Biggest Question After Oral Argument in Double Quick v. Lymas is Whether Court Will Even Rule on Constitutionality of Tort Reform Caps
The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.
Case Background
The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.
The Court Focused on Liability Issues
The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.
It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.
Justices Were Skeptical of Legislative Caps Arguments
On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.
Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.
Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.
In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.
Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.
One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.
If that's what Henegan argued, it was very silly. Nothing is more annoying than an advocate who argues for more than he really needs to prove.
Tossing the case on liability would defer the issue to another day, and perhaps to a better-briefed case.
Everyman has an agenda: I have mine. The most poignant moment for me during the arguments was when Justice Graves -- leaning forward a bit more animatedly and aggressively, perhaps in a louder more bass-filled voice than commonly labled "judicious" -asked the insurance co lawyer Mr. Henegan if he were seriously suggesting that the "people's" issues of damages of life and death would be better left to a group of legislators than to 12 people from the community. The unspoken question on the liability issue is whether the people are better served by having a determination of liability and damages made by a jury from the local communities than by the 9 Justices of the Court. Some of the Justices' comments seemed to suggest a willingness to say we Justices may ignore the jury's decisions and re-find the facts of liability and damages but the legislature can not override the jury's function. My agenda and hopes are that Attorney Joe Tatum will ultimately gain fair compensation for Mr. Lymas and for all seriously injured plaintiffs.
I though they argued equal protection in the court below and about abandoned it at the Supreme Court level..
When Georgia struck down caps recently the Court decided that the caps violated the right to a trial by jury.
The 2005 law's cap on damage awards "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function," Chief Justice Carol Hunstein wrote for the court. She added, "The very existence of the caps, in any amount, is violative of the right to trial by jury."