IN THE SUPREME COURT OF MISSOURI DEBORAH WATTS as Next ) Friend for NAYTHON KAYNE ) WATTS, ) ) Appellant/Cross-Respondent, ) ) v. ) SC91867 ) LESTER E. COX MEDICAL ) CENTERS, d/b/a FAMILY ) MEDICAL CARE CENTER, et al., ) ) Respondents/Cross-Appellants. ) MOTION FOR REHEARING Respondents/Cross-Appellants Lester E. Cox Medical Centers, et al., pursuant to Mo. R. Civ. P. 84.17, submit the following motion for rehearing. I. Grounds for Rehearing. Rehearing is appropriate in this case to address material matters of law or fact that were overlooked or misinterpreted, including the following: The 1945 Constitution is at issue in the case, and there is no question that the General Assembly had the power to alter or amend the common law in 1945 (just as it did in 1820). See, e.g., 287.010 et seq. ( The Workers Compensation Law ); DeMay v. Liberty Foundry Co., 37 S.W.2d 640 (Mo. 1931);
Controlling authority concerning limits on non-economic damages is not clearly erroneous or manifestly wrong, Eighty Hundred Clayton Corp. v. Dir. of Revenue, 111 S.W.3d 409, 411 (Mo. banc 2003), when numerous state and federal courts throughout the country have similarly held that the limits do not violate the jury trial right. See, e.g., Gourley ex rel. Gourley v. Neb. Methodist Health Sys., 663 N.W.2d 43, 75 (Neb. 2003); Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115, 1118-20 (Idaho 2000); Boyd v. Bulala, 877 F.2d 1191, 1196 (4 th Cir. 1989). II. Statement of Facts. On March 29, 2005, the Governor approved House Bill 393. See http://www.house.mo.gov/content.aspx?info=/bills051/bills/hb393.htm. House Bill 393, contains a modified limitation on non-economic damages for medical malpractice claims, and is codified at 538.210, RSMo (2011 Cum. Supp.), 1/ Following the jury verdict in this case, defendants submitted a proposed judgment reducing the non-economic damages in accordance with 538.210. 1/ All references to the Revised Statutes of Missouri will be to the 2011 Cumulative Supplement, unless otherwise noted. 2
The trial court, following the controlling authority of Adams v. Children s Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992) and Vincent by Vincent v. Johnson, 833 S.W.2d 859 (Mo. banc 1992), entered a judgment reducing non-economic damages in accordance with Missouri law. Plaintiff appealed, raising a multitude of constitutional claims and other arguments. The Attorney General entered the appeal on behalf of defendants because the State s Legal Expense Fund covers the judgment. 105.711.2(3)(b). III. Legal Basis for Rehearing. A. The 1945 Constitution Was Passed With the Clear Understanding that the General Assembly Had Power to Alter the Common Law. Although much focus has been placed on the Missouri Constitution adopted in 1820, it is not the 1820 Constitution that is at issue. Instead, it is the 1945 Constitution that is at issue, and what the jury trial language meant at that time. But even if the 1820 Constitution were at issue, the conclusion would be the same the General Assembly has the power to alter the common law. In 1945, the people of the State of Missouri passed the current Constitution, including the provision that the right of trial by jury as heretofore enjoyed shall remain inviolate. Mo. Const., Art. I 22(a). What did those words mean to the people when they were passed in 1945? This 3
question of historical context is important because it has long been recognized that [i]n placing a construction on a constitution, or any clause or part thereof, a court should look to the history of the times and examine the state of things existing when the constitution was framed and adopted, in order to ascertain the old law, the mischief and the remedy. State ex rel. O Connor v. Riedel, 46 S.W.2d 131, 133-34 (Mo. banc 1932); see Brown v. Carnahan, 2012 WL 3106754, 25 (Mo. banc 2012) (Fischer, J. Concurring) ( This view is based on the plain language... and the historical context in which it was adopted. ). When the Missouri Constitution was passed in 1945, the meaning of the jury trial right vis-à-vis legislative power to alter the common law was clear the General Assembly had the power to either alter or abrogate the common law. This was evident with the passage of the Workers Compensation Law. See 287.010 et seq.; DeMay v. Liberty Foundry Co., 37 S.W.2d 640 (Mo. 1931). It was in this context that the 1945 Constitution was passed by the people of the State of Missouri. Furthermore, even if we go back to the 1820 Constitution, the conclusion is the same. The territorial laws of Missouri, after all, expressly gave the legislature the power to alter or amend the common law, which defined the role and function of the jury prior to 1820. See Developments in the Law: The Civil Jury, 110 Harv. L. Rev. 1408 (May 1997) (noting that the 4
role of the jury is developed by common law and not dictated by any Constitution or Act). Specifically, the territorial laws provided that [t]he common law of England... shall be the rule of decision in this territory until altered or repealed by the legislature. 1 Terr. Laws. P. 436 1 (emphasis added). Based on this language from the territorial laws there is no doubt that in 1820 the people of the State of Missouri contemplated that the legislature would have the ability to alter, not just abrogate or repeal, the common law. Yet, there is no analysis of this critical provision, despite citation to the territorial laws for another principle. See Slip Op. at 8. It is also incorrectly assumed that prior to 1820 there was a clearly attached right to a jury trial for civil cases in common law and that the jury functioned solely as a decider of facts. The Missouri Constitution and the Seventh Amendment do not extend but preserve the right of jury trial as it existed in English history at some past time. James, Flemming, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655 (1963). Whether an action sounded in law or in equity was a blurred line that continued into American jurisdictions. Id. In regards to the jury s role as an arbitrator of fact in America, juries were empowered well into the 19 th century to not only decide questions of fact, but also questions of law. See Developments in the Law: The Civil Jury, 110 Harv. L. Rev. at 1418-19; see also Henderson, Edith Guild, The 5
Background of the Seventh Amendment, 80 Harv. L. Rev. 289, 300 (1966). Thus, despite the assumption that there was an easily delineated function of the jury prior to 1820, in fact there was no consensus on the precise extent of its power. Henderson, 80 Harv. L. Rev. at 299. Finally, there is no attempt to analyze the constitutionality of legislative limits under the Seventh Amendment, which was the only constitutional provision in 1820 dealing with the right to a jury trial. Indeed, the only right to a jury trial that existed before 1820 was spelled out by the United States Constitution, Parliamentary Acts in England (English Bill of Rights 1688 and The Act Abolishing Court of the Star Chamber, which are the same as a legislative acts), and that which was developed by common law. Thus, if Missouri protected the right to a jury trial as heretofore enjoyed, it could only refer to the right to a jury trial as dictated by the Seventh Amendment of the United States. Federal Appellate Courts have analyzed legislative caps under the Seventh Amendment and have repeatedly upheld their constitutionality. See Smith v. Botsford Gen. Hosp., 419 F.3d 513 (6 th Cir. 2005); Davis v. Omitowoju, 883 F.2d 1155 (3 rd Cir. 1989); Boyd v. Bulala, 877 F.2d 1191 (4 th Cir. 1989). If the Seventh Amendment was the only constitutional provision controlling jury trials in 1820 and the Missouri Constitution granted the right to a jury trial as heretofore enjoyed, it is absolutely necessary to analyze 6
the nature of that right within the context of the Seventh Amendment. This constitutes overlooking or misinterpreting a material matter of fact or law. B. The Decision in Adams v. Children s Mercy Hosp., Is Not Clearly Erroneous or Manifestly Wrong. There is also no question in this case that the decision in Adams v. Children s Mercy Hosp., which was followed by Vincent by Vincent v. Johnson, are on point. Thus, in order to overturn this controlling authority it must be clearly erroneous or manifestly wrong. Eighty Hundred Clayton Corp., 111 S.W.3d at 411. It is difficult, if not impossible, to perceive of a situation in which authority is not just erroneous or wrong, but clearly erroneous or manifestly wrong, when numerous other state and federal decisions have reached the same result. At best it would be questionable authority not a standard that is sufficient to overcome stare decisis. IV. Conclusion. For the foregoing reasons, this Court should rehear the appeal. 7
Respectfully submitted, CHRIS KOSTER Attorney General By:/s/ Jeremiah J. Morgan JEREMIAH J. MORGAN Deputy Solicitor General Missouri Bar No. 50387 P.O. Box 899 Jefferson City, MO 65102 (573) 751-1800; (573) 751-0774 (fax) Jeremiah.Morgan@ago.mo.gov and KENT O. HYDE Missouri Bar No. 32088 DAVID E. OVERBY Missouri Bar No. 38052 HYDE, LOVE & OVERBY, LLP 1121 South Glenstone Ave. Springfield, MO 65804 (417) 831-4046; (417) 831-4989 (fax) deoverby@cs.com kohyde@aol.com ATTORNEYS FOR RESPONDENTS 8
CERTIFICATE OF SERVICE I hereby certify that the foregoing was filed and served electronically via Missouri CaseNet on the 15 th day of August, 2012, to: Roger A. Johnson 510 West 6 th Street Joplin, MO 64801 Andre M. Mura 777 6 th Street, Suite 520 Washington, DC 20001 ATTORNEYS FOR APPELLANT /s/ Jeremiah J. Morgan Jeremiah J. Morgan Deputy Solicitor General 9