Here we go again. Another recusal controversy has developed at the Supreme Court of Appeals of West Virginia. But unlike Caperton v. A. T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2010) , in which the Supreme Court of the United States held that due process required a Supreme Court of Appeals justice to recuse himself when the CEO of the corporation appearing before him contributed $3 million to his campaign, the basis for the recusal in MacDonald v. City Hospital, Inc. (No. 35543) is statements made by Justice Menis Ketchum when he was a candidate for the court.
The Blog of Legal Times posted today about Justice Ketchum’s refusal to recuse himself from MacDonald, which challenges the constitutionality of the West Virginia Medical Professional Liability Act’s $500,000 cap on non-economic damages for the most serious medical malpractice cases. A jury awarded James MacDonald $129,000 for medical expenses and lost wages and $1,000,000 for pain and suffering, and awarded his wife, Debbie, $500,000 for pain and suffering. But in applying the cap, the Circuit Court of Berkeley County reduced their damages for pain and suffering to $500,000 for James.
As The BLT notes, when Justice Ketchum ran for the court in 2008, he said that he would not vote to overturn, change, or modify the MPLA’s cap. That statement is the basis for the plaintiffs’ motion that he recuse himself. However, yesterday, Justice Ketchum declined to recuse himself and explained his decision in a memorandum to the Court’s clerk and his fellow justices, which his chambers released. Here are Justice Ketchum’s memorandum and the Court’s order reflecting his decision.
As everyone will remember from the Caperton case, a justice’s decision not to recuse him- or herself is not appealable or reviewable by the Court. So unless he changes his mind, Justice Ketchum will participate in the appeal in MacDonald, which is scheduled to be argued in January 2011.
Because the appeal won’t be argued for a few months, the Court has not yet posted the parties’ briefs or any amicus briefs, but I will post them as I obtain or learn of them. I expect the West Virginia State Medical Association, whose executive director, Evan Jenkins, has been outspoken in his support of the cap, to submit a brief in support of the defendant hospital and physician, and I’m sure that other national organizations will weigh in on both sides.