Lyons v. Lederle Laboratories, A Div. of American Cyanamid Co.

• Decision Date: 17 May 1989
• Docket Number: No. 16216,16216
• Citation: 440 N.W.2d 769
• Court: South Dakota Supreme Court
• Parties: Jody LYONS, Plaintiff and Appellant, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID COMPANY, E.R. Squibb & Sons, Inc., and Jason Groves, Special Administrator of the Estate of Dr. Glenn Heidepriem, Sr., Deceased, Defendants and Appellees.

Page 769

440 N.W.2d 769

Jody LYONS, Plaintiff and Appellant, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID COMPANY, E.R. Squibb & Sons, Inc., and Jason Groves, Special Administrator of the Estate of Dr. Glenn Heidepriem, Sr. Deceased, Defendants and Appellees.

No. 16216.

Supreme Court of South Dakota.

Argued Nov. 28, 1988.

Decided May 17, 1989.

Jon J. LaFleur of LaFleur, LaFleur & LaFleur, Rapid City, for plaintiff and appellant.

Deming Smith of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee Lederle Laboratories.

Gene Lebrun of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendant and appellee E.R. Squibb & Sons, Inc.

William G. Porter of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for defendant and appellee Estate of Dr. Glenn Heidepriem, Sr.

MORGAN, Justice.

Jody Lyons (Lyons), appeals from a summary judgment entered against him in his medical malpractice action against the estate of Dr. Glenn Heidepriem (Heidepriem). We reverse and remand.

Lyons was born March 10, 1969. Heidepriem prescribed medications containing tetracycline eleven or twelve times between 1969 and March 21, 1979. Lyons alleges that the tetracycline discolored his teeth.

On July 23, 1987, Lyons, who was then eighteen years of age, filed a products liability action against Lederle Laboratories (Lederle) and E.R. Squibb & Sons, Inc. (Squibb), and a medical malpractice action against Heidepriem. Upon motion, the trial court granted summary judgment in favor of Heidepriem, holding that SDCL 15-2-22.1, titled "[m]edical malpractice limitation applicable to minors aged six or over" (statute), was the applicable statute of limitations and that it barred Lyons' malpractice action. Lyons sought and we granted leave to commence this intermediate appeal. Amicus curiae briefs have been filed on behalf of both parties.

Lyons raises two principal issues on appeal. He contends that the statute, enacted in 1977, does not apply retroactively to his cause of action and, alternatively, that the statute is unconstitutional.

The statute at issue, SDCL 15-2-22.1, enacted by the 1977 Legislature, became effective July 1, 1977, and provides as follows:

Notwithstanding any provision of Sec. 15-2-22, respecting minors as defined in Sec. 26-1-1, any action described in Sec. 15-2-14.1 shall be commenced only within three years after the alleged malpractice, error, mistake or failure to cure occurred, unless the minor is less than six years of age at the time of the alleged malpractice, error, mistake or failure to cure in which case the action shall then be commenced within two years after the sixth birthday of the minor.

Applying the "sixth birthday" alternative, Lyons' time for filing would have run out on March 10, 1977. Applying the "three years after the act" alternative, the time would have run on March 21, 1982, over five years prior to commencement of the suit.

Lyons seeks to apply the limitation scheme in existence prior to the 1977 enactments. Under SDCL 15-2-15 a two-year period was prescribed as the limitation subject however to SDCL 15-2-22, which provided for the tolling of the statute of limitations during disability, including, of course, minority. To this end, Lyons argues that SDCL 15-2-22.1 does not apply because it cannot be given retroactive effect. SDCL 2-14-21. ¹ We are not persuaded by his argument.

As early as 1928, this court has held that statutes effecting remedy or procedure as opposed to those affecting substantive rights are given retroactive effect. Brookings County v. Sayre, 53 S.D. 350, 220 N.W. 918 (1928). See also Simpson v. Tobin, 367 N.W.2d 757 (S.D.1985). Statutes of limitations are remedial, not substantive. Conner v. Fettkether, 294 N.W.2d 61 (Iowa 1980); Cioffi v. Guenther, 374 Mass. 1, 370 N.E.2d 1003 (1977); Cedars Corp. v. Swoboda, 210 Neb. 180, 313 N.W.2d 276 (1981); Gutter v. Seamandel, 103 Wis.2d 1, 308 N.W.2d 403 (1981).

SDCL 15-2-22.1 is a legislative expression of policy that prohibits plaintiff from raising claims, unless brought within the specified period of time, whether or not they are meritorious. It applies to all actions filed after its effective date, July 1, 1977. Therefore, since Lyons failed to bring the medical malpractice action before March 21, 1982, SDCL 15-2-22.1 barred the action. The trial court did not err in applying the statute retroactively.

In the alternative, Lyons alleges that the statute is unconstitutional as violative of his equal protection rights under the United States and the South Dakota Constitutions, as well as a violation of his South Dakota constitutional right to "open courts." Although the South Dakota Trial Lawyers Association, as amicus, would also argue the constitutional issue of special legislation, we deem it improper for amicus to seek to widen the issues raised by the parties. ²

We first examine Lyons' equal protection argument. In traditional equal protection analysis, on both the federal and state levels, there exists three tests to be applied depending upon the nature of the interest involved. Strict scrutiny applies only to fundamental rights or suspect classes. Budahl v. Gordon and David Associates, 287 N.W.2d 489 (S.D.1980). The intermediate or substantial relation test applies to legitimacy, State ex rel Wieber v. Hennings, 311 N.W.2d 41 (S.D.1981), and gender, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Lastly, the rational basis test applies to all other classes.

Lyons first argues that the statute must be subject to "intermediate, or fair and substantial relation" analysis because the statute's classification concerns age. In the alternative, he argues that the statute fails the "rational basis" analysis.

We hold that the rational basis test is most appropriate in this case involving an age classification. In City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975), this court enunciated the following two-prong test regarding equal protection when legitimacy, suspect classes and fundamental rights are not involved:

(1) [W]hether the statute does set up arbitrary classifications among various persons subject to it.

(2) [W]hether there is a rational relationship between the classification and some legitimate legislative purpose.

89 S.D. at 415, 233 N.W.2d at 333; see also Dorian v. Johnson, 297 N.W.2d 175, 177-78 (S.D.1980); Janish v. Murtha, 285 N.W.2d 708, 709 (S.D.1979).

Applying the first prong, we look to see if the statute applies equally to all people. Janish, supra. We perceive that it does not. Rather, it creates an arbitrary classification of minors who have medical malpractice claims as opposed to minors with any other kind of tort claim. Under SDCL 15-2-22, minors who have tort claims, other than medical malpractice, have until one year past their eighteenth birthday within which to pursue their claims.

However, if the claim is a medical malpractice action, SDCL 15-2-22.1 sets up a scheme restricting the statute of limitations to three years or to a period of two to eight years if the minor is under six years old. A minor with a medical malpractice claim at age five would have until age eight to bring the cause of action or be forever barred. A minor with any other kind of tort claim at age five would have until age nineteen to bring a cause of action.

This case is a classic example of the arbitrariness of the classification. On the same injury, Lyons commenced action in product liability against the manufacturer of the medicine and in medical malpractice against the physician who dispensed it. His suit against the physician is dismissed under the statute, while his claim against the manufacturer stands.

Having determined that the arbitrary classification exists, we then must inquire whether there is a rational relationship between the classification or classifications and some legitimate legislative purpose. The evidence in the record would indicate that the legislation was enacted in response to some perceived malpractice crisis. The purpose was to alleviate that crisis and insure continued health care to citizens of this state.

We fail to perceive any rational basis for assuming that medical malpractice claims will diminish simply by requiring that suits be instituted at an earlier date. We are persuaded by the reasoning of the Ohio Supreme Court in Schwan v. Riverside Methodist Hosp., 6 Ohio St.3d 300, 452 N.E.2d 1337 (1983), wherein that court struck down on equal protection grounds a similar statute which focused upon age ten instead of age six. That court stated:

We recognize that the [legislature] often must draw lines in legislation. Yet, it is the age of majority which establishes the only rational distinction.

Young people eagerly anticipate their legal 'adulthood.' At the age of majority, our society puts them on notice that they are assuming an array of rights and responsibilities which they never had before. Age ten, however, arrives with little fanfare. It is difficult to imagine that parents or guardians--much less the children themselves--would recognize that any change in status occurs on a child's tenth birthday.

We acknowledge, however, the importance of the purpose of [the statute] to alleviate the 'medical malpractice crisis' of the mid-1970's.... Therefore, in light of our conclusion that [the statute] creates an irrational classification which does not rationally further the purpose of [the legislation], we hold that [it] is unconstitutional on its face with respect to medical malpractice litigants who are minors. (Emphasis in original.)

Schwan, 452 N.E.2d at 1339.

We adopt this reasoning and hold that the classification contained in SDCL 15-2-22.1 is arbitrary and that it is not rationally related to the legitimate purpose to alleviate the medical malpractice crisis. Therefore, the statute violates equal protection provisions of both the United States and South Dakota Constitutions and must fail.

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