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Davis v. Omitowoju

argued: April 25, 1989.


On Appeal from the District Court for the Virgin Islands, D.C. No. 86-91.

Hutchinson, Cowen, and Garth, Circuit Judges.

Author: Garth


GARTH, Circuit Judge

This appeal and cross appeal present us with a relatively new issue involving the applicability of the Seventh Amendment to a medical malpractice liability cap.

The plaintiff, Theresa Davis, ("Davis") obtained a jury verdict in her favor and against Doctor Akin Omitowoju ("Doctor") in the sum of $640,000. The Virgin Islands legislature in 1975 capped medical malpractice verdicts at $250,000 for non-economic damages. 27 V.I.C. § 166b (1975).*fn1 Accordingly, Judge Christian, on June 14, 1988, reduced the verdict in Davis' favor to $250,000 for her non-economic damages and $153,294.92 for her economic damages (medical expenses, loss of wages, etc.) to a judgment totalling $403,294.92.

The Doctor appeals the judgment on a number of grounds at 88-3754. Davis cross-appeals at 88-3802 seeking the full benefit of the jury verdict and charging that the cap legislation, 27 V.I.C. § 166b, will not withstand constitutional scrutiny particularly with respect to the Seventh Amendment.

Because of the importance of the Seventh Amendment issue and the dearth of authority addressing that issue, we will analyze that question first, and in so doing will affirm (albeit based on a different analysis) the district court's order which rejected Davis' Seventh Amendment challenge to the legislation. We will then discuss the other issues raised on appeal by the Doctor, and while we agree with the district court's decisions in those respects as well, we will nevertheless vacate the judgment and remand for correction of a technical error in the calculation of Davis' damages.


Davis injured her knee when she slipped and fell at her place of employment. She was treated by Dr. Omitowoju. The Doctor suggested to Davis that arthroscopic surgery would help her. Davis testified that the Doctor told her that he would not cut open her knee, but would only perform arthroscopy, a procedure that involves a small puncture of the knee. (A. 212).

At 10 p.m. on the night before the operation, while Davis lay in bed in the hospital, a nurse brought Davis a consent form for her to sign. The Doctor was not present and the nurse did not explain the form to Davis. The description of the procedure was handwritten and largely illegible. (A. 585). Davis, who has a seventh grade education, testified that she recognized the word "arthroscopy" and signed the permit.

As it turned out the handwriting on the form stated "Arthroscopy and excision of mass right knee and possible arthrotomy."*fn2 The form itself stated "Type of Surgery or treatment to be filled in by Physician in Terms Understandable by Patient." In fact the operation consisted of arthroscopy, and an arthrotomy during which the Doctor removed Davis' medial meniscus (knee cartilage) shaved articular cartilage from the bones of her knee, and also drilled into her knee. (A. 266-67).

Davis was dissatisfied with the results of her operation. She was subsequently treated and operated upon a number of times by a number of different doctors. On March 11, 1986 Davis filed a complaint with the Virgin Islands Malpractice Review Committee, as required by the Virgin Islands Malpractice Act, 27 V.I.C. § 166i(b). The Committee found that no malpractice had occurred. Davis then filed suit in the district court. A trial commenced on May 18, 1988 and on May 20, 1988 the jury rendered a verdict in the amount of $650,000 in favor of Davis.

After the jury's verdict the district court requested that both sides submit briefs in order to conform the verdict to 27 V.I.C. § 166(b) (1975) which reads as follows:

The total amount recoverable for any injury of a patient may not exceed two hundred and fifty thousand dollars ( $250,000) plus actual expenses up to the time of trial not paid or payable or reimbursed from any other source for reasonable and necessary medical care, custodian care and/or rehabilitation services, and estimated future expenses not reimbursable or payable from any other source for care and/or rehabilitation services for each anticipated year of need; and lost earnings. The recovery in an action for wrongful death of a patient shall be as provided in 5 Virgin Islands Code, Section 76.

On June 3, 1988, Davis submitted a motion seeking to have the district court declare the limitation on the jury's damage award unconstitutional. Thereafter, the district court issued an opinion which concluded that the damage award should be reduced to $403,294.92. Davis then sought reconsideration, requesting the court to address her constitutional arguments. The district court denied the motion for reconsideration stating rather cryptically:

the Court having considered the motion of plaintiff to reconsider its Order entered June 14, 1988, and the Court bearing in mind that it was within the competence of the Legislature of the Virgin Islands in waiving the immunity from tort actions granted its employees by the Revised Organic Act, to do so on specific terms and conditions,

It is ORDERED that the motion of plaintiff for reconsideration be, and the same is, hereby DENIED.

(A. 600).*fn3

Concluding that Davis' constitutional claims are properly before us on appeal, we turn first to them.*fn4


In her cross-appeal, Davis raises three constitutional objections to the reduction of the jury verdict. She claims that the court's order violates due process, equal protection, and her right to a trial by jury under the Seventh Amendment.

We find no merit in Davis' first two claims. As the Fourth Circuit stated in disposing of both the due process and equal protection claims advanced in Boyd v. Bulala, 877 F.2d 1191, Slip Op. (4th Cir. 1989), "a limitation on a common law measure of recovery does not violate a fundamental right or create a suspect classification." Davis did not assert any fundamental right to an uncapped jury verdict, nor could she. Nor has Davis attempted to, nor could she, style herself and all malpractice claimants as a suspect class. Any claim that she asserts must therefore be reviewed under the rational basis test. Id. at 11.

Clearly the Virgin Island's decision to curb, through legislation, the high costs of malpractice insurance and thereby promote quality medical care to the residents of the islands, provides a rational basis for capping the amount of damages that can be awarded a plaintiff.*fn5 Indeed, other courts of appeal which have decided due process and equal protection arguments against damage award caps have so held. Lucas v United States, 807 F.2d 414 (5th Cir. 1986); Hoffman v. United States, 767 F.2d 1431 (9th Cir. 1985); Continental Insurance Co. v. Illinois Department of Transportation, 709 F.2d 471, 475 (7th Cir. 1983). This leaves us with the argument most strongly emphasized by Davis and on which Davis relies virtually to the exclusion of her other two constitutional claims -- that the Seventh Amendment precludes any reduction in the award of damages found by a jury.*fn6


The text of the Seventh Amendment reads as follows:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.

Davis focuses on the second clause of the Amendment: "no fact tried by a jury shall be otherwise reexamined in any court . . .". She argues that when the district court conformed the jury's verdict to the limits of the Virgin Islands statute, 27 V.I.C. § 166b, the court in effect reexamined the jury's factual determination of the extent of her damages. This reexamination, she claims, violated the Seventh Amendment's explicit terms.

The party's briefs as well as our own independent research reveal very little case law or literature addressing Seventh Amendment challenges similar to Davis'. One court of appeals and one district court have ruled that a cap similar to the one at issue here does not violate the Seventh Amendment. Boyd v. Bulala, 877 F.2d 1191, Slip Op. (4th Cir. 1989); Franklin v. Mazda Motor Corp., 704 F. Supp. 1325 (D.Md. 1989). The Fourth Circuit, in Boyd, reversed the district court, which had concluded that the Virginia cap on damage recovery in medical malpractice cases was violative of the Seventh Amendment. Boyd v. Bulala, 647 F. Supp. 781 (W.D.Va. 1986), reconsideration denied, 672 F. Supp. 915 (W.D.Va. 1987), rev'd, 877 F.2d 1191 (4th Cir. 1989). See also, Reuwer v. Hunter, 684 F. Supp. 1340 (W.D. Va. 1988) (Reuwer was decided by the same district court judge as decided Boyd.).

Because Seventh Amendment challenges, such as the one presented here, have not occurred with any frequency, the Supreme Court has had little opportunity to speak to the reexamination issue presented by Davis. Indeed, even in the Supreme Court cases which we discuss below, the Court's treatment of the Seventh Amendment, while relevant to our analysis here, can hardly be deemed dispositive.

In Dimick v. Schiedt, 293 U.S. 474, 79 L. Ed. 603, 55 S. Ct. 296 (1935), the jury had returned a verdict of $500 for the plaintiff in a personal injury action. The district court ordered a new trial unless the defendant consented to an increase of the damages to the sum of $1,500. The Supreme Court examined the powers of the English courts prior to the adoption of our Seventh Amendment and concluded that English courts did not have the power to increase a jury's verdict. The Court also discussed the practice of remittitur, although remittitur was not at issue in Dimick.

The Court concluded that despite the fact that remittitur was disfavored by the English Common law, it had nevertheless been the practice of the federal courts since 1822 to deny a motion for a new trial on the grounds of excessive damages if the defendant agreed to a reduction in the amount of the jury verdict. Thus the Court determined that because of the historical tradition of remittitur in our courts, it would serve no purpose to disturb that longstanding practice. Id. at 482-85.

In Tull v. United States, 481 U.S. 412, 95 L. Ed. 2d 365, 107 S. Ct. 1831 (1986), the Supreme Court held that it was within Congress' power and not violative of the Seventh Amendment, to provide for a Federal judge rather than a jury, to set the civil penalty in a Clean Water Act suit.*fn7 The Court held the following analysis must be employed in deciding under the Seventh Amendment the question of

whether a jury must determine the remedy in a trial in which it must determine liability. The answer must depend on whether the jury must shoulder this responsibility as necessary to preserve the "substance of the common-law right of trial by jury." Colgrove v. Battin, 413 U.S. 149, 157, 37 L. Ed. 2d 522, 93 S. Ct. 2448 (1973). Is a jury role necessary for that purpose? We do not think so. "'Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.'" Id. at 156, n. 11 (quoting Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 671 (1918). See also Galloway v. United States, 319 U.S. 372, 392, 87 L. Ed. 1458, 63 S. Ct. 1077 (1943) ("The Amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements").

Tull, 481 U.S. at 425-26. The court concluded that the civil penalty was not a fundamental part of the jury trial right. It stated that since Congress may fix the civil penalties it may delegate that determination to trial judges.

In a separate concurrence, Justice Scalia, joined by Justice Stevens, argued that the civil penalty should have been determined by the jury as well. He stated:

Congress could, I suppose, create a private cause of action by one individual against another for a fixed amount of damages, but it surely does not follow that if it creates such a cause of action without prescribing the amount of damages, that issue could be taken from the jury.

Id. at 427 (emphasis in original).

Tull's holding, that a civil penalty need not be determined by a jury, cannot of course answer the question that is presented in this case where the damages in a civil cause have been decided by a jury. Thus, unlike the question before the Tull court, the question here is: Once the remedy determination has been submitted to the jury, can legislation limit the jury's remedial authority? Stated otherwise, the inquiry to be answered is: can the legislature limit the jury's award of damages regardless of the jury's finding of the extent and value of the plaintiff's injuries?

In answering this question the district court in Boyd v. Bulala, 647 F. Supp. 781 (W.D.Va. 1986), reconsideration denied, 672 F. Supp. 915 (W.D.Va. 1987), reconsideration granted, 678 F. Supp. 612 (W.D.Va. 1988) (judgment modified to reflect monies received in settlement with co-tortfeasor), rev'd, 877 F.2d 1191, Slip Op. (4th Cir. 1989)*fn8, applied the language from the majority opinion in Tull which is quoted above, and concluded that factfinding was at the core of the jury's function and that a damages determination constituted a "fact tried by a jury." The Boyd district court opinion noted early common law decisions in Virginia had held that damages were "peculiarly within the province of the jury." 672 F. Supp. at 920. It further noted that the determination of both damages and liability had historically always been part of the jury's function. In response to arguments that if the Virginia legislature had the power to abolish a cause of action it could, by the same token, impose a cap on the damages found by a jury, the Boyd district court stated:

It does not follow, however, that the legislature may constrict the right to a jury trial in the common-law actions which are retained. To the contrary, the seventh amendment commands that the right to trial by jury "shall be preserved." The legislature cannot, in the guise of shaping and delineating the cause of action, diminish this right.

Boyd, 672 F. Supp. at 921.*fn9

The Fourth Circuit, in reversing the district court's judgment in Boyd, applied a different form of analysis. The Fourth Circuit agreed with the district court that the role of the jury is to ...

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