### Filed 4/22/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 113

Chenille Condon, Plaintiff and Appellee

v.

St. Alexius Medical Center and Allen Michael Booth, M.D., Defendants and Appellants

No. 20180297

Appeal from the District Court of Burleigh County, South Centra l Judicial District, the Honorable Cynthia M. Feland, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Jensen, Justice

. Thomas J. Conlin (argued), Stacy D. Stennes (appeared), Minneap olis, MN, and Robert V. Bolinske Jr. (on brief), Bismarck, ND, for plaint iff and appellee.
Tracy Vigness Kolb (argued), Bismarck, ND, and Rodger A. Hagen (on brief), Minneapolis, MN, for defendants and appellants.
Matthew A. Sagsveen, Office of Attorney General, Bismarck, ND, for amicus curiae State of North Dakota.
Courtney Koebele, Bismarck, ND, Mark A. Behrens and Cary Silver man, Washington, DC, for amicus curiae North Dakota Medical Associat ion.
Timothy Q. Purdon, Bismarck, ND, and Glenn A. Danas, Los Angele s, CA, for amicus curiae North Dakota Association for Justice.Condon v. St. Alexius Medical Center
No. 20180297

Jensen, Justice. [¶1] Dr. Allen Booth and St. Alexius Medical Center appeal from a district court judgment finding North Dakota’s noneconomic damages cap in medi cal malpractice cases unconstitutional. Dr. Booth and St. Alexius also argue the district court erred in denying a motion for a new trial. We reverse in part, affir m in part, and remand for a reduction of the award of noneconomic damages.
I. [¶2] On May 29, 2012, Chenille Condon gave birth to a child at S t. Alexius Medical Center. Within hours, Condon complained about chest discomfort and shortness of breath. A pulmonary embolism was suspected and testing was ord ered in an effort to diagnose the issue. Testing revealed multiple pulmonary nodule s in Condon’s mediastinum. Condon was eventually referred to Dr. Booth for amediastinoscopy for the purpose of collecting a larger tissue sample. The larger t issue sample was necessary for a definitive diagnosis. [¶3] Not long into the procedure, an injury occurred to Condon’s right innominate artery, resulting in life-threatening bleeding. Dr. Booth call ed for the assistance of a surgeon, and they repaired the injured vessel. After surgery, Condon was placed in
intensive care where she had a stroke. The stroke was related to the injury that occurred during surgery. Condon underwent rehabilitation for s everal months. [¶4] Condon filed a medical malpractice claim against Dr. Booth. After nine days of proceedings, the jury returned a verdict finding negligence and awarding Condon $265,000 in past economic loss, $1.735-million in future econom ic loss, $150,000 in past noneconomic loss, and $1.350-million in future noneconomic loss. [¶5] Dr. Booth sought a reduction of noneconomic damages under N .D.C.C. § 32- 42-02, the noneconomic damages cap in medical malpractice actio ns, and a reduction

1of the past economic damages pursuant to the collateral-source rule, N.D.C.C. § 32- 03.2-06. Condon opposed the reductions and challenged the cons titutionality of N.D.C.C. § 32-42-02. The district court granted Dr. Booth’s mo tion with regard to the collateral-source reduction and, after finding N.D.C.C. § 3 2-42-02 unconstitutional on equal-protection grounds, denied the remain der of Dr. Booth’s
motion. [¶6] Dr. Booth also sought a new trial or, in the alternative, areduction in the
verdict. The district court deni ed the motion for a new trial, but granted the request to reduce the past-economic-loss award to $150,000.
II. [¶7] Dr. Booth argues the district court erred in holding N.D.C. C. § 32-42-02 to be unconstitutional. In determining whether a statute is constitutional, we have stated: Whether a statute is unconstitutional is a question of law, whi ch is fully reviewable on appeal. All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive un less the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and no t for judicial determination. This Court exercises the power to decl are legislation unconstitutional with great restraint. Under N.D. Const. art. VI, § 4, this Court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide. Teigen v. State , 2008 ND 88, ¶ 7, 749 N.W.2d 505 (citations and quotations omi tted). [¶8] “[A]n Act of the legislature is presumed to be correct and valid, and any doubt as to its constitutionality must, where possible, be resolved i n favor of its validity.” S. Valley Grain Dealers Ass’n v. Bd. of Cty. Comm’rs , 257 N.W.2d 425, 434 (N.D. 1977). “A statute enjoys a conc lusive presumption of constitut ionality unless it is clearly shown that it contravenes the state or federal constitution.” Richter v. Jones , 378 N.W.2d 209, 211 (N.D. 1985). [¶9] Article I, § 21, N.D. Const., has long been “viewed as our state constitutional guarantee of equal protection under the law.” Matter of Adoption of K.A.S. , 499
2N.W.2d 558, 563 (N.D. 1993). Under N.D. Const. art. I, § 21, n ot all legislative
classifications are unlawful. This Court reviews the lawfulnes s of legislative classifications under three separate standards of review explai ned below. [¶10] The standard of review of a question under equal-protectio n analysis is dependent on the type of classification. Hanson v. Williams Cty. , 389 N.W.2d 319, 323 (N.D. 1986). When a classification involves a “fundamental interest” or is “inherently suspect,” we will analyze these classifications und er strict scrutiny. Id. When there is “an important substantive right” involved in the classification, an intermediate standard of review is applied. Id . at 325. Lastly, if there is no fundamental or important substantive interest involved, we will consider the classification under a rational basis standard, where the legis lation will be sustained unless it is “patently arbitrary and bears no rational relation ship to a legitimate government interest.” Id . at 323. This level of scrutiny is generally applied when “statutory classifications [] involve economic or social matter s and do not deprive a class of plaintiffs from access to the courts.” Bismarck Pub. Sch. Dist. 1 v. State , 511 N.W.2d 247, 257 (N.D. 1994).
III. [¶11] In Arneson v. Olson , this Court held a previous statutory damage cap of $300,000 in medical malpractice actions violated equal protecti on under the intermediate level of scrutiny. 270 N.W.2d 125, 135-36 (N.D. 1 978). The legislative goals of the prior statute included the availability of compete nt medical and hospital services at reasonable costs, the elimination of the expenses i nvolved in nonmeritorious malpractice claims, the allowance of adequate compe nsation for patients with meritorious claims, and the encouragement of physicians to practice medicine
in North Dakota. Id. at 127. We concluded there was not a sufficiently close correspondence between those goals and the statutory classification treating seriously injured victims of medical negligence different than other vict ims of medical negligence.

3[¶12] Section 32-42-02, N.D.C.C., the damage cap currently befor e this Court, reads: With respect to a health care malpractice action or claim, the total amount of compensation that may be awarded to a claimant or mem bers of the claimant’s family for noneconomic damage resulting from an injury alleged under the action or claim may not exceed five hundred thousand dollars, regardless of the number of health care provi ders and other defendants against whom the action or claim is brought or the number of actions or claims brought with respect to the injury. With respect to actions heard by a jury, the jury may not be informe d of the limitation contained in this section. If necessary, the court shall reduce the damages awarded by a jury to comply with the limitation in this section. Condon argues N.D.C.C. § 32-42-02 is virtually identical to the damage cap
invalidated in Arneson . However, there are fundamental distinctions. The Arneson cap limited a plaintiff’s entire recovery to a maximum of $300, 000 for all damages incurred. Under N.D.C.C. § 32-42-02, there is no limit on the amount of damages a jury may award for economic damages such as future medical expe nses or loss of wages. The Arneson Court was primarily concerned about the damage cap preventing injured individuals from recovering an amount that would satisf y their medical bills.
See Arneson , 270 N.W.2d at 135-36. Because N.D.C.C. § 32-42-02 does not l imit economic damages, the recovery of medical bills is not an issue under the current damage cap. [¶13] Regardless of the distinctions between the prior and curre nt damage caps, N.D.C.C. § 32-42-02 does limit recovery in a personal injury ac tion. We have repeatedly recognized the right to recover for personal injurie s is an important substantive right subject to the intermediate standard of equal -protection analysis.
Larimore Pub. Sch. Dist. No. 44 v. Aamodt , 2018 ND 71, ¶ 49, 908 N.W.2d 442;
Olson v. Bismarck Parks & Recreation Dist. , 2002 ND 61, ¶ 17, 642 N.W.2d 864;
Bouchard v. Johnson , 555 N.W.2d 81, 87-88 (N.D. 1996); Hanson , 389 N.W.2d at
328 ; Arneson , 270 N.W.2d at 135-36. The interme diate level of scrutiny app lies to our analysis of the damage cap in N.D.C.C. § 32-42-02 and requi res a close correspondence between the statutory classification and legislative goals.
4[¶14] The legislature enacted N.D.C.C. § 32-42-02 in 1995 after a five-year study by a task force created to analyze and make recommendations regard ing improvements to North Dakota’s health care system. The goals of the task fo rce were to (1) increase access; (2) control costs; and (3) to maintain or increase qual ity of health care in the state. Initially, the recommendation was to cap noneconomic damages at $250,000, but was then changed to $500,000 to “provide more equity” for s eriously injured individuals who did not have significant wage losses to recoup. There was also testimony suggesting the goal of the cap was to stabilize the r isk for insurance providers which would potentially have a beneficial effect on p remiums. The operative question is whether the classification created by N.D .C.C. § 32-42-02 closely corresponds to these legislative goals. [¶15] Many of the issues with the Arneson cap are also present in the current cap. The legislative history of N.D.C.C. § 32-42-02 does not provid e evidence of extreme damages consistently being awarded in medical malpractice cases or skyrocketing malpractice insurance rates. Section 32-42-02, N.D.C.C., is su pported by the general goals of the health care task force and testimony suggesting be nefits to insurance rates may result from the cap. Further, many states that have enacte d similar damage caps have created exceptions for egregious cases, Mich. Comp. Laws § 600.1483 (increase in the cap for severe injuries); tied the cap to average wages, Idaho Code Ann. § 6- 1603 (cap may increase or decrease based on the average annual wage); or revisited the amount of the cap on a regular basis, Wis. Stat. Ann. § 893 .55 (damage cap revisited biannually). [¶16] We conclude there is a close correspondence between the damage cap at issue in this case and legitimate legislative goals to satisfy the intermediate level of scrutiny under N.D. Const. art. I, § 21. In Arneson , we cited the “drastic limitation on recovery” that a $300,000 cap on all damages in medical malprac tice cases represented in finding the cap to be unconstitutional. 270 N.W .2d at 136. Here, the damage cap is not nearly as drastic. Section 32-42-02, N.D.C.C ., does not prevent

5seriously injured individuals from being fully compensated for any amount of medical care or lost wages. Instead, in jured individuals are prevented from receiving more abstract damages in excess of $500,000. The legislative goals of the Arneson cap and the cap under N.D.C.C. § 32-42-02 are similar, but the effect o n potential recovery for injured individuals is not. We therefore conclude the dama ge cap in N.D.C.C. § 32-42-02 does not violate the equal-protection provisions of N. D. Const. art. I, § 21
and is not unconstitutional.
IV. [¶17] Dr. Booth argues the district court erred in not ordering a new trial because there were procedural irregularities, excessive damages, insuff icient evidence to support the damages awarded, and prejudicial errors of law that occurred at trial. “A district court’s decision whether to grant or deny a new trial under N.D.R.Civ.P. 59(b) rests entirely within its discretion, and our review of a denia l of a new trial motion is limited to deciding whether the court manifestly abused its dis cretion.” Carroll v.
Carroll , 2017 ND 73, ¶ 9, 892 N.W.2d 173. “A district court abuses it s discretion when it acts in an arbitrary, unreasonable, or unconscionable m anner, when it misinterprets or misapplies the law, or when its decision is no t the product of a rational mental process leading to a reasoned determination.” Id.
A. [¶18] Dr. Booth argues the district court erred in finding Condo n established proper foundation for admission of the life care plan. Dr. Booth asse rts the testimony of Dr. Andrews was too speculative to be considered by a jury. “[F]or a plaintiff to recover for future medical services, there must be substantial evidence to establish with reasonable medical certainty that such future medical services are necessary.”
Erdmann v. Thomas , 446 N.W.2d 245, 247 (N.D. 1989). Testimony from a physician that a plaintiff’s medical condition is permanent and would wor sen is sufficient to establish foundation for future medical expenses. South v. National R. R. Passenger Corp. , 290 N.W.2d 819, 842 (N.D. 1980).

6[¶19] Here, while Dr. Andrews did refer to the plan as a recomme ndation, Dr. Andrews also testified he could give opinions about Condon’s in jury to a reasonable medical probability. Dr. Andrews went on to testify he had rev iewed the life care plan and the recommendations contained were “medically necessar y.” Because there is testimony from an expert indicating Condon’s future medical care recommended by the life care plan was necessary, the district court did not err in admitting the evidence and did not abuse its discretion by failing to order a new trial.
B. [¶20] Dr. Booth argues the district court erred in finding Condo n laid proper foundation for prior medical expenses. “Evidence of medical expenses can be admitted without expert medical opinion that the expenses were necessitated by the
defendant’s conduct . . . .” Schutt v. Schumacher , 548 N.W.2d 381, 382-83 (N.D. 1996). Here, Condon testified she reviewed the medical bills and the bills were related to her stroke. This is proper foundation under Schutt, and the district court did not err in admitting the evidence and did not abuse its discret ion by failing to order
a new trial.
C. [¶21] Dr. Booth argues Condon’s counsel’s repeated incidents of misconduct entitle
him to a new trial. While Dr. Booth concedes none of these inc idents would suffice as a basis for a new trial independently, he asserts that the t otality-of-the-misconduct should result in a new trial. The alleged misconduct consists of asking impermissible questions of witnesses, inappropriate comments, and responding inappropriately to objections. [¶22] New civil trials are rarely granted on the basis of attorn ey misconduct. Fox v.
Bellon , 136 N.W.2d 134, 139-40 (N.D. 1965). When considering claims of prejudicial misconduct, courts consider the nature of the comme nts the jury heard, their probable effect on the jury in the context of the entire trial, and the district

7court’s instructions to the jury. Holte v. Carl Albers, Inc ., 370 N.W.2d 520, 527 (N.D. 1985). Here, the jury was given an instruction stating: An attorney is an officer of the Court. It is an attorney’s duty to present evidence on behalf of a client, to make proper objectio ns, and to argue fully a client’s cause. However, the argument or othe r remarks of an attorney . . . must not be considered by you as evidence. If counsel or I have made any comments or statements concerning the evidence which you find are not supported by the evidence, you should disregard them and rely on your own recoll ection or observation. If counsel has made any statements as to the law which is not supported by these instructions, you should disregard those statements. [¶23] Dr. Booth’s counsel reminded the jury of their duty multip le times. The district court also analyzed the effects of the alleged misconduct independently and collectively. The court was in a better position to determine the effects of the alleged misconduct and found any misconduct did not “rise to the level of a fundamental defect or occurrence in the proceedings.” The court did not ab use its discretion by failing to order a new trial based on misconduct of Condon’s co unsel.
D. [¶24] Dr. Booth argues the district court abused its discretion in denying a new trial on grounds the court inappropriately excluded relevant evidence about Condon. Dr. Booth asserts that limiting evidence regarding Condon’s prior p ersonal issues did not allow the jury an accurate account of Condon’s pre-stroke life. [¶25] Under N.D.R.Ev. 401, relevant evidence means evidence that reasonably and actually tends to prove or disprove any fact that is of consequ ence to the determination of an action. Relevant evidence is generally adm issible. N.D.R.Ev.
402. A district court has discretion to determine whether evid ence is relevant, and its decision will not be overturned on appeal absent an abuse of di scretion. Estate of
Gassmann , 2015 ND 188, ¶ 12, 867 N.W.2d 325. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

8undue delay, waste of time, or needless presentation of cumulat ive evidence.
N.D.R.Ev. 403. “A district court has discretion to balance the probative value of proffered evidence against the dangers enumerated in N.D.R.Ev. 403,” and this Court
reviews that determination under the abuse-of-discretion standard. Gassmann , at ¶
12. [¶26] Dr. Booth sought to introduce evidence concerning Condon’s prior substance abuse and domestic issues. Condon’s prior substance abuse and domestic issues were irrelevant to whether Dr. Booth was negligent. However, the in formation was relevant to damages incurred because it tended to make a fact o f consequence (the damages sought) less likely to be accurate because there were b arriers to Condon remaining continually employed. That being said, the district court noted N.D.R.Ev. 403 allows evidence to be excluded if unduly prejudicial. Here , there was a risk the jury would make judgments about Condon based on prior substance abuse and chaotic home life, instead of focusing on whether the doctor was neglig ent. Further, limited questioning about substance abuse and domestic problems was all owed when Condon or witnesses opened the door to these issues through their test imony. The district court did not abuse its discretion by excluding the evidence or by failing to order a
new trial based on the exclusion of substance abuse and domesti c issues.
E. [¶27] Dr. Booth argues the district court erred in allowing neur opsychologist Dr. Rodney Swenson to provide medical-opinion testimony. Dr. Boothasserts Dr. Swenson’s testimony concerned an area beyond his area of expert ise because he does not have a medical degree, and this error entitles him to a newtrial. [¶28] Dr. Swenson testified regarding Condon’s MRI. Dr. Swensonis a clinical neuropsychologist who regularly reviews MRI’s as part of his pr ofession. Expert testimony is admissible whenever specialized knowledge will ass ist the trier of fact.
Kluck v. Kluck , 1997 ND 41, ¶ 7, 561 N.W.2d 263. “Whether a witness is quali fied as an expert and whether the testimony will assist the trier of fact are decisions largely

9within the sound discretion of the trial court.” Id. A decision to admit expert testimony is reviewed for abuse of discretion only. Id. A trial court “does not abuse its discretion by admitting expert testimony whenever specializ ed knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification.” Myer v. Rygg , 2001 ND 123, ¶ 15, 630 N.W.2d 62. Rule 702, N.D.R.Ev., “envisions generous allowance of the use of expert t estimony if the witness is shown to have some degree of expertise in the relevant field.” Kluck , at ¶ 7. Rule 702, N.D.R.Ev., “does not require licensure in a parti cular field” to qualify as an expert. Kluck at ¶ 9. Instead, it “recognizes it is the witness’s actual qualifications that count by providing that an expert can be qu alified by knowledge, skill, experience, training, or education.” Myer , at ¶ 14. [¶29] Here, Dr. Swenson had experience analyzing MRI’s and his o pinion would have been helpful to the trier of fact with regard to the effec ts of Condon’s stroke. Dr. Swenson’s lack of a medical degree goes to the weight the trier of fact assigns to the testimony, but does not make the testimony inadmissible. Dr. B ooth questioned Dr.
Swenson’s credentials on cross-examination and also introduced his own expert to contradict Dr. Swenson. The jury was then able to give whateve r weight they believed appropriate to the testimony. The district court did not err in allowing Dr. Swenson to provide opinion testimony and did not abuse its disc retion in failing to
order a new trial.
F. [¶30] Dr. Booth argues there is insufficient evidence to support the jury’s verdict and that the verdict is excessive. A court should not disturb a jury’s damages verdict
unless it is so excessive or in adequate as to be without support in the evidence. Stoner v. Nash Finch, Inc. , 446 N.W.2d 747, 753 (N.D. 1989). In determining the sufficiency of the evidence to support a jury’s award of damage s, the court must view the evidence in the light most favorable to the verdict. Olmstead v. First Interstate
Bank , 449 N.W.2d 804, 807 (N.D. 1989). Where the verdict is “reaso nably within the

10scope of the evidence presented and the instructions of the court[,]” the plaintiff is entitled to have judgment entered upon the jury’s verdict. Neidhardt v. Siverts , 103 N.W.2d 97, 101 (N.D. 1960). [¶31] Here, the jury heard testimony about Condon’s medical bill s and potential lost wages. The jury also heard testimony regarding the effects the incident had on Condon’s day-to-day life. While the verdict is large, the dama ges are within the range of the evidence the jury heard at trial. The damages are also reasonable considering the testimony evidencing the devastating effect the injury had on Condon’s life. [¶32] Dr. Booth also motioned the district court for a remittitur. This Court has previously stated: If the size of the verdict in relation to the injury sustained is so excessive as to demonstrate to the court that the jury has beenmisled by passion or prejudice in determining the amount of damages, the trial court should grant a new trial or reduce the verdict, and, in a case where it appears that the passion and prejudice affected only the amo unt of damages allowed, and did not influence the findings of the juryon other issues in the case, the error resulting from the excessive dama ges may be corrected either by the trial court or by this court on appe al by ordering a reduction of the verdict in lieu of a new trial, or by ordering that a new trial [b]e had unless the party in whose favor the v erdict was given remit the excess of damages.
Neidhardt , 103 N.W.2d at 100. [¶33] Here, as discussed above, the verdict was substantial, but not excessive. The damages awarded were within the range of the evidence presented , and Condon’s life was significantly affected by what the jury determined to be me dical negligence. The verdict was not so excessive or inadequate as to be without sup port in the evidence, and the district court did not err in failing to reduce the dam ages awarded or abuse its discretion by failing to order a new trial.

V.

11[¶34] We conclude the damage cap in N.D.C.C. § 32-42-02 does not violate the equal-protection provisions of N.D. Const. art. I, § 21. We re verse the district court’s judgment and remand for a reduction in noneconomic damages cons istent with N.D.C.C. § 32-42-02. We affirm the district court’s denial of Dr. Booth’s request for
a new trial. [¶35] Jon J. Jensen Daniel J. Crothers
I concur only in the result. Jerod E. Tufte
Donovan J. Foughty, D.J. Gerald W. VandeWalle, C.J.

[¶36] The Honorable Donovan J. Foughty, D.J., sitting in place o f McEvers, J., disqualified.

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