CCL President Robert S. Peck and California lawyer Bruce Brusavich argued that the Supreme Court's decision last week in Timbs v. Indiana renders application of the Seventh Amendment's right to trial by jury a foregone conclusion in a front-page opinion piece published today in the Los Angeles Daily Journal, the premier legal newspaper of Southern California. 

     In Timbs, the Supreme Court held, for the first time, that the Eighth Amendment's Excessive Fines Clause applies to the states. In that case, a person arrested on drug dealing charges challenged the seizure of a new $42,000 Land Rover he bought from money he inherited constituted an excessive fine, because the highest penalty he could be assessed was $10,000. The Indiana Supreme Court rejected the argument because the Excessive Fines Clause had never been "incorporated" through the Fourteenth Amendment to apply to the states. The U.S. Supreme Court unanimously reversed, finding the clause so fundamental that it had to be applied to the states.

     After Timbs, the only parts of the Bill of Rights that have not yet applied to the states are the Third Amendment's prohibition on quartering of troops, the Fifth Amendment's grand jury requirements, and the Seventh Amendment's right to a jury trial. Of these, Peck and Brusavich argue, the Seventh Amendment qualifies for incorporation under the criteria utilized by the Supreme Court. In fact, the article points out that the Seventh Amendment's credentials for incorporation outshine those of the Excessive Fines Clause or the previously incorporated Second Amendment. 

     The article points out the significance of incorporation, which would apply federal precedent on jury trials to the state, which the authors contend will invalidate damage caps in common-law based causes of action, such as medical malpractice. Since 1975, California has limited non-economic damages in medical malpractice cases to $250,000. Brusavich, a past president of the Consumer Attorneys of California, is counsel in Hernandez v. Cardin, a medical malpractice case that goes to trial April 8 in which the judge has authorized a hearing on the constitutionality of the cap if liability is assessed above the cap.