# Opposition Brief — English v. New England Medical Center Hospital, Inc.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0652%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1056

## Text

Supreme Court, US.
get. D>

. \ ).) vec 27 38

wneanes No. 89-825 s:sePh F. SPANIOL, JR.
a 7 8: RK
In the all

esi Supreme Court of the United States
Ocroser Term, 1989 |

JOSEPH E. ENGLISH AND ELIZABETH ENGLISH
INDIVIDUALLY AND AS GUARDIANS OF
KERRIE ANN ENGLISH,

PETITIONERS,

v.

NEW ENGLAND MEDICAL CENTER, INC.,
RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT ,
FOR THE COMMONWEALTH OF MASSACHUSETTS

RESPONDENT'S BRIEF IN OPPOSITION

ALAN B. RInDLER

Caro. A. GrirFin*

Davi M. McCartruy

Laurie J. Conpos

Morrison, MAHONEY & MILLER
250 Summer Street
Boston, Massachusetts 02210
(617) 439-7500

Counsel of Respondent

wor \v

a he. aes ae

I

QUESTIONS PRESENTED

1. Does M.G.L. c. 231, §85K, which establishes a limitation
of liability of $20,000 for any cause of action based on tort
against a charitable organization, satisfy the requirements of
the equal protection clause of the United States Constitution?
2. Does M.G.L. c. 231, §85K satisfy the requirements of the
due process clause of the United States Constitution?

Il

RULE 28.1 LIST

Parent Corporation

Subsidiary Corporations

New England Medical
Center, Inc.

New England Medical

Center Hospitals, Inc.
New England
Medical Center
Insurance Company

Tufts-New England
Medical Center,
Inc.

New England
Health Care
Foundation, Inc.

Pratt
Medical
Group, Inc.

NEMC Basic Research
Corp., Inc.
Community Practice
Program, Inc.

New England
Health Resources
(partnership)

New England Real
Estate Company, Inc.

Transition Systems, Inc.
Liability Limited, Inc.

New England Long-Term
Care, Inc.

TABLE OF CONTENTS

Page
Questions Presented ......... fies | I
Rule 28.1 List ............ eee Pete II
TaNe of Contents .......... ~ reyes Ill
Table of Authorities ........... PEC OT Ee | IV
EES ho 55 5060006sc0se0es. aviisny este
Counterstatement of the Case ......... 2
Reasons Why the Petition Should Be Denied . Z

I. The Massachusetts Supreme Judicial Court Cor.
rectly Held That M.G.L. c. 231, §85K Does Not
Violate The Equal Protection Clause Of The United
ee eee nae ecacnecesesocsse
A. The Massachusetts Supreme Judicial Court

Correctly Applied The Rational Basis Test In
Holding That M.G.L. c. 231, §85K Did Not
Violate the Equal Protection Clause ....... 3
B. This Court Should Not Apply A Heightened
Standard Of Scrutiny To M.G.L. c. 231, §85K &

Il. The Massachusetts Supreme Judicial Court Cor-
rectly Held That M.G.L. c. 231, §85K Does Not
Violate The Due Process Clause Of The United
ID, gcc cc cccccccccccscssscecss 17
A. The Massachusetts Supreme Judicial Court

Correctly Held That M.G.L. c. 231, §85K

Bears A Rational Relationship To A Legitimate

CER Rh Gea vesevcccccsscces: 17
B. This Court Does Not Need To Decide Whether

A State Must Provide A Quid Pro Quo When It

Abolishes A Common Law Right ............ 18

III. The Petitioners Have Not Sufficiently Demonstrated
A Conflict Between Decisions Of State And Federal
Jurisdictions Concerning A Federal Question ...... 21

SCR CRUG Sao ccsccscccscssceccccssceces 26

tro

a eT

IV
TABLE OF AUTHORITIES

Cases
Page
American Bank & Trust Co. v. Community Hospital,

36 Cal. 3d 359, 204 Cal. Rptr. 671, 683 P.2d 670 (1984) 15
Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) 13, 20, 22, 24
Baptist Hospital of Southeast Texas, Inc. v. Baber, 672

S.W.2d 296 (Tex. App. 1984), writ ref'd., n.r.e., 714

BF es ED Ko hed dinccdcccnvesenceses 14, 22
Bowen v. Gilliard, 483 U.S. 587 (1987) ......... 4,5, 11,12
Brown v. Wichita State University, 219 Kan. 2, 547 P.2d

1015, appeal dismissed, 429 U.S. 806 (1976) ......... 15
Cargill v. Rochester, 119 N.H. 661, 406 A.2d 704 (1979),

appeal dismissed, 445 U.S. 921 (1980)... . 2... 6.6 .... 15
Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) 13, 20,

22, 23, 24
Cauley v. Jacksonville, 403 So.2d 379 (Fla. 1981) ....... 15
Cleburne v. Cleburne Living Center, 473 U.S. 432

RR ppeerrery reer rr eet 5, 7, 10, 11, 14, 16
Clements v. Fashing, 457 U.S. 957 (1982) ............. 4,5
Craig v. Boren, 429 U.S. 190 (1976) ................ 4,5,9
Crowe v. John W. Harton Memorial Hospital, 579

S. W.28 GES (CTemm. Am. BOGE) oon os cccscsnsecasess 15
Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59 (1978) .............. 18, 19, 23

Duren v. Suburban Community Hospital, 24 Ohio Misc.
2d 25, 482 N.E.2d 1358, repub. as corrected, 495 N.E.

jf regrets em ren 14, 22
Etheridge v. Medical Center Hospitals, 237 Va. 87, 376

BA Sl eee eee 24
Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) .......... 3
Farrigan v. Pevear, 193 Mass. 147, 78 N.E. 855 (1906)... 6

Fein v. Permanente Medical Group, 38 Cal. 3d 137, 211
Cal. Rptr. 368, 695 P.2d 665, appeal dismissed, 474
UB. GEDIQUIED <<... sascvcacckcesaceieenee 15, 24

V
Page
Ferguson v. Skrupa, 372 U.S. 726 (1963) ........ ee 18
Hodel v. Indiana, 452 U.S. 314 (1981) ......... 18
Hunter v. North Mason High School, 85 Wash. 2d 810,
539 P.2d 845 (1975) ....... ery ey era ye ee Ory 14
Jetton v. Jacksonville Authority, 399 So.2d 396 (Fla.
ES bane Sdn W45.5:60 b0cscceeseseennace 15
Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404
ers io 6 noc cnaadkaneehseae ds 24
Jones v. State Board of Medicine, 97 Idaho 859, 555 P. 2d
399 (1976), cert. denied, 431 U.S. 914 (1977)....... 14, 22
Kadrmas v. Dickinson Public Schools, _. U.S. ___.,
108 S.Ct. 2481 (1988) ................ 12, 14
Kansas Malpractice Victims Coalition v. Bell, 243 Ken.
S333, 757 P.Bd B51 (1GSB) .. ww. cnn . 20, 23, 25
Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514
CE Uae or Sasa PUh eet wb ase ceesecee —. ee
Lehr v. Robertson, 463 U.S. 248 (1983) ...... a 4

Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) 14, 15,
20, 23, 25

Lucas v. United States, 807 F.2d 414 (5th Cir. 1986)...... 14
Lyng v. Castillo, 477 U.S. 635 (1986) ............. 11, 14
MacDonald v. Massachusetts General Hospital, 120
SSSR TE TS 19
Marcoux v. Attorney General, 375 Mass. 63, 375 N.E. Od
ee Wied ek sada c cy acnnee nts 16
Massachusetts Board of Retirement v. Murgia, 427 U.S.
i See |
Mathews v. de Castro, 429 U.S. 181 (1976) ........... 4
Meech v. Hillhaven West, Inc., __. Mont. ___., 776
es eke a ik vhlens ss ey 22
Mills v. Habluetzel, 456 U.S. 91 (1982)................ 5,9
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456
(1981) . ee Savitwewdeas om
Parham v. Hughes, 441 U.S. 347 (1979) . wh ateeun 4

Plyler v. Doe, 457 U.S. 202 (1982) ............ 9, 10, 12, i4

VI
Page
Schweiker v. Wilson, 450 U.S. 221 (1981) ............. 4
Silver v. Silver, 280 U.S. 117 (1929)... 2.00. c cece 19 |
Simon v. St. Elizabeth Medical Center, 3 Ohio Op.3d |
164, 355 N.E.2d 903 (1976)... cae 20, 23 |
St. Clair v. Trustees of Boston Univ., 25 Mass. App. Ct.
662, 521 N.E.2d 1044 (1988) .... 2... een 6
U.S. Department of Agriculture v. Moreno, 413 U.S.
GEE s 6.00 v00cckensceveugesseasaaneaseeeee 7
U.S. Department of Agriculture v. Murry, 413 U.S. 508
SIGE 0:0 v.n'n6. 000 000vesedss0tcnebsaeuseeneee 5
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).... 17
Western and Southern Life Ins. Co. v. State Board of
Equalization, 451 U.S. 648 (1981)... .. 6 6... 3
White v. Montana, 203 Mont. 363, 661 P.2d 1272 |
(REED 0 0:0000000006) sescnuseenensesecenenneen’ 22, 23
Wright v. Central DuPage Hospital Ass'n., 632 Ill.2d
313, 347 N.E.2d 736 (1976) ©... o.oo ccc ene 20, 24 :
Constitutional Provisions |
- Massachusetts Constitution, Article 15 of the Declaration
OF Rmie wo sc cscccccccccccncccenncenebessecess 2
Massachusetts Constitution, Due Process Clause ........ 2
Massachusetts Constitution, Equal Protection Clause.... 2
United States Constitution, Due Process Clause .... . . passim
United States Constitution, Equal Protection Clause. . passim
Statutes
M.G.L. c. 231, §85K............ 2, 3, 6, 7, 8, 17, 18, 19, 24
"Ri < Pe 19
Other Authorities

Forty-Sixth Annual Report of The Judicial Council of
Massachusetts 82 (1970) . .. 6... cece eens 8

el

in the
Supreme Court of the United States

Ocroser Team, 1989
No. 89-825

JOSEPH E. ENGLISH AND ELIZABETH ENGLISH
INDIVIDUALLY AND AS GUARDIANS OF
KERRIE ANN ENGLISH,

PETITIONERS,

vb.

NEW ENGLAND MEDICAL CENTER, INC..,
RESPONDENT. ~~

ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH OF MASSACHUSETTS

RESPONDENT'S BRIEF IN OPPOSITION

The respondent New England Medical Center, Inc. respect-
fully requests thet this Court deny the petition for writ of cer-
tiorari, seeking review of the Massachusetts Supreme Judicial
Court's opinion in this case.

Opinion Below

The opinion of the Massachusetts Supreme Judicial Court in
this case is reported at 405 Mass. 423, 541 N.E.2d 329 (1989) and
is reproduced in the appendix attached to the petition for writ of
certiorari at pp. la to 24a.

2

Counterstatement of the Case

The respondent New England Medical Center, Inc. (“New
England Medical Center”) does not dispute the description of the
procedural history of the case contained in the petitioners’ State-
ment of the Case.

With respect to the decision by the Supreme Judicial Court,
the Supreme Judicial Court affirmed the decision of the Superior
Court reducing the verdict to $20,000. It held that M.G.L. c.
231, §85K did not violate the petitioners’ right to a trial by jury,
as guaranteed by Article 15 of the Declarations of Rights of the
Massachusetts Constitution. The Supreme Judicial Court further
held that because the statute bore a reasonable relationship to a
legitimate state goal of preserving charitable assets, M.G.L. c.
231, §85K did not violate the equal protection or due process
guarantees of the Massachusetts and United States Constitutions.

Reasons Why the Petition Should Be Denied

|. THe Massacnuserrs SuprReME Juprcia Court Correcr.y
Hevcp Tuat M.G.L. c. 231, §85K Dogs Nor Vio.ate Tue
Eguat Prorecrion Ciause Or THe Unrrep States Con-
STITUTION.

In their petition for a writ of certiorari, the petitioners argue
that M.G.L. c. 231, §85K violates the equal protection clause of
the United States Constitution because the legislative purpose of
M.G.L. c. 231, §85K is not a legitimate purpose and because the
classifications created by the statute are not reasonably related to
its purpose. The petitioners further contend that an intermediate
standard of review is the appropriate standard under equal pro-
tection analysis and that M.G.L. c. 231, §85K satisfies neither an
intermediate standard of review nor the rational basis test. Con-
sequently, the petitioners argue that the Massachusetts Supreme
Judicial Court erred in finding that the statute satisfied federal
equal protection requirements. (Petition, pp. 12-37).

The Massachusetts Supreme Judicial Court held that the ap-
propriate standard of review is the rational basis test and that

M.G.L. c. 231, §85K plainly satisfies this test because it is ration
ally related to the legitimate legislative objective of protecting the
funds of charitable institutions so that they may be devoted to
charitable purposes. The Supreme Judicial Court also found that
the common law right of a tort victim to recover damages does
not trigger an intermediate equal protection standard. Because
the Massachusetts Supreme Judicial Court applied the correct
legal standard of review under equal protection analysis and
properly held that M.G.L. c. 231, §85K satisfies equal protection
requirements, there is no need for this Court to review that
decision.

A. The Massachusetts Supreme Judicial Court Correctly
Applied The Rational Basis Test In Holding That
M.G.L. c. 231, §85K Did Not Violate The Equal Pro-
tection Clause.

Equal protection analysis requires strict scrutiny of a legisiative
classification only when the classification impermissibly inter
feres with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class. Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307, 312 (1976). Where a chal
lenged provision neither adversely affects a fundamental right
nor contains a classification based upon a suspect criterion, the
provision is examined under the rational basis test, whereby the
statute will be sustained if the legislature could have reasonably
concluded that the challenged classification would promote a
legitimate state purpose. Exxon Corp. v. Eagerton, 462 U.S. 176,
195-196 (1983).

In determining whether a challenged classification is ration-
ally related to the achievement of a legitimate state purpose, this
Court will examine two questions: (1) whether the challenged
legislation has a legitimate purpose, and (2) whether it was rea-
sonable for the lawmaker to believe that use of the challenged
classification would promote that purpose. Western and
Southern Life Ins. Co. v. State Board of Equalization, 451 U.S.
648, 668 (1981). Legislatures are ordinarily presumed to have

4

acted constitutionally, and state laws are entitled to a presump-
tion of validity against attack under the equal protection clause.
Clements v. Fashing, 457 U.S. 957, 962-963 (1982); Parham v.
Hughes, 441 U.S. 347, 351 (1979). Furthermore, the classifica-
tion will be upheld if the question as to whether the legislation
furthers a legitimate state goal is at least debatable. Minnesota
v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981).

A legislature may draw classifications “one step at a time”,
addressing problems in a piecemeal fashion, and a classification
is not deficient simply because the state could have selected
another means of achieving the desired end. Clements v.
Fashing, supra at 969-970. A classification is not unconstitu-
tional merely because it is imperfect. Mathews v. de Castro, 429
U.S. 181, 185 (1976). Moreover, a court examining a classifica-
tion under the equal protection clause should not substitute its
judgment of good public policy for that of the legislature.
Schweiker v. Wilson, 450 U.S. 221, 234 (1981); Parham v.
Hughes, supra at 351.

In examining social welfare legislation, the Supreme Court
has generally upheld such legislation where it found that the
legislation was rationally related to a legitimate state purpose.
See, e.g., Bowen v. Gilliard, 483 U.S. 587 (1987) (requirement
that family wishing to receive welfare benefits include within
its family unit child for whom child support payments are being
made by noncustodial parent does not violate equal protection
principles); Lehr v. Robertson, 463 U.S. 248 (1983) (state’s
failure to give putative father of illegitimate child notice of
pending adoption proceedings, despite knowledge of his where-
abouts, did not deny putative father equal protection);
Clements v. Fashing, supra (state constitutional provisions
regulating circumstances in which judges and other state
employees could run for public office did not violate equal pro-
tection clause).

This Court has adopted the use of an intermediate standard
to examine classifications based on gender and illegitimacy. See,
e.g., Craig v. Buren, 429 U.S. 190 (1976) (prohibition of sale of

5

3.2% beer to males under age of 21 and females under age of 18
violated equal protection clause); Mills v. Habluetzel, 456 U.S.
91 (1982) (one year statute of limitations on actions to deter-
mine paternity of illegitimate children violates equal protec-
tion). Under this intermediate standard, the challenged classifi-
cation must serve important governmental objectives, Craig v.
Boren, supra at 197, and must be substantially related to a
legitimate state interest. Mills v. Habluetzel, supra at 99.

This Court has refused to apply a heightened standard of
review, rather than the rational basis test, to social welfare leg-
islation. Thus, in Cleburne v. Cleburne Living Center, 473
U.S. 432 (1985), this Court declined to hold that the mentally
retarded constituted a “quasi-suspect” classification calling for a
heightened degree of scrutiny. See also Bowen v. Gilliard, supra
(no merit to argument that heightened scrutiny must be applied
because amendment affects family’s right to live in type of fam-
ily unit it chooses); Clements v. Fashing, supra (not all ballot
access questions require heightened equal protection scrutiny).
See also Section I.B., infra at 8-17.

Finally, in those cases where this Court has invalidated state
provisions under the rational basis test, it has done so because
the challenged statute did not further any state interest or
because there was no rational basis for the statute in the record.
Thus, in Cleburne v. Cleburne Living Center, supra, this Court
found that a zoning ordinance which excluded group homes for
the mentally retarded violated the equal protection clause
where the record did not reveal any rational basis for the exclu-
sion and where the challenged classification rested on irrational
prejudice. See also U.S. Department of Agriculture v. Murry,
413 U.S. 508 (1973) (statute denying food stamps to entire
household containing persons 18 years and older who had been
claimed as dependents for federal income tax purposes by tax-
payers themselves ineligible for food stamps was not a rational
measure of needs of household and hence violated equal protec-
tion).

6

In the instant matter, the petitioners allege that M.G.L. c.
231, §85K does not satisfy the rational basis test because the
purpose of the statute is not legitimate and the classifications
created are wholly unrelated to its stated purpose. The petition-
ers argue that the legislative purpose of M.G.L. c. 231, §85K —
to protect the funds of charitable institutions so that they may
be devoted to charitable purposes — is not a legitimate legisla-
tive purpose because special protections for charitable institu-
tions are no longer necessary. Furthermore, the petitioners
contend that such protections are not necessary for hospitals in
particular because hospitals enjoy other special legislative
protection. .

The Massachusetts Supreme Judicial Court identified the leg-
islative purpose behind the statute and found that such purpose
was legitimate.

The objective of §85K clearly is to protect the funds of
charitable institutions so that they may be devoted to char-
itable purposes. That objective is just as clearly legitimate.
If a charity's property were “depleted by the payment of
damages its usefulness might be either impaired or wholly
destroyed, the object of the founders or donors defeated,
and charitable gifts, discouraged.” St. Clair v. Trustees of
Boston Univ., 25 Mass. App. Ct. 662, 666 (1988), quoting
Farrigan v. Pevear, 193 Mass. 147, 149 (1906).

405 Mass. at 429, 541 N.E.2d at 333. Furthermore, the Court
found that the availability of other legislative protections for
hospitals did not render the legislative purpose of protecting
charitable assets for charitable goals unnecessary. “[T]he
availability of these sources of protection of charitable funds is
not inconsistent with a legislative purpose to provide still fur-
ther protection.” Id.

Plainly, the legislative purpose of protecting the funds of
charitable institutions so that they may be devoted to charitable
purposes is a legitimate public purpose. The statute is not based
on prejudice or a desire to harm a politically unpopular group.

—}

7

See, e.g., Cleburne v. Cleburne Living Center, supra (zoning
ordinance requiring special permit for group home for the men-
tally retarded rested on an irrational prejudice against the men-
tally retarded); U.S. Department of Agriculture v. Moreno, 413
U.S. 528 (1973) (where purpose of statute denying food stamps
to household containing individual unrelated to any other
household member was to prevent “hippies” or “hippie com-
munes” from participating in the food stamp program, such
purpose was a bare congressional desire to harm a politically
unpopular group and did not constitute a legitimate state
interest).

Petitioners also argue that the limitation on charitable liabil-
ity is not necessary, particularly as it applies to hospitals. These
reasons — because hospitals can purchase insurance, because
charities no longer need special protections — are all public
policy arguments. Thus, such arguments are more appropri-
ately addressed to the legislature than to the courts.

Next, the petitioners argue that even if the statute’s public
purpose is legitimate, the classifications created by the statute
are not reasonably related to that purpose. However, the
Supreme Judicial Court found that the statute’s classifications
were reasonably related to its purpose.

The plaintiffs also argue that the discrimination between
the victims of charitable tortfeasors and other victims, be-
tween the seriously injured victims of charitable tortfeasors
and those with minor injuries, between “wealthy” chari-
ties and impoverished ones, and between charities and
noncharities, wrought by §85K, cannot be viewed as a ra-
tional means of accomplishing the legislative objective,
even if the objective is considered legitimate, of protecting
charitable funds. The plaintiffs emphasize the low amount
of the statutory cap, arguing that frequently the expenses
involved in litigating a serious personal injury case against
a hospital may far exceed the allowable recovery. Never-
theless, while we acknowledge the validity of the plain-
tiffs’ assertion, it is not the court's prerogative to determine

8

whether a more equitable distribution of the burden of
negligently inflicted personal injuries could be devised. We
cannot say that there is no rational relationship between
§85K’s cap on damages and the statute’s legitimate objec-
tive of preserving charitable assets.

405 Mass. at 430, 541 N.E. 2d at 333. (Citations omitted.)

The statute’s establishment of a $20,000 limitation on charit-
able liability represents a legislative balancing of the desirability
of protection for charitable organizations against the interests of
a person injured as a result of a tort for which the charitable
organization is responsible. See Forty-Sixth Annual Report of
the Judicial Council of Massachusetts 82 (1970) (included in
appendix to petitioners’ application at 34a to 39a). Plainly the
statute represents a reasonable means of achieving a legitimate
state goal. The petitioners’ argument that charitable organiza-
tions no longer need special protection is likewise a public policy
argument which, as the Supreme Judicial Court correctly
noted, is more appropriately addressed to the legislature than
the courts. Thus, the Massachusetts Supreme Judicial Court
properly found that M.G.L. c. 231, §85K is rationally related to
a legitimate state goal.

B. This Court Should Not Apply A Heightened Standard
Of Scrutiny To M.G.L. c. 231, §85K.

The petitioners also request this Court to apply a heightened
or intermediate standard of review under equal protection
analysis to M.G.L. c. 231, §85K and further argue that M.G.L.
c. 231, §85K fails to satisfy constitutional requirements under
such a standard. Additionally, the petitioners argue that a
number of states have used an intermediate equal protection
standard in reviewing limitations on damage awards. (Petition,
pp. 8-10, 29-37.)

However, this Court has utilized an intermediate standard of
review only in limited circumstances, and the petitioners have
failed to identify a right or type of classification in this case
which would trigger such review. Furthermore, to the extent

9

that other states have utilized an intermediate standard, they
have done so either pursuant to the terms of their own state con-
stitutions or when both state and federal constitutional issues
were present. Thus, the petitioners have failed to present an
issue under federal law concerning the appropriateness of an
intermediate standard of review and thus have presented no
justification for this Court to extend the application of a height-
ened or intermediate standard of review for the purposes of
equal protection analysis.

As noted above, the Supreme Court has traditionally utilized
an intermediate standard of review only for two categories,
gender and illegitimacy. See, e.g., Craig v. Boren, supra
(gender); Mills v. Habluetzel, supra (illegitimacy). The stan-
dard to be applied in such cases is that “classifications by gender
{and illegitimacy] must serve important governmental objec-
tives and be substantially related to achievement of those objec-
tives.” Craig v. Boren, supra at 197.

In Plyler v. Doe, 457 U.S. 202 (1982), this Court used what
appeared to be a heightened standard to review a Texas statute,
without explicitly acknowledging that it was doing sc. In
Plyler, the Texas statute permitted school boards to deny a free
public education to students who could not prove that they
were legally admitted aliens. The Court rejected the claim that
“illegal aliens” were a suspect class or that education was a fun-
damental right, either of which would have triggered strict
scrutiny under equal protection analysis.

However, the Court was reluctant to permit the Texas statute
to impose legal disabilities upon the minor children of illegal
aliens where such children were unable to affect their parents’
conduct or their own legal status. Furthermore, the Court
noted that education plays a pivotal role in maintaining the
nation’s political and cultural heritage and that the denial of an
education forecloses the means by which any group might
advance itself, thereby creating a permanent underclass of
society. The Court noted:

10

[The denial of a public education] imposes a lifetime of
hardship on a discrete class of children not accountable for
their disabling status. The stigma of illiteracy will mark
them for the rest of their lives. By denying these children a
basic education, we deny them the ability to live within
the structure of our civic institutions, and foreclose any
realistic possibility that they will contribute in even the
smallest way to the progress of our Nation.

Id. at 223. For these reasons, the Court determined that the
statute would not be considered rational “unless it further{ed]
some substantial goal of the State”, id. at 224, a standard which
has traditionally been viewed as a heightened or intermediate
standard of review. Applying this standard of review, the
Supreme Court found that the Texas statute violated the equal
protection clause.

However, the Supreme Court has refused to extend the use of
the heightened or intermediate standard of review beyond the
facts of the Plyler case. In Cleburne v. Cleburne Living Center,
supra, decided in 1985, the Supreme Court refused to apply a
heightened standard of review to a classification affecting the
mentally retarded. First, this Court noted that it had previously
refused to extend heightened review to differential treatment
based on age in Massachusetts Board of Retirement v. Murgia,
supra, because the aged, though not wholly without discrimi-
natory treatment, had not experienced a history of purposeful
unequal treatment and had not been subjected to unique dis-
abilities on the basis of stereotypical characteristics not truly
indicative of their abilities. Cleburne v. Cleburne Living
Center, supra at 441.

In Cleburne, this Court declined to find that the mentally
retarded were a “quasi-suspect” class. The Court articulated
several reasons. First, the Court noted that there was a legiti-
mate reason to treat the mentally retarded differently in some
respects because they did have a reduced ability to function in
the everyday world. Second, the Court noted that federal and
state legislatures had addressed their unique problems, thus

ll

belying a continuing antipathy or prejudice. Third, the Court
found that the mentally retarded were not politically powerless
or unable to attract the attention of lawmakers. Finally, the
Court stated that if the mentally retarded, a large and amor-
phous class, were deemed quasi-suspect, it would be difficult to
find a principled way to distinguish a variety of other groups
(such as the aging, the disabled, the mentally ill, and the in-
firm) who perhaps had immutable disabilities, who could not
mandate a desired legislative response, and who could claim
some degree of prejudice from the public at large. Id. at
442-446. Noting that its refusal to recognize the mentally re-
tarded as a quasi-suspect class did not leave them entirely
unprotected from individious discrimination, the Court applied
the rational basis test to the classification at issue and found it to
be a violation of equal protection.

In Lyng v. Castillo, 477 U.S. 635 (1986), this Court again
refused to extend the application of a heightened standard of
review. In Lyng, the Court examined a federal statute in the
food stamp program which treated family members (parents,
children, and siblings) who lived together as a single household
for the purpose of the food stamp program, thus reducing their
benefits or eliminating their eligibility for benefits, but which
did not treat more distant relatives or groups of unrelated per-
sons as a single household unless they customarily purchased
food and prepared meals together.

The Court again refused to apply a heightened degree of
scrutiny. It found that “close relatives” were not a suspect class
or even a “quasi-suspect” class because they had not been sub-
jected to discrimination, they did not exhibit obvious immu-
table, distinguishing characteristics that defined them as a dis-
crete group, and they were not a minority or politically power-
léss. Id. at 638. Similarly, it found that the statute did not
“directly and substantially” interfere with family living
arrangements and thereby burden a fundamental right. /d.
Consequently, the Court applied the rational basis test and
found the statute to be constitutional. See also Bowen v.

12

Gilliard, supra (Supreme Court refused to apply heightened
review to statute which required applicants and recipients of
public assistance to include in filing unit children living in
same home, but for whom support payments were being re-
ceived from noncustodial parent, because close relatives were
not a suspect class and statute did not burden a fundamental
right by affecting family living arrangements).

Finally, in Kadrmas v. Dickinson Public Schools, U.S.
, 108 S.Ct. 2481 (1988), this Court once again refused to
extend the use of a heightened scrutiny beyond Plyler. In
Kadrmas, the petitioners challenged the constitutionality of a
state statute permitting some school districts to charge a user
fee for bus transportation on equal protection grounds and
argued that heightened scrutiny should be utilized. Noting
that “[d]oing so would require us to extend the requirements of
the Equal Protection Clause beyond the limits recognized in
our cases,” the Court declined to take such a step. Id. at 2487.

The Court noted that it had previously rejected the sugges-
tion that “statutes having different effects on the wealthy and
the poor should on that account alone be subjected to strict
equal protection scrutiny” and that it had not “accepted the
propositon that education is a ‘fundamental right,’ like equal-
ity of the franchise, which should trigger strict scrutiny. .. .”
Id. With respect to heightened scrutiny, the Court noted that,
outside of gender and illegitimacy, it had utilized a heightened
scrutiny only in Plyler v. Doe. However, it refused to extend
Plyler beyond the “unique circumstances” of that case. Id. at
2487-2488. The Court found that, unlike Plyler, the statute in
Kadrmas did not penalize children for the illegal conduct of
their parents, nor did the user fee promote the creation and
perpetration of a sub-class of illiterates adding to the problems
and costs of unemployment, welfare, and crime. Nor did the
statute in Kadrmas completely bar the affected class from an
important government service. Jd. at 2488. Under these cir-
cumstances, the Court utilized the rational basis test and
found the statute constitutional.

13

In the instant matter, the petitioners have not identified a
classification or a right which would trigger a heightened
degree of scrutiny. The class of victims of charitable tort-
feasors, as compared to victims of non-charitable tortfeasors,
is not a class which has been subjected to purposeful discrimi-
nation; they do not exhibit obvious, immutable, distinguishing
characteristics which define them as a discrete group; nor are
they a minority or politically powerless. Furthermore, if edu-
cation is not a fundamental right, then the right to recover
damages for personal injuries is likewise not a fundamental or
quasi-fundamental right.

Moreover, the petitioners’ access to the judicial system was
not completely and irrevocably barred in all respects. The
petitioners’ right to recover damages for personal injuries was
not barred. Rather, with respect to a charitable tortfeasor,
their right to sue for damages for personal injuries was modi-
fied by permitting the petitioners to recover damages only up
to $20,000. Their right to sue other alleged tortfeasors was un-
changed. Indeed, the petitioners in fact presented their case
against the non-charitable defendants, two physicians, to the
jury, but did not prevail on these claims.

The petitioners also argue that, in applying federal equal
protection standards to damage cap statutes, a majority of
state courts have used an intermediate standard. (Petition, ;p.
29-30.) However, a review of the decisions cited by the peti-
tioners reveals that these courts were relying either jointly on
federal and state constitutional provisions or solely on state
constitutional provisions. Thus, because these cases did not
rely solely on federal equal protection analysis, they do not
demonstrate a need for clarification of federal constitutional
law with respect to limitation of damages in personal injury
actions. See Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978)
(relied primarily on state equal protection analysis, although
also found violation of federal equal protection); Carson v.
\fourer, 120 N.H. 925, 424 A.2d 825 (1980) (relied on state
equal protection, recognizing that state constitution may be

it ch ise a. sneer ner ecmemmeanas

14

interpreted to grant more rights than federal constitution);
Duren v. Suburban Community Hospital, 24 Ohio Misc. 2d
25, 482 N.E.2d 1358, repub. as corrected, 495 N.E.2d 51
(1985) (found violation of equal protection under state and
federal constitutions without explicitly adopting intermediate
standard). '

Furthermore, the two states which relied solely on federal
law and which used an intermediate standard were decided in
1975 or i976, before this Court clarified the use of the inter-
mediate equal protection standard in Plyler, Cleburne, Lyng,
and Kadrmas. See Jones v. State Board of Medicine, 97 Idaho
859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914 (1977)
(noted that Supreme Court seemed to have declared a new
category of equal protection analysis); Hunter v. North Mason
High School, 85 Wash. 2d 810, 539 P.2d 845 (1975) (present-
ment or notice of claim statute passes neither “minimum
scrutiny” nor “newer ‘substantial relation’ test”).* Thus, these

' The petitioners also cite Baptist Hospital of Southeast Texas, Inc. v.
Baber, 672 S.W.2d 296 (Tex. App. 1984), writ ref'd, n.r.e., 714 S.W.2d 310
(Tex. 1986), for the proposition that it used an intermediate standard in find-
ing an equal protection violation. However, Baptist Hospital does not state
whether it was decided under state or federal equal protection, nor does it ex-
plicitly adopt an intermediate standard. Furthermore, the continued validity
of its holding is in doubt for two reasons. First, the Texas Supreme Court, in
reviewing the intermediate appellate court's decision, stated that the Court
of Appeals need not have decided the constitutional issues and therefore the
Texas Supreme Court did not pass on the constitutionality of the damage
limitation provision. 714 S.W.2d at 310. Second, although Baptist Hospital
has not been expressly overruled, it appears that its holding with respect to
federal equal protection is no longer valid. In Lucas v. United States, 807
F.2d 414 (Sth Cir. 1986), the Fifth Circuit examined the same statute re-
viewed in Baptist Hospital, a statute which establishes a $500,000 limit on
damages in medical malpractice actions, and held that it did not violate
federal due process or equal protection guarantees. However, the Fifth Cir-
cuit certified questions to the Texas Supreme Court concerning the statute's
validity under the Texas Constitution. In Lucas v. United States, 757 S.W 2d
687 (Tex. 1988), the Texas Supreme Court found that the statute violated the
open courts provision of the Texas Constitution.

* Petitioners cite this case for the proposition that a state court used an
intermediate standard under a state constitution. (Petition, p. 31.) However,
Hunter is decided on federal equal protection grounds.

15

cases do not stand for the proposition that state courts were
following current federal precedent when they adopted an
intermediate standard of review for the purposes of equal pro-
tection analysis.

Finally, the one case the petitioners cite for the proposition
that state courts, are using an intermediate equal protection
standard in construing state equal protection provisions relied
on a state constitutional provision guaranteeing open access to
the courts rather than state equal protection. Lucas v. United
States, 757 S.W.2d 687 (Tex. 1988).

Furthermore, a number of courts have used the rational
basis test in examining the constitutionality of limitations on
recoveries. See generally Fein v. Permanente Medical Group,
38 Cal. 3d 137, 211 Cal. Rptr. 368, 695 P.2d 665 (1985), ap-
peal dismissed, 474 U.S. 892 (1985) (limitation of $250,000 on
non-economic damages in medical malpractice actions; federal
and state grounds; rational basis test; no equal protection vio-
lation); American Bank & Trust Co. v. Community Hospital,
36 Cal. 3d 359, 204 Cal. Rptr. 671, 683 P.2d 670 (1984) (re-
quirement in medical malpractice actions that future damages
in excess of $50,000 be paid in periodic payments; federal and
state grounds; rational basis test; no equal protection viola-
tion); Jetton v. Jacksonville Authority, 399 So.2d 396 (Fla
App. 1981) (limitation of $50,000 on governmental liabilit) ;
federal and state grounds; rational basis test; no equal prot.
tion violation); Cargill v. Rochester, 119 N.H. 661, 406 A.2d
704 (1979), appeal dismissed, 445 U.S. 921 (1980) (limitation
of $50,000 on governmental liability; federal and state
grounds; rational basis test; no equal protection violation);
Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015
(1976), appeal dismissed, 429 U.S. 806 (1976) (governmental
immunity; federal and state grounds; rational basis test; no
equal protection violation); Cauley v. Jacksonville, 403 So.2d
379 (Fla. 1981) (limitation of $100,000 on governmental liabil-
ity; federal and state grounds; rational basis test; no equal pro-
tection violation); Crowe v. John W. Harton Memorial Hos-

16

pital, 579 S.W.2d 888 (Tenn. App. 1979) (limitation of
$20,000 on governmental liability; federal and state grounds;
rational basis test; no equal protection violation).

Finally, utilizing a rational basis test in the instant case did
not result in a cursory or formalistic review of the statute. A
review of the Supreme Judicial Court's decision in the instant
matter demonstrates that it engaged in a thoughtful and care-
ful analysis of the issues.

We agree with the plaintiffs that equal protection analy-
sis requires the court to look carefully at the purpose to be
served by the statute in question and at the degree of
harm to the affected class. We have observed that charac-
tex.zing the tests to be applied to determine the constitu-
tional validity of legislation as “reasonable relation” and
“strict scrutiny” is a “shorthand for referring to the oppo-
site ends of a continuum of constitutional vulnerability
determined at every point by the competing values in-
volved.” Marcoux v. Attorney General, 375 Mass. 63, 65
n. 4, 375 N.E.2d 688 (1978). However, our acceptance of
that method of analysis does not require us to adopt a
third level of review. The rational basis test “includes a
requirement that an impartial lawmaker could logically
believe that the classification would serve a legitimate
public purpose that transcends the harm to the members
of the disadvantaged class.” Cleburne v. Cleburne Living
Center, Inc., 473 U.S. 432, 452 (1985) (Stevens, J., con-
curring). In connection with such an analysis, the signifi-
cance of a limitation of $20,000 on recovery against
charities for personal injuries is a relevant factor.

405 Mass. at 428, 541 N.E.2d at 333. Thus, the Supreme
Judicial Court made a thoughtful and deliberate examination
of the classification made by the statute in its application of
the rational basis test.

The petitioners have not identified a classification or a right
which, under equal protection analysis, triggers or which

17

ought to trigger an intermediate standard of review.
Therefore, this Court should decline to review this case in
order to determine whether it should extend the use of an
intermediate standard of review.

Il. THe Massacnusetts SupreMeE Jupicia, Court Correctiy
Hevp Tuat M.G.L. c. 231, §85K Does Not VioLate THE
Due Process Ciause Or Tue Unrrep States Constiru-
TION.

In their petition, the petitioners argue that the Supreme
Court should resolve, with respect to the federal due process
clause, the question of whether a state may modify or abolish a
common law right without providing a satisfactory quid pro
quo by requiring a quid pro quo under those circumstances.
The petitioners argue further that M.G.L. c. 231, §85K vio-
lates the due process clause of the United States Constitution-
because it fails to provide a quid pro quo. (Petition, pp.
37-43.) However, the Supreme Judicial Court correctly held
that the statute bears a reasonable relationship to a legitimate
legislative objective and hence does not violate the due process
clause. Moreover, it is unnecessary to decide whether a quid
pro quo is constitutionally required.

A. The Massachusetts Supreme Judicial Court Cor-
rectly Held That M.G.L. c. 231, §85K Bear:
Rational Relationship To A Legitimate Legislativ«
Goal.

The requirements of the federal due process clause are satis-
fied if a statute has “a reasonable relation to a proper legisla-
tive purpose, and [is] neither arbitrary nor discriminatory.”
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398 (1937).
Economic legislation — legislation which represents a leyisla-
tive effort to structure and accommodate the burdens and
benefits of economic life — comes to the Court with a pre-
sumption of constitutionality, and the burden is on the one
complaining of a due process violation to establish that the

18

legislature has acted in an arbitrary and irrational way. Duke
Power Co. v. Carolina Environmental Study Group, Inc., 438
U.S. 59, 83 (1978).

Courts do not substitute their social and economic beliefs for
the judgment of legislative bodies, who are elected to pass
laws, and courts are not concerned with the wisdom, need or
appropriateness of legislation. Ferguson v. Skrupa, 372 U.S.
726, 730 (1963). Legislative bodies have broad scope to experi-
ment with economic problems. Id. Courts exceed their author-
ity when they merely substitute their policy judgment for that
of the legislative body. See generally Hodel v. Indiana, 452
U.S. 314 (1981) (federal statute governing surface coal mining
operations conducted on farmland was not irrational, arbi-
trary and capricious, and lower court, in finding statute
unconstitutional, had impermissibly substituted its policy
judgment for that of Congress).

In the instant matter, the Supreme Judicial Court applied
the standard described above to M.G.L. c. 231, §85K and
found that the statute did not violate the petitioners’ due
process rights:

In addressing the plaintiffs’ equal protection argument,
we determined that §85K is rationally related to a per-
missible legislative objective. Further discussion is not re-
quired. We conclude that §85K does not offend the plain-
tiffs’ due process rights.
405 Mass. at 431, 541 N.E.2d at 334. Thus, the Massachusetts
Supreme Judicial Court correctly found that the statute did

not violate the due process clause of the United States
Constitution.

B. This Court Does Not Need To Decide Whether A
State Must Provide A Quid Pro Quo When Ii Abol-
ishes A Common Law Right.

The petitioners request the Court to decide whether a state
must provide a satisfactory quid pro quo when it modifies or

19

abolishes a common law right.? In Duke Power Co. v.
Carolina Environmental Study Group, Inc., supra, this Court
stated that it did not need to resolve this question with respect
to the Price-Anderson Act, which established a limitation of
liability for accidents resulting from the operation of federally
licensed private nuclear power plants, because the Price-
Anderson Act did provide a reasonably just substitute for the
common law tort remedies it replaced. Jd. at 88. However, in
Duke Power, the Court also stated that it was not at all clear
that the due process clause required a reasonable substitute
remedy when common law rights are modified or abrogated.
Id. The Court noted that a person has no property or vested
interest in any rule of the common law and that the Constitu-
tion did not forbid the creation of new rights or the abolition
of old ones recognized by common law to attain a permissible
legislative object. Jd. at n. 32. The Court also noted that
statutes limiting liability are relatively commonplace and have
consistently been enforced by the courts. /d.

In Massachusetts, the Supreme Judicial Court previously
resolved this question in Klein v. Catalano, 386 Mass. 701, 437
N.E.2d 514 (1982), when it held that M.G.L. c. 260, §2B,
which completely abrogated a cause of action in tort against
an architect, engineer or design professional six years after the
design professional completed his work, did not violate the
federal due process clause, even though it did not provide an
alternative remedy. Citing Silver v. Silver, 280 U.S. 117
(1929), which upheld the constitutionality of a state statute
abrogating tort actions by guest passengers in automobiles, the
Supreme Judicial Court noted that the United States Constitu-
tion permits the legislature to abolish causes of action once

* Initially, it should be noted that M.G.L. c. 231, §85K does not modify a
prior unrestricted common law right to sue charities for tort damages in any
amount. Prior to the statute’s enactment, charities enjoyed complete immu-
nity. See MacDonald v. Massachusetts General Hospital, 120 Mass. 432
(1876). M.G.L. c. 231, §85K abolished the defense of charitable immunity
which existed prior to the enactment of the statute, but limited the charity's
liability to the sum of $20,000.

20

recognized by the common law to further permissible legisla-
tive objectives. 386 Mass. at 712, 437 N.E.2d at 521-522.

The petitioners contend that there is a dispute among state
courts and courts of appeals as to whether a satisfactory quid
pro quo is constitutionally required. However, those decisions
requiring a satisfactory quid pro quo were decided either
jointly on federal and state grounds or solely on state grounds.
Therefore, a decision on whether the federal due process
clause requires a satisfactory quid pro quo would have little or
no effect with respect to these decisions. See Carson v.
Maurer, supra, (limitation of $250,000 on non-economic
damages in medical malpractice actions; absence of quid pro
quo violates state equal protection); Kansas Malpractice Vic-
tims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988) (lim-
itation on non-economic damages of $250,000 and on all dam-
ages of $1 million in medical malpractice cases; absence of
quid pro quo violates state constitutional guarantees of right to
jury trial and to a remedy by due course of law); Lucas v.
United States, supra (limitation of $500,000 on damages in
medical malpractice actions; absence of quid pro quo violates
state constitutional “open courts” provision); Simon v. St.
Elizabeth Medical Center, 3 Ohio Op.3d 164, 355 N.E.2d 903
(1976) (limitation of $200,000 on damages in medical mal-
practice actions; absence of quid pro quo denies state and
federal equal protection).

Several courts have found that no satisfactory quid pro quo
was constitutionally required, but nonetheless still found a
statutory limitation on liability to be in violation of federal or
state constitutional requirements. See Arneson v. Olson, supra
(limitation of $300,000 on damages in medical malpractice
actions; even though no quid pro quo is required, limitation
violated federal and state equal protection); Wright v. Central
DuPage Hospital Ass'n. , 632 Ill.2d 313, 347 N.E.2d 736 (1976)
(limitation of $500,000 on medical malpractice damages; quid
pro quo not required; violation of state constitutional provi-
sion against special privileges found). Thus, where these courts

21

found limitation of liability provisions to be violations of vari-
ous constitutional provisions, even though they held that a sat-
isfactory quid pro quo was not constitutionally required, fed-
eral guidance on the issue of whether a satisfactory quid pro
quo is required would likewise have had no effect on these
decisions.

The petitioners have failed to demonstrate that there is a
dispute among state and federal jurisdictions as to whether or
not a quid pro quo is required under the federal constitution.
In the absence of such a showing, this Court should decline to
review the decision of the Supreme Judicial Court.

III. THe Perrrioners Have Not SuFrFiciENTLY DEMONSTRATED
A Conruict BETWEEN Decisions Or STATE AND FEDERAL
JurispICTIONS CONCERNING A FEDERAL QUESTION.

The petitioners argue that there is a conflict among state
and federal jurisdictions concerning the application of federal
equal protection and due process guarantees to statutes estab-
lishing limitations of liability on damages awards. (Petition,
pp. 7-12.) However, to the extent that any such conflict exists,
it is caused by the application of either state constitutional pro-
visions or state and federal constitutional provisions jointly to
statutes establishing limitations on damage awards. Conse-
quently, the petitioners have failed to demonstrate a conflict
among the jurisdictions concerning a federal question which
merits review by this Court.

With respect to federal equal protection analysis, the peti-
tioners argue that the conflict among jurisdictions has arisen
from the lack of consistency concerning the applicable stan-
dard of review. The petitioners further argue that a majority
of courts which have addressed the issue have utilized an inter-
mediate or heightened degree of scrutiny to strike down
statutes establishing limitations on damage awards. (Petition,
pp. 8-9.)

However, all but one of the cases cited by the petitioners
rely either solely on state constitutional provisions or jointly on

22

state and federal constitutional provisions. Thus, these cases do
not demonstrate a conflict concerning the application of federal
constitutional law. See Arneson v. Olson, supra ($300,000
limitation on medical malpractice actions violates state and
federal equal protection and due process); Carson v. Maurer,
supra ($250,000 limit on non-economic damages violates state
equal protection); Duren v. Suburban Community Hospital,
supra ($200,000 limit on medical malpractice damages violates
federal and state equal protection and due process).‘

Furthermore, the one case cited by the petitioners which
relied exclusively on federal law and which utilized an inter-
mediate standard of equal protection analysis was decided in
1976, before the Supreme Court clarified the limited circum-
stances under which an intermediate standard of review
would be used. See Jones v. State Board of Medicine, supra.
See also Section I.B., supra at 8-17.

The petitioners state that one case, White v. Montana, 203
Mont. 363, 661 P.2d 1272 (1983), utilized strict scrutiny to
review a statute establishing a limit on medical malpractice
awards. However, White was decided exclusively on state con-
stitutional grounds.’ Furthermore, the Montana Supreme
Court overruled White in Meech v. Hillhaven West, Inc., —
Mont. , 776 P.2d 488 (1989), where it held that the right
to sue for damages was not a fundamental right and hence
would be judged by the rational basis test and not the strict
scrutiny test.®

* The petitioners also cite Baptist Hospital of Southeast Texas, Inc. v.
Baber, supra. See n. 1 concerning the continued validity of the holding in
Baptist Hospital.

5 In White, the Montana Supreme Court found that the right to bring a
civil action for personal injuries was a fundamental right because it arose
from the state constitutional provision guaranteeing all persons a speedy
remedy for every injury. Because the strict scrutiny test was not satisfied, the
Montana court held that a statute which prohibited recovery for all non-
economic damages from the state and which limited economic damages was
unconstitutional under the state constitutional equal protection provision.

* In Meech, the Montana Supreme Court, in reviewing a statute limiting
damages in wrongful discharge cases, held that the state constitutional provi-

23

As petitioners concede, a number of jurisdictions have used
the rational basis test in determining whether statutory limita-
tions on damage awards satisfied equal protection require-
ments. See Section 1.B., supra at 8-17. Thus, the petitioners
have not demonstrated a conflict concerning the appropriate
standard of review under federal equal protection analysis
which necessitates review by this Court.

The petitioners also contend that a question left unresolved
in Duke Power Co. as to whether a quid pro quo is constitu-
tionally required when a state abrogates a common law rem-
edy should be also resolved by this Court. (Petition, pp.
10-12.) However, with respect to this question as well, the
petitioners have failed to demonstrate a conflict concerning
federal constitutional law.

As discussed above, because the decisions holding that a sat-
isfactory quid pro quo is required were decided either jointly
on state and federal grounds or solely on state grounds, a deci-
sion on whether the federal due process clause requires a satis-
factory guid pro quo would not necessarily have an effect on
these decisions. See, e.g., Carson v. Maurer, supra (limitation
of $250,000 on non-economic damages in medical malpractice
actions; absence of quid pro quo violates state equal protec-
tion). Kansas Malpractice Victims Coalition v. Bell, -supra
(limitation on non-economic damages of $250,000 and on all
damages of $1 million in medical malpractice cases; absence of
quid pro quo violates state constitutional guarantees of right to
jury trial and to a remedy by due course of law); Lucas v.
United States, supra (limitation of $500,000 on damages in
medical malpractice actions; absence of quid pro quo violates
state constitutional “open courts” provision); Simon v. St.
Elizabeth Medical Center, supra (limitation of $200,000 on

sion construed in White did not give rise to a fundamental right to full legal
redress. Therefore, limitations or restrictions on damage awards would be
judged by the rational basis test, rather than by the strict scrutiny test.
Applying the rational basis test to the statute at issue, which limited damages
in wrongful discharge cases, the Montana Supreme Court held that it
satisfied state equal protection requirements.

24

damages in medical malpractice actions; absence of quid pro
quo denies state and federal equal protection). See also Section
II.B., supra at 18-21.

Furthermore, where a state found that the statute violated
due process even though no quid pro quo is constitutionally re-
quired, a decision on whether the federal due process clause
requires a satisfactory quid pro quo would not produce a dif-
ferent result. See, e.g., Arneson v. Olson, supra (limitation of
$300,000 on damages in medical malpractice actions; even
though no quid pro quo required, limitation violated federal
and state equal protection). Wright v. Central DuPage Hospi-
tal Ass’n., supra (limitation of $500,000 on medical malprac-
tice damages; quid pro quo not required; violation of state
constitutional provision against special privileges found).

Finally, as a general matter, most of the decisions examining
the constitutionality of statutory limitations on damages have
addressed challenges to the statutes on both state and federal
grounds. See Fein v. Permanente Medical Group, supra
($250,000 limit on non-economic damages; challenged on fed-
eral and state equal protection and due process; statute up-
held); Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404
N.E.2d 585 (1980) ($500,000 limitation on medical malprac-
tice damages; challenged on federal and state due process and
equal protection and state constitutional rights to jury trial
and remedy by due course of law; statute upheld); Etheridge
v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525
(1989) (limit of $750,000 on medical malpractice damages;
challenged on federal and state due process, state constitu-
tional rights to a jury trial, separation of powers, and prohibi-
tion of special legislation, and federal equal protection; statute
upheld). Indeed, in the instant case, M.G.L. c. 231, §85K was
challenged on multiple federal and state grounds — federal
and state equal protection and due process and the state con-
stitutional right to a jury trial.

Several statutes have been challenged solely on state consti-
tutional grounds. See Carson v. Maurer, supra (limit of

25

$250,000 on non-economic damages in medical malpractice
actions; challenged on state equal protection grounds; statute
found unconstitutional); Lucas v. United States, supra (limit
of $500,000 on damages in medical malpractice actions; chal-
lenged on state constitutional provision guaranteeing open
access to courts; statute found unconstitutional); Kansas Mal-
practice Victims Coalition v. Bell, supra (limit of $250,000 on
non-economic damages and $1 million on all damages in med-
ical malpractice actions; challenged on state constitutional
rights to jury trial and to remedy by due course of law; statute
found unconstitutional).

Because the validity of state statutes establishing limitations
on damage awards have involved both state and federal con-
stitutional grounds and sometimes solely state constitution
grounds, resolution of the two federal questions raised by the
petitioners — whether an intermediate equal protection stan-
dard should be utilized and whether the federal due process
clause requires a satisfactory quid pro quo when a common
law right is abolished — will not resolve the conflict among
the states concerning the validity of such statutes. To the ex-
tent there is a conflict, it is not a conflict concerning a federal
question. Therefore, this Court should decline to review the
decision of the Massachusetts Supreme Judicial Court.

26
Conclusion

For the reasons discussed above, the respondent New

England Medical Center, Inc. respectfully requests that this
Court deny the petition for a writ of certiorari.

Respectfully submitted,

ALAN B. RINDLER

Caro. A. GriFFIN*

Davin M. McCartuy

Laurie J. Conpos

Morrison, MAHONEY & MILLER
250 Summer Street
Boston, Massachusetts 02210
(617) 439-7500

Counsel of Respondent

*Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0652%3A2. Public record. Not legal advice.