In January, the Fifth Circuit certified a legal question to the Mississippi Supreme Court in Sears v. Learmonth:
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?
Elsewhere in the Fifth Circuit opinion, it notes the question was based on provisions in the state constitution (“On cross-appeal, Learmonth argues that Section 11–1–60(2)(b) of the Mississippi Code violates the Mississippi Constitution.”), although the precise question as framed is not so limited.
For laymen, here’s how certification works: Construction of the statutory damages cap and the question of its constitutionality under the state constitution are both matters of state law and so the Mississippi Supreme Court was being given a first cut at saying what the state law provision meant and whether it was constitutional.*
With questions of state law, there’s a procedure involving “certified questions” that allows the federal court to ask (ask being the operative word) the state court to answer questions of state law that haven’t been definitively answered rather than have the federal court risk guessing wrong how the state courts might eventually answer the question.
The constitutionality of the tort reform damage caps is a question the Mississippi Supreme Court has not answered. In the Double Quick case many (not me) thought there would be an answer. Instead, we got an opinion about convenience store’s duty of care. Since the convenience store wasn’t liable, there were no damages, and so the cap question wasn’t reached.
We’ve also had, in the InTown case, a damages cap question come up whether the court was able to duck because the defendants had not sought instructions that allowed a court to distinguish the extent damages were (non-capped) economic damages or (capped) non-economic damages. Because the defendants did not object to instructions that failed to ask the jury to break down what dollars were what kind of damages, the defendant waived any objection about the cap and could not raise it on appeal.
Each court system has its own rules about wavier– the state courts have their own waiver rules, and the federal courts have theirs. I can’t imagine the Fifth Circuit querying the Mississippi Supreme Court in a way that would require answering questions about error preservation in Fifth Circuit appeals.
So, the Mississippi Supreme Court required briefing and held argument in Learmonth, and the Fifth Circuit (and those interested in what happens with tort reform) awaited an answer to whether the Mississippi Supreme Court thought the cap was constitutional.
And then, as Phillip Thomas noticed on his blog, last week the Mississippi Supreme Court entered an order, asking for supplemental briefs. Here’s what the order says:
In the case sub judice, the record reflects that “the jury found Sears liable for Learmonth’s injuries and awarded her $4 million in compensatory damages. The verdict on its fact did not divide the award into separate categories….” Learmonth v. Sears, Roebuck & Co., 2011 WL 150236, at *3 (5th Cir. Jan. 24, 2011) (emphasis added). However, Sears and Learmonth have stipulated that the total award included $2,218,905 in noneconomic damages. See id. at *7. Supplemental briefing is required to address the following issue:
indent (1) In light of the language in Mississippi Code Section 11-1-60(b) that “the trier of fact” cannot “award the plaintiff” more than $1 million for noneconomic damages, this Court’s recent pronouncement on the effect of failing to request a jury instruction that segregated economic damages from noneconomic damages, and the statement that the jury did not divide the award into separate categories to distinguish between economic and noneconomic damages, what fact(s) and/or legal authority exist for this Court to accept a stipulation regarding the amount of noneconomic damages found by the jury?
This part of the order included a footnote citing to the InTown case about whether a defendant waived these issues in failing to object to a jury verdict that did not distinguish economic from non-economic damages. The Westlaw opinion in Learmonth that this order cites is to the Fifth Circuit opinion certifying the question to the Mississippi Supreme Court (now reported at 631 F.3d 724), which stated:
At the conclusion of the trial, the jury found Sears liable for Learmonth’s injuries and awarded her $4 million in compensatory damages. The verdict on its face did not divide the award into separate categories, but the parties agree that the total award can be divided as follows: approximately $1.2 million for lost earnings; approximately $573,000 in past and future medical expenses; and approximately $2.2 million in non-economic damages.Upon Sears’ motion, the district court remitted the non-economic damages award to $1 million pursuant to Section 11–1–60(2)(b) of the Mississippi Code, which imposes a statutory cap of $1 million on non-economic damages. On appeal, Learmonth renews her arguments below that Section 11–1–60(2)(b) violates the right to trial by jury under Mississippi Constitution 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 Section 11–1–60(2)(b) violates the guarantee of access to the courts in article 3, section 24 of the Mississippi Constitution. The State of Mississippi, which intervened in support of Sears to defend the constitutionality of the statute, argues that there is no “palpable conflict” between a jury’s assessment of damages and the legislature’s determination of the legal consequences of that assessment.
So, as I understand it, the parties in Learmonth stipulated at the trial court what part of the damages were non-economic.** The federal district court accepted this stipulation, and it and the Fifth Circuit were acting upon it.
The Mississippi Supreme Court order implies that it is being asked to accept the stipulation: “what fact(s) and/or legal authority exist for this Court to accept a stipulation…”
So I’m going to express two different kinds of surprise, in the form of a question: Why would an appeals court not accept this stipulation by the parties? And, once the federal court has accepted the stipulation, what business is it of the state court, on certification of a different question altogether, to question that?
I’m taking this to mean they really, really don’t want to reach the question of constitutionality of the caps.
As noted in the post, this follows up on the order that Phillip Thomas had previously noted.
*I have no idea whether Learmonth’s lawyers raised issues under the federal constitution. I’m curious.
**I also have no idea why Learmonth would have entered into a stipulation that would have fixed this problem– I would have expected the Fifth Circuit to arrive at a conclusion pretty much like that in InTown–that they couldn’t tell what was non-economic or not, which was the fault of instructions and a verdict form the defense should have asked the court to fix.