from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia M. Feland, Judge.
J. Conlin (argued), Stacy D. Stennes (appeared), Minneapolis,
MN, and Robert V. Bolinske Jr. (on brief), Bismarck, ND, for
plaintiff and appellee.
Vigness Kolb (argued), Bismarck, ND, and Rodger A. Hagen (on
brief), Minneapolis, MN, for defendants and appellants.
Matthew A. Sagsveen, Office of Attorney General, Bismarck,
ND, for amicus curiae State of North Dakota.
Courtney Koebele, Bismarck, ND, Mark A. Behrens and Cary
Silverman, Washington, DC, for amicus curiae North Dakota
Timothy Q. Purdon, Bismarck, ND, and Glenn A. Danas, Los
Angeles, CA, for amicus curiae North Dakota Association for
Dr. Allen Booth and St. Alexius Medical Center appeal from a
district court judgment finding North Dakota's
noneconomic damages cap in medical malpractice cases
unconstitutional. Dr. Booth and St. Alexius also argue the
district court erred in denying a motion for a new trial. We
reverse in part, affirm in part, and remand for a reduction
of the award of noneconomic damages.
On May 29, 2012, Chenille Condon gave birth to a child at St.
Alexius Medical Center. Within hours, Condon complained about
chest discomfort and shortness of breath. A pulmonary
embolism was suspected and testing was ordered in an effort
to diagnose the issue. Testing revealed multiple pulmonary
nodules in Condon's mediastinum. Condon was eventually
referred to Dr. Booth for a mediastinoscopy for the purpose
of collecting a larger tissue sample. The larger tissue
sample was necessary for a definitive diagnosis.
Not long into the procedure, an injury occurred to
Condon's right innominate artery, resulting in
life-threatening bleeding. Dr. Booth called for the
assistance of a surgeon, and they repaired the injured
vessel. After surgery, Condon was placed in intensive care
where she had a stroke. The stroke was related to the injury
that occurred during surgery. Condon underwent rehabilitation
for several months.
Condon filed a medical malpractice claim against Dr. Booth.
After nine days of proceedings, the jury returned a verdict
finding negligence and awarding Condon $265, 000 in past
economic loss, $1.735-million in future economic loss, $150,
000 in past noneconomic loss, and $1.350-million in future
Dr. Booth sought a reduction of noneconomic damages under
N.D.C.C. § 32-42-02, the noneconomic damages cap in
medical malpractice actions, and a reduction of the past
economic damages pursuant to the collateral-source rule,
N.D.C.C. § 32-03.2-06. Condon opposed the reductions and
challenged the constitutionality of N.D.C.C. § 32-42-02.
The district court granted Dr. Booth's motion with regard
to the collateral-source reduction and, after finding
N.D.C.C. § 32-42-02 unconstitutional on equal-protection
grounds, denied the remainder of Dr. Booth's motion.
Dr. Booth also sought a new trial or, in the alternative, a
reduction in the verdict. The district court denied the
motion for a new trial, but granted the request to reduce the
past-economic-loss award to $150, 000.
Dr. Booth argues the district court erred in holding N.D.C.C.
§ 32-42-02 to be unconstitutional. In determining
whether a statute is constitutional, we have stated:
Whether a statute is unconstitutional is a question of law,
which is fully reviewable on appeal. All regularly enacted
statutes carry a strong presumption of constitutionality,
which is conclusive unless the party challenging the statute
clearly demonstrates that it contravenes the state or federal
constitution. The justice, wisdom, necessity, utility and
expediency of legislation are questions for legislative, and
not for judicial determination. This Court exercises the
power to declare legislation unconstitutional with great
restraint. Under N.D. Const. art. VI, § 4, this Court
shall not declare a legislative enactment unconstitutional
unless at least four of the members of the court so decide.
Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d
505 (citations and quotations omitted).
"[A]n Act of the legislature is presumed to be correct
and valid, and any doubt as to its constitutionality must,
where possible, be resolved in favor of its validity."
S. Valley Grain Dealers Ass'n v. Bd. of Cty.
Comm'rs, 257 N.W.2d 425, 434 (N.D. 1977). "A
statute enjoys a conclusive presumption of constitutionality
unless it is clearly shown that it contravenes ...