Caps on non-economic damages in the news again

A little over 10 months ago the Mississippi Supreme Court heard arguments about the constitutionality of non-economic damage caps in the case of Sears Roebuck Company v. Lisa Learmonth.  Since that time, the Court decided InTown Lessee, LLC v. Howard where it held that failure of the defendant to request a special verdict form itemizing economic damages and non-economic damages barred the defendant from challenging the amount of non-economic damages on appeal. 

After the InTown Lessee case, the MSSC requested supplemental briefing in Sears to address InTown Lessee.  In simple terms, “Tell us why we shouldn’t punt the constitutional issue given that you didn’t have a special verdict form itemizing damages between economic and non-economic.”  According to the docket sheet, the parties have submitted their supplemental briefs.  There is nothing left to do except wait on the weekly hand down list for the opinion.

About the same time that the MSSC issued the supplemental briefing order in the Sears case, a jury in Coahoma County, Mississippi rendered a multi-million dollar verdict for the death of a child by smoke asphyxiation in the case of Mary Carter , et al v. Interstate Realty Management Co., et al.  On post trial motions, the trial court held last week that the cap on non-economic damages violates the right to trial by jury and the separation of powers.  The entire Order is worth reading, but the conclusion is hard to argue with:

This court has determined that the constitution of the State of Mississippi guarantees unto every citizen (1) a “remedy” for an injury done him in his lands, goods, person, or reputation, and (2), the right to trial by jury. Such rights include the assessment of damages.  In the view of this court, to find that our citizens possess such constitutional rights only to then find that the legislative department of government has the authority to take away such rights is to reduce such rights to mere semantics. A right without a remedy is no right at all. This court is of the opinion that constitutional rights are deserving of higher esteem. Rights guaranteed through the constitution may be changed, limited, and/or removed. However, they cannot be changed, limited and/or removed by legislative enactment. There is a process by which such might occur it is through amendment of the constitution. This court shall not surrender the keys to the courtroom – nor any power delegated to the judicial department of government – to the legislative branch through legislative enactment. Therefore, this court finds Mississippi Code Annotated § 11-1-60 and its limit upon non-economic damages to be in violation of the constitution of the State of Mississippi as the statute violates the right to trial by jury as well as the separation of the three departments of government.

The Carter case will almost assuradly be appealed and the Sears case could likely decide the outcome.  However, if the MSSC punts the constitutional issue in Sears, Carter may be next in line for the MSSC to consider the damage caps.


About randywallace
I am a husband, father, attorney, outdoorsman and cook.

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