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.
441 N.W.2d 769
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.
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,
Notwithstanding any provision of
§ 15-2-22 , respecting minors as defined in§ 26-1-1 , any action described in§ 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
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).
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
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:
- [W]hether the statute does set up arbitrary classifications among various persons subject to it.
- [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
However, if the claim is a medical malpractice 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),
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.)
We adopt this reasoning and hold that the classification contained in
We reverse the summary judgment and remand for further proceedings.
MILLER, J., concurs.
SABERS, J., specially concurs.
WUEST, C.J., and FOSHEIM, Retired Justice, dissent.
FOSHEIM, Retired Justice, sitting for HENDERSON, J., disqualified.
SABERS, Justice (specially concurring).
I believe the majority correctly concludes that the statute of limitations set out in
The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government‘s ability to classify persons or “draw lines” in the creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. If the government classification relates to a proper governmental purpose, then the classification will be upheld. 2 R. Rotunda, J. Nowak, J. Young, Treatise On Constitutional Law § 18.2 (1986).
The majority claims to apply the rational basis review to the statute. However, the two-prong test set out by the majority is not the test traditionally applied in rational basis analysis. “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985). The majority relies upon City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975), which in turn cites Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), in support of the two-prong test set out in the majority opinion. However, a review of Railway Express shows that there is no such test set out. Instead, the Court in Railway Express found that the statute was valid by stating “the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection.” Railway Express, supra, 336 U.S. at 110, 69 S.Ct. at 465.
FOSHEIM, Retired Justice (dissenting).
I dissent. In my opinion, the trial court erred in giving
This court has repeatedly recognized the fundamental rule of statutory construction favoring prospective application of statutes. We succinctly stated this rule in In re Scott‘s Estate, 81 S.D. 231, 234, 133 N.W.2d 1, 3 (1965) (quoting In re Saddler‘s Estate, 73 S.D. 56, 61-62, 38 N.W.2d 879, 882 (1949)) as follows:
It is always to be presumed that a law was intended, as its legitimate office, to furnish a rule of future action to be applied to cases arising subsequent to its enactment. A law is never to have retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only.
See also First Nat. Bank of Minneapolis v. Kehn Ranch, 394 N.W.2d 709 (S.D. 1986); Matter of Adams, 329 N.W.2d 882 (S.D. 1983); State v. Westling, 81 S.D. 34, 130 N.W.2d 109 (1964); Bahlkow v. Preston, 60 S.D. 151, 244 N.W. 93 (1932); Cutting v. Taylor, 3 S.D. 11, 51 N.W. 949 (1892).
The majority opinion, leaning heavily on case authority from other jurisdictions, concludes that statutes of limitation are remedial in nature and, therefore, should be applied retroactively.* In my opinion, this contravenes this court‘s holding in Matter of Adams, 329 N.W.2d 882 (S.D. 1983). There, Justice Wollman stated, “Appellant contends that the 1981 amendment is curative and remedial and should therefore apply retroactively to his case. We disagree. A legislative act will not operate retroactively unless the act clearly expresses an intent to so operate.” Id. at 884 (emphasis supplied). I note that the author of the majority opinion concurred in Adams.
While
Even assuming that a doubt exists as to legislative intent, we have stated, “In every case of doubt, the doubt must be resolved against the retrospective effect and in favor of prospective construction only.” Westling, 81 S.D. at 38, 130 N.W.2d at 111. See also Federal Farm Mortgage Corporation v. Noel, 66 S.D. 481, 285 N.W. 871 (1939). We should let this fundamental rule stand firm and allow the plaintiff to have his day in court.
In view of this conclusion, Lyons has no cause to question the constitutionality of
I am hereby authorized to state that Chief Justice WUEST joins my dissent.
Notes
Brookings County v. Sayre, 53 S.D. 350, 220 N.W. 918 (1928), a case upon which the majority opinion also relies, is also distinguishable. There, this court held that under the law as it then existed, there was no statutory provision as to the form of civil action by which the liability of the petitioner could be enforced for costs incurred on that appeal prior to the enactment of the statute. Under those circumstances, this court held the statute could be given retroactive effect.
It is also noteworthy that only three years ago, this court in Kehn Ranch declined to follow other jurisdictions which take a more expansive view regarding the retroactive application of statutes.