Maryland’s Damages Cap Challenged by Catherine McCullough
Catherine McCullough, a Maryland native and member of the Maryland Bar, is ATLA’s Research Counsel for Media Relations.
The Maryland damage cap days may be numbered. Attorneys with ATLA’s Constitutional Litigation Program, work- ing with past MTLA President, Bob Michael, have crafted a set of arguments that may persuade Maryland courts to overturn the cap.
The arguments center on a case called
Shampaigne v. Cummins Power Systems, Inc. The plaintiff in the case, an oral sur- geon, was permanently injured when a boat hatch that had been incorrectly re- paired collapsed on his hand, cutting off the tip of his right index finger. As a re- sult of that injury, Dr. Shampaigne developed RSD - Reflex Sympathetic Dystrophy - a condition that cuts off cir- culation and causes pain and swelling in parts of the body separate from the initial traumatic injury. The RSD affected Dr. Shampaigne’s right hand and forearm and eventually spread to his left hand and feet. He was forced to sell his practice. The jury awarded Dr. Shampaigne $4 million in economic damages and $4 mil- lion in non-economic damages. The defendants then moved to reduce the ver- dict to conform with the non-economic damages cap. The cap, which originally passed the Maryland legislature in 1985, would limit Dr. Shampaigne’s non-eco- nomic damages to $545,000. When the defendants moved to reduce
the verdict, Michael and his team at Shadoan and Michael, LLP, contacted ATLA. Senior Counsel for Constitutional Litigation, John Vail, was admitted pro hac vice in the case. Michael and Vail, work- ing closely with MTLA Board member and ATLA State Delegate Nicole Schultheis, MTLA Amicus Committee Chair Walter Laake, and Amicus Com- mittee Member Tom Cardaro, gathered extensive evidentiary materials. But while gathering documents and brainstorming about approaches, they came up with something else - a novel argument for the case. The team decided that they would argue that the cap works as a taking of property. “I was reading a Michigan case that talked about what a verdict is, and the lan-
8
John Vail argued the repeal of the cap be- fore the Circuit Court for Baltimore City.
guage made me think about a verdict as a property interest,” Vail says. “So I posed a question to myself: ‘what would hap- pen if a person died after a verdict was rendered but prior to the judgment being entered?’ I found that question had been answered by a 17th
century Act of Parlia-
ment which was incorporated into the states’ common law - including Maryland’s.” A jury’s verdict creates an entitlement, and therefore a property in- terest, the team argues. When the court enters a judgment on that verdict, the act is merely a clerical one because the relief has already been determined by the jury. Therefore, the team asserts, the damages cap - which deprives the plaintiff of the majority of his entitlement - must be struck. In addition to this new argument, the team decided to use two other arguments that have convinced other state courts to strike down tort ‘reform’ laws. First, the attorneys determined that they would contend that the cap represents a ‘special law’ disallowed by the state Constitution. And second, the team decided it would point out that the cap violates the access to courts/right to remedy clause of the Declaration of Rights. Maryland courts have determined that a ‘special law’ is “one that relates to particular persons or things of a class, as distinguished from a general law which applies to all persons or things of a class.” (Cities Service Company v. Gov- ernor, 290 Md. 553 at 567 (1981)). The cap on damages is a burden to
Trial Reporter
only certain members of a class - the most grievously injured of victims, the team rea- sons. Thus, the cap places a burden on these special members of the class and excludes them from the operation of gen- eral law. In addition, the cap violates the access to the courts/right to remedy pro- vision of the Declaration of Rights, the team says. “The right to remedy imple- ments and protects the fundamental right to bodily integrity. The right to control your own body and to control your prop- erty are two pillars of the law. The framers of the Maryland Constitution in the right to remedy clause [intended] that the in- cursion of the right to bodily integrity was guaranteed a remedy at law,” Vail says. Vail argued the team’s points before the
Honorable John Carroll Byrnes of the Cir- cuit Court for Baltimore City in November. “It went smoothly,” Vail says. “The judge was very attentive.” Exten- sive proposed findings of fact and conclusions of law were submitted in early December. No decision is expected be- fore mid-January. “The help that was provided by ATLA was excellent. The briefing and the oral argument that was done on behalf of the doctor was excep- tional,” Michael says. Maryland is one of several states in which attorneys from ATLA’s Constitu- tional Litigation Program are working. Constitutional Litigation Program attor- neys Vail, Ned Miltenberg, and Robert Peck - ATLA’s Senior Director for Litiga- tion and Policy Review - are leading the efforts to challenge ‘reform’ measures in Colorado, Indiana and Alaska. And in Florida, the Program’s attorneys
are spearheading litigation that is compa- rable in scope and importance to the work they did to strike down Ohio’s omnibus tort ‘reform’ law.
(The Ohio challenge
ended in an across-the-board victory. See Sidebar.) In addition to drafting briefs and working as co-counsel in those states, ATLA’s attorneys are also providing assis- tance and strategic guidance in Constitutional challenges pending or planned in numerous other states, includ- ing Nebraska and Kansas.
Winter 2000
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