Indiana Supreme Court Holds Med-Mal Damage Cap Subject to Constitutional Challenge, Evidentiary Hearing

January 16th, 2013

Emphatically rejecting the Indiana Solicitor General's argument that the constitutionality of a state cap on compensatory damages in medical malpractice cases was settled for all time when the Court upheld its constitutionality in a 1980 case, Johnson v. St. Vincent Hospital, the Indiana Supreme Court on January 15, 2013, held that plaintiffs who timely raise their constitutional objection are entitled to put on evidence in support of their arguments.  The cap originally limited all damages in medical malpractice cases to $500,000 and, after several amendments, now imposes a limit of $1.25 million.

The case argued by CCL's Robert S. Peck was brought after Debra L. Plank's doctors failed to diagnose an obstructed bowel that caused her death.  In 2009, a jury sustained her estate's charge that the doctors had committed malpractice and awarded compensatory damages of $8.5 million.  That verdict was reduced pursuant to the cap to $1.25 million.

The State of Indiana argued that the Johnson case "definitively settled" the cap's constitutionality. The Indiana Supreme Court unanimously held that was wrong.  Instead, the Court accepted CCL's argument that, whatever crisis conditions were deemed to have justified the cap in the 1970s, changed modern circumstances can render the cap unconstitutional today.  To that end, overruling a contrary trial court determination, the Court said plaintiffs may introduce evidence of how circumstances have changed and why the cap no longer fits its intended purposes.

Unfortunately, the decision will not help the Plank family.  The Court also found that, by not asserting their constitutional objection early enough in the case and thereby providing sufficient notice to the defendant that it might want to pursue a different trial strategy to avoid potential liability above the cap, the Planks had waived their constitutional objection. Other plaintiffs will instead have to undertake the constitutional challenge strategy that the Court approved in Plank.

CCL Amicus Brief Referenced in Oral Argument before Supreme Court

January 8th, 2013

On January 8, 2013, the U.S. Supreme Court heard oral argument in Delia v. E.M.A., an important Medicaid lien case in which CCL had submitted an amicus brief on behalf of the American Association for Justice and North Carolina Advocates for Justice in support of Respondent. During argument, the Justices and counsel for respondent made several implicit references to the CCL brief. First, Justice Sotomayor told Petitioner’s counsel that the North Carolina statute at issue was not the sort of state procedure that the Court had cited favorably in its earlier Ahlborn ruling: adopting an argument made in the CCL brief, she said: “I don't see the North Carolina procedure referenced in Ahlborn as something that States could do. It wasn't referenced directly in the -- in the opinion, and it wasn't referenced indirectly by the amici. The amici were talking about substantially different procedures.” Later, counsel for Respondent engaged in a colloquy with Justices Sotomayor and Ginsburg about North Carolina’s statutory allocation procedure for liens in workers compensation cases; that statutory procedure had also been brought to counsel and the Court’s attention by the CCL amicus brief.

Federal Rulemakers Consider CCL Comments on Preservation of Evidence

January 4th, 2013

You can’t have a lawsuit without evidence, and federal rulemakers are making it too easy for evidence to disappear, according to CCL attorney John Vail.

Vail, who regularly follows and comments upon proposals before the committees that make rules for the federal courts, told the committees in written comments that they should not and cannot prohibit a federal judge from giving an adverse inference instruction to a jury when applicable state law prescribes that action. 

The Committee on Practice and Procedure of the federal courts, known as the standing committee, debated Vail’s points during a two-day meeting in Cambridge, MA, on January 4-5.

The committees will publish for comment a draft revision of Federal Rule of Civil Procedure 37, which will guide federal judges in creating curative measures and granting sanctions when parties fail to preserve, or purposefully destroy, evidence

ABA Debates Judicial Disqualification Rules

January 3rd, 2013

When should a judge step down from a case due to the appearance of a conflict of interest?  That question animates the work of two American Bar Association ethics committees, who have struggled to develop new judicial conduct rules that implement the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co., where the court ruled that due process required a West Virginia supreme court justice to have stepped down from a case in which one party had spent $3 million in support of the justice’s election.  Crafting an appropriate rule, however, has proven difficult.  An article in the January 2013 ABA JOURNAL quotes CCL President Robert S. Peck about the difficulty in making sure the rule captures potential bias in favor of an election supporter or opponent without putting the onus on the judges to discover what is being spent and by whom, especially when state law often prohibits a judge from knowing that information.  Peck’s position was supported by the ABA’s Judicial Division.