When I wrote last week that I would comment later on the Fifth Circuit upholding Mississippi’s damages cap in Sears v. Learmonth, I hoped that the intervening days would fuel inspiration on the topic. They haven’t. I don’t have much to say.
The Fifth Circuit’s opinion was about what you would expect from an opinion upholding the caps. And since no one predicted that the Fifth Circuit would strike the caps, the decision and opinion were unsurprising.
Citing the workers’ comp system and statutes of limitation, the Court found that the legislature has the authority to alter common law remedies. The Court did note that the legislature’s authority to alter common law remedies is not unlimited. That’s a good thing, given some of the wing nuts in the Mississippi Legislature.
Personally, I have a case of tort reform fatigue. Caps are just one area within the civil justice system that concerns me. And if I had to rank my areas of concern, the current cap levels would not be at the top of the list. There are more pressing issues to me–some of which I have written about on this blog.
Sure decisions upholding the caps create problems for the day that the Legislature lowers the caps. Perhaps one day we will look back on this decision as the breaking of the dam when courts cite it to uphold caps so low that it’s economically impossible to file a case without big economic damages. It’s possible. And it’s a scary thought.
But for Mississippi litigation attorneys, here are a few issues that–to me–are bigger than the current cap debated:
- forced arbitration and no Rule 23 in state court eliminate most potential consumer litigation;
- the prevalence of federal multi-district litigation (MDL) in federal court sucking cases out of Mississippi with no MDL’s based in Mississippi;
- a Mississippi economy that regardless of the data, appears to remain in a recession;
- the continuation of a legal market recession in Mississippi that has been ongoing for years and shows no signs of abating; and
- the need for reform in how courts instruct juries and explain how to reach verdicts.
These are all huge problems for Mississippi litigators–plaintiff and defense.