A longtime ELB reader writes:

I don’t know if anyone has written about this, but the PI plaintiffs’ bar might be secretly rooting for the Supreme Court to strike down section 5.  In California and in other states, plaintiffs have been attacking the state damage limitations based on arguments of changed circumstances.

For example, in California, plaintiffs have been (so far unsuccessfully) attacking the MICRA $250,000 cap on noneconomic damages with arguments that are echoed in the attack on the VRA.  This is an excerpt from Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1430-1431:

Essentially, Stinnett is contending the damages cap of section 3333.2 is no longer needed to reduce medical malpractice insurance costs. Our Supreme Court, however, rejected a similar argument in American Bank, namely that MICRA was unconstitutional because, since its enactment, it failed to reduce the overall costs of medical and hospital care. ( American Bank, supra, 36 Cal.3d at p. 373, 204 Cal.Rptr. 671, 683 P.2d 670.) As the court explained, “the constitutionality of a measure under the equal protection clause does not depend on a court’s assessment of the empirical success or failure of the measure’s provisions[,]” and the equal protection clause is satisfied by the court’s conclusion that, from the information before it, “the Legislature could rationally have decided that the enactment might serve its insurance cost reduction objective.” ( American Bank, supra, 36 Cal.3d at p. 374, 204 Cal.Rptr. 671, 683 P.2d 670.)

Stinnett’s contention appears more like an invitation for us to determine whether section 3333.2 has been rendered obsolete by subsequent events. While a change of conditions may justify the constitutional invalidation of a once valid law and can render the application of that law arbitrary and irrational, “the circumstances for such invalidation are quite narrow.” ( Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 973, 81 Cal.Rptr.2d 93, 968 P.2d 993.) “Nothing in the United States Supreme Court’s recent jurisprudence indicates that it envisions … an activist role for the courts,” such as engaging “in the task of evaluating whether a piece of complex legislation has sufficiently measured up to its objectives to preserve its constitutional validity.” ( Id. at p. 973, 81 Cal.Rptr.2d 93, 968 P.2d 993.) In our view, this is the type of evaluation Stinnett is asking us to engage in, i.e. whether the damages cap has fulfilled its purpose and is no longer required. Citing to the preamble of MICRA, Stinnett contends that in enacting MICRA the Legislature suggested its restrictions would remain valid only if the crisis that triggered its enactment existed for the “foreseeable future.” FN3 Even if that is the case, it is not the judiciary’s function to determine when constitutionally valid legislation has served its purpose.