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Fifth Circuit certifies the constitutionality of the damages cap to the Mississippi Supreme Court

Phillip Thomas and Anderson note that yesterday, in Learmonth v. Sears Roebuck, the Fifth Circuit certified to the Mississippi Supreme Court the question of whether the Mississippi tort damages cap is constitutional under state law.
According to the memorandum opinion in which the trial court overruled the plaintiff’s challenges to the cap, the plaintiff had made the following arguments to strike down the damages cap:
(1) it impermissibly forces the judiciary to enter a remittutur, at the direction of the legislature, in violation of the separation of powers clause in the Mississippi Constitution; (2) it requires an amendment of a verdict in contravention of Federal Rules of Civil Procedure 49 and 58, which under the Supreme Court’s holding in Hanna v. Plumer, 380 U.S. 460 (1965), prevail over state statutes when the two are in conflict in a diversity case; (3) it is tantamount to the legislature mandating that this court perform a purely procedural function and thus impermissibly infringes upon this court’s use of common law and procedural rules, which are governed by federal law; (4) it violates plaintiff’s right to trial by jury under Section 31 of the Mississippi Constitution; (5) it violates the open courts provision of Section 24 of the Mississippi Constitution; (6) it violates plaintiff’s due process rights; and (7) it violates plaintiff’s equal protection rights.
The certified question from the Fifth Circuit is:

We hereby certify, on Sears’ unopposed motion, the following determinative question of law to the Supreme Court of Mississippi:  Is Section 11-1-60(2) of the Mississippi Code, which generally limits non-economic damages to $1 million in civil cases, constitutional?

I haven’t seen how these issues were briefed by the plaintiff on appeal, but my first take was that this certification to asks the questions implied by points 1, 4, 5, and possibly state due process (6); surely the Fifth Circuit would not need help from the Mississippi Supreme Court in resolving the federal law questions implied in 2, 3, 6, or 7.  But the question as certified does not limit the Mississippi Supreme Court to state constitutional provisions; perhaps the Fifth Circuit is intentionally leaving it open (including to the federal constitutional questions) to give the Mississippi court the first bite at saying what it thinks about the statute.

Update:  From the statement of facts in the certification in Learmonth:

Learmonth renews her arguments below that [the cap].. violates the right to trial by jury under Mississippi Constitutiona article 3, section 31, and also violates the separation of powers clauses in article 1, sections 1 and 2.  Amicus for Learmonth further argues that [the cap] violates the guaranty of access to the courts in article 3, section 24 of the Mississippi Constitution.

Here’s trial court brief filed by Shawn Shurden in the Attorney General’s office arguing that the statute is constitutional.

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