35 Implications for Social Justice

In many jurisdictions, courts may still use race, gender and other attributes to determine how much to award for a lost life, or loss of earning potential. On the one hand, in a capitalist society in which people do earn different salaries and do have different professional trajectories, tort law’s position is facially defensible. On the other hand, it entrenches the advantages of some over the disadvantages of many. Moreover, it signals that the inequities built into the system are worth continuing to protect and double-down on. See e.g. Kim Soffen, In One Corner of the Law, Minorities and Women Are Often Valued Less, Wash. Post; Wonkblog (Oct. 25, 2016), https://www.washingtonpost.com/graphics/business/wonk/settlements/

In many cases, the fact pattern may feel especially unfair intuitively, as when someone’s injury seems already to be linked in some way to their racial or socioeconomic status. When the law awards a comparatively small recovery, it conveys, with the cloak of judicial authority, that some injuries matter less and some lives are less valuable than others. The next case takes up these questions in earnest, with tragic and triggering facts.

Let me underscore that the next case features graphic details of a pregnant woman dying in a medical malpractice case. Because at least some of the details of her unnecessarily painful death are relevant to the nature and size of her damages, they are not edited out.

Clemons v. U.S., United States District Court, S.D. Mississippi, (2012)
(Not Reported in F. Supp.2d)(2012 WL 5364737)

*1 On May 1 and 2, 2012, the Court held a bench trial in this medical malpractice case. Counsel for the plaintiff and counsel for the defendant announced ready, proceeded to trial, presented evidence, and finally rested. Having considered the evidence and applicable law, the Court now issues its findings of fact and conclusions of law.

Before proceeding, a preliminary statement is in order.

This case is about the tragic and senseless deaths of Tiara Renea Clemons and Aubrey Anna Clemons. They died because an emergency room doctor refused to provide them basic treatment.

The evidence revealed three especially terrible facts. First, the doctor’s malpractice caused Tiara Clemons to suffer tremendously before her death. Second, the doctor’s malpractice caused the death of Tiara’s unborn child, Aubrey Anna, who at 30 weeks along was only a few weeks shy of birth. Third, the deaths of Tiara and Aubrey Anna were completely and utterly preventable. They would be alive today, but for the doctor’s refusal to treat them. A more profound case of willful disregard can hardly be imagined.

The United States government indirectly employed the doctor in question. Acknowledging that there was no excuse for the doctor’s incompetence, the government admitted liability. The sole dispute at trial was over the amount of damages recoverable by plaintiff Kathy Clemons, who is Tiara’s mother, Aubrey Anna’s grandmother, and guardian to Tiara’s two surviving children. That issue is resolved below.^[1]

1. Stipulated Facts

The following facts were stipulated by the parties in the Pretrial Order and are therefore accepted by the Court as true. Docket No. 56. The footnotes in this section help explain the stipulations but are not themselves stipulations.

1. On June 27, 2009, Tiara Clemons was a 20 year old Native American female, and a citizen of the Choctaw Nation, residing in Choctaw, Neshoba County, Mississippi. On June 27, 2009, Tiara received a puncture wound near the top of her right scapula. At that time, Tiara Clemons was 30 weeks pregnant with Aubrey Clemons, a minor child. As a result of the wound, Tiara Clemons sought medical treatment for herself and her unborn child from the Choctaw Health Center located in Choctaw, Neshoba County, Mississippi.

2. At approximately 5:19 p.m., on June 27, 2009, Tiara Clemons was examined by Choctaw ambulance EMTs who responded to her call for assistance due to injuries received from a puncture wound to her back. She was examined, and her vital signs were stable. She was noted to be awake and alert, and sitting on the ground. Importantly, the Choctaw EMT noted that she had “bilateral breath sounds clear to auscultation.” Her wound was bandaged, and she was not bleeding externally. Tiara Clemons was given oxygen, and an IV was started on her left hand. In that condition, Tiara Clemons and her unborn child, Aubrey Anna Clemons, were transported to Choctaw Health Center, recognized by the Mississippi Department of Health as a Level IV Trauma Center. *2

3. Tiara and Aubrey Anna arrived at the Choctaw Health Center by ambulance at 5:22 p.m. (Testimony showed that the trip took no more than two minutes. Trial Transcript 89–91 [hereinafter “Tr.”]. The Clemons family lived less than a mile from the Choctaw Health Center. Id.) They were not seen, examined, or triaged until 5:42 p.m.

4. At 5:42 p.m., Jill Shaw, a family nurse practitioner, examined Tiara. Nurse Shaw noted that Tiara was 30 weeks pregnant with Aubrey Anna, and recorded Tiara’s pain at a “10” on a scale of 1 to 10, with 10 being the “most severe” pain. Nurse Shaw ordered laboratory tests on Tiara’s blood, a chest x-ray, and that a fetal monitor be placed on Tiara to monitor Aubrey Anna. At 5:42 p.m., Nurse Shaw obtained a blood pressure of 109/62.

5. At 5:45 p.m., Tiara and Aubrey Anna were examined by Dr. [Victoria] Guevarra, the ER doctor staffing the Choctaw Health Center Emergency Room. Dr. Guevarra noted that Tiara had received a stab wound in the right scapula, and that by 5:45 p.m., she had decreased breath sounds on the right upper fields. Dr. Guevarra ordered laboratory tests, and ordered that Tiara be given morphine for pain.

6. At 5:53 p.m., Tiara was taken to the radiology room very near the emergency room, where two chest x-rays were taken. The first x-ray was placed in the developer at 5:53 p.m.—the second at 5:57 p.m. These x-rays were available to be viewed by Dr. Guevarra in the emergency room no later than 6:00 p.m. By 6:10 p.m. Dr. Guevarra had reviewed the x-rays and was aware of the internal bleeding.

7. The 5:53 p.m. and 5:57 p.m. chest x-rays revealed that Tiara had a large right pleural effusion, with unilateral pulmonary infiltrate in the right lung, a hemothorax on the right with a fifteen to twenty percent pneumothorax on the right. Upon viewing the x-ray, Dr. Guevarra diagnosed Tiara with a pneumothorax in her right lung, and that she was bleeding internally.

8. At 6:21 p.m., Dr. Guevarra received the result of the blood tests previously ordered. The results showed diminished hemoglobin and hematocrit levels. By 6:40 p.m.^[2] Tiara had become hypotensive. Her blood pressure was recorded at 81/47.^[3]

9. Between 6:50 p.m. and 7:05 p.m. Dr. Guevarra attempted to arrange a transfer of Tiara to Anderson Medical Center in Meridian, Mississippi, by ground ambulance. Dr. Guevarra called Anderson Regional Medical Center in Meridian, Mississippi, located about 40 miles distance, about a transfer. However, the ER doctor at Anderson denied Dr. Guevarra’s request for transfer because Clemons was pregnant. Dr. Guevarra did not tell the doctor at Anderson that it was a life threatening situation regarding Clemons.^[4] She did not contact or try to transport Clemons to Neshoba County General Hospital, about 8 miles distance.

10. It was at least 6:50 p.m. [***] when Dr. Guevarra began trying to have Clemons transported to [a] medical facility with emergency services. Dr. Guevarra only began this process after being urged by CHC nursing personnel and Choctaw EMS personnel to have Clemons transported to a hospital.

11. Todd Harrison, one of the Choctaw EMT/paramedics, told Dr. Guevarra that Tiara was not stable enough to transport by ground ambulance, and told her to call the AirCare dispatch and send a helicopter to transport Tiara to University Medical Center [“UMC”] in Jackson, Mississippi, a Level I Trauma Center. Dr. Guevarra then called for the UMC AirCare helicopter to transport Tiara. When contacted, UMC immediately dispatched a helicopter with EMT personnel.^[5] Dr. Guevarra did not relay that CHC had no blood nor ability to drain fluids from Clemons’ chest. *3

12. At approximately 7:00 p.m., Dr. Guevarra ordered another chest x-ray, which revealed a “massive” right hemothorax.

13. At 7:30 p.m., Tiara Clemons was assessed by the UMC AirCare EMTs upon their arrival at the Choctaw Health Center. Upon assessment, Tiara was hypoxic, hypotensive, and worsening. Her blood pressure had fallen to 82/54, her oxygen saturation was at 86%, … and her respirations were 36.^[6] The UMC EMTs noted the massive hemothorax visualized on the chest x-ray. Tiara was gasping for breath, and no breath sounds could be heard on the right side of her chest. The UMC EMTs requested that Dr. Guevarra perform a thoracostomy. EMT medical notes reflect that Dr. Guevarra repeatedly refused to perform the thoracostomy, a procedure which involves inserting a tube into Clemons’ chest to drain the blood, despite requests by UMC EMT.^[7] The UMC EMTs also requested that Dr. Guevarra give blood to Tiara Clemons. Dr. Guevarra did not order blood to be given, and informed that none was available at the Choctaw Health Center.

14. At approximately 7:30 p.m., the UMC EMTs noted that there was a failure to protect Tiara’s airway, and intubated Tiara at 7:35 p.m. At 7:45 p.m., due to observed cyanosis (turning blue), decreased breath sounds, severe shortness of breath, decreased cardiac output, low oxygen and oxygen saturation rates, the UMC EMTs performed a needle thoracostomy on the right chest, which returned approximately 300 ml of air and blood.^[8]

15. At 8:09 p.m., the UMC AirCare EMTs departed for UMC in the helicopter with Tiara and Aubrey Anna. Measured at 8:15 p.m. and 8:30 p.m., Tiara’s oxygen saturation level was 42%. By 8:40 p.m., Tiara’s oxygen saturation level had dropped so low that it was incapable of measurement, and was recorded as “0%”.

16. At 8:42 p.m., as the AirCare helicopter was approaching UMC, while over the VA Hospital [The Court will note that the VA Hospital is next door to UMC], Tiara went into cardiac arrest. At 8:44 p.m., Advanced Cardiac Life Support protocols were employed by the EMTs, including administration of atropine and epinephrine. From 8:44 p.m. until 8:54 p.m. cardiopulmonary resuscitation (CPR) was performed. At 8:45 p.m., the UMC EMTs performed a needle thoracostomy to Tiara’s left chest, which returned 20 ml of air and blood. At 8:50 p.m., the UMC EMTs delivered Tiara to the UMC emergency physicians.

17. At 8:50 p.m., the UMC emergency physicians performed a thoracostomy and inserted bilateral chest tubes. The chest tube on the right returned 2400–2500 cc’s of blood.^[9] A cardiac ultrasound was performed, which revealed no cardiac activity present in either Tiara or Aubrey Anna.

18. At 8:52 p.m., Aubrey Anna was delivered by emergency Caesarean section, but showed no signs of life. CPR was continued on Tiara Clemons. At 8:54 p.m., another cardiac ultrasound was performed. With no cardiac activity noted, Tiara Clemons and Aubrey Anna Clemons were pronounced dead.

19. At all material times, Dr. Victoria Guevarra, Jill Shaw, FNP, and all other individuals who provided medical care and treatment to Tiara Clemons and Aubrey Anna Clemons were acting in the course and scope of their employment with the Choctaw Health Center, a healthcare facility owned and operated by, and located on property occupied by, the Mississippi Band of Choctaw Indians, in Choctaw, Mississippi.

*4 20. The United States of America, Defendant, is statutorily and at common law responsible for the wrongful and negligent acts, if any,^[10] with respect to Tiara Clemons and Aubrey Anna Clemons which occurred at the Choctaw Health Center, located on property occupied by the Mississippi Band of Choctaw Indians, in Choctaw, Mississippi.^[11]

21. As the sole wrongful death beneficiaries of Tiara Clemons and Aubrey Anna Clemons, deceased, Elona Clemons and Keontray Clemons, by and through Kathy Clemons and Bill Clemons, Guardians, are entitled to assert and prosecute a claim for damages arising out of the wrongful death of Tiara Clemons and Aubrey Anna Clemons.

22. The care rendered to Tiara and Aubrey Anna Clemons on June 27, 2009 did not comply with, and fell below, the standard of care applicable to the Choctaw Health Center, and Dr. Guevarra.

23. Dr. Guevarra and the Choctaw Health Center breached the applicable standard of care while rendering medical care and treatment to Tiara and Aubrey Anna Clemons. The breach of the standard of care included a failure to timely transfer Tiara and Aubrey Anna to a healthcare facility with additional treatment capabilities, and/or failing to insert a chest tube, i.e., perform a thoracostomy, to protect Tiara Clemons’ airway.

24. Had Tiara and Aubrey Anna Clemons received treatment at the Choctaw Health Center consistent with the applicable standard of care, i.e., timely transfer to a healthcare facility with additional treatment options available and/or insertion of a chest tube, both Tiara and Aubrey Anna Clemons would have survived intact.

25. The breaches of the standard of care of Dr. Guevarra and the Choctaw Health Center while rendering medical care and treatment to Tiara Clemons and Aubrey Anna Clemons were a proximate cause of the deaths of Tiara Clemons and Aubrey Anna Clemons.

26. On June 27, 2009, Tiara Clemons was stabbed by an individual, consistent with the notations in the medical records and autopsy report.^[12]

27. The medical expenses associated with Tiara Clemons and Aubrey Anna Clemons treatment at University Medical Center on June 27, 2009 and the funeral expenses of Tiara Clemons and Aubrey Anna Clemons were paid by the Mississippi Band of Choctaw Indians.

28. Subsequent to June 27, 2009, Dr. Guevarra was removed from staffing the emergency room at Choctaw Health Center as an emergency physician.^[13]

II. The Court’s Findings

This wrongful death suit was brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. [***] *5 Under Mississippi’s wrongful death law, Kathy Clemons is an appropriate representative to file suit on behalf of herself and Tiara Clemons’ children. Miss. Code § 11–7–13; PX–34; PX–35. The statute states that she “shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.” Miss. Code § 11–7–13 (emphasis added). “Compensation in a wrongful death action is not limited to actual damages and lost wages, but extends to the pain and suffering of the deceased, as well as the loss of companionship and society.” [c]

Kathy Clemons may recover for the wrongful deaths of Tiara and Aubrey Anna with no distinction made for Aubrey Anna being a 30–week old fetus in the womb. Mississippi’s wrongful death statute states that recovery may be made for the wrongful death of persons or “any unborn quick child.” Miss.Code § 11–7–13; see [c] (“When a family loses a potential member because of tortious conduct of another, it suffers an injury of the same order as when it loses an existing member.”). It is undisputed that Aubrey Anna was ‘quick in the womb’ and viable outside of the womb. Tr. 183, 200 (testimony of Dr. Owens); [c] (discussing ‘quickening’ and viability). Accordingly, Kathy Clemons may recover for the wrongful deaths of both Tiara and Aubrey Anna.

Before continuing, the Court must emphasize that its determination of the amount of damages properly recoverable in this case is in no way a declaration of the value of Tiara or Aubrey Anna’s lives. It is not possible to assign a dollar value to anyone’s life. As the Mississippi Supreme Court wrote over 80 years ago, “the loss sustained by a wife and children in the death of the husband and father frequently cannot be compensated by any amount of money.” Gulf Ref. Co. v. Miller, 121 So. 482, 483 (Miss.1929); see also Dickey v. Parham, 331 So.2d 917, 919 (Miss.1976) (“how to test the adequacy or inadequacy of verdicts in a wrongful death action is a most perplexing problem. This is true because the value of human life even when considered along with applicable elements of damages is difficult of proof.”); Weems & Weems, Mississippi Law of Torts § 14:10 (2d ed.2008).^[14] An award of monetary damages is simply the means by which our system of justice seeks to repair some of the loss and harm inflicted upon the victim and the victim’s family.

The parties’ various disputes concerning damages are resolved as follows:

A. Economic Damages

Mississippi law defines economic damages as:

objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses. *6 Miss.Code § 11–1–60(1)(b).

The plaintiff put forward evidence of $31,394 in reasonable and necessary medical expenses and $4,014 in funeral expenses. The United States does not challenge either amount. They will be awarded.

1. Tiara’s Economic Damages

The plaintiff called Dr. G. Richard Thompson to provide expert testimony about Tiara’s economic damages, while the defendant called James A. Koerber for the same purpose. The Court will take up lost earnings first, then turn to the value of household services.

The experts’ estimates of Tiara’s lost earnings differed based upon their assumptions. For example, the plaintiff’s expert’s report had a high-end estimate of $1.19 million, PX–31 at 8, while the defendant’s expert’s low-end estimate was $256,497, DX–1 at App’x A. (All of these figures have been reduced to present value.) The Court will wade through several of these assumptions and determine which model is generally more persuasive.^[15]

The first dispute concerns the number of years Tiara could be expected to work. The plaintiff’s expert assumed, based on certain sources, that Tiara would work until the normal retirement age of 67. PX–31 at 5. The defendant’s expert assumed, based on other sources, that Tiara would work for approximately 21 and a half years. DX–1 at 6. The defense expert’s assumption was based upon a study of “initially inactive women with less than a high school education.” DX–1 at 10. Tiara did have some work experience, so it is not immediately obvious that she matches the “initially inactive” description. But grouping Tiara with the findings of that study is also not quite apt because the evidence indicated that Tiara was completing her GED, and therefore should be treated as a high school graduate, not a high school dropout. See Rebelwood Apartments RP, LP v. English, 48 So.3d 483, 495–96 (Miss.2010) (discussing caselaw affirming trial judge’s decision to apply college-graduate average wages to decedents who were enrolled in college but had not yet completed college). All in all, the plaintiff’s expert’s assumption is more compelling on this point. [***]

Another disputed assumption is Tiara’s expected tax rate. The plaintiff’s expert testified that with three children and relatively modest earnings, Tiara’s taxes would be negligible. Tr. 230–31, 239; PX–31 at 6. The defendant’s expert assumed a greater rate, especially if Tiara went on to obtain a two-year degree. DX–1 at 6. The Court agrees that the former approach more closely matches our situation.

The contested assumption of most significance is how much education Tiara ultimately would have completed. Lifetime wages for graduates of community colleges are, on average, higher than lifetime wages for GED recipients. PX–31; DX–1; Tr. 235–36. As a result, each expert made two calculations, one for Tiara completing community college and one for her without that credential. Within that latter category, the experts appear to have made a further distinction: the plaintiff’s expert assumed Tiara’s wages as a GED holder, while the defense expert assumed Tiara’s wages in a minimum wage-only job. Compare PX–31 at 6 with DX–1 at 6.

*7 On review, the available evidence was more supportive of Tiara completing her GED and entering the workforce without a two-year degree. Tiara’s mother testified that after completing her GED, which Tiara was only two classes away from finishing, Tiara had said she would work for the tribe and raise her children. Tr. 175. On prompting by counsel, testimony was elicited that Tiara wanted to attend college, but the answer soon returned to working for the tribe and raising children. Id. at 178. Given the testimony and evidence, it is more likely that Tiara would have completed her GED and returned to the workforce directly. (Even though it is possible for a non-high school graduate, non-GED holder to enroll in community college in Mississippi.) See id. at 174–78; DX–4. At the same time, the Court disagrees with the defense expert’s apparent restriction of Tiara to minimum wage-only jobs, and adopts the range of wages applicable to GED holders.^[16]

All in all, the Court will adopt the plaintiff’s expert’s general model, credit the defendant’s argument as to Tiara’s reasonably expected education level, and accept the plaintiff’s expert’s reduction at trial (based upon the personal consumption rate), to assess Tiara’s economic damages at $740,764. Tr. 241, 254–55.

Finally, both parties’ experts agreed that a component of Tiara’s economic damages should be $133,969 in lost household services. Those damages will be awarded.

Consequently, Tiara’s economic damages are $874,733.

2. Aubrey Anna’s Economic Damages

Again, the calculation will be broken down into lost earnings and lost household services.

The Court’s general assessment of the competing expert models applies to Aubrey Anna’s lost earnings. The plaintiff’s expert’s overall model will be applied and reduced to take into account Aubrey Anna’s expected personal consumption rate. The most significant question remaining concerns Aubrey Anna’s education level: would she have completed high school before entering the workforce, or gone on to complete a two-year degree?

It is impossible to answer this question with certitude. Aubrey Anna had no education or work history upon which to base a conclusion about her lost earnings. That does not preclude an award of damages, of course. See TXG Intrastate Pipeline Co v. Grossnickle, 716 So.2d 991, 1016–17 (Miss.1997) (“It is well recognized that Mississippi is equally firm in its determination that a party will not be permitted to escape liability because of the lack of a perfect measure of damages his wrong has caused… Where the existence of damages has been established, a plaintiff will not be denied the damages awarded by a fact finder merely because a measure of speculation and conjecture is required in determining the amount of damages.”) (quotation marks, citations, and brackets omitted); see also Choctaw Maid Farms, Inc. v. Hailey, 822 So.2d 911, 918 (Miss.2002) (“there is no exact yardstick for determining [lost income] damages”) (quotation marks, citation, and brackets omitted). But it does mean the Court must weigh carefully the evidence, as well as guidance from other courts.

*8 For these situations, the Mississippi Supreme Court has provided the following guidance:

The conclusion by the Court of Appeals that the income for the children should be based on some sort of average income for persons of the community in which they lived, as far as we can find, has no basis in our law. Additionally, such a method is just as speculative as basing the recovery on the earning history of the parents. It is both unfair and prejudicial to ground the projected future income of a deceased child on either basis. Both methods result in potentially disparate recoveries for children from affluent communities or with affluent parents, as opposed to children from less affluent areas or with less affluent parents.

Who is to say that a child from the most impoverished part of the state or with extremely poor parents has less of a future earnings potential than a child from the wealthiest part of the state or with wealthy parents? Today’s society is much more mobile than in the past. Additionally, there are many more educational and job-training opportunities available for children as a whole today. We must not assume that individuals forever remain shackled by the bounds of community or class. The law loves certainty and economy of effort, but the law also respects individual aptitudes and differences.

Therefore, we hold that in cases brought for the wrongful death of a child where there is no past income upon which to base a calculation of projected future income, there is a rebuttable presumption that the deceased child’s income would have been the equivalent of the national average as set forth by the United States Department of Labor. This presumption will give both parties in civil actions a reasonable benchmark to follow in assessing damages. Either party may rebut the presumption by presenting relevant credible evidence to the finder of fact. Such evidence might include, but is certainly not limited to, testimony regarding the child’s age, life expectancy, precocity, mental and physical health, intellectual development, and relevant family circumstances. This evidence will allow the litigants to tailor their proof to the aptitudes and talents of the individual’s life being measured. Greyhound Lines, Inc. v. Sutton, 765 So.2d 1269, 1276–77 (Miss. 2000).

It follows that this Court cannot base Aubrey Anna’s expected education level upon her mother’s education level. Such a conclusion would be at odds with the greater number of opportunities available to Aubrey Anna and other children in her generation. See id. And there is no “relevant credible evidence” from either party to bolster or rebut the presumption of using national benchmarks. Id. The defendant was given ample opportunity to rebut the presumption but failed to do so.

If the Mississippi Supreme Court is correct that we live in a more upwardly-mobile society, with “many more educational and job-training opportunities available for children” today than in the past, it is reasonable to expect Aubrey Anna to somewhat exceed her mother’s educational achievement. Id. The Court may also take judicial notice of America’s history of increased educational attainment, i.e., the fact that over time the percentage of the population that graduates from high school and college has risen substantially.

*9 For example, between 1940 and 2009 there was “more than a three-fold increase in high school attainment and more than a five-fold increase in college attainment.” U.S. Census Bureau, Educational Attainment in the United States: 2009, at 1, Feb. 2012, available at https://www.census.gov/content/dam/Census/library/publications/2012/demo/p20-566.pdf. The graphical representation of this trend shows that the increase is fairly consistent and continues to present day—or, more accurately, to 2009, the most recent year data were available. Id. at 3; see generally Gage Raley, Yoder Revisited: Why the Landmark Amish School Case Could—And Should—Be Overturned, 97 Va. L. Rev. 681, 696–97 (2011) (collecting figures showing a substantial increase in educational attainment in the United States over the past 35 years, and attributing the dramatic rise to a stronger, more direct “link between secondary education and business,” the fact that “more jobs now demand greater educational skills,” “[i]ncreasing global competition,” and states’ recognition that they are engaged in an “educational arms race”) (quotation marks and citations omitted); Bill Ong Hing, NAFTA, Globalization, and Mexican Migrants, 5 J.L. Econ. & Pol’y 87, 136 (2009) (“Younger and older workers alike are now more educated as the share of adult native-born men without a high school diploma have plunged, from 53.6% in 1960 to 9.0 [%] in 1998. During that same period, the share with college degrees has gone up from 11.4% to 29.8%.”) (citation omitted).

It bears repeating that no one, not even the capable experts who testified in this suit, can predict accurately what Aubrey Anna would have earned had she survived. She was only 30 weeks old. The Court—which has been given only two options, high school completion or two-year degree holder—must make a reasonable guess informed by prior caselaw, national averages, and long-term trends. It concludes that Aubrey Anna would more likely than not move at least one rung up the ladder of economic opportunity. As a result, her grandmother will be awarded $773,280 for lost earnings.^[17] See Tr. 243–44.

The parties dispute whether the plaintiff may recover the value of Aubrey Anna’s lost household services. The plaintiff’s expert recommended that they be awarded on essentially the same terms as Tiara’s lost household services. Tr. 245. The defendant’s expert thought none were warranted because of an assumption that Aubrey Anna would live alone. DX–2 at 15. Testimony supported that Aubrey Anna would probably not live alone. Tr. 158–60. The plaintiff will be awarded $133,969 for Aubrey Anna’s lost household services.

As a result, Aubrey Anna’s total economic damages are $907,249.

B. Non–Economic Damages

Mississippi law defines non-economic damages as:

subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. *10 Miss. Code § 11–1–60(1)(a).

1. Tiara’s Pain and Suffering

At trial, the plaintiff called Dr. Michael Stodard to provide expert testimony on Tiara’s condition. Dr. Stodard testified that Tiara’s stab wound caused air and blood to flow into her chest cavity and slowly fill up the space normally occupied by her lung, causing respiratory distress. Tr. 22–24, 31, 43; PX–27 at 4. In addition, as the air and blood collected, they started to press against Tiara’s lung and heart, which pushed the lung toward collapse and impeded the heart’s ability to fill up and pump blood. Tr. 23–24.

Dr. Stodard testified that respiratory distress results in shortness of breath, suffocation, feelings of smothering, anxiety, restlessness, and “a sense of impending doom.” Id. at 24–25. Not only does the patient know that their breathing is impaired, but the body’s failure to oxygenate—how the lungs exchange oxygen into red blood cells, and the heart pumps that blood around the body—makes the patient feel like they are going to die. Id. at 25. Shock and a steadily decreasing blood pressure can result as the distress escalates. Id. Dr. Stodard explained that all of these symptoms could have been stopped with insertion of a chest tube, which provides immediate relief by draining the chest cavity and permitting the lung to expand. Id. at 26, 28.

Tiara was in distress by 5:42 P.M. and reported a 10 out of 10 pain level at that time. Id. at 37; PX–36 at 1. Dr. Guevarra testified in a deposition that Tiara was “screaming from pain and very restless,” and in obvious pain and distress. PX–49 at 133, 170–71. By 6:40 P.M., Tiara had gone into shock and had an abnormally low blood pressure because too much of her blood was in her chest cavity and not circulating through her body. Tr. 44. Dr. Stodard testified that she was experiencing extreme anxiety and distress, accompanied by a feeling of suffocation and impending doom. Id. at 45.

By 7:00 P.M., a chest x-ray … showed that approximately half of Tiara’s blood was in her chest cavity, indicating that she was in hemorrhagic shock.^[18] Id. at 48, 56; see id. at 119. That condition is associated with greater physical and emotional suffering, including feelings of smothering. Id. at 49, 119.

Half an hour later, Tiara was gasping for breath and likely felt like she was drowning, Dr. Stodard said. Id. at 52, 80. She could not lay flat because the blood in her chest would have increased the pressure on her heart. Id. at 54. Instead, she was upright and leaning forward slightly in the tripod position, which helps keep blood away from the heart.^[19] Id.; see id. at 102 (testimony of EMT), 166 (testimony of UMC EMT). She told the UMC EMT that she was hurting and having a hard time breathing, and later begged, “please help me.” Id. at 117, 123. At one point, her mother testified, Tiara looked to be in fear of dying and said she was scared. Id. at 167–68. Dr. Guevarra admitted that Tiara was crying out for help. PX–49 at 172.

*11 Dr. Stodard testified that Tiara’s death was a slow process, during which she was conscious and aware of what was going on around her, as well as conscious of her own mortality. Tr. 56, 75–76. Later administration of a sedative (morphine) and a paralytic rendered Tiara unconscious and paralyzed until her death. Id. at 82, 147.

At times, the defendant argued that Tiara suffered relatively little because morphine was provided at or around 5:45 P.M., and also because Tiara became unconscious while being evacuated to UMC. Id. at 323, 325; see Stipulation No. 5. But the considerable evidence recited above shows the degree of her pain and suffering between the first administration of morphine and her later, final fall into unconsciousness. At other times, in fact, the defendant did not deny that Tiara’s death was slow and painful, and that she was conscious of it. Tr. 75. It later acknowledged the pain, significant difficulty breathing, and “awful” panic she suffered. Id. at 323, 325.

Taking all of this into account, the evidence shows that Tiara suffered tremendously, both physically and mentally, before dying. The Court will award $1.5 million for her pain and suffering and $500,000 for her mental anguish. See Motorola Comm. & Electronics, Inc. v. Wilkerson, 555 So.2d 713, 724 (Miss.1989); see also Hailey, 822 So.2d at 927–28 (Cobb, J., concurring in part and dissenting in part).

This award is lower than those in other, reasonably similar cases. … Tiara’s lower award is not disproportionate or unreasonable.

2. Aubrey Anna’s Pain and Suffering

The plaintiff introduced, via deposition, the expert testimony of Dr. John P. Elliott, a specialist in maternal fetal medicine, which is also known as high-risk obstetrics. PX–52, at 7. Dr. Elliott testified that Aubrey Anna was entirely dependent upon Tiara receiving adequate oxygen. Id. at 25. When Tiara’s oxygen supply was restricted, Aubrey Anna’s health also suffered. Id. at 31.

*12 For example, Aubrey Anna’s heart rate, which was recorded via fetal heart monitor once at 5:45 P.M. and once more at a later (unknown) time, showed increased stress as a result of Tiara’s deteriorating condition. Id. at 30–31. (Dr. Guevarra admitted as much at her deposition. PX–49 at 134.) As Dr. Elliott put it, Aubrey Anna “was responding to stress by increasing [her] heartbeat. Probably the lack of oxygen that was going on with the mother was affecting the baby at that point, and the baby is pumping its blood faster to get more oxygen per minute.” PX–52 at 31.

The lack of oxygen in Tiara’s body caused a placental abruption—which means part of the placenta separated from Tiara’s uterus—and fatally decreased the oxygen being delivered to Aubrey Anna. Id. at 25–26, 52. In short, Aubrey Anna died from a lack of oxygen. Id. at 52. Her time of death was most likely when Tiara went into cardiac arrest in the helicopter, within 15 minutes of her arrival at UMC.^[20] Id. The doctors at UMC delivered Aubrey Anna stillborn. Id. at 50–51.

The defendant asserted that Aubrey Anna “just passed out, went to sleep” without pain or suffering. Tr. 76, 325. “In fact, … more than likely what she did was slowly become deprived of oxygen and just lose whatever consciousness she had. There was no—there was no impact, there was no prodding, no needlesticks, nothing. She just lost oxygen and went to sleep.” Id. at 326. The evidence, though, showed that a 30–week old fetus has well-developed reflexes and can respond to stimuli like touch. Id. at 201, 204. Dr. Elliott, meanwhile, testified that Aubrey Anna’s heart rate increased as her body was stressed from a lack of oxygen. PX–52, at 30–31. Aubrey Anna’s body responded to the lack of oxygen that was killing her by working harder and straining itself. As she was dying, her body displayed its instinctive will to live.

The defendant’s argument that Aubrey Anna merely “went to sleep” glosses over the medical reality that, to borrow defense counsel’s own words, “more than likely what [Aubrey Anna] did was slowly become deprived of oxygen.” Tr. 326. Another way to describe a deprivation of oxygen is “suffocation.” Webster’s Third New International Dictionary (Unabridged) 2285 (1993) (defining suffocate as “to stop the respiration of (as by strangling or asphyxiation): deprive of oxygen: make unable to breathe.”). Suffocation is obviously painful.

It is more likely than not that Aubrey Anna experienced physical pain and suffering before her death. The Court will award $650,000 for that pain and suffering.

3. Loss of Society and Companionship

Tiara’s two surviving children, seven-year old Elona and five-year old Keontray, are entitled to damages for the loss of society and companionship of their mother. The defendant argues that no such damages may be awarded because “Mississippi does not recognize damages for past and future loss of society and companionship for a child upon the loss of a parent.” Docket No. 61, at 8 (citing Thompson v. Love, 661 So.2d 1131 (Miss.1995)) (emphasis omitted).

*13 Thompson was a personal injury case where the parent did not die. In wrongful death cases like ours, though, children are permitted to recover loss of society and companionship damages for the death of a parent. Long v. McKinney, 897 So.2d 160, 169 (Miss. 2004) (“The beneficiaries are entitled to recover for their respective claims of loss of society and companionship.”); Thompson, 661 So.2d at 1136 (McRae, J., dissenting) (explaining difference between loss of companionship recovery in personal injury and wrongful death contexts); Jackson & Miller, 4 Encyclopedia of Mississippi Law § 25:18 (2001). Accordingly, Elona and Keontray will each be awarded $750,000 for the loss of society and companionship of their mother.

The plaintiff also seeks damages for Elona and Keontray’s loss of society and companionship of their sister, Aubrey Anna. Such damages have long been permitted by the Mississippi Supreme Court. E.g., Miller, 121 So. at 484 (observing that the decedent, a young boy, was “the pride of his father, the joy of his mother, the idol of his sisters, and the boon companion of his brothers”); Gulf, M. & O.R. Co. v. White, 68 So.2d 458, 460 (1953) (“where the interested parties suing for the death of another are the brothers and sisters of the deceased, loss of companionship may be considered as an element of damages”).

Here, the defendant’s specific argument is that the claim fails because there was “no proof of any preexisting relationship between Aubrey Anna Clemons prior to her death and her siblings that could be characterized as affectionate or devoted.” Docket No. 61, at 8. But, of course there was no preexisting relationship between Aubrey Anna and her siblings—she had not been born yet. The defendant deprived the siblings of the opportunity to form a relationship and do all the things that sisters and brothers do with each other, as well as experience the simple joys of life that siblings share.

The defendant’s argument has not taken into account the Mississippi Legislature’s decision in 2004 to amend the wrongful death statute to permit recovery for “the death of any person or of any unborn quick child.” Miss. Code § 11–7–13 (emphasis added); see 2004 Miss. Laws Ch. 515 (H.B.352). The amendment suggests that the legislature intended beneficiaries of unborn children who die a few weeks shy of birth to be treated akin to beneficiaries of children who die a few weeks after birth. A contrary interpretation would render meaningless the legislature’s repeated addition of the phrase “unborn quick child” to the wrongful death statute. Aubrey Anna’s siblings will each be awarded $400,000 for the loss of society and companionship of their sister.

Kathy Clemons has also lost the society and companionship of her daughter and granddaughter. She testified that when she arrived at UMC and was told that Tiara and Aubrey Anna had died, it all went “blank.” Tr. 169–71. “It’s always cold and hard,” she said. Id. at 171. “I wouldn’t have ever thought I would lose my child like this.” Id. Dr. Owens, who met with Kathy Clemons and her family at UMC to explain what had happened, reported that they were distraught and that not much registered. Id. at 198. “They were very clearly just emotionally devastated.” Id.

*14 On this basis, Kathy Clemons will be awarded $500,000 for the loss of society and companionship of her daughter Tiara and granddaughter Aubrey Anna. See Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1030 (Miss.2000).

4. Summary of Non–Economic Damages

The total award for non-economic damages is $5.45 million. Although this amount exceeds the economic damages award of $1,817,390, the ratio of economic damages to non-economic damages is well within acceptable boundaries.

The Mississippi Supreme Court has upheld damages with far greater disparities than the award in this case. Estate of Jones v. Phillips, 992 So.2d 1131, 1150 (¶ 52) (Miss. 2008) (upholding a $5,000,000 verdict and finding although economic damages only totaled $440,511.46, the amount of the verdict was not so excessive as to shock the conscience); Gatewood v. Sampson, 812 So.2d 212, 223 (¶¶ 25–27) (Miss. 2002) (upholding jury verdict of $308,000 in compensatory damages although proof of lost wages and medical expenses only totaled $8,002.50); Dorrough v. Wilkes, 817 So.2d 567, 575 (¶ 30) (Miss. 2002) (upholding jury verdict of $1,500,000 although medical fees and loss of services only totaled $339,000). Kelly, 88 So.3d at 780.

The 2.99x multiple in our case is lower than the 10.3x, 37.5x, and 3.4x ratios affirmed above.

5. Mississippi’s Cap on Non–Economic Damages [omitted]

6. The FTCA’s Administrative Limitation on Damages

Recall that before filing suit, plaintiff’s counsel mailed the United States a thorough Notice of Claim and two completed SF–95s—one for Tiara and one for Aubrey Anna. PX–4. Each SF–95 sought $2.5 million in damages, for a total demand of $5 million. Id. The plaintiff’s recovery in this case may not exceed that sum. 28 U.S.C. § 2675(b); Corte–Real v. United States, 949 F.2d 484, 487 (1st Cir. 1991) (collecting cases).

If Mississippi’s cap on non-economic damages is upheld and applied, the plaintiff will recover less than $5 million, rendering the FTCA’s limit moot. On the other hand, if Mississippi’s cap is deemed unconstitutional, the FTCA’s limit will be applied to cap the plaintiff’s total recovery at $5 million.

C. Punitive Damages

Punitive damages are not permitted under the FTCA. 28 U.S.C. § 2674. The plaintiff did not seek to recover them and the Court cannot award them. It will, though, observe that in addition to the evidence already described above, there is even more evidence that could have supported a finding of recklessness and an award of punitive damages. In other words, but for the fact that the government is the defendant, punitive damages would have been assessed.

One revealing piece of evidence is an April 17, 2009, letter from the Clinical Director of the Choctaw Health Center, Dr. C.V. Joshi, to the CEO of the Choctaw Health Center, in which Dr. Joshi warned the CEO about the Center’s condition and urged improvements in the Center’s care. PX–50 at 57–66 (deposition of Dr. Joshi); PX–17 (Dr. Joshi’s letter). The letter’s most salient points are reproduced here:

WITH [BUDGETARY] CUTS IT IS NECESSARY TO TAKE [A] SECOND LOOK AT [THE] LEVEL OF CARE WE CAN OFFER….

In last 10–15 years Emergency medicine in itself has become a separate medical speciality [sic]. These doctors are rigorously trained during their residency program in larger medical centers. These doctors are better equipped to handle critically ill patients with heart attack, CVA; gun shot wounds and seriously hurt MVA patients. In order to stabilize critically ill ER patient some time availability of general surgeon, anesthesiologist, respiratory therapist, and internist with critical care experience and some time help of pediatrician is extremely necessary….

Emergency physicians at CHC are not full time ER physicians. Many of clinic physicians work part time in the emergency room. Even though these doctors take courses such as ACLS and PALS these courses and mock codes by no means substitute for day to day real life experience….

Our staff … mainly consists of family physicians…. We do not have surgeon, anesthetist, and internist with ICU/CCU experience or pediatrician on staff. There fore there is no immediate back up for the ER physician….

*16 IN THE PAST I WAS ABLE TO EASE NEW PHYSICIAN AFTER SEVERAL MONTHS OF EXPOSURE TO UNDERSTAND OUR UNIQUE CULTURE, HEALTH PROBLEMS AND LIMITATIONS OF OUR FACILITY AND HOW TO PRACTICE SAFE MEDICINE IN HIGH RISK AREA SUCH AS EMERGENCY ROOM.

IT IS TIME TO REEVALUATE OUR HEALTH DELIVERY SYSTEM AND MAKE GOVERNING BOARD AWARE ABOUT CHRONIC PROBLEMS

AFTER NEXT FEW WEEKS I THINK GIVING ADEQUATE QUALITY COVERAGE IS ALMOST DIFFICULT. PX–17, at 1–3.

No immediate action was taken. PX–50, at 60. Just a few weeks later, of course, Tiara Clemons was treated at Choctaw Health Center by a family physician who refused to perform a basic procedure. In short, Tiara Clemons was treated by a family physician who had no right to be in an emergency room, but even worse, was in charge of the emergency room, and her superiors knew it. As a result, Tiara and her baby suffered the unalterable consequence.

Additional evidence not discussed may also have supported an award of punitive damages, from Dr. Guevarra not knowing where the chest tube was physically located, to the fact that medical equipment Tiara needed had been broken (for an indefinite period) when she needed it. PX–49, at 59, 66, 69–70.

The bottom line is that serious deficiencies with the care offered at the Choctaw Health Center were known and discussed months before Tiara and Aubrey Anna’s disastrous visit (e.g., Dr. Joshi’s letter), or should have been addressed and resolved beforehand (e.g., the lack of functioning ER equipment). Had prompt action been taken, their deaths may never have occurred. Every justification for awarding punitive damages is present in this case.

[***] As a result of the defendant’s breaches causing the deaths of Tiara and Aubrey Anna Clemons, the plaintiff is entitled to judgment against the defendant in the amount of $1,817,390 in economic damages, in addition to non-economic damages to be determined after supplemental briefing, but in any event no less than $500,000.

IV. For the foregoing reasons, the Court finds in favor of plaintiff Kathy Clemons in the amount of $1,817,390 in economic damages and at least $500,000 in non-economic damages. …

Note 1. Why do you think the opinion goes out of its way to point out the following: “[B]ut for the fact that the government is the defendant, punitive damages would have been assessed”? Do you agree with the court’s assessment that “[e]very justification for awarding punitive damages is present in this case”?

Note 2. This judicial opinion at times reads like an episode of the tv program, ER (or any other medical drama), albeit one with an unhappy ending. Why do you think it goes into so much factual detail when liability has been conceded ab initio (from the start)?

Note 3. Not all courts are disposed to award significant damages for the loss of a fetus on the grounds of loss of companionship by existing siblings. What do you think is the right balance for tort law to strike?

Note 4. Given what you know about the apportionment of fault and damages, do you think it is reasonable that Tiara’s sister, an intentional tortfeasor who stabbed her, thus causing the initial injury, is excluded from the assessment of liability? Why or why not? What doctrines, or what rationales, support your conclusion? You might think back to Smelser v. Paul from Module 4 (a case involving allocation of damages related to a toddler’s injuries in light of parental immunity).

Note 5. A further critique of damages awards, on grounds of racial and social justice, is that they take a given status or fact at one point in time, and use that to predict future earnings and productivity without adjusting to account for progressive social changes such as increased access to institutions of higher education and correspondingly higher-paying employment. Accordingly, the standard approach fails to account for advances in social justice and increases in socioeconomic equity and thus entrenches inequities. What, if anything, can and should tort law do about this problem? How did this court approach the issue, and what did you think, descriptively and normatively, of its approach?

More generally, how proactive should tort law be in defining who can recover from the losses or deaths suffered by others? We have seen in the context of a wrongful death statute that a beneficiary interest may be created by statute for particular kinds of successors. Should the particular identity of the surviving members of the family unit be closely scrutinized? This is the question raised in the next case.

Langan v. St. Vincent’s was decided before Obergefell v. Hodges , 576 U.S. 644 (2015) struck down any state bans on same-sex marriage and bans on recognizing such marriages duly performed in other jurisdictions, holding them unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution. But Langan v. St. Vincent offers lessons in how courts tread uncertain waters as they articulate the evolving interests of the state and the parties to a suit. In addition, the case offers practice balancing tort law’s interests and purposes with those of competing (or transcending) areas of law in the context of a dispute over statutory construction.

Langan v. St. Vincent’s Hospital of New York, Supreme Court, App. Div. 2d Dept. (2005)
(25 A.D.3d 90)

*91 The underlying facts of this case are not in dispute. After many years of living together in an exclusive intimate relationship, Neil Conrad Spicehandler (hereinafter Conrad) and John Langan endeavored to formalize their relationship by traveling to Vermont in November 2000 and entering into a civil union. They returned to New York and continued their close, loving, committed, monogamous relationship as a family unit in a manner indistinguishable from any traditional marital relationship.

In February 2002 Conrad was hit by a car and suffered a severe fracture requiring hospitalization at the defendant St. Vincent’s Hospital of New York. After two surgeries Conrad died. *92 The plaintiff commenced the instant action which asserted, inter alia, a claim pursuant to EPTL 5–4.1 to recover damages for the decedent’s wrongful death. The defendant moved, inter alia, to dismiss that cause of action on the ground that the plaintiff and the decedent, being of the same sex, were incapable of being married and, therefore, the plaintiff had no standing as a surviving spouse to institute the present action. The Supreme Court, inter alia, denied that motion and the instant appeal ensued. For the reasons stated below, the Supreme Court’s order must be reversed insofar as appealed from.

An action alleging wrongful death, unknown at common law, is a creature of statute requiring strict adherence to the four corners of the legislation [cc] The relevant portion of EPTL 5–4.1 provides as follows:

“The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death” (emphasis added).

The class of distributees is set forth in EPTL 4–1.1. Included in that class is a surviving spouse. At the time of the drafting of these statutes, the thought that the surviving spouse would be of the same sex as the decedent was simply inconceivable and certainly there was no discriminatory intent to deny the benefits of the statute to a directed class. On the contrary, the clear and unmistakable purpose of the statute was to afford distributees a right to seek compensation for loss sustained by the wrongful death of the decedent [c].

Like all laws enacted by the people through their elected representatives, EPTL 5–4.1 is entitled to a strong presumption that it is constitutional [cc] (The plaintiff claims that application of the statute in such a manner as to preclude same-sex spouses as potential distributees is a violation of the Equal Protection Clauses of the Constitutions of the United States and the State of New York. However, any equal protection analysis must recognize that virtually all legislation entails classifications for one purpose or another which results in the advantage or disadvantage to the affected groups (see Romer v. Evans, 517 U.S. 620)). In order to survive constitutional scrutiny a law needs only to have a rational relationship to a legitimate state interest even if the *93 law appears unwise or works to the detriment of one group or the other (see Romer v. Evans, supra). Thus, the plaintiff must demonstrate that the denial of the benefits of EPTL 5–4.1 to same-sex couples is not merely unwise or unfair but serves no legitimate governmental purpose. The plaintiff has failed to meet that burden.

In the absence of any prior precedent, the court would have to analyze whether the statute imposes a broad and undifferentiated disadvantage to a particular group and if such result is motivated by an animus to that group (see Romer v. Evans, supra). However, in this instance, it has already been established that confining marriage and all laws pertaining either directly or indirectly to the marital relationship to different sex couples is not offensive to the equal protection clause of either the Federal or State constitutions. In Baker v. Nelson, 291 Minn. 310, the Supreme Court of Minnesota held that the denial of marital status to same-sex couples did not violate the Fourteenth Amendment of the United States Constitution. The United States Supreme Court refused to review that result (see Baker v. Nelson, 409 U.S. 810). The plaintiff herein cannot meet his burden of proving the statute unconstitutional and does not refer this court to any binding or even persuasive authority that diminishes the import of the Baker precedent.

On the contrary, issues concerning the rights of same-sex couples have been before the United States Supreme Court on numerous occasions since Baker and, to date, no justice of that court has ever indicated that the holding in Baker is suspect. Although in Lawrence v. Texas, 539 U.S. 558, the Supreme Court ruled that laws criminalizing activity engaged in by same-sex couples and potentially adversely affecting their liberty interests could not withstand constitutional scrutiny, every justice of that court expressed an indication that exclusion of marital rights to same-sex couples did promote a legitimate state interest. Justices Scalia, Thomas, and Rehnquist concluded that disapprobation of homosexual conduct is a sufficient basis for virtually any law based on classification of such conduct. The majority opinion of Justices Kennedy, Stevens, Ginsberg, Souter, and Breyer declined to apply an equal protection analysis and nonetheless expressly noted that the holding (based on the penumbra of privacy derived from Griswold v. Connecticut, 381 U.S. 479) did not involve or require the government to give formal recognition to any relationship that homosexuals *94 wish to enter (see Lawrence v. Texas, supra at 578). Justice O’Connor, in her concurring opinion based on an equal protection analysis, specifically excluded marriage from the import of her conclusions, stating simply “… other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group” (Lawrence v. Texas, supra at 585).

Similarly, this court, in ruling on the very same issue in Matter of Cooper, 187 A.D.2d 128, appeal dismissed, 82 N.Y.2d 801, not only held that the term “surviving spouse” did not include same-sex life partners, but expressly stated as follows:

“Based on these authorities [including Baker, supra.], we agree with Acting Surrogate Pizzuto’s conclusion that ‘purported [homosexual] marriages do not give rise to any rights * * * pursuant to * * * EPTL 5–1.1 [and that] [n]o constitutional rights have been abrogated or violated in so holding’” (emphasis added)[c].

Although issues involving same-sex spouses have been presented in various contexts since the perfection of this appeal, no court decision has been issued which undermines our obligation to follow our own precedents. Recently, in the somewhat analogous case of Valentine v. American Airlines, 17 A.D.3d 38, the Appellate Division, Third Department, in denying spousal status to same-sex couples for purposes of Workers Compensations claims, cited both Baker and Cooper with approval. Thus, no cogent reason to depart from the established judicial precedent of both the courts of the United States and the courts of the State of New York has been demonstrated by the plaintiff or our dissenting colleagues.

The fact that since the perfection of this appeal the State of Massachusetts has judicially created such right for its citizens is of no moment here since the plaintiff and the decedent were not married in that jurisdiction. They opted for the most intimate sanctification of their relationship then permitted, to wit, a civil union pursuant to the laws of the State of Vermont. Although the dissenters equate civil union relationships with traditional heterosexual marriage, we note that neither the State of Vermont nor the parties to the subject relationship have made that jump in logic. In following the ruling of its Supreme Court in the case of Baker v. State of Vermont, 170 Vt. 194, the Vermont Legislature went to great pains to expressly decline to place civil unions and marriage on an identical basis. While affording same-sex couples the same rights as those afforded married couples, the Vermont Legislature refused to alter *95 traditional concepts of marriage (i.e., limiting the ability to marry to couples of two distinct sexes) (see Vt. Stat. Ann., tit. 15, § 8; Vt. Stat. Ann., tit. 15, § 1201 [4]). The import of that action is of no small moment. The decedent herein, upon entering the defendant hospital, failed to indicate that he was married. Moreover, in filing the various probate papers in this action, the plaintiff likewise declined to state that he was married. In essence, this court is being asked to create a relationship never intended by the State of Vermont in creating civil unions or by the decedent or the plaintiff in entering into their civil union. For the same reason, the theories of Full Faith and Credit and comity have no application to the present fact pattern.

The circumstances of the present case highlight the reality that there is a substantial segment of the population of this State that is desirous of achieving state recognition and regulation of their relationships on an equal footing with married couples. There is also a substantial segment of the population of this State that wishes to preserve traditional concepts of marriage as a unique institution confined solely to one man and one woman. Whether these two positions are not so hopelessly at variance (to all but the extremists in each camp) to prevent some type of redress is an issue not for the courts but for the Legislature. Unlike the court, which can only rule on the issues before it, the Legislature is empowered to act on all facets of the issue including, but not limited to, the issues of the solemnization and creation of such relationships, the dissolution of such relationships and the consequences attendant thereto, and all other rights and liabilities that flow from such a relationship. Any contrary decision, no matter how circumscribed, will be taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature. Accordingly, the order must be reversed insofar as appealed from.

H. MILLER, J.P., and SCHMIDT, J., concur.

FISHER, J. dissents and votes to affirm the order with the following memorandum, in which CRANE, J., concurs:

The majority’s forceful defense of the Legislature’s prerogative to define what constitutes a marriage in New York seems to me to miss the point. This case is not about marriage. The plaintiff does not claim to have been married to the decedent, and clearly he was not, either under the laws of New York or in the eyes of Vermont.

What this case is about is the operation of a single statute—New York’s wrongful death statute—that controls access to the courts for those seeking compensation for the loss of a pecuniary *96 expectancy created and guaranteed by law. The statute provides such access to a decedent’s surviving spouse because the wrongful death of one spouse deprives the other of an expectation of continued support which the decedent would have been obligated by law to provide (see e.g. Family Ct. Act § 412; Social Services Law § 101[1] ).^[21] But, as applied here, the statute does not permit the surviving member of a Vermont civil union to sue for wrongful death, even though, like spouses, each member of the civil union is obligated by law to support the other (see Vt. Stat. Ann., tit. 15, § 1204[c]). The principal question presented, therefore, is whether, as it currently operates to permit spouses but not partners in a Vermont civil union to sue for wrongful death, the law draws a distinction between similarly-situated persons on the basis of sexual orientation and, if so, whether the distinction bears some rational relationship to any conceivable governmental objective promoted by the statute. Because I conclude that the statute as applied here does classify similarly-situated persons on the basis of sexual orientation without a rational relationship to any conceivable governmental purpose furthered by the statute, I respectfully dissent.

The facts are largely undisputed.

The plaintiff, John Langan, and the decedent, Neil Conrad Spicehandler, met in 1986 and soon began an intimate relationship that proved to be both stable and long lasting. Thirteen years later, they were living together in New York when the Supreme Court of Vermont issued its decision in Baker v. State, 170 Vt. 194. The Court held that the Common Benefits Clause of the Vermont Constitution (see Vt. Const., ch. I, art. 7) required that same-sex couples be granted the same statutory benefits and protections enjoyed by persons of the opposite sex who choose to marry, and it ordered the State to fashion a remedy to achieve that result [c].

As the majority correctly points out, Vermont’s Legislature responded by reaffirming the State’s traditional view that “‘[m]arriage’ means the legally recognized union of one man and one woman” (Vt. Stat. Ann., tit. 15, § 1201 [4]). It then established a new, parallel legal status, called a civil union, for same-sex couples not eligible to marry under Vermont law (*97 Vt. Stat. Ann., tit. 15, § 1202). The new legislation prescribed how a civil union could be established (see id.), and how it could be dissolved (see Vt. Stat. Ann., tit. 15, § 1206). And it provided that those who establish a civil union would have the same benefits, protections, and responsibilities as married couples had in Vermont (see Vt. Stat. Ann., tit. 15, § 1204[e]), including, importantly, the responsibility “for the support of one another to the same degree and in the same manner as prescribed under law for married persons” (Vt. Stat. Ann., tit. 15, § 1204[c]).^[22]

In November 2000, approximately four months after Vermont’s civil union law went into effect, the plaintiff and the decedent traveled to Vermont with some 40 family members and friends and solemnized a civil union in a ceremony performed by a Justice of the Peace in accordance with Vermont law. After the ceremony, the plaintiff and the decedent returned to their home, and to their lives, in New York.

On February 12, 2002, the decedent was injured in midtown Manhattan by a hit-and-run driver. He was admitted to St. Vincent’s Hospital of New York (hereinafter St. Vincent’s) where he underwent two surgeries to address open fractures to his left tibia and fibula. At first, the plaintiff was told by hospital staff that the surgeries had been successful and that the decedent would be discharged. On the morning of February 15, 2002, however, the plaintiff received a telephone call from a physician at St. Vincent’s informing him that the decedent had died.

The plaintiff subsequently commenced this action against St. Vincent’s, both on his own behalf and as executor of the decedent’s estate. As executor, he sought damages, inter alia, for medical malpractice and lack of informed consent. On his own behalf, he sought damages for wrongful death.

The defendant St. Vincent’s moved, inter alia, to dismiss the wrongful death claim on the ground that the plaintiff was not the decedent’s distributee and therefore could not recover damages for his wrongful death. The plaintiff cross-moved for summary judgment on the issue of his standing to assert the wrongful death claim. He argued that his status under Vermont’s civil union law entitled him to sue as the decedent’s surviving spouse.

In a detailed opinion, the Supreme Court denied St. Vincent’s motion and granted the plaintiff’s cross motion. The court found *98 that, because the plaintiff qualified as a surviving spouse under the laws of Vermont, he was included within the meaning of “spouse” as that term is used in New York’s Estates, Powers and Trusts Law and therefore had standing to recover for the wrongful death of the decedent (see Langan v. St. Vincent’s Hosp. of New York, 196 Misc.2d 440, 765 N.Y.S.2d 411). This appeal followed.^[23]

New York’s Estates, Powers and Trusts Law (hereinafter EPTL) allows an action for the wrongful death of any individual who is survived by one or more distributees, with the recovery to provide compensation for economic injuries suffered as a result of the death (see EPTL 5–4.1[1] and 5–4.4[a]). A distributee is any person who may be entitled under law to take or share in the decedent’s property not disposed of by will (see EPTL 1–2.5 and 4–1.1). Distributees include certain of the decedent’s blood relatives, his or her adopted children, and, unless disqualified, his or her “spouse” (see EPTL 4–1.1 and 5–1.2).

The majority writes that it would have been inconceivable to the drafters of the wrongful death statute that the surviving spouse would be of the same sex as the decedent. I agree.

Although the term “spouse” is not defined in the EPTL, its use in several provisions in that chapter leaves no doubt that it was intended to include only those persons joined together in marriage (see Raum v. Restaurant Assoc., 252 A.D.2d 369, 370). For example, both sections 5–1.1(b)(1) and 5–1.1–A(b)(1) of the EPTL explicitly refer to “the date of the marriage” in determining whether a transaction benefitting the “spouse” constitutes a testamentary substitute. Similarly, both EPTL 5–1.1(f)(3)(A) and 5–1.1–A(e)(3)(A) provide, inter alia, that the waiver or release of the right of election is effective, whether executed “before or after the marriage of the spouses.” And, perhaps most significantly, EPTL 5–1.2(a), (a)(1), and (a)(2) provide that, within the meaning and for the purposes of the wrongful death statute, “[a] husband or wife is a surviving spouse” unless, inter alia, “[a] final decree or judgment of divorce, of annulment or declaring the nullity of a marriage … was in effect when the deceased spouse died,” or “[t]he marriage was void as incestuous …, bigamous …, or a prohibited remarriage …”

*99 Significantly, although the EPTL has a number of different statutory sources, these particular sections—1–2.5, 4–1.1, 5–1.1, 5–1.2, and 5–4.1—all share a common predecessor in the Decedent Estate Law (see EPTL 14–2.1), and therefore call for a consistent reading of the word “spouse.” Clearly, then, the drafters of these EPTL sections contemplated that the word “spouse” would apply only to a person who had been married to the decedent at the time of death, and since the notion of same-sex marriage was largely unknown at the time, the majority is correct in saying that it would have been inconceivable to the drafters that the decedent and the surviving spouse would be of the same sex.

Indeed, even in more recent years, although New York’s Legislature has provided same-sex couples with certain rights and benefits, it has not seen fit to include them in the class of persons entitled to assert a wrongful death claim. For example, in the wake of the attacks of September 11, 2001, and more than two years after Vermont established civil unions, the Legislature declared, inter alia:

“that domestic partners of victims of the terrorist attacks are eligible for distributions from the federal victim compensation fund, and the requirements for awards under the New York State World Trade Center Relief Fund and other existing state laws, regulations, and executive orders should guide the federal special master in determining awards and ensuring that the distribution plan compensates such domestic partners for the losses they sustained” (L. 2002, ch. 73, § 1).

Subsequently, the Legislature enacted Workers’ Compensation Law § 4 for the specific purpose of providing death benefits to domestic partners of those killed on September 11, 2001 (see L. 2002, ch. 467, § 1). Indeed, the wrongful death statute itself was amended to lengthen the limitations period for the commencement of actions on behalf of decedents whose deaths were caused by the September 11th terrorist attacks (see EPTL 5–4.1, as amended by L. 2003, ch. 114, § 1). Yet the Legislature did not see fit to grant unmarried domestic partners the right to maintain an action to recover damages for wrongful death.

Because the wrongful death statute is in derogation of the common law, it must be strictly construed (see Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 667). Thus, I agree with the majority that the term “spouse” as used in *100 EPTL 4–1.1 is limited to those persons who were married to a decedent at the time of death and cannot, through statutory construction, be interpreted expansively to include persons like the plaintiff and the decedent here who were partners in a Vermont civil union but were not joined in marriage (see Matter of Cooper, 187 A.D.2d 128).

As an alternative, the plaintiff attempts to invoke principles of equity to secure the right to bring this action. Relying on Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, the plaintiff argues that, even if he does not expressly fall within the meaning of “spouse” as used in the EPTL, New York is nevertheless bound by considerations of equity to recognize his right to recover for the decedent’s wrongful death. In Braschi, the Court of Appeals was called upon to interpret a rent-control regulation providing that, upon the death of a tenant, the landlord may not dispossess “either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant” (id. at 206 [quoting 9 NYCRR 2204.6(d)] ). Noting that rent-control laws must be interpreted broadly to effectuate their purposes (Braschi v. Stahl Assoc. Co., supra at 208), the Court held that the gay life partner of the deceased tenant could, under appropriate circumstances, fall within the meaning of the word “family” (id. at 211).

Unlike the non-eviction right at issue in Braschi, however, the right to assert a wrongful death claim is a vested property right [c] (that does not exist at common law or in equity. As a creature of statute, it must be founded on statutory authority (see Liff v. Schildkrout, 49 N.Y.2d 622, 632). Hence, if the plaintiff does not qualify as a “distributee” under the EPTL, he cannot otherwise assert a wrongful death claim under general principles of equity.

The majority appears to conclude that, simply because the plaintiff and the decedent were not married, “the theories of Full Faith and Credit and comity have no application.” It is certainly true that the constitutional requirement of Full Faith and Credit need not be considered here, if for no other reason than that the plaintiff has specifically disavowed reliance on it.^[24] But the plaintiff and amici do strongly argue that New York is *101 bound to afford the plaintiff the right to sue for wrongful death because the doctrine of comity requires recognition of the “spousal rights” he derives from the laws of Vermont. I cannot agree.

A State is never obliged by considerations of comity to surrender its legitimate interests in deference to another State’s policy choices. [***] The plaintiff acknowledges, as he must, that he and the decedent never entered a marriage. Nevertheless, he and amici maintain that the same considerations of comity must lead New York to recognize his Vermont civil union inasmuch as there is nothing to suggest that a civil union of same-sex individuals is abhorrent to the public policy of New York (cf. Workers *102 Comp. Law § 4; Executive Law § 291[1] and [2]; Civil Rights Law § 40–c; 18 NYCRR 421.16 [h][2]; Matter of Jacob, 86 N.Y.2d 651, 662; Braschi v. Stahl Assoc., supra; People v. Onofre, 51 N.Y.2d 476, cert. denied 451 U.S. 987). But recognition of a civil status validly created outside of New York does not necessarily imply that this State will give effect to all of the legal incidents of that status conferred by the foreign jurisdiction that created it. Where those incidents conflict with New York law, our courts will generally decide whether to give them effect by looking to traditional choice-of-law principles. [***]

*103 The right to maintain an action for wrongful death is a legal incident of the status conferred by Vermont’s civil union law (see Vt. Stat. Ann., tit. 15, § 1204[e][2]). On the question of whether to give that incident effect here, I find it significant that there is no evidence that the plaintiff and the decedent had any contacts with Vermont beyond the fact that their civil union was solemnized there. [***] Vermont, therefore, has no legitimate interest in determining whether the plaintiff, a resident of New York, has the right to maintain a wrongful death action against a New York defendant in connection with the death of another resident of New York occurring in this State. Indeed, during virtually all of their lives together, the plaintiff and the decedent resided in New York, and it was in this State that the conduct complained of occurred and the decedent died. Under these circumstances, New York certainly has the most significant contacts with the case and, therefore, the stronger interest in applying the provisions of its own wrongful death law [cc] ([***] Accordingly, like the majority, I reject the contention that the doctrine of comity demands that the plaintiff be permitted to sue in New York for wrongful death.

I turn, then, to the area of my disagreement with the majority’s resolution of the appeal.

When a statute affords different treatment to similarly-situated persons on the basis of a constitutionally cognizable characteristic, the disparity of treatment must, at the least, *104 bear some rational relationship to a legitimate governmental objective promoted by the statute. As the United States Supreme Court long ago explained:

“It is unnecessary to say that the ‘equal protection of the laws’ required by the Fourteenth Amendment does not prevent the states from resorting to classification for the purposes of legislation … But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike” [c].

Stated otherwise, “[t]he Equal Protection Clause … [denies] to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute” (Reed v. Reed, 404 U.S. 71, 75–76). The question to be addressed, therefore, is whether, considering the purpose and objective of the wrongful death statute, there is some ground of difference that rationally explains the different treatment the statute accords to spouses and partners in a Vermont civil union [c].

The purpose of the wrongful death statute is well-defined and firmly established. It is not intended to recompense the survivor for the loss of companionship or consortium, or for the pain and anguish that accompanies the wrongful and unexpected loss of a loved one. It is instead designed solely to make a culpable tortfeasor liable for fair and just compensation to those who, by reason of their relationship to the decedent, suffer economic injury as a result of the decedent’s death (see EPTL 5–4.3[a]). A person suffers economic injury in this context when the death deprives him or her of a reasonable expectation of future financial assistance or support from the decedent [cc].

The plaintiff argues that, with respect to that objective, the wrongful death statute classifies similarly-situated persons on the basis of their sexual orientation. Sexual orientation is a constitutionally cognizable characteristic, and therefore when legislation is challenged on the ground that it classifies and treats persons differently on the basis of sexual orientation, courts will “insist on knowing the relation between the classification *105 adopted and the object to be attained” (Romer v. Evans, 517 U.S. 620, 632). This was so even before the Supreme Court repudiated Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, which upheld statutes criminalizing homosexual sodomy—the very conduct some saw as defining the class (see e.g. Padula v. Webster, 822 F.2d 97, 103). It certainly is true after the Supreme Court expressly overruled Bowers, recognizing that it “demean[ed] the lives of homosexual persons … was not correct when it was decided”, and … “is not correct today” (Lawrence v. Texas, 539 U.S. 558, 575, 560).

As to whether the wrongful death statute classifies on the basis of sexual orientation, I recognize that, in 1998, the Appellate Division, First Department, concluded that it did not, rejecting an equal protection challenge to the statute brought by the surviving member of an informal same-sex relationship not sanctioned by any State [c]. The Court wrote:

“[T]he wrongful-death statute (EPTL 5–4.1), which, by its terms (EPTL 1–2.5, 4–1.1, 5–1.2), does not give individuals not married to the decedent (other than certain blood relatives) a right to bring a wrongful-death action, operates without regard to sexual orientation, in that unmarried couples living together, whether heterosexual or homosexual, similarly lack the right to bring a wrongful-death action, and, as such, the statute does not discriminate against same-sex partners in spousal-type relationships” (id. at 370, 675 N.Y.S.2d 343; [c]).

Leaving aside the fact that opposite-sex couples who remain unmarried do so out of choice while same-sex couples have little choice but to remain unmarried, the classification here is not between unmarried opposite-sex couples who choose to live together in an informal arrangement, and unmarried same-sex couples who do the same. The classification at issue here is between couples who enter into a committed, formalized, and state-sanctioned relationship that requires state action to dissolve and, perhaps most important, makes each partner legally responsible for the financial support of the other. For opposite-sex couples, of course, the relationship is marriage, sanctioned and recognized by the State (see e.g. Domestic Relations Law § 14–a), requiring a divorce or annulment to dissolve (see e.g. Domestic Relations Law §§ 140 and 170), and obligating each spouse *106 to provide for the support of the other (see e.g. Family Court Act § 412; Social Services Law § 101[1]). And, as relevant here, the relationship for same-sex couples is the Vermont civil union, sanctioned and recognized by the State (see Vt. Stat. Ann., Tit. 15, § 1201), requiring a court proceeding to dissolve (see Vt. Stat. Ann., Tit. 15 § 1206), and obligating each party to provide for the support of the other (see Vt. Stat. Ann., Tit. 15 § 1204 [c]).[fn]

With respect to the objectives of the wrongful death statute, spouses and parties to a Vermont civil union stand in precisely the same position. Marriage creates a legal and enforceable obligation of mutual support (see e.g. Family Court Act § 412; Social Services Law § 101[1]), and therefore the death of one spouse causes economic injury to the other because it results in the loss of an expectancy of future support created and guaranteed by law. And, in exactly the same way, because the state-sanctioned Vermont civil union gives rise to a legal and enforceable obligation of mutual support (see Vt. Stat. Ann., tit. 15, § 1204[c]), the death of one party to the union causes economic injury to the survivor because it results in the loss of an expectancy of future *107 support also created and guaranteed by law. Because no statute or authoritative holding in New York now permits or recognizes a marriage except between opposite-sex couples, and because Vermont civil unions are open only to same-sex couples (see Vt. Stat. Ann., tit. 15, § 1202[2]), the operation here of New York’s wrongful death statute to authorize a party to a marriage to recover damages for the wrongful death of his or her spouse, but not to permit a party to a Vermont civil union to recover damages for the wrongful death of his or her partner, in effect, affords different treatment to similarly-situated persons on the basis of sexual orientation.

The question, then, is whether there is a rational relationship between that disparity of treatment and some legitimate governmental interest or purpose (see Romer v. Evans, supra at 631–32, 116 S.Ct. 1620; [cc]; Matter of Cooper, supra at 134, 592 N.Y.S.2d 797).^[25] Ordinarily, when constitutional challenges are raised against laws prohibiting same-sex marriage, or laws favoring legal marriages over committed relationships between persons of the same sex, those who defend the challenged provisions do so on the basis of the traditional, religious, cultural, and legal understanding that marriage is the union of one man and one woman, and is the preferred environment for procreation and child-rearing [cc]. Indeed, our own Court has declared that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a *108 family, is as old as the book of Genesis” (Matter of Cooper, supra at 133, 592 N.Y.S.2d 797, quoting Baker v. Nelson, supra at 312, 191 N.W.2d 185, appeal dismissed 409 U.S. 810; cf. Skinner v. Oklahoma ex rel Williamson, 316 U.S. 535, 541). The issue, therefore, is whether New York’s interest in fostering traditional marriage, and in preferring it to any other relationship between unrelated adults, is in any conceivable way advanced or promoted by a law that authorizes a surviving spouse, but not a surviving member of a Vermont civil union, to sue for wrongful death. Two cases decided by the United States Supreme Court are instructive on this question, and both involve the right to sue for wrongful death.

In Levy v. Louisiana, 391 U.S. 68, the Supreme Court struck down a statute which, because it was construed to authorize only legitimate children to maintain an action for the wrongful death of a parent, precluded five illegitimate children from suing for the wrongful death of their mother. The Supreme Court wrote:

“Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would” (id. at 72, 88 S. Ct. 1509).

And, in the companion case of Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73, the Supreme Court struck down the same statute insofar as it was construed to bar a mother from maintaining an action for the wrongful death of her illegitimate child killed in an automobile accident. Here the court pointedly observed:

“[W]e see no possible rational basis for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death. A law which creates an open season on illegitimates in the area of automobile accidents gives a windfall to tortfeasors. But it hardly has a causal connection with the ‘sin,’ which *109 is, we are told, the historic reason for the creation of the disability” (id. at 75, 88 S. Ct. 1515 [citation omitted]).^[26]

I recognize that “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices … [and that, i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification” [cc]. But just as the Supreme Court could find no conceivable rational relationship between any governmental purpose promoted by a wrongful death law and a classification of wrongful death plaintiffs or victims according to their legitimacy, neither can I identify any reasonably conceivable rational basis for classifying similarly-situated wrongful death plaintiffs on the basis of their sexual orientation.

Stated otherwise, I simply cannot reasonably conceive of any way in which New York’s interest in fostering and promoting traditional marriage is furthered by a law that determines, based on a person’s sexual orientation, whether he or she may have access to our courts to seek compensation for the loss of a pecuniary expectancy created and guaranteed by law [c]. *110 And, tellingly, the majority’s rejection of the equal protection claim does not include any hint or suggestion of how preventing the plaintiff from asserting a wrongful death claim promotes the State’s interest in fostering the institution of marriage, “thus leaving [its] constitutional analysis incomplete” [c]. Indeed, the only real effect of the majority’s position is to provide a windfall to a potential tortfeasor.

Accordingly, I respectfully dissent and would hold that the application of New York’s wrongful death statute to deny the right of a surviving member of a Vermont civil union to maintain an action to recover damages for the wrongful death of his or her partner is inconsistent with the right to equal protection of the laws. I would further hold that the proper remedy is to extend the benefit of EPTL 5–4.1 to include the plaintiff as a surviving member of a Vermont civil union (see People v. Liberta, 64 N.Y.2d 152, 170, cert. denied 471 U.S. 1020; see also Califano v. Westcott, 443 U.S. 76, 89–90). In my judgment, therefore, the order appealed from should be affirmed insofar as appealed from.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the motion which was to dismiss the cause of action to recover damages for wrongful death is granted, the cross motion is denied, and the cause of action to recover damages for wrongful death is dismissed.

Note 1. The court cites an institutional competence rationale partially to explain its ruling (“Unlike the court, which can only rule on the issues before it, the Legislature is empowered to act on all facets of the issue including but not limited to, the issues of the solemnization and creation of such relationships, the dissolution of such relationships and the consequences attendant thereto, and all other rights and liabilities that flow from such a relationship” (at p. *95)). How does the dissent come out on this issue? What is the dissent urging?

Note 2. The dissent’s efforts to frame the issue did not convince the remaining members of the court, but they are worth our attention: “What this case is about is the operation of a single statute—New York’s wrongful death statute—that controls access to the courts for those seeking compensation for the loss of a pecuniary expectancy created and guaranteed by law.” Insisting on one technical definition of “spouse” in this context follows a formalistic understanding of law; broadening it to align with the plaintiff’s real-life circumstances would serve a more functionalist vision of law. Setting aside the very important equal protection issues—since Obergefell v. Hodges, 576 U.S. 644 (2015) appears to have resolved those for subsequent cases on this issue—which understanding of “spouse” is more persuasive to you and why?

Recently, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___ (2022). Because the right to abortion had been understood as originating in a fundamental right to privacy on which a line of other cases likewise relied, commentators have wondered whether Obergefell and other protections for same-sex couples could be endangered. Several justices have stated that Dobbs does not imperil existing protections relevant for the LGBTQ community, notwithstanding its concurrence by Justice Thomas, in which he calls for reconsidering all precedents based on the Court’s substantive due process jurisprudence, including Obergefell (Slip Op. at 3). Judicial, executive and legislative changes on the horizon seem likely. Consider which entity you believe most appropriate to shape policy on these significant issues, and why. Does your answer depend on the issue’s political salience or do you hold the same beliefs about institutional competence with respect to other areas you have studied in tort law?