The Clarion-Ledger reported in this story on Monday about Governor Barbour's attempt to politically scare the Mississippi Supreme Court into reversing a near-unanimous opinion. Here is the Governor's amicus brief filed with the Mississippi Supreme Court. Here is the Supreme Court's opinion in Price v. Clark. As an initial comment, the Court's decision in Price that filing a lawsuit tolls the running of the statute of limitations was clearly correct and is consistent with the laws of civil procedure in states throughout the nation. The Court's decision in Price has nothing to do with the merits of the case. The defendants can still win on the merits through a summary judgment motion or as the result of a trial.
The shocking aspect of the Governor's brief is the fact that the Governor admits that the real purpose of the pre-suit notice requirement is to impose a penalty on plaintiffs who do not successfully navigate the pre-suit notice mine field:
The Legislature cannot have intended to establish a pre-suit notice requirement but virtually no penalty for non-compliance.
This is a bombshell. The Governor of Mississippi is stating that the state's tort reform laws contain a designed trap to eliminate cases on behalf of unsophisticated plaintiffs who do not properly jump through a set of hoops before filing suit. That was not supposed to be a reason for the notice requirements. Previously, the only reason given to justify the pre-suit notice requirements was that it would give a defendant a chance to investigate a case and settle it before incurring the expense of defending the lawsuit. This reason was already suspect, since defendants never actually try to settle a case after receiving notice, but before suit is filed. Representative Ed Blackmon correctly observed in the Ledger's article:
The current law requires people who are injured to provide parties certain information with the hopes of settlement before litigation is filed, he said. "I don't know of a single case settled during that time. It's once in a blue moon."
What's happening instead, he said, is Mississippi is reverting to "the dark days when it was a crap shoot whether parties could even get in the courthouse."
What really happens is medical defendants wait to see if the plaintiff navigates the pre-suit notice mine field. In many instances, the defense starts the case by filing a ridiculous motion to dismiss asserting a twisted and absurd reason that the statutory notice provisions were not complied with. The pre-suit notice requirements are complicated and trip up competent lawyers. Regular people who try to assert a lawsuit on their on behalf don't have a prayer. Only after the initial motion to dismiss is resolved will a defendant even think about trying to settle the case--regardless of the merits of the case.
Now we know as a result of Governor Barbour's brief that the real reason for pre-suit notice requirements in Mississippi is to obtain dismissal of cases with merit. Indeed, a case without merit is destined to be thrown out by the court anyway. This is sordid and wrong. Justice is supposed to be blind and everyone is supposed to have a fair shot in the court system. Govenor Barbour, on the other hand, wants the deck stacked in favor of insurance companies and big business.
As I discussed in this post back in March, the Supreme Court's changes to multi-party joinder laws had a huge impact in reducing the number of cases against doctors where the doctors should not have been named as defendants. The other major factor with tort reform was the caps on non-economic damages. Pre-suit notice provisions were not a factor at all in reducing lawsuits. They have simply become a mechanism for cases with merit to be dismissed--a mechanism that Govenor Barbour wants to preserve.
If the Supreme Court revisits its decision in Price it should rule that the pre-suit notice requirements are unconstitutional and unenforceable. As support for its ruling the Court should point to the statement in Governor Barbour's brief.
