News

Representing the estate of 10-year-old Jazimen Warr, killed by a drunk driver, CCL’s John Vail rebutted the assertion of a Rockville bar that it had no duty to stop serving alcohol to a person it knew was intoxicated and violent, asserting that the argument is “implausible,” in a brief filed today in Maryland’s highest court.

The defendant, Dogfish Head Alehouse, had served at least 21 drinks to the driver.  The bar argued that it should escape liability because the law does not require it to protect the general public from drunk drivers.  Vail responded that any bar owes every person a duty not to continue serving visibly intoxicated persons.  Vail will argue the case, Warr v. JMGM Group, LLC, on  March 12.  Plaintiffs are also represented by Andrew E. Bederman and Jason W. Fernandez of Greenberg & Bederman, LLP, of Silver Spring, MD.

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.

The New Hampshire Supreme Court has struck down parts of the state’s mandatory screening panel statute in medical malpractice cases as an infringement of the litigants’ right to trial by jury. In re Southern New Hampshire Med. Ctr., 2012 WL 5349992 (N.H. Oct. 30, 2012). CCL prepared an amicus brief filed on behalf of the American Association for Justice and New Hampshire Association for Justice. The brief, authored by CCL attorney Jeffrey White, surveyed the experience of other states, some of which struck down their screening panel statutes as violative of the jury right, while many others repealed the legislation as costly and ineffective. The New Hampshire court rejected the lower court’s determination that the statute violated the separation of powers doctrine, but held that provisions preventing the parties from using documents and witnesses to attack the panel findings violated the state constitutional right to trial by jury.

Today, CCL filed a brief in response to the amicus curiae brief filed by the Civil Justice Association of California in Hughes v. Pham, a challenge to California’s $250,000 cap on noneconomic damages now pending in the California Court of Appeal for the Fourth District, Division Two. Although briefing on the constitutional issues was completed in July, CJAC filed its brief in September. CCL’s Valerie M. Nannery authored the brief in response. The case is now fully briefed and awaits a date for oral argument.

In a disappointing 109-page ruling, the Kansas Supreme Court upheld that state’s longstanding cap on noneconomic damages in tort cases. The underlying case, Miller v. Johnson, involved a medical malpractice case in which the doctor-defendant, treating a young woman for cancer, removed the wrong ovary, necessitating removal of her remaining ovary and inducing menopause at a young age. The cap reduced the plaintiff’s damages from $750,000 to $250,000. The majority held that the cap did transgress the right to trial by jury as historically evaluated, but then justified the cap on the basis of a supposed quid pro quo that inured to plaintiffs’ benefit, adopting a stance that all parties to the case denied was appropriate. The decision provoked two strong dissents, one of which ended with the following statement: “this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us.”

The case was argued twice before the Kansas Supreme Court. CCL’s Robert Peck participated in the second argument in February 2011, and another CCL attorney participated in the first argument in October 2009. A report on the decision is available from the Kansas City Star.

CCL’s John Vail, at oral argument, urged the Maryland Court of Appealsto abolish the common-law doctrine of contributory negligence and adopt comparative negligence. “The doctrine [of contributory negligence] is not justice. This Court’s failure to act will perpetuate the injustice,” Vail told the Court of Appeals, according to a report in the Maryland Daily Caller. The Maryland Daily Caller described the oral argument as “an extraordinary session that lasted nearly two hours.”

The case is Coleman v. Maryland Soccer Association, No. 9 (Md. 2012).

A trial court in Louisiana has ruled that Louisiana law limiting non-economic damages recoverable in medical malpractice cases violates the Louisiana Constitution. The case is Arrington v. Galen-Med, Inc., No. No. 97-4329, Div-B. CCL’s Valerie M. Nannery assisted with briefing in the trial court, and presented oral argument as well.

In Watts v. Lester Cox Medical Center, the Missouri Supreme Court held that a law limiting compensation for non-economic harm violated the right of trial by jury under the Missouri Constitution. The Court also overruled a 20-year-old precedent that had reached the opposite conclusion. In addition, the Court ruled that the trial court abused its discretion in adopting a periodic payment schedule for future medical damages that failed to assure full recovery.

CCL’s Andre M. Mura was lead appellate counsel for the plaintiffs in this case.

AMA News, Media Matters, and The St. Louis Post-Dispatch have coverage of the decision.

The Maryland Court of Appeals has agreed to consider the merits of an appeal concerning whether to abolish the common-law doctrine of contributory negligence and adopt comparative negligence. CCL’s John Vail is lead appellate counsel for the plaintiffs in Coleman v. Soccer Assoc. of Columbia, No. 02048.

The Missouri Supreme Court held oral argument in Watts v. Cox Medical Center, No. SC91867. The case concerns the constitutionality of a Missouri law limiting compensation for non-economic harm in cases where medical negligence is proven. Andre M. Mura presented argument on behalf of the plaintiffs. The Missouri Solicitor General’s Office argued on behalf of the defendants.

Missouri Lawyers Media has coverage of oral argument (subscription required). It notes that this “high-profile appeal” “has drawn attention from across the state and nation.”