Sofie v. Fibreboard Corp.

780 P.2d 260, 112 Wash. 2d 636, 1989 WL 120647

• Court: Washington Supreme Court
• Decided: September 27, 1989
• Docket: 54610-0
• Status: Published

Opinions

Utter, J.

— Austin and Marcia Sofie challenge the constitutionality of RCW 4.56.250. This statute, part of the 1986 tort reform act, places a limit on the noneconomic damages recoverable by a personal injury or wrongful death plaintiff. The Sofies brought a direct appeal to this court after the trial judge in their tort action, under the direction of the statute, reduced the jury's award of noneconomic damages. The respondents subsequently cross-appealed to the Court of Appeals, raising several issues of trial court error, issues we consider here.

The Sofies argue that RCW 4.56.250 violates their constitutional rights to trial by jury, equal protection, and due process. We find that the statute's damages limit interferes with the jury's traditional function to determine damages. Therefore, RCW 4.56.250 violates article 1, section 21 of the Washington Constitution, which protects as inviolate the right to a jury. Because the statute is unconstitutional on this basis, we do not consider its constitutionality under the latter two doctrines raised by appellants, although we briefly survey the equal protection issues. Respondents' arguments concerning trial court error are without merit.

The Washington Legislature passed RCW 4.56.250 in 1986 partly as a response to rising insurance premiums for liability coverage. The damages limit that the statute creates operates on a formula based upon the age of the plaintiff.¹ As a result, the older a plaintiff is, the less he or she will be able to recover in noneconomic damages. The trial judge applies the limit to the damages found by the trier of fact. If the case is tried before a jury, the jury determines the amount of noneconomic damages without knowledge of the limit. The jury goes about its normal business and the judge reduces, according to the statute's formula and without notifying the jury, any damage verdicts that exceed the limit.

In September 1987, the Sofies sued Fibreboard Corporation and other asbestos manufacturers for the harm caused to Mr. Sofie by their asbestos products. Mr. Sofie, then aged 67, was suffering from a form of lung cancer — mesothelioma — caused by exposure to asbestos during his career as a pipefitter. At trial, Mr. Sofie's attorneys presented evidence of the extreme pain he experienced as a result of the disease. The testimony indicated that Mr. Sofie spent what remained of his life waiting for the next "morphine cocktail," for the next hot bath, for anything that would lessen his consuming physical agony.

At the end of the trial, the jury found the defendants at fault for Mr. Sofie's disease. They returned a verdict of $1,345,833 in favor of the Sofies. Of this amount, $1,154,592 went to compensate noneconomic damages: $477,200 for Mr. Sofie's pain and suffering and $677,392 for Mrs. Sofie's loss of consortium. While the trial judge specifically found the jury's finding of damages reasonable, he indicated he was compelled under the damages limit to reduce the non-economic portion of the verdict to $125,136.45, resulting in a total judgment of $316,377.45.

I

Appellants argue that RCW 4.56.250 violates their right to equal protection under the law as guaranteed by Const. art. 1, § 12. This constitutional provision states:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

Although the language of article 1, section 12 differs from the fourteenth amendment to the federal Constitution, this court has generally followed the federal tiered scrutiny model of equal protection analysis originally developed by the United States Supreme Court. See, e.g., Daggs v. Seattle, 110 Wn.2d 49, 55, 750 P.2d 626 (1988). We have followed this approach because a separate analysis focusing on the language and history of our state constitution has not been urged. In one of their briefs, appellants point out that this court initially used an analysis based upon the different language of our own constitution. See, e.g., State v. Carey, 4 Wash. 424, 30 P. 729 (1892). They argue that it is appropriate to consider both the tiered scrutiny model of equal protection analysis as well as a language-specific analysis similar to the one developed by the Oregon Supreme Court. See, e.g., State v. Clark, 291 Or. 231, 630 (1981); State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981).

In the context of tiered scrutiny, appellants argue that this court should review the noneconomic damages limit under the midlevel scrutiny followed in State v. Phelan, 100 Wn.2d 508, 671 P.2d 1212 (1983) and Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810, 539 P.2d 845 (1975). They contend that Mr. Sofie belongs to a "semi-suspect class" — discrete but not suspect — of severely injured plaintiffs. Citing Hunter, they also claim that the damages limit affects an important right: the right to be indemnified for personal injuries. Under such a midtier analysis, this court generally requires that the challenged law further a substantial state interest. Daggs, 110 Wn.2d at 55.

Respondents contend that intermediate scrutiny should not apply because the damages limit amounts to economic legislation. Such legislation, they maintain, is reviewed under the deferential rational basis test. In support of this they cite, among other cases, Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978) (upholding the Price-Anderson Act).

Courts in some other states have struck down similar tort damage limits on equal protection grounds. See, e.g., Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 830 (1980) (striking limit on noneconomic damages after finding right to recover for personal injuries an "important substantive right,") (citing Hunter); Arneson v. Olson, 270 N.W.2d 125, 132 (N.D. 1978) (applying heightened scrutiny to flat damages limit); see also Comment, Constitutional Challenges to Washington's Limit on Noneconomic Damages in Cases of Personal Injury and Death, 63 Wash. L. Rev. 653 (1988); Development in the Law: The 1986 Washington Tort Reform Act, 23 Willamette L. Rev. 211 (1987). Other courts, however, have upheld limits, analyzing the legislation under the rational basis test. See, e.g., Fein v. Permanente Med. Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368, appeal dismissed, 474 U.S. 892, 88 L. Ed. 2d , 106 S. Ct. 214 (1985); see also Boyd v. Búlala, 647 F. Supp. 781 (W.D. Va. 1986) (finding that damages limit passes the rational basis test under equal protection analysis but violates the right to a jury trial).

As for the analysis based on the language of our privileges and immunities clause, this question must wait for another case.²

II

The dispositive issue of this case is the right to a jury trial.

This court has long approached the review of legislative enactments with great care. The wisdom of legislation is not justiciable; our only power is to determine the legislation's constitutional validity. Petstel, Inc. v. County of King, 77 Wn.2d 144, 151, 459 P.2d 937 (1969); State ex rel. Bolen v. Seattle, 61 Wn.2d 196, 198, 377 P.2d 454 (1963); Smith v. Centralia, 55 Wash. 573, 576,104 P. 797 (1909). In matters of economic legislation, we follow the rule giving every reasonable presumption in favor of the constitutionality of the law or ordinance. Shea v. Olson, 185 Wash. 143, 152, 53 P.2d 615, 111 A.L.R. 998 (1936).³ We employ this caution to avoid substituting our judgment for the judgment of the Legislature. See State Pub. Employees' Bd. v. Cook, 88 Wn.2d 200, 206, 559 P.2d 991 (1977), adhered to on rehearing, 90 Wn.2d 89, 579 P.2d 359 (1978); Fritz v. Gorton, 83 Wn.2d 275, 283, 517 P.2d 911, appeal dismissed, 417 U.S. 902 (1974); Jones v. Jones, 48 Wn.2d 862, 868, 296 P.2d 1010, 54 A.L.R.2d 1403 (1956); see also Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 522-23 (1984).

Other courts, faced with unconstitutional tort damage limits, have adhered to similar principles when reviewing those legislative actions. The Kansas Supreme Court put it well:

"This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution." The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

(Citations omitted.) Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 340, 757 P.2d 251, 256-57 (1988).

To determine the extent of the right to trial by jury as it applies here, we must first identify the source of the constitutional protection. The seventh amendment to the United States Constitution does not apply through the Fourteenth Amendment to the states in civil trials. Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211, 60 L. Ed. 961, 36 S. Ct. 595 (1916); Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678 (1876). The right to jury trial in civil proceedings is protected solely by the Washington Constitution in article 1, section 21. Therefore, the relevant analysis must follow state doctrine; our result is based entirely on adequate and independent state grounds.⁴ Article 1, section 21 states:

The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.

Our basic rule in interpreting article 1, section 21 is to look to the right as it existed at the time of the constitution's adoption in 1889. State ex rel. Goodner v. Speed, 96 Wn.2d 838, 840, 640 P.2d 13, cert. denied, 459 U.S. 863 (1982); In re Ellern, 23 Wn.2d 219, 224, 160 P.2d 639 (1945); State ex rel. Mullen v. Doherty, 16 Wash. 382, 384-85, 47 P. 58 (1897). We have used this historical standard to determine the scope of the right as well as the causes of action to which it applies. These two issues, scope and the applicable causes of action, merit separate discussion.

State ex rel. Mullen v. Doherty, supra, being close in time to 1889, provides some contemporary insight on the scope issue. In Mullen, we cited section 248 of the Code of 1881, in force at the time of the constitution's passage, to determine the jury's role in the constitutional scheme: "either party shall have the right in an action at law, upon an issue of fact, to demand a trial by jury.” Mullen, 16 Wash. at 385. Subsequent cases underscore the jury's fact finding province as the essence of the right's scope. See, e.g., State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910); In re Ellern, supra.

At issue in the present case is whether the measure of damages is a question of fact within the jury's province. Our past decisions show that it is indeed. The constitutional nature of the jury's damage-finding function is underscored by Baker v. Prewitt, 3 Wash. Terr. 595, 19 P. 149 (1888). In that case, the territorial Supreme Court stated:

Sections 204 and 289 of the [territorial] Code seem to require that in all actions for the assessment of damages the intervention of a jury must be had, save where a long account may authorize a referee, etc. This statute is mandatory, and we are satisfied that where the amount of damages is not fixed, agreed upon, or in some way liquidated, a jury must be called, unless expressly waived.

Baker, at 597-98. If our state constitution is to protect as inviolate the right to a jury trial at least to the extent as it existed in 1889, then Baker's holding provides clear evidence that the jury's fact-finding function included the determination of damages. This evidence can only lead to the conclusion that our constitution, in article 1, section 21, protects the jury's role to determine damages.

The present case is not the first time we have recognized the constitutional nature of the jury's damage-determining role. In James v. Robeck, 79 Wn.2d 864, 869, 490 P.2d 878 (1971), we stated: "To the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts — and the amount of damages in a particular case is an ultimate fact." See also Dacres v. Oregon Ry. & Nav. Co., 1 Wash. 525, 20 P. 601 (1889) (Act of 1883, creating a scheme for determining the value of train-killed animals by appraisers, was unconstitutional because it denied the right to a jury trial); Worthington v. Caldwell, 65 Wn.2d 269, 273, 396 P.2d 797 (1964) ("Questions of damages should be decided by the jury . . ."); Anderson v. Dalton, 40 Wn.2d 894, 897, 246 P.2d 853, 35 A.L.R.2d 302 (1952); Kellerher v. Porter, 29 Wn.2d 650, 189 P.2d 223 (1948); Walker v. McNeill, 17 Wash. 582, 592-95, 50 P. 518 (1897).

The jury's role in determining noneconomic damages is perhaps even more essential. In Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985), the husband of a woman who died painfully 35 hours after giving birth, the result of medical malpractice, brought a wrongful death and survival action. The only issue before this court was whether the trial judge had properly reduced the jury's damage verdict of $412,000 for the woman's pain and suffering. In resolving the issue in the plaintiff's favor, we stated: "The determination of the amount of damages, particularly in actions of this nature, is primarily and peculiarly within the province of the jury, under proper instructions ..." (Italics ours.) 103 Wn.2d at 835. See also Lyster v. Metzger, 68 Wn.2d 216, 224-25, 412 P.2d 340 (1966) (issue of damages, here primarily noneconomic, is within the jury's province); Power v. Union Pac. R.R., 655 (9th Cir. 1981) (under Washington law, damages for loss of companionship determined by trier of fact).

United States Supreme Court jurisprudence on the Seventh Amendment's scope in civil trials, while not binding on the states, also provides some insight. In Dimick v. Schiedt, 293 U.S. 474, 79 L. Ed. 603, 55 S. Ct. 296, 95 A.L.R. 1150 (1935), the Court used historical analysis to determine whether the Seventh Amendment allowed additur. Citing cases and treatises dating from the time of the amendment's adoption, the Court found that determining damages, as an issue of fact, was very much within the jury's province and therefore protected by the Seventh Amendment. The Court also indicated that a judge should give more deference to a jury's verdict when the damages at issue concern a noneconomic loss. The Court quoted the English case of Beardmore v. Carrington, 2 Wils. 244, 248, 95 Eng. Rep. 790, 792 (K.B. 1764):

". . . There is great difference between cases of damages which [may] be certainly seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and value may be measured, and actions of imprisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, ideal..."

293 U.S. at 479. The Court clarified the implications of the difference between these two classes of actions by quoting from J. Mayne, Damages (9th ed. 1920) at page 571: "'in cases where the amount of damages was uncertain their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it."' 293 U.S. at 480.

Respondents and certain amici contend that Tull v. United States, 481 U.S. 412, 95 L. Ed. 2d 365, 107 S. Ct. 1831 (1987), renders null the above analysis from Dimick. Using historical analysis, the Tull Court found that a defendant in an enforcement proceeding under the federal clean water act had the right to a jury trial but not to have the jury determine the amount of the civil penalty. The distinction, however, between damages in a tort action and a civil penalty in a regulatory enforcement case is fundamental. Therefore, Tull is irrelevant on the issue before the court. Ultimately, however, because the Supreme Court's civil trial Seventh Amendment jurisprudence is not binding on the states, state courts can look on this area as educational rather than coercive: the federal cases may assist us, but they do not compel the result we reach. We find the noneconomic damages limit unconstitutional on adequate and independent state grounds. While we do this, we will examine federal cases which provide the most informative analysis on the issues we must decide. Dimick provides that analysis; Tull does not.

As our past decisions have shown, Washington has consistently looked to the jury to determine damages as a factual issue, especially in the area of noneconomic damages. This jury function receives constitutional protection from article 1, section 21.

The second issue we must address is the determination of which causes of action the right to trial by jury attaches to. We have held in the past that the right attaches to actions in which a jury was available at common law as of 1889 and to actions created by statutes in force at this same time allowing for a jury. See, e.g., State ex rel. Mullen v. Doherty, supra (as of 1889, quo warranto proceedings were not heard by a jury, therefore right did not attach); In re Ellern, supra; see also Trautman, Right to Jury Trial in Washington — Present and Future, 34 Wash. L. Rev. 401 (1959).

Amici in favor of respondents' position suggest that the right to a jury does not apply to causes of action that did not exist at the time of the constitution's adoption. A fundamental problem exists with this argument. If the right to a jury trial applies only to those theories of recovery accepted in 1889 — rather than the types of actions that, at common law, were heard by a jury at that time — then the constitutional right to a jury will diminish over time. As a method of construing a lasting constitutional right, this makes little sense.

As respondents themselves point out, this court stated in Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810, 539 P.2d 845 (1975), that constitutional analysis is not completely frozen in time. It would defeat the intention of our constitution's framers to interpret an essential right so that it slowly withers away. An interpretation more consistent with the intended longevity of a constitutional right adapts the application of that right according to developments in the law over time. As long as the scope and nature of the right are adequately defined — and for that we can turn to a stricter historical analysis — a more flexible historical approach for determining when the right attaches will better achieve the intent of the framers.

A method of historical analysis used by the United States Supreme Court in Tull v. United States, supra, provides further insight. The Tull Court looked for proceedings analogous to the enforcement action under the federal clean water act which were contemporary with the Seventh Amendment's adoption. Finding that the common law proceeding of debt, in which the litigants had a right to a jury, was analogous to the clean water act enforcement action, the Court applied the Seventh Amendment right to the modern action. Without stretching the analogy as far as the Supreme Court did, it is logical to apply the more recent tort theories by analogy to the common law tort actions that existed in 1889. We note again that we reach our result today on adequate and independent state grounds. The holding in Tull, like all United States Supreme Court precedent in the civil trial area of the Seventh Amendment, is not binding on the states and merely serves as an example to us. It does not compel the result we reach.

Ultimately, there is not even an issue whether the right to a jury attaches to the Sofies' case. While they asserted "newer" tort theories in their complaint, the heart of the appellants' cause of action centered on negligence and willful or wanton misconduct resulting in personal injury. See Plaintiff's Summons and Complaint, at 4-5. These basic tort theories are the same as those that existed at common law in 1889. See, e.g., Columbia & P.S. R.R. v. Hawthorne, 3 Wash. Terr. 353, 19 P. 25 (1888) (worker injured by falling pulley, defect known to employer), rev'd on other grounds, 144 U.S. 202 (1892); Sayward v. Carlson, 1 Wash. 29, 23 P. 830 (1890) (plaintiff, injured at work due to employer's negligence, while on the way to the bathroom, was not contributorially negligent). Subsequent cases and statutes have recognized newer theories of recovery within the framework of these basic tort actions, but the basic cause of action remains the same. Therefore, the right to trial by jury — with its scope as defined by historical analysis — remains attached here.

III

Respondents argue that the Legislature has the power to alter the functions of civil trials, such alterations often affecting the role of the jury. They cite a number of cases in which our courts have upheld such changes against challenges based on the right to trial by jury. See, e.g., State v. Mountain Timber Co., 75 Wash. 581, 135 P. 645 (1913), aff'd, 243 U.S. 219, 61 L. Ed. 685, 37 S. Ct. 260 (1917) (upholding the workers' compensation statute); State ex rel. Clark v. Neterer, 33 Wash. 535, 74 P. 668 (1903) (upholding constitutionality of fees and time limits for requesting jury); Bellingham v. Hite, 37 Wn.2d 652, 225 P.2d 895 (1950) (certain municipal cases may be tried without a jury provided there is right to jury trial on appeal); Christie-Lambert Van & Storage Co. v. McLeod, 39 Wn. App. 298, 693 P.2d 161 (1984) (upholding mandatory arbitration statute). Respondents argue that the Legislature may, in fact, do away with causes of action altogether, replacing them with procedures such as workers' compensation which, at the initial stage at least, do not allow for a jury at all. In short, respondents contend, the Legislature can determine the "law of recovery."

The Legislature has power to shape litigation. Such power, however, has limits: it must not encroach upon constitutional protections. In this case, by denying litigants an essential function of the jury, the Legislature has exceeded those limits.

A review of the decisions cited by respondents provides insight into the limits of legislative power. These decisions show that the Legislature cannot intrude into the jury's fact-finding function in civil actions, including the determination of the amount of damages.

In the case of workers' compensation, this court in State v. Mountain Timber Co., supra, did not engage in the historical analysis regarding the right to a jury trial. Our analysis instead centered on the State's police power to abolish causes of action and replace them with a mandatory industrial insurance scheme. Because the use of such power was done for the public health and welfare and a comprehensive scheme of compensation was inserted in its place, the abolition of the cause of action was not unconstitutional.⁵ 75 Wash. at 583.

The United States Supreme Court, in affirming our decision, found that the statute did not violate the Seventh Amendment as it would apply to trials in federal court. The Court stated:

So far as private rights of action are preserved, [the Seventh Amendment applies]; but with respect to those we find nothing in the act that excludes a trial by jury. As between employee and employer, the act abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be tried by jury.

Mountain Timber, 243 U.S. at 235. In other words, if the cause of action is completely done away with, then the right to trial by jury becomes irrelevant. Since the right attaches to civil trials, there can be no right — and no constitutional violation — if no civil trial is available.

Respondents Eagle-Picher imply, without direct authority, that the Legislature's greater power to abolish causes of action includes the lesser power to alter jury functions, including that of determining damages. They cite the workers' compensation scheme as an example of the greater power. As part of this assertion, respondents refer to Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998 (1936) — which upheld the automobile "guest statute" — for the proposition that "[a] person has no vested interest in any rule of the common law." 185 Wash. at 156.

While respondents cite Shea correctly, its holding is not applicable here. The scope of the right to trial by jury may be defined by the common law through a historical analysis, but the right itself is protected by the state constitution. As the United States Supreme Court stressed in Dimick v. Schiedt, 293 U.S. 474, 79 L. Ed. 603, 55 S. Ct. 296 (1935), the common law is a flexible body of doctrine, but fundamentally different from a constitutional provision which looks to the common law at a specific point in time for definition. 293 U.S. at 487. Constitutional protections are not directly subject to common law changes. Because of the constitutional nature of the right to jury trial, litigants have a continued interest in it — it simply cannot be removed by legislative action. As long as the cause of action continues to exist and the litigants have access to a jury, that right of access remains as long as the cause of action does. Otherwise, article 1, section 21 means nothing.

The other cases cited by respondents affect access to the jury in procedural ways. They do not deprive the jury of any of its essential functions. Washington's mandatory arbitration law does not supplant the jury in civil litigation. Rather, it provides for proceedings under a certain jurisdictional amount to be disposed of at a lesser expense to the parties and to the state. As made clear by the Court of Appeals in Christie-Lambert Van & Storage Co. v. McLeod, supra, the availability of a jury trial de novo to redetermine the arbitrator's conclusions preserved the right protected by article 1, section 21. The court stated:

[a]ll that is required is that the right of appeal for the purpose of presenting the issue to a jury must not be burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically unavailable.

39 Wn. App. at 306, quoting Smith Case, 381 Pa. 223, 231, 112 A.2d 625 (1955). The court found that the procedures created in the Washington statute, notably placing on the losing party costs and fees in a frivolous appeal, were not an unreasonable burden on the parties and left the ultimate right to a jury intact.

The municipal trial at issue in Bellingham v. Hite, supra, was not unconstitutional for essentially the same reasons discussed in Christie-Lambert. The City of Bellingham gave a police judge jurisdiction to try certain municipal offenses — here driving while intoxicated. Like the mandatory arbitration plan, a jury trial de novo was available on appeal. Therefore, the scheme did not violate the right to trial by jury. Bellingham v. Hite, supra at 657.

The procedural directives at issue in State ex rel. Clark v. Neterer, supra, did not at all encroach upon the jury's province. In Clark, we found that article 1, section 21 allowed for waiver of a jury " 'where the consent of the parties interested is given thereto". Such consent could be express or implied; therefore filing fees and deadlines, not being unreasonable, could direct the expression of consent within the bounds of the constitution. 33 Wash. at 541.

The issues in the preceding cases sure fundsunentally different from the legislative damage limit. Respondents do not contend that these previous cases directly infringed upon the jury's role to find the facts. Rather, the Legislature directed parties' access to the jury, often providing for more streamlined procedures to fulfill a state interest. At issue in the Sofies' case is a statute that directly changes the outcome of a jury determination. The statute operates by taking a jury's finding of fact and altering it to conform to a predetermined formula. Such a statutory operation is beyond the scope of the cases that respondents cite.

Respondents also argue that the trial court has the power to lower a jury's damages finding under the doctrine of remittitur, setting a precedent applicable to the legislative damage limit. While trial judges do have this power, remittitur functions very differently from the tort reform act.

First, remittitur is wholly within the power of the trial judge. Within the guidelines of the doctrine, the judge makes the legal conclusion that the jury's damage finding is too high. This judicial finding — arrived at with judicial care — is fundamentally different from a legislatively imposed "remittitur" that operates automatically. Appellants, indeed, argue that this legislative "remittitur" violates the doctrine of separation of powers. As we held in Tacoma v. O'Brien, 85 Wn.2d 266, 534 P.2d 114 (1975), any determination calling for a legal conclusion is constitutionally within the province of the judiciary, not the Legislature. Any legislative attempt to mandate legal conclusions would violate the separation of powers. 85 Wn.2d at 271. The judge's use of remittitur is, in effect, the result of a legal conclusion that the jury's finding of damages is unsupported by the evidence. The Legislature cannot make such case-by-case determinations. Therefore, the legislative damages limit is fundamentally different from the doctrine of remittitur. Although we do not decide the case on this basis, the limit may, indeed, violate the separation of powers as indicated by O'Brien.

Second, a judge can implement remittitur only under well developed constitutional guidelines. As discussed in cases like Lyster v. Metzger, 68 Wn.2d 216, 412 P.2d 340 (1966) and Martin v. Foss Launch & Tug Co., 59 Wn.2d 302, 367 P.2d 981 (1962), the jury's constitutionally protected role is that of the finder of fact and part of this role is to determine the amount of damages in a given case. Because these matters are within the jury's province, there is a strong presumption in favor of their validity. This presumption is codified in statute: RCW 4.76.030. A judge can only reduce a jury's damages determination when it is, in light of this strong presumption, wholly unsupported by the evidence, obviously motivated by passion or prejudice, or shocking to the court's conscience.

Third, the opposing party in cases of remittitur has the choice of accepting the reduction or seeking a new trial. RCW 4.76.030. The tort reform legislation does not allow parties this choice. All three of the discussed strictures surrounding the doctrine of remittitur are lacking in the tort reform act's damages limit. Indeed, the former and the latter operations are fundamentally different.⁶

Respondents also contend that the damages limit affects only the judgment as entered by the court, not the jury's finding of fact. This argument ignores the constitutional magnitude of the jury's fact-finding province, including its role to determine damages. Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function. This court will not construe constitutional rights in such a manner. As we once stated: "'The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. ... If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.'" State v. Strasburg, 60 Wash. 106, 116, 110 P. 1020 (1910), quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L. Ed. 356 (1866).

Finally, the plain language of article 1, section 21 provides the most fundamental guidance: "The right of trial by jury shall remain inviolate". The term "inviolate" connotes deserving of the highest protection. Webster's Third New International Dictionary 1190 (1976), defines "inviolate" as "free from change or blemish: pure, unbroken . . . free from assault or trespass: untouched, intact ..." Applied to the right to trial by jury, this language indicates that the right must remain the essential component of our legal system that it has always been. For such a right to remain inviolate, it must not diminish over time and must be protected from all assaults to its essential guaranties. In Washington, those guaranties include allowing the jury to determine the amount of damages in a civil case.

The potential impact of the constitution's language was not lost on the Legislature. During the floor debates on the tort reform act, the legislators were warned of the possible constitutional problems with their new legislation. Senator Talmadge stated:

The Constitution of this state in Article I, Section 21, talks about the right to trial by jury being inviolate, not being something that we can invade as members of the Legislature, and when you start to put limitations on what juries can do, you have, in fact, invaded the province of the jury and have not preserved the right to a trial by jury inviolate.

Senate Journal, 49th Legislature (1986), at 449.

IV

A number of other jurisdictions have stricken tort reform legislation that places a limit on the jury's ability to determine damages in a given case. A smaller number of courts have upheld such legislation against right-to-jury based challenges. The methods all of these courts have used are instructive through their similarities and differences to the present case and in their modes of analysis.

In Boyd v. Búlala, 647 F. Supp. 781 (W.D. Va. 1986), reh'g denied, 672 F. Supp. 915 (1987), a federal district court, applying both Virginia and federal constitutional law, determined that Virginia's legislative damage limit— which placed a flat limit on noneconomic damages — was an unconstitutional violation of the right to trial by jury. The court developed insightful distinctions between what the Legislature can and cannot do:

Unquestionably, the legislature may pass measures which affect the way a jury determines factual issues. The legislature may prescribe rules of procedure and evidence, create legal presumptions, allocate burdens of proof, and the like. Just as certainly, the legislature may abolish a common law right of action and, if it desires, replace it with a compensation scheme. The legislature may even make rules concerning the type of damages recoverable and the way in which damages are paid. But the legislature may not preempt a jury's findings on a factual issue which has properly been submitted to the jury.

(Footnotes omitted.) 647 F. Supp. at 789-90. To make matters clear, the Búlala court held that both the Seventh Amendment and the Virginia State Constitution provided the right to have a jury determine the extent of damages as well as liability. 647 F. Supp. at 788.

In Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988), the Kansas Supreme Court struck down its state's noneconomic damages limit— another flat limit — as violative of the Kansas constitution's protection of the right to trial by jury. After determining that the jury's function to determine damages was constitutionally protected, the court stated: "It would be illogical for this court to find that a jury, empaneled because monetary damages are sought, could not then fully determine the amount of damages suffered." 757 P.2d at 343. See also Duren v. Suburban Comm'ty Hosp., 482 N.E.2d 1358 (Ohio C.P., Cuyahoga Cy. 1985) (striking limit on a number of constitutional grounds); Smith v. Department of Ins., 507 So. 2d 1080 (Fla. 1987) (flat limit violates right to jury); Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) (citing Smith and Boyd, finds limit on damages invades jury's fact-finding province); Comment, Challenging the Constitutionality of Noneconomic Damage Caps: Boyd v. Búlala and the Right to a Trial by Jury, 24 Willamette L. Rev. 821 (1988).

Respondents contend that the limits in the above cases are distinguishable from the one in the Washington statute because they generally limited the damages to a fixed amount. Washington's limit, on the other hand, follows a formula based upon age. In terms of invading the province of the jury, however, the nature of the mechanism itself makes little difference. Whether the limit is fixed or follows a formula, if it restricts the jury's ability to reach its damages verdict, it invades the jury's province.

It is highly persuasive that in Kansas, Texas, Ohio, and Florida, states that have found the damages limit unconstitutional, the operative language of the right to jury trial provisions in those states' constitutions is nearly identical to our own. See Kan. Const. Bill of Rights § 5 ("The right of trial by jury shall be inviolate"); Tex. Const. art. 1, § 15 ("The right of trial by jury shall remain inviolate"); Ohio Const. art. 1, § 5 ("The right of trial by jury shall be inviolate"); Fla. Const. art. 1, § 22 ("The right of trial by jury shall be secure to all and remain inviolate").

Cases upholding damage limits either have not analyzed the jury's role in the matter or have not engaged in the historical constitutional analysis used by this court in construing the right to a jury. Two cases from California cited by respondents are essentially irrelevant to the jury issue here. In Fein v. Permanente Med. Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368, appeal dismissed, 474 U.S. 892, 88 L. Ed. 2d 215, 106 S. Ct. 214 (1985), the California Supreme Court upheld its state's damage limit provision in medical malpractice cases. In that case, however, the issue of whether the limit infringed on the right to trial by jury was not discussed. The court upheld the limit on due process and equal protection grounds. However, in American Bank & Trust Co. v. Community Hosp. of Los Gatos-Saratoga, Inc., 36 Cal. 3d 359, 683 P.2d 670, 204 Cal. Rptr. (1984), the California court upheld the same act's provision for periodic payment of "future damages" against a challenge based on the right to jury trial. Based on a historical analysis much less detailed than the one employed by this court, the California court found that the periodic payment provision did not represent impairment of the substantial features of a jury trial. 683 P.2d at 680. The case, however, is fundamentally different from the one now before us. It did not deal with the ultimate issue of directly invading the jury's fact-finding province.

In Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980), the Indiana Supreme Court upheld a flat limit on damages against challenges that it violated the right to a jury. In reaching its conclusion, the court cited the legislature's power to restrict causes of action through statutes of limitation and procedural rules. From these legislative powers, the court concluded: "It is the policy of this Act that recoveries be limited to $500,000, and to this extent the right to have the jury assess the damages is available." 273 Ind. at 401. Essentially, although it gave no clear reasons, the Indiana court did not recognize the jury's role to determine damages. It is also notable that the court did not undertake any historical analysis to reach its conclusion. This lack of analysis minimizes the impact of the similarity between the Indiana constitution's jury provision and our own. See also Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977) (mandatory prerequisite submission of malpractice claims to panel does not violate right to jury because jury ultimately is the finder of fact).

The weight of authority from other states, both numerically and persuasively, supports the conclusion that Washington's damages limit violates the right to trial by jury.

V

The dissenters raise several points to which we now respond. Justice Dolliver's dissent, at page 677, states that "[a] moment's reflection" will reveal that the real issue in this case is not whether the determination of damages is a question of fact within the jury's province but whether this function "extends to the remedy phase." This statement simply recasts the formulation of a principle in an attempt to make it into something else. The issue must remain an inquiry into what is contained within the jury's fact-finding province. Because that province includes finding damages, as a matter of course the remedy phase is affected, just as any finding of fact can affect a trial's outcome.

Justice Dolliver cites with approval the recent case of Etheridge v. Medical Ctr. Hosps., _Va._, 376 S.E.2d 525 (1989), but ignores the greater number of cases from other jurisdictions that support our position. In making this oversight, Justice Dolliver also omits the fact that four courts whose decisions support our holding — Texas, Kansas, Ohio, and Florida — base their decisions on state constitutions with operative language nearly identical to our own. Moreover, the Virginia Constitution, upon which Etheridge is based, contains language quite different from ours or of the other states mentioned above. The Etheridge opinion is also poorly reasoned. After conceding that the "jury's fact-finding function extends to the assessment of damages”, the court finds that a "trial court applies the remedy's limitation only after the jury has fulfilled its fact-finding function." Etheridge, 376 S.E.2d at 529. Thus, supposedly, the limitation does not impinge on the jury's function. Etheridge, 376 S.E.2d at 529.

As this court stated in State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910), a case which Justice Dolliver fails to mention: "'The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. . . .'" 60 Wash. at 116, quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L. Ed. 356 (1866). In other words, a constitutional protection cannot be bypassed by allowing it to exist in form but letting it have no effect in function. The Strasburg principle is the undoing of Etheridge's reasoning.

Strasburg also deflates Justice Dolliver's accusation, at page 683, that this court's "entire analysis" boils down to a few sentences "with no authority cited." We cite Strasburg plainly enough. The impact of Strasburg on this case is worth repeating: because the jury's province includes determining damages, this determination must affect the remedy. Otherwise, the constitutional protection is all shadow and no substance.

Justice Dolliver's dissent also attempts to construct an issue out of a trial judge's power to reduce the amount of a jury's award. As we state above, the remittitur doctrine is part and parcel of the constitutional right to a jury. Justice Dolliver's assertion at page 681 that the Code of 1881 contained no provision for remittitur — apparently implying that the doctrine did not apply to the right to a jury at the time of our constitution's adoption — ignores the fact that remittitur existed at common law. Walker v. McNeill, 17 Wash. 582, 50 P. 518 (1897), cited by Justice Dolliver for its act of reducing excessive damages, is a near-contemporary example. For a discussion of the common law roots of remittitur, see Dimick v. Schiedt, 239 U.S. 474, 79 L. Ed. 603, 55 S. Ct. 296, 95 A.L.R. 1150 (1935). In his repeated reference to remittitur, Justice Dolliver fails to mention that this function is solely within the province of the trial judge — that it is entirely separate from a legislative operation which reduces a jury's damages finding. In so doing, he does not address the separation of powers problems implicit in his conclusion.

Contrary to the assertion in Chief Justice Callow's dissent at page 670, this court does not hold that today's juries are constitutionally bound to "determine the same issues which were determined by juries in 1889." Rather, we use historical evidence as an aid to determine what the drafters meant by keeping the right to a jury trial "inviolate." We agree with Chief Justice Callow, and held in Hunter v. North Mason High Sch. & Sch. Dist. 403, 85 Wn.2d 810, 539 P.2d 845 (1975), that the construction of a constitutional protection is not frozen in time. The contemporary relevance of the provision in light of changes in the law, the construction given to it over time as well as the construction given to it immediately after its adoption — by jurists intimate with the drafting of the provision — are also tools to divine its contours. All of these factors point to the constitutional protection of the jury's function to determine damages. Thus, Chief Justice Callow's reference to "no authority" and "no sound policy reasons" applies to something that we do not hold.⁷

Perhaps the most serious problem with Chief Justice Callow's dissent is that it fails to address the constitutional language itself: "The right of trial by jury shall remain inviolate". While Chief Justice Callow agrees that the right does exist, he provides no mechanism for determining the content of the right and for protecting that content. His construction is open to the form-over-content problems this court identified in State v. Strasburg, supra. The word "inviolate" carries with it a strong command: the right— as it existed in the minds of the framers and as it is relevant today — must exist "free from assault or trespass: untouched, intact..." Webster's Third New International Dictionary 1190 (1976).

The dissenters make much out of their citation to Tull v. United States, 481 U.S. 412, 95 L. Ed. 2d 365, 107 S. Ct. 1831 (1987). As we state above, the conclusion in Tull has no bearing on this court because we base our decision on adequate and independent state grounds. Since 1889, Washington's jurisprudence on the right to a jury in civil trials has always been based on the state constitution. Tull and Dimick v. Schiedt, supra, may provide material for our analysis, but they do not direct us.

Chief Justice Callow's advocation of Tull conceptually distorts the rule we developed in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), which in turn relied on the concurring opinion of Justice Handler in the New Jersey decision of State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). Chief Justice Callow relies on Gunwall and Hunt to support his implication that this court should defer to Supreme Court interpretation of a comparable federal provision unless an analysis of the six Gunwall criteria indicate that we should take an independent course. Callow, C.J., dissenting, at 673.

This implication is contrary to the reasoning of Justice Handler and was specifically rejected by him in Hunt. In footnote 3 of his opinion, he stated, "To the extent that Justice Pashman suggests in his concurring opinion that this approach establishes a presumption in favor of federal constitutional interpretations, supra at 355, no decision of this Court has recognized such a presumption, and nothing in this opinion or in the majority opinion, as I read it, calls for or encourages the establishment of such a presumption." Hunt, at 367 n.3.

After criticism that the Gunwall criteria could be misinterpreted to support the view now espoused by the dissent,⁸ this court clarified the test in State v. Wethered, 110 Wn.2d 466, 472, 755 P.2d 797 (1988). In Wethered, we reemphasized the statement that the Gunwall factors were nonexclusive and added that they were to be used as interpretive principles of our state constitution.

At any rate, Tull does not even apply to civil damages actions. The second opinion in Boyd v. Búlala, 672 F. Supp. 915 (W.D. Va. 1987), which the dissenters fail to cite, reaffirmed that court's previous holding that the Virginia damages limit violated the Seventh Amendment, stating: "Unlike the assessment of civil penalties discussed in Tull, supra, the assessment of damages has always been a matter 'peculiarly within the province of the jury."' 672 F. Supp. at 920, quoting Virginia Mid. R.R. v. White, 84 Va. 498, 508, 5 S.E. 573 (1888). Boyd has not been overruled.

To his credit, Justice Dolliver concedes that our State's jurisprudence contains cases squarely stating that a jury's role to determine damages is of constitutional proportions. At page 681 he admits that James v. Robeck, 79 Wn.2d 864, 490 P.2d 878 (1971), "does describe damages determination as a constitutionally consigned jury function." Justice Dolliver makes this concession because he must. The principle in James is inescapable: that case has not been limited or overruled.

Justice Dolliver's treatment of other Washington precedent attempts to limit the cases to their facts and ignore the principle that underlies them. For example, Baker v. Prewitt, 3 Wash. Terr. 595, 19 P. 149 (1888), did hold, as his dissent suggests, that a jury determined damages in default judgments at the time our constitution was adopted. Nonetheless, the underlying principle in Baker is that a jury determines damages, period. Baker links sections 204 and 289 of the Code of 1881, which outline the jury's fact-finding function generally and its role in determining damages specifically in default actions, respectively. If the court had intended to limit its holding to its facts, it would not have cited to section 204 and it would not have stated: "in all actions for the assessment of damages the intervention of a jury must be had ..." (Italics ours.) 3 Wash. Terr, at 597. Although Dacres v. Oregon Ry. & Nav. Co., 1 Wash. 525, 20 P. 601 (1889), does base its holding on the Seventh Amendment, that does not diminish that case's contemporary relevance for construing our state's constitutional provision. What we are concerned with is the conception of the scope of the right to a jury trial at the time of our constitution's adoption, not how United States Supreme Court precedent 98 years after that case affects the territorial court's conclusion.

On page 683, Justice Dolliver's dissent claims:

Contrary to the majority's bold conclusion, this court has never constitutionalized the jury's right to determine damages. Even conceding this point, however, there is no precedent for extending the scope of this right to the remedy phase.

This statement ignores the plain language of James as well as the impact of Strasburg. Indeed, this argument can only be made by ignoring or mischaracterizing these cases.

Justice Dolliver also misconstrues the nature of the Legislature's power to create and eliminate causes of action and the attachment of the jury right to these actions. When the Legislature abolishes a cause of action, it does so explicitly, as it did when it created the workers' compensation scheme. Thus, Justice Dolliver's claim, on page 686, that the Legislature has "eliminated, in effect, any cause of action in which the damages are above the amount allowed in the act", cannot be taken seriously. If RCW 4.56.250 "partially" abolished a cause of action, then the Legislature certainly wasn't aware of it. Only if this court saw itself as a super-Legislature could we make up such legislative acts after the fact.

The dissenters' arguments regarding comparative negligence in product liability actions, punitive damages, and treble damages are unpersuasive. The absence of punitive damages in our state is a reflection of policies contemporary with our constitution's adoption. As with remittitur, this is incorporated into the jury right. Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 P. 1072 (1891), in abolishing punitive damages, did not discuss the impact of Const. art. 1, § 21. That the constitutional argument was neither made nor considered suggests a contemporary understanding that awarding punitive damages was not one of the essential jury functions envisioned by the framers to remain "inviolate." Spokane Truck's treatment of the jury question contrasts markedly with the clear statements in cases such as James v. Robeck, supra. Therefore, it does not provide the constitutional evidence provided in the cases upon which we rely. Additionally, the nonconstitutional status of punitive damages may have been intimately understood by the judges on the court at that time, three of whom had served as drafters at the constitutional convention 2 years earlier. See Journal of the Washington State Constitutional Convention 1889, at 465, 470, 485 (B. Rosenow ed. 1962); 2 Wash. iii (1892) (list of judges).

Justice Dolliver's discussion, on pages 684-85, of the effect of RCW 4.22.005 on Seay v. Chrysler Corp., 93 Wn.2d 319, 609 P.2d 1382 (1980), focuses only on the results of the operation, not the process of it. It is entirely within the Legislature's power to define parameters of a cause of action and prescribe factors to take into consideration in determining liability. This is fundamentally different from directly predetermining the limits of a jury's fact-finding powers in relevant issues, which offends the constitution.

As for the "gratuitous holding" regarding the Consumer Protection Act discussed by Justice Dolliver's dissent at page 687, we have not reached such a fundamental conclusion. We are unable to because the Consumer Protection Act is not an issue in this case. We cannot decide cases not before us. Further, Chief Justice Callow's contrasting suggestion that our holding today renders the Consumer Protection Act unconstitutional shows again that this court is unable to speculate on cases not presented and which have not been adequately briefed.

While the dissenting opinions make interesting reading, they do not alter the fact that we have never overruled James v. Robeck, supra. James, quite simply, describes damages determination as a constitutionally consigned jury function. As for other states faced with similar issues, all but one with constitutional provisions similar to ours have stricken damages limits as violative of the right to a jury.

VI

Respondents contend that the trial judge erred in the following ways: applying joint and several liability instead of apportionment of fault, allowing juror misconduct, permitting cumulative testimony, excluding a key witness, and refusing to grant motions for remittitur or a new trial. We find no merit in these arguments.

As for the issues of juror misconduct, cumulative testimony, witness exclusion and motions for remittitur, these matters are committed to the trial court's discretion. This court will not reverse trial court rulings in these areas unless we see a clear abuse of discretion. See, e.g., Gardner v. Malone, 60 Wn.2d 836, 376 P.2d 651, 379 P.2d 918 (1962) (juror misconduct); Braack v. Bailey, 32 Wn.2d 60, 62, 200 P.2d 525 (1948) (cumulative testimony); Maehren v. Seattle, 92 Wn.2d 480, 488, 599 P.2d 1255 (1979) (admission or refusal of testimony), cert. denied, 452 U.S. 938 (1981). A judge abuses his discretion when no reasonable judge would have reached the same conclusion. Byerly v. Madsen, 41 Wn. App. 495, 704 P.2d 1236, review denied, 104 Wn.2d 1021 (1985). With regard to remittitur, not only is this matter within the trial judge's discretion, but the judge must, under our state constitution, give great deference to the jury's finding of fact, including the determination of damages. See, e.g., Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wn.2d 831, 699 P.2d 1230 (1985). Because the trial judge in the present case did not come close to abusing his discretion, petitioners' arguments here are without merit.

Respondents point out that the trial judge instructed the jury, under RCW 4.22.070(3), to apply joint and several liability to the defendants. This statutory provision operates as an exception to the Legislature's restriction of joint and several liability in the 1986 tort reform act. RCW 4.22.070-(3) (a) states:

Nothing in this section affects any cause of action relating to hazardous wastes or substances or solid waste disposal sites.

The trial judge interpreted the exception to include causes of action relating to asbestos because the judge found — and respondents conceded — that asbestos is a "hazardous substance. "

Respondents argue that the trial judge read the term "substances" out of context. They contend that the statute, when read as a whole, applies only to problems relating to hazardous waste and environmental pollution. They further assert, through citations to floor debates in the Senate during the bill's passage, that the exception was intended to avoid interference with the Legislature's proposed "super-fund" toxic cleanup bill. In support of these assertions, they cite an early version of the exception:

The defendants shall be jointly and severally liable if the cause of action involves a violation of any state or local law relating to solid wastes, hazardous wastes or substances, air, water, or high or low level radioactive wastes or substances. If legislation is enacted in 1986 creating joint and several liability for causes of action relating to solid wastes or hazardous wastes or substances, then this subsection shall be null and void.

Senate Journal, 49th Legislature (1986), at 467. Respondents quote further remarks from the amendment's sponsor, Senator Talmadge, that the amendment was indeed intended to address environmental issues. Senate Journal, supra. In relation to their interpretation, respondents contend that the exception in RCW 4.22.070 was intended to apply to causes of action under RCW 70.105 (Hazardous Waste Management Act).

In interpreting a statute, this court looks first to the plain and ordinary meaning of the words used by the Legislature. State v. Theilken, 102 Wn.2d 271, 684 P.2d 709 (1984); Hewson Constr., Inc. v. Reintree Corp., 101 Wn.2d 819, 685 P.2d 1062 (1984). Regardless of respondents' arguments about context, the simple use of the word "or" in the statute at issue indicates that the exception operates to each of the nouns in the sentence. That includes "hazardous substances," wherever they may be found. If the Legislature intended the exception to be limited to environmental litigation, it would or should have stated so explicitly.

Respondents' reliance on legislative history only appears to show that the Legislature intended a broader application for RCW 4.22.070(3)(a). The remarkable differences between the early and final versions of the statute further indicate that the exception was not limited to environmental cases. In addition, the words "any cause of action" in section (3) (a) mean, in simple and plain terms, that the exception is not limited to any specific RCW section. Based on the foregoing analysis, then, the trial judge properly interpreted this statute.

The real issue here, however, is not a choice between joint and several liability or apportionment of fault, as posited by respondents. It is, rather, a choice between joint and several liability for the named defendants alone or joint and several liability for named defendants along with possible liability for unnamed defendants as well. RCW 4.22.070(1)(b) retains joint and several liability against named defendants in cases where the plaintiff is not at fault:

If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants total damages.

The special verdict form from the trial shows that the jury found the plaintiffs in this case not at fault. Clerk's Papers, at 393. In addition, defendants had alleged at trial that other, unnamed entities were also at fault. Because the exception in RCW 4.22.070(3) (a) applies, the defendants in this case are liable jointly and severally for the entire amount regardless of the possible relative fault between them and unnamed entities.

VII

For the reasons we have developed above, the limit on noneconomic damages in RCW 4.56.250 is unconstitutional. This damages limit, then, is no longer operative. Because the trial court specifically found that the jury's award of damages was reasonable and supported by the evidence, we reinstate that award.

Brachtenbach, Dore, Pearson, and Smith, JJ., concur.

1 RCW 4.56.250 states:

"(1) As used in this section, the following terms have the meanings indicated unless the context clearly requires otherwise.

"(a) 'Economic damages' means objectively verifiable monetary losses, including medical expenses, loss of earnings, burial costs, loss of use of property, cost of replacement or repair, cost of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities.

"(b) 'Noneconomic damages' means subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.

" (c) 'Bodily injury' means physical injury, sickness, or disease, including death.

"(d) 'Average annual wage' means the average annual wage in the state of Washington as determined under RCW 50.04.355.

“(2) In no action seeking damages for personal injury or death may a claimant recover a judgment for noneconomic damages exceeding an amount determined by multiplying 0.43 by the average annual wage and by the life expectancy of the person incurring noneconomic damages, as the life expectancy is determined by the life expectancy tables adopted by the insurance commissioner. For purposes of determining the maximum amount allowable for noneconomic damages, a claimant's life expectancy shall not be less than fifteen years. The limitation contained in this subsection applies to all claims for noneconomic damages made by a claimant who incurred bodily injury. Claims for loss of consortium, loss of society and companionship, destruction of the parent-child relationship, and all other derivative claims asserted by persons who did not sustain bodily injury are to be included within the limitation on claims for noneconomic damages arising from the same bodily injury.

" (3) If a case is tried to a jury, the jury shall not be informed of the limitation contained in subsection (2) of this section."

2 Article 1, section 20 of the Oregon Constitution states:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens. "

Under the Oregon court's analysis, no statute can survive merely by showing a rational relationship between the classification and the purpose; it must leave legal entry to a class open and must operate with consistently applied objective criteria. See State v. Clark, 291 Or. 231, 630 P.2d 810 (1981); State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981). The court inquires into whether the challenged state action affects a "privilege or immunity" — that is, "some advantage" to which a person "would be entitled but for a choice made by a government authority". Salem v. Bruner, 299 Or. 262, 269, 702 P.2d 70, 74 (1985). The next step is to determine whether the action or statute was performed under lawful authority. The court then considers whether the statute or action affects a true class (one with characteristics that set it apart regardless of the statute), or a pseudo-class (one created by the statute), or an individual. To determine whether the statute represents impermissible discrimination, the court has devised different tests for each of these classifications.

For an in-depth analysis of the Oregon court's method for construing its privileges and immunities clause, see Schuman, The Right to "Equal Privileges and Immunities": A State's Version of "Equal Protection", 13 Vt. L. Rev. 221 (1988). For a privileges and immunities analysis of noneconomic tort damage cap legislation, see Note, Challenging the Constitutionality of Noneconomic Damage Caps: Boyd v. Búlala and the Right to a Trial by Jury, 24 Willamette L. Rev. 821, 836-38 (1988).

3 The dissent of Dolliver, J., is correct in pointing out, at page 677, that Shea contains language setting a reasonable doubt standard in favor of the constitutionality of a statute. By citing Shea, we incorporate the burden of proof stated in that opinion. In the final analysis, the language quoted by the dissent is merely a different way of stating the rule we cite above. One need only to look at the many cases in which this principle is enunciated to see the different combinations of words used to express it. State v. Ide, 35 Wash. 576, 77 P. 961 (1904), which Shea cites for authority, puts it this way:

[I]t is settled by the highest authority that a legislative enactment is presumed to be constitutional and valid until the contrary clearly appears. In other words, the courts will presume that an act regularly passed by the legislative body of the government is a valid law, and will entertain no presumptions again [sic] its validity. And, when the constitutionality of an act of the legislature is drawn in question, the court will not declare it void unless its invalidity is so apparent as to leave no reasonable doubt upon the subject. . . .

35 Wash. at 581; see also Litchman v. Shannon, 90 Wash. 186, 189, 155 P. 783 (1916); Chas. Uhden, Inc. v. Greenough, 181 Wash. 412, 420-21, 43 P.2d 983, 98 A.L.R. 1181 (1935) ("an act of the legislature will be presumed to be valid unless there is no reasonable doubt as to its validity"); McDermott v. State, 197 Wash. 79, 83, 84 P.2d 372 (1938) ("Every reasonable presumption must be indulged in favor of the constitutionality of this statute, and the burden rests upon appellant to establish clearly its invalidity"); Spokane v. Coon, 3 Wn.2d 243, 246, 100 P.2d 36 (1940) ("every presumption is in favor of the constitutionality of a law or ordinance"). Brewer v. Copeland, 86 Wn.2d 58, 542 P.2d 445 (1975), describes the standard twice, each time with different words. At page 61 this court stated that the plaintiff "must overcome the presumption of constitutionality beyond a reasonable doubt"; at page 69, we put it another way: "if any state of facts can reasonably be conceived to uphold the legislation including the classification made therein, the legislation will be upheld."

4 Even if the federal constitution were to apply in this case, following the nonexclusive criteria set out in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), we would still base our decision on the Washington Constitution.

5 We note here that while the Legislature has the power to abolish a civil cause of action, Mountain Timber establishes that such a legislative act must have its own independent constitutional foundation.

6 If imposing a legislative limit on damages violates the jury's province, one may wonder whether the concept of trebling a jury's finding of damages, as in the Consumer Protection Act, does the same thing. Within the historical method of analysis used by this court, however, these two operations are different. A jury's role to determine damages in a common law action contemporaneous with the constitution's adoption is protected by article 1, section 21. A negligence action, including the later theories of recovery analogous to it, is such an action. The Consumer Protection Act, on the other hand, is a cause of action specifically created by the Legislature to fulfill a public policy. Part of that public policy is to allow treble damages where appropriate. But because the act is a legislatively created cause of action and was created well after 1889, under the historical analysis used by this court, it is outside of the strict purview of article 1, section 21.

7 Nowhere do we advocate a wholesale adoption of the Code of 1881. To make such a claim misconstrues the techniques of state constitutional interpretation. The legislative process of passing statutes differs markedly from that of drafting a constitution. The constitution's lasting and foundational nature must be respected when we undertake the task of interpreting it.

8 See Note, Federalism, Uniformity, and the State Constitution — State v. Gunwall, 62 Wash. L. Rev. 569 (1987).