Edmonds v. Murphy

ALPERT, Judge. The “cap” on damages in personal injury cases 1 has been the subject of much controversy and debate within and without the legal profession. One recent law review article even suggests that we “blast the cap” that limits recovery of noneconomic damages in personal injury actions. 2 As shall be seen, we choose not to follow that suggestion. While the centerpiece of our decision in this case is the constitutionality of the cap, there also are other important issues that we must address.

We begin with a brief summary of the incident that precipitated this action and an overview of the case’s procedural history. We will add other factual details as they become necessary for our discussion of the issues. ¹³⁹ Shortly after noon on a clear December day in 1987, Richard Edmonds was driving north on Interstate 83 in Baltimore County in a tractor trailer owned by his employer, Port East Transfer Company (Port East). The road surface was dry and visibility was good. Suddenly, the truck’s left front tire exploded, causing Edmonds to lose control of the vehicle.

The truck, which had been in the center lane, crossed over the left lane northbound, the grass median, and the three southbound lanes before colliding with an embankment on the southbound side of the highway. Sarah Murphy was driving in one of the southbound lanes when her car collided with Edmonds’s truck. Ms. Murphy suffered serious physical injuries. Sarah Murphy and her husband, Clark Murphy, Jr. (appellees), filed suit against Edmonds and Port East (appellants) in the Circuit Court for Baltimore County alleging gross negligence and negligence, and seeking compensatory and punitive damages.

A jury trial was conducted in the Circuit Court for Baltimore County (Judge Joseph F. Murphy, Jr., presiding) in August 1989. At the trial, the Murphys presented evidence that, inter alia: (1) Edmonds was late for a delivery in Harrisburg; (2) the tire blew out because it had been improperly repaired; (3) before the accident, the tire had two visible holes; and (4) Edmonds dove to the floor of the truck because he feared for his life. The jury returned a verdict awarding compensatory damages against both appellants in the total amount of $797,165.31, of which $510,000 were awarded for pain and suffering. The jury also awarded punitive damages of $3,000 against Edmonds and punitive damages of $1,000,000 against Port East.

Appellants filed a motion requesting that the trial court apply § 11-108(b) to the noneconomic damages awarded to the Murphys, as well as a motion for remittitur or, in the alternative, for a new trial, pursuant to Md. Rule 2-533. Judge Murphy denied both motions. He refused to apply the cap because he concluded that it violated equal protec ¹⁴⁰ tion provisions. 3 Judgment was entered on the jury’s verdict on September 19, 1989. Appellants filed this appeal two days later and assert that: I. The trial court erred in holding that the cap statute was unconstitutional.

II

The trial court erred in holding that the award for loss of homemaker services was not includable within the cap.

III

The plaintiffs failed to present evidence sufficient to justify an award of compensatory damages against either defendant.

IV

The plaintiffs failed to present evidence sufficient to justify an award of punitive damages against either defendant. V. The lower court erred in failing to instruct the jury on the doctrine of sudden emergency.

VI

The lower court erred in failing to instruct the jury regarding the plaintiffs’ burden to establish notice of the defect.

VII

The trial court erred in denying the defendants’ motion for new trial or in the alternative remittitur on the issue of punitive damages. I. THE CAP The cap statute, Md.Cts. & Jud.Proc.Code Ann. § ll-108(b), requires that a trial judge in a personal injury action reduce any jury verdict for noneconomic damages that exceeds $350,000. 4 Noneconomic damages are defined ¹⁴¹ as pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury, but does not include punitive damages. Id. at § ll-108(a). In the instant case, Judge Murphy ruled that the cap was unconstitutional under an equal protection analysis, and therefore refused to reduce the jury’s $510,-000 award for pain and suffering to $350,000.

In so ruling, Judge Murphy chose not to address other constitutional attacks that appellees mounted on the cap. Nevertheless, we shall address them. A. Presumption of Constitutionality At the outset of our discussion of the cap’s constitutionality, we note that “statutes are generally presumed to be constitutional, ... they should not be declared otherwise unless the repugnancy is clear, and ... courts should avoid declaring a statute invalid if there is some less drastic way of deciding the case.” Miller v. Maloney Concrete Co., 63 Md.App. 38, 46-47 , 491 A.2d 1218 (1985). As the court in Sun Oil Co. v. Goldstein, 453 F.Supp. 787, 791 (D.Md.1978) noted, “[T]he presumption of constitutionality attaches to the enactment of every statute.

The burden is on plaintiff to overcome this presumption.” Thus, appellees in the case before us were required to overcome a strong presumption that the cap was constitutional. ¹⁴² B. Right to Jury Trial On the subject of the right to a jury trial, we note that “[a]s of yet, the Seventh Amendment per se has not been applied to proceedings in state courts. Thus, we need only examine the statute’s constitutional muster under the analogous state constitutional provision.” Potomac Electric Power Co. v. Smith, 79 Md.App. 591 , 626 n. 20, 558 A.2d 768 cert. denied, 317 Md. 393 , 564 A.2d 407 (1989) (citations omitted). 5 The Maryland right to jury trial provision is Article 23 of the Declaration of Rights, which states in pertinent part that: The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five hundred dollars, shall be inviolably preserved. Appellees contend that the cap, requiring noneconomic damages to be stricken if they exceed $350,000, “interferes with [Ms. Murphy’s] fundamental right to have the issue fully determined by a judgment of her peers under Article 23.” In support of their argument, the Murphys cite Chauffers, Teamsters and Helpers, Local 391 v. Terry, — U.S. -, 110 S.Ct. 1339 , 108 L.Ed.2d 519 (1990), in which the Supreme Court stated that: Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. Id. at —, 110 S.Ct. at 1344-45 , 108 L.Ed.2d at 528 (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501 , 79 S.Ct. 948, 952 , 3 L.Ed.2d 988 (1959)).

We addressed the constitutionality of § ll-108(b) under Article 23 last year in Potomac Electric, supra. In that case, the personal representative of the estate of an adoles ¹⁴³ cent killed when she came into contact with the power company’s high voltage line brought a wrongful death action against the power company pursuant to Maryland’s wrongful death statute, Md.Cts. & Jud.Proc.Code Ann. §§ 3-901 to 904. We noted that wrongful death beneficiaries had only been permitted to recover for noneconomic damages under the statute since 1969. We held that § ll-108(b) did not violate Article 23 as it pertained to wrongful death actions, saying: The General Assembly would be well within its authority to abolish wrongful death actions if it chose to do so.

Certainly, it would be well within its authority to repeal the 1969 statute permitting recovery for noneconomic loss in wrongful death actions. Within its powers to create a cause of action or abolish a statutory cause of action is the power to modify such statutory actions. Limitation of the jury’s determination of damages in a statutorily-created cause of action is a proper modification of the remedy available in such actions and does not violate Article 23 of Maryland’s Declaration of Rights. Potomac Electric, 79 Md. at 628, 558 A.2d 768 .

We specifically declined to decide, however, whether the cap violates Article 23 when applied to common law actions for personal injuries such as the one before us now. In Franklin v. Mazda Motor Corp., 704 F.Supp. 1325 (D.Md.1989), U.S. District Court Judge Paul Niemeyer concluded that the cap did not violate the seventh amendment or Article 23, opining that [A] legislature adopting a prospective rule of law that limits all claims for pain and suffering in all cases is not acting as a fact finder in a legal controversy. It is acting permissibly within its legislative powers that entitle it to create and repeal causes of action. The right of jury trials in cases at law is not impacted.

Juries always find facts on a matrix of laws given to them by the legislature and by precedent, and it can hardly be argued that limitations imposed by law are a usurpation of the jury-function ____ ¹⁴⁴ ... [W]hen a legislative body, without regard to facts of a particular case, dispute or incident, but rather as a matter of policy and rule determines for all citizens in all incidents that may occur thereafter that recovery will be limited, the function is legislative, completely analogous to the adoption or repeal of causes of action and remedies therefor. Juries function as parts of the dispute resolution apparatus between parties; a legislature functions to make rules in advance of disputes to be applied to the disputes. The Court here can discern no blurring of the lines separating these functions in this case where Maryland adopted a prospective law limiting awards for pain and suffering. The power of the legislature to define, augment, or even abolish complete causes of action must necessarily include the power to define by statute what damages may be recovered by a litigant with a particular cause of action____ Id. at 1331 (emphasis in original).

The Supreme Court of Virginia recently upheld a $750,000 cap on all damages arising out of medical malpractice actions against a number of constitutional challenges, including the right to a jury trial under the Virginia Constitution, in Etheridge v. Medical Center Hospitals, 237 Va. 87 , 376 S.E.2d 525 (1989). 6 According to the Etheridge court, Without question, the jury’s factfinding function extends to the assessment of damages. Once the jury has ascertained the facts and assessed the damages, however, the constitutional mandate is satisfied. Thereafter, it is the duty of the court to apply the law to the facts. The limitation on medical malpractice recoveries contained in [the cap] does nothing more than establish the outer limits of a remedy provided by the General Assembly.

A remedy is a matter of law, not a matter of fact. A trial court applies the remedy’s limitation only after the ¹⁴⁵ jury has fulfilled its fact-finding function. Thus, [the cap] does not infringe upon the right to a jury trial because the section does not apply until after a jury has completed its assigned function in the judicial process. Id. 376 S.E.2d at 529 (emphasis in original; citations omitted).

The Fourth Circuit also found the Virginia cap analyzed in Etheridge constitutional under the seventh amendment. Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir.1989). A number of other courts have also upheld caps against right to jury trial challenges. See Davis v. Omitowoju, 883 F.2d 1155 (3rd Cir.1989) (Virgin Islands cap of $250,000 on nonmedical damages in medical malpractice actions); Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374 , 404 N.E.2d 585 (1989) ($500,000 cap on all damages in medical malpractice actions); Samsel v. Wheeler Transport Svcs., 244 Kan. 726 , 771 P.2d 71 (1989) ($250,000 cap on pain and suffering damages in any action except medical malpractice suits did not violate right to trial by jury under state constitution).

Some courts, however, have held that their state’s cap did violate the right to a jury trial. See, e.g., Smith v. Department of Ins., 507 So.2d 1080 (Fla.1987) ($450,000 cap on noneconomic damages in tort actions does not provide injured person with constitutional benefit of jury trial); Wright v. Central DuPage Hosp. Assoc., 63 Ill.2d 313 , 347 N.E.2d 736 (1976) ($500,000 cap on recovery in medical malpractice actions violates right to jury trial under state constitution); Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333 , 757 P.2d 251 (1988) (Kansas caps in medical malpractice actions of $1,000,000 for total recovery and $250,000 for noneconomic damages violate right to jury trial under state constitution); Sofie v. Fibreboard Corp., 112 Wash.2d 636 , 771 P.2d 711 (1989) (en banc), modified, 780 P.2d 260 (1989) (statute limiting, according to formula, noneconomic damages recoverable in personal injury or wrongful death actions violated right to jury trial under state constitution). ¹⁴⁶ The logic and reasoning of Franklin and Etheridge is compelling. Thus, we hold that § ll-108(b) does not violate the right to a jury trial guaranteed by Article 23.

C. Article 19 and Due Process Article 19 of the Maryland Declaration of Rights provides: That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land. The Association of Trial Lawyers of America (ATLA) and the Maryland Trial Lawyers Association (MTLA) 7 argue, as amicus curiae, that the $350,000 cap violates Article 19 in that it prevents seriously injured plaintiffs from fully redressing their injuries, without offering a viable quid pro quo. ATLA raised a similar argument in Potomac Electric, supra. We noted in that case that “Article 19 provides ‘the same due process of law required by the fourteenth amendment.’ ” Id. 79 Md.App. at 629 , 558 A.2d 768 .

We went on to hold there that § ll-108(b) does not violate Article 19 as applied to wrongful death beneficiaries. Id. at 630, 558 A.2d 768 . Our holding was strongly influenced by the fact that wrongful death beneficiaries were not entitled to recover any noneconomic damages at all when Article 19 was adopted in the mid-19th century. Because wrongful death beneficiaries today, even under the $350,000 cap, are entitled to a greater remedy than the wrongful death statute provided at the time Article 19 was adopted, we held that there was no Article 19 violation.

Id. at 630 , 558 A.2d 768 (citing Hill v. Fitzgerald, 304 Md. 689, 704-05 , 501 A.2d 27 (1985)). As with the right to jury trial, we did not address ¹⁴⁷ the right to a full remedy as it pertained to common law tort actions. Judge Niemeyer did just that in Franklin v. Mazda Motor Corp., supra, and found that § ll-108(b) does not violate Article 19. 8 He pointed out that “a statutory limitation on recovery is a classic economic regulation and ... must be upheld if it is reasonably related to a valid legislative purpose.” 704 F.Supp. at 1337 (citing Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 83 , 98 S.Ct. 2620, 2636 , 57 L.Ed.2d 595 (1977)). Continuing his due process analysis, Judge Niemeyer said, The cap certainly survives plaintiff’s challenge under a reasonable basis analysis.

Reducing uncertainty in damages awards and increasing the availability of insurance through reduced costs in Maryland surely are valid legislative goals. And the method chosen, that is by imposing an economic limitation on damages not otherwise measurable economically, is reasonably related to these goals. Franklin, 704 F.Supp. at 1337 . The Supreme Court of Virginia in Etheridge, supra, and the Fourth Circuit in Boyd, supra, reasoned in a fashion somewhat similar to Judge Niemeyer’s in upholding the Virginia cap on recovery in medical malpractice actions that we discussed in Part B. The Etheridge court said, The purpose of [the cap] — to maintain adequate health care services in this Commonwealth — bears a reasonable relation to the legislative cap — ensuring that health care providers can obtain affordable medical malpractice insurance.

We hold, therefore, that substantive due process has not been violated. 376 S.E.2d at 531 . In holding that the Virginia cap did not violate the fourteenth amendment’s guarantees of due process and equal protection, the Fourth Circuit said in Boyd , ¹⁴⁸ [W]e agree with the conclusion of the Supreme Court of Virginia [in Etheridge ] that the cap on liability bears a reasonable relation to a valid legislative purpose — the maintenance of adequate health care services in the Commonwealth of Virginia. 877 F.2d at 1197 . The majority of courts that have addressed caps under either a fourteenth amendment due process analysis or an analysis under státe constitutional provisions similar to Article 19 have upheld the caps. See Davis v. Omitowoju, 883 F.2d 1155 (3rd Cir.1989) (Virgin Islands cap); 9 Lucas v. United States, 807 F.2d 414 (5th Cir.1986) (Texas cap on nonmedical damages in medical malpractice actions did not violate due process clause of fourteenth amendment); 10 Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374 , 404 N.E.2d 585 (1980); Samsel v. Wheeler Transport Svcs., 244 Kan. 726 , 771 P.2d 71 (1989) (cap did not violate right to justice without delay guaranteed by state constitution); Sibley v. Board of Supervisors, 462 So.2d 149 , modified on reh’g, 477 So.2d 1094 (La. 1985) ($500,000 cap on recovery in medical malpractice actions did not violate due process under fourteenth amendment or right of access to courts guaranteed by state constitution).

Contra, Smith v. Department of Ins., 507 So.2d 1080 (Fla. 1987) ($450,000 cap on noneconomic damages in all tort actions violates plaintiffs’ right of access to courts under state constitution); Lucas v. United States, 757 S.W.2d 687 (Tex.1988) (see footnote 6, supra). We agree with the sound reasoning of the majority of courts that have analyzed caps under due process analy ¹⁴⁹ ses or under constitutional provisions similar to Article 19 and found no constitutional violation. Accordingly, we hold that § ll-108(b) violates neither Article 19 nor the due process clause of the fourteenth amendment. D. Separation of Powers ATLA also mentions in passing that § ll-108(b) violates the separation of powers doctrine in Article 8 of the Maryland Declaration of Rights. 11 That article states: That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.

According to ATLA, the cap violates Article 8 in that it (and through the cap, presumably, the Legislature) interferes with the jury’s function to determine the true amount of damages. We disagree. As Judge Niemeyer said in concluding that the cap does not violate Article 8, The power of the legislature to abolish the common law necessarily includes the power to set reasonable limits on recoverable damages in causes of action the legislature chooses to recognize. The Court therefore agrees with [the defendant] that if the legislature can, without violating separation of powers principles, establish statutes of limitations, establish statutes of repose, create presumptions, create new causes of action and abolish old ones, then it also can limit noneconomic damages without violating the separations of powers doctrine____ Franklin, 704 F.Supp. at 1336 .

The Supreme Court of Virginia in Etheridge, supra, held that that state’s cap did not violate the Virginia Constitution’s separation of powers ¹⁵⁰ provision, which is very similar to Article 8. 12 According to the Etheridge court, [W]hether the remedy prescribed in [the Virginia cap] is viewed as a modification of the common law or as establishing the jurisdiction of the courts in specific cases, clearly it was a proper exercise of legislative power. Indeed, were a court to ignore the legislatively-determined remedy and enter an award in excess of the permitted amount, the court would invade the province of the legislature____ 376 S.E.2d at 532 . ATLA cites us to no authority supporting its argument that § ll-108(b) violates Article 8, nor have we discovered any. Following the reasoning of Franklin and Etheridge , we hold that § ll-108(b) does not violate the separation of powers doctrine embodied in Article 8.

E. Equal Protection The final constitutional issue concerning § ll-108(b) is whether it violates equal protection principles. We begin our equal protection analysis by citing our discussion of the three “tiers” of equal protection in Potomac Electric: Traditionally, an equal protection analysis entailed a two-tiered approach. If the legislation infringed a fundamental right or involved a suspect classification, strict scrutiny was applied. The legislation would only survive where it was necessary to further a compelling governmental interest.

If the legislation did not involve a suspect classification or a fundamental right, then a “rational basis” test was utilized. Under that test, the law would survive an equal protection analysis unless it was “wholly irrelevant to the achievement of the State’s objective.” Attorney General v. Waldron, 289 Md. 683, 707 , 426 ¹⁵¹ A.2d 929 (1981) (quoting McGowan v. Maryland, 366 U.S. 420, 425 , 81 S.Ct. 1101, 1105 , 6 L.Ed.2d 393 (1961)). Recently, both the U.S. Supreme Court and the Court of Appeals of Maryland have haltingly gravitated towards adoption of a third trier to the equal protection analysis. This trier evolved from the rational basis analysis and has been referred to as “rationality that is not toothless.” Mathews v. Lucas, 427 U.S. 495, 510 , 96 S.Ct. 2755, 2764 , 49 L.Ed.2d 651 (1976).

First adopted by the Court of Appeals in Waldron, supra, this “heightened scrutiny” test was most clearly articulated in Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597 , 458 A.2d 758 (1983): “Heightened scrutiny” of a legislative classification is ... applied when a statute impacts upon “sensitive,” although not necessarily suspect criteria of classification (i.e., gender discrimination), or where a statute affects “important” personal rights or works a “significant” interference with liberty or a denial of a benefit vital to the individual. Waldron, supra, 289 Md. at 711 [ 426 A.2d 929 ]. A legislative classification, to withstand heightened scrutiny analysis, 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, so that all persons similarly situated and circumstanced will be treated alike. This level of review does not tolerate random speculation concerning possible justification for a challenged enactment; rather, it pursues the actual purpose of a statute and seriously examines the means chosen to effectuate that purpose.

Id. at 713-14 [ 426 A.2d 929 ]. Id. at 641-42, 458 A.2d 758 . Potomac Electric, 79 Md.App. at 630-32 , 558 A.2d 768 . See Clark v. Jeter, 486 U.S. 456 , 108 S.Ct. 1910, 1914 , 100 L.Ed.2d 465 (1988) (“To withstand intermediate scrutiny, a statutory classification must be substantially related to an important governmental objective.”) ¹⁵² In concluding that § ll-108(b) is unconstitutional under an equal protection analysis, the learned trial judge first noted correctly that strict scrutiny does not apply to the cap.

Appellees do not appear to argue that the right to receive an award of noneconomic damages in full is fundamental, or that personal injury victims whose noneconomic damages exceed the cap constitute a suspect class. According to Judge Murphy, however, the cap does infringe upon an “important right,” which he termed “the right to press a claim for pain and suffering.” He noted that such a right “was recognized at common law before the Maryland Constitution was adopted.” The trial judge said the cap creates two classes of plaintiffs: those who are less severely injured and are entitled to keep everything the jury awards them, and those who are catastrophically injured and are not entitled to receive anything the jury awards them for noneconomic damages over $350,000. Because he found the right infringed upon to be an “important” one, Judge Murphy applied the heightened scrutiny test to the cap, ruling that the statute is unconstitutional. It seems from the trial judge’s opinion that he based his equal protection analysis on Article 24 of the Maryland Declaration of Rights, 13 rather than on the fourteenth amendment of the United States Constitution.

Nevertheless, we will address the latter provision briefly because appellee and ATLA argue that § ll-108(b) violates equal protection principles under both constitutions. Citing the Supreme Court’s use of the rational basis test in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 , 98 S.Ct. 2620 , 57 L.Ed.2d 595 (1977), 14 and San ¹⁵³ Antonio School Dist. v. Rodriguez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973), 15 and the use of the test by nearly every federal court examining the various state caps, we concluded in Potomac Electric that the rational basis test was the appropriate one for analyzing § 11-108(b) under the fourteenth amendment. 79 Md.App. at 632 , 558 A.2d 768 . Performing this “minimal scrutiny” test, we held that the cap does not violate the fourteenth amendment’s equal protection clause. As we said in that case, “We believe that the General Assembly possessed a rational basis to believe that a liability insurance crisis existed and that the enactment of the cap was not arbitrary or unreasonable to alleviate the financial crisis it may have perceived.” Id. at 633 , 558 A.2d 768 .

We have not changed our view on this subject since we decided Potomac Electric last year. Thus, we hold that the cap does not violate the fourteenth amendment’s equal protection provision. As we pointed out in Potomac Electric, however, upholding the cap’s constitutionality under the federal constitution does not necessarily resolve the equal protection issue under the state constitution: Although the equal protection clause of the fourteenth amendment and the equal protection principle embodied in Article 24 are “in pari materia,” and decisions applying one provision are persuasive authority in cases involving the other, we reiterate that each provision is independent, and a violation of one is not necessarily a violation of the other. 79 Md.App. at 633 , 558 A.2d 768 (quoting Attorney General v. Waldron, supra, 289 Md. at 714 , 426 A.2d 929 ). We noted, for example, that the Court of Appeals in Hornbeck v. Somerset County Bd. of Educ., 295 Md. 597 , 458 A.2d ¹⁵⁴ 758 (1983) “implicitly recognized that significant interference with the ‘right to take advantage of a thorough and efficient education’ would merit heightened scrutiny,” despite the fact that the Supreme Court had applied only the rational basis test in analyzing the same right under the fourteenth amendment in Rodriguez, supra. 16 We begin our analysis of the cap under Article 24 by reiterating that the right involved here — the right to be compensated fully for noneconomic damages — is not a fundamental right and does not involve a suspect class.

Thus, we will not apply strict scrutiny. In addition, we note that we already have determined that the Legislature had a rational basis for its classifications under the cap. Accordingly, we will uphold the statute under Article 24 as well if we determine that the rational basis test is the appropriate test. The only question remaining is whether the statute should be analyzed under the rational basis test (under which we certainly will hold it constitutional under Article 24) or under the heightened scrutiny test (under which we might conclude that it violates Article 24).

More specifically, because § ll-108(b) clearly does not impact upon any “ ‘sensitive,’ although not necessarily suspect criteria of classification,” such as gender discrimination, the question is whether the statute either affects an “important” personal right or “works a ‘significant’ interference with liberty or a denial of a benefit vital to the individual.” Potomac Electric, 79 Md.App. at 631 , 558 A.2d 768 . The able and experienced trial judge based his ruling that the cap was unconstitutional on a finding that the right involved here is an “important” one. Appellees and ATLA agree, and neither appears to contend that a liberty was interfered with ¹⁵⁵ or a vital benefit was denied. Appellant and amici, 17 on the other hand, contend that the right to be fully compensated for noneconomic damages in a tort action is not an important right and that the appropriate test is thus the rational basis test.

As one noted constitutional scholar seems to imply, the Supreme Court has never articulated the criteria that make an interest “important.” L. Tribe, American Constitutional Law 1611-12 (2d ed. 1988). The only appellate decision in Maryland to utilize the heightened scrutiny standard of review, Attorney General v. Waldron, 289 Md. 683 , 426 A.2d 929 (1981), although somewhat instructive, is not dis-positive. In that case the Court of Appeals struck down, on equal protection grounds, a statute that prevented certain retired judges from practicing law for compensation. The Court applied heightened scrutiny because it held that the “right to engage in a chosen calling, once all reasonable requirements established by the legislature for the protection of the health, safety and welfare of the citizens have been complied with,” was an important personal right.

Id. at 718, 728-29 , 426 A.2d 929 . A number of courts have applied equal protection analyses to statutes that limit a plaintiffs recovery for all types of damages, both economic and noneconomic. 18 These ¹⁵⁶ cases, however, do not aid our decision. We have found only five courts that have applied equal protection analyses to statutes limiting only noneconomic or nonmedical damages. Four of the courts held that the caps were constitutional.

In Fein v. Permanente Medical Group, 38 Cal.3d 137 , 211 Cal.Rptr. 368 , 695 P.2d 665 (1985), appeal dismissed, 474 U.S. 892 , 106 S.Ct. 214 , 88 L.Ed.2d 215 (1985), the California Supreme Court upheld, against an equal protection challenge, a statute limiting recovery on noneconomic damages to $250,000 in medical malpractice actions. In that case, the trial judge applied the cap to the jury’s $500,000 award of noneconomic damages. The plaintiff appealed, arguing, inter alia, that the statute improperly discriminated within the class of medical malpractice victims by denying a “complete” recovery of damages only to those malpractice plaintiffs whose noneconomic damages exceeded $250,000. Id. 211 Cal.Rptr. at 385 , 695 P.2d at 682 .

The high court applied the rational basis test. In a footnote, the court distinguished Carson v. Maurer, infra, by saying that in finding the New Hampshire statute violative of equal protective provisions, “the Carson court ... applied an ‘intermediate scrutiny’ standard of review that is inconsistent with the standard applicable in this state.” Id. 211 Cal.Rptr. at 385 n. 19, 695 P.2d at 682 n. 19. It is clear from this comment that California does not recognize a ¹⁵⁷ “heightened scrutiny” standard, and the court therefore was not compelled to determine if the right to recover for noneconomic damages was an “important” right. Analyzing the same California cap in Hoffman v. United States, 767 F.2d 1431 (9th Cir.1985), the Ninth Circuit held that it did not violate the equal protection clause of the fourteenth amendment.

Following a bench trial, the federal district court judge determined that the cap violated “equal protection,” 19 and entered a judgment including, inter alia, $1,000,000 for noneconomic damages. The Ninth Circuit first noted that the Supreme Court of California already had held in Fein that the statute did not violate the equal protection provision of the California constitution. The Hoffman court then analyzed the cap under the fourteenth amendment. Unlike the state court, the federal court discussed the intermediate level of scrutiny, saying that the United States Supreme Court has applied heightened scrutiny “only to gender based classifications ... and to categorizations premised on legitimacy.” Id. at 1435 .

The court seemed to rely heavily on an Eighth Circuit case 20 in which that court chose not to apply heightened scrutiny to a statute that placed a six-year statute of limitations on malpractice actions except when foreign bodies unintentionally left in the body cause injury or death “because the case involved none of the classifications to which the Supreme Court has applied an intermediate test (illegitimacy or gender).” Hoffman, 767 F.2d at 1436 . The Hoffman court then stated, Finding that [the cap] does not involve any suspect or quasi-suspect classification, a fundamental right, or a classification requiring a heightened scrutiny, we conclude that the proper level of scrutiny is the rational basis test. ¹⁵⁸ Id. The court did not discuss whether a plaintiffs right to recover for pain and suffering constituted an “important” right. In Davis v. Omitowoju, 883 F.2d 1155 (3rd Cir.1989), the court analyzed the Virgin Islands $250,000 cap on nonmedical damages in medical malpractice actions.

The court did not mention the heightened scrutiny test. Its entire discussion of the appropriate level of scrutiny reads as follows: As the Fourth Circuit stated in disposing of both the due process and equal protection claims advanced in Boyd v. Bulala, 877 F.2d 1191 (4th Cir.1989), 21 “a limitation on a common law measure of recovery does not violate a fundamental right or create a suspect classification.” Davis did not assert any fundamental right to an uncapped jury verdict, nor could she. Nor has Davis attempted to, nor could she, style herself and all malpractice claimants as a suspect class. Any claim that she asserts must therefore be reviewed under the rational basis test.

Id. at 1196 . Id. at 1158. The Fifth Circuit upheld the Texas cap on nonmedical damages against a fourteenth amendment equal protection challenge in Lucas v. United States, 807 F.2d 414 (5th Cir.1986). 22 Like the Davis court, the court in Lucas did not discuss the heightened scrutiny test, saying only that: Any federal equal protection argument fails under the tests established by the United States Supreme Court. The strict scrutiny standard, see Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969), is inapplicable because we have neither a suspect class nor a ¹⁵⁹ fundamental right in issue.

Under the rational basis test, McGowan v. Maryland, 366 U.S. 420 , 81 S.Ct. 1101 , 6 L.Ed.2d 393 (1961), we find that there is a rational basis for § 11.02 and that the legislature enacted the statute in an attempt to accomplish a legitimate purpose. See Chrysler Corp. v. Texas Motor Vehicle Commission, 755 F.2d 1192, 1203 (5th Cir.1985). Id. at 422. The only court that has held that a cap on noneconomic damages violated equal protection provisions was the Supreme Court of New Hampshire in Carson v. Maurer, 120 N.H. 925 , 424 A.2d 825 (1980).

The Carson court was called upon to analyze the constitutionality of RSA ch. RSA 507-C (Supp.1979), in which the legislature set forth rigorous standards for qualified expert testimony, created a two-year statute of limitations applicable to most medical malpractice actions, required that notice of intent to sue be given at least sixty days before commencing the action, prohibited the statement of the total damages claimed as an ad damnum or otherwise, abolished the collateral source rule, limited the amount of damages recoverable for non-economic loss to $250,000, empowered the court to order periodic payments of any future damages in excess of $50,000, and established a contingent fee scale for attorneys in medical malpractice actions. 424 A.2d at 829 . According to that court, Although the right to recover for personal injuries is not a “fundamental right,” it is nevertheless an important substantive right. In Estate of Cargill v. City of Rochester, supra, 119 N.H. [661] at 667, 406 A.2d [704] at 707, we applied the rational basis test in evaluating classifications which, like those in RSA ch. 507 C (Supp.1979), place restrictions on an individual’s right to recover in tort. We now conclude, however, that the rights involved herein are sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational ¹⁶⁰ basis test.

Consequently, the classifications created by RSA ch. RSA 507-C (Supp.1979) “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. Id. 424 A.2d at 830-31 (citations omitted) (emphasis in Carson). The court went on to address each of the limitations within RSA ch. RSA 507-C (Supp.1979) individually. With regard to the $250,000 cap on noneconomic damages, RSA 507-C:7 II (Supp.1979), the court first pointed out that the New Hampshire limit was modeled after the California law that a lower court in that state had declared unconstitutional.

Carson, 424 A.2d at 836 . (Fein v. Permanente Medical Group, supra, upholding the California cap, was not decided until more than four years later.) The Carson court then held that the cap denied medical malpractice plaintiffs the equal protection of the law guaranteed by the state constitution. Id. 424 A.2d at 838 . In reaching this holding, the court said, We find that the necessary relationship between the legislative goal of rate reduction and the means chosen to attain that goal is weak for two reasons: “First, paid-out damage awards constitute only a small part of total insurance premium costs.

Second, and of primary importance, few individuals suffer non-economic damages in excess of $250,000.” Id. 424 A.2d at 836 (quoting Jenkins, California’s Medical Injury Compensation Reform Act: An Equal Protection Challenge, 52 S.CaLL.Rev. 829, 960-61 (1979)). While the Carson court chose to apply heightened scrutiny to the New Hampshire cap and the other limitations included in RSA ch. RSA 507-C (Supp.1979), it gave no explanation for why those “rights” were “sufficiently important” to merit intermediate scrutiny. Thus, none of the above cases present us with guidelines for determining whether the right to recover for noneco ¹⁶¹ nomic damages is an important personal right meriting heightened scrutiny. We thus decide the issue in a virtual vacuum.

In seeking an answer, we certainly acknowledge that an individual’s unfortunate experience of pain and suffering is indeed “important” to the person who feels that pain. That personal importance, as significant as it may seem, does not elevate the right of full compensation to the same status as the right to pursue one’s chosen profession as in Waldron. We believe that every person enjoys the natural right to be free of pain and suffering caused by the negligent or wilful act of another. But that important natural right is not ipso facto transmuted by nature or evolution of the common law into an “important” personal right within the scope of constitutional analysis.

We are not faced here with a statute abolishing entirely the right to recover noneconomic damages. Instead, the cap limits the noneconomic recovery to $350,000, a significant amount of money. This amount is over and above the damages plaintiffs are awarded for economic loss, such as medical bills and lost earnings, which remain unlimited. There is no total deprivation to the individual of the kinds of rights one would expect in a democratic society. 23 Additionally, unlike many “rights” at common law, the right to recover for pain and suffering is not of ancient origin and ¹⁶² does not enjoy a long history. 24 Therefore, we shall not consider the right to full compensation for noneconomic damages as an important personal right such as to trigger heightened scrutiny.

Even if we considered the right to full recovery of noneconomic damages an important personal right, and thus chose to apply heightened scrutiny, we still would hold § ll-108(b) constitutional because we believe the classifications the statute creates are “reasonable, not arbitrary, and ... rest upon some ground of difference having a fair and substantial relation to the object of the legislation.” Potomac Electric, supra. The “object” of § ll-108(b) is the increase in availability and affordability of liability insurance in Maryland. The Legislature had before it a report by the Governor’s Task Force to Study Liability Insurance, a group established in August 1985 “to develop ... recommendations to help ensure the availability of adequate liability insurance coverage at an affordable cost in the state.”