The U.S. Court of Appeal for the Fifth Circuit weighed in recently on the constitutionality of a state statutory cap on noneconomic damages, affirming the constitutionality of Mississippi’s noneconomic damages cap, Miss. Code § 11-1-60, in the case of Learmonth v. Sears, Roebuck and Co., No. 09-60651 (5th Cir. Feb. 27, 2013). The prevailing appellee, Sears, was represented by DRI member Francis A. Citera, a shareholder with Greenberg Traurig, LLP in Chicago, along with another shareholder from the firm. In a lengthy and rigorous opinion that is likely to stand as an important precedent on an issue that has recently divided the highest courts of a number of states, and carries important implications for state efforts to rein in excessive noneconomic awards, the Fifth Circuit undertook an Erie analysis and concluded that Mississippi’s statutory cap does not violate Mississippi’s jury guarantee that the “right of trial by jury shall remain inviolate,” Miss. Const. art. III, § 31, nor does it violate Mississippi’s separation of powers clause, Miss. Const. art. I, §§ 1, 2.

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