Susan ARRINGTON, et al. v. GALEN-MED, INC., et al., 970 So. 2d 540

COOKS, Judge. PROCEDURAL HISTORY Liu Arrington v. ER Physicians Group, APMC, 04-1235 (La.App. 3 Cir. 9/27/06), 940 So.2d 777, this court held the $500,000 statutory limit on recovery of damages in medical malpractice actions found in La. R.S. 40:1299.42(

B) was unconstitutional in failing to provide the Plaintiffs an “adequate remedy” as guaranteed under

Article 1, § 22 of the Louisiana Constitution. This judgment was vacated by the Louisiana Supreme Court on procedural grounds. Arrington v. Galen-Med, Inc., et al., 06-2944 (La.2/2/07), 947 So.2d 724. Although the Plaintiffs raised the unconstitutionality of La.R.S. 40:1299.42(

B) on several grounds, the supreme court held: In the instant case, plaintiffs did not plead La. Const. Art. I, § 22 as a ground for finding La.R.S. 40:1299.42(

B) to be unconstitutional. The question of whether La.R.S. 40:1299.42(

B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for

summary judgment. In the absence of properly pleading and initial consideration of this ground by the district court, the court of appeal erred in declaring La.R.S. 40:1299.42(

B) to be unconstitutional in violation of La. Const. Art. I, § 22. Accordingly, we must vacate the judgment of the court of appeal declaring La.R.S. 40:1299.42(

B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pre-termitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters. Id. at 729 (footnotes omitted). REMAINING ISSUES ON APPEAL We have considered the remaining matters, including the equal protection issue, as directed by the supreme court. However, the State complains Plaintiffs also 12did not specifically raise the equal protection issue in their motion for

summary judgment and therefore this issue is not properly before the court. The supreme court, holding the unconstitutionality of a statute must be specially pleaded in the district court, stated in Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/20/94), 646 So.2d 859: Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute.

However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer.

It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. Id. at 864-65(footnotes and citations omitted)(emphasis added). As noted by the supreme court, “our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute.” Id. at 864.

The requirement that the unconstitutionality of a statute must be specially pled and the grounds for the claim particularized is a jurisprudential one designed to prompt a “contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue.” Arrington, 947 So.2d at 726 (quoting Vallo, 646 So.2d at 865).

The ultimate purpose of this rule, as explained by the supreme court, is that “[t]he record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality.” Id.

In our original opinion, Judge Cooks, dissenting, noted Plaintiffs “alleged in | otheir Fifth Amending and Supplemental Petition, under the Louisiana Constitution of 1974, the [Medical Malpractice Act’s (MMA) ] cap violates the ‘right to equal protection, and other rights therein guaranteed.’ ” Arrington, 940 So.2d at 787 (emphasis added). Plaintiffs further stated in their motion for

summary judgment filed on June 19, 2003, that “separation of powers and federal and state substantive due process grounds and prohibited special law grounds prohibit the 1975 legislature from directing the result of judicial decisions in this case.” (emphasis added). Responding to these pleadings, the State, in its answer and second motion for

summary judgment, asserted “La.R.S. 40:1299.42(B)(1) and (2) do not violate state constitutional guarantees of equal protection.” The trial court’s ruling, as well, reflects that this issue was reviewed on the merits. Although we are satisfied the equal protection issue and the remaining issues were sufficiently pled below and are ripe for review, we elect to remand this case to the trial court to allow plaintiffs an opportunity to particularize all grounds for their claim that La.R.S. 40:1299.42(

B) is unconstitutional in a proper amending and supplemental pleading and to afford the State, the Patient Compensation Fund Oversight Board, and all parties in interest an opportunity to fully address and litigate the grounds so alleged. See La.Code Civ.P. art. 2164; M.J. Farms, LTD v. Exxon Mobil Corp., et al, 07-0450 (La.04/27/07), 956 So.2d 573; Summerell v. Phillips, 258 La. 587, 247 So. 542 (1971).

Further, the State, in framing its position, below relied heavily on prior jurisprudence upholding the constitutionality of the MMA’s cap and, therefore, it did not present any evidence in the record or make any showing that the cap continues to serve a legitimate public purpose and that a reasonable basis still exists for maintaining the discriminatory classification affecting Plaintiffs’ right to full recovery |4in medical malpractice cases.

We will not penalize the State for the failure, however, as noted in footnote 5 of Judge Cooks’ dissent in our original opinion, this evidence is readily available and important to a full examination of the issue.

Accordingly, we elect on remand, consistent with the supreme court’s decision in Sibley II, to instruct the district court to re-examine all of the issues raised and to determine whether the statute is constitutional after permitting the parties to amend the pleadings, to conduct full discovery, to file additional motions and briefs, to introduce additional evidence, and to fully argue the issues advanced in all the pleadings pursuant to a contradictory hearing. DECREE We vacate the judgment of the district court.

The case is remanded to the district court to allow the Plaintiffs to specially plead the uneonstitutionality of La.R.S. 40:1299.42(

B) and for full litigation of the issues at a contradictory hearing in a manner consistent with this opinion. VACATED AND REMANDED WITH INSTRUCTIONS. PICKETT and EZELL, JJ., dissent and assign written reasons. . Sibley v. Board of Supr’s of Louisiana State University, 477 So.2d 1094 (La.1985).