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Next phase of tort damages cap fight? The waiting game

The Mississippi Supreme Court heard oral arguments Tuesday morning about the constitutionality of the state’s $1 million cap on non-economic damages in civil cases.

Magnolia Marketplace isn’t a lawyer, so you’re not going to find much in the way of legal analysis or a prediction here on which way the court rule.

What is clear is that there probably is no single issue for Mississippi’s business community more important than this one. It’s probably equally important to Mississippi’s plaintiffs’ bar.

The case that spawned Tuesday’s hearing – Sears & Roebuck Co. v. Lisa Learmonth – centers on a car wreck involving Learmonth, the plaintiff, who claims she was injured when she collided with a Sears van driven by one of the company’s employees. Learmonth was awarded about $4 million in punitive damages in the federal court trial, but the trial judge reduced that amount to conform with the $1 million cap. Learmonth’s attorneys appealed to the Fifth Circuit Court of Appeals in an attempt to get the jury’s verdict as it related to the $4 million punitive damages upheld; Sears cross-appealed asking for a new trial, claiming it wasn’t liable for the accident in which Learmonth was injured. The Fifth Circuit then certified the constitutionality of the cap to our Supreme Court.

If you’re scoring at home, Chief Justice Bill Waller and Presiding Justice Jess Dickenson were the most active as far as questioning the attorneys from both sides. Both seemed a little more skeptical of the argument made by Sears’ attorneys, that the cap did not violate the right to a jury trial, and that the cap did not violate constitutionally outlined separation of powers among the branches of government.

Keeping intact the separation of powers and the right to a jury trial were the cornerstones of the arguments made by Learmonth’s attorneys.

Very little anecdotal observations of the cap were made. The one that stood out the most came from Justice Jim Kitchens, who asked Sears counsel, “Who is this cap working for? The business community? It’s not working for people with catastrophic injuries.” Kitchens, it should be noted, sounded the most unconvinced of the nine justices that the cap was constitutionally sound, even though he asked maybe six questions during the 90-minute hearing.

The cap was the centerpiece of 2004’s tort reform, which Gov. Haley Barbour made the cornerstone of his first campaign. Barbour and business associations and trade groups said the cap’s removal would return Mississippi to the reputation the state had pre-tort reform as a judicial hellhole. Opponents have built their rebuttal around the constitutionality of the cap, claiming that the Legislature has no authority to tell juries how much to award or not to award in civil cases.

For both sides, it comes down to money. Businesses don’t want their liability insurance premiums to rise with the removal of the cap. Plaintiff lawyers would love nothing more than for 8- and 9-figure compensatory damage awards to return.

And so now they wait.

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