As a part of its efforts with tort reform, the Mississippi Legislature adopted in 2003, and amended in 2004, a statute that places a cap of $500,000 on non-economic damages in medical malpractice cases and a similar cap of $1,000,000 in all other personal injury actions. See Miss. Code § 11-1-60(2)(a)-(b) (2011). Numerous states have adopted similar measures.
Legal codes have placed caps on damages since the Code of Hammurabi – “If a patrician has stolen ox, sheep, ass, pig, or ship, whether from a temple or a house, he shall pay thirtyfold. If he be a plebian, he shall return tenfold.” It is not an answer that this was before the right of trial by jury. Legal codes have included such statutes throughout history up to the present.
The great majority of state Supreme Courts to address the issue have held that statutory caps on non-economic damages are constitutional, and they do not violate the plaintiff’s right to trial by jury or other state constitutional provisions. While some of these state appellate courts struggle mightily with whether a state legislature can adopt a statute that affects the common law remedy of damages in negligence actions, the fact is that a state statute that places a cap on non-economic damages is no different in kind from a large number of other state statutes that alter existing common law claims, defenses, and remedies or eliminate them altogether; impose limitations of liability or limitations on damages for certain types of injuries; or establish periods of limitations or repose. State supreme courts have uniformly upheld these types of statutes as a proper exercise of the Legislature’s police power; Justice Oliver Wendell Holmes would have had a field day with the suggestion that a state statutory cap on non-economic damages is beyond the ken of a state legislature.
But the controversy surrounding these statutes hasn’t abated. The Illinois Supreme held in February 2010 that the Illinois Legislature’s third attempt at enacting a statutory cap on non-economic damages was just as constitutionally defective as its first two efforts, Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010), and violated its state constitutional separation of powers provision. The Georgia Supreme Court held three weeks later that the $350,000 statutory cap on medical malpractice damages was unconstitutional. Nestlhutt v. Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d 218 (Ga. 2010). More recently, the West Virginia Supreme Court refused to follow Nestlhutt and upheld the constitutionality of the $500,000 statutory cap on non-economic damages in a medical malpractice cases adopted by its state legislature. MacDonald v. City Hospital, Inc., 715 S.E.2d 405 (W. Va. 2011).
The constitutionality of the $1,000,000 cap for personal injury actions is now before the Mississippi Supreme Court in Sears, Roebuck & Co. v. Learmonth, No. 2011-FC-00143-SCT. The constitutionality of the $500,000 cap for medical malpractice cases is under review in Allcock v. Bannister, No. 2011-CA-00289.
In Sears, Roebuck & Co., the jury verdict did not divide the damages award into economic and non-economic damages, and the parties had filed a stipulation about what portion of the jury verdict was attributable to each category of damages. After oral argument, the appellate court sua sponte ordered the parties to address the issue of whether it was permissible under the statute for the parties to file an agreed stipulation as to the amount of non-economic damages awarded by a jury as opposed to the court having instructed the jury as the trier of fact to enter a finding of fact as to the total amount of non-economic damages to which the injured jury is entitled.
The order for supplemental briefing arose as a result of the Supreme Court’s decision in InTown Lessee Assocs., LLC v. Howard, 67 So.3d 711 (Miss. 2011), a case decided after the jury trial in Sears, Roebuck & Co. In InTown Lessee Assocs., LLC, the appeals court ruled that a party that sought to have the jury verdict reviewed to determine if the jury had awarded non-economic damages in excess of the $1,000,000 cap had waived this issue when it failed to object to an instruction that did not direct the jury when reaching its verdict to segregate any damages award into economic and non-economic damages.