The three response briefs from the defendants and defendant-intervenors in Winnett, et al. v. Frank, et al. (No. 1:20-cv-01155-LY) attack the plaintiffs on both procedural and substantive grounds. Attorney General Paxton’s brief contends that the plaintiffs have neither standing to sue nor a justiciable interest in the first place. The health care provider defendants and defendant-intervenor Texas Hospital Association (THA) argue that neither SCOTUS nor any other federal court has ever applied the Seventh Amendment to the states, and that even if they had, Texas’ cap on noneconomic damages would not infringe the jury’s fact-finding function. All the briefs argue that the plaintiffs’ request for a permanent injunction against enforcement of the cap is not permitted by federal law.

“Plaintiffs filed a claim that does not exist based on alleged controversies that do not exist,” General Paxton’s brief commences. “They seek a novel decision from this Court with nationwide implications that defies United States Supreme Court precedent, the United States Supreme Court’s admonition that only it should overrule its precedent, and decisions from most Circuit Courts of Appeals. Since Plaintiffs lack standing and have failed to state a claim upon which relief can be granted, their claims must be dismissed.” The Attorney General bases his standing argument on the “ripeness” doctrine, arguing that because none of the plaintiffs “have even proceeded to trial, much less secured a jury award of non-economic damages in excess of the statutory threshold,” their case is merely speculative and the court has no subject matter jurisdiction. Even if it had jurisdiction, the brief continues, controlling federal precedent clearly holds that the Seventh Amendment does not apply to the states and that damages caps do not violate it in any event. Consequently, the OAG has moved to dismiss the claim under FRCP 12(b)(1) and 12(b)(6).

The defendants’ brief, authored by Brent Cooper, Diana Faust, and Bryan Giribaldo of Cooper & Scully, P.C. (longtime legal counsel to Texas Alliance for Patient Access) elaborates in detail the incorporation issue, especially the plaintiffs’ claim that “modern incorporation theory” compels incorporation of the Seventh Amendment. While the plaintiffs’ brief characterizes older SCOTUS precedent as out-of-step with present thinking on the Court, the defendants tell a different story of the consistent refusal of the Court to apply the Seventh Amendment to the states up to the present day. Much of the plaintiffs’ argument rests on recent cases expanding incorporation, including:

  • McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010), in which SCOTUS held that the Second Amendment applies to the states through the Fourteenth Amendment because the right to keep and bear arms for self-defense is “fundamental to the Nation’s scheme of ordered liberty” and “deeply rooted in the Nation’s history and traditions”;
  • Timbs v. Indiana, 139 S.Ct. 682 (2019), in which the Court applied the Eighth Amendment’s excessive fines clause to the states; and
  • Ramos v. Lousiana, 140 S.Ct. 1390 (2020), in which a divided court ruled that the Sixth Amendment’s right to a jury trial in a criminal proceeding applied to the states and required a unanimous verdict, overruling Apodaca v. Oregon, 406 U.S. 404 (1972).

Even though this trend favors expansion of incorporation, as the plaintiffs argue, it “does not signal a shift within the Court toward embracing a theory of total incorporation nor does it open the door to overturning other Court decisions holding amendments unincorporated.” The defendants point out that numerous circuit court of appeals’ decisions have refused to incorporate the Seventh Amendment, and that SCOTUS itself has time and again declined to do so. As long as this remains the case, the defendants assert, the precedent is binding on the lower courts and must be followed.

Just as the plaintiffs make an historically derived case in favor of incorporation, the defendants do the same and come to the opposite conclusion. The crux of the defendants’ argument is that although civil jury trials for common law negligence involving medical providers may have long been part of English common law, the real issue is whether civil jury trials are in fact “fundamental to the Nation’s scheme of ordered liberty” or ‘deeply rooted in the Nation’s history and traditions.” Contrary to the plaintiffs’ contention, there has never been a consistent tradition of jury trial practice, whether in the thirteen colonies or the states. The colonies, and later the states, have characterized the right to trial by jury in different ways that are quite distinct from the Seventh Amendment’s “preservation” clause. According to the defendants, “[T]o incorporate such a generic right as the Seventh Amendment to the states would be to deprive the states of their own histories and unique procedures.” Moreover, there is nothing about a particular form of civil jury trial that is “fundamental to America’s scheme of ordered liberty.” There are numerous bypasses to jury trials in the American system, such as directed verdicts, grants of motions for new trial, special verdicts, summary judgment, and remittitur, none of which have ever been held to impermissibly infringe the jury’s fact-finding function. In short, the plaintiffs emphasize the wrong history and the wrong tradition.

The defendants go on to argue that even so, the Texas cap does not violate the Seventh Amendment. This argument involves analysis of two questions: (1) “whether particular issues, or analogous ones, were decided by judge or by jury in suits at common law at the time the Seventh Amendment was adopted”; and (2) “whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791” (citing City of Monterey v. Del Monte Dunes at Monterey, Ltd. 526 U.S. 687 (1999)). While the defendants do not dispute the first question with regard to medical malpractice claims, they take issue with the plaintiffs attempt to apply Feltner v. Columbia Pictures, Inc., 523 U.S. 340 (1998) to knock out the cap. The Feltner case concerned whether §504(c) of the Federal Copyright Act of 1976, which provides for statutory damages, allowed the court to determine the amount of damages instead of the jury. SCOTUS said no, concluding that juries in copyright cases at common law determined the amount of damages and must do so in statutory damage cases under the FCA. But the Feltner court did not question congressional authority to establish statutory damages or set parameters for them; it simply said that the jury must decide what they within the statutory guidelines. The same is true of the cap, as numerous federal appellate decisions have held. Caps do not eliminate jury trials or the jury’s discretion to determine the amount of damages a plaintiff has suffered. They are exercises of legislative authority to make rational policy decisions about the legal effect of those determinations.

The defendants further contend that incorporating the Seventh Amendment to the states will void all limitations on liability enacted by Congress and state legislatures, whether they are caps on various types of damages (or the refusal of some states even to recognize certain elements of damages, such as punitive damages) or statutory defenses (such as Chapter 95 premises liability) that relieve a party of liability under certain conditions.

Finally, both the defendants and THA point out that the plaintiffs’ request for a permanent injunction and their naming of four trial court judges as defendants are simply impermissible under federal law. Judges are neutral arbiters of the law, not parties adverse to the plaintiffs. Injunctive relief from a judicial order may only occur after the violation of a declaratory decree. The plaintiffs’ cases, by contrast, are in various stages of pre-trial proceedings and are very far from being adjudicated. As we have seen, the OAG makes the same argument and seeks dismissal under Rule 12(b).

It will be instructive to see how the plaintiffs respond in their reply brief, which is due on December 3. From our standpoint, there is no federal district judge in the country who can overlook the weight of precedent on the side of the defendants or who would take it upon themselves to shoot the proverbial bird at the U.S. Supreme Court. But that is not the point. Plaintiffs filed this suit to carry out a strategy announced in a 2019 Texas Tech Law Review article authored by the same lawyers who signed their brief. The article, “A Challenge Too Early: The Lawsuit to Invalidate Texas Damages Caps and Its Likely Future Vindication,” 51.4 Texas Tech Law Review 667-92, maps out the “modern incorporation theory” approach present in this case. They presumably expect to lose at the trial court and Fifth Circuit. We shall see if that is indeed the case. In any event, the plan is to take it to SCOTUS as quickly as they can get there.


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