On Feb. 9, 2009, a lower court found Georgia's caps on non-economic damages in medical malpractice cases unconstitutional on three grounds:
(1) “[I]t invades the right to a jury trial” guaranteed by the Georgia Constitution “by usurping one of the fact-finding responsibilities of the jury;”
(2) The statute violates the Separation of Powers Doctrine by “encroach[ing] upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law;” and
(3) "[I]t violates the Equal Protection Clause of the Georgia Constitution by differentially and dramatically impacting those most seriously injured, low-income individuals."
Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus, Fulton County State Court, Civil Action File No. 2007EV002223-J (Feb. 9, 2009).
In 2004, the Michigan Supreme Court found tort reform provisions applicable to auto insurance constitution. It said:
"Damage caps are constitutional in causes of action springing out of the common law because the Legislature has the power under our Constitution to abolish or modify nonvested, common-law rights and remedies." The went on to say that "economic legislation, such as the measure we deal with today, has consistently been held to be an issue for the political process, not the courts. * * * It is into this mainstream that we again steer our economic regulation jurisprudence."
Phillips v. Mirac, Inc., 470 Mich 415 (2004). Still, only four Justices signed the majority opinion, and one of those Justices is no longer on the bench.