In 2012 I wrote about a $3.5 million verdict in a Hinds County medical malpractice case that implicates Mississippi’s legislative caps. The case is now almost fully briefed in the appellate court and will presumably be decided later this year.

Here is the appellant’s brief.

Here is the appellees’ brief.

Anderson discusses the case here.

In a somewhat surprising development, the Supreme Court assigned the case to the Court of Appeals. One take on the assignment is that it is a way for the Supreme Court to dodge deciding the caps. But a review of the docket filings does not really support that argument.

The Court assigned the case to the Court of Appeals after the appellants filed their brief, but before the appellees filed their cross-appeal challenging the constitutionality of the caps. The appellant’s brief focuses on garden-variety appeal issues like admissibility of evidence and jury instructions.

The appellant’s response to the appellees’ motion to move the case back to the Supreme Court argues that the caps should not be in play. The response states:

…the judgment below must be reversed due to multiple errors under settled law. The constitutional question plaintiffs intend to argue on their cross-appeal will never need to be reached.

And that’s normally the way the cases come down. The Court decides the appeal based on other issues and doesn’t ever get to the caps argument. That, or the cases settle before the Court rules.

Image result for caps

Please remove your cap

You’ve got caps 

So the med-mal caps are in play in this case. Will they be decided? History tells us probably not.

I believe this is the only pending case challenging the med-mal caps. I think there is one looming case (Walls v. Pyro discussed in this earlier post) challenging the regular caps statute, but that case is in the post-trial motion phase and has not made it to High Street yet.

And then you’ve got the dreaded double-caps argument

The appellants make the dreaded double-caps argument. Under the double-caps argument, if a jury awards more than the caps in non-economic damages, then the Court should reduce the verdict to the amount of the caps and then reduce it again based on defendant’s percentage of fault.

In this case the jury’s verdict for non-economic damages was $2 million. Judge Kidd reduced it to $500,000 pursuant to the med-mal caps. The defendant/appellee argued that Judge Kidd should have reduced it by another 25%, since defendant was apportioned 75% of the fault. The technical argument appears to be that caps should be applied before apportionment.

My Take:

I’m surprised that the appellants didn’t argue that they should also get to take the plaintiffs out back and beat the crap out of them.

The double cap argument is hogwash. I don’t see the Court buying it. It would almost be funny, except for the fact that they may can scrape up a vote or two for it. Maybe.

This argument reminds me of the defense lawyer adage from the years when plaintiffs never won on appeal that “there’s not an argument I can make that [he’s now a former justice] won’t buy.

On another note, it would have been helpful if the appellees had labeled the issues in their brief’s table of contents in a more descriptive manner than “Issue I”, etc. Want to know what page they discuss the caps argument? Start flipping pages.

The appellants’ brief has a better table of contents.