Der Fall an sich ist schon die Lektüre wert, die Diskussion um den Versuch der Eindämmung von uferlosen Schadensersatzansprüchen im Bereich der „non economic damages“ allemal. In 2004, Mississippi was viewed as the center of jackpot justice. That year, to address the problem, the Mississippi Legislature passed comprehensive tort reform that has been called „model“ legislation. Medical malpractice insurance rates have since plummeted, doctors are no longer leaving, and Mississippi now has a business environment which is much more conducive to expansion and job creation. All this is at risk, however, with a case currently pending before the Mississippi Supreme Court.In the Lymas v. Double Quick case, the plaintiff asserts that a centerpiece of the tort reform legislation, the $1 million cap on subjective noneconomic damages like pain and suffering, is unconstitutional. The Lymas plaintiff argues that the $1 million cap deprived him of a jury trial. But, Mr. Lymas did get a jury trial. He was awarded $3.49 million, which the judge then reduced to $1.67 million pursuant to the statutory non-economic cap. The cap did not affect the plaintiff’s economic losses such as wages and medical expenses since it applies only to subjective non-economic losses. Juries have always been constrained by the law. Judges routinely instruct juries on the law, including the standard for fault, to whom they can allocate fault and what type of damages are recoverable. Verdicts are properly overturned or modified when the judge gives the jury a wrong version of the law or a jury returns a verdict inconsistent with the law. There is no difference with the noneconomic cap. It is law, just like all other laws that govern in court. A jury has never been, and should not be, a law unto itself. Ironically, there are real questions about whether the law supports any damages in the Lymas case, regardless of the statutory caps.
The plaintiff’s injuries resulted from a criminal shooting in the parking lot of a store by a third party who was not the employee of the store, but plaintiff wants to recover from the store owner. Is it really fair to require store owners to anticipate and pay for criminal acts by people they do not know or control?
The plaintiff also argues that the cap interferes with the role of the judiciary. The plaintiff acknowledges that a judge can reduce the jury verdict, but thinks it is unconstitutional for the Legislature to limit verdicts on the front end to provide predictability in conjunction with reasonable compensation.The constitution does not say this, and this is totally inconsistent with other laws passed by the Legislature that limit what a jury can and cannot do.The Legislature overwhelmingly passed the $1 million cap in 2004 as part of comprehensive legislation after years of hard struggle and state elections in 2003 where tort reform was a dominant issue.
I authored the Senate version and handled it in the Legislature, so I remember how hard the fight was. The people spoke through the ballot, and the Legislature responded. This is democracy at its best. If the Legislature cannot define what is actionable and recoverable in a court of law, then the right of every Mississippian to have input in determining the law has been greatly diminished. This would be a real violation of separation of powers. Much is at stake.
The Supreme Court should reject the plaintiff’s challenge in Lymas, either by throwing the case out entirely, or at a minimum, upholding the $1 million pain and suffering cap. It would be a tragedy to undo legislation that has had such beneficial effect. Just as important, the rights of every Mississippian would be diminished. The way to change the statute is the Legislature, not judicial fiat, if such needs to be done.
Charlie Ross • Clarion-Ledger guest columnist • August 1, 2010
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