DRD v. FREED

Only Luna has been served in this action, because the Bank lacks current addresses for the remaining defendants. (Ex-Im Br. 8)

The forum selection clauses each contain a choice of law provision dictating that New York law applies to any proceeding that occurs in the United States. The "Second Circuit has discussed — but not decided — what law to apply to a forum selection clause when the contract also contains a choice of law provision." TradeComet.com, LLC v. Google, Inc., 693 F. Supp. 2d 370, 376-77 (S.D.N.Y. 2010) (citing Phillips, 494 F.3d at 384).Phillips indicates, however, that where, as here, the parties rely on federal precedent rather than the law cited in their choice of law provision (see Luna Br. 8; Ex-Im Br. 9-10), a court is free to "apply general contract law principles and federal precedent to discern the meaning and scope of the forum clause."Phillips, 494 F.3d at 386 (citing Motorola Credit Corp. v. Uzan, 388 F.3d 39, 61 (2d Cir. 2004) ("[T]he parties' briefs assume that New York law controls this issue, and such implied consent . . . is sufficient to establish choice of law."); John Wyeth Brother Ltd. v. CIGNA Int'l Corp., 119 F.3d 1070, 1074 (3d Cir. 1997) (applying general contract law principles to interpret forum clause where parties made little reference to English law)). See also Cfirstclass Corp. v. Silverjet, PLC, 560 F. Supp. 2d 324, 328 n. 2 (S.D.N.Y. 2008) ("[W]here, as here, the parties do not invoke [the law of England] in their briefs, courts may apply `general contract law principles and federal precedent to discern the meaning and scope of the forum clause.'" (quoting Phillips, 494 F.3d at 386)). Accordingly, this Court will apply federal precedent and general contract law principles to all four prongs of the analysis.

That Luna "did not have an opportunity to negotiate the terms of the agreement[s]" and had to accept them on an "`as is' basis" (Luna Decl. ¶ 5) is irrelevant to the "reasonably communicated" inquiry. See Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 10-11 (2d Cir. 1995) (finding clause reasonably communicated where the "fine print" forum selection clause was pre held that when an autopsy report does not reveal any premortem traumatic injury to the decedent, a reasonable inference may be drawn that the decedent was conscious upon entering the water. 791 F.Supp. 455, 464 (D.Del. 1992). In Clark v. Manchester, the Supreme Court of New Hampshire concluded that when a child drowned in stagnant, muddy water, the jury could legitimately infer that not only was the child's death noninstantaneous, but also that he felt pain and suffering. 64 N.H. 471, 13 A. 867, 869 (1887). Similarly, in McAleer v. Smith, the absence of a skull fracture and expert testimony about the drowning process was sufficient to reasonably infer that the decedent was conscious and probably experienced a great deal of anxiety and terror. 791 F.Supp. 923, 929 (D.R.I. 1992). Several other courts have come to similar conclusions. See also Cook v. Ross Island, 626 F.2d 746, 750 (9th Cir. 1980) (holding that evidence of a lack of a skull fracture is sufficient to permit the inference that the decedent experienced conscious pain and suffering during his death by drowning); Mitchell v. Akers, 401 S.W.2d 907, 912 (Tex.Civ.App. 1966) (holding that evidence showing that the child did not have any marks indicating he would have been rendered unconscious before entering the water was sufficient to justify damages for the child's "physical pain and anguish as a result of the accident.").

We agree with those courts that have concluded that autopsy reports and expert testimony may be sufficient evidence from which to infer conscious pain and suffering in drowning cases and that eyewitness testimony is not essential. The facts in this case support a reasonable inference that Connor was conscious and suffered while drowning. According to the evidence presented, while no eyewitnesses saw Connor drown, the evidence shows that he likely was conscious when entering the water. Connor's medical history shows that he did not suffer from any illnesses that would have subjected him to blackouts. The autopsy report also showed that he did not have any marks on his body suggesting he was rendered unconscious prior to entering the water. From this evidence, not only the Freeds' expert, Dr. Modell, but also DRD's expert, Dr. Marsh, confirmed in their respective testimonies that Connor was conscious when he entered the water. Dr. Modell went on to state that not only was Connor conscious, but the doctor stated to a reasonable degree of medical certainty that Connor consciously experienced pain and suffering. In his deposition, Dr. Modell described the process an individual will experience when drowning. He said:

The pathophysiology of drowning begins when the mouth and nose first become submerged in the water. At that point in time, the first reaction is to voluntarily breath hold [sic] to avoid aspirating water. The carbon dioxide tension then builds up to a point where you can no longer voluntarily avoid the sensation to breathe.

At that point in time you start to take a breath and when you get water in the oral pharynx, that water stimulates the larynx to go into laryngospasm to further protect the airway from aspiration of water. And as a result you try to breathe but you can't because you are totally obstructed. It's as though someone were suffocating you or you put a clamp on your trachea.

As a result, you will build a tremendous negative pressure within your chest as your diaphragm tries to pull in air, which you can't, or water. And as a result the intercostal muscles will sink into the chest rather than rise. This causes a great deal of pain and discomfort of pain and suffering and this process lasts for a minute and a half to two minutes.

This testimony stating that a conscious person will feel pain while drowning, along with the facts that Connor was a five-year-old, who did not know how to swim, and who was conscious when entering the water, supports an inference that Connor experienced fear and suffered prior to his death. Thus, there was sufficient evidence presented for the trier of fact to reasonably infer that Connor underwent conscious pain and suffering prior to his death.

Our decision in Beynon supports our conclusion that it is not a matter of speculation to infer that Connor was conscious and suffered before he drowned. Like in Beynon, there was objective evidence in the present case from which this inference could be drawn. In Beynon, the objective measure was the 71 1/2 foot long skid marks made by the decedent's car showing that the decedent was aware of the imminent collision. Beynon, 351 Md. at 508, 718 A.2d at 1185. Similarly, in this case, the requirement of objective evidence is fulfilled by the expert testimony stating to a reasonable degree of medical certainty that Connor was conscious and that a conscious person is aware that he or she is drowning. Furthermore, we find this case to be distinguishable from the Court of Special Appeals' opinion in Malory, the case on which the Circuit Court relied. In Malory there was no case specific evidence of the decedent's consciousness prior to his death. The expert in that case relied on the amount of pain an individual would feel while losing oxygen, rather than looking specifically at the facts about the decedent, when stating his opinion that the infant was conscious prior to his death. Malory, 143 Md.App. at 347, 795 A.2d at 118. In the present case, both Dr. Marsh and Dr. Modell considered Connor's autopsy report and his medical history when opining that he was conscious when entering the water. This evidence, if believed, would be sufficient for a reasonable trier of fact to infer that Connor was conscious when he was in the water and that, accordingly, he experienced actual pain and suffering. Thus, the issue of conscious pain and suffering should have been submitted to the jury.

The Freeds challenge the Court of Special Appeal's decision to uphold the trial court's denial of the motion to alter or amend the judgment. The constitutionality of the Cap on non-economic damages has previously been upheld by this Court and we affirm our previous holdings based on the principle of stare decisis. Further, even if we departed from this standard, the Cap would nonetheless pass constitutional scrutiny under the rational basis test.

Evaluating the constitutionality of an act of the Maryland General Assembly is a question of law. Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80 (2004). Additionally, the interpretation of the Constitution and the Maryland Declaration of Rights is a question of law. 383 Md. at 604, 861 A.2d at 80-81. When reviewing the statutory cap on non-economic damages in this case, this Court must perform an independent review to determine if the constitutionality of the Cap should continue to be upheld.

We have previously ruled on the constitutionality of the Cap on non-economic damages imposed by § 11-108 of the Courts and Judicial Proceedings Article. See Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992). The principle of stare decisis controls our decision today. We have said that stare decisis means "to stand by the thing decided," and is "the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Livesay v. Baltimore County, 384 Md. 1, 14, 862 A.2d 33, 40-41 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 736-37 (1991)). The United States Supreme Court noted the importance of stare decisis in ensuring that, "the law will not merely change erratically, but will develop in a principled and intelligible fashion." Livesay, 384 Md. at 14, 862 A.2d at 41 (quoting Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 624, 88 L.Ed.2d 598, 610 (1986)).

The tests for departing from stare decisis are extremely narrow in Maryland, and there are few exceptions for when this Court should set aside precedent. Livesay, 384 Md. at 15, 862 A.2d at 41. In Livesay we said:

While we have never construed the doctrine of stare decisis to preclude us from changing or modifying a common law rule when conditions have changed or that rule has become so unsound that it is no longer suitable to the people of this State, departure from the rule should be the extraordinary case, especially so when the change will have a harmful effect upon society.

We have recognized two circumstances when it is appropriate for this Court to overrule its own precedent. First, this Court may strike down a decision that is, "clearly wrong and contrary to established principles." Adams, 406 Md. at 259, 958 A.2d at 307 (quoting Townsend v. Bethlehem-Fairfield Shipyard, Inc., 186 Md. 406, 417, 47 A.2d 365, 370 (1946)). Further, "previous decisions of this court should not be disturbed . . . unless it is plainly seen that a glaring injustice has been done or some egregious blunder committed." State v. Green, 367 Md. 61, 79, 785 A.2d 1275, 1285 (2001) (quoting Greenwood v. Greenwood, 28 Md. 369, 381 (1868)). Second, precedent may be overruled when there is a showing that the precedent has been superseded by significant changes in the law or facts. Livesay, 384 Md. at 15, 862 A.2d at 41; Harrison v. Montgomery County Bd. of Edue., 295 Md. 442, 459, 456 A.2d 894, 903 (1983) (allowing departure from stare decisis when there are "changed conditions or increased knowledge that the rule has become so unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people").

The Freeds rely on several of our decisions to argue that this Court has held that precedent does not have to be followed in certain circumstances. First, the Freeds contend that constitutional issues are less constrained by the principles of stare decisis. They cite Bozman v. Bozman, where we quoted the United States Supreme Court in saying, "when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow a precedent." 376 Md. 461, 493-94, 830 A.2d 450, 469 (2003) ( quoting Payne v. Tennessee, 501 U.S. 808, 827-828, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 737 (1991)). Next, the Freeds note Townsend where we said, "it is sometimes advisable to correct the decision or decisions wrongly made in the first instance, if it is found that the decision is clearly wrong and contrary to established principle." 186 Md. at 417, 47 A.2d at 370. For the reasons stated below, we hold that neither of these circumstances are applicable or justify abandoning stare decisis in this case.

The Cap on non-economic damages, as codified in the Courts and Judicial Proceedings Article § 11-108, was intended to address a legislatively-identified insurance crisis in Maryland at the time of enactment. Murphy, 325 Md. at 368, 601 A.2d at 114-15. This intent was effectuated by imposing a limit on the amount of non-economic damages that a plaintiff could receive in certain tort cases. Id. There are two cases with direct bearing on the cross-petition issue in this case. In Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992), we concluded that a constitutional challenge to the Cap should be scrutinized on a rational basis standard of review, rather than a heightened level of scrutiny. 325 Md. at 362, 601 A.2d at 113. We stated the Cap "does not implicate such an important `right' as to trigger heightened scrutiny. Instead, the statute represents the type of economic regulation which has regularly been reviewed under the traditional rational basis test by this Court and the Supreme Court." Id. We also held that the Cap did not violate equal protection guarantees or infringe on a plaintiffs right to a jury trial. 325 Md. at 354, 375, 601 A.2d at 108, 118.

In Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995), this Court once again upheld the constitutionality of the Cap on non-economic damages. In evaluating the application of the Cap to a non-injured spouse's loss of consortium claim for her injured spouse, we reasoned that not applying the statutory Cap equally to a personal injury claim and a loss of consortium claim would allow the injured spouse to receive one and a half times more in non-economic damages than was intended by the Cap. 339 Md. at 38, 660 A2d at 430. We therefore held that the Cap on non-economic damages applied to loss of consortium cases, thus affirming Murphy's determination that the Cap itself was constitutional. 339 Md. at 37, 660 A.2d at 428.

Nonetheless, the Freeds argue in favor of heightened scrutiny, stating rational basis scrutiny should not apply because § 11-108 implicates the important personal rights to full redress for injury and trial by jury. We evaluated and rejected this argument in Murphy. 325 Md. at 362, 373, 601 A.2d at 114, 118. Regarding access to the courts, we stated, "[t]jhere is a distinction between restricting access to the courts and modifying the substantive law to be applied by the courts. [A] plaintiffs' cause of action based on negligence was not abolished by § 11-108. Instead, § 11-108 simply modifies the law of damages to be applied in tort cases." Murphy, 325 Md. at 366, 601 A.2d at 114. Further, the right to a jury trial is likewise unaffected by the Cap. The Cap reflects a policy judgment by the General Assembly which does not interfere with the underlying right to a trial by jury because plaintiffs will still have a jury determine the facts and assess liability. Franklin v. Mazda Motor Corp., 704 F.Supp. 1325, 1331 (D.Md. 1989).

Equal protection is also not violated by the statutory limitation on non-economic damages. The Freeds argue that the Cap created a classification between less seriously injured tort plaintiffs, who are entitled to keep everything awarded by a jury, and more seriously injured plaintiffs, who are not entitled to receive non-economic damages that exceed the cap. Under this theory, the Freeds argue that this classification should be subjected to a heightened standard of review.

The Freeds' contention was rejected in Murphy and we uphold our previous decision. In Maryland, this Court has noted that the General Assembly may modify common law rights and remedies. Murphy, 325 Md. at 362, 601 A.2d at 112. Such changes will invariably favor one party to the disadvantage of another in litigation. Murphy, 325 Md. at 363, 601 A.2d at 112. This result, however, does not create a classification between affected parties, and certainly not a classification subject to heightened scrutiny. Id. Instead, we follow the United States Supreme Court standard for reviewing classifications that are challenged under the equal protection guarantees. Murphy, 325 Md. at 362, 601 A.2d at 111. The Cap is the type of economic classification that has been regularly reviewed under the traditional rational basis test.

The Freeds' contention that the Cap fails even rational basis scrutiny is also without merit. The rational basis test is highly deferential; it presumes a statute is constitutional and should be struck down only if the reviewing court concludes that the Legislature enacted the statute irrationally or interferes with a fundamental right. Conaway v. Deane, 401 Md. 219, 274-75, 932 A.2d 571, 604 (2007). As discussed in Murphy:

The General Assembly's objective in enacting the cap was to assure the availability of sufficient liability insurance, at a reasonable cost, in order to cover claims for personal injuries to members of the public. This is obviously a legitimate legislative objective. A cap on non-economic damages may lead to greater ease in calculating premiums, thus making the market more attractive to insurers, and ultimately may lead to reduced premiums, making insurance more affordable for individuals and organizations performing needed services. The cap, therefore, is reasonably related to a legitimate legislative objective.

Turning to the Freeds' argument that we should abandon our precedent, Maryland has never adopted a rule such as reflected in the Freeds' contention that constitutional precedents are less deserving of robust stare decisis protection than are other rulings. The constitutional nature of the Freeds' challenge cannot alone justify overriding precedent. Overall, the constitutional challenges put forth by the Freeds are essentially the same challenges that we rejected in Murphy and Oaks. More than 17 years have passed since our decision in Murphy. Both the underlying rationale in Murphy and the Cap itself have become embedded in the bedrock of Maryland law.¹¹ These rulings require as much deference as non-constitutional cases, and are not less protected by stare decisis based solely on their constitutional nature.

Finally, the Freeds argue that stare decisis should not apply because the reasoning and factual premises underlying our decision in Murphy v. Edmonds were clearly wrong. The Freeds first point to individual members of the Judiciary who have rejected the Cap. The Freeds highlight Judge Chasanow's dissent in Murphy. He wrote:

It seems to me that the right to recover full and fair compensation from a tortfeasor is an important personal right, and any limitation on that right should be subject to "heightened" or "intermediate" scrutiny. Further, in my opinion, legislation limiting recovery of noneconamic damages . . . should not survive heightened scrutiny in . . . tort actions where there has been no clearly established need for such legislation.

In light of his view that the classification created by § 11-108 infringes upon an "important right," the trial judge concluded that equal protection principles required that the classification be subject to a "heightened scrutiny" test. Applying a "heightened scrutiny" test, the trial judge held that § 11-108 violated the equal protection guarantee.

The present case does not satisfy the tests for rejecting stare decisis or the Murphy and Oaks precedents which upheld the constitutionality of the Cap. Merely arguing that the majority was wrong in Murphy is not sufficient grounds to abrogate the principles of stare decisis. This case does not fall under the two exceptions to stare decisis recognized in Maryland. Unlike Townsend, there has been no evidence or persuasive arguments put forth that our decision in Murphy was clearly wrong or contrary to established principles. The Freeds have not shown a significant change in the underlying facts and circumstances. This Court is therefore constrained by our prior decisions in upholding the constitutionality of the Cap.

The Circuit Court erred in granting DRD's motion for summary judgment on the issue of Connor's conscious pain and suffering. We hold that eye witness testimony is not the sole means by which an evidentiary predicate may be laid from which a reasonable inference of conscious pain and suffering may be drawn. Expert testimony and case-specific facts may be sufficient grounds to submit the issue to the jury.

We affirm the Court of Special Appeals in denying the motion to amend or alter the judgment, and upholding the statutory cap on non-economic damages. We reaffirm the constitutionality of the Cap as explicated in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 and Oaks v. Connors, 339 Md. 24, 660 A.2d 423. In the present case, the Freeds have offered no evidence of a clear error, or a change in law or circumstances that would justify disregarding stare decisis and rendering the Cap unconstitutional. In our view, the Cap continues to serve a legitimate government purpose.

MURPHY, J., Concurs and Dissents.

"That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." Md. Dec. of Rts. Art. 24; "Although the Maryland Constitution contains no express equal protection clause, it is settled that the Due Process Clause of the Maryland Constitution, contained in Article 24 of the Declaration of Rights, embodies the concept of equal protection of the laws to the same extent as the Equal Protection Clause of the Fourteenth Amendment." Murphy v. Edmonds, 325 Md. 342, 353, 601 A.2d 102, 108 (1992).