In “Federalism and medical malpractice reform” [NLJ, Aug. 29], Gibson, Dunn & Crutcher partner James Ho defended H.R. 5, the congressional medical-malpractice damages cap bill against some carefully selected constitutional attacks. Missing from his attempt to justify congressional authority to amend state tort law was any willingness to grapple with fundamental constitutional principles that stand as insuperable obstacles to what H.R. 5 would do.
A federal law capping compensatory damages in state tort actions brought by the most catastrophically injured victims of substandard medical treatment cannot comport with the Seventh Amendment, which guarantees the right to trial by jury. The courts apply a historical test to determine whether constitutional jury-trial rights are infringed. The most recent review of that historical record by the U.S. Supreme Court occurred in a 1998 unanimous opinion written by Justice Clarence Thomas, which found that, under the English common law that predated our Bill of Rights, jurors are “the judges of damages.” The Court then explained that any deviation from that venerable practice, which treats damages as part of the jury’s determination of the facts, fails to satisfy the “substance of the common law right” that the Seventh Amendment enshrined. Feltner v. Columbia Pictures Television Inc., 523 U.S. 340 (1998). It is worth mentioning that the winning advocate behind this argument was a lawyer named John Roberts Jr., now chief justice of the United States.
