A who’s who of Texas medical malpractice plaintiff’s lawyers have filed a class action lawsuit in an Austin federal court challenging the constitutionality of the $250,000 cap on non-economic damages enacted in 2003. The suit alleges that the cap violates the Seventh Amendment of the U.S. Constitution “by rendering the jury verdict merely advisory, and by failing to preserve the substance of the common law right of trial by jury.” The complaint argues that the cap impairs the jury function of determining compensatory damages as it existed before and after the adoption of the Seventh Amendment (a “strict constructionist” argument). The plaintiffs seek a declaration of the constitutionality of the cap on the basis that the cap affects every aspect of a legitimate claim, including whether the claim may be pursued in the first instance.
The members of the class include claimants in medical liability lawsuits from across the state, all of whom allege that the cap adversely impacts their ability to recover compensatory damages that make them whole. There are 14 named class representatives and dozens of named defendants who are currently being sued by those class representatives. Five Travis County District judges have also been named as defendants. The attorney signatories on the complaint include many of the leading medical malpractice lawyers in the state, including current TTLA President Jim Perdue, Jay Harvey, Chip Brees, Hartley Hampton, and Daniel Ross. Federal district Judge Lee Yeakel has set a briefing schedule and scheduled a bench trial for January 7, 2022. Judge Yeakel has also granted the Texas Hospital Association’s motion to intervene in the case.
It is not clear how the plaintiffs get around the U.S. Supreme Court’s decision in Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916). This case involved a claim under the Federal Employer’s Liability Act brought in a state court that did not require a unanimous jury verdict in a civil case. SCOTUS held that the Seventh Amendment does not apply to a civil jury trial in a state court, not even to a claim derived from a federal statute brought in state court (unless the state court “is enforcing a federally-created right in which the right to trial by jury is a substantial part”). Generally speaking, suits filed in a federal court is subject to federal jury procedures, except that in the case of a state-law claim the court will follow state procedures if reconcilable with the court’s interest in the conduct of its business. Note that this general rule does not rely primarily on the Seventh Amendment, but on the federal judiciary’s inherent powers. See Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952).
Still, when a group of very fine trial lawyers make the decision to invest their time and resources in a case of this magnitude, one must presume that they have a good reason. We will follow this case closely in the weeks and months to come. We can be sure that the 29 or so other states with damages caps will be doing the same thing.