Case takes aim at cap on damages: Plaintiff’s lawyer sees ruling as ‘stepping-stone’ to appellate decision

Brendan Kearney
Daily Record Legal Affairs Writer

A Baltimore judge has rejected a constitutional challenge to the state’s longstanding cap on pain and suffering damages, setting the stage for a planned appeal.

Lawyers for Calvin L. Allen of Glen Burnie, whose jury verdict of $10.2 million was capped at $632,500, argue that the limitation has not accomplished its legislative objective — to reduce insurance rates for doctors — since its passage 22 years ago.

They also claim the cap is pre-empted by the federal Americans with Disabilities Act, that it violates constitutional guarantees of equal protection and due process, and that it deprives the jury of information necessary render an informed and “undistorted” verdict.

But lawyers representing the University of Maryland Medical System Corp. contended such arguments have been repeatedly dismissed by the state’s appellate courts — including in the 1992 Court of Appeals decision Murphy v. Edmonds — and should instead be aired with the legislature. The General Assembly set the ceiling for pain and suffering damages at $350,000 in 1986 and has allowed it to increase annually since 1994.

Ruling from the bench Tuesday afternoon, Baltimore City Circuit Judge Carol E. Smith rejected the challenge. She reduced Allen’s award, for penile injuries he suffered following a pancreatic procedure, to $12,500 in medical expenses and $620,000 in non-economic damages.

Thomas C. Summers, one of Allen’s attorneys, called the ruling “disappointing” but “not surprising.”

“So many times, a ruling like this from the trial court, however it may turn out to be, is a stepping stone to an eventual appellate decision,” he said.

Summers said this is the first challenge The Law Offices of Peter G. Angelos PC has mounted on this issue and attributed it to the nature of Allen’s injury and the drastic reduction of the verdict.

Neal M. Brown, an attorney for the hospital, said the constitutionality of the cap is “well-settled Maryland law” and that Allen’s bid to overturn it was the first such effort he’s faced in his years of practice. However, Brown agreed that the specifics of the case made it a more likely candidate than most.

“Most people don’t have the money to invest in something like this. Most verdicts aren’t worth challenging at that level,” said Brown, of Waranch & Brown LLC in Lutherville. “With this kind of verdict and this firm, the two things add up to, ‘Let’s take a flyer here.’”

After a three-week trial before Judge Smith and five days of deliberation, the jury remained split as to the liability of the surgeon, Dr. Robert C. Moesinger, but was unanimous that the partial auto-amputation of Allen’s penis was caused by the negligence of his nurses at the University of Maryland Medical Center.

Allen alleged inadequate attention to the Foley catheter inserted into his urethra post-surgery allowed pressure on the penis to build, resulting in tissue death and Allen’s inability to urinate normally and have sexual relations.

Hospital to seek new trial

While Allen’s attorneys plan to appeal Smith’s ruling, the judge will first consider the hospital’s motion for a new trial, which is due later this month, Brown said. And a new trial with respect to the claims against Moesinger has not yet been scheduled, according to Summers.

“The battle is just beginning,” said Brown. “We think we’re going to win this case.”

Summers said he is “optimistic but realistic” about his client’s chances on appeal.