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(e) Te provisions of this section do not apply to a verdict under Title 3, Subtitle 2A of this Article for damages in which the cause of action arises on or after January 1, 2005.

Md. Cts. & Jud. Procs. Code Ann. § 11-108(e). Title 3,

Subtitle 2A is the part of the Courts and Judicial Proceedings Article created by the General Assembly in the 1970’s to govern all medical malpractice actions. Under the former practice prescribed in Title 3, Subtitle 2A, all medical malpractice actions were subjected to mandatory arbitration, resulting in an arbitration award under § 3-2A-05. From that award, an appeal could be taken to the Circuit Court and proceed to a verdict under § 3-2A-06. Over the years since that time, the General Assembly created new waiver provisions in Title 3, Subtitle 2A -- § 3-2A-06A and § 3-2A-06B, to be precise -- to allow the parties to medical malpractice actions to avoid the delays and expense of mandatory arbitration, either jointly or unilaterally. In modern practice, mandatory arbitration is commonly waived, and actions proceed to judgment in the courts under either § 3-2A-06A or § 3-2A-06B. Because § 11-108(e) provides that the old cap does not

apply to verdicts under “Title 3, Subtitle 2A,” it effectively repealed the cap for all medical malpractice actions. In place of the old cap, House Bill 2 created a brand new

statutory cap on noneconomic damages for certain medical malpractice actions, Md. Cts. & Jud. Procs. Code Ann. § 3-2A-09 (hereinafter “§ 3-2A-09” or “the new cap”). Te “legislative history” of § 3-2A-09 is evident from the enrolled House Bill 2, available at bills/hb/hb0002e.pdf, where rejected language is stricken out and replaced by new language. Te enrolled version of House Bill 2 reveals that § 3-2A-09(a) was originally drafted in one form, and then that language was changed by the conference committee in its negotiations to reconcile the two competing versions of the bill:

(a) Tis section applies to a judgment under this

Subtitle for a cause of action arising on or after January 1, 2005.

* * *

(a) Tis section applies to an award under § 3-2A-05 of this Subtitle or a verdict under § 3-2A-06 of this Subtitle for a cause of action arising on or after January 1, 2005.

House Bill 2 (enrolled), at 24-25. As originally drafted,

therefore, § 3-2A-09(a) mirrored § 11-108(e) and applied to judgments in all medical malpractice actions under Title 3, Subtitle 2A. However, that broader language was stricken and replaced, narrowing the scope of the new cap only to “an award under § 3-2A-05 or a verdict under § 3-2A-06.” Te new, narrower cap was enacted into law, over a gubernatorial veto.

Semsker v. Lockshin Goes To the Jury Several years after the Special Session -- on March 30,

2007, to be precise -- Richard and Barbara Semsker filed their medical malpractice claims against Dr. Albert and the Lockshin professional corporation with the Director of the Maryland Health Care Alternative Dispute Resolution Office (HCADRO). Tereafter, on June 20, 2007, pursuant to

10 Trial Reporter / Summer 2009

Md. Code Cts. & Jud. Proc. § 3-2A-06B(b)(1), the Semskers filed a written Election to Waive Arbitration, thereby taking advantage of the unilateral waiver procedure added by the Legislature in 1995. Te next day, the Semskers initiated a lawsuit in the Circuit Court for Montgomery County. Following Richard Semsker’s death from complications of his metastatic malignant melanoma, the claims were converted to a survival action together with a wrongful death action brought on behalf of Mrs. Semsker and their daughters. Te Semskers represented by Pat Malone, Esq., of Patrick Malone & Associates, P.C., in Washington, D.C., went to trial before a Montgomery County jury in November of 2008. At trial, the Semskers proved through compelling expert testimony that the Defendants knew or should have known to recommend immediate excision of the untreated lower back mole in 2004, and that Mr. Semsker would have enjoyed a 95 percent chance of complete cure if the mole had been removed in the fall of 2004. After two weeks of trial, the jury returned a special verdict in favor of the Plaintiffs and finding a total of $5,805,000 in economic and noneconomic damages resulting from the Defendants’ negligence. Of that total sum, $1,000,000 represented non-economic

damages for the suffering and anguish of Richard Semsker during his lifetime as a result of the Defendant’s negligence, and a total of $2,000,000 represented solatium damages for Mr. Semsker’s surviving widow and two daughters. Post- verdict motions ensued. It should be noted that the Semskers have received additional assistance with respect to post-verdict proceedings from Ned Miltenberg, Esq., and the Center for Constitutional Litigation in Washington, DC.

Post-Verdict Issues and the Trial Court’s Decision

A number of issues were raised in the post-verdict motions

filed in Semsker v. Lockshin. Tis article will address just one post-verdict issue: Te Defendants demanded a reduction of the verdict to reflect the new cap statute, § 3-2A-09(b). In response, the Semskers argued that § 3-2A-09 did not apply in this instance, and if it did apply, it was unconstitutional as a violation of the Equal Protection Clause and other constitutional provisions. It is believed that these arguments raised an issue of first impression in Maryland. With respect to the applicability of the new cap, the argument is simple: by its explicit terms, the new cap applies only to “an award under § 3-2A-05 of this Subtitle or a verdict under § 3-2A-06 of this Subtitle for a cause of action arising on or after January 1, 2005.” Md. Cts. & Jud. Procs. Code Ann. § 3-2A-09(a). An “award under § 3-2A-05” is an award that would result from arbitration proceedings in the HCADRO. Because the Semskers exercised their right to waive their claims out of HCADRO before arbitration could occur, there was no “award under § 3-2A-05” to trigger the applicability of § 3-2A-09. Correspondingly, the Semskers argued, there also was

no “verdict under § 3-2A-06” in their litigation to trigger the applicability of § 3-2A-09. Because the Semskers had waived their action unilaterally, pursuant to the provisions of § 3-2A-06B, their action had proceeded in the Circuit Court under § 3-2A-06B, and not “under § 3-2A-06.” Indeed, § 3-2A-06B provides:

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