Mississippi’s Cap On Non-Economic Damages Is Alive and Well

In 2004, the Mississippi State Legislature amended Miss. Code Ann. § 11-1-60 to provide for a $1 million cap on non-economic damages in civil cases. The statute is broadly worded to apply to “any civil action” and applies to all cases filed on or after September 1, 2004.

vernonThe same statute applies to non-economic damages in medical malpractice cases, although there is a $500,000 cap for malpractice cases. Non-economic damages are definedby statute to include a variety of items such as pain, suffering, mental anguish, and emotional distress.

In other words, non-economic damages are damages that are not easily assigned a monetary value.  Non-economic damages do not include punitive damages.

The statute has stood the test of time. For instance, the constitutionality of the statute came before the Mississippi Supreme Court in Double Quick, Inc. v. Lymas, 50 So. 3d 292 (2010). In Lymas, the plaintiff was awarded in excess of $1 million as a result of injuries sustained in a parking lot shooting in 2007.  The trial court lowered the non-economic damages award in accordance with the statute. Plaintiff then filed a motion to declare the statute unconstitutional, which the court denied.  Plaintiff appealed the ruling to the Mississippi Supreme Court. The Mississippi Supreme Court reversed the verdict in favor of plaintiff and, thus, did not consider the question of whether the statute was unconstitutional.

The U.S. Fifth Circuit Court of Appeals addressed the statute’s constitutionality in Learmonth v. Sears, Roebuck and Co., 710 F.3d 249 (2013). In Learmonth, the plaintiff was awarded in excess of $1 million for injuries sustained in a car accident in 2005. The trial court adjusted the non-economic damages award downward to comply with Miss. Code Ann. § 11-1-60.  Plaintiff challenged the statute’s constitutionality, but the court rejected the challenge. The plaintiff appealed and argued that the statute was unconstitutional.

In response, the Fifth Circuit asked the Mississippi Supreme Court in 2011 to decide the question through a process known as certification.The court declined the invitation by a vote of 8-1 due to the uncertainty in the amount awarded for non-economic damages.See Sears, Roebuck & Co. v. Learmonth, 95 So.3d 633 (Miss. 2012). To this, a panel of Fifth Circuit judges addressed the question and upheld the statute by a vote of 3-0 on February 27, 2013, leaving the damages cap in place.

The issue came before the Mississippi Supreme Court again in 2013 in Interstate Realty Management Co. v. Carter, No. 2013-CA-00420, but narrowly missed being decided. In Carter, the plaintiffs were awarded in excess of $1 million in non-economic damages for the death of a young child. In response, plaintiffs asked the trial court to find the statute unconstitutional. The court found the statute unconstitutional and defendants appealed to the Mississippi Supreme Court. The parties completed briefing and the Court scheduled oral argument on September 24, 2014. On that day, however, the Court issued a letter cancelling oral argument in light of a resolution of the case.

In short, Mississippi’s cap on non-economic damages remains in place today, and the constitutionality of the statute is not known to be presently before the Mississippi Supreme Court.

(Leigh D. Vernon is a member of Watkins & Eager PLLC, a full-service law firm, where he has practiced for almost 16 years. Vernon practices primarily in the area of general litigation for the defense.  In recent years, he has defended pharmaceutical companies such as Pfizer and AstraZeneca in products liability actions. He is admitted to practice in all Mississippi state and federal courts, as well as the Mississippi Band of Choctaw Indians. Vernon holds an AV Preeminent peer review rating from Martindale-Hubbell, the highest possible rating. He can be reached at (601) 965-1872 or lvernon@watkinseager.com.)

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