Audrey Guzman, Nicanor Guzman, Jessica Guzman, a minor, and Steven Guzman, a minor, by their Guardian ad Litem, Plaintiffs-Respondents, v. St. Francis Hospital, Inc., American Continental Insurance Company and Wisconsin Patients Compensation Fund, Defendants-Appellants, St. Francis Hospital, Inc., Defendant-Third-Party Plaintiff, James Sullivan, M.D., Physicians Insurance Company of Wisconsin, Richard Fitzpatrick, M.D., and Southeastern Emergency Medical Services, S.C., Third-Party Defendants-Appellants, XY & Z Insurance Company, Third-Party Defendant, 240 Wis. 2d 559

FINE, J. ¶ 1. Audrey Guzman was seriously injured by what she claims was the negligence of the health-care providers named in the caption. The trial court held in a non-final order that a cap imposed by the legislature on the recovery of noneconomic damages in medical malpractice actions within the scope of WlS. STAT. Ch. 655 was unconstitutional. The healthcare providers, their respective insurance carriers, and the Wisconsin Patients Compensation Fund appeal. We reverse. I. ¶ 2. The cap on the recovery of noneconomic damages in health-care-provider malpractice cases involves the application of several statutes.

WISCONSIN Stat. § 655.017 provides: The amount of noneconomic damages recoverable by a claimant or plaintiff under this

chapter for acts or omissions of a health care provider if the act or omission occurs on or after May 25,1995, and for acts or omissions of an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits under s. 893.55(4)(

d) and (f). The limitations referred to in § 655.017 are as follows — first Wis. Stat. § 893.55(4)(d): The limit on total noneconomic damages for each occurrence under par. (

b) on or after May 25, 1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments. Wisconsin Stat. § 893.55(4)(

f) provides: Notwithstanding the limits on noneconomic damages under this subsection, damages recoverable against health care providers and an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for wrongful death are subject to the limit under s. 895.04(4). If damages in excess of the limit under s. 895.04(4) are found, the court shall make any reduction required under s. 895.045 and shall award the lesser of the reduced amount or the limit under s. 895.04(4). Wisconsin Stat. § 895.045 is Wisconsin's comparative negligence statute. As material here, it provides:

(1) Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent.

The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed. Wisconsin Stat. § 893.55(4)(

c) requires an assessment of noneconomic damages by either the judge or the jury without regard to the cap, with the subsequently entered judgment conforming to the cap's limits: A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 and shall award as noneconomic damages the lesser of the reduced amount or the limit.

If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit. ¶ 3. The trial court held that the legislature could not constitutionally limit the amount of noneconomic damages that a person injured by a health-care provider covered by Wis. Stat. ch. 655 can recover.

It ruled that the cap violated both the right to a trial by jury recognized by the Wisconsin constitution, and the separation of powers between the judicial and legislative branches. II. ¶ 4. Whether a statute is constitutional is decided by an appellate court de novo. See Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 110, 613 N.W.2d 849, 857. Statutes are assumed to be constitutional unless shown not to be. We do not write on a clear slate: Statutes are presumptively constitutional.

The court indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute's constitutionality, we must resolve that doubt in favor of constitutionality. To overcome this strong presumption, the party challenging a statute's constitutionality must demonstrate that the statute is unconstitutional beyond a reasonable doubt. It is not sufficient for the challenging party merely to establish doubt about a statute's constitutionality, and it is not enough to establish that a statute probably is unconstitutional.

The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature. The duty of the court is only to determine if the legislation clearly and beyond doubt offends a provision of the state constitution that specifically circumscribes legislative action. Aicher, 2000 WI 98 at ¶ 18-20 (internal citations omitted). ¶ 5.

The legislature has made a policy determination that the efficient and effective provision of health care in Wisconsin requires not only a restructuring of medical-malpractice law in this state, see State ex rel. Strykowski v.

Wilkie, 81 Wis. 2d 491, 508-509, 261 N.W.2d 434, 442 (1978), but also that "[t]aming the costs of medical malpractice" by limiting the right of patients injured by medical malpractice to recover for their injuries "ensur[es] access to affordable health care" for all, and that this is a "legitimate legislative objeetive[ ]." Aicher, 2000 WI 98 at ¶ 78 (upholding statute of repose that barred right to file suit before injured patient aware of injury).

Although the Guzmans dispute that a health-care crisis justified these legislative responses, this assessment is for the legislature and not for us: "Whether the perception of a malpractice crisis was inflated or illusory makes little difference because the perceived crisis led the legislature to make a policy determination about the costs of health care." Id., 2000 WI 98 at ¶ 63; see also Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, ¶ 31, 236 Wis. 2d 316, 336, 613 N.W.2d 120, 131, ("medical malpractice actions are substantially distinct from other tort actions").

Additionally, counsel for the Guzmans candidly conceded at oral argument that noneconomic damages functioned essentially as a pool from which the attorney's fees of personal-injury plaintiffs could be paid, thus preserving — to a greater or lesser extent — the use of an award of economic damages to make that plaintiff whole.

Looked at in this light, permitting (and, here, limiting) an award of noneconomic damages represents a policy decision that personal-injury plaintiffs, unlike plaintiffs in, let's say, commercial disputes, are entitled to a modification of the American Rule, which generally makes each side in a lawsuit responsible for its own attorney's fees. See Wisconsin Retired Teachers Association, Inc V.

Employe [sic] Trust Funds Bd., 207 Wis. 2d 1, 36, 558 N.W.2d 83, 98 (1997) ("Generally, a court may require a losing litigant to reimburse the prevailing party's attorney fees only when expressly authorized by statute or contract."). In our view, the policy decision to permit this form of fee-shifting, and to limit the extent of such fee-shifting, is also within the ambit of legislative authority. ¶ 6. As noted, the trial court held that the cap was not constitutional for two reasons. First, the trial court ruled that the cap violated WlS. CONST, art.

I, § 5, which, as material here, provides: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy." Second, the trial court also held that the cap violated the separation between the legislative and judicial branches. Additionally, the Guzmans argue that: 1) the cap violates WlS. CONST, art.

I, § 9 ("Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conform-ably to the laws."); 2) the cap violates WlS. CONST, art. I, § 1, which guarantees to every person the equal protection of the laws, see Aicher, 2000 WI 98, ¶ 55 n.14 (Article I, § 1 of the Wisconsin Constitution and the Fourteenth Amendment, § 1 of the United States Constitution are given the "same

interpretation"); and 3) the cap violates substantive due process. We discuss these matters in turn. A. Jury trial right. ¶ 7.

The Guzmans argue that the legislature may not, in their words, "substitute its judgment for that of the jury as to the proper amount of damages owing to a victim of medical malpractice." (Capitalization omitted.) They contend that because medical-malpractice actions were part of the common law when the Wisconsin constitution was adopted in 1848, and that those actions encompassed the recovery of noneconomic damages, the legislature is powerless to trench a jury's right to award as much noneconomic damages as the jury might see fit.

Although neither the Guzmans nor the defendants have directed us to any authority one way or the other concerning the recovery of noneconomic damages in Wisconsin before 1848, the issue is not material because the constitution specifically empowers the legislature to modify the common law, and indeed, to discontinue common-law causes of action or remedies: "Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature." WlS. CONST, art.

XIV, § 13 (emphasis added). ¶ 8.

Article XIV, § 13 is a powerful delegation of authority to the legislature by the constitution, and recognizes, as does Aicher, that it is the legislature's function to establish the parameters of policy for Wisconsin, consistent with the changing needs of our society. See Aicher, 2000 WI 98, ¶¶ 21, 27, 46, 50, 51, 52, 53, 54, 62, 63, 68, 74 (legislature may, for reasons of public policy that are within its province, abolish a claim before the injured party is aware of his or her injury).

Once the legislature establishes the law, both courts and juries must follow it, unless, obviously, the law violates a specific provision of the constitution. See id., 2000 WI 98, ¶ 20 (legislation constitutional unless it "clearly and beyond doubt offends a provision of the state constitution that specifically circumscribes legislative action."); cf. State v. Bjerkaas, 163 Wis. 2d 949, 959-963, 472 N.W.2d 615, 619-620 (Ct. App. 1991) (jurors must follow the law; no right to an instruction on nullification in criminal case). ¶ 9. The Guzmans point to the "right to jury" clause, WlS. CONST, art.

I, § 5, as the specific provision they contend is violated by the cap on noneconomic damages. But this argument begs the question because all plaintiffs in malpractice actions under WlS. STAT. ch. 655 retain their "right to" a trial by a "jury" — a cap on noneconomic damages does not change this. The real question is whether the legislature can set the rules that the jury must follow, and limit the amount of noneconomic damages that can be entered on a jury verdict. This is where the Guzmans' argument falters — no provision of the Wisconsin constitution says that the legislature cannot.

Indeed, the legislature has frequently deprived juries in Wisconsin of the right to set the amount that an injured plaintiff will receive. The most obvious example is, of course, WlS. STAT. § 895.045(1), the comparative negligence statute quoted in full earlier, which prevents an injured party from recovering anything — both economic and noneconomic damages — if his or her negligence exceeds the negligence of the person sought to be held liable.

And this limitation on the amount of damages that an injured party can recover — irrespective of the amount of damages awarded by the jury — applies in medical-malpractice cases as well as other negligence actions. ¶ 10. Wisconsin has long recognized that "[i]t is the duty of the jury to find the facts and the duty and domain of the court to determine the legal rights of the parties after the return of the verdict." Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 482, 387 N.W.2d 751, 759, (1986). Moreover, WlS. CONST, art.

I, § 5, was patterned after the Seventh Amendment to the United States Constitution: The right to a jury trial in civil cases that is guaranteed by

Article I, § 5 of the Wisconsin Constitution is substantially similar to that right guaranteed by the Seventh Amendment to the United States Constitution ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."). The Seventh Amendment jury-trial right does not apply to the states. Nevertheless, we may be guided by the federal cases interpreting that provision. Markweise v.

Peck Foods Corp., 205 Wis. 2d 208, 225-226, 556 N.W.2d 326, 333 (Ct. App. 1996) (internal citations omitted). Contrary to the assumption of the trial court, the Guzmans, and the dissent, the Seventh Amendment was designed to set the boundaries between judge and jury — not between the legislature's power to make the law and the jury's right to find facts. See Baltimore & Carolina Line, Inc. v.

Redman 295 U.S. 654, 657 (1935) ("The aim of the amendment... is to preserve the substance of the common-law right of trial by jury,... and particularly to retain the common-law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are to be resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."); see also Edith Guild Henderson, The BACKGROUND of the Seventh Amendment, 80 Harv. L. Rev. 289, 291-299 (1966).

The trial court, the Guzmans, and the dissent infuse the inviolate right to a jury trial found in our constitution with a meaning that those who wrote the clause for the federal constitution and those who imported it into the Wisconsin constitution never intended. There is peril in using words or phrases with special historical meaning without comprehending that history. See State v. Unnamed Defendant, 150 Wis. 2d. 352, 358, 441 N.W.2d 696, 698 (1989), overruling State ex. rel. Unnamed Petitioners v.

Connors, 136 Wis. 2d 118, 401 N.W.2d 782 (1987) (misreading constitutional functions of the judiciary and of the district attorney). ¶ 11. The law under the Wisconsin Constitution has always been that the parameters of legal rights may properly be set by the legislature. Thus, as explained by McGowan v.

Story, 70 Wis. 2d 189, 197-199, 234 N.W.2d 325, 329-330 (1975), in the context of the comparative-negligence statute, which limits the ultimate recovery of a plaintiff who is con-tributorily negligent, the jury's "function in a negligence case is factfinding only," and the judge must apply the law as enacted by the legislature even though this may frustrate the jury's intent to award a certain sum as damages. Id., 70 Wis. 2d at 197-199, 234 N.W.2d at 329-330 ("not [jury's] role to usurp the legislative function"). The same rationale applies to the cap on noneconomic damages.

The Guzmans argue in their brief: The suggestion is that, as long as the statute does not interfere with the actual fact-finding process, the right to trial by jury is not violated. This is ludicrous. As [the trial court] correctly observed, for these argument to stand: Plaintiffs' guaranteed day in court would be merely going through the motions... The right to trial by jury would be rendered nothing more than a mirage if the jury's determinations, once made, could simply go unheeded by the legislature.

This contention ignores the fact that this "go unheeded" result happens every time a jury awards damages to an injured plaintiff but determines that he or she is more negligent than "the person against whom recovery is sought" under Wis. STAT. § 895.045(1). In such a case, the damages awarded by the jury, most likely with the expectation that the plaintiff will get a percentage of those damages, will vanish like a puff of steamy breath on a cold winter day.

See McGowen, 70 Wis. 2d at 197, 234 N.W.2d at 329 (jury may not be told of effect of answer to comparative-negligence question even though "some juries, misinformed or ignorant of the effect of their answers, will make findings which they believe will 'do justice,' but which do not in law have the result intended"). ¶ 12. Significantly, Aicher upheld the right of the legislature to deprive a person injured by medical-malpractice of any right of recovery if that person brings suit after expiration of the five-year statute of repose, WlS.

Stat. § 893.55(l)(b), even though he or she might not have discovered the injury until after the repose period had passed. There can be no more drastic deprivation of the right to have one's suit for medical-malpractice damages tried by a jury than what the trial court in Aicher characterized as closing the doors of the courtroom before the child in that case " 'even discovered she was injured.'" Id., 2000 WI at ¶ 13. Compared to that total denial, the cap on noneconomic damages here is de minimis. Of course, Aicher did not address whether the statute of repose violated WlS. CONST, art. I, § 5.

Nevertheless, applying Aicher's underlying rationale, the cap is not an infringement on the "right of trial by jury" declared by that

section to be "inviolate"; WlS. Stat. ch. 655 plaintiffs can still have health-care-provider liability decided by a jury, which will also assess the plaintiffs' damages. In essence, all the legislature has done is to "suspend" pursuant to the authority granted to it by WlS. CONST, art. XIV, § 13, a cause of action in medical-malpractice actions under WlS. Stat. ch. 655 for noneconomic damages exceeding the statutory cap. This it has every right to do. B. Separation of powers. ¶ 13.

The concept of separation of powers recognizes the " 'division of governmental powers among the judicial, legislative, and executive branches.'" Barland v. Eau Claire County, 216 Wis. 2d 560, 572, 575 N.W.2d 691, 696 (1998) (quoted source omitted). The trial court held that the cap on noneconomic damages violates the separation of powers because the cap, in the trial court's view, usurps the judiciary's power to order a remittitur if, in a trial judge's assessment of the evidence, a jury's verdict is excessive. See Powers v. Allstate Ins.

Co., 10 Wis. 2d 78, 87-92, 102 N.W.2d 393, 398-400 (1960) (trial courts have power to order remit-titur). But the statute setting a cap on noneconomic damages does not interfere with this right; a trial court retains the discretion under Powers to order a remitti-tur. Thus, insofar as the cap is seen as a form of remittitur (a syllogism that we do not accept) it represents a sharing of powers between the branches, which has always been recognized in this state as an appropriate accommodation. See State v.

Holmes, 106 Wis. 2d 31, 43, 315 N.W.2d 703, 709 (1981) ("The doctrine of separation of powers does not demand a strict, complete, absolute, scientific division of functions between the three branches of government. The separation of powers doctrine states the principle of shared, rather than completely separated powers. The doctrine envisions a government of separated branches sharing certain powers.").

In any event, as Aicher teaches, we must give substantial deference to the legislature "to make the economic, social, and political decisions" within its province, 2000 WI 98 at ¶ 20, and this is especially true in the medical-malpractice area. See id., 2000 WI 98 at ¶ 63. The trial court ignored this command. ¶ 14. The Guzmans also contend that WlS. Stat. § 893.55(4)(c) "prohibits" a trial court "from advising the jury of the existence of the noneconomic damage cap," and argues that this violates "the judicial policy enunciated in Peot v. Ferraro," 83 Wis. 2d 727, 266 N.W.2d 586 (1978). We disagree. ¶ 15.

As we have seen, the statute establishes the following procedure in cases tried to a jury: If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit. WlS. Stat. § 893.55(4)(c).

The steps are thus: 1) the jury makes a finding of what noneconomic damages are warranted by the facts of the case; 2) if these damages exceed the cap, the jury apportions the comparative negligence of the parties under WlS. STAT. § 895.045; 3) the trial court then awards "as noneconomic damages the lesser of the reduced amount or the limit." There are several ways for a trial court to comply with this procedure — some of these ways would advise the jury of the cap; others would not. Formulation of special-verdict questions are relegated to the trial court's discretion. See State v.

Herriges, 155 Wis. 2d 297, 300, 455 N.W.2d 635, 637 (Ct. App. 1990). Under established Wisconsin law, however, the jury should ordinarily not be told the effect of its verdict. See McGowan v. Story, 70 Wis. 2d at 197-199, 234 N.W.2d at 329-330; Kobelinski v. Milwaukee and Suburban Transp. Corp., 56 Wis. 2d 504, 520, 202 N.W.2d 415, 425 (1972). Peot is not to the contrary. ¶ 16. Peot concerned application of the statutory cap on the recovery for the loss of a child's society and companionship by parents suing someone responsible for the child's death. Peot, 83 Wis. 2d at 729, 266 N.W.2d at 587.

At trial, the defendant's lawyer urged the jury to award to the plaintiffs for the loss of the society and companionship of their son damages exceeding the cap. Id., 83 Wis. 2d at 740, 266 N.W.2d at 592. In light of this attempt to have the jury place substantial damages in an award subject to a cap, thereby reducing what the jury would be likely to award as damages for injury subject to a higher cap, Peot held that the jury should be told of the cap.

Id., 83 Wis. 2d at 746, 266 N.W.2d at 595 ("We believe that this potential for misleading the jury can be minimized by the trial court's instructing the jury that the legislature has imposed a limitation on the recovery of damages for loss of society and companionship and by the trial court's telling the jury of the specific dollar limitation prescribed."). ¶ 17.

There is no evidence in the record here that the defendants in this case would seek to have the jury load-up on noneconomic damages with the hope that this would bleed money from its award of economic damages so as to justify an instruction that would correct the type of false impression extant in Peot. Accordingly, and absent such an attempt, the trial court would be justified in not telling the jury that any award of noneconomic damages is limited to the statutory cap.

Thus, the legislature's provision that "the jury shall make a finding as to noneconomic damages without regard to the limit" set by the cap does not violate the separation of powers, especially because it merely replicates the general court-devised rule. C. Remedy for wrongs. ¶ 18.

Article I, § 9 of the Wisconsin Constitution provides: Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obligated to purchase it, completely and without denial, promptly and without delay, conformably to the laws. The Guzmans argue that the cap violates this provision. We disagree.

Section 9 "confers no legal rights." Aicher, 2000 WI 98 at ¶ 43. Rather, it preserves access to the courts for redress of rights as those rights may either be created by the legislature, or, of rights recognized by the common law, and not modified or suspended by it under the authority granted to it by WlS. CONST, art. XIV, § 13. See Aicher, 2000 WI 98 ¶¶ 43-54: "The right-to-remedy clause thus preserves the right 'to obtain justice on the basis of the law as it in fact exists.'" Id., 2000 WI 98 at ¶ 43 (quoted source omitted).

If a statute of repose, which can bar the courthouse doors to an injured patient before the patient's malpractice-caused injury has even manifested itself, is not a deprivation of the remedy-for-wrongs clause despite the fact that "[cjourts may shudder at the unfairness," see id., 2000 WI98 at ¶ 45, then, certainly, putting a ceiling or cap on the recovery of noneconomic damages does not violate the clause. See State v. Cunningham, 144 Wis. 2d 272, 283, 423 N.W.2d 862, 866 (1988) (a fortiori analysis of different fact scenarios is an appropriate way to test constitutionality). D. Equal protection. ¶ 19.

The Guzmans' contention that the cap on noneconomic damages violates their right to equal protection has several layers — they argue that the cap does all of the following: 1) "creates two classes of tort litigation plaintiffs" (those injured by medical malpractice of a ch. 655 health-care provider; those injured by the negligence of a health-care provider that is not medical malpractice); 2) creates two classes of victims (those whose total noneconomic damages are less than the cap; those whose damages exceed the cap); 3) creates two classes of medical-malpractice tortfeasors (giving to those who have caused the most noneconomic damage a greater measure of partial immunity from having to fully compensate their victims); 4) penalizes those injured by medical-malpractice negligence who will have to share noneconomic damages with a spouse or minor children because the cap applies to each occurrence rather than to each plaintiff.

In asking us to assess these imbricated arguments, the Guzmans contend that the cap must pass so-called "strict scrutiny" review, and that, therefore, the presumption of constitutionality does not apply. See State v. McKenzie, 151 Wis. 2d 775, 779, 446 N.W.2d 77, 78 (Ct. App. 1989) (statute passes constitutional muster against an equal-protection challenge if "a rational basis exists to support the classification, unless the statute impinges on a fundamental right or creates a classification based on a suspect criterion"). Here, too, the slate is not clear. ¶ 20.

Access to the courts to pursue redress for injuries is not the type of "fundamental right" to which the strict-scrutiny test applies. Aicher, 2000 WI 98 at ¶ 56. Additionally, classifications created by the ch. 655 scheme are not based on suspect criteria. See Czapinski, 2000 WI 80 at ¶ 28; Strykowski, 81 Wis. 2d at 507, 261 N.W.2d at 442; see also Miller v. Kretz, 191 Wis. 2d 573, 579, 531 N.W.2d 93, 96 (Ct. App. 1995) (medical malpractice claim "does not involve a fundamental right or suspect criterion"). Thus, the rational-basis test applies.

See id., 2000 WI 98 at ¶ 56; Miller, 191 Wis. 2d at 579, 531 N.W.2d at 96. "Under the rational basis test, a statute is unconstitutional if the legislature applied an irrational or arbitrary classification when it enacted the provision." Aicher, 2000 WI 98 at ¶ 57. Moreover, "[i]t is not our role to determine the wisdom or rationale underpinning a particular legislative pronouncement." Id., 2000 WI 98 at ¶ 57. We "must sustain a statute unless we find that "it is 'patently arbitrary' and bears no rational relationship to a legitimate government interest."" Ibid. ¶ 21.

Although the rational-basis test implicates an analysis of five factors, see id., 2000 WI 98 at ¶ 58, the Guzmans do not address any of the five factors. Rather, they rest on their assertion (flawed, as noted above) that a strict-scrutiny test applies, contending that the legislature missed the boat in believing that the cap served a legitimate governmental interest. But, as we have seen, the legislature has broad berth in deciding matters of public policy, and that doctrine also applies when a statute is challenged on equal-protection grounds.

See id., 200 WI 98 at ¶ 57 ("It is not our role to determine the wisdom or rationale underpinning a particular legislative pronouncement."). The Guzmans' silence on the rational-basis test is a concession that the cap passes that test. See Reiman Assocs. v. R/A Advertising, 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981); see also Czapinski, 2000 WI 80 at ¶ 9, n.8 (issue not argued will not be addressed). E. Substantive Due Process. ¶ 22. Finally, the Guzmans argue that what they call the "arbitrary" cap violates their right to substantive due process. As recently noted in Dowhower v.

West Bend Mut. Ins. Co., 2000 WI 73 ¶ 13, 236 Wis. 2d 113, 120, 613 N.W.2d 557, 560-561, the due-process clauses in both the federal and Wisconsin constitutions guarantee " 'more than fair process,'" and have " 'a substantive sphere as well, "barring certain government actions regardless of the fairness of the procedures used to implement them."'" (quoted sources omitted). The Guzmans claim that "substantive due process" required the legislature to give injured

chapter 655 plaintiffs a "quid pro quo" in return for taking away the right to recover more than $350,000 (or the cap as adjusted as required by the statute) in noneconomic damages. We disagree. ¶ 23. Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), held that retroactive application of a cap on noneconomic damages with respect to a medical-malpractice claim that accrued before the cap's effective date violated substantive due process. Id., 192 Wis. 2d at 201, 531 N.W.2d at 88-89.

"In Wisconsin, a cause of action is a vested property right only if it has accrued." Aicher, 2000 WI 98 at ¶ 82; see also Martin, 192 Wis. 2d at 206, 531 N.W.2d at 91 ("recovery, when set by a statute is fixed on the date of injury").

Martin applied a heightened standard of review because the statute modified a right that had vested when the Martins' claims accrued, see Martin, 192 Wis. 2d at 201, 531 N.W.2d at 88-89, (heightened scrutiny appropriate when vested right affected), and concluded that the retroactive application of the cap took from the Martins their then-existing "substantive right to unlimited damages." Martin, 192 Wis. 2d at 206, 531 N.W.2d at 91 (footnote omitted). But cf. Neiman v. American National Property & Cas.

Co., 2000 WI 83, ¶¶ 9, 22-23, 236 Wis. 2d 411, 419, 425, 613 N.W.2d 160, 163, 166 ("rational basis test is applied when the court reviews the constitutionality of retroactive economic legislation") (retroactive application of increase in wrongful-death damages unconstitutional because increase "unfairly overturns settled expectations" without concomitant "public purpose" that "outweighs the private interests it overturns"). ¶ 24. The Guzmans' claim at issue here accrued after the cap was enacted.

Thus, unlike the situation in Martin, the cap did not modify any "substantive right to unlimited damages." See Martin, 192 Wis. 2d at 206, 531 N.W.2d at 91 (footnote omitted). Accordingly, a heightened-scrutiny standard of review is not applicable. Rather, the applicable rule is that a statute "does not violate substantive due process if it bears a rational relationship to the underlying legislative purpose." Szarzynski v. YMCA, Camp Minikani, 184 Wis. 2d 875, 889, 517 N.W.2d 135, 140 (1994). The cap does not deprive the Guzmans of substantive due process. ¶ 25.

As we have seen, the legislature has determined that the efficient and effective provision of health care in Wisconsin requires not only a restructuring of medical-malpractice law in this state, see State ex rel. Strykowski, 81 Wis. 2d at 508, 261 N.W.2d at 442, but also significant limits on the time within which claims must be filed, Aicher.

As noted earlier, there is a rational relationship between the prospective application of the cap on the recovery of noneconomic damages (affecting all plaintiffs from the effective date of the cap forward) and the legislature's goal of preserving health-care services in Wisconsin. Reduced payouts to injured plaintiffs that will result from the prospective application of the cap contrasts with the minimal reductions that would have flown from retroactive application (affecting the few plaintiffs whose claim arose before the cap's effective date). See Martin, 192 Wis. 2d at 203-205, 531 N.W.2d at 89-90.

Thus, the prospective application of a cap on the recovery of noneconomic damages carries with it a far greater savings to insurers and the Fund than did the situation in Martin, with, as determined by the legislature, concomitant benefits to the provision of health care in Wisconsin. Moreover, contrary to the Guzmans' contention, the legislature did not have to give to those affected by the cap a quid pro quo. See State ex rel. Strykowski, 81 Wis. 2d at 519-520, 261 N.W.2d at 447-448 (legislative quid pro quo not required for limits on recovery to pass due-process muster).

Given the deference that we owe to the legislative judgment in this area, we conclude that the Guzmans' substantive due-process rights have not been impaired. By the Court. — Order reversed. Amicus Curia briefs have been filed by: Association of Trial Lawyers of America and The Wisconsin Academy of Trial Lawyers and Hannan. Wisconsin Stat. § 895.04(4) is the limitation imposed by the legislature on wrongful-death actions involving the recovery for loss of society and companionship of a spouse, parent, or child.

It provides: Judgment for damages for pecuniary injury from wrongful death may be awarded to any person entitled to bring a wrongful death action. Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death. This formulation of the deference given to the legislature reflected by the phrase "proof beyond a reasonable doubt" is old.

See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129,140-152 (1893); Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 270 (1827) (Washington, J.) ("It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt.

This has always been the language of this Court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench. I am perfectly satisfied that it is entertained by those of them from whom it is the misfortune of the majority of the Court to differ on the present occasion, and that they feel no reasonable doubt of the correctness of the conclusion to which their best judgment has conducted them."); cf. Adkins v.

Children's Hosp. of the District of Columbia, 261 U.S. 525, 544 (1923) ("This court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of

an act of Congress until overcome beyond rational doubt. But, if by clear and indubitable demonstration a statute be opposed to the Constitution, we have no choice but to say so.") overruled in part by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Nevertheless, the language carries with it unfortunate echoes of an evidentiary burden of proof, most common in criminal cases, even though whether a statute is constitutional is an issue of law, not fact.

The "ultimate degree of certainty, or firmness of conviction, in a conclusion resolving a constitutional challenge does not result from the evidence or 'proof,' presented. It results from the force, or persuasiveness, of legal argument." United Air Lines, Inc. v. City and County of Denver, 973 P.2d 647, 658 (Col. Ct. App. 1998) (Briggs, J. concurring).

Even as an evidentiary standard, different judges have different views as to what is required for proof to be "beyond a reasonable doubt." For example, a survey of federal trial judges in the Eastern District of New York discovered that their estimates of. what, in a probabilistic sense, was required to satisfy the "beyond a reasonable doubt standard" "ranged from 76 to 90 percent, with 85 percent the modal response." See United States v. Shonubi, 895 F. Supp. 460, 471 (E.D.N.Y. 1995) (survey reported in United States v. Fatico, 458 F.

Supp. 388, 410 (E.D.N.Y. 1978), affd on other grounds, 603 F.2d 1053 (2d Cir. 1979)), sentence vacated on other grounds, 103 F.3d 1085 (2d Cir. 1997). Indeed, Fatico reports on another survey of judges where almost one-third of those responding "put 'beyond a reasonable doubt' at 100%." Fatico, 458 F. Supp. at 410. Moreover, any standard, irrespective of how high, can be applied erroneously. Cf. State ex rel. Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 143, 401 N.W.2d 782, 792 (1987) ("Because [WlS.

STAT. § 968.02(3)], without question, authorizes the complete usurpation or substitution of an important executive function by the judiciary, the statute is unconstitutional beyond a reasonable doubt."); State v. Unnamed Defendant, 150 Wis. 2d 352, 358, 441 N.W.2d 696, 698 (1989) (Connors wrong; WlS. Stat. § 968.02(3) constitutional). The United States Supreme Court has apparently abandoned the "beyond a reasonable doubt" terminology in favor of a less evidentiary-sounding test — one that also recognizes the deference due to the legislature. See Walters v.

National Ass'n. of Radiation Survivors, 473 U.S. 305, 319 (1985) ("Judging the constitutionality of

an Act of Congress is properly considered ' "the gravest and most delicate duty that this Court is called upon to perform,'" and we begin our analysis here with no less deference than we customarily must pay to the duly enacted and carefully considered decision of a coequal and representative branch of our Government.") (internal citations deleted). Indeed, this language is quite similar to the recognition in Aicher v.

Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 110-111, 613 N.W.2d 849, 857, "that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature," and that a statute is constitutional unless it "clearly and beyond doubt offends a provision of the state constitution that specifically circumscribes legislative action." Id., 2000 WI 98 at ¶ 20. In any event, we apply the test as enunciated, most recently, by Aicher. Both the Guzmans and the defendants refer us to many decisions by courts from other jurisdictions.

Generally speaking, decisions from other jurisdictions can be helpful to an analysis where there is no controlling Wisconsin precedent. See United Parcel Service Co. v. Wisconsin Department of Revenue, 204 Wis. 2d 63, 76-77, 553 N.W.2d 861, 866-867 (Ct. App. 1996). That is not the situation here; Wisconsin precedent not only illuminates our analysis, it controls it. Ibid. Moreover, circumstances in other states vary — various influences affect their courts. See, e.g., Sherman Joyce & Victor Schwartz, Why No Tort Reform?

Follow the Money, The Wall Street Journal A26 (September 21, 2000) (trial-lawyer and business groups seek to influence court decisions by making large campaign contributions to judicial races); MARY Alice Robbins, Texas Chief Justice and Senator Call for Summit on Judicial Election PROBLEMS http://biz.yahoo.com/law/000919/70734-4.html (September 19, 2000) (reprinting

article from Texas Lawyer) (many judicial races are "fueled by special-interest dollars"). The Guzmans point out that a court-imposed rule permitting remittitur does not violate Wis. CONST, art. I, § 5 ("right of trial by jury shall remain inviolate") "because that power on the part of the court was a part of the trial by jury which the Constitution declared shall remain inviolate," see Campbell v. Sutliff, 193 Wis. 370, 378, 214 N.W. 374, 377 (1927) overruled in part, Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 92, 102 N.W.2d 393, 400 (1960).

This case, however, deals not with the power of a trial court to order a remittitur but with that of the legislature to determine that a limit on what a WlS. Stat. ch. 655 plaintiff can recover as noneconomic damages is warranted by social conditions. As we have seen, the constitution specifically grants to the legislature the power to modify or suspend entirely the common law that was in force in Wisconsin prior to the adoption of the constitution in 1848. The five factors are:

(1) All classification[s] must be based upon substantial distinctions which make one class really different from another.

(2) The classification adopted must be germane to the purpose of the law.

(3) The classification must not be based upon existing circumstances only. [It must not be so constituted as to preclude addition to the numbers included within a class],

(4) To whatever class a law may apply, it must apply equally to each member thereof.

(5) That the characteristics of each class should he so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation. Aicher, 2000 WI 98 at ¶ 58 (quoted sources omitted; brackets by Aicher). The Guzmans do not address any of these criteria; accordingly, neither do we. See Barakat v. Department of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 399 (Ct. App. 1995) (appellate court need not consider amorphous and insufficiently developed arguments).