On September 24, 2010, the Court of Appeals of Maryland issued its much anticipated opinion in DRD Pool Service, Inc. v. Freed, in which it upheld Maryland’s cap on noneconomic loss. The opinion was grounded on past common law precedent upholding the cap in prior challenges. The court refused to revisit two prior decisions upholding the cap on constitutional grounds and refused to apply a heightened standard of scrutiny as to whether the cap is constitutional. Instead, the court applied the lowest level of rational basis scrutiny in holding that the potential impact on the insurance industry and insurance premiums in allowing unlimited awards for noneconomic loss was a rational justification for the legislature to impose the cap. The court also determined there was sufficient evidence of conscious pain and suffering offered through expert testimony on the issue of whether the decedent, a minor, who drowned in a swimming pool, suffered conscious pain and suffering prior to his death despite the absence of independent eyewitness accounts that the child demonstrated behavior indicative of struggle or conscious suffering. The court therefore affirmed the decision of the Maryland Court of Special appeals on both issues.
The court took a very narrow approach on the issue of whether it should deviate from prior rulings on the issue of the cap. One could argue this was a matter of convenience, politics, or legitimate concern for upholding prior decisions. One wonders, however, what the “litmus test” is for reconsideration of prior precedent since over the last several years, the Court of Appeals has overruled prior precedent in cases involving informed consent and accidental injury in workers’ compensation cases, both of which would have a similar impact on insurance premiums. Ironically, those cases were not cited by the court in its determination that prior decisions control.
The court disagreed with the trial court’s grant of summary judgment on the issue of whether sufficient proof of conscious pain and suffering was offered for jury consideration. The plaintiffs had offered expert testimony as to what typically would be experienced by a drowning victim, while the defense argued that the absence of eyewitness accounts of actual struggle and distress eliminated proof that a jury could consider. In the end, the court held that the decedent’s conscious pain and suffering hinged upon the objective evidence of the decedent’s medical history, the autopsy report, and the expert’s opinion, which the court held supported a “reasonable inference” that the decedent was conscious when he entered the water and suffering while drowning. The trial court’s grant of summary judgment due to the absence of subjective evidence of the decedent’s actual conscious pain and suffering was therefore reversed. The court found the plaintiffs’ expert credible and well credentialed and, unlike the trial court, gave considerable weight to his opinions.
Belsky, Weinberg & Horowitz has written extensively about the unfairness and illogic of damages caps. The firm continues to advocate against application of caps in favor of a “free market” jury deliberation process where the “people” ultimately decide what damages should be awarded. Judges continue to retain remittitur powers to reduce jury awards that they consider unfair or unconscionable. We will never give up the fight for injured victims and hope that at a future date, the impact on insurance premiums will be further explored and countered by the impact on the injured and their families. Please contact us with any questions.