The Mississippi Business Journal broke the story today that the Fifth Circuit Court of Appeals upheld Mississippi’s legislative caps on non-economic damages.

Here is the Court’s opinion in Sears v. Learmonth, courtesy of MBJ.

I will have commentary on the decision in the coming days.

  • Roland Tembo

    Just glanced through the opinion, and unless I’m mistaken it pretty much says because the MSSC refused to address the question, they have to defer to the statute. For proponents of overturning the cap, not a great ruling, but not a terrible one either – I get the distinct impression the 5th Circuit was peeved about the MSSC punting the issue back, and just said go with the statute. Unless I’m missing something? Plus I did see 5th Circuit noted Learmonth failed to timely raise due process and remedy arguments. Thoughts?

    • Well, I saw some merits arguments, not just “they turned us down, so we defer.”

      Not sure anyone actually expected the 5th Cir to rule any differently; I thought it was sweet of them even to certify the question.

  • Michael Cory

    Philip, thanks for posting the case. An interesting read.

    I liked the Plaintiff’s argument that if the Legislature can cap damages at 1 million then they can cap damages at $1.00. Fortunately, The 5th circuit left the door open for a substantive due process challenge because in at least some cases the caps (and in particular the med mal caps) effectively preclude a meaningful remedy.

    Unfortunately for a person injured through no fault of their own, $500,000 is not nearly what it was 10 years ago. In most catastrophic medical malpractice cases the actual recovery for the injured person is grossly inadequate after deducting the costs of litigation and having to pay the lawyer. There is also a problem with an injured person having any meaningful access to the potential remedy. I don’t know may investors who would put in a couple of hundred hours of work, and invest 30-50k, just to have a 30% chance of getting 40% of a $500,000.00 recovery. If nobody on Wall Street would make that type of investment, one has to wonder why any lawyer in his right mind would.

    At least the 5th Circuit left open the possibility: “in any event, we believe that Learmonth has overlooked the possibility that, at least under some circumstances, the Mississippi Constitution’s Due Process Clause or Remedy Clause might impose substantive constraints on the legislature’s authority to cap compensatory damages.” See Miss. Const. art. III, § 14; (“[E]very person for an injury done him in his lands, goods, person, or reputation, shallhave remedy by due course of law . . . .)

    • Your comments on 40% of a $500K recovery seem to imply that lawyers don’t also collect 40% of a plaintiff’s recovery for *actual* medical expenses. I had thought otherwise. But you do point to what may be much of the reality behind “noneconomic damages,” i.e., an award of att’y fees.

      I think the “one dollar” argument is silly, for reasons I have explained elsewhere:

      it sounds like arguing that if the Legislature can set a one-year statute of limitations, then it can set a one-day statute, WHICH WD BE TEH AWFULS!!! … ergo, the one-year SOL is unconstitutional. (Pretty sure I stole that analogy from somewhere; see Wilson Mizner’s definition of “research.”)

      If you aren’t now convinced that SOLs are unconstitutional–and I hope that you are not–then please explain what changes when the issue is the amount of one category of damages, instead of the very right to seek a remedy in the first place.

      … Now, the fact that I can recover up to $1M if a bad driver causes me to be paralyzed, but only up to $500K if a bad doctor causes me to be paralyzed … I have yet to be convinced of that.