By Y. Peter Kang, LAW360

April 2, 2020

https://www.law360.com/appellate/articles/1259848/ex-boxing-champ-chall…

Law360 (April 2, 2020, 10:27 PM EDT) -- Former boxing champion “Sugar” Shane Mosley has lodged a challenge to California’s $250,000 cap on pain and suffering damages in medical malpractice cases, arguing that the 1975 law is unconstitutional because it hampers an individual’s right to legal redress.

The suit was filed on Wednesday in Los Angeles County Superior Court against California Attorney General Xavier Becerra and others, seeking to overturn a provision of California's Medical Injury Compensation Reform Act of 1975, which sets a cap on noneconomic damages such as pain and suffering.

In the underlying case, Mosley claims Dr. Gary Brazina botched a 2017 surgery to remove bone fragments from the boxer’s elbow, causing injuries that derailed the then-46-year-old boxer’s comeback attempt that began in 2015 and essentially ending his professional boxing career.

In Wednesday’s complaint, Mosley claims he was denied an opportunity to obtain legal redress because his potential recovery of noneconomic damages, which “far exceed” his economic damages such as medical expenses, is capped at $250,000.

The boxer explained that because plaintiffs attorneys generally incur $200,000 in costs to pursue medical malpractice suits, no lawyer will take his case unless the MICRA provision, which also limits attorney fees, is abolished.

While Mosley’s attorneys with Carpenter Zuckerman & Rowley, co-plaintiffs in the instant action, had agreed to take on his case pro bono in exchange for Mosley paying for all litigation costs, the complaint states that because of the COVID-19 outbreak and economic downturn, Mosley is no longer able to foot the legal bill.

“CZR is ready, willing, and able to represent plaintiff Shane Mosley Sr. and advance all the costs of the litigation, if the law firm is permitted to charge the contingency fee it ordinarily charges in personal injury matters and if the $250,000 cap on noneconomic damages is lifted,” the complaint states. “Only if CZR is permitted to charge its normal fee and if the cap on noneconomic damages were removed, could CZR afford to take the risk of litigating this matter.”

Mosley said it is unfair that medical malpractice plaintiffs are hindered by the noneconomic damages cap, which directly affects their ability to pay litigation costs, while health care provider defendants and their insurers have no such burdens.

“To say that medical negligence victims facing the choice of whether or not to petition the courts for a redress of grievances — a right guaranteed by the First Amendment to the U.S. Constitution and the California Constitution — are at a disadvantage because the scales of justice and access to justice are tipped in favor of the wrongdoers that hurt them or killed their loved ones is an understatement,” the complaint states. “It is not David v. Goliath, it is not akin to bringing a knife to a gunfight, it is much worse than that.”

Richard Carroll, an attorney for Brazina, told Law360 on Thursday that he didn’t think the case was a good vehicle to challenge the MICRA cap.

“Of all the various cases out there with $250,000 limitations on them, this does not strike me as being amongst the most egregious,” he said, explaining that a boxer in the twilight of his career would probably not engender as much public sympathy as an individual who suffered a catastrophic injury or death.

A representative with the California Attorney General's Office did not immediately respond to a request for comment.

Nicholas Rowley, an attorney for Mosley, said the $250,000 cap is unfair, as it has never been adjusted for inflation since it was enacted in 1975.

“The California Legislature and each of its governors have failed to do anything about the most regressive medical negligence law in U.S. history, in the most progressive state, because they either lack courage, don’t care, or are corrupt,” he said in a statement. “Any of the three is unacceptable.”

Rowley, along with consumer advocacy group Consumer Watchdog, is spearheading a ballot initiative to put a proposition on California’s November ballot asking voters whether the MICRA cap should be raised to about $1.2 million in order to account for inflation.

Mosley won three world championships in three different weight classes: lightweight, welterweight and light middleweight. 

Mosley is represented by Nicholas C. Rowley, Paul S. Zuckerman and Robert J. Ounjian of Carpenter Zuckerman & Rowley.

Counsel information for the defendants was not immediately available.

In the underlying suit, Brazina is represented by Richard D. Carroll of Carroll Kelly Trotter & Franzen.

The case is Shane Mosley Sr. et al. v. Xavier Becerra et al., case number 20STCV12669, in the Superior Court of the State of Los Angeles, County of Los Angeles.

--Editing by Haylee Pearl.