Arguing that the Seventh Amendment qualifies for application to the States through the Fourteenth Amendment, CCL President Robert S. Peck, representing victims of medical malpractice, told a federal district court in Austin, Texas that the state's cap on noneconomic damages is inconsistent with the right to a jury trial. 

      The case, Winnett v. Frank, asks the Court to apply the modern incorporation doctrine to the Seventh Amendment, making it applicable to the States in the same manner that the Supreme Court has recently applied the Second Amendment, the Excessive Fines Clause of the Eighth Amendment, and the unanimous criminal jury trial requirement of the Sixth Amendment. Using that criteria, he said, the Seventh Amendment's Preservation Clause, which maintains the historic common-law authority of the jury as a constitutional right, exceeds the necessary qualifications of the amendments previously "incorporated." Following Fifth Circuit precedent, Peck urged the Court to apply the modern test, rather than rely on more than century-old decisions that used a test the Court has held obsolete.

     Applying that test, Peck said that the cap interferes with the right to jury-assessed damages by replacing the jury's factfinding specific to the individual case with one developed by the legislature that overrides that jury's determination of facts and renders its verdict only advisory. In response to the defendant's argument that a panel of 12 jurors should not be allowed to displace the policies of an elected legislature, Peck pointed out that the purpose of a bill of rights is to remove certain policies from vicissitudes of political debate, as Justice Robert Jackson wrote in a 1943 decision in the second of the Flag-Salute cases. As an example, Peck explained that even if everyone but one person in the country disliked a single dissenter's advocacy, the First Amendment prevents laws that would burden or punish that single person's point of view.

     Defendant-Intervenor Texas Hospital Association claimed that studies supported the effectiveness of the cap, but Peck said that the vast majority of studies, including Texas-specific studies, undermined that claim. Nonetheless, Peck said none of that mattered because the jury-trial right was a categorical right, measured by historical usage and not by a balancing test. Even if it were subject to a balancing test, Peck added, less restrictive means, such as insurance regulation or tax incentives were available to accomplish the goals Texas had without trampling on peoples' rights.

     The Texas Attorney General also defended the statute, choosing to argue that neither standing nor ripeness permitted the court to address the constitutional question. Peck, citing a 1978 U.S. Supreme Court case, explained that the cap had immediate effects on both the trial and potential settlement of the case, providing an adequate basis for standing and ripeness. He also submitted that, under the Attorney General's formulation, no plaintiff would ever have a right to vindicate federal rights in federal court, as the Supreme Court has repeatedly acknowledged must be the case.

     The case is now under advisement before U.S. District Court Judge Lee Yeakel.