Last week the plaintiffs in Winnett, et al. v. Frank, et al. (No. 1:20-cv-01155-LY) filed their opening brief. Their two-part argument contends that: (1) the Seventh Amendment of the U.S. Constitution should be incorporated through the Fourteenth Amendment and made applicable to the states; and (2) Texas’ cap on noneconomic damages in health care liability claims violates the Seventh Amendment’s guarantee that the right to a jury trial shall be “preserved.” There has been a long-held view, supported by U.S. Supreme Court precedent, that the Seventh Amendment’s right to a jury trial does not apply to the states. State damages caps have also been upheld in many states, including Texas, against both open courts and right to jury trial challenges. Bringing this particular lawsuit at this particular time indicates that the plaintiffs believe the time has come to get this question before SCOTUS, a high-stakes gamble to say the least.

As we have reported previously, the individual plaintiffs have each filed underlying health care liability claims around the state (two organizations, Texas Watch and the National Medical Malpractice Advocacy Association, have also joined the suit). The defendants include physicians, clinics, and hospitals, four Travis County district judges, and defendant-intervenors Texas Hospital Association and the Attorney General’s Office. Judge Lee Yeakel, U.S. District Judge for the Western District of Texas, Austin Division, has scheduled a bench trial on January 7, 2022.

According to the plaintiffs’ brief, to establish that a protection granted by the Bill of Rights applies to the states, a plaintiff must show that it is “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition” [citing Timbs v. Indiana, 139 S.Ct. 682, 687 (2019)]. SCOTUS “has [recently] incorporated the Second Amendment’s right to bear arms, the Eighth Amendment’s Excessive Fines Clause, and, arguably, the Sixth Amendment’s unanimous criminal-jury requirement” (Plaintiff’s brief, 5-6). Alluding to older SCOTUS precedent declining to incorporate the Seventh Amendment, the plaintiffs argue that the early incorporation cases’ reasoning has been superseded by the “modern incorporation theory” expressed in Timbs. Applying the modern theory, they continue, demands incorporation because a civil jury trial “is fundamental to our scheme of ordered liberty.” The plaintiffs focus on the “preservation clause” as embodying the common law trial by jury known when the Bill of Rights was ratified and conduct an historical analysis tracing trial by jury back to Magna Carta (Plaintiff’s brief, 8-11).

The second step in the argument asks the district court to decide that the preservation clause does not “permit legislative adjustment of a jury’s fair and proper verdict.” Put another way, damages caps that are applied post-verdict impermissibly constrain the historical fact-finding function of a civil jury. This requires a finding that medical malpractice lawsuits were in fact recognized by the common law and “tried to juries at the time of the nation’s founding.” (Plaintiff’s brief, 15). According to the plaintiffs, the first record of a medical malpractice action dates back 1374, plainly establishing its presence in the common law tradition well prior to the late eighteenth century. The trickier issue is whether a legislative intervention establishing a maximum amount of damages really does unconstitutionally restrict the jury’s “indisputable authority” to determine compensatory damages, including noneconomic damages. Here the plaintiffs likewise rely on the history of the common law, complete with citations to Sir Edward Coke and William Blackstone. Juries must be free to assess damages, the plaintiffs argue, so that individualized justice may be served. Caps, on the other hand, are arbitrary and “divorced” from the facts of each case. [It is interesting to note that while the plaintiffs urge the court to reject older SCOTUS precedent regarding incorporation, they rely on and quote from an 1889 SCOTUS opinion, Kennon v. Gilmer, for the proposition that a judge cannot substitute his own assessment of damages for the jury’s.] Noneconomic damages have long been recognized as a component of actual damages in a negligence action, they continue, and their determination is solely within the province of the jury. “To be clear, the cap violates the Seventh Amendment right to trial by jury by changing the jury’s factual determination of compensatory damages and requires its reduction to another amount regardless of the magnitude of an injury,” the plaintiffs contend. “Doing so deprives the plaintiffs of the full scope of their right to trial by jury.” (Plaintiffs’ brief, 22).

The last section of the brief attempts to anticipate defense arguments and discredit defense precedent. We will defer discussing those arguments and cases to our review of the defendants’ response. The plaintiffs’ brief, authored by Robert S. Peck of Center for Constitutional Litigation, PC in Washington, D.C. and Hartley Hampton of Hampton and King in Houston invites the federal district judge to depart from well over a century of Seventh Amendment incorporation decisions, as well as recent federal court decisions upholding the validity of the cap. It also champions a “modern incorporation theory” derived from more recent SCOTUS incorporation cases pertaining to other protected rights but not to the Seventh Amendment. That’s a tall order for a federal district court, but the plaintiffs must think that a more conservative, strict constructionist SCOTUS will be attracted to the argument.

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