Brannigan v. Usitalo

• Decision Date: 13 March 1991
• Docket Number: No. 90-377,90-377
• Citation: 587 A.2d 1232,134 N.H. 50
• Parties: , 59 USLW 2647 Rory J. BRANNIGAN v. Howard R. USITALO and another.
• Court: New Hampshire Supreme Court

Page 1232

587 A.2d 1232

134 N.H. 50, 59 USLW 2647

Rory J. BRANNIGAN v. Howard R. USITALO and another.

No. 90-377.

Supreme Court of New Hampshire.

March 13, 1991.

Hale and Dorr, Manchester and Boston, Mass. (Joan A. Lukey on brief and orally and Richard V. Wiebusch, on brief), for plaintiff.

Orr and Reno P.A., Concord (Bradford W. Kuster on defendants' joint brief and orally for all defendants and Lisa Snow Wade, on defendants' joint brief), for defendants Thomas J. Ferraro, Dennis J. Card, and Concord Urology P.A.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Marc R. Scheer, on defendants' joint brief), for defendant Howard R. Usitalo.

Sulloway Hollis & Soden, Concord (Robert J. Lanney, on defendants' joint brief), for defendant Concord Hosp., Inc.

McLane, Graf, Raulerson & Middleton P.A., Manchester (Bruce W. Felmly & a., on brief), by brief for the New Hampshire Trial Lawyers Ass'n, as amicus curiae.

Sulloway Hollis & Soden, Concord (Martin L. Gross and Tracy D. Hill, on brief), by brief for New Hampshire Coalition for Affordable & Available Ins. Protection, as amicus curiae.

JOHNSON, Justice.

On interlocutory transfer without ruling from the Superior Court (Manias, J.), pursuant to Supreme Court Rule 9, the plaintiff, Rory Brannigan, challenges the constitutionality of RSA 508:4-d (Supp.1990) , which limits damages recoverable for non-economic loss in a personal injury action to $875,000. The superior court approved for transfer, and we accepted, the following questions:

"(1) Does the statute violate the Plaintiff's equal protection rights as guaranteed by Part I, Article 12 of the New Hampshire Constitution?

(2) Does the statute violate the Plaintiff's right to due process of the law as guaranteed by Part I, Article 14 of the New Hampshire Constitution?

(3) Does the statute violate Part I, Article 20 of the New Hampshire Constitution which guarantees the Plaintiff an opportunity to have the measure and extent of his damages determined and awarded by jury verdict?"

We conclude that RSA 508:4-d (Supp.1990) violates the equal protection provisions of the State Constitution; we therefore do not address questions numbered (2) and (3).

Brannigan brings this case as a result of alleged improper medical treatment rendered to him by the defendants during June and July of 1987. He filed a petition for declaratory judgment and damages on November 6, 1989, alleging that he suffered extreme physical and emotional injuries as a result of the defendants' negligence, gross negligence, and willful and wanton conduct. Moreover, he asked that RSA 508:4-d (Supp.1990) be declared unconstitutional. A trial has not yet been held on the issue of the defendants' culpability, and we are in no position to predict a jury's verdict in this case. However, we acknowledge the possibility that, given the extraordinary character of Brannigan's alleged injuries, a jury finding for Brannigan might award him non-economic damages in excess of the $875,000 statutory cap. Because resolution of this issue will undoubtedly have a substantial effect on the parties' evaluation of this case for purposes of settlement, we determined to exercise our discretion to accept this interlocutory transfer.

Disposition of this interlocutory transfer requires us to revisit Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980), in which we held a $250,000 cap on non-economic damages in medical malpractice cases violative of the New Hampshire Constitution's equal protection guarantees. Id. at 941-43, 424 A.2d at 836-38. Brannigan argues that Carson is dispositive of this case. The defendants, on the other hand, argue that this case is distinguishable from Carson because (1) the cap here is three and one-half times as high as the cap in Carson, and (2) the Carson statute applied only to medical malpractice claimants, whereas RSA 508:4-d (Supp.1990) applies to all personal injury claimants. The New Hampshire Coalition for Affordable & Available Insurance Protection (the Coalition), writing as amicus curiae in support of upholding the constitutionality of RSA 508:4-d (Supp.1990), argues in its brief that "Carson 's legal antecedents are questionable and its scholarship unsound," and apparently urges us to overrule that decision. We agree with Brannigan that Carson is compelling authority in this case.

We are persuaded that the doctrine of judicial deference to precedent, stare decisis, controls our decision in this case. This doctrine "is essential if case-by-case judicial decision-making is to be reconciled with the principle of the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results." Thornburgh v. American College of Obstetricians, 476 U.S. 747, 786-87, 106 S.Ct. 2169, 2192-93, 90 L.Ed.2d 779 (1986) (White, J., dissenting). It "is a doctrine that demands respect in a society governed by the rule of law." Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 420, 103 S.Ct. 2481, 2487, 76 L.Ed.2d 687 (1983). Although not binding on a constitutional question, the doctrine of stare decisis is compelling when the earlier case: (1) was joined by a strong majority of the court; (2) has been "repeatedly and consistently ... accepted and applied" by the court that decided it; and (3) was "considered with special care." Id. at 420 n. 1, 103 S.Ct. at 2487 n. 1.

Carson was a unanimous decision and has been repeatedly and consistently accepted and applied by this court. See, e.g., City of Dover v. Imperial Cas. & Indemn. Co., 133 N.H. 109, 116, 575 A.2d 1280, 1284 (1990); Stewart v. Farrel, 131 N.H. 458, 462, 554 A.2d 1286, 1288 (1989); Hodgdon v. Weeks Mem. Hosp., 128 N.H. 366, 368-69, 515 A.2d 1199, 1200-01 (1986); Coffey v. Bresnahan, 127 N.H. 687, 693, 506 A.2d 310, 314 (1986); Opinion of the Justices, 126 N.H. 554, 559, 493 A.2d 1182, 1186 (1985); State v. Brosseau, 124 N.H. 184, 197, 470 A.2d 869, 877 (1983) (Douglas and Batchelder, JJ., concurring specially); Heath v. Sears, Roebuck & Co., 123 N.H. 512, 524-27, 464 A.2d 288, 294-95 (1983); Henderson Clay Prod's, Inc. v. Edgar Wood & Assoc's, Inc., 122 N.H. 800, 801, 451 A.2d 174, 175 (1982); Arsenault v. Abbott Furniture Corp., 122 N.H. 521, 522, 446 A.2d 1174, 1175 (1982). Moreover, courts from other jurisdictions have cited Carson with approval. See, e.g., Trujillo v. City of Albuquerque, 110 N.M. 621, 798 P.2d 571, 576-78 (1990) (classification of tort victims held violative of State equal protection under middle-tier scrutiny); Duren v. Suburban Community Hospital, 482 N.E.2d 1358, 1363 (Ohio Com.Pl.1985) (holding general damages cap violative of equal protection under minimum scrutiny); Lucas v. United States, 757 S.W.2d 687, 692 (Tex.1988) (cap on non-economic damages held violative of State "open courts" provisions, quoting Carson ); Condemarin v. University Hospital, 775 P.2d 348, 354 (Utah 1989) (favoring middle-tier scrutiny of legislation impinging on right to recover for negligently caused injuries).

Carson, spanning twenty-two pages of the New Hampshire Reports, was "considered with special care." It was decided after considering the oral and written arguments of nine law firms and one individual appearing pro se, and the legal analyses of Carson were considered and performed carefully. We will review the substance of the opinion in depth, in light of the Coalition's assertion that "Carson 's legal antecedents are questionable and its scholarship unsound."

The plaintiffs in Carson presented several challenges to RSA chapter 507-C (Supp.1979), a "tort reform" package intended in part to stabilize insurance rates and improve the availability of adequate liability insurance. Carson, 120 N.H. at 930-31, 941, 424 A.2d at 829-30, 836. Noting that the legislation impinged upon the plaintiffs' right to be indemnified for personal injuries, we held that, "[a]lthough the right to recover for personal injuries is not a 'fundamental right,' it is nevertheless an important substantive right." Carson, 120 N.H. at 931-32, 424 A.2d at 830. This statement of principle is the heart of Carson. It was undeniably a case of first impression for New Hampshire; however, we cannot find fault with it. The principle had been adopted in other jurisdictions, see Briscoe Co. v. Rutgers, 130 N.J.Super. 493, 500, 327 A.2d 687, 690 (1974); Hunter v. North Mason School Dist., 85 Wash.2d 810, 814, 539 P.2d 845, 848 (1975).

Having concluded in Carson that the right to recover for personal injuries is an important substantive right, we decided that "the rights involved [t]herein [were] sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test." Carson, 120 N.H. at 932, 424 A.2d at 830. Again, we can find no error in that holding.

In Carson, we articulated the standard to be applied when a statute created classifications interfering with a person's right to recover; the classifications " 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation,' in order to satisfy State equal protection guarantees." Carson, 120 N.H. at 932, 424 A.2d at 831 (citations omitted) (emphasis in the original). This standard was specifically designed to perform a "more rigorous judicial scrutiny."

The defendants and the Coalition assert that the cases cited in Carson in support of this "middle-tier" standard in fact used the "fair and substantial relation" language while performing minimum scrutiny of statutory classifications. The defendants suggest that the "new" standard articulated in Carson was actually the old minimum scrutiny rational relation test, and that therefore we should apply only minimum scrutiny in our determination of RSA 508:4-d's constitutionality. The Coalition, on the...