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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF VIRGINIA
`HARRISONBURG DIVISION
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`J.S., A MINOR, BY HEATHER LYNN
`SITES AND JARET W. SITES AS
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`NEXT FRIENDS,
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`Plaintiff
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`WINCHESTER PEDIATRIC
`CLINIC, P.C.,
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`Defendant
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`) Civil No. 5:19-CV-0097
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`) By: Michael F. Urbanski
`) Chief United States District Judge
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`MEMORANDUM OPINION
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`Plaintiff J.S., represented by next friends, filed a lawsuit alleging that health care
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`providers employed by defendant Winchester Pediatric Clinic, P.C. (“WPC”) were negligent
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`in their provision of care to him and that their negligence resulted in serious injury to him.
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`Because J.S. had previously settled a lawsuit against other defendants for $2 million, the
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`maximum amount of damages he could receive in a medical malpractice lawsuit capped under
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`Virginia Code § 8.01-581.15, he seeks a declaratory judgment that the damages cap is
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`unconstitutional. The court asked the parties to brief the issue of whether the constitutionality
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`of the malpractice award cap is ripe for adjudication. The parties, along with the
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`Commonwealth of Virginia which has appeared in the case, filed briefs on the issue of ripeness
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`and the court held a hearing on November 23, 2020. Having considered the briefs and the
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`argument presented at the hearing, the court finds that the matter is not ripe for declaratory
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`relief at this time and DENIES J.S.’s request for such relief.
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`Case 5:19-cv-00097-MFU Document 24 Filed 03/04/21 Page 2 of 18 Pageid#: 130
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`I.
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`Plaintiff’s complaint alleges the following facts. On February 2, 2010, when J.S. was 20
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`months old, the car in which he was riding was involved in an accident. J.S. was transported
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`to the hospital where he presented with cervical pain. An X-ray was taken which appeared
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`normal, and J.S. was discharged home. On February 8, 2010, J.S. saw his primary care physician
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`at WPC with complaints of neck pain and was noted as crying in pain. WPC referred J.S. to
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`the emergency department at the Winchester Medical Center. At that facility J.S. was examined
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`and a CT scan was taken and read as normal before he was discharged with a pediatric Aspen
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`collar. On February 11, 2010, J.S. returned to the Winchester Medical Center for an MRI of
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`his cervical spine which was unremarkable. On February 19, 2010, J.S.’s mother called WPC
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`and reported that J.S. was experiencing symptoms consistent with a spinal cord injury. On
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`February 22, 2010, J.S.’s mother again called defendant WPC and reported that J.S. was
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`experiencing symptoms consistent with a spinal cord injury, including that he would not walk.
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`He was seen by a healthcare provider at WPC who referred him to physical therapy.
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`Over the next couple of years, J.S. developed chronic health and developmental
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`problems including problems with his gait, gross and fine motor development, balance, tone,
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`respiratory issues, and an overall failure to thrive. On May 8, 2012, J.S. was seen by a healthcare
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`provider employed by WPC where he showed signs of a spinal cord injury, including an
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`abnormal gait. He was referred to physical therapy.
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`In March 2015, J.S. had a CT scan and MRI of his cervical spine at West Virginia
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`University Hospital which showed severe stenosis at the craniocervical junction resulting from
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`an alignment abnormality of the odontoid process, severe spinal cord compressions, spinal
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`2
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`cord signal changes, and subluxation at the C1-C2 level. He immediately underwent a C1-C2
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`fusion. Since then, his health has improved, but he still suffers from severe and permanent
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`neurological deficits. J.S. asserts that his lifelong medical costs stemming from the accident
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`will be more than three million dollars.
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`J.S. alleges that he sustained cervical injuries in the car accident and that the injuries
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`began a cervical spinal process that continued to worsen over the next five years. He asserts
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`that had WPC agents or employees recognized his neurological symptoms and promptly
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`referred him to the appropriate health care providers, his injuries likely would not have been
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`permanent or would have been significantly lessened. Thus, he brings negligence claims against
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`WPC.
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`In 2018, J.S. brought a lawsuit in Winchester Circuit Court against WPC and its
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`employee physicians and also named the radiologists as defendants. In that lawsuit, the primary
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`allegation was that the radiologists interpreted a CT scan and MRI scan as normal when the
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`studies showed evidence of a spinal cord injury. J.S. alleged sparse allegations against WPC
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`and its pediatrician defendants. (Ex. A to ECF No. 19-1.) The proceeding was non-suited on
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`June 21, 2019. See Sites v. Winchester Pediatric Clinic, No. CL18000303-00 (Va. Cir. Ct. June
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`21, 2019).
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`J.S. next filed a lawsuit in this court, naming Winchester Radiologists, P.C., as
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`defendants. See J.S. v. Winchester Radiologists, P.C., No. 5:18-cv-75 (W.D. Va., filed May 11,
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`2018). The radiologist defendants settled the case for the full amount of the Virginia medical
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`malpractice cap. J.S. next filed the instant lawsuit against WPC alleging malpractice, and also
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`seeking a declaratory judgment that the Virginia medical malpractice cap is unconstitutional.
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`3
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`Case 5:19-cv-00097-MFU Document 24 Filed 03/04/21 Page 4 of 18 Pageid#: 132
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`At issue is whether the request for relief under the Declaratory Judgment Act is ripe
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`for adjudication. The Commonwealth filed a notice of intervention, asserting that because the
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`issue of the application of the medical malpractice statutory cap will not be implicated unless
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`liability is first determined against WPC in an amount exceeding two million dollars, briefing
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`of the constitutionality of the statute should be stayed until liability is determined. ECF No.
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`17. Plaintiff J.S. contends that the issue is ripe. ECF No. 18.
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`Defendant WPC contests liability and damages and argues that the issue is not ripe
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`until liability has been determined. More particularly, WPC denies that its employees breached
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`the standard of care or were negligent, or that their acts or omissions were the proximate cause
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`of J.S.’s injuries, and asserts that J.S.’s injuries were caused by the intervening, superseding
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`negligence of other healthcare providers such as the radiologists. WPC also contests that J.S.’s
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`damages exceed the amount recovered in settlement from the other defendants. ECF No. 19.
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`II.
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`The Declaratory Judgment Act, 28 U.S.C. § 2201, provides in relevant part the
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`following:
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`In a case of actual controversy within its jurisdiction, . . . any court of the United
`States, upon the filing of an appropriate pleading, may declare the rights and
`other legal relations of any interested party seeking such declaration, whether or
`not further relief is or could be sought. Any such declaration shall have the force
`and effect of a final judgment or decree and shall be reviewable as such.
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`J.S. seeks a declaratory judgment that Virginia Code § 8.01-581.15 is unconstitutional
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`because it violates the Seventh Amendment of the United States Constitution; the guarantees
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`in the Fourteenth Amendment of the United States Constitution to due process, access to the
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`courts, and equal protection; the Virginia constitutional guarantee of equal protection; the
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`4
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`separation of powers mandated by the Virginia Constitution; and the prohibition against
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`special legislation mandated by art. IV of the Virginia Constitution.
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`The Virginia malpractice damages cap statute provides the following:
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`In any verdict returned against a health care provider in an action for
`malpractice where the act or acts of malpractice occurred on or after August 1,
`1999, which is tried by a jury or in any judgment entered against a health care
`provider in such an action which is tried without a jury, the total amount
`recoverable for any injury to, or death of, a patient shall not exceed . . . $2
`million.
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`Va. Code Ann. § 8.01-581.15. The statute has been found constitutional by both the Fourth
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`Circuit Court of Appeals and by the Supreme Court of Virginia. See Boyd v. Bulala, 877 F.2d
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`1191, 1195-97 (4th Cir. 1988) (citing Etheridge v. Medical Center Hospitals, 237 Va. 87, 376
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`S.E.2d 525 (1989)) (finding statute does not violate the right to trial by jury, separation of
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`powers, due process or equal protection under the federal or Virginia constitutions and does
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`not violate the anti-discrimination or special legislation clauses of the Virginia Constitution);
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`Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1, 509 S.E.2d 307 (1999)
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`(upholding constitutionality of damages cap)).
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`J.S. argues that since Boyd was decided, “the relevant constitutional principles have
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`received significant elaboration that differ from that decision’s understandings.” ECF No. 18
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`at 16. He points to three Supreme Court decisions he claims reveal a different attitude about
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`applying Bill of Rights provisions to the states: Ramos v. Louisiana, 140 S.Ct. 1390 (2020)
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`(discussing Sixth Amendment unanimity in jury trials); Timbs v. Indiana, 139 S.Ct. 682 (2019)
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`(discussing Eighth Amendment Excessive Fines Clause) and McDonald v. Chicago, 561 U.S.
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`742 (2010) (discussing the Second Amendment). He appears to anticipate reviving the
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`5
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`argument that the Seventh Amendment right to a jury trial is violated by the statutory damages
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`cap.
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`III.
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`For a district court to have jurisdiction to enter a declaratory judgment, two conditions
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`must be satisfied. The dispute must be a “case or controversy” in the context of Article III of
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`the Constitution, and the trial court, in its discretion, must be satisfied that declaratory relief
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`is appropriate. White v. National Union Fire Ins. Co. v. Pittsburgh, Pa., 913 F.2d 165, 167 (4th
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`Cir. 1990).
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`A.
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`The test for a “case or controversy” focuses on whether the dispute “‘is definite and
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`concrete, touching the legal relations of parties having adverse legal interests.’” White, 913
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`F.2d at 167 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)). “‘It must
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`be a real and substantial controversy admitting of specific relief through a decree of a
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`conclusive character, as distinguished from an opinion advising what the law would be upon
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`a hypothetical state of facts.’” Id. (quoting Haworth, 300 U.S. at 240-41). The difference
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`between an abstract question and a controversy contemplated by the Declaratory Judgment
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`Act is one of degree and there is no precise test in every case for determining whether such a
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`controversy exists. Golden v. Zwickler, 394 U.S. 103, 108 (1969). “The question is ‘whether
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`the facts alleged, under all the circumstances, show that there is a substantial controversy,
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`between parties having adverse legal interests, of sufficient immediacy and reality to warrant
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`the issuance of a declaratory judgment.’” White, 913 F.2d at 167-68 (quoting Maryland
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`Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).
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`6
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`In addition to the restriction of jurisdiction to “cases or controversies,” federal courts
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`avoid deciding constitutional issues unless such a decision is unavoidable. Poe v. Ullman, 367
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`U.S. 497, 503 (1961). “[T]he adjudicatory process is most securely founded when it is exercised
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`under impact of a lively conflict between antagonistic demands, actively pressed, which make
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`resolution of the controverted issue a practical necessity.” Id. The issues of whether a case or
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`controversy exists and whether it is necessary to determine a constitutional question “press
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`with special urgency in cases challenging legislative action or state judicial action as repugnant
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`to the Constitution.” Id.
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` “‘This court can have no right to pronounce an abstract opinion upon the
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`constitutionality of a State law. Such law must be brought into actual or threatened operation
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`upon rights properly falling under judicial cognizance, or a remedy is not to be had here.’” Id.
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`at 504 (quoting State of Georgia v. Stanton, 73 U.S. 50, 75 (6 Wall.) (1867); Cherokee Nation
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`v. State of Georgia, 30 U.S. 1, 75 (5 Pet.) (1831) (Thompson, J., dissenting); State of New
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`Jersey v. Sargent, 269 U.S. 328, 331(1926) A party seeking to annul legislation on constitutional
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`grounds must show not only that the statute is invalid, but that “he has sustained or is
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`immediately in danger of sustaining some direct injury as the result of its enforcement.” Id.
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`(citing Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)). See also El Dia,
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`Inc., v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992) (“Uncertain questions of
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`constitutional law should be addressed only when absolutely necessary.”).
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`J.S. asserts that he is entitled to have the court address the constitutionality of the
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`Virginia medical malpractice cap before he proceeds with his negligence lawsuit against WPC.
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`He first argues that the immediacy and reality of the need for a declaratory judgment is
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`7
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`established by the imminent prospect of a medical malpractice trial and the fact that he
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`anticipates that WPC will move to dismiss his case based on the damages cap. However, at
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`this point in the litigation, if the court were to declare the statute unconstitutional, J.S. would
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`not be entitled to relief and any opinion by the court would merely be “advising what the law
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`would be” if he were to prevail on his negligence cause of action. Absent a determination by
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`a factfinder that WPC is liable for his injuries, J.S. cannot show that he has sustained or is
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`immediately in danger of sustaining a direct injury as the result of the damages cap.
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`J.S. makes a similar argument with regard to standing.1 The question of whether a party
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`has standing focuses on “‘[w]hether a party has a sufficient stake in an otherwise justiciable
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`controversy to obtain judicial resolution of that controversy.’” Lott v. Scottsdale Ins. Co., 811
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`F.Supp.2d 1224, 1228-29 (E.D. Va. 2011) (quoting Sierra Club v. Morton, 405 U.S. 727, 731
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`(1972)). To establish standing, a litigant must show (1) an injury in fact; (2) that is fairly
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`traceable to the defendant’s conduct; and (3) that is likely to be redressed by a favorable
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`decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). An “injury in fact” is
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`one that is concrete and particularized and “actual or imminent, not ‘conjectural’ or
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`1 The doctrines of “standing,” “ripeness,” and “mootness” have evolved to address the notion that “federal
`judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one
`who is himself immediately harmed, or immediately threatened with harm, by the challenged action.” Poe, 367
`U.S. at 503-04. The three doctrines “are simply subsets of Article III’s command that the courts resolve disputes
`rather than emit random advice.” Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991). “Standing” ensures that
`the party seeking relief has a personal stake in the outcome. Gill v. Whitford, 138 S.Ct. 1916 (2018). “Ripeness”
`can be characterized as “standing on a timeline” and concerns the appropriate timing of judicial intervention
`to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract
`disagreements. J.E.C.M. by and Through His Next Friend Saravia v. Lloyd, 352 F.Supp.3d 559, 576 (E.D. Va.
`2018) (citing Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc); In
`re Naranjo, 768 F.3d 332, 347 (4th Cir. 2014); Abbot Labs. v. Gardner, 387 U.S. 136, 148 (1967)). “[M]ootness
`ensures that the dispute is sufficiently concrete through all stages of the proceeding; ‘[a] case that becomes
`moot at any point … is no longer a Case or Controversy for purposes of Article III.’” Id. (quoting United States
`v. Sanchez-Gomez, 138 S.Ct. 1532, 1537 (2018)).
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`8
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`Case 5:19-cv-00097-MFU Document 24 Filed 03/04/21 Page 9 of 18 Pageid#: 137
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`‘hypothetical.’” Id. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). At this
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`point, J.S. cannot show that he has an actual injury because a finding has not been made that
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`WPC is liable for his injuries such that he would be entitled to compensation were it not for
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`the damages cap. Accordingly, he lacks standing to challenge the damages cap.
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`B.
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`J.S. also contends that the constitutionality of the damages cap is ripe for adjudication.
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`“The issue of ripeness entails an analysis considering the fitness of the issues before the court,
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`as well as the hardship that the parties will experience if the court withholds consideration of
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`the dispute.” Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 270 (2013) (citing
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`Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdown, LLC, 713
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`F.3d 187, 195 (4th Cir. 2013)). “A case is fit for judicial decision when the issues are purely
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`legal and when the action in controversy is final and not dependent on future uncertainties.”
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`Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (citing Charter Fed. Sav. Bank v. Office of
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`Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992)). “Stated alternatively, ‘[a] claim is not
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`ripe for adjudication if it rests upon contingent future events that may not occur as anticipated,
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`or indeed may not occur at all.’” Scoggins, 718 F.3d at 270 (citing Texas v. United States, 523
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`U.S. 296, 300 (1998) and Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d 597, 602
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`(4th Cir. 1997)).
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`In J.S.’s case, the issue of the constitutionality of the damages cap is not fit for
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`adjudication because it is not purely a legal issue. Rather, the question hinges upon a future
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`factual determination that health care professionals working for WPC caused or exacerbated
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`J.S.’s injuries. That finding is uncertain at this point. If a factfinder determines that WPC was
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`9
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`Case 5:19-cv-00097-MFU Document 24 Filed 03/04/21 Page 10 of 18 Pageid#: 138
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`not liable for J.S.’s injuries, or that the injuries did not exceed the damages cap, the court will
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`not need to address the constitutionality of the damages cap. Thus, the court finds that this
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`issue does not meet the first prong of the ripeness test.
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`The second, or hardship, prong of the ripeness doctrine is measured “by the immediacy
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`of the threat and the burden imposed on the [plaintiff] who would be compelled to act under
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`threat of enforcement of the challenged law.” Charter Federal Sav. Bank, 976 F.2d at 208-09.
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`In considering the hardship to be balanced against the fitness of the issues for review, a court
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`may consider the cost of delaying review. Doe v. Virginia Dept. of State Police, 713 F.3d 745,
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`759 (4th Cir. 2013) (citing Miller, 462 F.3d at 319). “A case will cause hardship when it
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`“create[s] adverse effects of a strictly legal kind, that is, effects of a sort that traditionally would
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`have qualified as harm.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
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`Examples of legal harms include commanding someone to do something or refrain from doing
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`something, granting, withholding, or modifying any formal legal license, power, or authority,
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`or subjecting someone to civil or criminal liability. Id. (paraphrasing United States v. Los
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`Angeles & Salt Lake R. Co., 273 U.S. 299, 309-10 (1927)). In Ohio Forestry Ass’n, the Court
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`noted that it has not considered litigation cost saving sufficient by itself to justify review of a
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`case that is otherwise unripe. Id. at 735.
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`Where threatened action by the government is concerned, a plaintiff is not required to
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`expose himself to liability before bringing a lawsuit to challenge the basis for the threat.
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`MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (citing as examples Terrace
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`v. Thompson, 263 U.S. 197 (1923) (addressing constitutionality of Anti-Alien Land Law prior
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`to parties entering lease agreement when entering lease first would subject them to civil and
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`10
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`criminal penalties); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (evaluating
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`constitutionality of zoning ordinance prior to any violation because ordinance deterred buyers
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`from purchasing parcel of land subject to ordinance’s restrictions and thus greatly reduced its
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`value); Ex parte Young, 209 U.S. 123 (1908) (allowing constitutional challenge to Minnesota
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`law imposing penalties for violation of an order setting rates for transportation when violation
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`would result in a penalty so drastic that railways would risk confiscation of their property and
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`imprisonment of their personnel for violations); Steffel v. Thompson, 415 U.S. 452 (1974)
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`(allowing constitutional challenge to statute outlawing distribution of handbills where plaintiff
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`had twice been warned by police to stop handing out literature or he would be prosecuted)).
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`See also Citizens United v. Fed. Election Comm., 558 U.S. 310 (2010) (granting declaratory
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`relief to non-profit corporation that feared it could be subject to civil and criminal penalties if
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`it released a film about a candidate seeking nomination in an upcoming election).
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`Similarly, when a plaintiff’s self-avoidance of imminent injury is coerced by the
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`threatened action of a private party, rather than the government, lower federal courts and state
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`courts have accepted jurisdiction in Declaratory Judgment Act cases. MedImmune, 549 U.S.
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`at 130 (citing as examples Keener Oil & Gas Co. v. Consolidated Gas Util. Corp., 190 F.2d
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`985 (10th Cir. 1951) (noting that in a breach of contract claim, a party need not wait until he
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`has committed an act which the other party asserts will constitute a breach, but may seek relief
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`by declaratory judgment and have controversy adjudicated to avoid risk of damages or other
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`untoward consequences); American Machine & Metals, Inc. v. De Bothezat Impeller Co., 166
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`F.2d 535 (2d Cir. 1948) (finding a justiciable controversy when future exercise by plaintiff of
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`its right to terminate contract under which it paid a license fee to manufacture and sell
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`11
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`defendant’s product would result in defendant suing plaintiff to stop manufacture and sale of
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`plaintiff’s own product); Hess v. Country Club Park, 2 P.2d 782, 783 (Cal. 1931) (finding
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`declaratory judgment appropriate when forcing property owner to test validity of restrictive
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`covenant by making desired improvements to his property could result in his forfeiting his
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`investment or title to his land in order to obtain an adjudication of his rights)).
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`J.S. does not face the sort of hardship contemplated by the cases cited above. He does
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`not run the risk of incurring civil or criminal liability for any action he may take or not take,
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`and he is not contemplating breaching a contract, rule, or regulation and incurring costs or
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`penalties based on such action or inaction.
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`J.S. contends that he will suffer a hardship if the constitutionality of the damages cap
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`is not adjudicated before the liability determination is made, because he will not have a cause
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`of action and therefore will lose his constitutional right of access to courts. However, J.S. is
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`not at risk of losing his right of access to the court, as he is free to pursue his case against
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`WPC and seek a jury verdict on liability. To be sure, J.S. does run the risk of incurring the
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`costs of a trial, obtaining a favorable jury verdict, and not being able to collect damages from
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`WPC if the court finds that the damages cap remains constitutional. However, saving the cost
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`of litigation is not sufficient by itself to justify review in a case that is otherwise unripe. Ohio
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`Forestry Ass’n, Inc., 523 U.S. at 735.
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`Based on the foregoing, the court finds that the issue of the constitutionality of the
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`Virginia medical malpractice cap is not ripe for adjudication. The court finds further support
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`for this conclusion in the cases from other jurisdictions cited by the parties and discussed
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`below.
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`12
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`J.S. points to three cases where he asserts that courts decided declaratory judgment
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`actions in circumstances similar to his. In Franklin v. Mazda Motor Corp., 704 F.Supp. 1325
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`(D. Md. 1989), a plaintiff in a products liability action sought a declaratory judgment that a
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`Maryland cap on noneconomic damages2 of $350,000 was unconstitutional. Aside from the
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`request for declaratory judgment, the plaintiff’s complaint consisted of one count alleging
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`strict liability for a malfunctioning automobile which caused her damages, including pain and
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`suffering. The plaintiff sought $750,000 in damages, and all but approximately $20,000 were
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`claimed by her as compensation for noneconomic damages. Id. at 1327.
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`Defendant Mazda argued that the issue of the constitutionality of the damages cap
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`would not become ripe until a jury returned a verdict for noneconomic damages greater than
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`$350,000. Id. at 1328. The State of Maryland intervened, agreeing that the issue of the statute’s
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`constitutionality was not ripe. Franklin disagreed, as summarized by the district court:
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`Plaintiff responds that the question must be resolved now.
`Because the law, as it now stands, limits Franklin to a claim of
`$350,000 for noneconomic damages, her counsel’s presentation
`to the jury might well be affected. She questions whether her
`counsel is entitled to ask a jury for more than the law allows. She
`also argues that the jury must be instructed as to the cap limit.
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`Id. The district court seized on the last argument, finding that the language of the statute--
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`“[i]n any action for damages for personal injury … an award for noneconomic damages may
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`not exceed $350,000,” (quoting Courts Art., § 11-108(b), Md. Code (emphasis added by
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`Maryland court))--indicated that the jury, as trier of fact, needed to be instructed about the
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`2 Noneconomic damages as defined in the statute include pain, suffering, inconvenience, physical impairment,
`disfigurement, loss of consortium, or other non-pecuniary damages. Franklin, 704 F. Supp. at 1327 (citing
`Courts Art., § 11-108(a) Md. Code).
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`Case 5:19-cv-00097-MFU Document 24 Filed 03/04/21 Page 14 of 18 Pageid#: 142
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`limit prior to rendering its judgment and awarding noneconomic damages. Id. at 1328-29.
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`The court concluded:
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`In this case, the issue of damages for pain and suffering is not
`hypothetical; plaintiff has been injured and contends that the
`damages sustained for pain and suffering exceed the cap amount.
`The Court and jury are presented with the real question whether
`the statute is applicable. Because the question is of the type
`ordinarily decided by courts in preparation for trial and will have
`to be resolved to instruct the jury, it is ripe in the legal sense for
`decision at this time.
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`Id. at 1329. In this respect, the Maryland statute differs markedly from Va. Code § 8.01-581-
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`15. As the Virginia Supreme Court held in Etheridge,
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`The limitation on medical malpractice recoveries contained in
`Code § 8.01-81.15 does nothing more than establish the outer
`limits of a remedy provided by the General Assembly. A remedy
`is a matter of law, not a matter of fact. A trial court applies the
`remedy’s limitation only after the jury has fulfilled its fact-finding
`function. Thus, Code § 801-581.15 does not infringe upon the
`right to a jury trial because the section does not apply until after
`a jury has completed its assigned function in the judicial process.
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`237 Va. at 96, 376 S.E. 2d at 529. Citing Duke Power Co. v. Carolina Environmental Study
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`Group, Inc., 438 U.S. 59 (1978), and Pacific Gas & Elec. Co. v. State Energy Resources
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`Conservations and Dev. Comm’n, 461 U.S. 190 (1983), the Franklin court concluded “[i]n the
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`present case, no amount of fact-finding or delay would aid the Court in resolution of what
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`essentially is a purely legal question.” 704 F. Supp. at 1329.3 In contrast, as there has been no
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`liability determination as to WPC in this case, fact-finding remains to be done here.
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`3 In Duke Power, the Supreme Court found a constitutional challenge to a federal statute placing a limitation
`on damages for nuclear accidents to be ripe, even though no nuclear accidents had yet occurred. Even without
`a nuclear accident, the Court found immediate adverse effects from operation of nuclear plants, including
`thermal and aesthetic consequences to lakes and the emission of nonnatural radiation, to be “sufficiently
`concrete to satisfy constitutional requirements.” 438 U.S. at 73. As to ripeness, the Court concluded that delayed
`resolution of the legal issue would frustrate one of the key purposes of the statute – “the elimination of doubts
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`J.S. also cites Simms v. Holiday Inns, Inc., 746 F.Supp. 596 (D. Md. 1990), where the
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`district court determined on summary judgment that the Maryland cap on noneconomic
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`damages was applicable to wrongful death actions and found it to be constitutional. However,
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`the court did so without elaborating on its reasons for deciding the issue was ripe and did not
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`appear to weigh the factors that determine justiciability. Thus, the opinion offers limited
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`support to J.S.’s position on the issue.
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`J.S. cites a third case, Arbino v. Johnson & Johnson, No. 3:06CV40010, 2006 WL
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`1720538 (N.D. Ohio June 20, 2006), where the district court certified to the Ohio Supreme
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`Court the question of the constitutionality of a package of restrictions on tort actions passed
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`by the Ohio legislature. Id. at *2. However, although J.S. is correct that the court addressed
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`the issue early in the litigation because it implicated the financial impact upon both parties and
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`negatively impacted settlement efforts, the court certified the question to the Ohio court rather
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`than rule on the constitutionality of the question directly, noting the following:
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`[W]arnings against premature adjudication of constitutional questions bear
`heightened attention when a federal court is asked to invalidate a State’s law, for
`the federal tribunal risks friction-generating error when it endeavors to construe
`a novel state Act not yet reviewed by the State’s highest court. . . . Therefore,
`taking advantage of certification to a state court may greatly simplify an ultimate
`adjudication in federal court.
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`concerning the scope of private liability in the event of major nuclear accident,” id. at 82, which was critical
`given the position of the utility industry that the liability cap was essential to construction and continued
`operation of nuclear power plants. Likewise, in Pacific Gas & Elec., the Court found ripe the question whether
`a California statute placing a moratorium on nuclear power plant construction was preempted by the Atomic
`Energy Act of 1954, concluding that “[t]o require the industry to proceed without knowing whether the
`moratorium is valid would impose a palpable and considerable hardship on the utilities, and may ultimately
`work harm on the citizens of California.” 461 U.S. at 202-03. In each of these cases, the Court found that
`delaying resolution of an entirely legal issue had immediate consequences for citizens and the nuclear power
`industry. Here, in contrast, those consequences only arise if a jury makes a factual determination that WPC is
`liable for J.S.’s injuries in an amount exceeding the damages cap.
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`15
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`Case 5:19-cv-00097-MFU Document 24 Filed 03/04/