3) It violates the right to a jury trial
clause in the Illinois constitution; and 4) It violates the equal protection
clause in the Illinois Constitution be- cause “it treats similarly situated persons differently without a rational basis.” Id. at 2. The precedent from Illinois is par-
ticularly instructive because it has thoroughly developed the arguments utilized by the Semsker plaintiffs. The Illinois Supreme Court twice in Wright and Best invalidated a $500,000 non-
them from fully compensating plaintiffs for fairly assessed dam- ages. Consequently relief to an injured plaintiff depended solely on an arbitrary classification, in violation of the prohibition against special legislation.
Best, 179 Ill. 2d at 397 (discussing and reaffirming Wright). Thus the key to Wright was that it ap-
plied to only medical malpractice victims and was selective or special legislation because it burdened the most severely in-
Accordingly, there is a strong argument that the Maryland legislation at issue is invalid special legislation and violative of equal protection under the Maryland constitution.
economic damages cap on the ground that it was unconstitutional special legislation. The Best Court noted that: [I]n Wright, this court concluded that the General Assembly did not have the power to prescribe arbitrary limitations on an injured plaintiff ’s compensatory damage. The limitation on compensatory damages in medical malpractice actions was determined to be arbi- trary and a special law in violation of the special legislation clause of the Illinois Constitution of 1970. The damages limit conferred a special privilege on medical mal- practice tortfeasors by insulating
jured plaintiffs. The Appellees in Lebron argue that the current legislation being challenged falls into the same category. “The cap constitutes special leg- islation because its restrictions on non-economic damages grant limited liability specially and with- out just cause to a select group of health care provider defendants at the expense of the most seriously injured victims. No other defen- dants in Illinois receive such special consideration, and no other injured plaintiffs suffer under such a special legal disability.” (Appellees Brief in Lebron, supra at 51). The Plaintiffs in Lebron make similar arguments that the statute is invalid on
equal protection grounds. Id. at 66. These precedents are fully analogous
to the statute at issue in Semsker because the per claim cap statute only applies to injured victims in medical negligence claims and not all tortfeasors just as the Illinois legislation carved out the legislation’s applicability to victims of medical malpractice only and not all tortfeasors. Accordingly, there is a strong argu-
ment that the Maryland legislation at issue is invalid special legislation and violative of equal protection under the Maryland constitution. The Maryland Court of Appeals likely will decide this extremely important issue in the near future. n
About the Author
Bruce M. Bender is a partner with the law offices of Axelson, Williamowsky, Bender & Fishman, P.C. in Rockville, MD and a member of the Board of Governors of MAJ. He has practiced with this firm since 1984 and special- izes in Workers’ Compensation, Auto Negligence, Medical Malpractice, Em- ployment Discrimination and Appellate work.. He has been recognized as one of Maryland and D.C.’s Super Lawyers in the area of workers’ compensation from 2007 to 2009.
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52 Trial Reporter Winter 2009
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