Learmonth v. Sears, Roebuck & Co.

• Decision Date: 20 March 2013
• Docket Number: No. 09–60651.,09–60651.
• Citation: 710 F.3d 249
• Parties: Lisa LEARMONTH, Plaintiff–Appellee Cross–Appellant v. SEARS, ROEBUCK AND CO., Defendant–Appellant Cross–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

710 F.3d 249

Lisa LEARMONTH, Plaintiff–Appellee Cross–Appellant

v.SEARS, ROEBUCK AND CO., Defendant–Appellant Cross–Appellee.

No. 09–60651.

United States Court of Appeals, Fifth Circuit.

Feb. 27, 2013.

As Revised March 20, 2013.

Robert Kevin Hamilton, Hamilton Law Firm, P.L.L.C., Jackson, MS, Joe Clay Hamilton, Hamilton Law Firm, P.L.L.C., Meridian, MS, for Plaintiff–Appellee Cross–Appellant.

Francis A. Citera, Gregory E. Ostfeld, Greenberg Traurig, L.L.P., Chicago, IL, Henry Gray Laird, III, Page, Kruger & Holland, P.A., Jackson, MS, for Defendant–Appellant Cross–Appellee.

Cynthia I. Mitchell, Merkel & Cocke, P.A., Clarksdale, MS, David Neil McCarty, David Neil McCarty Law Firm, P.L.L.C., Jackson, MS, for Amicus Curiae Mississippi Association for Justice.

Mark Alan Behrens, Cary Silverman, Shook, Hardy & Bacon, L.L.P., Washington, DC, Carl Robert Montgomery, Attorney, Montgomery McGraw Collins O'Cain & Coleman, P.L.L.C., Canton, MS, for Amicus Curiae Mississippi Manufactures Association, Mississippi Economic Counsel, Independent Insurance Agents of Mississippi, Home Builders Association of Mississippi Incorporated, Mississippi Automobile

Dealer's Association, American Council of Engineering Companies–MS, Mississippi Health Care Association, Mississippi State Medical Association, Mississippi Consumer Finance Association, Associated General Contractors of Mississippi, Incorporated, Associated Builders & Contractors Inc., Mississippians for Economic Progress, Mississippi Hospital Association, Mississippi Propane Gas Association, Mississippi Petroleum Markets and Convenience Stores Association, Mississippi Trucking Association Management Services Incorporated Employee Welfare Benefit Plan, Mississippi Asphalt Pavement Association, Incorporated, Mississippi Bankers Association, Mississippi Concrete Industries Association, Mississippi Association of Realtors, Mississippi Poultry Association, Incorporated, Mississippi Pharmacists Association, National Federation of Independent Business Mississippi Chapter, Mississippi Forestry Association, and Beverage Association of Mississippi.

Jeffrey Scott Newton, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Jackson, MS, for Amicus Curiae Phil Bryant, Governor.

Douglas T. Miracle, Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Harold Edward Pizzetta, III, Special Attorney to the Attorney General, Office of the Attorney General for the State of Mississippi–Civil Litigation, Jackson, MS, for Intervenor State of Mississippi.

Appeals from the United States District Court for the Southern District of Mississippi.

Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.

KING, Circuit Judge:

A federal jury found Sears, Roebuck and Co. liable for causing Lisa Learmonth's injuries in an automobile accident. In a general verdict, the jury awarded her $4 million in compensatory damages. On Sears' motion, the district court interpreted the award to include $2.2 million in noneconomic damages, then reduced this portion of the award to $1 million pursuant to Mississippi's statutory cap on noneconomic damages. Learmonth appealed, arguing that the cap violates the Mississippi Constitution's jury trial guarantee and separation of powers provisions. We certified Learmonth's constitutional challenge to the Mississippi Supreme Court. Because that court declined the certified question, we must address the merits of Learmonth's appeal. For the reasons that follow, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lisa Learmonth was seriously injured in a collision between her vehicle and a van operated by a Sears, Roebuck and Co. employee. Invoking diversity jurisdiction, Learmonth brought suit against Sears in federal court. After a trial, the jury found Sears liable for Learmonth's injuries, and awarded $4 million in compensatory damages. After the district court entered a judgment for that amount, Sears filed a motion under Federal Rule of Civil Procedure 59(a) and (e), arguing that Learmonth had made improper and inflammatory comments in her opening and closing statements, and that the award's excessiveness justified remittitur or a new trial. The motion also included a request to apply Mississippi's statutory $1 million cap on noneconomic damages. The cap is set out in Mississippi Code § 11–1–60, which provides:

(1) For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) “Noneconomic damages” means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term “noneconomic damages” shall not include punitive or exemplary damages.

* * *

(2)(b) In any civil action filed on or after September 1, 2004, ... in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.

It is the intent of this section to limit all noneconomic damages to the above.

(c) The trier of fact shall not be advised of the limitations imposed by this subsection (2) and the judge shall appropriately reduce any award of noneconomic damages that exceeds the applicable limitation.

Miss.Code Ann. § 11–1–60 (Supp. 2012).¹

Because neither party had requested a special verdict itemizing damages, the jury's award was set out in a general verdict. In ruling on Sears' Rule 59 motion, the district court segregated the verdict into four parts—$90,098.42 for past medical expenses, $483,510.00 for future medical expenses, $1,207,486.00 for lost wage-earning capacity, and $2,218,905.60 (the remainder) for noneconomic damages.² The court obtained these figures from Sears' motion. Sears, in turn, had obtained them from expert testimony presented at trial. Learmonth did not dispute these figures. On the contrary, she adopted them in her own arguments opposing remittitur or a new trial. This appears to have been a strategic decision; in her responsive filings, Learmonth repeatedly noted that although Sears was attacking the full $4 million verdict as excessive, it had glossed over the fact that approximately $1.8 million of this amount had been awarded for actual and projected economic damages.

In addition to opposing Sears' request for a new trial or remittitur, Learmonth challenged the validity of Mississippi's noneconomic damages cap. She first contended that § 11–1–60(2)(b) violates the United States Constitution's Equal Protection Clause and the Mississippi Constitution's Jury Trial Clause, Separation of Powers Clauses, Due Process Clause, and Remedy Clause. U.S. Const. amend. XIV, § 1; Miss. Const. art. I, §§ 1, 2; Miss. Const. art. III, §§ 14, 24, 31. Next, Learmonth argued that § 11–1–60(2)(b) violates the holding in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), by requiring amendment of a jury's verdict in contravention of the Federal Rules of Civil Procedure. SeeFed.R.Civ.P. 49(b)(2), 58(b) (providing the procedure for entering judgment following a jury trial). Finally, Learmonth argued that § 11–1–60(2)(b) in effect sets out a remittitur requirement. Because remittitur is a procedural matter, she maintained, a federal court cannot be bound by such a requirement under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Although the district court denied Sears' request for a new trial or remittitur, it reduced noneconomic damages to $1 million pursuant to § 11–1–60(2)(b). The court rejected Learmonth's challenges to § 11–1–60(2)(b) “[f]or the reasons well stated in” the memoranda submitted by Sears and the State of Mississippi, which had intervened to defend the statute's validity.

Sears appealed the district court's denial of a new trial or remittitur. We affirmed in part, holding that (1) the district court had not abused its discretion in denying Sears' motion for a new trial; (2) the $1.2 million award for lost earning capacity and the statutorily capped $1 million award for noneconomic damages were not excessive; and (3) this court's “maximum recovery rule” did not apply. Learmonth v. Sears, Roebuck & Co. ( Learmonth I ), 631 F.3d 724, 733–39 (5th Cir.2011). We also stated that the unadjusted $2.2 million noneconomic damages award would not have been excessive. Id. at 736 n. 3.

Learmonth cross-appealed, arguing that the noneconomic damages cap violates the Mississippi Constitution's jury trial guarantee and separation of powers provisions. She did not renew her other challenges to § 11–1–60(2)(b). Because there was no controlling authority at the time of decision, we certified the constitutional question to the Mississippi Supreme Court. Id. at 739–40. We held the appeal in abeyance pending that court's decision.

The Mississippi Supreme Court declined our question. Sears, Roebuck & Co. v. Learmonth ( Learmonth II ), 95 So.3d 633, 639 (Miss.2012) (en banc). The court analyzed § 11–1–60(2)(b)'s text, which provides that “[the trier of fact] shall not award the plaintiff more than One Million Dollars ($1,000,000) for noneconomic damages.” It noted that, for purposes of Learmonth's cross-appeal, the parties had agreed that the verdict included a $2,218,905.60 noneconomic damages award. Id. at 635–36. Nonetheless, because it was not clear that the jury in this matter would have divided the award into the amounts the district court used, the Mississippi Supreme Court rejected the parties' stipulation, and held that it could not determine whether the “trier of fact” had awarded Learmonth more than $1 million. Id. at 637. The court further concluded...