Lead Opinion
In this сase, we are asked to determine two issues. First, we are asked to decide whether a jury may consider a claim for conscious pain and suffering when there is a reasonable inference of consciousness prior to the decedent’s death, but the length of that consciousness and evidence of pain and suffering during the drowning process are based on expert testimony rather than on eyewitness testimony. The petitioner, DRD Pool Service, Inc. (“DRD”), argues that a claim for conscious pain and suffering cannot be based solely on an expert’s opinion in the absence of any case-specific independent objective evidence to support that opinion. The respondents, Thomas Freed and Deborah Neagle Webber Freed (the “Freeds”) surviving parents of Connor Freed, argue that once a reasonable inference arises from expert testimony, the jury should decide whether the decedent experienced conscious pain and suffering. After reviewing Maryland case law and
We are asked also to revisit our precedent concerning the constitutionality of Maryland’s cap on non-economic damages. We shall hold that the standards for disregarding stare decisis and reconsidering precedent have not been satisfied here, and, accordingly, we find no basis to hold that the statutory cap on non-economic damages is unconstitutional.
FACTS AND PROCEDURAL BACKGROUND
On June 26, 2006, Connor Freed, a healthy five year old boy, went to the Crofton Country Club swimming pool with a family friend, Paul Carroll, and two other children. At some time between 4:15 and 4:30 p.m., Connor left the water and asked Mr. Carroll to remove Connor’s life jacket so he could use the restroom. Mr. Carroll removed the life jacket and told Connor to return, after he used the restroom, so Connor could put his life jacket on before reentering the water. According to Mr. Carroll, “after a couple of minutes” he wondered where Connor was because Connor was taking longer than expected to return. Then, Mr. Carroll sent one of the other children in his grоup into the bathroom to look for Connor.
Around that time, another child pointed to someone floating in the pool. Mr. Carroll and another adult ran over and found Connor face down in the pool, in what Carroll described as a “dead man’s float.” After Mr. Carroll and the other patron pulled Connor out of the water, emergency help came and attempted lifesaving measures. Connor never regained consciousness. None of the estimated 80-90 patrons at the pool that afternoon saw Connor enter the pool after leaving the bathroom, nor did anyone see him struggle in the water. The autopsy report showed Connor died of drowning, and the medical examiner found “no evidence of signifiсant recent injury.”
Thomas Freed, in his capacity as a personal representative of Connor Freed’s estate, and the Freeds, together as surviv
The Freeds’ and DRD’s experts disagreed on whether it was possible to determine Connor’s actual conscious pain and suffering. The Freeds’ expert was Dr. Jerome Modell. According to the record, he treated over 100 near-drowning victims and authored a book on the pathophysiology of drowning. Dr. Modell testified to a reasonable degree of medical certainty that Connor experienced pain and suffering during the two and half minutes it approximately takes for a five-year-old to lose consciousness as a result of drowning. He based his opinion on interviews he conducted with patients and animal experiments. Dr. Modell also relied on a report prepared by a group of international experts who participated in the 2002 World Congress on Drowning
After a hearing in the Circuit Court, the trial judge granted DRD’s motion for summary judgment on the issue of conscious pain and suffering. The judge explained that no material fact was in dispute because “there is not a dispute that the child was conscious for some period of time.” The trial judge relied on the case of University of Maryland Medical System Corporation v. Malory,
Proceeding on the remaining wrongful death claim, the jury found DRD negligent and found that DRD’s negligence was the proximate cause of Connor’s death. The jury awarded the Freeds $4,006,442.
Regarding the denial of the motion for alteration of the judgment, the Court of Special Appeals rejected the Freeds’ constitutional arguments. The court recognized that this Court has twice rejected indistinguishable claims from the Freeds’ claims in this case. See Oaks v. Connors,
DRD filed a petition for a writ of certiorari in this Court, which we granted. The Freeds filed a conditional cross-petition for writ of certiorari, which we also granted. DRD v. Freed,
DISCUSSION
I.
We agree with the Court of Special Appeals that the evidence in the present case is sufficient for the trier of fact to reasonably infer that Connor experienced conscious pain and suffering prior to his death. The evidence of Connor’s medical history, the autopsy report, and Dr. Modell’s opinion all support the inference that Connor was conscious when he entered the water and suffered while drowning. Only a reasonable inference of conscious pain and suffering is required in order to submit the survivorship claim to the jury; therefore, we agree with the Court of Special Appeals that the Circuit Court erred in granting the motion for summary judgment in favor of DRD.
Ordinarily, the plaintiff must establish three elements in order to recover on a claim for conscious pain and
A survivorship claim based on the conscious pain and suffering that an individual experienced prior to death was deemed proper in Beynon v. Montgomery Cablevision Ltd. P’ship,
The Court of Special Appeals considered, in deciding the case of University of Maryland Medical System Corporation
Not inconsistent with the holding in Malory, other jurisdictions, have held that autopsy reports and expert opinions can serve as objective measures for establishing conscious pain and suffering in drowning cases. In Kline v. Maritrans, the United States District Court for the District of Delaware held that when an autopsy report does not reveal any premortem traumatic injury to the decedent, a reasonable inference may be drawn that the decedent was conscious upon entering the water.
We agree with those courts that have concluded that autopsy reports and expert testimony may be sufficient evidence from which to infer conscious pain and suffering in drowning cases and that eyewitness testimony is not essential. The facts in this case support a reasonable inference that Connor was conscious and suffered while drowning. According to the evidence presented, while no eyewitnesses saw Connor drown, the evidence shows that he likely was conscious when entering the water. Connor’s medical history shows that he did not suffer from any illnesses that would have subjected him to blackouts. The autоpsy report also showed that he did not have any marks on his body suggesting he was rendered unconscious prior to entering the water. From this evidence, not only the Freeds’ expert, Dr. Modell, but also DRD’s expert, Dr. Marsh, confirmed in their respective testimonies that Connor was conscious when he entered the water. Dr. Modell went on to state that not only was Connor conscious, but the doctor stated to a reasonable degree of medical certainty that Connor consciously experienced pain and suffering. In his deposition, Dr. Modell described the process an individual will experience when drowning. He said:
The pathophysiology of drowning begins when the mouth and nose first become submerged in the water. At that*61 point in time, the first reaction is to voluntarily breath hold [sic] to avoid aspirating water. The carbon dioxide tension then builds up to a point where you can no longer voluntarily avoid the sensation to breathe.
At that point in time you start to take a breath and when you get water in the oral pharynx, that water stimulates the larynx to go into laryngospasm to further protect the airway from aspiration of water. And as a result you try to breathe but you can’t because you are totally obstructed. It’s as though someone were suffocating you or you put a clamp on your trachea.
As a result, you will build a tremendous negative pressure within your chest as your diaphragm tries to pull in air, which you can’t, or water. And as a result the interсostal muscles will sink into the chest rather than rise. This causes a great deal of pain and discomfort of pain and suffering and this process lasts for a minute and a half to two minutes.
This testimony stating that a conscious person will feel pain while drowning, along with the facts that Connor was a five-year-old, who did not know how to swim, and who was conscious when entering the water, supports an inference that Connor experienced fear and suffered prior to his death. Thus, there was sufficient evidence presented for the trier of fact to reasonably infer that Connor underwent conscious pain and suffering prior to his death.
Our decision in Beynon supports our conclusion that it is not a matter of speculation to infer that Connor was conscious and suffered before he drowned. Like in Beynon, there was objective evidence in the present case from which this inference could be drawn. In Beynon, the objective measure was the 71/6 foot long skid marks made by the decedent’s car showing that the decedent was aware of the imminent collision. Beynon,
II.
The Freeds challenge the Court of Special Appeal’s decision to uphold the trial court’s denial of the motion to alter or amend the judgment. The constitutionality of the Cap on non-economic damages has previously been upheld by this Court and we affirm our previous holdings based on the principle of stare decisis. Further, even if we departed from this standard, the Cap would nonetheless pass constitutional scrutiny under the rational basis test.
Standard of Review
Evaluating the constitutionality of an act of the Maryland General Assembly is a question of law. Davis v. Slater,
We have previously ruled on the constitutionality of the Cap on non-economic damages imposed by § 11-108 of the Courts and Judicial Proceedings Article. See Oaks v. Connors,
The tests for departing from stare decisis are extremely narrow in Maryland, and there are few exceptions for when this Court should set aside precedent. Livesay,
While we have never construed the doctrine of stare decisis to preclude us from changing or modifying a common law rule when conditions have changed or that rule has become so unsound that it is no longer suitable to the people of this State, departure from the rule should be the extraordinary case, especially so when the change will have a harmful effect upon society.
We have recognized two circumstances when it is appropriate for this Court to overrule its own precedent. First, this Court may strike down a decision that is, “clearly wrong and contrary to established principles.” Adams,
The Freeds rely on several of our decisions to argue that this Court has held that precedent does not have to be followed in certain circumstances. First, the Freeds contend that constitutional issues are less сonstrained by the principles of stare decisis. They cite Bozman v. Bozman, where we quoted the United States Supreme Court in saying, “when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow a precedent.”
The Cap on non-economic damages, as codified in the Courts and Judicial Proceedings Article § 11-108, was intended to address a legislatively-identified insurance crisis in Maryland at the time of enactment. Murphy,
In Oaks v. Connors,
Nonetheless, the Freeds argue in favor of hеightened scrutiny, stating rational basis scrutiny should not apply because § 11-108 implicates the important personal rights to full redress for injury and trial by jury. We evaluated and rejected this argument in Murphy.
Equal protection is also not violated by the statutory limitation on non-economic damages. The Freeds argue that the Cap created a classification between less seriously injured tort plaintiffs, who are entitled to keep everything awarded by a jury, and more seriously injured plaintiffs, who are not entitled to receive non-economic damages that exceed the cap. Under this theory, the Freeds argue that this classification should be subjected to a heightened standard of review.
The Freeds’ contention was rejected in Murphy and we uphold our previous decision. In Maryland, this Court has noted that the General Assembly may modify common law rights and remedies. Murphy,
The Freeds’ contention that the Cap fails even rational basis scrutiny is also without merit. The rational basis test is highly deferential; it presumes a statute is constitutional and should be struck down only if the reviewing court concludes that the Legislature enacted the statute irrationally or interferes with a fundamental right. Conaway v. Deane,
Thе General Assembly’s objective in enacting the cap was to assure the availability of sufficient liability insurance, at a reasonable cost, in order to cover claims for personal injuries to members of the public. This is obviously a legitimate legislative objective. A cap on noneconomic damages may lead to greater ease in calculating premiums, thus making the market more attractive to insurers, and ultimately may lead to reduced premiums, making insurance more affordable for individuals and organizations performing needed services. The cap, therefore, is reasonably related to a legitimate legislative objective.
Turning to the Freeds’ argument that we should abandon our precedent, Maryland has never adopted a rule
Finally, the Freeds argue that stare decisis should not apply because the reasoning and factual premises underlying our decision in Murphy v. Edmonds were clearly wrong. The Freeds first point to individual members of the Judiciary who have rejected the Cap. The Freeds highlight Judge Chasanow’s dissent in Murphy. He wrote:
It seems to me that the right to recover full and fair compensation from a tortfeasor is an important personal right, and any limitation on that right should be subject to “heightened” or “intermediate” scrutiny. Further, in my opinion, legislation limiting recovery of noneconomic damages ... should not survive heightened scrutiny in ... tort actions where there has been no clearly established need for such legislation.
Murphy v. Edmonds,
In light of his view that the classification created by § 11-108 infringes upon an “important right,” the trial judge concluded that equal protection principles required that the classification be subject to a “heightened scrutiny” test. Applying a “heightened scrutiny” test, the trial judge held that § 11-108 violated the equal protection guarantee.
The present case does not satisfy the tests for rejecting stare decisis or the Murphy and Oaks precedents which upheld the constitutionality of the Cap. Merely arguing that the majority was wrong in Murphy is not sufficient grounds to abrogate the principles of stare decisis. This case does not fall under the two exceptions to stare decisis recognized in Maryland. Unlike Townsend, there has been no evidence or persuasive arguments put forth that our decision in Murphy was clearly wrong or contrary to established principles. The Freeds have not shown a significant change in the underlying facts and circumstances. This Court is therefore constrained by our prior decisions in upholding the constitutionality of the Cap.
CONCLUSION
The Circuit Court erred in granting DRD’s motion for summary judgment on the issue of Connor’s conscious pain and suffering. We hold that eye witness testimony is not the sole means by which аn evidentiary predicate may be laid
We affirm the Court of Special Appeals in denying the motion to amend or alter the judgment, and upholding the statutory cap on non-economic damages. We reaffirm the constitutionality of the Cap as explicated in Murphy v. Edmonds,
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER AND CROSS-PETITIONERS TO DIVIDE THE COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS EQUALLY.
MURPHY, J., Concurs and Dissents.
Notes
. The World Congress on Drowning brings together all of the acknowledged experts and practitioners in various fields to focus on prevention, treatment, and rescue in order to reduce the incidence of drowning. "World Congress on Drowning: June 26-28, 2002, Amsterdam Rec. room-Brief Article” Parks and Recreation FindArticles.com http:// findarticles.eom/p/articles/mi_mll45/is_ll_36/ai_80448466/ (last accessed Sept. 10, 2010).
. Dr. Lowson nearly drowned when he was shipwrecked in the early 1900’s. He wrote an article which was published in 1903 describing
. The jury awarded $5,000 for funeral expenses, and $2,000,706 each to Thomas Freed and Debra Neagle Webber Freed for non-economic damages.
. We discussed the application of the Cap to wrongful death claims in John Crane, Inc. v. Scribner,
. "That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law ...” Md. Dec. of Rts. Art. 5.
. "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 $15,000, shall be inviolably preserved.” Md. Dec. of Rts. Art. 23 (2010, ch. 480).
. "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.” Md. Dec. of Rts. Art. 19.
. "That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” Md. Dec. of Rts. Art. 24; "Although the Maryland Constitution contains no express equal protection clause, it is settled that the Due Process Clause of the Maryland Constitution, contained in Article 24 of the Declaration of Rights, embodies the concept of equal protection of the laws to the
. See also Bozman v. Bozman,
. Murphy v. Edmonds,
. While the Court of Appeals has not recently addressed this issue, the Court of Special Appeals has decided a series of cases in reliance on Murphy. See Green v. N.B.S. Inc.,
Concurrence Opinion
concurring and dissenting.
I agree that the Respondents’ evidence was sufficient to support a finding that the deceased suffered conscious pain and suffering. I dissent, however, from the majority’s refusal to require that the Cap be subjected to a “heightened scrutiny” analysis. For the reasons stated by Judge Chasanow in Murphy v. Edmonds,