Mississippi’s caps on non-economic damages were upheld as a result of Thursday’s decision in Sears v. Learmonth—just in an indirect way. The Court’s decision was—in some ways—both surprising and unsurprising.

In 2010 the Court was able to avoid deciding the constitutionality of the caps in the Double Quick v. Lymas case when it reversed and rendered. But folks originally thought that the Court would be unable to dodge the issue in Sears because the case came to the Court from the 5th Circuit Court of Appeals via a certified question. This would presumably prevent the Court from dodging the question by deciding the case based on some other issue. This presumption was wrong.

The Court’s opinion states:

“In other words, consistent with our holding in InTown Lesee, we decline to answer a certified question which, if the case were directly appealed to this Court, would not be reached under the facts presented.”

The Court basically told the 5th Circuit that it should not have certified the caps question or even entertained the issue because the defendant did not preserve the issue by requesting a special verdict form that itemized economic and non-economic damages. In doing so, the Court refused to accept the stipulation on the amount of non-economic damages agreed to by the parties and accepted by the federal court.

I could understand the Court’s decision more if the Court consistently refused to rule on issues that do not determine the outcome of the appeal, but I do not believe that to be the case. It’s not unusual for the Court to write that it is reversing a case for a certain reason, but then continue to write about completely different issues in the case. I can understand why the Court would do this—to avoid having the same case come back after re-trial on the issue it didn’t address previously.

But how’s that different from the 5th Circuit needing an answer to the question of the caps? Maybe an appellate specialist can explain it to me.

It’s hard to view the decision as anything other than a clear dodge of the issue. That’s exactly what a comment to my earlier post on the decision called it. The comment echoes the general sentiment on the street within the legal community. A respected commentator (NMC) on Anderson’s blog was “a bit horrified” that only one justice dissented and asked: “What business does the Mississippi Supreme Court have telling the federal courts how to do preservation of error?”

It’s a good question. But for practical purposes the answer doesn’t seem to really matter—at least with respect to the caps.

With perhaps one exception, Mississippi’s trial court judges are following the caps statute and reducing non-economic damages that exceed the statutory caps. That will continue as long as the Supreme Court does not strike the caps. So for practical purposes, the Court’s decision yesterday works about the same as if the Court had upheld the caps. It’s a win for proponents of the caps.

I’ve previously stated that I don’t believe the current Court will strike the caps. Thursday’s decision solidifies my opinion that there are not five votes on the Court to strike the caps. There may not even be three.

Nothing that can realistically happen in the November Supreme Court elections will change my opinion.

Maybe one day the Court will have to decide the issue. In the meantime, the Court will continue to dodge the issue by deciding cases on other grounds.

There is one positive of the Court’s decision–and it’s a big one. By failing to rule on the caps, the Court can come back later and strike the caps if the Republican Legislature lowers them. And that was the biggest danger if the Court upheld the caps. It would have given Republican legislators a license to lower the caps to near-zero.

Finally, it’s funny how all the rumors about the Court’s decision turned out to be untrue. Last year the hot rumor was that the Court would uphold the caps in a 6-3 decision. This year some people were predicting that the Court would strike the caps after the election qualifying deadline in May. Once it was well past the qualifying deadline, this rumor was updated to the Court would rule after the November election.

It kind of reminds me of Justice Ginsburg’s quote when the Supreme Court was about to rule on the Affordable Care Act: the ones who know don’t talk and the ones who talk don’t know.