CCL, along with co-counsel, filed a response to supplemental authority filed by the defendant in a Colorado case that challenges that state's medical malpractice cap, which was argued last October. In Smith v. Surgery Center, a patient went into the medical facility for a steriod injection, but left paralyzed from the waist down and transforming her husband into a round-the-clock caregiver. After a trial, the jury awarded the couple nearly $15 million in damages. While the defendant facility has challenged their liability, they have also invoked the Colorado damage cap, which limits medical malpractice damages to $1 million, no more than $300,000 of which may be for noneconomic compensation.

      In defense of capped damages, the Surgery Center notified the Court of a recent decision by the Wisconsin Supreme Court, which upheld that state's limits on medical malpractice non-economic damages and overturned a 2005 decision of the same court that invalidated a prior similar damage cap. In the response drafted by CCL, Plaintiffs pointed out that their only citations to the prior Wisconsin case was for unassailable factual propositions that were unaffected by the new case. They further pointed out that the dissenter in the 2005 case wrote the new decision, making the same points that did not command a majority of the court in 2005.

      As a result, CCL argued, the new case merely reflects a change in membership on the court and not the development of new reasoning. As Justice Thurgood Marshall once wrote: "It takes little detective work to discern just what has changed since this Court decided [the prior case]; this Court's own personnel." That is an illegitimate basis for overturning a previous decision, because, as Justice Potter Stewart wrote, it "invites the misconception that this institution is little different from the two political branches of the Government."