We’ve just learned, thanks to a head’s up from Skadden‘s Elliott Davis, that the Fifth Circuit today affirmed the constitutionality of Mississippi’s $1 million statutory non-economic damages cap.  In Learmonth v. Sears, Roebuck & Co., No. 09-60651, slip op. (5th Cir. Feb. 27, 2013), the court rejected challenges based on:

(1)  The “inviolate” right to jury trial under the Mississippi constitution.  The statute does not invade the jury’s fact finding – indeed the jury isn’t even told about the statute.  The judge simply reduces the award in accordance with the “legal effect” of the cap.  Slip op. at 13-14.

(2) There is no derivative constitutional right to a dollar-for-dollar conversion of a verdict into an enforceable judgment, as the legislature may revise legal remedies.  Id. at 14-20.

(3) Separation of powers under the Mississippi constitution.  Since the statute sets a non-discretionary limit on legal remedies, it is not an invalid legislatively-enacted procedural rule.  Slip op. at 20-22.  Nor does it invade a “core” function of the judicial branch.  Id. at 22-25.  The legislature has a right to make changes to substantive law.  Id. at 23.

We also note the 2009 docket number.  Lest anyone question the Fifth Circuit’s diligence, we suspect that a lot of the time passed while the court waited, in vain, for the Mississippi Supreme Court to accept certification of the issue.  See Slip op. at 1, 5.  Given our views on the role of federal courts sitting in diversity, see slip op. at 10, we believe that the certification attempt was precisely the right move.