As one author has noted, the facts

          of this case were presented to the public in a skewed fashion.

          M. Rustad, Nationalizing Tort Law: The Republican Attack on

          Women, Blue Collar Workers and Consumers, 48 Rutgers L.

          Rev. 673, 720-21 (1996). In that case, it was reported that an

          81-year-old woman received a $2.9 million punitive damages

          verdict for injures incurred after she spilled hot coffee in her

          lap. However, less widely reported was that the verdict was

          reduced by the court to $480,000, the elderly woman underwent

          numerous skin graft operations for third degree burns, and

          McDonald's had prior knowledge of hundreds of similar

          scalding incidents. 48 Rutgers L. Rev. at 719 n.228. Also, the

          excessive award was for punitive, not compensatory, damages.

          [fn2] In Bernier, this court declined to apply a standard stricter

          than rationality review to medical malpractice legislation. This

          court rejected the intermediate test employed by the Supreme

          Court of New Hampshire in Carson v. Maurer, 120 N.H. 925,

          424 A. 2d 825 (1980) and by the Supreme Court of North

          Dakota in Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978). We

          adhere to the Bernier holding for purposes of evaluating section

          2--1115.1.

          [fn3] In Hall v. Gillins, 13 Ill. 2d 26 (1958), this court upheld

          as constitutional a cap on damages obtainable under the

          Wrongful Death Act because the legislature created both the

          right and the remedy. As such, this court held that the

          legislature's right to limit the maximum recovery could not be

          questioned. Hall, 13 Ill. 2d at 29. Likewise, in Cunningham v.

          Brown, 22 Ill. 2d 23 (1961), this court held that the damages

          cap contained in the Dramshop Act of 1872 passed

          constitutional muster because the cause of action was a creature

          of statute; i.e., no common law cause of action existed against

          a supplier of alcohol.

          [fn4] In Bernier, this court held that the elimination of punitive

          damages in medical malpractice cases served the legitimate

          legislative goal of reducing damages against the medical

          profession. In doing so, the court expressly stated: "That this

          court previously has invalidated, as special legislation, limits on

          recovery of compensatory damages in medical malpractice

          actions [citation], does not require that punitive damages be

          available in every case. The two are readily distinguishable;

          punitive damages, as their name suggests, are intended to punish

          rather than compensate." Bernier, 113 Ill. 2d at 246.

          [fn5] "Fault" is defined in section 2--1116 as "any act or

          omission that (i) is negligent, willful and wanton, or reckless, is

          a breach of an express or implied warranty, gives rise to strict

          liability in tort, or gives rise to liability under the provisions of

          any State statute, rule, or local ordinance and (ii) is a proximate

          cause of death, bodily injury to person, or physical damage to

          property for which recovery is sought." 735 ILCS 5/2--1116(b)

          (West 1996). "Contributory fault" is any fault which may be

          attributed to the plaintiff. 735 ILCS 5/2--1116(b) (West 1996).

          For purposes of our discussion regarding the apportionment of

          liability under section 3.5(a), we adhere to these definitions of

          fault and contributory fault. But see R. Wright, Allocating

          Liability Among Multiple Responsible Causes: A Principled

          Defense of Joint and Several Liability for Actual Harm and Risk

          Exposure, 21 U.C. Davis L. Rev. 1141, 1143-46 (1988) (arguing

          that the appropriate terminology to use when discussing the

          apportionment of liability is "comparative responsibility"); see

          also L. Pressler & K. Schieffer, Joint and Several Liability: A

          Case for Reform, 64 Denv. U.L. Rev. 650, 665 n.79 (1988).

          [fn6] In the circuit court, defendants contended that the section

          3.5(a) credit could be saved by construing it so that "multiple

          tortfeasors [would receive] a cumulative total credit for the

          employer's liability assessment." See also S. Miller,

          Contribution Claims Under the New Act, 6 IDC Quarterly ii, iv

          (First Quarter 1996) (suggesting that the section 3.5(a) be

          construed so that "the employer's share of fault [is] deducted

          from the total damages rather than from each individual's

          share"). However, the tortfeasors already receive a "cumulative

          total credit for the employer's liability" under section 2--1117.

          Thus, this argument does nothing to eliminate the double

          reduction which occurs when the section 3.5(a) credit is given

          effect.

          [fn7] The proponents of the amended version of section 2--1117

          have uniformly asserted that, under the doctrine of joint and

          several liability, tortfeasors are held liable for damages which

          they do not cause. See, e.g., 89th Ill. Gen. Assem., House

          Proceedings, February 16, 1995, at 17 (statements of

          Representative Cross) ("[Section 2--1117] would abolish the

          doctrine of joint and several liability to hold people who are

          responsible for other's damages responsible for only their share

          of the losses and not for the losses which they did not cause");

          K. Dillard, Illinois' Landmark Tort Reform: The Sponsor's

          Policy Explanation, 27 Loy. U. Chi. L.J. 805, 813 (1996)

          ("[T]he system [of joint and several liability] unfairly forced

          defendants to pay more than the damages which they caused");

          M. Redish, The Constitutionality of Illinois Tort Reform III--The

          Repeal of Joint and Several Liability, IDC Quarterly, at 5, 10

          (Second Quarter 1996) ("In repealing joint-and-several liability,

          the General Assembly decided that fundamental notions of

          morality dictate the conclusion that defendants should not be

          obligated to pay for harm which they did not cause"); S. O'Neil,

          A New Day, The Civil Justice Reform Amendments of 1995, 9

          CBA Rec. 18, 20 (May 1995) ("Although it may seem unjust to

          leave a plaintiff uncompensated for the entire loss, it may be

          equally unfair to require a defendant who caused a small portion

          of those damages to pay them in their entirety").

          [fn8] Before the circuit court, defendants contended that the

          "only" means by which the legislature could give effect to this

          policy was to adopt proportionate several liability.

          [fn9] These requirements are expressly incorporated into several

          other amendments to the Code of Civil Procedure as well:

          section 8--802 (privilege between healthcare practitioner and

          patient), section 8--2001 (inspection of hospital records), section

          8--2003 (physician's and other healthcare practitioner's records)

          and section 8--2004 (records of clinical psychologists and

          clinical social workers). 735 ILCS 5/2--1003, 8--802, 8--2001,

          8--2003, 8--2004 (West Supp. 1995). Because the challenged

          medical disclosure requirements originate in section 2--1003(a),

          our discussion hereafter will focus on that section.

          [fn10] We note that the legislative debate provides little insight

          into whether the sponsors of Public Act 89--7 intended that the

          circuit courts would retain their discretion to enter protective

          orders and to impose sanctions other than the dismissal specified

          in section 2--1003(a).

          [fn11] Because plaintiffs do not base their claim on a federal

          right to privacy, we do not discuss any federal cases involving

          privacy interests.

          [fn12] The Hippocratic Oath, according to the Judicial Council

          of the AMA, was conceived during the fifth century B.C. and

          stands as the oldest statement of ethics governing the medical

          profession. It requires the oath taker to keep secret confidential

          matters relating to patients. Similarly, the AMA's principles of

          medical ethics and the opinions of the Judicial Council of the

          AMA emphasize duties of honesty and confidentiality to the

          patient and preservation of the patient's confidential information.

          Additionally, the prior express consent of the patient to

          disclosure of confidential information is considered a right of

          the patient. See Petrillo, 148 Ill. App. 3d at 590.

          [fn13] We do not, however, create a broad-based remedy for

          perceived violations of a person's privacy interests by private

          parties. Instead, we focus narrowly on the constitutional source

          of the privacy interest that can be deemed a part of the public

          policy of this state.