In a federal constitutional challenge to the Texas damage cap on noneconomic damages in medical malpractice cases, CCL filed its opening brief, arguing that the Seventh Amendment to the U.S. Constitution was overdue for application to the States and invalidates the statutory limit on damages. 

     Under the Incorporation Doctrine, the Supreme Court has applied selective provisions of the Bill of Rights to the States, starting with the First Amendment's Free Speech Clause in 1925. The pace of incorporation quickened in the 1960s under the Warren Court, but then fell into a period of stasis. However, over the past ten years, the Supreme Court has rediscovered incorporation, starting with gun rights under the Second Amendment. Recent decisions have seen incorporation of the Excessive Fines Clause from the Eighth Amendment and application of the unanimous criminal jury verdict provision in the Sixth Amendment.

      One provision that the Court has not addressed in more than a century is the Seventh Amendment, which preserves the right to a jury trial in civil cases. The CCL brief demonstrates that the Seventh Amendment meets the criteria for incorporation, perhaps more urgently than other provisions.

       The Seventh Amendment establishes that juries are the judges of damages. A legislative revision of its assessment of damages, the brief further argues, interferes with the jury's prerogatives as established at common law prior to the promulgation of the Constitution. The Seventh Amendment constitutionalizes that authority and immunizes it from legislative interference, the brief further contends.

        Simultaneous opposing briefs were filed by the Texas Attorney General, defendant health-care providers, and the Texas Hospital Association. All parties have until December 3 to file reply briefs. The case, Winnett v. Frank, is pending in the U.S. District Court for the Western District of Texas.