On Wednesday afternoon, U.S. District Judge Lee Yeakel heard arguments in Winnett et al. v. Pham, M.D. et al. (No. 1:20-CV-01155-LY). As you recall, this case, brought by numerous plaintiffs with health care liability claims against various physicians and hospitals across the state, challenges the constitutionality of the Texas cap on non-economic damages.

The plaintiffs argue that the Seventh Amendment to the U.S. Constitution bars the cap because it infringes the constitutional right to a determination of damages by the jury. Robert S. Peck, a Washington D.C. attorney and founder of the pro-plaintiff Center for Constitutional Litigation, argued the case for the plaintiffs. Peck likewise argued litigation challenging the Florida damages cap, which the Florida Supreme Court ultimately struck down, and tort reforms enacted in Ohio. The plaintiff’s case hinges upon the incorporation of the Seventh Amendment to the states under the Fourteenth Amendment.

Brent Cooper of Cooper & Scully in Dallas, a defense trial and appellate lawyer and one of the architects of the 2003 health care liability reforms, argued on behalf of the defendant health care providers. His argument turned on U.S. Supreme Court precedent declining to incorporate the Seventh Amendment to the states. Although that precedent is now more than a century old, Cooper argued, only SCOTX can reverse itself, so the plaintiffs’ challenge must fail at the trial court stage. Cooper further argued that the cap does not infringe upon the jury’s determination of damages because the trial court applies the cap only after the verdict comes down.

Counsel for Intervenor Texas Hospital Association, Norton Rose Fulbright’s Austin partner Adam Schramek, argued that the Legislature’s response to the health care liability crisis was constitutionally valid, rational, and effective. The Texas Attorney General’s Office also intervened, arguing that the plaintiffs had no standing because none of them had obtained a verdict in excess of the cap that was subsequently reduced. They thus had no present injury justiciable by the court.

As we have previously reported, Wednesday’s trial is likely the first step in a long process that aims to put the incorporation issue before SCOTUS. While Judge Yeakel has ruled in the past that Texas legislation has violated the constitution, this case appears different because apposite SCOTUS authority exists on the question of incorporation.


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