CHARLESTON -- West Virginia Supreme Court of Appeals Justice Menis Ketchum on Monday recused himself in a pending case on the state's damage caps in malpractice cases.
Ketchum had pledged during his election campaign in 2008 that he would never vote to overturn the law imposing the cap.
Ketchum wrote in a memorandum released by the clerk of the court, "Upon further reflection I am disqualifying myself" from the case 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.
The justice had issued a statement Thursday declining a request that he recuse himself, asserting that "I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal."
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.
The plaintiffs' lawyer, Robert Peck of the D.C.-based Center for Constitutional Litigation, filed a motion for recusal last week after reading that during the 2008 election Ketchum had said of the law, "I will not vote to overturn it. I will not vote to change it. I will not vote to modify it."
Ketchum had made the statement at a forum hosted by the state's medical association during his campaign. At the forum, Ketchum emphatically said the Medical Professional Liability Act is constitutional.
In his statement Monday, sent to the parties and to his fellow justices, Ketchum was critical of a post by The Blog of Legal Times on the matter and the lawyers involved.
Ketchum wrote in the newest memorandum, "I strongly believe there is absolutely no legal basis for my disqualification. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002). However, it appears to me that the lawyers who moved to disqualify me are attempting to create a 'firestorm' by assaulting the integrity and impartiality of West Virginia's Supreme Court."
He continued, "I promptly sent my disqualification response to the lawyers on September 23, 2010. The next day my response appeared in a Washington Internet blog ... How did a blog so quickly get my disqualification memorandum which was sent only to the lawyers in the case? Why is it newsworthy that a West Virginia judge previously exercised his right of Freedom of Speech?"
The justice said the blog "did not have the decency" to publish his First Amendment rationale as authorized by Republican Party of Minnesota v. White, or quote the legal rationale from White set out in his original memorandum.
In it, he writes, "The United States Supreme Court supports my position." He goes on to cite White:
"Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. 'Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.'"
Ketchum wrote in his original statement that the petitioners in the case seek of him "a lack of predisposition that no jurist could ever attain, or should even want to attain."
He cites White again, "A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one ting, it is virtually impossible to find a judge who does not have preconceptions about the law."
He goes on to say in Thursday's memorandum that those statements made during his 2008 campaign reflect his beliefs as "Lawyer Ketchum -- not Jurist Ketchum."
"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," he wrote.
Ketchum said on Monday he "could care less" if blogs or other media "crucify" him personally.
"However, I believe the lawyers are pulling the press' strings to place our Court in an unfavorable light. A lot of hard work has been accomplished to keep the Court out of the limelight since I took office on January 1, 2009. I don't want our Court to be publicly maligned by those with a 'win-at-all-cost' mentality."
He simply concludes his memorandum, "I disqualify myself from this case."