Project 2001: Challenging Maryland’s Cap
on Non-Economic Damages by Nicole Schultheis and J. Mitchell Lambros
Over the past year MTLA members
have asserted a number of challenges to Maryland’s cap on non-economic dam- ages. While some of the cases have settled prior to any decision being rendered, most of these challenges are still working their way through Maryland’s circuit and ap- pellate courts. Every month or so, another opportunity arises to challenge the cap, and new approaches are constantly pre- senting themselves as a result of the varying fact patterns in these cases. We want our members to know that MTLA is working with a team of experienced constitutional lawyers at the Association of Trial Lawyers of America to help en- sure that each challenge is competently made. Briefly, there are half a dozen or so new constitutional arguments in addition to those first addressed in Murphy v. Edmonds, 325 Md. 342, 353, 601 A.2d 102 (1992), in which the Court of Ap- peals upheld Md. Cts. & Jud. Proc Code Section 11-108 against challenges under the equal protection (Article 24) and jury trial (Articles 5 and 23) provisions of the Maryland Declaration of Rights. The earliest of this new wave of chal- lenges make three assertions not in any
way addressed in Murphy: that the cap works a taking of private property, other than for a public purpose and without just compensation, in violation of Article III, section 40 and Articles 5 and 19 of the Declaration of Rights; that the cap is a “special law” barred by Article III, section 33 of the Maryland Constitution; and that the cap violates the doctrine of separation of powers. Murphy did not purport to decide these issues, id. at 353 (noting that only the equal protection and jury trial claims were before the Court). Some of the newer cases also raise race and/or gender discrimination as violations of equal protection and, for gender, an argument has been made under Maryland’s Equal Rights Amendment.␣ One case raises a claim of age discrimina- tion and another raises a claim that the cap is unlawful under the Americans with Disabilities Act. An impressive record has been established to support each argu- ment.
MTLA is following the numerous cap cases closely. Like other tort reform stat- utes that have been struck down in other states, our cases have attracted the atten- tion of leading scholars and other experts
The Cases
Shampaine v. Cummins Diesel (Robert Michael): Case resolved after oral argument before Judge John Carroll Byrnes (Baltimore City).
Tyler v. Dimensions Health Care System (Kevin McCarthy): Argued before in the Court of Special Ap- peals on January 11, 2001 (race).
Malory v. University of Maryland Medical System (Ruth Jakubowski, Henry Dugan, George Tolley): Prehearing conference in Court of Special Appeals took place Decem- ber 19, 2000 (race and gender).
Tawney v. St. Agnes Health Care (Gary Wais): On December 7, Judge Thomas Noel (Baltimore City) granted motion to apply the cap (gender).␣ Appeal pending.
Fink v. Fink (Marc Rosen) - Judge John Carroll Byrnes (Baltimore City) granted motions under the cap in December 2000 (gender and ADA). Case subsequently resolved.
Robinson v. Lyttos International (John and Mary Alice Low): This case will be argued on February 8, 2001 before Judge Thomas Smith (Prince Georges County) (age). ␣ N.B. Judge Smith sua sponte asked for briefing on age discrimination.
Elkins v. Lohaus (Matt Ballenger and Christine Pham):
Challenge
to the cap failed again before Judge Byrnes (Baltimore City)(race and gender issues raised), but no final order is imminent because of the need to re-try a collateral issue.
4
Trial Reporter
Winter 2001
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