Summary
In Yanakos, the Pennsylvania Supreme Court explicitly characterized the issue before it as “whether the seven-year statute of repose in Section 1303.513(a) of [MCARE] comports with Article 1, Section 11 of the Pennsylvania Constitution.” Id. at 1216 (emphasis added).
Summary of this case from Hodges v. Sunrise Senior Living Mgmt.Opinion
No. 10 WAP 2018
10-31-2019
Christopher G. YANAKOS, Susan Kay Yanakos and William Ronald Yanakos, Her Husband, Appellants v. UPMC, University of Pittsburgh Physicians, Amadeo Marcos, M.D. and Thomas Shaw-Stiffel, M.D., Appellees
Justice Mundy files the Opinion of the Court with respect to Part I and Part III to the extent supported by Justice Donohue as indicated in her concurring and dissenting opinion. Justice Mundy also files an opinion with respect to Part II, joined by Justices Todd and Dougherty, and announces the Judgment of the Court .
In this appeal by allowance, we consider whether the seven-year statute of repose in Section 1303.513(a) of the Medical Care Availability and Reduction of Error Act (MCARE Act) comports with Article I, Section 11 of the Pennsylvania Constitution, which guarantees "[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law[.]" PA. CONST. art. I, § 11. Because we conclude the seven-year statute of repose is not substantially related to an important government interest, we reverse the Superior Court's order affirming the trial court's grant of judgment on the pleadings and remand for further proceedings.
40 P.S. §§ 1303.101 -1303.910.
I.
Susan Yanakos suffers from a genetic condition called Alpha-1 Antitrypsin Deficiency (AATD). Patients with AATD do not produce enough Alpha-1 Antitrypsin, a protein synthesized in the liver that plays an important role in protecting the lungs from damage. R.R. at 4a-5a. In the summer of 2003, one of Susan's physicians, Dr. Amadeo Marcos, advised her that she needed a liver transplant due to the progression of her AATD. Because Susan was not a candidate for a cadaver liver, her son Christopher volunteered to donate a lobe of his liver to his mother.
Christopher underwent an extensive medical evaluation to determine whether he was a suitable liver donor. As part of that process, and at Dr. Marcos's request, Dr. Thomas Shaw-Stiffel evaluated Christopher. Christopher advised Dr. Shaw-Stiffel that several of his family members suffered from AATD, but that he was unsure whether he did as well. Dr. Shaw-Stiffel ordered additional laboratory tests for Christopher, but never informed him of the results, which allegedly showed that Christopher had AATD and was not a candidate for liver donation. One month after Christopher's consultation with Dr. Shaw-Stiffel, in September 2003, Dr. Marcos went forward with the operation, removing a portion of Christopher's liver and transplanting it into Susan.
Our summary of these facts is based upon the allegations in the Yanakoses' complaint. While Appellees contest many of these allegations, the disputed facts were not submitted to a fact-finder because the trial court granted Appellees' motion for judgment on the pleadings. See Cagey v. Commonwealth , 645 Pa. 268, 179 A.3d 458, 463 (2018) (explaining our standard of review over a decision sustaining a judgment on the pleadings requires us to determine whether, on the facts asserted in the plaintiff's complaint, the law makes recovery impossible).
More than twelve years later, in December 2015, Christopher, Susan, and Susan's husband, William Yanakos (collectively "the Yanakoses") sued UPMC, University of Pittsburgh Physicians, Dr. Marcos, and Dr. Shaw-Stiffel (collectively "Appellees"). In their complaint, the Yanakoses raised claims for battery/lack of informed consent, medical malpractice, and loss of consortium. The Yanakoses alleged that they did not discover Appellees' negligence until eleven years after the transplant surgery, when additional testing revealed that Susan still had AATD, which the transplant should have eliminated.
In their answer to the Yanakoses' complaint, Appellees raised the affirmative defense that the seven-year statute of repose in the MCARE Act barred the Yanakoses' claims. See 40 P.S. § 1303.513(a) (providing that "no cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract"). Appellees also filed a motion for judgment on the pleadings based on the MCARE Act's repose period.
Statutes of repose place a temporal boundary on the right to bring a civil action. Unlike statutes of limitations, which begin to run only after a cause of action has accrued, a statute of repose's time limit is measured from the date of the defendant's last culpable act or omission, regardless of when the injury occurred or was discovered. This means that a statute of repose, unlike a statute of limitations, may bar a plaintiff's suit before his or her cause of action even arises. Vargo v. Koppers Co., Eng'g & Constr. Div. , 552 Pa. 371, 715 A.2d 423, 425 (1998). Statutes of repose constitute a legislative judgment that a particular class of defendants should be free from liability after a fixed number of years.
The trial court concluded that it was bound by the plain language of the MCARE Act's seven-year statute of repose. The court explained that, while the MCARE Act contains two exceptions to the seven-year repose period, the Yanakoses' claims did not fall within either of those exceptions. Trial Ct. Op. at 5-6; see 40 P.S. § 1303.513(b) (exception for injuries caused by foreign objects left in a patient's body); 40 P.S. § 1303.513(c) (exception for malpractice claims commenced by or on behalf of a minor). Accordingly, the trial court granted Appellees' motion for judgment on the pleadings.
The Yanakoses appealed to the Superior Court, raising several constitutional challenges to the MCARE Act's seven-year statute of repose. Relevant to this appeal, the Yanakoses argued that the MCARE Act's repose period violates Article I, Section 11 of the Pennsylvania Constitution, which provides in pertinent part that "[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have a remedy by due course of law, and right and justice administered without sale, denial or delay." PA. CONST. art. I, § 11. Citing appellate court decisions from states with Open Courts provisions much like our own, the Yanakoses urged the Superior Court to hold that the MCARE Act's statute of repose interfered with the Article I, Section 11 right of access to the courts because its exception for foreign object plaintiffs was "arbitrary and capricious." See Yanakoses' Super. Ct. Brief at 43-45 (relying on Berry v. Beech Aircraft Corp. , 717 P.2d 670, 680 (Utah 1985) ).
The Superior Court rejected the Yanakoses' argument. The panel explained that this Court, in Freezer Storage, Inc. v. Armstrong Cork Co. , 476 Pa. 270, 382 A.2d 715 (1978), held that a twelve-year statute of repose on claims against architects and builders did not violate the Open Courts provision of the Pennsylvania Constitution. Yanakos v. UPMC , 2017 WL 3168991, at * 7 (Pa. Super. 2017) (unpublished memorandum). The appellant in Freezer Storage argued only that the Open Courts provision precluded the legislature from abolishing a cause of action without implementing another remedy. Freezer Storage , 382 A.2d at 720. Although Freezer Storage rejected as nonbinding dicta language in earlier cases that had suggested the General Assembly might need to create an adequate substitute remedy in order to eliminate a common law cause of action, the decision in Freezer Storage was narrow. We did not hold that the legislature possesses an unlimited authority to modify the common law, nor did we articulate a concrete test for measuring the lawfulness of statutes that abolish or modify common law remedies. See id. at 721 ("To the extent that the dictum [in Dolan v. Linton's Lunch ] suggests that the Legislature may never abolish a judicially recognized cause of action, we decline to follow it."). Nevertheless, the Superior Court's conclusion that the MCARE Act's statute of repose did not violate Article I, Section 11 was based entirely upon the precept—announced in Freezer Storage —that the Constitution "does not prohibit the Legislature from abolishing a common law right of action without enacting a substitute means of redress." Yanakos , 2017 WL 3168991, at *7 (citing Freezer Storage , 382 A.2d at 720 ).
In Freezer Storage , the appellant had sued the construction company that originally installed insulation material in a warehouse ceiling that eventually collapsed. Freezer Storage , 382 A.2d at 717. The defendant asserted the twelve-year statute of repose precluded the action because it completed the construction more than twelve years before the appellant commenced its lawsuit. Id. at 718.
See Dolan v. Linton's Lunch , 397 Pa. 114, 152 A.2d 887, 892 (1959) (suggesting that the General Assembly cannot "enact a law which vitiates an existing common-law remedy without concurrently providing for some statutory remedy"); see also Greer v. U.S. Steel Corp , 475 Pa. 448, 380 A.2d 1221, 1223 n.6 (1977) (same).
The Yanakoses filed a petition for allowance of appeal, arguing that the Superior Court misapplied Freezer Storage , and, in doing so, implicitly nullified the constitutional right to a remedy. We granted the Yanakoses' petition to consider whether the MCARE Act's seven-year statute of repose violates Article I, Section 11 of the Pennsylvania Constitution. Yanakos v. UPMC , 646 Pa. 14, 183 A.3d 346 (Pa. 2018) (per curiam).
Because we are reviewing the trial court's order sustaining judgment on the pleadings, our standard of review is to determine whether, based on the facts the plaintiffs pled, "the law makes recovery impossible." Cagey , 179 A.3d at 463. Moreover, the constitutionality of a statute is a question of law, over which our standard of review is de novo, and our scope of review is plenary. Pa. Envtl. Def. Found. v. Commonwealth , 640 Pa. 55, 161 A.3d 911, 929 (2017).
Before this Court, the Yanakoses argue that legislation which deprives medical malpractice victims of their right to file a civil action "must be subjected to exacting constitutional scrutiny." Yanakoses' Brief at 12. This is so, according to the Yanakoses, because the right to a remedy for every wrong is deeply rooted in the Anglo-American legal tradition and explicitly enshrined in the Pennsylvania Constitution. Id. at 14. The Yanakoses concede that the right to seek a remedy in the courts is not unfettered, and they acknowledge that the General Assembly may impose some limits on traditional common law theories of recovery. Even so, they argue that any such statutory restrictions or limits must be subject to intermediate scrutiny. Id. at 18-19 (recognizing this Court applied intermediate scrutiny to an Article I, Section 11 constitutional challenge in James v. Southeastern Pennsylvania Transportation Authority , 505 Pa. 137, 477 A.2d 1302, 1306 (1984) ). According to the Yanakoses, the MCARE Act's statute of repose cannot withstand intermediate scrutiny because the General Assembly clearly recognized the harshness of the statute of repose when it preserved access to courts for foreign object malpractice victims. Id. at 12; see also 40 P.S. § 1303.512(b) (providing that the statute of repose shall not apply "[i]f the injury is or was caused by a foreign object unintentionally left in the individual's body"). The Yanakoses contend that this distinction between foreign object malpractice claims and non-foreign object malpractice claims is not "substantially related to the government's important objective of reducing medical costs." Yanakoses' Brief at 35. In other words, the Yanakoses believe that the MCARE Act's statute of repose fails to withstand intermediate scrutiny "because, as applied, it bars the cause of action of some injured patients, while allowing others who were similarly injured to proceed." Id. at 20 (emphasis omitted). Along these lines, the Yanakoses assert that the law "goes beyond the government's legitimate purpose by unduly eliminating the important right of certain victims of medical malpractice from seeking any remedy through no fault of their own." Id.
The Yanakoses argue, in the alternative, that we should apply strict scrutiny to laws that interfere with the right of access to the courts. They contend that strict scrutiny is warranted because "the right of injured parties to seek redress before a court of law" is a "fundamental right" that is "deeply ingrained in our system of liberties." Yanakoses' Brief at 21-22 (citing Grutter v. Bollinger , 539 U.S. 306, 326-27, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) ).
Appellees, on the other hand, argue that "[t]he Open Courts provision only applies when a statute extinguishes a right (such as a cause of action or defense) after that right has already accrued/vested." UPMC's Brief at 10; see Ieropoli v. AC & S Corp. , 577 Pa. 138, 842 A.2d 919, 930 (2004) (explaining that Article 1, Section 11 prevents the General Assembly from extinguishing an already-accrued cause of action). Appellees emphasize that this is not the case here because the MCARE Act went into effect in 2002--about a year before Appellees' allegedly negligent conduct. Although Appellees concede that Article I, Section 11 prevents the General Assembly from extinguishing already vested legal claims, they argue it does not prevent the legislature from abolishing a recognized cause of action altogether. Id. at 11. When the General Assembly does abolish a cause of action (or, as is the case here, effectively abolishes it for some class of would-be plaintiffs), Appellees argue reviewing courts should apply the rational basis test and uphold the law as long as it is rationally related to a legitimate government interest. Id. at 20; Physicians' Brief at 17.
The four Appellees in this matter have filed two separate briefs. Although Appellees all offer similar arguments, when necessary to distinguish between the two filings, we will refer to the brief filed by UPMC and University of Pittsburgh Physicians as "UPMC's Brief" and the brief filed by Dr. Shaw-Stiffel and Dr. Marcos as "Physicians' Brief."
Alternatively, Appellees maintain that, even if we apply some form of heightened scrutiny, the MCARE Act's seven-year statute of repose nevertheless should be upheld. UPMC's Brief at 36. In this regard, Appellees contend that the statute of repose is justified given the Commonwealth's important interest in controlling the cost of professional liability insurance and in "curtailing litigation difficulties associated with stale claims." Id. at 37. Appellees posit that one way to reduce malpractice insurance premiums is to reduce the number of professional liability claims that insurers must pay and defend against. One method to accomplish that is by enacting a statute of repose, which removes the temporally unlimited exposure that would otherwise exist because of the discovery rule to the statute of limitations. II.
Although Appellees maintain that strict scrutiny is not warranted, they suggest that the statute of repose, and the exceptions to it, are narrowly tailored to further the Commonwealth's important interest in controlling the cost of medical professional liability insurance. UPMC's Brief at 37.
A.
The Pennsylvania Constitution provides our citizens with a right to a remedy in Article I, Section 11, which states:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
PA. CONST. art. I, § 11. In the past, this Court has recognized that Article 1, Section 11 "provided that where a legal injury is sustained, there shall and will always be access to the courts of this Commonwealth." Masloff v. Port Auth. of Allegheny County , 531 Pa. 416, 613 A.2d 1186, 1190 (1992). Although the Federal constitution does not contain an analogous protection, the majority of state constitutions include a similar provision. See David Schuman, The Right to a Remedy , 65 TEMP. L. REV. 1197, 1201 (1992) (noting "the citizens of thirty-nine states can claim a constitutional ‘right to a remedy.’ ").
Historically, this Court and other state courts have traced the foundation of the "right to a remedy" to the Magna Carta. Ieropoli , 842 A.2d at 925 (Pa. 2004) ("This provision, commonly referred to as the ‘open courts’ or ‘remedies’ clause, is derived from Magna Carta and Sir Edward Coke's Seventeenth Century commentary on the Great Charter, which was relied upon by the drafters of early American state constitutions."); Schuman, supra , at 1199 (explaining modern remedies clauses are derived from Lord Coke's commentary on Magna Carta); see also Menges v. Dentler , 33 Pa. 495, 498 (Pa. 1859) ("Parliament may disregard Magna [Carta], but our legislature must obey the constitution."). The Remedies Clause was added to the Pennsylvania Constitution in 1790. As an overview, the 1789-1790 constitutional convention:
See, e.g., Lankford v. Sullivan, Long & Hagerty , 416 So.2d 996, 999 (Ala. 1982) ; Kenyon v. Hammer , 142 Ariz. 69, 688 P.2d 961, 966 n.2 (1984) ; State ex rel. Cardinal Glennon Mem'l Hosp. for Children v. Gaertner , 583 S.W.2d 107, 110 (Mo. 1979).
repealed Pennsylvania's frame of government enacted in the early months of the Revolution, replacing it with the 1790 Constitution, a document that embodied the republican principles of 1776: a Bill of Rights, an independent judiciary, and an elected legislature and executive. The new frame of government, however, significantly altered the relationship between the branches of government. Gone were the weak plural executive and the all-powerful unicameral Assembly; in their place the delegates provided for a governor equipped with veto power and a bicameral legislature. Furthermore, the convention established the direct popular election of the governor and the members of the Senate and House of Representative and provided for legislative districts based on equitable divisions of population.
Joseph S. Foster, The Politics of Ideology: The Pennsylvania Constitutional Convention of 1789-1790 , 59 PA. HIST. : J. MID-ATLANTIC STUD. 122, 123 (1992).
Focusing on the Remedies Clause, the minutes of the constitutional convention reveal that the Remedies Clause was originally proposed without the second sentence limiting suits against the Commonwealth. MINUTES OF THE CONVENTION OF 1789-90, at 162 (memorializing committee report of Dec. 23, 1789), available at https://www.paconstitution.org/wp-content/uploads/2017/11/proceedings1776-1790-1.pdf. The drafters later added a second sentence providing "[s]uits may be brought against the [C]ommonwealth as well as against other bodies corporate and individuals" without the limitation that the legislature could limit suits against the Commonwealth. Id. at 282 (Aug. 27, 1790 convention amendment). Subsequently, the drafters struck the phrase "as well as against other bodies corporate and individuals" and substituted "in such manner, in such courts and in such cases as the legislature shall, by law, direct." Id. at 291-92 (Aug. 31, 1790 convention amendment). Apart from showing how the drafters limited the right to a remedy in suits against the Commonwealth, the minutes of the convention do not contain any meaningful discussion of the Remedies Clause.
As introduced, the Remedies Clause provided: "That all courts shall be open, and every freeman for an injury done him in his lands, goods, person or reputation, shall have remedy by the due course of law, and right and justice administered to him without sale, denial or delay." This language is similar to Lord Coke's commentary on the Magna Carta: "[E]very Subject of this Realm, for injury done to him [either in his goods, lands, or person], by any other Subject ... may take his remedy by the course of the Law, and have justice, and right for the injury done to him, freely without sale, fully without denial, and speedily without delay." Edward Coke, The Second Part of the Institutes of the Laws of England 55-56 (1681), available at http://lawlibrary.wm.edu/wythepedia/library/CokeSecondPartOfInstitutesOfTheLawsOfEngland1681.pdf.
In recognizing that Article I, Section 11 protects a citizen's right to a remedy, this Court has interpreted it as an "imperative limitation[ ] on legislative authority, and imperative imposition[ ] of judicial duty." Menges , 33 Pa. at 498. Notwithstanding this interpretation, however, in more recent opinions, we have recognized the inherent legislative prerogative of guiding the formation of the law. Freezer Storage , 382 A.2d at 721. Indeed, in upholding a statute of repose that limited the liability of individuals performing building repairs, we noted the balance between the legislature guiding the law and the courts in interpreting it:
This Court would encroach upon the Legislature's ability to guide the development of the law if we invalidated legislation simply because the rule enacted by the Legislature rejects some cause of action currently preferred by the courts. To do so would be to place certain rules of the "common law" and certain non-constitutional decisions of courts above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law.
Id. In crafting the jurisprudence surrounding the remedies clause in this way, we diverged from a quid pro quo analysis of the remedies clause, where "we originally required the legislature to provide a substitute remedy anytime it eliminated a remedy." Konidaris v. Portnoff Law Assocs. , 598 Pa. 55, 953 A.2d 1231, 1240 (2008). This line of cases represented a shift away from treating the constitutional protections inherent in the remedies clause as a fundamental right. Compare id. , and Freezer Storage , 382 A.2d at 721, with Kelly v. Brenner , 317 Pa. 55, 175 A. 845, 847 (1934) (describing the right to a remedy and open courts as a "fundamental right[ ] which should not be infringed upon, unless no other course is reasonably possible").
As the Konidaris Court determined, inasmuch as Dolan v. Linton's Lunch stood for the proposition that the legislature may not abolish a judicially recognized cause of action, it was dicta and was expressly not followed by this Court.
Because this Court has "curtailed the reach of the remedies clause" in the past, it follows that the right to a remedy is not a fundamental right. Konidaris , 953 A.2d at 1241. Nonetheless, based on the right's explicit inclusion in our constitution, coupled with its historical significance, the right to a remedy is an important right. See PA. CONST. art. I, § 11 ; see also Smith v. City of Phila. , 512 Pa. 129, 516 A.2d 306, 311 (1986) (plurality opinion) (explaining "[b]ecause the right implicated ... —access to the courts—is specifically limited by Art. I, § 11 of the Pennsylvania Constitution, we concluded that it is not a fundamental right").
B.
Because the MCARE Act curtails the important constitutional right to a remedy, we must apply intermediate scrutiny to determine whether the MCARE statute of repose is substantially related to achieving an important government interest. See Craig v. Boren , 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Statutes which infringe on the right to a remedy—and other important rights—are subject to a heightened level of scrutiny. See James , 477 A.2d at 1306 (applying a heightened standard of review when analyzing a law which restricted the plaintiff's "important interest in access to the courts"); see also Smith , 516 A.2d at 311 (Noting that the "important interest in access to the courts ... should be examined pursuant to an intermediate standard of review.").
At least four other states have applied intermediate scrutiny to invalidate statutes of repose as unconstitutional. See Lankford , 416 So.2d at 1001 (declaring its "review is directed to the question whether a substantial relationship exists between the [social] evil and the legislature's attempt to eradicate the evil."); Hanson v. Williams County , 389 N.W.2d 319, 328 (N.D. 1986) (declaring unconstitutional a products liability statute of repose because it did not have "a close correspondence to the legislative goals"); Heath v. Sears, Roebuck & Co. , 123 N.H. 512, 464 A.2d 288, 295 (1983) (invalidating products liability statute of repose under intermediate scrutiny because it was not "substantially related to a legitimate legislative object"); Berry , 717 P.2d at 683 (concluding products liability statute of repose was unconstitutional because it did not "reasonably and substantially advance the stated purpose of the statute").
More colloquially deemed intermediate scrutiny,
[t]his standard of review requires that the government interest be an ‘important’ one; that the classification be drawn so as to be closely related to the objectives of the legislation; and that the person excluded from an important right or benefit be permitted to challenge his exclusion on the grounds that in his particular case, denial of the right or benefit would not promote the purpose of the classification.
Smith , 516 A.2d at 311. Under intermediate scrutiny, the proponent of the statute "bears the burden of proof on the appropriateness of the means it employs to further its interest." Binderup v. Attorney Gen. U.S. , 836 F.3d 336, 353 (3d Cir. 2016) (citing Bd. of Trs. of State Univ. of N.Y. v. Fox , 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) ).
Unlike the rational basis test, intermediate scrutiny does not evaluate the reasonableness or arbitrariness of legislation. See, e.g. , William Penn Sch. Dist. v. Pa. Dep't of Educ. , 642 Pa. 236, 170 A.3d 414, 458 (2017) ("If the rational basis test applies, then the classification in question must be ‘reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation.’ " (quoting Commonwealth v. Albert , 563 Pa. 133, 758 A.2d 1149, 1151 (2000) ); Commonwealth v. Parker White Metal Co. , 512 Pa. 74, 515 A.2d 1358, 1365 (1986) (explaining rational basis analyzes the legislation's reasonableness, arbitrariness, and relation to its objective).
That this Court in James has identified the Article I, Section 11 right as important and applied intermediate scrutiny in evaluating challenges implicating that right belies the dissenting opinion's position that intermediate scrutiny is "manifestly incompatible with our existing Remedies Clause jurisprudence[.]" Dissenting Op. (Wecht, J.) at 1243. Further, the dissent's recognition that the 1790 Constitution was a response to unchecked legislative power is in tension with its adoption of a "heightened scrutiny" test that is deferential to legislative enactments. Compare id. at 1240 with id. at 1242–43. The dissent's "heightened scrutiny" is a hybrid test that subjects the legislature's goal to higher scrutiny ("response to a clear social or economic need") but does not similarly subject the legislature's means to any additional scrutiny ("a rational and non-arbitrary connection to that need"). Id. at 1242; see also Kramer v. Workers' Comp. Appeal Bd. (Rite Aid Corp.) , 584 Pa. 309, 883 A.2d 518, 534 (2005) (noting rational basis test is deferential to legislative enactments). Under this "heightened scrutiny," as long as the legislature seeks to ameliorate a clear social or economic need, the means it selects, i.e. the legislation, are reviewed under a rational basis standard to determine if they are rational and non-arbitrary. Pennsylvania courts have never utilized such a test in connection with the Remedies Clause or otherwise. Further, we reject this test because it does not adequately safeguard the important right to a remedy.
We recognize James involved an equal protection challenge invoking the right to a remedy, and we find no reason to treat differently a direct challenge under Article I, Section 11.
III.
Applying intermediate scrutiny, we conclude the governmental interest in controlling the rising costs of medical malpractice insurance premiums and of medical care is important. However, the MCARE Act's statute of repose as enacted is not substantially related to achieving those goals. Generally, statutes of repose are intended to provide actuarial certainty to insurers in calculating insurance premium rates:
Perhaps the most noted justification for statutes of repose is the desire to alleviate the insurance problem facing manufacturers, the medical profession, and the construction industry. Responsibility for older products, latent medical problems, and ‘permanent’ or durable improvements expose these groups to abnormally long periods of potential liability and unusually large numbers of potential plaintiffs. Proponents contend that this ‘long-tail’ problem is the principal culprit in the alleged ‘insurance crisis.’ Theoretically, by cutting off a defendant's liability after a given number of years, statutes of repose lead to more certain liability and thus provide greater actuarial precision in setting insurance rates. More certain liability and stabilized insurance rates in turn facilitate efficient business planning and ultimately benefit businessmen, professionals, consumers, and the economy.
Josephine Herring Hicks, The Constitutionality of Statutes of Repose: Federalism Reigns , 38 VAND. L. REV. 627, 632-33 (1985) (footnotes omitted). Indeed, a review of the legislative history of the MCARE Act indicates this was the purpose of including a statute of repose. Representative Curtis Schroder, who sponsored the amendment introducing a statute of repose, stated:
Well, right now, of course, there is a 2-year statute of limitations with a discovery rule, and the problem with that is, it is very difficult for any malpractice insurer to come up with accurate rates based upon any predictability, any stability or certainty, and part of our whole effort here is to provide the stability and predictability that malpractice carriers will need and have told us that they will need to come back into the State of Pennsylvania and to help reduce this crisis.
H.B. 1802, House Journal, Jan. 29, 2002, at 116.
At the time of Representative Schroder's remarks, the proposed bill contained a four-year statute of repose. H.B. 1802, 186th Leg., Printer's No. 3202, at 99 (Pa. Jan. 29, 2002). It did not include a time-limit for foreign objects cases. Id. Further, minors whose claim accrued when they were younger than 14 had to commence an action no later than four years from when their parent or guardian knew or should have known of the cause of action, or four years from their fourteenth birthday, whichever was earlier. Id. Addressing a question about the limitation on minors' causes of action, Representative Schroder responded:
The American Medical Association issued model legislation, which contains a shorter repose period. It provided all causes of action must be commenced within two years, except foreign objects cases, which must be commenced within four years: "The time within which an action must be commenced shall not be extended by any of the provisions of this section including those relating to the discovery of foreign objects beyond four years after the date of the act, omission or failure giving rise to such action." Am. Med. Ass'n, Dep't of State Legislation, Statute of Limitations in Medical Injury Cases (1985), available at https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/specialty% 20group/arc/limitation.pdf. Further, it applied to "all persons regardless of minority or other legal disability, except that a minor under the full age of eight (8) years shall have until his/her tenth birthday to file suit based on a cause of action which accrued prior to his/her eighth birthday."
[T]he rationale was to try to establish a reasonable number that will, you know, provide predictability and stability in predicting these claims so the proper underwriting can occur and that the current system has really no way of predicting, you know, when or if or how long into the future a lot of these cases will be brought about with regards to minors. So it was an area that we felt we needed to provide some stability and predictability in, and 4 years, I am not saying there is a magic number to it, but it seemed like a reasonable resolution to that issue.
H.B. 1802, House Journal, Jan. 29, 2002, at 116.
Through the legislative process, the Senate removed the four-year statute of repose and instead provided that all causes of action must be "commenced within the existing applicable statute of limitations." H.B. 1802, 186th Leg., Printer's No. 3320, at 102 (Pa. Feb. 12, 2002). Thereafter, the Senate Committee on Rules and Executive Nominations reinserted a seven-year statute of repose, which the General Assembly enacted. H.B. 1802, 186th Leg., Printer's No. 3402, at 39-40 (Pa. Mar. 13, 2002). It provides:
§ 1303.513. Statute of repose
(a) General rule.-- Except as provided in subsection (b) or (c), no cause of
action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.
(b) Injuries caused by foreign object.-- If the injury is or was caused by a foreign object unintentionally left in the individual's body, the limitation in subsection (a) shall not apply.
(c) Injuries of minors.-- No cause of action asserting a medical professional liability claim may be commenced by or on behalf of a minor after seven years from the date of the alleged tort or breach of contract or after the minor attains the age of 20 years, whichever is later.
(d) Death or survival actions.-- If the claim is brought under 42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating to survival action), the action must be commenced within two years after the death in the absence of affirmative misrepresentation or fraudulent concealment of the cause of death.
...
(f) Definition.-- For purposes of this section, a "minor" is an individual who has not yet attained the age of 18 years.
The effect of the seven-year repose period for most medical malpractice actions is to limit the "discovery rule" to seven years. In most cases, if a malpractice victim discovers the injury and its cause within seven years, the victim may bring a timely lawsuit; however, after seven years, the statute of repose bars the victim's action. Additionally, foreign objects cases are exempt from the statute of repose, and minors can file a lawsuit either seven years from the date of injury or until their twentieth birthday, whichever is later. Thus, the statute of repose prevents most medical malpractice victims, except foreign objects plaintiffs and certain minors, from exercising the constitutional right to a remedy after seven years.
"[T]he discovery rule tolls the statute of limitations where the plaintiff is reasonably unaware that he has been injured and that his injury has been caused by another party's conduct." Nicolaou v. Martin , ––– Pa. ––––, 195 A.3d 880, 892 (2018).
Minors under 13 years old at the time of their injury have more than seven years to commence their actions because the statute of repose permits them to file a lawsuit until their twentieth birthday. For example, a 12-year-old malpractice victim would have until their twentieth birthday to file suit, which is more than the seven-year repose period. Thus, the younger a minor is at the time of the alleged malpractice, the longer the minor has to timely file suit before the statute of repose bars their claim.
In order for this statutory scheme infringing on the Article I, Section 11 right to a remedy to pass intermediate scrutiny, it must be substantially or closely related to an important government interest. As noted, the goal of the statute of repose was to control medical malpractice premium rates by providing actuarial certainty. Accordingly, the question is whether the seven-year statute of repose is substantially related to controlling the cost of medical malpractice premium rates. Under intermediate scrutiny, the party defending the statute's constitutionality has the burden to demonstrate the legislation is substantially related to its purpose. See, e.g. , United States v. Virginia , 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) ; Miss. Univ. for Women v. Hogan , 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) ; see also Binderup , 836 F.3d at 353. To meet this burden, the statute's proponent "can rely on a wide range of sources, including legislative history, empirical evidence, case law, and even common sense, but it may not ‘rely upon mere anecdote and supposition.’ " Tyler v. Hillsdale County Sheriff's Dep't , 837 F.3d 678, 694 (6th Cir. 2016) (quoting United States v. Carter , 669 F.3d 411, 418 (4th Cir. 2012) ).
In this case, there was no evidence to show the initially proposed four-year statute of repose would provide actuarial certainty, except that it "seemed like a reasonable resolution" to "provide some stability and predictability" to insurers. H.B. 1802, House Journal, Jan. 29, 2002, at 116. Moreover, there is no evidence in the legislative history as to how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors. The legislature did not cite any statistics on the number of medical malpractice actions that are commenced after seven years of the occurrence giving rise to the action. There is no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs.
The dissent mischaracterizes our review as imposing a requirement on the legislature to provide evidence in support of its legislation. To be clear, Appellees have the burden to show the challenged statute of repose passes intermediate scrutiny. The legislative history could be a source of evidence establishing a substantial relationship. However, here, the legislative history does not demonstrate any justification for the seven-year statute of repose. While this is not dispositive, it does not support Appellees' position. See FCC v. League of Women Voters of Cal. , 468 U.S. 364, 393-94, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (looking at legislative history in analyzing whether legislation substantially advanced governmental purpose).
Likewise, the parties in their current briefing failed to suggest the seven-year repose period has any substantial relationship to the legislative goal of controlling malpractice insurance costs. See UPMC's Brief at 36-37; Physicians' Brief at 19. Appellees narrowly focus on the foreign objects exception, arguing that exception is substantially related to an important government interest. However, the proper focus is on the manner in which the statute of repose infringes on the Article I, Section 11 right to a remedy: the statute permits malpractice victims who discover their injury and its cause within seven years, foreign objects plaintiffs, and minors to exercise their constitutional right to a remedy; on the other hand, the statute deprives malpractice victims who do not discover their injury or its cause within seven years of their right to a remedy. Appellees have not demonstrated that this seven-year period is substantially related to the goal of controlling insurance premiums.
For these reasons, the statute of repose is not constitutional even under the dissent's formulation of "heightened scrutiny" because the seven-year limitation is arbitrary. See also DeYoung v. Providence Med. Ctr. , 136 Wash.2d 136, 960 P.2d 919, 925 (1998) (en banc) (concluding an eight-year statute of repose for medical malpractice claims was unconstitutional under the rational basis test because "[t]he relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated" where evidence presented to the legislature showed less than 0.5 percent of claims were reported more than eight years after the underlying occurrence).
Additionally, the statute of repose as enacted does not offer insurers a definite period after which there will be no liability because it exempts foreign objects cases and minors, so insurers still have to account for those unpredictable "long-tail" cases in calculating malpractice insurance premiums. Therefore, the seven-year statute of repose, with exceptions for foreign objects cases and minors, is not substantially related to controlling the cost of malpractice insurance rates by providing actuarial predictability to insurers. Accordingly, we conclude the MCARE Act's statute of repose is unconstitutional, reverse the order of the Superior Court, and remand for further proceedings.
Justices Todd and Dougherty join the opinion.
Justice Donohue joins Part I of the opinion, as well as Part III to the extent specified in her responsive opinion, and files a concurring and dissenting opinion.
Justice Wecht files a dissenting opinion, joined by Chief Justice Saylor and Justice Baer.
JUSTICE DONOHUE, Concurring and Dissenting
I concur in the result reached by Justice Mundy in the lead Opinion. I respectfully dissent, however, from the lead Opinion's conclusion that the right to a remedy guaranteed by Article I, Section 11 of the Pennsylvania Constitution is not a fundamental right mandating the application of strict scrutiny to an infringing statute.
Article I, Section 25 of the Pennsylvania Constitution provides:
§ 25. Reservation of powers in people
To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
Pa. Const. art. I, § 25 (emphasis added). Our citizens' right to a remedy "for an injury done him in his lands, goods, person or reputation" is enshrined in "this article" in Section 11. Pa. Const. art. I, § 11.
I agree with the lead Opinion that the legislative branch plays a role in guiding the development of the law. However, for the reasons discussed in this opinion and contrary to the lead Opinion, I cannot agree with any effort to demote, for the first time, our inviolate Article I, section 11 rights to mere "important" status. Rather, I would begin with the basic acknowledgment that the right to a remedy in Article I, Section 11 is a fundamental right which can only be infringed when there is a showing of a compelling state interest and that the means chosen to advance it are narrowly tailored to achieve the end. Applying that test, in my view, the statute of repose in the MCARE Act violates Article I, Section 11 of the Constitution. The test the lead Opinion adopts limits the transgressions of the General Assembly to those instances where the Commonwealth cannot show that legislation is "substantially related" to achieving some important governmental interest. While I agree with the lead Opinion that the MCARE Act's statute of repose does not even meet this low threshold, in the larger picture I fear that the undemanding test the lead Opinion adopts today places an illusory limit on the General Assembly's prerogative to infringe on the right to a remedy enshrined in Article I and instead ties this Court's hands in fulfilling our obligation to scrupulously protect the right to a remedy afforded in Article I, Section 11.
The touchstone of interpretation of our state constitution is the "actual language of the Constitution itself," League of Women Voters v. Commonwealth , 645 Pa. 1, 178 A.3d 737, 802 (2018) (quoting Ieropoli v. AC & S Corp. , 577 Pa. 138, 842 A.2d 919, 925 (2004) ), and the constitutional language "must be interpreted in its popular sense, as understood by the people when they voted on its adoption. Id. (quoting Jubelirer v. Rendell , 598 Pa. 16, 953 A.2d 514, 528 (2008) ). Article I, Section 11 of the Pennsylvania Constitution provides as follows:
§ 11. Courts to be open; suits against the Commonwealth
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
Pa. Const. art. I, § 11. A natural reading of this language does not require resort to any rules of interpretation, as it plainly and unambiguously provides that our courts are open to provide every person with a remedy, by due course of law, for any injury done to him in his lands, goods, person or reputation. It gives every citizen of this Commonwealth an independent constitutional guarantee of legal remedies for private wrongs through our court system. Craig v. Kline , 65 Pa. 399, 413 (1870) ("This provision and those as to the administration of justice in the bill of rights, require that all claims for justice between man and man, shall be tried, decided and enforced by the judicial authority of the state and by due course of law."). This foundational entitlement of a right to a remedy in a Pennsylvania court has been included in every iteration of our Constitution for well over 200 years, dating back to our Constitution of 1790.
See Donald Marritz, Courts to be Open; Suits Against the Commonwealth: Article 1, Section 11, in The Pennsylvania Constitution: A Treatise On Rights and Liberties , 14.4(c) & n.170 (2004) (hereinafter, the "Gormley Treatise "). According to the Gormley Treatise, "[a]lthough at times there may have been confusion between the terms ‘due process’ and ‘due course of law,’ it is generally accepted that they are different." Id. at 14.4(c) (citing Baggs's Appeal , 43 Pa. 512, 517 )). The right to due process protects people from deprivations of property or liberty by the government, except "by the law of the land." Id. Conversely, the right to "due course of law" provides an "independent guarantee of legal remedies for private wrongs by one person against another, through the state's judicial system." Id. (quoting Hans Linde, Without "Due Process," 49 Or. L. Rev. 125 (1970)).
Pa. Const. art. 1, § 11.
Appellants Christopher G. Yanakos, Susan Kay Yanakos and William Ronald Yanakos (collectively, the "Yanakoses"), have alleged in a lawsuit filed in the Court of Common Pleas of Allegheny County that that they have suffered injuries as a result of medical malpractice by Appellees. Section 1303.513 of the Medical Care Availability and Reduction of Error Act ("MCARE Act"), 40 P.S. § 1303.513, however, establishes a seven-year statute of repose for medical malpractice claims. The Yanakoses argue that this statute of repose violates their right to a remedy under Article I, Section 11, as it prevents them from gaining access to our courts to obtain a remedy for injuries that were not discovered until after the seven-year period had expired. Yanakoses' Brief at 14.
In the trial court, counsel for the Yanakoses provided notice to the Attorney General of Pennsylvania pursuant to Rule 235 of the Pennsylvania Rules of Civil Procedure regarding their challenge to the constitutionality of 40 P.S. § 1303.513. In the Superior Court and again in this Court, counsel provided similar notices pursuant to Rule 521(a) of the Pennsylvania Rules of Appellate Procedure. The Attorney General did not enter an appearance in any of these proceedings in response to these notices.
Magna Carta included the following promise from King John aimed at curtailing the selling of court writs: "To no one will we sell, to no one will we refuse or delay, right or justice." In his commentary on this article, Lord Coke wrote that "every Subject of this Realm, for injury done to him in [goods, lands, or person], ... may take his remedy by the course of the Law." Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 6-2(a) (3d ed. 2000).
Here, as in the Superior Court, the Yanakoses raise constitutional challenges to the MCARE Act's statute of repose based upon their contention that the right to a remedy in Article I, Section 11 is a fundamental right and that, as such, any legislative infringement must be subject to strict scrutiny. Id. at 12, 21. In support of this contention that the right to a remedy in Article I, Section 11 is a fundamental right, the Yanakoses, like the lead Opinion, first recite its long and fabled history, from the Magna Carta to Sir Edward Coke. Id. at 14-16. The Yanakoses then direct us to our decision in James v. Southeastern Penn. Transp. Auth. , 505 Pa. 137, 477 A.2d 1302 (1984), in which this Court addressed a constitutional challenge, pursuant to the equal protection provisions of the federal and Pennsylvania constitutions, to a legislatively-enacted limitation (a six-month notice requirement) on an injured individual's right to file suit against the Philadelphia transportation authority.
The Court in James first set forth the three levels of scrutiny at issue. Where a suspect classification has been made or a fundamental right has been burdened, the standard of review is strict scrutiny, pursuant to which a law may only be deemed constitutional if it is narrowly tailored to a compelling state interest. Id. at 1306 ; Shoul v. Comm. Dep't of Trans., Bureau of Driver Licensing , 643 Pa. 302, 173 A.3d 669, 676 (2017). Where "important," but not fundamental rights have been affected, or if sensitive classifications have been made, an intermediate standard of review is applied. James , 477 A.2d at 1306. The Court in James described this level of scrutiny as involving three elements: (1) the governmental interest is important, though not "compelling," (2) the governmental classification or infringement on a right must be drawn so as to be closely related to the objectives of the legislation, and (3) a person excluded from enjoyment of an important right or benefit must be permitted to challenge the denial on the grounds that his particular denial would not further the governmental purpose of the legislation. Id. at 1307. Finally, if the right is neither fundamental nor important, the legislation only needs to satisfy "rational basis" review, pursuant to which a law must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained." Id. at 1306 ; Shoul , 173 A.3d at 677.
In summarizing challenges to infringement of "important rights," the Court cited to Professor Laurence Tribe's description of them as a significant interference with "liberty or a denial of a benefit vital to the individual." James , 477 A.2d at 1306 (quoting L. Tribe, American Constitutional Law § 16-31 (1978)).
Reynolds v. Porter , 760 P.2d 816 (Okla. 1988) (invalidating a three-year limitations period without discovery rule in medical malpractice suits); Hanson v. Williams Cty. , 389 N.W.2d 319 (N.D. 1986) (invalidating ten-year date-of-use statute of repose for products-liability claims); Strahler v. St. Luke's Hosp. , 706 S.W.2d 7 (Mo. 1986) (finding statute of limitations in medical malpractice case unconstitutional as applied to minors); Kenyon v. Hammer , 142 Ariz. 69, 688 P.2d 961 (1984) (invalidating absolute limitations bar on medical malpractice claims three years from date of injury); Jackson v. Mannesmann Demag Corp. , 435 So.2d 725 (Ala. 1983) (invalidating a seven-year statute of repose for claims against architects, contractors, and builders).
With these standards of review established, the Court in James directed itself to determining whether the type of right implicated was fundamental, important, or neither fundamental nor important. James , 477 A.2d at 1306. In this regard, we indicated that the United States Supreme Court had recently defined "fundamental rights" by stating that when determining whether the denial of a particular right is deserving of strict scrutiny, "we look to the Constitution to see if the right infringed has its source, explicitly or implicated, herein." Id. (citing Plyler v. Doe , 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ); see also Zauflik v. Pennsbury Sch. Dist ., 629 Pa. 1, 104 A.3d 1096, 1118 (2014) ("Fundamental rights generally are those which have their source in the Constitution."). Looking to the text of Article I, Section 11, we concluded that it contains no right to sue the Commonwealth, as its second sentence provides an express limitation on the scope of its protections, namely that "[s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct." Pa. Const. art. I, § 11. Accordingly, in James we held that "there is no ‘fundamental right’ to sue the Commonwealth, for such right is explicitly limited by Art. I, § 11 of the Constitution of Pennsylvania." James , 477 A.2d at 1306 (" Section 11 itself authorizes the Legislature to enact laws that direct the way in which a plaintiff might pursue her right to a judicial remedy against the Commonwealth."). For this reason, the Court declined to apply strict scrutiny. Id. Instead, because the appellant nevertheless had "an important interest in access to the courts to sue the Commonwealth in cases where the Commonwealth had consented to suit," we determined that intermediate scrutiny should be employed and applied the three-part test set forth hereinabove.
For the same reason, this Court in Zauflik applied intermediate scrutiny rather than strict scrutiny to an equal protection challenge to statutory damages caps on recoveries under the Tort Claims Act, 42 Pa.C.S. §§ 8501 –8564. Zauflik , 104 A.3d at 1120. We held that the "right" to a full tort recovery "is not a fundamental right warranting strict scrutiny because the predicate right to bring suit against the Commonwealth or its political subdivisions is expressly limited" by, inter alia, "Article I, Section 11 of the Pennsylvania Constitution, which permit[s] the General Assembly to limit recovery against governmental units." Id. at 1119. Because we concluded that "the right involved is an ‘important’ one," we applied the intermediate scrutiny test set forth in James to decide "whether the Act's damages cap closely serves an important governmental interest, in this instance, the protection of the public treasury against large and unpredictable tort recoveries." Id.
See Donald Marritz, Courts to be Open; Suits Against the Commonwealth: Article I, Section 11, in The Pennsylvania Constitution: A Treatise on Rights and Liberties , 455, 470 (Ken Gormley, et al. eds., 2004) (explaining that notes from Pennsylvania's 1790 constitutional convention do not clarify the thinking behind the Open Courts provision); Note, Constitutional Guarantees of a Certain Remedy , 49 Iowa L. Rev. 1202, 1203-1204 (1964) ("[R]ecords of the constitutional conventions which adopted certain-remedy clauses are virtually devoid of any clues as to the intentions of the framers.").
The Yanakoses contend that James compels the application of strict scrutiny in the present context. As the Yanakoses point out, this Court applied intermediate scrutiny in James because the language of Article I, section 11 carves out an exception for suits against the Commonwealth. Yanakoses' Brief at 21 (citing James , 477 A.2d at 1306 ). Article I, Section 11 contains no exceptions, however, with respect to actions between private parties, and thus by implication the opposite must also be true, namely that there is a fundamental right to a remedy in suits against private entities (like UPMC in the present case). Id.
The Yanakoses' contention that James must be read to establish that in actions between private parties, Article I, Section 11's right to a remedy is fundamental is amply supported. In James we held that no fundamental right existed only because the second sentence of Article I, Section 11 provides an express limitation on the scope of its protections for suits against the Commonwealth, thus strongly implying that in suits between private parties, where no such limitation applies, Article I, Section 11 confers a fundamental right. We previously articulated this reasoning in Smith v. City of Phila. , 512 Pa. 129, 516 A.2d 306 (1986), a suit filed against the City of Philadelphia and its gas works corporation after an explosion. In explaining why we were applying intermediate scrutiny to the plaintiffs' equal protection claims rather than strict scrutiny, we made it abundantly clear that the only reason we were doing so was because the suit was against Commonwealth entities:
As indicated above, in James we also cited with approval the United States Supreme Court's definition in Plyler of "fundamental rights." James , 477 A.2d at 1306. Applying this definition of "fundamental rights," the right to a remedy in suits against private entities clearly "has its source, explicitly or implicitly," in Article I, Section 11 of the Pennsylvania Constitution, and is thus a fundamental right.
See Freezer Storage, Inc. v. Armstrong Cork Co. , 476 Pa. 270, 382 A.2d 715, 720 (1978) (internal quotation marks omitted).
No fundamental rights are implicated because the right to a full recovery in a tort suit brought against the Commonwealth or its political subdivisions is expressly limited by our interpretation of ... Article I, Section 11 of the Pennsylvania Constitution (permitting the legislature to limit recovery against governmental units). Strict scrutiny of the classification, therefore, is not required .
Id. at 311 (emphasis added). The implication in Smith could not be more clear: except in suits against governmental units, strict scrutiny is required because there is no other limitation on the right. I recognize that our decisions in James , Zauflik and Smith all involved equal protection and/or due process challenges rather than, as here, a direct claim for violation of Article I, section 11. There is no principled reason, however, to conclude that a right is fundamental in the context of equal protection and due process claims but is not fundamental for purposes of a direct challenge under Article I, section 11. In fact, this Court has employed this precise constitutional analysis in a direct Article I challenge to legislation. DePaul v. Commonwealth , 600 Pa. 573, 969 A.2d 536, 550 (2009).
In DePaul , this Court found that a complete ban on political contributions to individuals affiliated with the gaming industry violated Article I, Section 7's guarantee of freedom of expression and association because it was not narrowly tailored to achieve the General Assembly's compelling interest in negating the corrupting influence and appearance of large contributions. DePaul , 969 A.2d at 553. This Court held that merely limiting the size of contributions, rather than prohibiting them entirely, "would be more narrowly drawn to accomplish the stated goal." Id.
In this regard, I observe that, in the medical malpractice context, some state courts have struck down laws that limit noneconomic damage awards and laws that require claims to be screened by medical experts before they can be filed in court. Kentucky v. Claycomb , 566 S.W.3d 202 (Ky. 2018) (invalidating a statute requiring submission of certain medical malpractice claims to a review panel before filing a civil action in court); Lucas v. United States , 757 S.W.2d 687 (Tex. 1988) (invalidating a $500,000 cap on noneconomic damages in medical malpractice cases); State ex rel. Cardinal Glennon Mem'l Hosp. for Children v. Gaertner , 583 S.W.2d 107 (Mo. 1979) (invalidating a statute requiring submission of claims to a review board before filing a civil action in court). No such provision is before us today, and I express no opinion as to the constitutionality of any such measure.
Moreover, critical to this Court's determination of whether the right to a remedy against private entities in Article I, Section 11 is fundamental is recognition of its placement in our Constitution. The preamble to Article I, which is entitled the "Declaration of Rights," proclaims that it contains the "general, great and essential principles of liberty and free government." Pa. Const. art. I, pmbl. Unlike the United States Constitution, which created a government of limited and enumerated powers, the Pennsylvania Constitution established a government of general powers with the authority to exercise any and all powers not expressly forbidden therein. Gondelman v. Commonwealth , 520 Pa. 451, 554 A.2d 896, 903-04 (1989) ; Commonwealth v. Wormser , 260 Pa. 44, 103 A. 500, 501 (1918) ("The Constitution of the state permits the Legislature to enact all laws which are not forbidden by its letter or spirit."). Article I, Section 25 invokes special protections to safeguard the rights set forth in Article I.
The United States Constitution has no counterpart to Article I, Section 11 of the Pennsylvania Constitution.
Accord Thomas R. White, Commentaries on the Constitution of Pennsylvania 160 (1907) (explaining that the Remedies Clause "stands ... as a barrier to any action by the Legislature tending to interfere with a man's right to sue and recover for an injury which he has suffered").
§ 25. Reservation of powers in people
To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
Pa. Const. art. I, § 25. As a result, the framers of our Constitution intended to restrain our three branches of government, including the General Assembly, from interfering with the exercise of the inviolate rights set forth in Article I. Gondelman , 554 A.2d at 903-04 This Court has recognized the fundamental nature of a wide variety of Article I rights, including the right to reputational security, the right to petition, the right to free expression, the right to privacy, the right to marry, the right to procreate and the right to make child-rearing decisions. See Nixon v. Com. , 576 Pa. 385, 839 A.2d 277, 287 (2003) ; In re Fortieth Statewide Investigating Grand Jury , 647 Pa. 489, 190 A.3d 560, 572–73 (2018) ; Schmehl v. Wegelin , 592 Pa. 581, 927 A.2d 183, 188 (2007) ; Pap's A.M. v. City of Erie , 571 Pa. 375, 812 A.2d 591, 604 (2002) ; Spayd v. Ringing Rock Lodge, 270 Pa. 67, 113 A. 70 (1921).
In this regard, when opining on the constitutional dimension of Article I, Section 11, this Court has always recognized that the right to a remedy set forth therein is a fundamental right . In Niederman v. Brodsky , 436 Pa. 401, 261 A.2d 84 (1970), modified on other grounds by Sinn v. Burd , 486 Pa. 146, 404 A.2d 672 (1979), this Court held that a plaintiff could recover for personal injuries from a negligent defendant in the absence of actual impact. Niederman, 261 A.2d at 85. In so doing, we held that "[i]t is fundamental to our common law system that one may seek redress for every substantial wrong." Id. (emphasis added). In Flagiello v. Pennsylvania Hosp. , 417 Pa. 486, 208 A.2d 193 (1965), this Court abolished the rule that charitable hospitals were immune from liability in tort, stating that "every member of society [is guaranteed] a remedy for a palpable wrong inflicted on him by another member of that society." Id. at 195 (quoting Parker v. Griswold , 17 Conn. 288, 303 (1844) ("An injury is a wrong; and for the redress of every wrong there is a remedy; a wrong is a violation of one's right, and for the vindication of every right there is a remedy."). Indeed, as far back as 1847, this Court recognized that the constitutional right to a remedy is both "forever excluded from legislative invasion" and "inviolate":
The bill of rights, which is forever excluded from legislative invasion, declares that the trial by jury shall remain as heretofore, and the right thereof be inviolate; that all courts shall be open, and that every man shall have redress by the due course of law, and that no man can be deprived of his right, except by the judgment of his peers or the law of the land.
Brown v. Hummel , 6 Pa. 86, 90 (1847). In 1859, we further emphasized that Article I, Section 11 is an express limitation on legislative authority and one that places special obligations on the judiciary:
The bill of rights, §§ 9, 11, declares that no man shall be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land; and that the courts shall be always be open to every man, so as to afford remedy by due course of law for all invasions of rights, ....It seems to us ... that ... [t]hese provisions are ... imperative limitations on legislative authority, and imperative impositions of judicial duty. To the judiciary they say:—You shall administer justice to all men by due course of law, and without sale, denial, or delay; and to the legislature they say:—You shall not intermeddle with such functions.
Menges v. Dentler , 33 Pa. 495, 498 (1859). The panoply of rights in Article I, Section 11 are fundamental rights. See, e.g. , Exton Drive-In, Inc. v. Home Indem. Co. , 436 Pa. 480, 261 A.2d 319, 322 (1969) ("The right to have justice administered without delay is a fundamental right which should not be infringed unless no other course is reasonably possible."); Kelly v. Brenner , 317 Pa. 55, 175 A. 845 (1934) (refusing to enjoin a local ruling implementing a procedure to assure a sufficient number of jurors for jury pools, indicating that Article I, Section 11 contains "fundamental rights which should not be infringed upon, unless no other course is reasonably possible"); see also Baggs's Appeal , 43 Pa. at 516-17 ("There is nothing plainer in the bill of rights than the principle that all men stand on an equality before the judicial tribunals, and they do not stand so, if the judiciary is bound to admit an inequality created by legislative decree, by which a statute of limitations or any other element of the remedy is set aside or altered for any particular case or person.").
Regrettably, the lead Opinion finds that "the right to a remedy is not a fundamental right." Lead Op. at 1222. The lead Opinion's rationale for this conclusion is that it does not want to infringe upon the General Assembly's "prerogative of guiding the formation of the law." Id. at 1221. The lead Opinion's interpretative methodology improperly uses its goal of allowing the General Assembly to meddle with a citizen's right to a remedy by due course of law in order to define the nature of the right and thus, the level of scrutiny to apply. Aside from this reverse engineering, the lead Opinion offers no support for its conclusion that the right is important but not fundamental.
While I do not disagree that the General Assembly has a role in guiding the development of the law, this Court may not abdicate its constitutional obligation by conferring upon that body free reign to do so. As this Court reminded in Robinson Twp. v. Commonwealth , 623 Pa. 564, 83 A.3d 901 (2013), the General Assembly's legislative power is not absolute, as it is expressly restricted by "certain fundamental rights reserved to the people in Article I of our Constitution." Id. at 946–47 (citing Pa. Const. art. I, § 25 and Nat'l Wood Preservers, Inc. v. Commonwealth , 489 Pa. 221, 414 A.2d 37, 44 (1980) ). The fundamental rights set for in Article I are "inherent in man's nature and preserved rather than created by the Pennsylvania Constitution," and are "specific limits" on legislative powers. Id. at 947 (citing Appeal of Lord , 368 Pa. 121, 81 A.2d 533, 537 (1951), Appeal of White , 287 Pa. 259, 134 A. 409, 412 (1926), and Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 896 (1991) ). Article I, Section 11 thus constitutes a "specific limit" on the power of the General Assembly to "guide the development of the law," as it may not do so in ways that deny our citizens their fundamental rights to seek remedies in our courts for injuries inflicted upon them. Id. at 947 (citing O'Neill v. White , 343 Pa. 96, 22 A.2d 25 (1941), Commonwealth ex rel. Smillie v. McElwee , 327 Pa. 148, 193 A. 628 (1937), and Commonwealth ex rel. McCormick v. Reeder , 171 Pa. 505, 33 A. 67 (Pa. 1895) ). In this regard, I do not see the application of strict scrutiny as a bar to the General Assembly's role in developing the law, but it does require that any infringing legislation be narrowly tailored to achieve a compelling state interest.
As support for its observation that the General Assembly may play a role in "guiding the formation of the law," Lead Op. at 1221, the lead Opinion relies primarily upon this Court's skeletal decision in Freezer Storage v. Armstrong Cork Co. , 476 Pa. 270, 382 A.2d 715 (1978). In Freezer Storage , this Court held that the General Assembly could abolish common law remedies by way of a statute of repose based upon the observation that no citizen has a vested interest in the continued existence of an immutable body of negligence law. Id. at 721. There is no limiting principle to this grant of legislative prerogative in Freezer Storage . Stunningly, the Court in Freezer Storage did not indicate that this power was to any extent restrained by any constitutional limitations. It rejected the notion that statutes of repose could violate Article I, Section 11 without conducting any constitutional analysis or applying any level of scrutiny whatsoever. Cases decided since Freezer Storage have typically involved situations involving attempts to enforce retroactively legislation that altered a vested legal right. In Gibson v. Commonwealth , 490 Pa. 156, 415 A.2d 80 (1980), we addressed the implications of our decision in Mayle v. Pa. Dept. of Hwys. , 479 Pa. 384, 388 A.2d 709 (1978), which abrogated the doctrine of sovereign immunity, and the General Assembly's subsequently enacted legislation reinstating it. With respect to the legislature's attempt to have its legislation apply retroactively, we held that Article I, section 11 precluded the Act from governing causes of action accruing before its enactment. Id. at 83. In Ieropoli , we refused to enforce a new law limiting damages for asbestos-related injuries in a case filed before enactment of the legislation. Ieropoli , 842 A.2d at 929-30. In Konidaris v. Portnoff Law Assoc., LTD , 598 Pa. 55, 953 A.2d 1231 (2008), we determined that delinquent taxpayers had no right to be free from the payment of attorneys' fees imposed by a statute that included a provision retroactively requiring their payment for prior delinquencies, concluding that the challengers had suffered no injury for which they were entitled to a remedy.
Rather than conduct any constitutional analysis, the Freezer Storage Court merely cited to three prior decisions, also devoid of any constitutional analysis, to support its decision. None of these cases provides any substantive support for its contention that the General Assembly may abrogate common law causes of action as it so chooses. Id. at 720-21. Of these three cases, one involved a genuine anachronism, specifically, that a husband may not sue a third party for an act of sexual intercourse with his wife, a cause of action historically based upon the outdated notion that a wife, like a servant, was the husband's personal property. Fadgen v. Lenkner , 469 Pa. 272, 365 A.2d 147, 149 (1976). In the second case, Jackman v. Rosenbaum Co. , 263 Pa. 158, 106 A. 238 (1919), the Court refused a claim for damages, stating that Article I, Section 11 was limited to actual legal injuries, not those "suffered" pursuant to a centuries-old statute permitting the complained-of behavior. Id. at 241 ; see Gormley Treatise § 14.4[g][1] (noting that Jackman is "cited in virtually every subsequent remedies case, but without any mention of the context – that the plaintiff was asking the court to overcome a statute whose principles had been established for hundreds of years"). The third case, Sherwood v. Elgart , 383 Pa. 110, 117 A.2d 899 (1954), rejected a challenge to an obscure statute that slightly modified the liability of innkeepers who provided safe deposit facilities. This Court did so without any discussion or explanation, id. at 902 ("after considering appellees' contention we find it to be without merit"), and whether the Court considered the substance of any arguments proffered by the appellees is entirely speculative. Again, and significantly, in none of these three cases did the Court conduct a constitutional analysis – strict scrutiny or otherwise.
See text accompanying n.11. In arguing that "a heightened level of scrutiny" should apply to laws which alter or abolish traditional common law remedies, the Yanakoses contend that the lower courts erred in reviewing "the issues in this case under the rational basis test[.]" Brief for the Yanakoses at 17-18. The Yanakoses ask this Court instead to apply either intermediate or strict scrutiny, id. at 18-22, but they also cite approvingly to legal standards adopted by other state courts, which do not perfectly track the familiar due process standards of rational basis, intermediate scrutiny, and strict scrutiny. See id. at 46-50 (discussing decisions from the Utah and Alabama supreme courts).
In Lewis v. Pennsylvania R. Co. , 220 Pa. 317, 69 A. 821 (1908), the Court defined a "vested right" as follows: "It must be something more than a mere expectation, based upon an anticipated continuance of existing law. It must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from a demand made by another." Id. at 823.
Unable to marshal any precedent to support today's holding applying intermediate scrutiny, the lead Opinion invokes James v. Southeastern Pennsylvania Transportation Authority , 505 Pa. 137, 477 A.2d 1302 (1984) and Smith v. City of Philadelphia , 512 Pa. 129, 516 A.2d 306 (1986), neither of which are Remedies Clause decisions. Rather, Smith and James involved Fourteenth Amendment Equal Protection Clause challenges, which is why it is unsurprising that those Courts applied intermediate scrutiny. To make matters worse, the lead Opinion fails to recognize that the portion of the Smith decision that applied "an intermediate standard of review" did not garner support from a majority of the Court. In fact, Justice Flaherty's Equal Protection Clause analysis in Smith was joined only by a single justice, who himself wrote separately to clarify that "not all legislative restrictions which impact upon access to the courts" will require the application of intermediate scrutiny. Smith 516 A.2d at 312 (Nix, C.J., concurring). In other words, there is no support for the lead Opinion's holding that intermediate scrutiny applies for purposes of the Remedies Clause; indeed, our relevant decisions suggest quite the opposite. See , e.g. , Freezer Storage , 382 A.2d at 720 (upholding a twelve year statute of repose).
The lead Opinion indicates that "[t]his line of cases" (which presumably includes some combination of Freezer Storage, Gibson, Ieropoli and Konidaris ), represents "a shift away from treating the constitutional protections inherent in the remedies clause as a fundamental right," and then cites to Konidaris for the proposition that "[b]ecause this Court has ‘curtailed’ the reach of the remedies clause in the past, it follows that the right to a remedy is not a fundamental right." Lead Op. at 1222. No such conclusion follows, for at least two reasons. First, the mention of "curtailing" the reach of the remedies clause was a reference to a single prior case, Freezer Storage , in particular its holding that when eliminating common law causes of action, the General Assembly did not have to provide any quid pro quo to injured persons when doing so. Freezer Storage , 382 A.2d at 721. This reference was, however, merely dicta, as this legal principle had no application in Konidaris. In Konidaris we concluded that the General Assembly had not abolished any rights or defenses of the delinquent taxpayers at all and as a result Article I, section 11 simply had no application. Konidaris , 953 A.2d at 1242 ("They fail to demonstrate, however, how their right not to do something is the same as an affirmative defense against an accrued cause of action, which is premised on an injury done to a person."). We emphasized that the purpose of Article I, section 11 is "the protection from legislative action of an individual's remedy for an injury done," and concluded that "[i]n this case, no injury was done." Id.
Despite this reference in Konidaris to Freezer Storage , the Court gave no weight to its decision. While Freezer Storage had presumably held that the General Assembly was free to abolish common law causes of action with impunity without providing a quid pro quo to the injured person, the Court in Konidaris ignored this holding entirely, indicating that Pennsylvania courts (among others) continue to "vacillate" on these issues:
While courts in this Commonwealth and across the country vacillate along the spectrum from holding sacrosanct any injury that was protected under common law at the time a state adopted its constitution, to allowing for revision only where the legislature supplies a quid pro quo remedy, to allowing the legislature free reign to redefine what is a ‘legal injury,’ all agree that the legislative branch cannot dissolve a right to recover once a case accrues.
953 A.2d at 1242 (citing David Schuman, The Right to a Remedy , 65 Temp. L. Rev. 1197, 1206 (1992) ).
See , e.g. , Carroll v. York Cty. , 496 Pa. 363, 437 A.2d 394, 397 (1981) ; Freezer Storage , 382 A.2d at 720 ; Singer v. Sheppard , 464 Pa. 387, 346 A.2d 897, 903 (1975) ; Jackman v. Rosenbaum Co. , 263 Pa. 158, 106 A. 238, 244 (1919).
Second, as with Konidaris , neither Gibson nor Ieropoli reflect any "curtailing" of the scope of Article I, section 11. Quite to the contrary, in these cases the Court applied a foundational principle of Article I, section 11 jurisprudence that may be traced at least as far back as our Menges decision in 1859 – namely that Article I, section 11 protects the right of litigants to be free from legislative interference with a vested (i.e., accrued) legal right.
The law which gives character to a case, and by which it is to be decided (excluding the forms of coming to a decision), is the law that is inherent in the case, and constitutes part of it when it arises as a complete transaction between the parties. If this law be changed or annulled, the case is changed, and justice denied, and due course of law violated.
* * *
When, therefore, the constitution declares that it is the exclusive function of the courts to try private cases of disputed right, and that they shall administer justice "by the law of the land," and "by due course of law;" it means to say, that the law relating to the transaction in controversy, at the time when it is complete, shall be an inherent element of the case, and shall guide the decision; and that the case shall not be altered, in its substance, by any subsequent law.
Menges , 33 Pa. at 495 ; see also Kay v. Pa. R.R. Co. , 65 Pa. 269, 277 (Pa. 1870) ("[W]e are bound therefore to say that this law is retrospective in its operation on this case, deprives the plaintiff of a vested right, and is inoperative."); Lewis v. Pennsylvania R. Co. , 220 Pa. 317, 69 A. 821, 823 (1908) ; Com. ex rel. Margiotti v. Cunningham , 337 Pa. 289, 10 A.2d 559, 565 (1940). In Gibson, we summarized these cases and others as holding that "[i]t is well-settled that the Legislature may not extinguish a right of action which has already accrued to a claimant." Gibson, 415 A.2d at 82. Gibson and Ieropoli are both textbook applications of this basic principle. In Gibson , the Court refused to permit the General Assembly to eliminate retroactively their vested causes of action against the Commonwealth prior to enactment of sovereign immunity legislation. Gibson , 415 A.2d at 83. In Ieropoli , the Court held that the legislation at issue eliminated the plaintiffs' causes of action and thus held that its "application to [the plaintiffs'] causes of action is unconstitutional under Article I, section 11." Ieropoli , 842 A.2d at 930.
These decisions enforced, and in no respect limited, the rights granted in Article I, Section 11. Because they addressed the application of Article I, section 11 to legislative interference with vested rights, it was unnecessary for the Court to determine whether the rights granted under that provision were fundamental, and indeed none of the cases addressed that issue at all. The propriety of the legislature's ability to eliminate a prospective (unvested) cause of action was not in question in those cases, as it is here. Here the General Assembly passed the MCARE Act's statute of repose in 2002, prior to the accrual of the Yanakoses' claim in 2003. Enactment of the MCARE Act's statute of repose thus eliminated a prospective cause of action for medical malpractice. For present purposes, therefore, the correlative case is Freezer Storage , in which the Court acknowledged its understanding that it was confronting a circumstance involving prospective rather than vested legal rights. Freezer Storage , 382 A.2d at 720 n.4 ("It should be acknowledged that appellant makes no claim that this statute deprives him of a cause of action which had already accrued to him before the statute became effective.").
As discussed above, in Freezer Storage this Court held that the legislature is free to abolish common law causes of action without any constitutional limitations on its legislative prerogative to do so. The Court did not even consider the possibility that Article I, section 11 might require the implementation of necessary constitutional protections before the prospective legal rights of our citizens to a remedy may be eliminated. We have been asked by the Yanakoses in this case to do what was not done in Freezer Storage – to decide whether the legislature's ability to abolish causes of action is subject to limitations under Article I, section 11 and, if so, to conduct a constitutional analysis to determine the level of scrutiny that must be employed commensurate with the placement of a remedies clause in Article I of our charter. By subjecting the MCARE Act's statute of repose to intermediate scrutiny, the lead Opinion's decision abrogates Freezer Storage , as it places a constitutional limitation on the General Assembly's power to eliminate common law causes of action. My disagreement is certainly not with the lead Opinion's decision to reject Freezer Storage , but rather with the level of scrutiny that must be applied. Puzzlingly, the lead Opinion appears to be simultaneously rejecting Freezer Storage's unreasoned carte blanche deference to the General Assembly, while at the same time relying on the case to justify its application of intermediate rather than strict scrutiny. The lead Opinion does not explain how Freezer Storage could have any precedential value with regard to whether the rights conferred in Article I, section 11 are fundamental, as the case did not even broach the topic (much less decide it).
We may well question whether Freezer Storage has any Article I, section 11 precedential value at all, given its complete lack of any substantive constitutional analysis. This Court has held that decisions devoid of reasoned analysis have "very little if any precedential value." William Penn Sch. Dist. v. Pa. Dept. of Educ. , 642 Pa. 236, 170 A.3d 414, 443 (2017) (citing Ario v. Reliance Ins. Co. , 602 Pa. 490, 980 A.2d 588, 598 (2009) (Saylor, J., concurring)); cf. Kenneth Anthony Laretto, Precedent, Judicial Power, and the Constitutionality of "No-Citation" Rules in the Federal Courts of Appeals , 54 Stan. L. Rev. 2017, 1050 (2002) ("[J]udicial decisions are precedential authority unless they contain a negligible amount of legal reasoning ... [and the] act of adjudication alone ... cannot sustain the precedential authority of a decision that is not solidly grounded in legal reasoning.").
See, e.g., Robinson v. Charleston Area Med. Ctr., Inc. , 186 W.Va. 720, 414 S.E.2d 877, 884 (1991) (explaining that legislation implicating the Remedies Clause of the West Virginia Constitution will be upheld if "the purpose of the alteration or repeal of the existing cause of action or remedy is to eliminate or curtail a clear social or economic problem, and the alteration or repeal of the existing cause of action or remedy is a reasonable method of achieving such purpose"); Berry v. Beech Aircraft Corp. , 717 P.2d 670, 680-81 (Utah 1985) (explaining that abrogation of a remedy or cause of action is constitutionally justified if "there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective"); Lankford v. Sullivan, Long & Hagerty , 416 So.2d 996, 1000 (Ala. 1982) (holding that legislation which abolishes or alters a common law cause of action is unconstitutional unless it "eradicates or ameliorates a perceived social evil").
As I believe that Article I, section 11 is a fundamental constitutional right, I am also of the view that the proper test for determining whether it has been violated is strict scrutiny. See, e.g. , Shoul , 173 A.3d at 676. To satisfy the requirement of narrow tailoring, there is a heavy burden to justify the statutory scheme at issue by demonstrating that the enactment has been "structured with ‘precision,’ " which in turn requires that the General Assembly has "selected the ‘less drastic means’ for effectuating its (compelling) objectives." San Antonio School District v. Rodriguez , 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) ; DePaul , 969 A.2d at 553. To say that the statute of repose provision in the MCARE Act was not narrowly tailored is, in my view, self-evident. The statute of repose is just one of numerous procedural and substantive devices included in the MCARE Act to limit or eliminate the availability of remedies to individuals injured by the alleged malpractice of health care providers. The General Assembly adopted these multiple measures without any studied analysis of the impact of any particular measure on the desired legislative goal. Contextually, the statute of repose appears to be an add-on to the unstudied list of multiple restraints to reduce malpractice claims and damage awards in the surviving lawsuits.
In addition to the statute of repose, the MCARE Act eliminated, inter alia, the collateral source rule, 40 P.S. § 1303.508 ; the prohibition on reducing damages to present worth, 40 P.S. § 1303.510 ; the allowance of lump sum awards for future damages, 40 P.S. § 1303.509 ; and the plaintiff's choice of forum.
The exception to the statute of repose for malpractice claims brought by or on behalf of minors, 40 P.S. § 1303.513(c), is similarly a rational and non-arbitrary means to address a clear social and economic predicament. The General Assembly undoubtedly recognized that minors, who cannot assert medical negligence claims on their own behalf, should be given a fair opportunity to bring their claims after reaching the age of majority. Indeed, the Yanakoses acknowledge that this exception is "narrowly tailored," and that its "application fully encompasses its purpose." Brief for the Yanakoses at 29.
The lead Opinion correctly concludes that the MCARE's statute of repose does not even satisfy the test for intermediate scrutiny (that the legislation is "substantially related" to achieving some important governmental interest). The lead Opinion's analysis establishes that there was no evidence to connect the measure with any effect on the legislative goal of reducing malpractice insurance premiums. Concurring Op. at 1232–35. No evidence of record establishes that the MCARE Act's seven-year statute of repose would have a significant effect on medical malpractice insurance rates (particularly given the exceptions for foreign objects cases and those brought by minors). Id. at 1234–35.
Given that the MCARE Act's statute of repose cannot meet the less exacting substantial relationship test, it is beyond dispute that the MCARE Act's statute of repose cannot meet the strict scrutiny test. However, by concluding that the right to a remedy is important but not fundamental, the lead Opinion would empower the General Assembly to abolish a cause of action if it can demonstrate a "substantial relationship" to a stated goal. The General Assembly need not establish that the governmental interest is compelling or that the legislative goal could not be accomplished without depriving a citizen of her right to a remedy. The lead Opinion would adopt a rule that will require a deference to the legislative branch that Article I, section 11 does not permit. I cannot agree with the Court's decision to adopt this diluted constitutional analysis. It is our role as the judicial branch of government to scrupulously protect the right to a remedy afforded by Article I, Section 11 and to give it due recognition as a fundamental right. Over centuries of jurisprudence, this Court has heretofore recognized the fundamental nature of this right in the cases in which we took the time to consider its constitutional dimension and the appropriate level of scrutiny to view legislative infringements – strict scrutiny. In a challenge like the one presented here, where the statute, on its face, establishes a plethora of means to achieve the stated governmental interest that are less restrictive than the abolition of a right to a remedy, the unconstitutionality of the MCARE Act's statute of repose should be readily apparent.
For these reasons, I concur in the result, namely that the MCARE Act's statute of repose is unconstitutional. I dissent from section II of the lead Opinion's opinion in its entirety. I join in section I and in section III to the extent that this section holds that the MCARE's statute of repose does not even satisfy the test for intermediate scrutiny (and thus plainly would not meet the more exacting test for strict scrutiny).
JUSTICE WECHT, Dissenting
A majority of the Court concludes that the General Assembly's application of a seven-year statute of repose to most medical professional liability claims violates Article I, Section 11 of the Pennsylvania Constitution, which provides that every person who suffers an injury "shall have remedy by due course of law[.]"1 I am unable to agree. Both the lead Opinion and the Concurring and Dissenting Opinion flout the General Assembly's policymaking authority by constitutionalizing and imposing a standard that neither the text nor the history of our Constitution supports. Because existing jurisprudence supplies a different standard, and because it is not this Court's role to upend duly enacted legislation simply because we might sometimes deem it imperfect or unwise, I must respectfully dissent.
Article I, Section 11, which is part of our Constitution's Declaration of Rights and has remained essentially unchanged since its introduction in the Constitution of 1790, provides that:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
PA. CONST. art. 1, § 11.
At issue is the right to a "remedy by due course of law" language. This wording is found in the constitutions of at least thirty-nine states, but has no counterpart in the federal constitution. Ieropoli v. AC & S Corp. , 577 Pa. 138, 842 A.2d 919, 925 (2004). Such provisions, commonly referred to as remedies clauses, derive from Magna Carta and Sir Edward Coke's seventeenth century commentary on the Great Charter, which influenced the drafters of many early American state constitutions.2 JENNIFER FRIESEN, STATE CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSES § 6-2(a) (3d ed. 2000).
Some state supreme courts have concluded that various statutes of limitations and statutes of repose violate their constitutions' Remedies Clauses.3 Yet considerable disagreement persists among state courts over the correct interpretation of Open Courts provisions and Remedies Clauses. For every decision striking down a statutory restriction on a common law cause of action, one could find another decision (likely in a state with an identical Open Courts provision) upholding a similar restriction. See Hon. Thomas R. Phillips, The Constitutional Right to A Remedy , 78 N.Y.U. L. REV. 1309, 1314-15 (2003) ("In each section of the country, whether the constitution is old or new, the judges elected or appointed, or the political culture traditional or progressive, some state courts defer unhesitatingly to legislative choices, while others routinely strike down any statutes that impede access to the courts or impair recovery under traditional theories.").
To complicate matters further, the ordinary challenges of constitutional interpretation are magnified because the historical record does not reveal what led the framers of early state constitutions to embrace Open Courts provisions.4 Those few documents that survive from Pennsylvania's 1790 constitutional convention do not describe any debates about the Open Courts provision generally, nor the Remedies Clause specifically. So it is not clear what the drafters meant when they guaranteed a remedy "by due course of law" for every injury. Perhaps they understood "due course of law" to mean "the law of the land," in which case Article I, Section 11 merely guarantees a right to "whatever remedy the law allows." See Meech v. Hillhaven West, Inc. , 238 Mont. 21, 776 P.2d 488, 493 (1989) (explaining that Montana's Open Courts provision is "a section dealing with the administration of justice," and is "addressed to securing the right to set the machinery of the law in motion"); Harrison v. Schrader , 569 S.W.2d 822, 827 (Tenn. 1978) ("The constitutional guaranty providing for open courts and insuring a remedy for injuries does not guaranty a remedy for every species of injury, but applies only to such injuries as constitute violations of established law of which the courts can properly take cognizance."). Or maybe the drafters intended to constitutionalize then-existing common law remedies, thus shielding those remedies from legislative modification or abolition absent a constitutional amendment. We don't know.
Faced with this lack of authoritative guidance, Pennsylvania courts—along with many other state courts—have struggled for well over a century to define what, if any, limits the Remedies Clause imposes on the legislature's authority to modify or abolish common law causes of action. Indeed, significant disagreement persists among judges and scholars as to whether the "by due course of law" language found in most Open Courts provisions presupposes that the legislature has the authority to decide what "course of law" is "due" in any given circumstance. Some have questioned why the promise of a remedy for every "injury" necessarily should preclude the legislature from defining what constitutes a "legal injury" in the first instance. See Carroll , 437 A.2d at 399 (Larsen, J., dissenting).
Though these substantial difficulties have resulted in divergent interpretations among and between different courts, the lead Opinion barely mentions them. Instead, the lead Opinion simply takes for granted that intermediate scrutiny "must apply" given the right to a remedy's "historical significance" and its "explicit inclusion in our constitution." Lead Opinion at 1222. The matter is not so simple. As I explain in more detail below, the "intermediate scrutiny" standard that the lead Opinion adopts is inconsistent with our existing Remedies Clause jurisprudence, and derives from neither the text nor the history of our Constitution.
Although the framers' intent in drafting Pennsylvania's original Open Courts provision is somewhat opaque, the circumstances that precipitated the 1790 constitutional convention are well understood. When Pennsylvania's first Constitution was ratified in 1776, "the legislative branch was seen as the people's servant and salvation," while "the executive branch was distrusted." Marritz, supra note 4, at 471. The Pennsylvania Constitution of 1776 reflected this underlying political philosophy. It created a "unitary government in which legislative power, and supervisory power over both the executive and the judiciary, were concentrated in a single annually elected Assembly." Matthew J. Herrington, Popular Sovereignty in Pennsylvania 1776-1791 , 67 TEMP. L. REV. 575, 588 (1994). Those limited executive powers that did exist were vested in an elected Supreme Executive Council, which consisted of twelve members. Id. The document did not provide for an independent judiciary. Instead, judges were treated as "creatures of the political branches." Id.
In the ensuing decades, the citizens of Pennsylvania "became disillusioned with legislative supremacy" following many well-documented abuses of that power. Marritz, supra note 4, at 471 (quoting ROSALIND L. BRANNING, A HISTORY OF PENNSYLVANIA CONSTITUTIONS, REFERENCE MANUAL NO. 3, at 5 (1968)). Throughout this era, the legislature all too often exceeded its constitutional authority, obstructed legitimate exercises of executive power, ignored judicial decisions, and disregarded individual liberties. Id. (citing Gordon S. Wood, Foreword: State Constitution-Making in the American Revolution , 24 RUTGERS L.J. 911, 922 (1993) ). "By the mid-1780s, there was general agreement that ‘many of the existing ills could be traced to an impotent judiciary,’ " and that Pennsylvania's constitutional system lacked essential safeguards on unchecked legislative power. Id. (quoting BRANNING , supra , at 4).
In 1789, a substantial majority of the legislature agreed that revisions to the Pennsylvania Constitution were necessary. The product of the ensuing convention—the Constitution of 1790—reflected a dramatic shift in the structure of our state government. Unlike its predecessor, this new Constitution vested executive power in a unitary executive with veto and appointment powers, PA. CONST. of 1790 art. II, created a bicameral legislature consisting of a house and senate, PA. CONST. of 1790 art. I, provided for an independent judiciary, PA. CONST. of 1790 art. V, and explicitly prohibited the legislature from infringing upon any of the individual rights enumerated in the Declaration of Rights. PA. CONST. of 1790 art. IX, § 26.
Given this historical context surrounding the introduction of the Remedies Clause in the Constitution of 1790, I am persuaded by the Yanakoses' argument that Article I, Section 11 should be understood to impose some outer limit on the General Assembly's power to enact legislation that curtails or eliminates a common law cause of action. See Scarnati v. Wolf , 643 Pa. 474, 173 A.3d 1110, 1118 (2017) (explaining that, when interpreting a provision of the Pennsylvania Constitution, we should "consider the circumstances attending its formation and the construction probably placed upon it by the people"). While the precept that the Superior Court relied upon below—that "no one has a vested right in the continued existence of an immutable body of negligence law"5 —is an accurate statement of the law, this Court has never held that the General Assembly possesses unlimited power to alter, limit, or abolish common law remedies. See Ieropoli , 842 A.2d at 925 (remarking that Article I, Section 11 is both an "imperative limitatio[n] on legislative authority" and an "imperative imposition[n] of judicial duty").6 Indeed, the earliest decisions on the subject seemed to take for granted that the Remedies Clause to some extent restricts the General Assembly's authority to extinguish existing causes of action.
In Central R.R. Co. of N.J. v. Cook , 1 W. N. C. 319 (Pa. 1875), for example, the Court affirmed a decision striking down a statute that capped the maximum damages recoverable from a railroad corporation at $3,000. In declining to overturn that decision five years later, the Court explained that:
we are not convinced that [ Central R.R. Co. of N.J. ] should be overruled. Its authority is in conservation of the reserved right to every man, that for an injury done him in his person, he shall have a remedy by due course of law. The people have withheld power from the legislature and the courts to deprive them of that remedy, or to circumscribe it so that a jury can only give a pitiful fraction of the damage sustained. Nothing less than the full amount of pecuniary damage which a man suffers from an injury to him in his lands, goods or person, fills the measure secured to him in the Declaration of Rights.... A limitation of recovery to a sum less than the actual damage, is palpably in conflict with the right to remedy by the due course of law.
Thirteenth & Fifteenth St. Passenger Ry. v. Boudrou , 92 Pa. 475, 481-82 (Pa. 1880).7
Together with the history of the Remedies Clause and this Court's precedent, the text and structure of the Constitution also support the conclusion that laws infringing the right to a remedy should be subject to some form of heightened judicial scrutiny. The preamble to Article I of the Constitution makes clear that the rights enumerated in the Declaration of Rights are "essential principles of liberty and free government" and must be protected from legislative encroachment. PA. CONST. art. 1, pmbl. Similarly, Article I, Section 25 reveals the framers' intent to prohibit all branches of government—including the legislature—from interfering with the exercise of the rights enumerated in the Declaration of Rights. PA. CONST. art. 1, § 25 ("To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.").
For all of these reasons, I am willing to accept that laws which modify traditional common law remedies should be subject to some form of heightened judicial scrutiny.8 I disagree, however, with the lead Opinion's conclusion that intermediate scrutiny should apply. Contrary to our precedent,9 the lead Opinion's chosen standard "encroach[es] upon the Legislature's ability to guide the development of the law" and "place[s] certain rules of the ‘common law’ and certain non-constitutional decisions of courts above all change except by constitutional amendment." Freezer Storage , 382 A.2d at 721. As this Court has cautioned in prior cases, "societal conditions occasionally require the law to change in a way that denies a plaintiff a cause of action available in an earlier day[.]" Id. at 720 (citing Jackman v. Rosenbaum Co. , 263 Pa. 158, 106 A. 238, 244 (1919) ). While it is not often that the legislature decides that a common law theory of recovery has outlived its useful life, neither is it unprecedented. See , e.g. , 23 Pa.C.S. § 1902 ("All causes of action for breach of contract to marry are abolished."); 23 Pa.C.S. § 1901 ("All civil causes of action for alienation of affections of husband or wife are abolished."). This Court itself has not hesitated to abrogate common law anachronisms. Consider, for example, the tort of criminal conversation—an action that could be brought against a third party who "engaged in at least a single act of sexual intercourse" with the plaintiff's spouse. See Fadgen v. Lenkner , 469 Pa. 272, 365 A.2d 147, 149 (1976).
These concerns evince the principle that a legislature, like a court, may from time to time recognize that life and experience have consigned a common law rule to obsolescence, leaving that rule subject both to judicial modification and to statutory revision. Our own expressions throughout our Article I, Section 11 case law have, for at least a century, harmonized consistently with this perspective.10 It follows that the intermediate scrutiny standard fails to afford the legislature sufficient latitude to modify traditional common law remedies. In other words, today's decision impedes and flouts the General Assembly's policymaking authority, thus countenancing the very "stagnation of the law in the face of changing societal conditions" that this Court has warned our Constitution does not mandate. Freezer Storage , 382 A.2d at 720 (quoting Singer v. Sheppard , 464 Pa. 387, 346 A.2d 897, 903 (1975) ). Rather than embrace a test that is manifestly incompatible with our existing Remedies Clause jurisprudence, I would follow the lead of the many courts which have held that the legislature may abrogate or modify a common law cause of action in response to a clear social or economic need, so long as the challenged legislation bears a rational and non-arbitrary connection to that need.11 This standard strikes the appropriate balance between the two primary concerns expressed in our prior cases: (1) guarding the constitutional right to a remedy; and (2) affording the people's representatives necessary and proper latitude to shape public policy.
Applying this standard, I would conclude that the General Assembly's imposition of a seven-year statue of repose on most medical malpractice claims bears a rational and non-arbitrary connection to a clear economic need. As an initial matter, the Yanakoses appear to concede the economic need for the MCARE Act's reforms. The Yanakoses do not dispute that the General Assembly imposed the seven-year statute of repose to preclude the filing of aged lawsuits, which increase the cost of medical professional liability insurance in the Commonwealth, which, in turn, increases the overall cost of health care services. See Brief for the Yanakoses at 25; see also 40 P.S. § 1303.102(3) ("To maintain [a comprehensive and high-quality health care] system, medical professional liability insurance has to be obtainable at an affordable and reasonable cost in every geographic region of this Commonwealth."). Thus, there can be no real dispute that the General Assembly has an important interest in ensuring both that Pennsylvania physicians have access to affordable malpractice insurance and that Pennsylvania citizens have access to affordable medical care. Nor could anyone dispute that there is a "clear social or economic need" for an affordable and well-regulated health care system.
Rather than challenge the economic necessity of the MCARE Act, the Yanakoses argue that the statute of repose is unconstitutional because it creates arbitrary distinctions between classes of medical malpractice victims. In this regard, the Yanakoses stress that the statute of repose does not apply to injuries caused by a foreign object that has been negligently left inside a patient's body. See 40 P.S. § 1303.513(b). According to the Yanakoses, this exception to the statute of repose "arbitrarily protects the right of certain victims of malpractice to seek a remedy while closing the courthouse doors to other victims who are similarly situated." Brief for the Yanakoses at 28.
The foreign-object exception to the statute of repose does not render the statute arbitrary or irrational. There are persuasive and wholly non-arbitrary reasons for the MCARE Act's unique treatment of foreign object cases. First, cases that fall within the foreign-object exception are almost certainly rare. See Fessenden v. Robert Packer Hosp. , 97 A.3d 1225, 1233 (Pa. Super. 2014) (noting that "sponge left behind" cases are uncommon in Pennsylvania). Second, it is conceivable that a foreign object concealed in a patient's body would be more likely than other manifestations of medical negligence to go unnoticed for many years. Finally, foreign object cases, unlike other cases of medical negligence, generally will not involve difficult problems of proof, since the discovery of the foreign object is itself compelling evidence of some earlier negligent act. See Toogood v. Owen J. Rogal, D.D.S., P.C. , 573 Pa. 245, 824 A.2d 1140, 1147 (2003) (discussing the application of res ipsa loquitur in " ‘sponge left in the patient’ cases"). This means that, while the mere passage of time can make non-foreign object cases difficult (and expensive) to defend against, foreign object cases are less likely to be compromised by changing standards of care, waning memories of witnesses, or the unavailability of relevant documents. Given these significant differences, the General Assembly's decision to exempt foreign object cases from the statute of repose was neither arbitrary nor irrational.12
Furthermore, even if I agreed with the lead Opinion's invocation of intermediate scrutiny, I would still uphold the MCARE Act's statute of repose. As the lead Opinion explains, to pass intermediate scrutiny, the law in question must be substantially related to an important governmental objective. Lead Opinion at 1222; see United States v. Virginia , 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). As explained above, the Yanakoses do not dispute (nor could they, really) that ensuring access to affordable liability insurance for medical professionals, thus ensuring access to affordable medical services for patients, is an important governmental objective. The only question, then, is whether the MCARE Act's statute of repose is substantially related to the objective of reducing the cost of medical professional liability insurance. It is. One need not be an expert in the economics of the insurance industry to understand that the cost of insurance coverage corresponds generally with the insurer's own costs, which will decrease when fewer aged claims are filed. Because the statute of repose advances the underlying objective of reducing the cost of malpractice insurance, it withstands intermediate scrutiny.
See generally U.S. Gen. Accounting Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates , 16 (June 2003), available at https://www.gao.gov/new.items/d03702.pdf ("Incurred losses are the largest component of medical malpractice insurers' costs. For the 15 largest medical malpractice insurers in 2001—whose combined market share nationally was approximately 64.3 percent—incurred losses (including both payments to plaintiffs to resolve claims and the costs associated with defending claims) comprised, on average, around 78 percent of the insurers' total expenses. Because insurers base their premium rates on their expected costs, their anticipated losses will therefore be the primary determinant of premium rates.").
In support of its holding, the lead Opinion advances a novel suggestion: to wit, that the intermediate scrutiny standard requires "evidence in the legislative history" explaining "how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors." Lead Opinion at 1225. This is startling. With this test in hand, lawyers are now charged with the duty of mining house and senate journals and committee reports in an effort to satisfy judges that lawmakers have been, in effect, ‘reasonable enough.’ The lead Opinion's new legislative-history-inspection-standard resembles a homework assignment for the General Assembly, an assignment this Court is not authorized to give. As a matter of law, the General Assembly need not "cite ... statistics" (see id. ) so as to anticipate and satisfy a prospective reviewing court that a shorter statute of repose would have been inadequate to achieve the legislature's goal of reducing medical malpractice insurance premiums. Citation of supporting statistics on the house or senate floor is not a judicial approval checklist item to be prescribed by this or any other court. This is an exacting, even imperial, standard that ignores the manner in which judicial review works.
In essence, the lead Opinion concludes that the seven-year statute of repose is both overinclusive (because a longer repose period might have reduced medical malpractice insurance premiums just as well as a shorter one) and underinclusive (because minors and foreign-objects plaintiffs are exempt from the statute of repose). Id. at 1225–26. But the intermediate scrutiny inquiry that the lead Opinion itself adopts does not require that the General Assembly choose the least restrictive means available to achieve its objective. See Fisher v. Univ. of Tex. at Austin , 570 U.S. 297, 311, 133 S.Ct. 2411, 186 L.Ed.2d 474 (2013) (discussing the narrow tailoring requirement associated with strict scrutiny). Intermediate scrutiny requires only a substantial relation between a legislature's goal and the means that it selected to achieve that goal. Whether a different law also might have achieved the legislature's goal is not a question for this Court. The standard of scrutiny that the lead Opinion adopts is intermediate in name only. In substance, today's decision simply invites judges to substitute their own public policy views in the place of arguably imperfect, but duly enacted, legislation. Nothing in the text or history of Article I, Section 11 sanctions this judicial second-guessing of the General Assembly's policy decisions. There is of course no end to such a court-as-supervisor enterprise.
In sum, I would hold that statutes which modify or abolish common law causes of action violate Article I, Section 11 of the Pennsylvania Constitution unless the challenged legislation is supported by a clear social or economic need for reform. If a law is not supported by such a need, or if the means chosen to address the social or economic problem are arbitrary or irrational, then the law is unconstitutional. Because I would find that the MCARE Act's statute of repose satisfies this benchmark, I would affirm the decision of the Superior Court.