Williams v. Bright
Williams v. Bright
632 N.Y.S.2d 760
N.Y.Sup.,1995.
Sept. 5, 1995.
Supreme Court, New York County, New York,
IAS Part 4.
Charles WILLIAMS et al., Plaintiffs,
v.
Leslie A. BRIGHT, as Administratrix of the Estate of Jessie J. Reid, deceased,
Meritor Capital Resources, Inc., and Meritor Credit Corp., Defendants.
Sept. 5, 1995.
**761 *313 Richard Frank, P.C., New York City, for plaintiffs.
Herzfeld & Rubin, P.C., New York City, for defendants.
EDWARD J. GREENFIELD, Justice.
[1] This personal injury case has given rise to a sharp clash of views as to
basic constitutional rights. If a court permits a jury in determining the
verdict in a case to consider whether or not a person's religious beliefs are or
are not reasonable, does that constitute a restraint on the cherished right of
the free exercise of religion, or conversely, does the refusal of a court to
allow it give the party professing unique religious beliefs a special preference
not available to others? The First Amendment of the United States Constitution
prohibits the federal government, and by the extension of the Fourteenth
Amendment, the states, from any official action which would either restrict the
free exercise of religion or do anything to establish or promote it. The
Constitution of the State of New York, Article One, Section Three, is even more
explicit. It proclaims that the free exercise and enjoyment of the religious
profession and worship shall forever be allowed in this state to all mankind
"without discrimination or preference."
The context in which the issue is raised in this case is the extent of the duty
to mitigate damages when a proposed course of treatment would violate a
plaintiff's deeply held religious beliefs. The law is clear that with respect to
damages, a plaintiff has a duty to mitigate so as not to unduly penalize a
defendant. Normally, that obligation is to do what a reasonable person would
have done to alleviate or cure the condition. *314 Ordinarily that involves a
weighing of the costs, benefits and medical risks involved. However, when a
person declines a particular course of medical treatment, not because of the
risk or the cost, but because it violates his or her deeply held religious
scruples, can damages be denied because alleviation or cure has been declined?
Plaintiff contends that to permit a jury to pass upon the soundness of religious
beliefs would constitute discrimination, imposing a possible penalty on the free
exercise of religion. Defendant, on the other hand, **762 contends that it
should not be penalized by having to pay higher damages, since then the court
would be giving a preference to a party who is excused from a duty to mitigate
as a result of her religion.
There is no law directly on this point in the State of New York, and relatively
little in other jurisdictions. "The principle that government may not enact laws
that suppress religious belief or practice is so well understood that few
violations are recorded in our opinions." Church of Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 523, 113 S.Ct. 2217, 2222, 124 L.Ed.2d 472 [1993].
New York's Pattern Jury Instructions (PJI 2:325, p. 692), dealing with
mitigation of damages, sets forth,as the standard that:
"A person who has been injured is not permitted to recover for damages that he
could have avoided by using means which a reasonably prudent person would have
used ... Defendant contends that if plaintiff submitted to an operation his
(injury, pain) would be (completely cured, greatly alleviated) and that such an
operation is not dangerous * * * [Y]ou must decide whether in refusing to have
an operation plaintiff acted as a reasonably prudent person would under the
circumstances * * * If you find that, in making the determination not to have an
operation, plaintiff acted as a reasonably prudent person would to cure himself,
then he is entitled to recover for his injuries, as you find them to be, without
regard to the possibility of a surgical operation. If, however, you find that
the operation is one that a reasonably prudent person would submit to and that
the operation would (cure the injury, relieve the pain), you will take that fact
into consideration in arriving at the amount of damages, if any, that you
award."
However, the PJI recognizes that a religious objection to possible mitigation
may arise, stating:
"No New York case dealing with an infant plaintiff or a plaintiff whose
religious beliefs limit medical care has been found." (1 NY PJI 694.)
In this case, the issue is squarely posed. After a trial, where the testimony
was that without surgical intervention the injuries would be severely disabling,
the court charged the jury *315 with respect to this issue of mitigation. After
a substantial jury verdict, defendants, who took strenuous objection to the
charge as given, moved to set aside the jury verdict and direct a new trial. The
post-trial motion raises some other issues as well.
THE FACTS
Plaintiff, Gwendolyn Robbins, a 55 year old woman, was a passenger in a rented
automobile driven by her father and owned by defendant Meritor when the car went
off the road in upstate New York, plunged down an embankment and overturned. Her
mother and father, seated in front, were killed in the accident. Plaintiff
Charles Williams, married to her niece, who had been sitting alongside Robbins,
sustained multiple injuries including a fractured spine, and was rendered a
paraplegic. (His case was settled before the end of the trial, but the trial
continued as to plaintiff Robbins). Robbins, who was also severely injured, was
taken to the Glens Falls hospital, where last rites were administered. Robbins
sustained chest, abdominal and hip injuries. She had a comminuted fracture of
the acetabulum, a compound comminuted fracture of the right femur, a fractured
ankle and a fracture of the left hip. The normal treatment would have required,
among other things, open reduction and fixation of the displaced bones and
ligaments. This would have necessitated blood transfusions. The hospital record
noted, however, that she:
"is a Jehovah's Witness. This patient strongly refuses to have any transfusion
of blood or blood products.
She is quite aware of the risks and complications from progressive anemia [from
which she was then suffering] including the possibility of dying from it. In
spite of this, she strongly refuses transfusions as stated above."
She chose to forego any surgical intervention, and after two weeks she was
transferred to the Hospital for Joint Diseases in New York City. There Steinman
pins were put through both legs and she was kept suspended in traction for six
weeks. While **763 she agreed to such painful and protracted treatment, she
adamantly refused any treatment which would have necessitated a blood
transfusion. She was sent to the Orthopedic Institute for Rehabilitation, and
finally returned home in a wheelchair. It took a year before she could get out
of the wheelchair and she then used a walker and crutches for another six
months. She was unable to go out for a period of two years. She is presently
able to ambulate with difficulty, primarily to attend church services.
*316 Dr. Lester Lieberman, an orthopedic surgeon, confirmed her injuries, found
that the sacroiliac joint had widened, that there was sciatic nerve injury and
that traumatic arthritis was developing. There was shortening of the leg and
osteoarthritic formations. He further found that there was Grade 3 aseptic
necrosis of the hip--in other words that the bone was degenerating and would not
be capable of weight bearing. It was his opinion that she needed total surgical
replacement of the right knee and left hip, inserting an artificial acetabulum
and replacing the head of the femur with a steel ball. In addition, procedures
were required to reset a bone spike protruding into the muscle and nerves around
plaintiff's right knee. Without this, he testified, plaintiff would within three
to four years become wheelchair bound or bedridden for the balance of her life
and would require substantially increased medical and hospital services and home
care. Such surgical interventions would necessitate blood transfusions, and
consequently Mrs. Robbins, as a devout Jehovah's Witness, has refused to allow
these procedures to be done, no matter what amelioration of her condition would
result. According to the tenets of her faith, while acceptance of blood
transfusions might ease the balance of her life on earth, it was forbidden by
her religion, and if accepted would deprive her of entry into the Kingdom of
Heaven for all eternity.
THE CHARGE
On the issue of mitigation of damages, the court was requested by the defendants
to charge that the jury should consider Mrs. Robbins' religious beliefs on the
issue of whether or not her conduct in refusing remedial surgery was reasonable
or not reasonable. The court ruled that asking the jury to consider in the
abstract whether "a reasonably prudent person" would submit to the suggested
surgery would require them to pass on whether plaintiff's religious beliefs as a
Jehovah's Witness were reasonable, and hence could not be permitted, since no
secular jury could be called upon to pass on the reasonableness of anyone else's
religious faith and beliefs.
The court therefore charged the jury on this issue as follows:
"The law provides, with respect to damages, that a person who has been injured
is not permitted to recover for damages that she could have avoided by using
means which a reasonably prudent person would have used to cure the injury or
alleviate the situation.
*317 And it is one of the functions of the jury ordinarily to determine whether
a plaintiff acted reasonably in refusing a particular suggested procedure.
Usually that's because you are weighing the medical risks involved, but in this
case you have a different consideration which prevails.
The reason that Mrs. Robbins rejected the surgery in the past and the
recommended surgery in the future, is not because of the physical risk, but
because of her strongly held religious beliefs that there can be no blood
transfusion.
Now, in making your determination as to whether she has acted reasonably to
mitigate the damage, I will instruct you that under no circumstances are you to
consider the validity or reasonableness of her religious beliefs * * * [W]e
cannot have a situation in which jurors, in passing on the reasonableness of
somebody's conduct, pass upon whether their religious beliefs are reasonable or
not reasonable.
What is reasonable for adherent of one religion may appear totally unreasonable
to someone who has different beliefs, but you may not pass upon the validity of
anyone else's beliefs. That is out of bounds for you.
**764 You have to accept as a given that the dictates of her religion forbid
blood transfusions. And so you have to determine in assessing the question of
damages, damages past and damages future, whether she, Mrs. Robbins, acted
reasonably as a Jehovah's Witness in refusing surgery which would involve blood
transfusions.
Was it reasonable for her, not what you would do--or your friends or family--
was it reasonable for her, given her beliefs, without questioning the validity
or the propriety of her beliefs."
The jury having found liability, they awarded damages of $163,244.81 for past
medical and hospital bills, $1,500,000 for past pain, suffering and disability,
$3,982,900 for future hospital, medical and nursing and home care expenses, and
$4,000,000 for future pain, suffering, disability and loss of enjoyment of life.
DUTY TO MITIGATE--IS THERE A RELIGIOUS EXCEPTION?
Defendants contend that the duty to mitigate damages is basic in our law. Over a
century ago, the Court of Appeals in Hamilton v. McPherson, 28 N.Y. 72, 76,
speaking of the plaintiff's duty to mitigate, declared:
"The law for wise reasons, *318 imposes upon a party subjected to injury ... the
active duty of making reasonable exertions to render the injury as light as
possible. Public interest and sound morality accord with the law in demanding
this; and if the injured party, through negligence or willfulness, allows the
damages to be unnecessarily enhanced, the increased loss justly falls upon him."
See also Den Norske Ameriekalinje Actiesselskabet v. Sun Printing & Publ. Assn.,
226 N.Y. 1, 7, 122 N.E. 463.
Here, the refusal of the plaintiff to agree to remedial surgery to avert total
disability arises neither out of negligence nor willfulness, but rather from a
sincerely held religious belief that blood transfusions are never to be
permitted. She is not weighing physical risks or financial costs, but is
motivated by her religious belief that it may be better to suffer present pain
than to be barred from entering the Kingdom of Heaven. As previously noted, the
New York Pattern Jury Instructions, in setting forth a charge on mitigation of
damages, observed that there was no New York case dealing with mitigation in the
face of religious beliefs.
Defendant argues that if plaintiff had not objected to surgical procedures which
would involve blood transfusions, her initial recovery period would have been
lessened, and with hip and knee replacement surgery in the future, her prognosis
would be for recovery rather than future confinement to wheelchair, bed and
home. Indeed, the bulk of the damages awarded for future hospital expenses and
medical expenses, and for future pain, suffering and disability, are premised
upon the medical prediction, which the jury was entitled to accept, that without
such intervention, she would encounter essentially total disability within a few
years and would remain so disabled for the remaining 24 years of her life
expectancy.
Permitting a jury to determine whether one acting on the basis of deeply held
religious beliefs is acting "reasonably" would allow it, acting as an
instrumentality of the state judicial system, possibly to discriminate against
those whose religious beliefs were deemed unreasonable. On the other hand,
permitting a jury to sidestep an injured plaintiff's duty to mitigate because of
her religious beliefs might "establish" her religion and give it priority over
generally applicable secular rules, causing a defendant to pay higher damages.
Pragmatic experience and constitutional principles warn us that either choice
may put us on precarious ground. We can neither enshrine nor denigrate religious
beliefs in our secular institutions, but must attempt to proceed on neutral
principles. In *319 our courts, "theology is to be protected against the law,
just as the law is to be protected from theology." Pando v. Fernandez, 127
Misc.2d 224, 231, 485 N.Y.S.2d 162, revd. on other grounds 118 A.D.2d 474, 499
N.Y.S.2d 950. The commandments of scrupulous neutrality are easy to pronounce
but difficult to apply.
There being no New York cases directly in point on the conflict between the
general **765 duty to mitigate and the conscientious objection to doing so on
religious grounds, we are required to extrapolate from other cases dealing with
the clash between religious and secular requirements. The United States Supreme
Court has set out some guideposts which mark the boundaries between the
permissible and the impermissible, and leave for further determination such
questions as are here involved dealing with the scope of mitigation. We can
start the analysis with Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10
L.Ed.2d 965 (1963). In that case, the appellant, a member of the Seventh Day
Adventist Church, was denied unemployment compensation benefits by the state of
South Carolina when she refused to accept employment which required that she
work on Saturday, the Sabbath of her faith. The state argued that all citizens
equally should be required to accept suitable work when offered, regardless of
religion. The Court, per Brennan, J., held:
"... to condition the availability of benefits upon th[e] appellant's
willingness to violate a cardinal principle of her religious faith effectively
penalizes the free exercise of her constitutional liberties." (At p. 406, 83
S.Ct., at p. 1795).
Answering the argument that making an exception for her in effect was the
establishment of her religion, the Court declared that its holding overturning
the state's action "reflect[ed] nothing more than the governmental obligation of
neutrality in the face of religious differences, and does not represent that
involvement of religious with secular institutions which it is the object of the
Establishment Clause to forestall." (Id. at p. 409, 83 S.Ct., at p. 1797). Only
a compelling government interest would justify the infringement of First
Amendment rights. (Accord: Thomas v. Review Board, Ind. Empl. Sec. Div., 450
U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 [1981]; Hobbie v. Unemployment Appeals
Commission of Fla., 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 [1987] ).
Subsequently, in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972), the Court made it clear that a religious practice or belief could be
accommodated without violating the Establishment Clause. Id., at p. 221, 92 S.Ct.,
at p. 1536. There the State of Wisconsin sought to enforce its compulsory
educational law by requiring school attendance beyond the eighth grade of Amish
children, such attendance being contrary to Amish religious belief. The Court,
again applying *320 the compelling state interest theory as set forth in
Sherbert, in balancing the interest of the state when "it impinges on
fundamental rights and interests, such as those specifically protected by the
Free Exercise Clause of the First Amendment" (at p. 214, 92 S.Ct., at p. 1532),
found no compelling state interest in compulsory education laws which would
outweigh an exemption for the Amish beliefs. In so finding, the Court in Yoder
again reiterated:
"a regulation neutral on its face may, in its application, nonetheless offend
the constitutional requirement for governmental neutrality if it unduly burdens
the free exercise of religion." Id. at 220, 92 S.Ct., at 1536.
However, in Employment Division, Ore. Dept. of Human Resources v. Smith, 494
U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), where employees of a drug
rehabilitation organization had been fired for misconduct for use of the
hallucinogen peyote in connection with the sacraments of their Native American
Church, and denied unemployment compensation benefits, the Supreme Court held
that the Free Exercise clause did not prohibit the application of Oregon drug
laws which might inhibit religious rites. Such criminal laws, the majority held,
being of neutral and general application, need not carve out exceptions for
otherwise illegal conduct or socially harmful acts performed under the umbrella
of religious belief. It distinguished this from religious conduct not prohibited
by law. (Id., at p. 876, 110 S.Ct., at p. 1598). The Court went on to purport to
restrict the doctrine of Sherbert v. Verner, supra, pp. 402-403, 83 S.Ct., at p.
1793, that any governmental action which substantially places a burden on
religious practice must be justified by a "compelling governmental interest"
only to cases involving the denial of unemployment compensation. (Id., at p.
883, **766 110 S.Ct., at p. 1602). Nevertheless, the Court declared:
"Repeatedly, and in many different contexts, we have warned that courts must not
presume to determine the place of a particular belief in a religion or the
plausibility of a religious claim." (At p. 887, 110 S.Ct., at 1604).
Justice O'Connor, concurring with three other justices, rejected repudiation of
the compelling interest test. She cited as a continuing principle the doctrine
enunciated in Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425:
"Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a burden upon
religion exists." 450 U.S., at 717-718, 101 S.Ct., at 1432. (Supra, at 897, 110
S.Ct. at 1610.)
*321 While the defendants herein rely heavily on the opinion by Justice Scalia
in Smith as supporting their position that the requirement that all persons must
take reasonable steps to mitigate damages is a rule generally applicable and on
its face, if not in application, religiously neutral. They argue that the cost
of accommodating plaintiff's religious principles must therefore be borne by
herself.
This ignores the fact that unlike a criminal statute which clearly labels
certain conduct unlawful, here the judicial arm of the state is being called on
to exercise judgment in order to determine if religiously motivated conduct is
"reasonable." If the Jehovah's Witness rejection of blood transfusion in surgery
is deemed by a jury to be "unreasonable", then a judgment has been made as to
the soundness of the religion. "A jury verdict thus penalizing religiously
motivated conduct may reflect a conclusion either that such conduct deviates
from community norms, or that the underlying religious beliefs are simply
false." Note, "Medical Care, Freedom of Religion, and Mitigation of Damages ",
87 Yale L.J. 1466, 1484 [1978]. The making of such a determination is clearly
beyond the scope of what any agency of government may do. In United States v.
Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) a prosecution for mail
fraud in which defendants were charged with soliciting funds by allegedly
misrepresenting that they were divine messengers and the alter egos of Jesus and
George Washington with the supernatural power to heal, the trial court charged
the jury that it could not pass upon the plausibility of what defendants
professed. In language paralleling the charge in this case, the Court said that
"the religious beliefs of these defendants cannot be an issue in this court."
(Supra, at 81, 64 S.Ct. at 884.) It charged:
"The question of the defendants' good faith is the cardinal question in this
case. You are not to be concerned with the religious belief of the defendants,
or any of them." (Supra, at 82, 64 S.Ct. at 884.)
The jury evidently concluded the professions of religious belief were mere
pretenses, and found the defendants guilty. Justice Douglas, speaking for the
majority, wrote:
"... we do not agree that the truth or veracity of respondents' religious
doctrines or beliefs should have been submitted to the jury * * * The First
Amendment precludes such a course * * * 'The law knows no heresy, and is
committed to the support of no dogma, the establishment of no sect' * * * Men
may believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs." (At p. 86, 64 S.Ct., at p. 886).
"The religious views espoused by respondents might seem incredible, if not
preposterous, *322 to most people. But if those doctrines are subject to trial
before a jury charged with finding their truth or falsity, then the same can be
done with the religious beliefs of any sect. When the triers of fact undertake
that task, they enter a forbidden domain." (At p. 87, 64 S.Ct., at p. 887).
Despite the refusal to recognize a religious exception to a criminal law of
general application as exemplified in Smith, nothing therein would undermine the
general principle, as outlined above, that the plausibility or reasonableness of
someone else's religious beliefs cannot be permitted. The attempt in Smith to
limit the broad reach of Sherbert v. Verner met with intense criticism, and
brought about the enactment of the Religious Freedom Restoration Act of 1993.
(42 U.S.C.A. §§ 2000bb et seq.)
**767 Congress, finding that the restriction engrafted by the Supreme Court in
Smith "virtually eliminated the requirement that the government justify burdens
on religious exercise imposed by laws neutral toward religion" (42 U.S.C.A. §
2000bb[a][4] ), and further finding that the compelling interest test as set
forth in prior Federal Court rulings was a workable test for striking sensible
balances between religious liberty and "compelling prior governmental interests"
enacted the Religious Freedom Restoration Act in order:
"(1) to restore the compelling interest test as set forth in Sherbert v. Verner,
374 U.S. 398 [83 S.Ct. 1790, 10 L.Ed.2d 965] (1963) and Wisconsin v. Yoder, 406
U.S. 205 [92 S.Ct. 1526, 32 L.Ed.2d 15] (1972) and to guarantee its application
in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is
substantially burdened by government." 42 U.S.C.A. § 2000bb.
The Act provides that government may substantially burden a person's exercise of
religion only upon a demonstration that application of the burden furthers a
compelling governmental interest and is the least restrictive means of
furthering that compelling interest. (42 U.S.C.A. § 2000bb-1.) Applicability of
the Act is extended to all Federal and State law, whether statutory or otherwise
not and whether adopted before or after November 16, 1993. (42 U.S.C.A. §
2000bb-3).
Subsequent cases dealing with the imposition of burdens upon religious practice
have either found that: (1) the absence of any demonstrated governmental
interest in enforcement of the law or regulation imposing the burden (Western
Presbyterian *323 Church v. Board of Zoning Adjustment of the District of
Columbia, et al., 849 F.Supp. 77 (D.D.C.1994); or (2) the burden imposed is not
the least restrictive means to achieve the governmental goals sought (Campos v.
Coughlin, 854 F.Supp. 194 [S.D.N.Y.1994] ). See also Allah v. Menei, 844 F.Supp.
1056 [E.D.Pa.1994]; Rust v. Clarke, 851 F.Supp. 377 [D.Neb.1994].
A law or rule which may be neutral on its face may nevertheless have a negative
or inhibiting effect on religion in its application. Thus, a law prohibiting all
consumption of alcohol may impose a special burden on the use of sacramental
wine in Catholic or Jewish rites, and without an exemption, the law of general
application may in fact fail the test of religious neutrality. Our earlier
Prohibition law recognized this by providing an exemption for "wine for
sacramental purposes". The United States Supreme Court explicitly recognized
that carving out a religious exemption would not unduly favor or "establish" any
religion. "Such an accommodation [would] 'reflect * * * nothing more than the
governmental obligation of neutrality in the face of religious differences.' "
Wisconsin v. Yoder, supra, at p. 235, n. 22, 92 S.Ct., at p. 1543.
Mr. Justice Souter, in the 1993 case of Church of Lukumi Babalu Aye, supra,
aptly drew the distinction between "formal neutrality" and "substantive
neutrality". (At pp. 561-562, 113 S.Ct., at pp. 2241-2242). If the application
of a rule which is non-discriminatory on its face does in fact inhibit the free
exercise of certain religions, then true neutrality requires exceptions to be
made for those particular cases.
STATE CASES ON MITIGATION AND RELIGION
Unlike unemployment compensation, compulsory education, and criminal cases,
where the courts must weigh state interest as against individual religious
exceptions, when it comes to the requirement of mitigation of damages, we are
talking about the role of the state government and its instrumentalities as the
enforcer and arbiter of private rights.
Despite the clear pronouncements of the federal cases and statutes, which do not
deal with the mitigation-religion conflict as such, defendants rely on a handful
of earlier cases applying state law which use an "objective" standard applying
the "duty to mitigate" rule to all plaintiffs regardless of their religious
reservations, as contrasted with the "case-by-case" approach which takes into
consideration the religious scruples of the particular plaintiff. (See Note,
"Medical Care, Freedom **768 of Religion, and Mitigation of Damages", 87 Yale
L.J. 1466 [1978]; Annotation 3 ALR 5th 721, "Refusal of Medical Treatment on
Religious *324 Grounds as Affecting Right to Recover for Personal Injury or
Death" [1992] ).
Heavy reliance is placed by defendants on such cases applying the "objective"
standard as Munn v. Algee, 924 F.2d 568 (5th Cir.1991) and Corlett v. Caserta,
204 Ill.App.3d 403, 149 Ill.Dec. 793, 562 N.E.2d 257 (1990). In Munn v. Algee, a
wrongful death action was brought against a driver where a blood transfusion had
been refused for the decedent during surgery. The court, applying Mississippi
state law, recognized that the weighing by a jury of a reasonableness of
religious beliefs would violate the establishment of religion clause, but opted
for an "objective" approach which would ignore religious objections and require
either mitigation or reduction of damages.
In Corlett v. Caserta, supra, where death was caused by the refusal of a
Jehovah's Witness to accept blood transfusions, the court declined to create any
exemption from general tort principles based on the patient's religious
convictions. In Shorter v. Drury, 103 Wash.2d 645, 695 P.2d 116 (1985), cert.
den. 474 U.S. 827, 106 S.Ct. 86, 88 L.Ed.2d 70, a Jehovah's Witness had refused
blood transfusions, but a malpractice action against her doctor limited the
recovery for wrongful death where she and her husband had given a release for
the consequences of the refusal. Defendants here claim that the approved
rejection by that trial court of a proposed charge that "compensation could not
be denied because of refusal of blood for religious reasons" (supra, 103
Wash.2d, at 658, 695 P.2d, at 124) was virtually identical to the charge given
by the court in this case. It is not, and the circumstances are totally
different.
Moreover, this court disagrees with the assertion in the Shorter case that
submission of the religion issue to the jury involved no state action, it being
claimed as merely a dispute between private individuals. Certainly, when the
mechanism of the state's judicial machinery is brought into play, and a judge
instructs the jury as to the substantive law of the state, and the jury, as the
designated fact finder in the state's legal system, is called upon to decide the
reasonableness or error of conduct motivated by deeply held religious beliefs,
the state has taken action. It is the application of state law in such a way as
to deny benefits which tends to create the coercive pressure to conform.
Montgomery v. Board of Retirement, 33 Cal.App.3d 447, 109 Cal.Rptr. 181 (1973).
Even the "case by case" decisions are highly problematical for, as in Lange v.
Hoyt, 114 Conn. 590, 159 A. 575 (1932), when the jury is asked to consider a
plaintiff's religious beliefs, asking *325 the jury whether the damages
reasonably could have been avoided leaves the soundness of the religious
doctrine to jury analysis and vote.
It should now be abundantly clear, under Sherbert, Yoder, and their progeny, as
reaffirmed by the Religious Freedom Restoration Act, that "to condition the
availability of benefits upon ... [plaintiff's] willingness to violate a
cardinal principle of her religious faith effectively penalizes the free
exercise of her constitutional liberties." Sherbert v. Verner, 374 U.S., at p.
406, 83 S.Ct., at p. 1795.
Does the State of New York, in a lawsuit between private individuals, have a
"compelling governmental interest" of the "highest order" in limiting damages
awarded an injured plaintiff whose religious principles forbid certain medical
procedures which may ameliorate the injuries she has suffered at the defendants'
hands? Is limiting full compensation to the injured victim "the least
restrictive means of furthering that compelling governmental interest"? 42
U.S.C.A. § 2000bb-1(b)(2).
New York recognizes that when it comes to religious belief or practice, the
state is constitutionally obligated to maintain principles of neutrality. It
cannot promote, burden, or discriminate. It must leave people alone.
[2] The right of a patient in New York to accept or reject medical treatment is
enshrined in our law. It is well established in New York that a competent
patient can refuse suggested medical treatments that run counter to her
religious beliefs. Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d
64. This is a "fundamental common-law right ..... coextensive with the patient's
**769 liberty interest protected by the due process clause of our State
Constitution" and that right could be overcome only by a compelling State
interest. Rivers v. Katz, 67 N.Y.2d 485, 493, 504 N.Y.S.2d 74, 495 N.E.2d 337.
[3] This right to an untrammeled choice for following one's conscience in opting
for or against a given course of medical treatment transcends even possible
negative impact on others. Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.Y.S.2d 876,
551 N.E.2d 77. If a patient is not required to accept treatment to preclude the
possibility of her minor child becoming an orphan, can the state declare that
she nevertheless has an overriding duty to act for the benefit of a stranger? "[W]hen
the State requires her to undergo treatment which violates her religious beliefs
it interferes with her fundamental constitutional rights." Id., at p. 234, 551
N.Y.S.2d 876, 551 N.E.2d 77. Requiring a court charge of an unswerving duty to
act "reasonably" by all persons to mitigate in order to cushion a defendant from
paying higher damages is not "a compelling State interest." *326 What
"compelling governmental interest" in the amount of tort recovery which is
permitted one private individual against another outweighs the need to forbid
any governmental agency from passing on the soundness or reasonableness of
religious beliefs? There always remains an obligation of official neutrality.
By recognizing the special circumstances and conditions of one litigant, we may
individualize justice. But, that creates no special preference. There is no
"establishment" here, no recognition of the superiority of one religion over
another.
DO WE TAKE THE PLAINTIFF AS WE FIND HER?
Defendants' plaint is that they should not be required to bear the additional
burden of compensating for additional damages because of the religious
idiosyncracies of one plaintiff. It is her religious scruples which have
maximized the damages here. They contend her damages should be measured in the
same way as those of anybody else.
[4] The law of New York calls for individualized, not standardized awards of
damages. We recognize differences of status. The disability of a chief executive
of a major corporation will call for more damages than that of a minimum-wage
hamburger flipper. One with a longer life expectancy can be expected to recover
more than an elderly, infirm person. Similar injuries may have disparate
effects. That will depend on the pre-existing condition of the person involved.
In other words, we take the injured party as he or she is, not on the basis of
some standard and hypothetical norm.
[5] We sometimes make reference to the "egg-shell skull" doctrine--the fact that
the person injured may be more fragile or more susceptible than most is a
consequence the tortfeasor must accept, for it was his wrong which set off the
train of injuries, unusual and unanticipated though they may be. The universally
accepted doctrine is that if a person has a special condition or predisposition
which results in greater than normal damages, the defendant remains legally
responsible. PJI 2:283; King v. State of New York, 58 A.D.2d 934, 935, 396
N.Y.S.2d 919.
When we consider the condition of a plaintiff as she is, while it is true that
the doctrine is generally construed in the light of pre-existing physical or
physiological conditions, it can also extend to latent mental instability and
mind-sets, i.e., psychological conditions. There is no compelling reason (other
than potential fraud) to draw the line there and hold that we may not consider
other aspects of an individual persona. Conscience *327 and religious belief are
not passing whims, but guide human beings to life and death decisions.
Religious conviction, upbringing and tradition may indeed be considered as
playing a part in the governance of a person's conduct. We are not dealing here
with a person who for ephemeral, fleeting or whimsical reasons willfully or
stupidly rejected a course of treatment which would ameliorate her condition.
Her devout belief and unswerving conviction was the bedrock of her being. It was
as much a part of her as her age, her gender, her physical constitution frail or
robust, or her psyche.
**770 It is not for judges, jurors or any other agency of government to pass on
her beliefs and pronounce them unsound. The sincerity of her beliefs was never
challenged. She acted on those beliefs at the risk of her life, and endured the
pain and torture of extended hospitalization, agonizing and protracted traction,
badly knit bones, invalidism, and the sure knowledge that with aseptic necrosis
setting in there will be complete helplessness for the rest of her life. She did
all she could to speed her recovery, short of accepting forbidden blood
transfusions. She took the course which her religion taught her was the best way
to ultimate cure, that God's will would prevail. It was not her religion which
brought her condition about, but the direct consequence of the negligence and
fault of the insured driver. She may not be penalized for her beliefs, and the
defendants are no more unfairly burdened than if the fortuitously injured party
had been a brain surgeon, a ballet dancer or fragile teenager.
In considering a verdict, if the damage enhancing effects of injury to an
unbalanced and psychotic mind (a pre-existing condition) are not to be ignored,
with a jury taking into account the fears, the dreams and the hallucinations of
such a person, how can we ignore the mind-set of a non-psychotic person whose
deeply ingrained set of beliefs motivate her life choices? An unfair burden is
not imposed on the defendants. The law is and remains for defendants--you take
the victims as they are, whatever their physical and mental condition, and
whatever their prior training--vocational or religious. It is the essence of our
unique Constitutional guarantees of personhood that no one is to be
discriminated against or penalized by reason of race, sex, or religion. There is
no "compelling government interest" for a state court to alleviate the risk
borne by the insurers, which would require it to rule otherwise.
[6] I find however that the limits of reasonable compensation are $1,000,000 for
plaintiff's three years of intense pain and *328 suffering during and after
hospitalization, and $2,750,000 for 15 years of future pain, suffering,
disability and loss of enjoyment of life. A new trial will be directed on the
issue of damages unless plaintiff stipulates to accept the verdict as so
reduced.
[Portions of opinion omitted for purposes of publication.]