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Paul Venker and Lisa Larkin

Williams Venker & Sanders

Sometimes appellate lawyers go to court hoping to secure a new interpretation of the law. Paul Venker and Lisa Larkin of Williams Venker & Sanders went to the Missouri Supreme Court to preserve a key precedent that no one was quite sure was still valid.

“There was no way to 100 percent, with any kind of confidence, say how this was going to go,” Venker said.

In April, the Supreme Court issued Dodson v. Ferrara, upholding the state’s cap on noneconomic damages as applied to a medical malpractice wrongful death case. For the Williams Venker & Sanders team, that meant that a $10.8 million verdict against their clients was reduced to just $2.18 million. But getting there meant being at the end of a long line of cases over lawmakers’ ability to limit the damages in civil lawsuits.

In 2005, the Missouri Legislature overhauled the state’s tort laws. A $350,000 cap on noneconomic damages in medical malpractice cases, a stricter version of an existing cap, was one of the main features of the bill.

Seven years later, the Supreme Court ruled that the cap was counter to the Missouri Constitution’s guarantee of an “inviolate” right to a trial by jury. 2012’s Watts v. Cox Medical Centers said lawmakers could not impose limits on common law causes of action that existed at the time the state constitution was first adopted in 1820, such as medical malpractice. The ruling overturned a 20-year-old precedent to the contrary.

But just a few months prior to the Watts ruling, the court explicitly had upheld the earlier version of the damage cap in a wrongful death case. In Sanders v. Ahmed, the court held that the wrongful death cause of action wasn’t part of the common law; it was created by statute in 1855. Because lawmakers created the cause of action, they were free to set limits on the remedy.

The Sanders ruling was squarely on point for Venker and Larkin’s argument — unless, of course, the Watts case had wiped it out. The plaintiffs in the suit argued as such and pointed to the strange imbalance the rulings had created in the law — that someone who is injured due to medical negligence can, in theory, collect unlimited damages, yet the survivors of someone who dies from the same negligence face a cap.

Venker said they took a straightforward approach to the argument.

“We didn’t come up with a new idea, I don’t think,” he said. “We weren’t being ingenious in any way. We just took the position that this is what Missouri law is on a wrongful death cause of action.”

Venker, a former research staff member and law clerk for the Missouri Supreme Court, argued the case before the Supreme Court in October 2015; he also represented the defendants at trial. Larkin, a top appellate lawyer who is often brought in to deal with “things that may ultimately have an aspect that is important on appeal,” became involved in the case during post-trial motions, which resulted in the trial court’s finding that the cap applied.

No one knew at the outset of the case that it would end up in the Supreme Court. Larkin noted that having a case that addresses the constitutionality of a damage cap requires not only a verdict large enough to trigger it but “also on what the trial court does with the post-trial motions. That also is not predictable.” The trial judge in the case had agreed that the cap applied.