No, probably not.

The Mississippi Court of Appeals heard oral arguments yesterday in Emergency Medicine Associates of Jackson v. Glover. Jane’s law blog provides links to the briefs and oral argument replay here.

I wrote about the verdict in 2012 here. The jury awarded $1.5 million in economic damages and $2 million in non-economic damages, leading to a constitutional challenge of the caps on non-economic damages in medical malpractice cases.

I watched the argument on-line.

Side bar: I’ve experimented with watching oral arguments live and online. I’ve decided that online is better because the podium places the arguing attorney’s back to the gallery. I used to think that maybe you could get more of a ‘vibe’ watching live. But appellate arguments are usually pretty dry unless someone is acting like a wingnut, so there isn’t much of a vibe to get. In the future, I will probably just watch from my desk despite being only blocks from the courthouse.

Collins Wohner of Watkins Eager argued for the Defendant-Appellant. Rocky Wilkins of Jackson argued for the Plaintiff-Appellee. John Corlew of Jackson argued amicus curiae against the caps. Doug Miracle with the Attorney General’s office argued for upholding the caps on behalf of the State.

This is a good argument to watch.  All of the attorneys are skilled lawyers and did a great job. I would feel comfortable with any of them arguing my case. Unlike many oral arguments, this one did not get bogged down in minutia that you have to know the record to understand. There were some interesting issues including a new one for me: the invited error doctrine. I’ve got to remember that one. Miss. Supreme Court

As with most of these cases, caps was not the main focus of oral argument. The Appellant focused on the evidence–or lack thereof–supporting the economic damages award and not getting an intervening superseding cause instruction.

On the issue of caps, Judge Griffis made the best point in the form of a question: “Should we be concerned that the Supreme Court has had the opportunity to decide caps 4 times and has not done so?”

Rocky Wilkins responded about as well as anyone could, contending that the time is right.

My Take:

One of these days the Court of Appeals or Supreme Court will rule on the caps. And whenever that happens, it’s going to be a surprise. As Judge Griffis pointed out, the Supreme Court has had plenty of chances to address caps and not done so. That begs the question of why should the Court of Appeals take it up?

My guess is that the Court decides Glover without reaching the caps. After Sears v. Learmonth, that’s going to be my guess until I’m wrong.