Opposition Brief — Johnson v. Rineck

@ ;| DEC 201%

JOSEPH F. sPANiCy

No. 90-883 , CLERK

JR,

" waa

Iu the

Supreme Court of the United States

October Term, 1990

LEONARD C. JOHNSON, CRNA, LUTHER HOSPITAL,

ST. PAUL FIRE & MARINE INSURANCE COMPANY,

and WISCONSIN PATIENTS COMPENSATION FUND,

Petitioners,

Vv.

RICKY F. RINECK, Individually, as surviving

husband of Joy E. Rineck, and as guardian for

Rachel J. Rineck, a minor,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

BRIEF IN OPPOSITION

HOWARD S. MARKER

Counsel of Record for

MARKER & OSKIE, LTD.

5775 Wayzata Boulevard, Suite 925

Minneapolis, Minnesota 55416

612/545-1433

Of Counsel:

DAVID OSKIE

MARKER & OSKIE, LTD.

5775 Wayzata Boulevard, Suite 925

Minneapolis, Minnesota 55416

612/545-1433

1990 — Bachman Legal Printing, 835 Second Ave. So., Mpis., MN 55402 — (612) 339-9515 8

FAX 612-337-8053

QUESTION PRESENTED

Whether this Court will review a state supreme court’s

construction of state statutes in a case where constitutional

arguments were raised for the first time in a motion for

reconsideration and the state supreme court refused to

consider them.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................. i

TABLE OF AUTHORITIES .............................. iil

SO ee eee cece ere cevesecnecces l

ek sc ev us ssueee¥erveveess l

STATEMENT OF THE CASE ............................ l

yo 6 dvi ads vase a asuyuncsesccosess 4

I. THE PETITION SHOULD BE DENIED

BECAUSE THE FEDERAL QUESTION WAS

SU oo kas sess shes nsevvsvsscsees 4

Il. THE PETITION ALSO SHOULD BE DENIED

BECAUSE THE CASE DOES NOT PRESENT

AN IMPORTANT FEDERAL QUESTION ..... 5

Ill.REMAND IS UNNECESSARY AND

SE AN 10

eee ca vncacheceabssncnesces. ie eek Se

TABLE OF AUTHORITIES

Cases Page

Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) ............ g

Atkins v. Parker, 472 U.S. 115 (1985).........0.0.000....... 7

Carson v. Maurer, 120 N.H. 925, 424

EIR A er 8

Consolidated Turnpike Co. v. Norfolk & Ocean View

BE, Gi, Be UP GPE vce cece sev cal ssevccaces 4

Dean Milk Co. v. Madison, 340 U.S. 349 (1951) ......... 10

Duke Power Co. v. Carolina Environmental Study

Groum, 455 US. GOCIGTO) ........ 2.06. c cee ccc cea. 6,7

Duren v. Suburban Community Hospital,

24 Ohio Misc. 2d 25, 495 N.E.2d

ee in a vada oc ctkeks vane: 9

Etheridge v. Medical Center Hospital,

237 Va. 87, 376 S.E.2d 525 (1989) ..... ets Th as Mee )

Fein v. Permanente Medical Group, 38 Cal.3d 137,

211 Cal. Rptr. 368, 695 P.2d 655 (1985),

appeal dismissed 474 U.S. 892 (1985).................. 9

Franklin v. Mazda Motor Corp.,

704 F.Supp. 1325 (D.Md. 1989)................. oe

Guaranty Trust Co. v. Blodgett,

I Se gs os ae vacsancuwer nes 6

Hedgebeth v. North Carolina, 334 U.S. 806 (1948) .... 4, 10

Johnson v. St. Vincent ol

404 N.E.2d 585 (Ind. 1980) .. eae Perio

Jones v. State Board of Medicine, 97 Idaho 859,

555 P.2d 399 (1976), cert. denied

pk 2 oy) SR en )

Kansas Malpractice Victims Coalition v. Bell,

243 Kan. 333, 757 P.2d 251 (1988) .. 8

~]

Logan v. Zimmerman, 455 U.S. 422 (1982)

ill

Lucas v. United States, 757 S.W.2d

NS eo rd kala cen ceeds 8,9

Missouri v. Gehner, 281 U.S. 313 (1930)........0...0....... 4

New York Central Ry. Co. v. White,

ec iveansosbaesvesboden 7

Prendergast v. Nelson, 199 Neb. 97,

ee 9

Rineck v. Johnson, 155 Wis.2d 659

I, oon vice cnucccivvessxlecsicesetves 7

Sambs v. City of Brookfield, 66 Wis.2d 296

Se III «oc oss ce ncsesclccscscbacd, 4,10

Saunders v. Shaw, 244 U.S. 317 (1917) ......00.0000 00000... 4

Sibley v. Board of Supervisors of L.S.U.,

ee 9

Silver uv. Silver, 330 US. 117 (1929).....................2.55 6

Smith v. Dept. of Ins. 507 So.2d 1080

I ree I er ack swe bk 8

Sofie v. Fibreboard Corp., 112 Wash.2d 636,

We I oes case keh cdscaseebecess &

State ex rel. Wisconsin Trust Co. v. Phelps,

172 Wis. 147, 178 N.W. 471 (1920).........00..0.... 4,10

Supreme Lodge, —" of Pythias v. saa

265 U.S. 30 (1923) . | eT

Usery v. Turner Elkhorn Mining Co.

428 US. 1 (1963)....... Ls SE ARE oe OMA Ce Ze ah 9 6

Wood v. Georgia, 450 U.S. 261 (1981)..................... 10

Wright v. Central Du Page Hospital Ass'n,

63 Ill.2d 313, 347 N.E.2d 736 (1976) ..... EDR.

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Statutes

28 U.S.C. § 1257(a) . ie tte Sipe a |

Wisconsin Statutes Chapter 655......................

Wisconsin Statutes Section 655.007 .........

Wisconsin Statutes Section 655.017 6...

Wisconsin Statutes Section 893.55(4)..................

Other Authorities

Smith, “Battling a Receding Tort Frontier:

Constitutional Attacks on Medical Malpractice

Laws,” 35 Def.L.J. 359 (1986) .............. Cees

OPINIONS BELOW

The petition accurately cites the opinions below.

JURISDICTION

Jurisdiction is sought under 28 U.S.C. § 1257(a). As

discussed in Part I of the Argument below, Respondents

contend this Court lacks jurisdiction because the federal

question was not timely raised.

STATEMENT OF THE CASE

This case involves injuries to a child and the death of her

mother on account of admitted medical malpractice during

the child’s delivery by cesarean section on January 27, 1986.

Petitioners are the involved nurse anesthetist, the hospital,

and their insurers. Respondents are the surviving spouse

and his birth-injured child.

In Wisconsin, claims for “injury or death on account of

malpractice” are controlled by Wisconsin Statutes Chapter

655, the Health Care Liability and Patients Compensation

Act.' In April, 1986, Respondents filed suit under that law.

The damages Respondents sought included compensation

for the father’s loss of spousal society and companionship.

Chapter 655 subjects all noneconomic loss claims for injury

or death on account of malpractice to a $1,000,000 limit.

By agreement, the claims involving the mother’s death

and those involving the child’s injuries were bifurcated and

the former were scheduled for trial. Five months before trial,

in January, 1988, Petitioners moved (R18) to further restrict

the father’s claim for loss of spousal society and

companionship by arguing that the noneconomic loss

‘Wisconsin Statutes Section 655.007 provides:

On or after July 24, 1976, any patient or the patient's

representative having a claim or any spouse, parent or child of

the patient having a derivative ciaim for injury or death on

account of malpractice is subject to this chapter

‘These capping provisions, Wisconsin Statutes Sections 655.017 and

893.55(4), are set forth 1n the Petition at 3-4

l

limitation contained in Wisconsin’s general wrongful death

statute’ should be grafted onto the $1,000,000 limit already

imposed by Chapter 655. Petitioners presented the issue to

the trial court as “a straightforward case of statutory

interpretation, in which constitutional issues did not need

to be raised,” Petition at 25. After oral arguments, the trial

court issued a Memorandum Order‘ on March 9, 1988, in

which Petitioners’ motion was denied. The trial court held

that, in medical malpractice actions involving death, the

general wrongful death statute’s limitation on loss of

society and companionship is preempted by the conflicting

limit imposed by the medical malpractice laws.

After trial resulted in a jury award of $250,000 for loss of

spousal society and companionship, Petitioners renewed

their motion (R45) to impose the general wrongful death

noneconomic damages cap. They again chose to cast the

issue solely in terms of statutory construction. The motion,

again, was denied.

Petitioners then took the issue to Wisconsin’s intermediate

court of appeals. In their briefs to the Wisconsin Court of

Appeals, Petitioners continued to treat the question of

conflicting damages caps as one involving only statutory

construction.’ The Wisconsin Court of Appeals reversed

without hearing oral arguments. The Wisconsin Court of

Appeals did not address constitutional issues because no

such issues had been raised.®

When Respondents petitioned the Wisconsin Supreme

Court for review, Petitioners opposed review by arguing

that there are no “ ‘special and important reasons’ for the

court’s involvement.”’ When the state supreme court agreed

See Petition at 3 for the text of the general wrongful! death law.

‘Petitioners’ Appendix at A-49.

Respondents’ Appendix at A-2 contains Petitioners’ statement of

issues to the Wisconsin Court of Appeals.

*The Wisconsin Court of Appeals’ decision is reproduced in Petitioners’

Appendix at A-38.

~The pertinent portions of the Response to Petition for Review are set

out in Respondents’ Appendix at A-4

2

to hear the matter, Petitioners neither briefed* nor argued

constitutional claims. On June 14, 1990, the Wisconsin

Supreme Court issued its unanimous decision® affirming

the trial court’s ruling on the applicable damages cap and

reinstating the amount awarded by the jury for loss of

spousal society and companionship. The Wisconsin Supreme

Court disposed of the issue in exactly the same way as had

the trial court, as a straightforward matter of statutory

construction. No constitutional issues were discussed by the

state supreme court because none had been raised in that

court either.

At that point, Petitioners filed a motion for

reconsideration’’, arguing for the first time, Petition at 11,

that the Wisconsin state courts’ construction of the medical

malpractice statutes violates the equal protection clauses of

the Wisconsin and United States constitutions. Respondents

opposed reconsideration on the grounds that the

constitutional claims were frivolous and because they had

not been timely raised in compliance with Wisconsin

procedural rules.'! On September 13, 1990, the Wisconsin

Supreme Court denied the motion for reconsideration

without opinion.

Respondents’ Appendix at A-7 contains Petitioners’ Statement of

issues to the Wisconsin Supreme Court.

*Petitioners’ Appendix at A-1

'\ Petitioners’ Appendix at A-20.

Respondents’ Appendix at A-9 reproduces the Memorandum in

Opposition to Reconsideration filed in the Wisconsin Supreme Court

3

ARGUMENT

I.

THE PETITION SHOULD BE DENIED BECAUSE

THE FEDERAL QUESTION WAS RAISED TOO LATE.

In four years of litigation at every level of the Wisconsin

courts, Petitioners never raised a constitutional claim. Five

times in the state courts they argued about the Wisconsin

legislature’s special treatment of noneconomic damages in

medical malpractice actions involving death without once

mentioning a claim based upon equal protection. On the

sixth opportunity, and only when certiorari to this Court

was their last hope, did Petitioners try to inject a

constitutional] issue into this case through a motion for

reconsideration that was summarily denied. !”

“Nothing is better settled than it is too late to raise a

federal question for the first time in a petition for rehearing

after the final judgment of the state court of last resort.’’

Consolidated Turnpike Co. v. Norfolk & Ocean View Ry.

Co., 228 U.S. 326, 334 (1913). This Court consistently has

followed that rule, except in those few cases where the

decision of the state’s highest court “‘unexpectedly”’

introduced the federal question into the case. Saunders v.

Shaw, 244 U.S. 317, 320 (1917). The test is whether the

federal claim was raised “at the first opportunity.” Missouri

v. Gehner, 281 U.S. 313, 320 (1930). In this case it was not.

In January, 1988, Petitioners first asked the trial court to

consider whether the legislature “intended to cap a

noneconomic death claim arising from medical malpractice

at $1,000,000, while limiting noneconomic death claims

‘-The Wisconsin Supreme Court refuses to hear constitutional

q iestions raised for the first time on a motion for reconsideration

absent compelling reasons for doing so. State ex rel. Wisconsin Trust

Co. v. Phelps, 172 Wis. 147, 178 N.W.2d 471 (1920): Sambs v. City of

Brookfield, 66 Wis.2d 296, 314,224 N.W.2d 582. 592(1975). As this court

has often done in the past, it should refuse jurisdiction in this case

because Petitioners failed to pursue their federal! constitutional! nghts

in compliance with reasonable state procedural] requirements. See

Hedgebeth v. North Carolina. 334 U.S. 806 (1948)

4

caused by other torts to $50,000.”!3 Enroute to his decision,

the trial judge wrote:

Though no challenge has been made under the equal

protection clause of the constitution, it appears that

such difference was not an abuse of legislative

discretion.'4

At least from that time onward, Petitioners consciously

chose to forego the opportunity to pursue issues of federal

and state constitutional law. Contrary to their assertions,

the case was not “changed in the Wisconsin Supreme

Court,” Petition at 27. As a review of the trial court and state

supreme court opinions shows, the state supreme court

merely reinstated the trial court’s decision by following the

trial court’s analytical approach. It cannot be argued with

candor that the opportunity to raise federal claims first

arose after the decision by the state supreme court. The first

opportunity to do so then was long past. This fatal

jurisdictional] defect requires the denial of certiorari in this

case.

Il.

THE PETITION ALSO SHOULD BE DENIED

BECAUSE THE CASE DOES NOT PRESENT AN

IMPORTANT FEDERAL QUESTION.

The only real issue in this case is the construction of state

statutes: Does the specific state legislation governing claims

for injury or death on account of medical malpractice

preempt Wisconsin’s general wrongful death law? A state

court’s construction of the state’s own statutes is not

reviewable by the United States Supreme Court:

Under the settled rule of this Court, declared so

frequently and uniformly as to have become axiomatic,

we must accept this decision of the highest court of the

State fixing the meaning of the state legislation, as

'*Trial court Memorandum of March 8, 1988, Petitioners Appendix at

A-51.

‘4Id. at A-53.

though such meaning has been specifically expressed

therein. [Citations omitted.] And we follow the state

construction even though it may not agree with our

own opinion. [Citations omitted. ]

Supreme Lodge, Knights of Pythias v. Meyer, 265 U.S. 30,

32-33 (1923). When the state court’s construction of its own

state law is involved in a constitutional challenge, this

Court is bound to follow that construction. Guaranty Trust

Co. v. Blodgett, 287 U.S. 509 (1933). Thus, the only question

for this Court is whether the Wisconsin iaw, as interpreted

by the Wisconsin Supreme Court, resulted from a

constitutionally permissible exercise of legislative authority.

It clearly did; and this legislative activity raises no new or

important federal questions, as the following cases show.

In Duke Power Co. v. Carolina Environmental Study

Group, 438 U.S. 59 (1978), this Court upheld the legislative

imposition of liability limitations that were part of a

comprehensive scheme for promoting a particular industry

while protecting the public. This kind of legislation is “a

classic example of an economic regulation”; it is entitled to

“‘a presumption of constitutionality.’” 438 U.S. at 83

(quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15

(1963) ). “{S]tatutes limiting liability are relatively

commonplace and have consistently been enforced by the

courts” because “the ‘Constitution does not forbid the

creation of new rights or the abolition of old ones recognized

by the common law, to attain a permissible legislative

objective.’ 428 U.S. at 88 n. 32 (quoting Silver v. Silver, 280

U.S. 117, 122 (1929) ). After restating these principles, this

Court held:

[W]e conclude that there is no equal protection violation.

The general rationality of the Price-Anderson Act

liability limitations .. . is ample justification for the

difference in treatment between those injured in nuclear

accidents and those whose injuries are derived from

other causes.

428 U.S. at 93. Duke Power dictates the result in this case.

6

Petitioners admit that they have “no vested interest or

property right” in the general wrongful death statute’s

noneconomic damages limitation. Petition at 15.

Accordingly, they have no cause for constitutional complaint

over that statute’s preemption in medical malpractice

cases. Even where statutory entitlements are concerned,

legislatures have the “power to substitute a different, less

valuable entitlement at a later date,” Atkins uv. Parker, 472

U.S. 115, 129 (1985). Legislatures can revise remedies, Duke

Power, supra. They can reduce or eliminate preexisting

causes of action, Logan v. Zimmerman, 455 U.S. 422 (1982).

And they can redefine a defendant’s exposure without

offending the Constitution for the same reason.

The Wisconsin Supreme Court observed that Chapter 655

is like a workers’ compensation law in that it modifies

general civil law in order to meet “specific economic and

social needs,” Rineck v. Johnson, 155 Wis.2d 659, 665, 455

N.W.2d 336, 339 (1990). Healthcare providers under Chapter

655, like employers affected by the workers’ compensation

laws, are treated differently in furtherance of social policy

objectives. More than seventy years ago, in New York

Central Ry. Co. v. White, 243 U.S. 188 (1917), this Court

decided that this type of legislation clearly is constitutional.

There is no reason for the Court to exercise its discretionary

jurisdiction in order to restate this principle here.

One of the two laws creating this dispute is just a few

weeks from sunset. Wisconsin Statutes Section 655.017 (set

forth in the Petition at 3) provides that the medical

malpractice noneconomic damages caps are only in effect

“before January 1, 1991.” After the new year, the interaction

between Wisconsin’s general wrongful death statute and

the state’s specific medical malpractice laws will present

entirely different questions. Under the circumstances, there

are absolutely no “special and important reasons” for

discretionary review by the United States Supreme Court.

Sup. Ct. R. 10.

Even if this case presented an issue of continuing interest

in Wisconsin, it would have no national importance.

Petitioners admit that the conflict between these two

7

Wisconsin statutes presents a “narrow framework’ for

consideration of constitutional questions. Petition at 12.

However, they contend that it provides an opportunity for

solving constitutional problems that are common to the

various state statutes addressing medical malpractice. A

review of the statutes and cases Petitioners cite shows that,

in fact, no other state shares the constitutional “problem”

Petitioners raise in this case.

No two states’ malpractice laws are identical. Some states

have addressed malpractice problems by enacting across-

the-board damages limits; others have enacted limits only

on noneconomic damages; still others have imposed special

procedures for prosecuting claims, but no damages limits. '°

In each instance, these state statutes interact with other

peculiar local laws and with particular provisions of the

involved state constitutions. As would be expected, the

decisions addressing these statutes are equally varied.

While Petitioners cite thirty different state caps statutes,

they can find only fifteen states in which these statutes

faced a constitutional challenge of any kind. Petition at

22-23. Of those fifteen local decisions, five decide the

constitutionality of the involved legislation solely on state

constitutional grounds.'® Two apply the wrong standard of

review in analyzing the involved statutes under the United

'° A convenient review of state legislative responses to the “malpractice

crisis’ is found in Smith, ‘Battling a Receding Tort Frontier:

Constitutional Attacks on Medical Malpractice Laws,” 35 Def.L.J. 359

(1986). The author concludes: “In short, under the federal constitutional

standard, damages caps in medical malpractice actions would almost

certainly pass constitutional muster under existing equal protection

and due process theories.” Jd. at 389.

‘6Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980): Kansas

Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251

(1988); Lucas v. United States, 757 S.W.2d 686 (Tex. 1988): Smith «

Dept. of Ins., 507 So.2d 1080 (Fla. 1987); Sofie v. Fibreboard Corp., 112

Wash.2d 636, 771 P.2d 711 (1989).

8

States Constitution.'’ Six involve damages limitations

entirely unlike the one encountered in this case.'* One

involves no damages limitations at all.!9 Another involves

only a Seventh Amendment challenge to a cap on

noneconomic damages in all tort cases.”° The only decision

considering a limitation on noneconomic damages in

medical malpractice under the United States Constitution

while applying the correct (“rational basis”) standard of

review concludes that such a limitation is constitutional.?!

And, as Petitioners admit, no other case involves the

relationship between conflicting malpractice and wrongful

death damages limitations. Because there is no common

constitutional question, there is no issue of national

importance. As it has done when asked to enter this field on

two prior occasions,”? the Court should again refuse to do so

at this time.

'7 Petitioners agree that federal equal protection claims involving the

kind of socio-economic legislation that is involved here are to be

reviewed under a rational basis standard. Petition at 14-17. In the

following cases, “middle tier scrutiny” was erroneously used to decide

federal equal protection questions: Arneson v. Olson, 270 N.W.2d 125

(N.D. 1978); Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d

399 (1976), cert. denied 431 U.S. 914 (1977).

‘8 Duren v. Suburban Community Hospital, 24 Ohio Misc.2d 25, 495

N.E.2d 51 (C.P. Ohio 1985)| Etheridge v. Medical Center Hospital, 237

Va. 87, 376 S.E. 2d 525 (1989); Johnson v. St. Vincent Hospital 404

N.E.2d 585 (Ind. 1980); Lucas v. United States, supra; Sibley v. Board

of Supervisors of L.S.U., 462 So. 2d 149 (La. 1985); Wright v. Central

Du Page Hospital Ass'n, 63 I11.2d 313, 347 N.E.2d 736 (1976).

‘9’ Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

*° Franklin v. Mazda Motor Corp., 704 F.Supp 1325 (D.Md. 1989).

*! Fein v. Permanente Medical Group, 38 Cal. 3d 137, 211 Cal. Rptr. 368,

695 P.2d 655 (1985), appeal dismissed 474 U.S. 892 (1985).

22 Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976).

cert denied 431 U.S. 914 (1977); Fein v. Permanente Medical Group, 38

Cal.3d 137,211 Cal. Rptr. 368, 695 P.2d 655 (1985). appeal dismissed 474

U.S. 892 (1985).

9

Il.

REMAND IS UNNECESSARY

AND IMPROPER.

In refusing to address the constitutional question

Petitioners first raised in their motion for reconsideration,

the Wisconsin Supreme Court followed longstanding state

procedural rules:

The court has consistently held that it will not entertain

a constitutional issue raised for the first time on appeal

unless there is some compelling reason for doing so.

Sambs v. City of Brookfield, 66 Wis.2d 296, 314, 224 N.W.2d

582, 592 (1975). In Wisconsin, a claim, made for the first time

after the supreme court’s decision, that a statute and its

application are unconstitutional will not be considered

because “the question is presented too late.” State ex rel.

Wisconsin Trust Co. v. Phelps, 172 Wis. 147, 147, 178 N.W.

471 (1920). In determining its own jurisdiction, this Court

defers to state requirements for presenting federal

constitutional claims. Hedgebeth v. North Carolina, 334

U.S. 806 (1948). The same reasonable requirements should

apply in addressing a request for remand.

In any event, remand would serve no purpose, other than

to further unnecessarily delay this case’s resolution. This is

not like the situation in the case Petitioners cite, in which

remand for fact-finding might avoid a constitutional issue

entirely. Wood v. Georgia, 450 U.S. 261 (1981). As Petitioners

put it, “(t]he material facts of this matter are undisputed.”

Petition at 5. Noris this a case where the state court refused

to address an issue that had been properly raised. Dean

Milk Co. v. Madison, 340.U.S. 349 (1951). Instead, this case

presents a federal constitutional question that the state

court refused to hear for good reason, and which this Court

has already answered time and time again. Under the

circumstances, we respectfully submit that, like the petition

for certiorari, the request for remand is equally inappropriate

and should be refused.

10

CONCLUSION

The attempt to inject a federal question on a motion for

reconsideration, long after the first opportunity arose, does

not confer jurisdiction on this court. The sole issue in this

case involves construction of state tort statutes, an area this

Court does not approach. No federal constitutional question

exists in this case because a state legislature’s right to

fashion remedies in furtherance of social policy is well

settled. The petition should be denied.

Respectfully submitted,

HOWARD S. MARKER

Marker & Oskie, Ltd.

5775 Wayzata Boulevard

Suite 925

Minneapolis, Minnesota 55416

612/545-1433

Attorney for Respondents

Of Counsel:

DAVID OSKIE

Marker & Oskie, Ltd.

5775 Wayzata Boulevard

Suite 925

Minneapolis, Minnesota 55416

612/545-1433

11

RESPONDENTS’ APPENDIX

Contents

Petitioners’ Statement of Issues to

the Wisconsin Court of Appeals ..

Response to Petition for Review

ee ag 3 oc os vs oes oda banew nes |

Petitioners’ Statement of Issues to

the Wisconsin Supreme Court .

Memorandum in Opposition to

Motion for Reconsideration ......

A-7

A-9

Court of Appeals of Wisconsin

DISTRICT. III

RICKY F. RINECK, Individually, as Surviving

Husband of JOY E. RINECK, and as Guardian

for RACHEL J. RINECK, a Minor,

Plaintiffs-Respondents-Cross Appellants,

VS.

Case No. 88-1555

LEONARD C. JOHNSON, CRNA, LUTHER HOSPITAL,

ST. PAUL FIRE & MARINE INSURANCE COMPANY

and WISCONSIN PATIENTS COMPENSATION FUND,

Defendants-Appellants-Cross Respondents,

and

BLUE CROSS BLUE SHIELD UNITED

OF WISCONSIN,

Defendant.

APPEAL FROM CIRCUIT COURT

CHIPPEWA COUNTY, CASE NO. 86-CV-378

HONORABLE RICHARD H. STAFFORD, PRESIDING

BRIEF AND APPENDIX OF DEFENDANTS-APPELLANTS

SCHELLINGER & DOYLE, S.C.

ATTORNEYS FOR DEFENDANTS-APPELLANTS

NORTH SHORE SAVINGS BUILDING

15700 WEST BLUEMOUND ROAD

BROOKFIELD, WISCONSIN 53005

Timothy J. Strattner

Gregory W. Lyons

Of Counsel

1900 — Bachman Lega! Printing, 635 Second Ave. So., Mpis.. MN 55402 — (612) 339-9514 &

FAX 612-337-8053

A-1

INDEX

Page

STATEMENT OF ISSUES............................ iv

STATEMENT WITH RESPECT TO

ea iv

STATEMENT WITH RESPECT TO ORAL

SE ae ee iv

STATEMENT OF THE CASE.._................... 1

STATEMENT OF FACTS ......................... 2

Sn conv ntuey tee 5

I.

II.

THE $50,000.00 LIMITATION ON DAMAGES

FOR LOSS OF SOCIETY AND

COMPANIONSHIP RESULTING FROM

WRONGFUL DEATH IS APPLICABLE IN AN

ACTION FOR MEDICAL

TI ors cs sss uenccckde merece ceseens 5

A. The Court Of Appeals Must Construe The

Applicable Statutes Without Deference To The

Holding Of The Trial Court. ............. 6

B. The $50,000.00 Limitation Established By Sec.

895.04(4) Wis. Stats., Must Be Harmonized

With The “Cap” On Damages Established By

Sec. 893.554)

oie. oncnnkavsteuc ee ee 6

THE INSTANT CASE PROVIDES AN

ILLUSTRATION OF PRECISELY THE KIND

OF PROBLEM WHICH THE LEGISLATURE

HAS SOUGHT TO ADDRESS BY LIMITING

RECOVERY FOR LOSS OF SOCIETY AND

COMPANIONSHIP IN WRONGFUL DEATH

CASES. |. 11

CONCLUSION 13

APPELLANTS’ APPENDIX 101

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AUTHORITIES CITED

Wisconsin Caseg

Bingenheimer v. DHSS, 129 Wis.2d 100,

gue Iu.wae Gee (ieee)..........................

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Supreme Court of Wisconsin

RICKY F. RINECK, Individually, as Surviving

Husband of JOY E. RINECK, and as Guardian

for RACHEL J. RINECK, a Minor,

Plaintiffs-Respondents-Cross-Appellants-Petitioners,

VS.

Appeal No. 88-1555

LEONARD C. JOHNSON, CRNA, LUTHER HOSPITAL,

ST. PAUL FIRE & MARINE INSURANCE COMPANY

and WISCONSIN PATIENTS COMPENSATION FUND,

Defendants-Appellants-Cross-Respondents,

and

BLUE CROSS BLUE SHIELD UNITED

OF WISCONSIN,

Defendant.

RESPONSE TO PETITION FOR

REVIEW AND APPENDIX

SCHELLINGER & DOYLE, S.C.

ATTORNEYS FOR DEFENDANTS-

APPELLANTS-CROSS-RESPONDENTS

NORTH SHORE SAVINGS BUILDING

15700 WEST BLUEMOUND ROAD

BROOKFIELD, WISCONSIN 53005

Timothy J. Strattner

Of Counsel

1990 — Bachman Lega! Printing, 435 Second Ave. So.. Mpis.. MN 55402 — (612) 336-0514 @

FAX 612-337-4053

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The Wisconsin Supreme Court attempts to devote its

attention to cases presenting “special and important

reasons’ for the court’s involvement. Sec. 809.62(1), Wis.

Stats. Although the Petition for Review in the instant case

is repleat with rhetorical flourish arguing the importance of

the issues presented, a straightforward analysis of the case

reveals that it was decided by the Court of Appeals

according to well-settled principles of Wisconsin law. As to

each of the three issues raised by the petitioners, the

Supreme Court should deny review.

I. THE COURT OF APPEALS PROPERLY

APPLIED WELL-SETTLED RULES OF

STATUTORY CONSTRUCTION TO RECONCILE

PROVISIONS OF THE WRONGFUL DEATH

STATUTES AND MEDICAL MALPRACTICE

STATUTES.

The Petition for Review correctly reports that the Court of

Appeals determined that Sec. 895.04(4), Wis. Stats., limits

recovery for loss of society and companionship in a wrongful

death action to $50,000.00, in medical malpractice actions

as well as other actions for wrongful death. Petitioners

somewhat mischaracterize the Decision of the Court of

Appeals, however, by seizing the discussion of legislative

intent in that decision, as if that were the basis of the

Decision. Petition for Review at 11. Petitioners argue that it

is important for the Supreme Court to “clarify” what the

petitioners contend are conflicting statutory limitations on

damages found in Secs. 895.04(4) and 893.55(4), Wis. Stats.

Petition for Review at 5.

In point of fact, this issue does not present any strong

reason for involvement of the Wisconsin Supreme Court. A

plain reading of the Decision of the Court of Appeals

demonstrates that the Court of Appeals expressly found the

statutes to be not ambiguous and notin conflict. Decision of

Court of Appeals at 7. Ap. 107. The Court of Appeals used

well-settled principles of statutory construction to reconcile

the limitation on recovery for loss of society and

companionship in a wrongful death action contained in

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Sec. 895.04(4), Wis. Stats, with the “cap” placed on

noneconomic damages in medical malpractice cases

contained in Sec. 893.55(4), Wis. Stats. In other words, there

is no need to either “clarify” or “harmonize” any confusion

in Wisconsin law. This issue does not meet the criteria for

review set forth in Sec. 809.62(1\(c), Wis. Stats.

II. THE ISSUE OF A CHILD’S CLAIM FOR LOSS

OF SOCIETY AND COMPANIONSHIP OF A

PARENT WHICH PETITIONERS NOW

PRESENT TO THE SUPREME COURT WAS NOT

PRESENTED TO EITHER THE TRIAL COURT

OR THE COURT OF APPEALS.

The petitioners assert that the opinion in Theama v. City

of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (184) gives a

minor child a claim for the loss of society and companionship

of an injured parent, and then argues that “the lower court’s

decisions would deny recovery for loss of parental society

and companionship in cases where death follows long after

the original “injury.” Petition for Review at 13, this, the

petitioners argue, would “obstruct implementation of the

policy established in Theama.” Petition for review at 13.

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Supreme Court of Wisconsin

RICKY F. RINECK, Individually, as Surviving

Husband of JOY E. RINECK, and as Guardian

for RACHEL J. RINECK, a Minor,

Plaintiff-Respondent-Cross Appellants-Petitioner,

VS.

Case No. 88-1555

LEONARD C. JOHNSON, CRNA, LUTHER HOSPITAL,

ST. PAUL FIRE & MARINE INSURANCE COMPANY

and WISCONSIN PATIENTS COMPENSATION FUND,

Defendants-Appellants-Cross Respondents,

and

BLUE CROSS BLUE SHIELD UNITED

OF WISCONSIN,

Defendant.

APPEAL FROM THE COURT OF APPEALS OF WISCONSIN

(DISTRICT II!) AND FROM CIRCUIT COURT

CHIPPEWA COUNTY, CASE NO. 86-CV-378

HONORABLE RICHARD H. STAFFORD, PRESIDING

BRIEF OF DEFENDANTS-APPELLANTS-CROSS RESPONDENTS

SCHELLINGER & DOYLE, S.C.

ATTORNEYS FOR DEFENDANTS-

APPELLANTS-CROSS RESPONDENTS

NORTH SHORE SAVINGS BUILDING

15700 WEST BLUEMOUND ROAD

BROOKFIELD, WISCONSIN 53005

Timothy J. Strattner

Of Counsel

19980 — Bachman Lega! Printing. 835 Second Ave. So., Mpis.. MN 55402 — (612) 339-9515 8

FAX 612-337-8053

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TABLE OF CONTENTS

py FF ep Sigs 0 gy | + Se

ISSUES PRESENTED FOR REVIEW ............

STATEMENT WITH RESPECT TO

PUBLICATION ..._ .. SANG 69 Sic sxa'e v3

STATEMENT WITH RESPECT TO ORAL

ARGUMENT .. | OM ck a ae

STATEMENT OF THE CASE ......................

STATEMENT AS TO STANDARD OF REVIEW

A RR Bee Pe fe ee

I. THE $50,000.00 STATUTORY LIMITATION ON

DAMAGES FOR LOSS OF SOCIETY AND

COMPANIONSHIP RESULTING FROM

WRONGFUL DEATH IS APPLICABLE IN AN

ACTION FOR MEDICAL MALPRACTICE.

ol

A. Chapter 655, Wisconsin Statutes, Does Not

Create A Cause Of Action For Wrongful Death

Caused By Medical Malpractice. .......

B. The Only Claim For Wrongful Death Which The

Plaintiff May Have Is That Claim Defined By

Section 895.04, Wisconsin Statutes. ___.

C. The $50,000.00 Limitation Established By

Section 895.04(4), Wisconsin Statutes, Must Be

Harmonized With The “Cap” On Damages

Established By Section 893.55(4),

Wisconsin Statutes..................... :

D. With Regard To Procedural Rules, The

Provisions Of Chapter 655 Take Precedence In

An Action For Medical Malpractice.

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Supreme Court of Wisconsin

RICKY F. RINECK, Individually, as Surviving

Husband of JOY E. RINECK, and as Guardian

for RACHEL J. RINECK, a Minor,

Plaintiff-Respondent-Cross Appellant-Petitioner,

V.

Case No. 88-1555

LEONARD C. JOHNSON, CRNA, LUTHER HOSPITAL,

ST. PAUL FIRE & MARINE INSURANCE COMPANY

and WISCONSIN PATIENTS COMPENSATION FUND,

Defendants-Appellants-Cross Respondents,

and

BLUE CROSS BLUE SHIELD UNITED

OF WISCONSIN,

Defendant.

MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION FOR RECONSIDERATION

Arguing that the medical malpractice act, Ch. 655, Stats., is

itself constitutional but that following its express directions

violates equal protection, defendants ask this court to address

constitutional issues for the first tire after appeal. Petitioner

Rineck opposes this inappropriate request for “reconsidera-

tion” for the reasons set forth below.

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I.

DEFENDANTS ARE NOT ENTITLED TO RAISE

CONSTITUTIONAL ISSUES AT THIS STAGE OF THE

CASE.

The dispositive issues on appeal have been at issue since

January 1988, when defendants first asked the trial court to

consider the relationship between the medical malpractice

and wrongful death statutes. The relationship lias been

considered at least five times by all three levels of this state’s

courts since then. Although the issues on appeal were first

decided more than two years ago, defendants waited until

after an adverse decision by the Supreme Court to add that

they think there are constitutional problems when the general

wrongful death statute is held inapplicable in medical

malpractice actions. Constitutional claims were never

mentioned, let alone briefed or argued before this court’s

decision of June 14, 1990. Contrary to Sec. 806.04(11), Stats.,

the attorney general was never given notice that a

constitutional issue was involved; consequently, the attorney

general has not participated in this case. )

A constitutional issue may be waived by failure to raise it in

a timely manner. Bradley v. State, 36 Wis.2d 345, 153 N.W.2d

38 (1967). A constitutional issue should not be addressed

where the attorney general has not been given notice. Tieberg

v. Ehlke, 137 Wis.2d 228, 235 n8, 404 N.W.2d 84 (Ct. App. 1987).

The Wisconsin Court of Appeals has said that the appellate

courts “will not consider an issue raised for the first time on

appeal, especially a claim that a statute is unconstitutional.”

Tomah-Mauston Broadcasting Co. v. Eklund, 143 Wis.2d 648,

657-58, 422 N.W.2d 169 (Ct. App. 1988). The Supreme Court

has agreed:

This Court has consistently held that it will not entertain

a constitutional issue raised for the first time on appeal

unless there is some compelling reason for doing so.

Sambs v. City of Brookfield, 66 Wis.2d 296, 314, 224 N.W.2d

582, 592 (1975) (citations omitted). Applying this rule, the

Supreme Court has refused to address constitutional issues

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that have not been raised before in the vast majority of cases

in which it has been asked to do so. See, Racine Steel Castings

v. Hardy, 144 Wis.2d 553 nl, 426 N.W.2d 33 (1988); State v.

Marshall, 113 Wis.2d 643, 335 N.W.2d 612 (1983); Laufenberg

v. Cosmetology Examining Bd., 87 Wis.2d 175, 274 N.W.2d 618

(1979); Chrylser Corp. v. Adamatic, Inc., 59 Wis.2d 219, 208

N.W.2d 97 (1973); City of Milwaukee v. The Shoup Voting

Machine Corp., 54 Wis.2d 549, 196 N.W.2d 694 (1972); Resseguie

v. American Mut. Liability Ins. Co., 51 Wis.2d 92, 186 N.W.2d

236 (1971); Dostal v. Magee, 273 Wis. 228, 77 N.W.2d 604 (1956).

Rineck respectfully submits that the court should refuse to do

so in this case as well.

IT.

IT IS WHOLLY INAPPROPRIATE TO ARGUE CON-

STITUTIONALITY FOR THE FIRST TIME ON A

MOTION FOR RECONSIDERATION.

By its nature, “reconsideration” involves a second look at

something seen before. As this court said in Uren v. Purity

Dairy Co., 252 Wis. 446, 459b, 33 N.W.2d 213 (1948), where

an argument never surfaced before a motion for

reconsideration, “there is nothing to reconsider.” This court

has observed that one of the “well-defined rules applicable

on rehearing” is that an issue that was not pled, argued or

briefed at any time before “will not properly be at issue” on a

motion for reconsideration. Bump v. Dahl, 27 Wis.2d 607,

608, 134 N.W.2d 665 (1965). Accordingly, this court has

refused to “reconsider” an issue raised at the trial court but

abandoned on appeal, Martinson v. Brooks Equipment

Leasing Co., 36 Wis.2d 209, 154 N.W.2d 353 (1967); it has

refused to “reconsider” an issue that had never before been

mentioned, Hope Acres, Inc. v. Harris, 27 Wis.2d 285, 134

N.W.2d 462, 135 N.W.2d 775 (1965), Bump, supra, Uren,

supra, State ex rel. Thomson v. Zimmerman, 264 Wis. 644,

61 N.W.2d 300 (1953); and this court specifically has refused

to “reconsider” a claim, made for the first time after the

Supreme Court’s decision, that a statute and its application

were unconstitutional, State ex rel. Wisconsin Trust Co. v.

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Phelps, 172 Wis. 147, 147, 178 N.W. 471 (1929), holding that,

after the Supreme Court has ruled, “the question is presented

too late.” Rineck respectfully submits that the court should

reach the same conclusion here.

ITI.

DEFENDANTS’ REQUEST FOR RECONSIDERA-

TION DOES NOT SATISFY THE EXCEPTIONAL

CONDITIONS REQUIRED BY THE SUPREME

COURT.

Even in those rare instances where this court has

considered a constitutional issue raised for the first time on

appeal, it has never done so where the issue was raised for

the first time on a motion for reconsideration. And, when

the court has considered a constitutional issue raised first

on appeal, it has required “some compelling reason for

doing so,” Sambs, supra at 314. This court has determined

that it will only consider a newly raised constitutional issue

“if it is in the interests of justice to do so, if both parties have

had an opportunity to brief the issue, and if there are no

factual issues that need resolution,” Laufenberg, supra at

187. The present motion fails this test.

A. The interests of justice.

“The interests of justice” are not served by allowing a

party to intentionally withhold an issue that has been on

the table since before trial and then inject that issue as its

“ace in the hole” after losing on appeal. See, Gasaway v.

Pendergrass, 350 S.W.2d 460 (Ky. 1961) (known trial court

error held back “to see if it became an issue”). Defendants

made no constitutional claims when questions regarding

the relationship between Ch. 655 and the general wrongful

death statute originally were presented, and they chose not

to make any during post-trial motions or before either of the

appellate courts. In fact, when faced with Rineck’s Petition

for Review, defendants wrote that Supreme Court review

was unnecessary because there were “no ‘special and

important reasons’ for the court’s involvement” in this case.

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Response to Petition for Review at 1. In light of their earlier

treatment of these issues, it is difficult to see how defendants

can argue that there is “some compelling reason” for

addressing them now.

Reconsideration is appropriate where there is an

ambiguity in the mandate or opinion, Johann v. Milwaukee

Electric Tool Corp., 270 Wis. 573, 579, 72 N.W.2d 401, 405

(1955), or where the court has applied the wrong law or

reached the wrong legal conclusion, Maloney v. Industrial

Commission, 242 Wis. 165, 9 N.W.2d 623 (1943).

Reconsideration is not appropriate where the movant has

merely dressed his old arguments in new clothes, Jd.

Calling it an equal protection problem, defendants have

simply renewed their old, unsuccessful argument that

medical malpractice actions involving death are “actions

for wrongful death” governed by the general wrongful

death statute. They argue that:

The court’s interpretation of the law divides tort

victims in wrongful death actions into two classes:

victims of health care providers and victims of all other

tortteasors. Since there is no rational basis for the

resulting inequities, this interpretation of the law

violates . . . equal protection.

Memorandum in Support of Motion for Reconsideration at

2. (Emphasis added.)

Guided by the plain language of Chapter 655, this court

determined that medical malpractice cases involving death

are not “wrongful death actions;” rather, they are part of a

separate class consisting of all medical malpractice claims

regardless whether “injury or death” is. involved. The court

has not “divid[ed] tort victims in wrongful death actions

into two classes;’”’ rather, the legislature has taken

malpractice death claims outside the wrongful death statute

altogether. Defendants overlook this point and, in doing so,

they overlook the fact that it is impossible to simultaneously

argue that this legislation is itself constitutional,

Defendants’ Memorandum at 13-14, but that this court’s

reading of it is not.

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Earlier, defendants tried to convince this court that the

sole purpose of Chapter 655 was to limit health care

providers’ liability. They did not succeed. Reading Chapter

655 in its own terms, the court viewed this legislation as a

unified system for balancing competing interests. Rineck v.

Johnson, Slip op. at 7. Judge Stafford reached the same

conclusion, Memorandum Order dated March 9, 1988 at 3,

and no constitutional attack was raised. In order to raise

constitutional issues now, defendants simply revert to their

unsuccessful argument that Chapter 655’s sole purpose was

capping awards, and they combine that argument with

their often argued belief that malpractice death claims are

“actions for wrongful death.” They contend that by

subdividing wrongful death actions into those caused by

malpractice and those with other causes, this court creates a

classification that is “completely contrary to the legislative

purpose” of limiting awards; thus, that classification

violates the equal protection clause. Defendants’

Memorandum at 8-9. They miss the point that, for many

reasons, “the legislature intended to set medical malpractice

cases involving death apart from other death cases to

which the general wrongful death statute applies.” Rineck

slip op. at 13. (Emphasis added.)

As defendants’ own authority explains, even these old,

misguided arguments do not create a constitutional issue.

Defendants concede that a statute providing different

remedies for malpractice victims is constitutional so long as

there is a rational basis for that law, Defendants’

Memorandum at 6. They cite the court to State ex rei.

Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434 (1978),

which held that Chapter 655 is, in fact, rationally based.

They do not attack the constitutionality of Sec. 893.55/4),

that part of Chapter 655 which imposes unique noneconomic

damages limitations on all medical malpractice claims

involving “injury or death,” Defendants’ Memorandum at

13-14. In fact, they cite the court to a California case that

upholds the constitutionality of similar malpractice

damages limitations, Fein v. Permanente Medical Group,

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211 Cal. Rptr. 368, 695 P.2d 665 (1985), and to a law review

article discussing why Wisconsin’s medical malpractice

damages limitations are clearly constitutional, Comment,

the Constitutionality of Wisconsin’s Noneconomic Damage

Limitation, 72 Mara. L. Rev. 235 (1989).!

The authorities defendants cite quite clearly show that, if

the legislature had a rational basis for taking malpractice

death cases out from under the general wrongful death

statute and for imposing unique damages limitations on

those actions, that reclassification is constitutional. Having

already failed in their effort to convince this court that the

legislature intended the wrongful death statute to apply in

medical malpractice cases, and having failed to convince

this court that the legislature did not intend to treat “injury

or death” in the same way under Chapter 655, defendants

already have lost the constitutional battle they now try to

start. As a result, justice does not require reconsideration of

this case.

B. No opportunity to brief and argue.

Wisconsin’s appellate courts routinely have refused to

consider issues that have not been briefed and argued.

Uren, supra; Bump, supra; State ex rel. Thomson, supra;

Martinson v. North Central Life Ins. Co.,65 Wis.2d 268, 225

N.W.2d 604 (1975); City of Milwaukee v. The Shoup Voting

Machine Corp., supra; Racine Steel Castings v. Hardy,

‘According to the writer, the legitimate state objectives which the

legislature reasonably could have promoted through unique damages

limitations applicable to all medical malpractice claims include:

assuring continued availability of quality health care, Comment at

244; reducing the effect of noneconomic loss awards on insurance

rates, Id. at 247; promoting settlement by reducing incentives for trial,

Id. at 247; increasing the collectibility of judgments, Jd. at 253; and

reducing insurance rates, Jd. at 260 n.158. In its opinion, this court

added another reason for reclassifying medical malpractice claims:

“Chapter 655 recognizes that there is no logical distinction between

injury or death claims arising out of medical malpractice,’ Rineck slip

op. at 14. See, also, Stanhope v. Brown County, 90 Wis.2d 823, 280

N.W.2d 711(1979) and Sambs v. City of Brookfield, 97 Wis.2d 356, 293

N.W.2d 504 (1980).

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supra; Estate of Atkinson, 261 Wis. 481, 484,53 N.W.2d 185,

reh’g den. 261 Wis. 484, 54 N.W.2d 52 (1952); Platta v.

Flatley, 68 Wis.2d 47, 63, 227 N.W.2d 898 (1975); Sambs,

supra; Laufenberg, supra. Where this court has agreed to

address a constitutional issue raised for the first time on

appeal, it has done so only when that issue had been briefed,

argued and examined by the Court of Appeals, In the

Interest of Baby Girl K, 113 Wis.2d 429, 448, 335 N.W.2d 846

(1983); State v. Popanz, 112 Wis.2d 166, 332 N.W.2d 750

(1983). Rineck respectfully submits that this court should

not depart from this well-founded requirement in the

present case.

CONCLUSION

Reerguing their earlier-rejected positions that medical

malpractice death cases are “actions for wrongful death”

and that the sole pupose of Ch. 655, Stats. was to reduce

health care providers’ exposure, defendants attempt to

inject a new constitutional issue after appeal. To do so, they

blame this court for a classification that they call irrational,

while simultaneously arguing that the legislation that, in

fact, created that classification is rationally based. In

support of their arguments, defendants offer authority that

clearly indicates there is no real constitutional issue here.

The court should see through this untimely request for

reconsideration, and the tactical maneuvering that

motivates it, and apply the “well-defined rules applicable on

rehearing” to reject the defendants’ motion so that this case

can proceed to its long overdue conclusion.

Dated: July 13, 1990.

Howard S. Marker

David Oskie

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Attorneys for Plaintiff-

Respondent-Cross

Appellant-Petitioner,

Post Office Address:

5775 Wayzata Boulevard

Suite 925

Minneapolis, MN 55416

Telephone: (612) 545-1433

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