Ketchum

CHARLESTON -- A West Virginia Supreme Court justice has refused to take himself out of a case involving the state's cap on non-economic damages, even though he pledged during his election campaign that he would never vote to overturn the law imposing the cap.

According to The Blog of Legal Times, Justice Menis Ketchum of the state Supreme Court of Appeals issued a statement Thursday declining a party's request that he recuse, asserting that "I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal."

Ketchum's statement relates to the pending case of MacDonald v. City Hospital, in which an Eastern Panhandle couple is challenging the Legislature's $500,000 cap on damages for pain and suffering in malpractice suits.

In fall 2004, James MacDonald, 56, was admitted to City Hospital in the Eastern Panhandle for pneumonia. MacDonald was taking other medications because of a kidney transplant and other chronic conditions. The combination of those medications and new ones caused a condition called rhabdomyolysis that caused MacDonald's muscles to waste away.

The couple's attorneys say the treatment MacDonald received lessened his and his wife Debbie's enjoyment of their life together.

Jurors agreed and found the hospital and the doctor liable for MacDonald's condition. They awarded him $129,000 for medical expenses and lost wages and $1 million for pain and suffering. The jury also awarded his wife $500,000 for pain and suffering.

But a circuit court judge, citing the caps in state law, reduced the $1.5 million jury award for pain and suffering to just $500,000 for James MacDonald.

In their petition for appeal to the Supreme Court, the couple's lawyers said the caps are "arbitrary" and violate the right of injured patients to a fair trial by forcing courts to discard pain and suffering judgments higher than the cap set by the Legislature.

In responses filed with the court, City Hospital and lawyers for the doctor, Sayeed Ahmed, both say state law clearly allows caps on medical malpractice claims, and they cite cases from the Supreme Court in 1991 and 2001.

The appeal, which the state's high court is supposed to hear arguments for in January, is the most serious challenge of the West Virginia Medical Professional Liability Act.

In 2008, when Ketchum was running for Supreme Court, he and the other candidates attended a forum hosted by the state medical association.

The candidates were asked to not only introduce themselves, and credentials, but also discuss their position on medical liability and tort reform.

Ketchum emphatically said the Medical Professional Liability Act is constitutional.

"I will not vote to overturn it," he said of challenges to the law. "I will not vote to change it. I will not vote to modify it."

Robert Peck of the D.C.-based Center for Constitutional Litigation, lawyer for the plaintiffs in the case, moved for Ketchum's recusal, asserting that Ketchum's campaign statements "indicate clear prejudgment of this case," in violation of judicial canons.

The state code of judicial conduct prohibits candidates from making "pledges or promises of conduct in office" and making statements that "commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court," he said.

In his statement on Thursday, Ketchum did not deny his campaign pledge or that he had a preconceived view of the issue.

"I disagree that having a preconceived view on the MPLA caps is grounds for disqualification," he said. "While I am predisposed to do just what I said during my campaign -- that I will not vote to overturn, change or otherwise modify the MPLA caps -- as a jurist I am required to look at all issues from a different perspective than I enjoyed as Lawyer Ketchum."

According to the legal blog, Peck said he was "amazed" to learn of Ketchum's campaign statement, characterizing it as a clear case of prejudging the issue before the court. Peck said there is no way to appeal Ketchum's refusal to step aside in the case.

Hofstra University School of law professor James Sample, an expert on judicial recusals, noted in the blog post, "The specificity of referring to the actual statute involved in the case would lead any litigant on the other side to question whether his arguments would even be heard."

A decision by another judge on the West Virginia high court not to recuse in a case involving one of his campaign donors was challenged all the way to the U.S. Supreme Court. The Court ruled last year in Caperton v. Massey Coal Co. that the appearance of conflict was so extreme that the judge's continued presence in the case threatened due process rights.

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