Statutory Limitations on the Right to Recover Tort Damages
The limitation on non-economic damages denies equal protection by discriminating among tort victims in such way as to deny recovery to the most egregiously injured.
The Robinson Court (Robinson v. Charleston Area Medical Center, Inc., 186 W. Va. 720, 414 S.E.2d 877 (1991)) prefaced its analysis of the equal protection challenge to W. Va. Code 55-7B-8 by stating that "'a statutory limitation on a common-law measure of recovery is simply an economic regulation, which is entitled to wide judicial deference.'" 186 W. Va. at 729, 414 S.E.2d 886 (quoting Etheridge v. Medical Center Hosp., 237 Va. 87, 99, 376 S.E.2d 525, 531 (1989)).
Several state courts have, however, recognized that the right to recover for personal injury is a significant substantive right requiring application of intermediate scrutiny or equivalent approaches.
See, e.g., Spikler v. City of Lincoln, 238 Neb. 188, 469 N.W.2d 546, 548 (Neb. 1991); Hanson v. Williams County, 389 N.W.2d 319, 325 (N.D. 1986); Heath v. Sears, Roebuck & Co., 123 N.H. 512, 464 A.2d 288, 295 (N.H. 1983).
I would have this Court overrule Robinson on this point and join those jurisdictions that apply a heightened level of equal-protection scrutiny to statutory limitations on the right of injured persons to recover tort damages from otherwise liable parties.
Specifically, the Court should apply intermediate scrutiny, where it must be shown that the challenged legislation is substantially related to the achievement of an important governmental interest.
See Payne v. Gundy, 196 W. Va. 82, 468 S.E.2d 335 (1996) (applying intermediate scrutiny to gender discrimination case); Israel by Israel v. W. Va. Secondary Schools Activities Comm'n, 182 W. Va. 454, 388 S.E.2d 480 (1989) (same); Shelby J.S. v. George L.H., 181 W. Va. 154, 381 S.E.2d 269 (1989) (applying intermediate level of scrutiny to case involving illegitimacy).