concurring.
Introduction
Does a legislated limit on damages in actions for personal wrongs — which were triable to juries when Missouri’s constitution was adopted — violate the constitutional guarantee that the right to trial by jury “shall remain inviolate?”
I agree with the unanimous conclusion in the per curiam opinion that this case is governed by State ex rel. St. Louis-San *772Francisco Ry. Co. v. Buder, 515 S.W.2d 409 (Mo.1974), because, as to James and Mary Klotz, the 2005 statutory limit on non economic damages — enacted after James Klotz suffered his injury — is a law “retrospective in operation” in violation of article I, section 13 of the Missouri Constitution.
The jury found the hospital, the medical group and the individual physician liable for negligence in the care of James Klotz that caused sepsis (a serious infection spread through the bloodstream), organ failure and amputation of a limb. The jury’s award of $2,067,000 to James Klotz, included noneconomic damages — for such things as pain, suffering, disfigurement and loss of capacity to enjoy life1 — in the amount of $760,000. The jury determined that damages to Mary Klotz, his wife, totaled $513,000, which included $329,000 in noneconomic damages for loss of consortium.2 The jury assessed 33 percent of the fault to the hospital and 67 percent to the physicians’ group and the individual doctor. The trial court concluded that the limits on noneconomic damages in the pre-2005 version of section 538.210 applied to the hospital and, therefore, did not reduce the 33 percent of the verdict attributable to the hospital because the amount did not exceed the pre-2005 limits. As to the physician’s group and the individual doctor, however, the trial court determined that the new version of section 538.210 applied and, accordingly, reduced James Klotz’s noneconomic damages against the physician defendants from $509,200 to $234,500, and reduced Mary Klotz’s non-economic damages award of $220,430 against the physician defendants to $0.
Today’s decision covers this case and, perhaps, only this case. It is now nearly five years since the limit in section 538.210, RSMo Supp.2006, was enacted and this is the first case to reach this Court that challenges the 2005 law. Today’s decision applies only to cases in which the cause of action accrued before August 28, 2005, which were tried after August 28, 2005; and in which the verdict for noneconomic damages exceeded the new limit of $350,000 but was within the former limit of $579,000. There undoubtedly are few such eases, and, at this point, few, if any, remain that accrued before August 28, 2005.3
*773There is a fundamental flaw in the legislated limits on jury verdicts in section 538.210, which is well known but which is not addressed in today’s opinion. And so, I take the liberty to write individually to explain the issue that the court one day will have to confront — that the limit on a jury’s determination of damages violates the constitutional guarantee in article I, section 22(a) that “the right of trial by jury as heretofore enjoyed shall remain inviolate.”
The constitutional problem inherent in this limit on a jury’s decision regarding damages should be identified at the earliest possible time so that the General Assembly may take appropriate steps, if it chooses, to bring its enactment within constitutional bounds or propose to the people that the constitution be changed.
The General Assembly enacted the limits on noneconomic damages in response to what it perceived as a serious problem in the tort and insurance liability system. The legislation attempts to address that problem — called a “crisis” by many — by essentially limiting the constitutional right to trial by jury. This it cannot do. The voters of this state are the only ones empowered to change the constitution.
I take the defendant doctors’ point, supported by various friend-of-the-Court briefs, that the legislature considered malpractice litigation to be a crisis, but it seems a rather slow-moving crisis, more a trickle than a flood. Perhaps the reduction in numbers of claims since 2005 results from deterring claims on behalf of the elderly, the disabled and those (mostly women) who do not work outside the home. Their damages typically would be more noneconomic than economic, given that the elderly, the disabled and those who do not work outside the home typically have little or no employment income. This, however, would be a point made by opponents of the legislation. Proponents of damages limits may be loathe to note the possible adverse effects on the elderly, the disabled and homemakers (an out-of-date word, perhaps, but the reader will get the point). Nonetheless, in a case where there is no way to avoid the issue, the Court will be required to respond by delineating the constitutional boundaries in legislatively dealing with the crisis. Today’s decision defers consideration of the issue until another verdict comes along in which the non-economic damages exceed the current $350,000 limit in section 538.210.
In enacting the new version of section 538.210, the General Assembly, unfortunately, may well have been guided by this Court’s decision in Adams By and Through Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992). Adams was a medical malpractice case in which the plaintiffs noneconomic damages were capped pursuant to the 1986 version of section 538.210. The Court reasoned that because section 538.210 statutorily prescribes the damage remedy, it is a matter of law for the court and not for the jury. Id. at 907.
The best that can be said for Adams is that it arose from the flawed view, then prevalent, that the right to trial by jury could be modified or abolished legislatively in particular cases. For instance, State ex rel. Tolbert v. Sweeney, 828 S.W.2d 929 (Mo.App.1992), decided earlier in the same year as Adams, held that there was no *774right to trial by jury in employment discrimination cases for damages under the human rights act because the legislation had not provided for a jury trial. In fact, an earlier version of the act had been vetoed by the governor because it explicitly had provided for a jury trial in such cases; a revised version — without a provision for jury trial — was signed into law. Id. at 931. After Tolbert there were no jury trials in state courts in employment discrimination cases for damages until after this Court unanimously held 11 years later in State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 85 (Mo. banc 2003), that there is a right to a jury trial in court actions for damages that cannot be legislated away.4
“The right to trial by jury,” this Court held in Diehl, “is a constitutional right, applies ‘regardless of any statutory provision,’ and is ‘beyond the reach of hostile legislation.’ ” Id. at 92 (citing Lee v. Conran, 213 Mo. 404, 111 S.W. 1151, 1153 (1908)).
The limit on juries under section 538.210 did not exist at common law or in statutes when the people of Missouri adopted their constitution in 1820 guaranteeing that the right to trial by jury as heretofore enjoyed shall remain inviolate.
The limit on noneconomic damages violates the right to trial by jury; it overrules the jury’s determination of a factual issue in a way that was unrecognized at common law when the constitutional right was adopted by the people in 1820. The constitutional status of the right to trial by jury can be changed only by the people voting affirmatively for such a change in their constitution. Mo. Const, art. XII.
Accordingly, Adams’ fundamental error is in concluding that statutory law can trump the constitutional right to jury trial. This Court should overrule Adams to restore the right to trial by jury to its traditional and vital place in our constitutional system.
The Right of Trial by Jury
Article I, section 22(a) of the Missouri Constitution is very simple; it is one of the guarantees in Missouri’s bill of rights. It says: “That the right of trial by jury as heretofore enjoyed shall remain inviolate; .... ”
This simple language provokes two questions:
1. What was the right of trial by jury as heretofore enjoyed? This phrase requires a review of what the right to trial by jury meant as of the time of the original Constitution of Missouri in 1820. The 1820 Constitution in art. XIII, sec. 8 provided: “That the right of trial by jury shall remain inviolate.” The Constitution of 1875 added the phrase “as heretofore enjoyed.” This language means that “[cjitizens of Missouri are entitled to a jury trial in all actions to which they would have been entitled to a jury when the Missouri Constitution was adopted.” Hammons v. Ehney, 924 S.W.2d 843, 848 (Mo. banc 1996) (citations omitted); Diehl, 95 S.W.3d at 85.5
*7752. Does the right to trial by jury— when the legislative limit is applied — remain inviolate? “Inviolate” means free from change or blemish, pure or unbroken. Webster’s Third New International Dictionary 1190 (1993). The phrase is stark and unequivocal in its demand that the right to trial by jury not be changed by judicial misuse or statutory infringement. This choice of words — “remain inviolate” — as this Court said in Diehl, “is a more emphatic statement of the right than the simply stated guarantee written some 30 years earlier as the 7th Amendment to the United States Constitution that’ ... the right of trial by jury shall be preserved ....”’ 95 S.W.3d at 84.
1. What was the right of trial by jury “as heretofore enjoyed”?
Missouri’s territorial laws that pre-dated statehood provided for jury trials in “all civil cases of the value of one hundred dollars ... if either of the parties require it.” Mo. Terr. Laws 58, sec. 13; Diehl, 95 S.W.3d at 85. Civil actions for damages resulting from personal wrongs have been tried by juries since 1820. Diehl, 95 5.W.3d at 92. This case falls into that category.
To determine what the right — as heretofore enjoyed — meant at common law, a review of the history of the right to jury trial, and particularly the manner in which jury verdicts were controlled or limited at common law, is required.6
Some early common law history
Juries prior to the 1400s often found verdicts based on their personal knowledge of the events of the case without hearing any evidence or witnesses.7 It also became commonplace for the parties to pay the expenses of a juror’s time in court, but fears arose as to the possibility of corrupt practices.8 Therefore, if a jury returned a verdict that was clearly false compared to its knowledge of the case, the jurors were punished through a writ of attaint:
All of the first jury shall be committed to the King’s prison, their goods shall be confiscated, their possessions seized into the King’s hands, their habitations and houses shall be pulled down, their woodland shall be felled, their meadows shall be plowed up and they themselves forever thenceforward be esteemed in the eye of the law infamous.9
By the late 1400s and 1500s, jurors heard evidence and the testimony of witnesses who were examined and cross-examined — and jurors began to render verdicts based on the evidence in court instead of their own knowledge.10 From this change, the writ of attaint to punish perjuring or dishonest jurors became obsolete. Some judgments were simply errors as to the evidence or a misunderstanding of the law. Hence there arose a need for a way to revise jury verdicts without punishment.
*776As for interfering with jury verdicts, it was rare for the courts to grant a new trial in the medieval times unless there was jury misconduct such as eating and drinking before returning their verdict.11 It also was rare for the courts to interfere with a jury verdict. In a 1615 case, it was declared that “ ‘jurors are chancellors’ in the matter of assessing damages, and entitled to use an uncontrolled discretion.”12 No one outside of the judicial system interfered.
The writ of attaint — issued by a judge in calling in another jury to test the verdict of the first jury and to punish jurors for incorrect or corrupt verdicts — fell into disuse after the decision in Bushell’s Case in 1670. In that case, William Penn (later a colonist of some note and founder of Pennsylvania) and William Meade were charged with unlawful assembly when Penn, a Quaker, challenged suppression of his religious teaching. Bushell was a member of the jury that found Penn not guilty — despite the judge’s instruction to find Penn guilty. The judge, who also was the Lord Mayor of London, ordered Bushell to pay a fíne; when he refused, the judge sent him to jail without “meat,” “drink” or “tobacco.” The judge said “we shall have a verdict, by the help of God, or you shall starve for it.”13 The judge’s decision was reversed on appeal.
Thereafter judges came to exercise control over juries by granting new trials in cases where the verdict was deemed inconsistent with the evidence.14
The common law precedents involving the judge’s power to grant a new trial, or order remittitur, are reviewed in Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). The analysis of the right to jury trial in federal courts under the 7th Amendment to the United States Constitution is the same historical analysis as that required for Missouri’s right to jury trial. Diehl, 95 S.W.3d at 84-85. The 7th Amendment, guaranteeing the right to jury trial in civil cases, says that “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 right to jury trial in federal courts is determined as to the incidents of jury trials in 1791, when the 7th Amendment was adopted, whereas the Missouri analysis uses 1820, the year the Missouri Constitution first was adopted. Diehl, 95 S.W.3d at 84-86. In Dimick, the Supreme Court could find little support at common law for a judge’s revision of a jury’s verdict as to damages. The Supreme Court, however, cited a decision by Justice Story in 1822, sitting as a circuit judge, granting a new trial unless the plaintiff remitted a portion of the damages. 293 U.S. at 482-483, 55 S.Ct. 296. This remittitur procedure has been followed since in the federal courts.
For present purposes, it suffices to note that there is a history of courts’ reluctance to grant even to judges — who have heard the same evidence as the jury — the power to order a new trial if the plaintiff does not accept a remittitur. The decisions upholding remittitur have the practical effect, in many cases, of avoiding the expense of a new trial — the kind of pragmatism that runs through the common law.
Missouri’s common law precedents
The right to trial by jury under the Missouri Constitution refers to the inci*777dents of jury trial — and the methods for controlling jury verdicts — at common law in 1820. Diehl, 95 S.W.3d at 85. The right to trial by jury “means that all the substantial incidents and consequences which pertained to the right of trial by jury, are beyond the reach of hostile legislation, and are preserved in their ancient substantial extent as existed at common law.” Lee, 111 S.W. at 1153. The function of the jury is fact-finding, which includes a determination of the amount of plaintiff’s damages.
This concept of the jury as the fact finder is rooted in Missouri’s history15 as is the idea that its verdict should not be disturbed. For instance, Steinberg v. Ge-bkardt involved a contract dispute, and the jury, finding for the plaintiff, set damages at $25. 41 Mo. 519, 519 (1867). On defendant’s appeal, this Court said, “It is not the province of this court to weigh the testimony for the purpose of ascertaining whether the jury found too much or too little.... [T]he court very properly told the jury that it was their province to find the amount of damage, if any had been sustained.... [T]he jury found for the plaintiff in the sum of twenty-five dollars, and we shall not disturb the verdict.” Id. at 519.
As remittitur came to be used, the judge would ascertain what amount less than the entire verdict was supported by the evidence and grant a new trial unless the prevailing plaintiff agreed to accept the remitted sum. Throughout Missouri’s judicial history, remittitur — though recognized from the earliest years of statehood — was not always in favor, and the decisions of this Court were not always consistent.16 Missouri cases in the early 1800s seemed to allow remittitur when the jury awarded damages that were greater than the amount requested.17 In the first year of statehood, this Court said in Carr & Co. v. Edwards that “if the jury find greater damages than the plaintiff has counted for, the Court render judgment according to such finding, it is error.” 1 Mo. 137, 137(1821). In Carr, the circuit court rendered judgment in an amount greater than asked, and the judgment was reversed without reference to the doctrine of remittitur. Id. at 137.
In the 1852 case of Hoyt v. Reed, the trial court determined that the high damage amount was the result of jury error in including an item for which it was understood that the defendant was not liable. *77816 Mo. 294, 294 (1852). Instead of ordering a new trial, the court remitted the damages. Id. On appeal, this Court stated that the denial of a new trial and remitti-tur was appropriate. Id. Three years later, the Court refused to remit damages in a slander case, finding that they were not excessive. Woodson v. Scott, 20 Mo. 272, 272 (1855). The Court stated, “[T]he juries of the country are the most appropriate judges of the amount of injury sustained; and to them is properly assigned the authority, and right to assess the consequent amount of damages therefor.” Id. at 273.
In the late 1800s, it appeared that courts were willing to apply the doctrine of remit-titur. Yet in the 1891 case of Gurley v. Mo. Pac., the Court said that use of remit-titur infringed on the right to trial by jury. 104 Mo. 211,16 S.W. 11 (1891). There, the Court refused to remit the damages in a personal injury case and reversed the judgment remanding the case. The Court based its refusal on its lack of power to assess damages. “When we set aside any part of the verdict, we destroy its integrity, and we have no right to set ourselves up as triers of facts, and render another and different verdict.” Id. at 17. The Court felt that if a jury verdict was clearly based on passion or prejudice, the proper remedy was to set it aside in its entirety, but that absent such passion or prejudice, it should be upheld. The Court also stated that the damages were excessive, seeming to imply that an excessive verdict results from the passions or prejudices of the jury. After Gurley, the courts again went back and forth through the end of the 19th century regarding whether the courts had the power to order remittitur.18 Over the next several decades, Missouri courts continued to apply the doctrine of remittitur.
But this Court, after reviewing the varying and uneven results produced by decades of remittitur rulings, ended (temporarily, at least) the practice of remittitur in Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99, 110 (Mo. banc 1985). The use of remittitur, the Court said, “constitutes an invasion of the jury’s function by the trial judge .... Its application in the appellate courts has been questioned since its inception in Missouri as an invasion of a party’s right to a trial by jury and an assumption of the power to weigh the evidence, a function reserved to the trier(s) of fact.” Id. (emphasis added).
As part of a series of “tort reform” statutes passed in 1986, section 537.068 said that a court “may enter a remittitur order if, after reviewing the evidence in support of the jury’s verdict, the court finds that the jury’s verdict is excessive because the amount of the verdict exceeds fair and reasonable compensation for plaintiffs injuries and damages.” After the statute was enacted, this Court in Rule 78.10 reinstated a remittitur procedure, modeled on common law practice, that premises remittitur on the court’s authority to grant a new trial, a practice consistent with the understanding at common law of the judge’s power to control verdicts at the time of the Missouri Constitution was adopted.19
*779Does the right to trial by jury — when the legislative limit is applied — remain inviolate?
From the foregoing historical summary, it is evident that the courts of this state, under the right to trial by jury “as heretofore enjoyed,” have recognized only one power to rein in an excessive verdict — the granting of a new trial or the granting of a remittitur that is premised on the court’s power to grant a new trial.
The right “as heretofore enjoyed” applies to actions at common law that were recognized as being subject to the right to jury trial in 1820, when the state’s original constitution was adopted. There have been instances in which limits on damages validly have been imposed on jury-tried cases when the cause of action was unknown at common law, such as wrongful death actions, Demattei v. Missouri-Kansas-Texas R. Co., 845 Mo. 1186, 139 S.W.2d 504, 505 (1940), or suits for damages against the state as sovereign, section 537.610, RSMo Supp.2009; see State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621, 623 (Mo. banc 1990). The General Assembly also has enacted remedies that displace damages actions altogether, in workers compensation proceedings, which substitute administrative proceedings for common law damages actions. This change was found unobjectionable in De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 648 (1931).
But in this case, the legislation, section 538.210, retains the common law action but displaces the finding of the juries with a legislated limitation on damages.
Remittitur by judges appears to have been well recognized at common law in 1820, though courts occasionally have held that remittitur violates the constitutional right of a trial by jury. There is, of course, a key difference between legislated damages limits and remittitur: With re-mittitur, the court offers a reduced jury award based on the evidence in a particular case, and the plaintiff is free to reject the offer and obtain a new jury trial. Damage caps, on the other hand, arbitrarily reduce the amount of a jury’s award in an entire class of cases without any refer*780ence to the evidence in the particular case.20
The true function of the jury is to determine the facts in a given case and reach a fair and just verdict including damages. It is a function that the people of this state in their constitution have retained for 12 of their number to perform without interference. Remittitur is a valid exercise of the judicial function, incident to the judge’s power to grant a new trial when a verdict is not supported by the evidence. It is done on an individual basis; a statutory limit on damages grants remittitur on a wholesale basis without regard to the evidence and without the option of a new jury trial. This legislated interference impairs the right of trial by jury “as heretofore enjoyed.” As such, the right to trial by jury does not “remain inviolate.” It is, in fact, violated.
Separation of powers?
Closely related to the question of the legislative usurpation of the jury’s function is the contention that section 538.210 invades the province of the courts and, therefore, also violates the constitutional doctrine of separation of powers.21 The *781question here is whether, by mandating noneconomic damage caps, the legislature is exercising powers rightfully belonging to the judiciary.
The Supreme Court of Illinois in two cases, Best v. Taylor Mach. Works, Inc., 179 I11.2d 367, 228 IU.Dec. 636, 689 N.E.2d 1057, 1078-81 (1997), and Lebron, a Minor v. Gottlieb Memorial Hospital, 237 I11.2d 217, 341 Ill.Dec. 381, 930 N.E.2d 895, 2010 WL 375190 (111.2010), has held that limitations on noneconomic damages violate the constitutional separation of powers.22 Such limitations on jury findings usurp the judicial power to reduce jury awards through remittitur and, therefore, function as an unconstitutional “legislative remitti-tur.” 23
The power that section 538.210 displaces is not so much the judicial function of remittitur. Rather, what section 538.210 displaces is the right that the people of Missouri have reserved to themselves, as jurors, to perform a vital role in the adjudication process. The right of trial by jury is a source of legitimacy for judicial judgments.
The interests of the judiciary in reserving to itself alone the power of remittitur seems relatively unimportant when compared to the people’s right to have then-cases judged by jurors and to serve as jurors — as that right is preserved “inviolate” by article I, section 22(a) of the Missouri Constitution.
Conclusion
In the Federalist Papers, No. 83, Alexander Hamilton said that the framers of the United States Constitution “if they agree in nothing else, concur at least in the value they set upon the trial by jury.” If there were any differences among them, some would regard the right as “a valuable safeguard to liberty,” while others would consider it “as the very palladium of free government.”24 The historical reticence of the courts to overturn verdicts except in the rare circumstances when a verdict does not comport with the evidence shows a deference to the 12 men and women who constitute this basic unit of democracy. That legislation even would be enacted to interfere with the jury’s decision was unheard of when the voters of Missouri adopted our state’s constitution.
When the people adopted the state constitution, they provided that the right to trial by jury “shall remain inviolate.” That is a remarkably clear statement of the importance of the right. If the jury’s role is to be abrogated or impaired, then the people ought to approve it by amending their constitution.
That said, I concur in the per curiam opinion.
RICHARD B. TEITELMAN, Judge, concurring in result.
I concur in the result of the principal opinion and with the rationale of Judge *782Wolffs concurring opinion. I write separately to emphasize that the caps on non-economic damages imposed by section 538.210 also violate the constitutional guarantee of equal protection under article I, section 2 of the Missouri Constitution.
Article I, section 2 of the Missouri Constitution guarantees equal protection of the law. Doe v. Phillips, 194 S.W.3d 833, 845 (Mo. banc 2006). The equal protection clause ensures that the state cannot treat similarly situated persons differently without adequate justification. “What constitutes adequate justification for treating groups differently depends on the nature of the distinction made.” Id. Economic and social legislation that is race and gender neutral and that does not infringe on a fundamental right is generally subject only to rational basis review. This deferential standard of review reflects the legislature’s wide latitude in crafting the statutes that regulate civic life. When, however, a statute infringes on a fundamental right, this Court must apply strict scrutiny to determine whether the statute is necessary to accomplish a compelling state interest. Id.
As Judge Wolffs opinion demonstrates, the right to a trial by jury is a fundamental constitutional guarantee in the Missouri Constitution’s bill of rights. The constitutional infirmity of the damage caps at issue in this case perhaps is illustrated more fully by analyzing the issue through the lens of equal protection. It is only then that the real implications of the caps are brought into focus.
The arbitrary caps imposed by section 538.210 will permit some measure of full compensation to those whose injuries are primarily economic. However, simple logic dictates that for those whose injuries are predominantly non-economic, the caps arbitrarily will cut off most of their proven, demonstrated damages. The caps operate on a perverse irony- — those with relatively minor injuries are permitted full recovery, while the most severely injured among us are denied. It is difficult to conceive of the necessity of a health care policy that expressly relies on discrimination against the small number of unfortunate individuals who suffer the most debilitating, painful, lifelong disabilities as a result of medical negligence.
There are two more subtle but no less pernicious side effects to caps in this case. In addition to disadvantaging the most seriously injured, the impacts of the caps will fall disproportionately on the young and economically disadvantaged. Young people, because they will have to live with their injuries and disabilities the longest, bear the brunt of section 538.210. Similarly, those with generally more limited economic prospects — the poverty-stricken, the physically and mentally disabled, single mothers, wounded veterans, the elderly, and others — are impacted disproportionately by the arbitrary limits on non-economic damages.
The practical corollary to the denial of full compensation to the young and economically disadvantaged is that, in a case of any complexity, their claims effectively will be extinguished. It takes money to prove medical negligence. Few lawyers will take a complex case of medical negligence on behalf of a poor person whose damages are disproportionately non-economic.
For the young and economically disadvantaged, section 538.210 will act not so much as a cap on damages as it will a padlock on the courthouse door. As compelling as the state’s interest in quality health care is, I cannot see the necessity of providing that care on the backs of the *783most disadvantaged victims of medical negligence.
. “Noneconomic damages” are defined in section 538.210, RSMo. Supp. 2008, as "damages arising from nonpecuniary harm including, without limitation, pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium but shall not include punitive damages.” "Economic damages” are defined as "damages arising from pecuniary harm including, without limitation, medical damages, and those damages arising from lost wages and lost earning capacity.”
. The spouse of a person who sustains injuries as a result of an actionable tort can file a claim for loss of consortium. Loss of consortium includes loss of affection, companionship and conjugal rights. Novak v. Kansas City Transit, Inc., 365 S.W.2d 539, 542 (Mo. 1963).
. The filings and number of jury trial verdicts in medical malpractice cases per fiscal year have diminished somewhat since the 2005 law took effect. In the current decade, more than 350,000 civil cases have been filed per year in the circuit courts, of which there are about 7,000 to 9,000 personal injury cases, except for the year when "tort reform” took effect, when the number of filings jumped to nearly 15,000. Reported in the statistical supplements to the judiciary’s annual reports, online at http://www.courts.mo.gov/page.jsp? id=35027 (accessed March 8, 2010).
Medical malpractice cases in circuit courts are a relatively small portion of all civil cases. Here are the numbers for medical malpractice cases, from the Office of State Courts Administrator:
• Fiscal 2004: 839 cases filed; 51 jury trial verdicts
• Fiscal 2005: 780 cases filed; 35 jury trial verdicts
*773• Fiscal 2006: 1,232 cases filed; 67 jury trial verdicts (includes August 28, 2005, effective date of the new law)
• Fiscal 2007: 502 cases filed; 58 jury trial verdicts
• Fiscal 2008: 516 cases filed; 49 jury trial verdicts
• Fiscal 2009: 604 cases filed; 37 jury trial verdicts
. Diehl overruled Tolbert, Pickett v. Emerson Electric Co., 830 S.W.2d 459 (Mo.App.1992), and Wentz v. Industrial Automation, 847 S.W.2d 877 (Mo.App.1993), denying the right of trial by jury in such cases. This court relied on Diehl in its decision preserving the right to trial by jury of actions at law in cases involving mixed claims at law and in equity. See State ex rel. Leonardi v. Sherry, 137 S.W.3d 462 (Mo. banc 2004).
. See also State ex rel. Peper v. Holtcamp, 235 Mo. 232, 138 S.W. 521 (1911) (The word "heretofore” means before and up to the time the constitution was adopted).
. Missouri’s common law is based on the common law of England as of 1607. Section 1.010, RSMo 2000. Joseph Fred Benson, Reception of the Common Law in Missouri: Section 1.010 as Interpreted by the Supreme Court of Missouri, 67 Mo. Law. Rev. 595 (2002).
. For a complete discussion of the history of jury trials, see Theodore F.T. Plucknett, A Concise History of the Common Law 106-138 (5th Ed. 1956).
. Plucknett at 131.
. Id. (citing Fortescue, De Laubidus, cap. xxvi).
. Plucknett at 132-133.
. Plucknett at 13 5.
. Id. (citing Hixt v. Goats, 1 Rolle, 257).
. Hans Fantel, William Penn: Apostle of Dissent 117-124 (1974). See also Godfrey Lehman, The Ordeal of Edward Bushell (1996).
. Plucknert at 135.
.In 1849, Missouri became one of the first states to adopt the Field Code reforming common law pleading and practice. See Lawrence M. Friedman, A History of American Law 340 (1973). Article XIII, section 6 of Missouri’s Field Code read, "[W]henever in an action for the recovery of money only, of specific real or personal property, there shall be an issue of fact, it must be tried by a jury, unless a jury trial is waived....” Ten years later, Missouri abolished the common law practice that permitted the judges to comment about the evidence to the jury and give opinions about the witnesses. Friedman at 347. See also The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 173 (1964). In 1879, the General Assembly enacted section 3600, RSMo, codifying article XIII, section 6 of the Field Code.
. See Samuel R. Gardner, Comment: Power of the Appellate Court of Missouri to Order Remittiturs in Unliquidated Damage Cases, 17 Mo. L.Rev. 340, 341 (1952) (”[I]n the early decisions around 1900, the court was very much in doubt as to the validity of such power in unliquidated damage actions.”) (citations omitted). Much of the review of Missouri’s case law regarding remittitur is taken from Gardner at 340-348.
. Id. See also Johnson v. Robertson, 1 Mo. 615, 615 (1826) (citing 2 Sellon’s Practice, 408) ("But then the law on [the judgment being a greater sum than the damage laid in the declaration] is, that this court will let the party remit the excess.”).
. See Burdict v. Mo. Pac. Ry., 123 Mo. 221, 27 S.W. 453, 458 (1894) (the Court did have the power to order remittitur in personal injury cases when damages are excessive); Rodney v. St. Louis S. W. Ry., 127 Mo. 676, 30 S.W. 150, 150 (1895) (the Court did not have the power to order remittitur in personal injury cases).
. Rule 78.10 provides:
(a) Any party requesting additur or remitti-tur shall file a motion for such relief within the time prescribed by Rule 78.04 for filing a motion for new trial.
(b) If the court sustains the motion in whole or in part, the court’s order shall afford each party opposing such relief the *779option to file an election of a new trial. The election of a new trial shall be filed within 30 days of the date of the order. The order sustaining the motion shall specify whether the new trial will be on damages or on all issues. Absent timely election, each party opposing such relief shall be deemed to have accepted the additur or remittitur. If additur or remittitur is accepted, the trial court shall promptly amend the judgment to conform to the ad-ditur or remittitur.
(c)A party that requested additur or remit-titur in the trial court and received less than the full relief requested may renew the request in the appellate court. If the appellate court grants additional relief, in whole or in part, it shall afford each party opposing such relief the option to file in the circuit court an election of a new trial. The election shall be filed within 30 days of the date of the mandate.
The decision granting additional relief shall specify whether the new trial will be on damages or on all issues.
Absent timely election, each party opposing such relief shall be deemed to have accepted the additur or remittitur. If additur or remittitur is accepted, the trial court shall promptly amend the judgment to conform to the additur or remittitur.
(d) Consent to any additur or remittitur that the trial court awards in lieu of a new trial does not preclude the consenting party from arguing on appeal that the amount of the verdict was proper or that the amount of the additur or remittitur is excessive. A party consenting to additur or remittitur may not initiate the appeal on that ground but may raise the issue on the other party’s appeal.
(e) Neither the trial court nor the appellate court may award additur or remittitur more than once on the ground that the damages are against the weight of the evidence.
. Particularly noteworthy is the decision yesterday of the Supreme Court of Georgia in Atlanta Oculoplastic Surgery, P.C. v. Nestle-hutt, 286 Ga. 731, 691 S.E.2d 218 (2010), which held that a legislated cap on noneco-nomic damages — enacted as part of that state’s "Tort Reform Act of 2005” — violates the Georgia constitution's guarantee that "[t]he right to trial by jury shall remain inviolate,” the same wording as the Missouri constitutional right to trial by jury. Because the constitutional wording is the same as Missouri's, the Georgia court uses the same historical analysis as would be appropriate here.
Other cases on the right to jury trial are collected in Annotation, Validity, Construction, and Application of State Statutory Provisions Limiting Amount of Recoveiy in Medical Malpractice Claims, 26 A.L.R.5th 245 (1995) and Cumulative Supplement. At least four other states have held that damage caps violate the state constitutional right to a trial by jury. Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 164 (Ala.1991) (statute setting $400,000 damage cap on noneconomic damages in medical malpractice cases violated the Alabama Constitution’s guarantee of a right to a trial by jury because "the statute caps the jury’s verdict automatically and absolutely, the jury’s function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status,” which violates the mandate of a trial by jury (emphasis in original)); Kansas Malpractice Victims Coal. v. Bell, 243 Kan. 333, 757 P.2d 251, 255 (1988) (a $250,000 damage cap for recovery of non-economic damages and requirement that award of future benefits must be used to purchase an annuity contract violates the Kansas constitutional right to a trial by jury); Lakin v. Senco Prods. Inc., 329 Or. 62, 987 P.2d 463, 474 (1999) (a $500,000 statutory damage cap interferes with jury's fact-finding function, and "[l]imiting the effect of a jury’s noneco-nomic damages verdict eviscerates 'Trial by Jury’ as it was understood in 1857 and, therefore, does not allow the common-law right of jury trial to remain ‘inviolate’ ”); Sofie v. Fi-breboard Corp., 112 Wash.2d 636, 771 P.2d 711, 719 (1989) (damage cap violated the constitutional right to trial by jury in Washington, stating: ”[T]he 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.” Id. at 719. Interestingly, the trial judge stated that although he found the jury’s damage award reasonable, he was required to reduce the award based on the damage cap. Id. at 713.). It is also important to note that, as the Washington court pointed out in Sofie, the language of the right to trial by jury provisions in states that have found the damage limit unconstitutional are nearly identical to Missouri’s provision that the right of a trial by jury shall remain inviolate. Id. at 723. See also Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice Damage Caps Constitutional? An Overview of State Litigation, 33 J.L. Med. & Ethics 515 (2005).
. Article II, section I of the Missouri Constitution provides:
The powers of government shall be divided into three distinct departments — the legislative, executive and judicial — each of which *781shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.
.This Court declined to address the issue in Adams because it was not preserved at trial. 832 S.W.2d at 908, n. 6.
. In Missouri jurisprudence, the term “legislative remittitur” has no real meaning — the legislated limits are not a remittitur at all because remittitur preserves the option to the plaintiff of having a new trial; the power of remittitur is premised on the longstanding necessity of the courts to grant new trials in cases in which the jury’s verdict is not supported by the evidence.
. The Federalist No. 83, at 456 (Scott ed. 1894) (Hamilton).