The Mississippi Supreme Court’s decision to decline to answer the U.S. Fifth Circuit on whether Mississippi’s cap on non-economic damages is Constitutional postpones the inevitable: an eventual answer. Justice Mike Randolph wrote on behalf of the majority, “The constitutionality of a statute is not to be addressed ‘abstractly, speculatively, or in the manner of an academic discussion’ but rather in the context of its clear application.”
One day a case with clear application will be decided by the Mississippi Supreme Court. That day will come after this November’s elections in which three seats on the Court are being contested, a fourth - Justice Leslie King - has no opposition.
In the Southern District, Justice Randolph faces Gerald Talmadge Braddock. I wrote back in July:
Challenging Randolph is Gerald Talmadge Braddock, a Vicksburg native practicing law in Hattiesburg where his firm specializes in “serious personal injury, matrimonial law, and criminal defense.” Braddock lists his “area of expertise” as “DUI cases, Mass Tort Litigation with major pharmaceutical manufacturing companies, personal injury claims, criminal defense.” On his web site, Braddock notes he is the youngest lifetime member of the Mississippi Trial Lawyer Association (now called the Mississippi Association for Justice) where he says he serves on the Board of Governors.
Braddock recently opened a Gulf Coast office to focus on litigation regarding the Deep Horizon oil drill disaster. Last month he said on his Twitter account, “If somebody said ‘Free Money In Mississippi’, there would be a riot. Well, I’m saying it, ‘Free Money In Mississippi From the BP Oil Spill’”.
Randolph’s campaign is well funded, supported by all sides of the legal community, well organized and should be successful over Braddock who has struggled to gain financial support or build a grassroots network.
In the Central District, Chief Justice Bill Waller, Jr. faces State Representative Earle Banks. As I wrote last month, the nature of the district makes this race competitive, despite Waller’s fundraising and organization advantages. Banks consistently opposed tort reform in the legislature, there is no indication he would change his mind on the Court.
A victory by Braddock or Banks would create a seismic shift on the Court in favor of trial lawyers. But for those supporting Mississippi’s tort reform including the caps on non-economic damages, the greatest concern should be the open race in the Northern District.
Josiah Coleman, a defense attorney from Oxford, has been endorsed by the Mississippi Association of Realtors, the Mississippi Medical PAC, BIPEC and the Mississippi Manufactures Association. The Mississippi Republican Party endorsed Coleman and this week an e-mail from GOP National Committeeman Henry Barbour and former GOP Chairmen Brad White, Arnie Hedermann and retired Judge Jim Herring (a Fordice appointee formerly on the Court of Appeals) endorsed Coleman and blasted his opponent Flip Phillips:
But while business organizations are rallying around Josiah, his opponent – Flip Phillips – is attempting to conceal his liberal Democrat ties. The truth is Flip Phillips is the former President of the Mississippi Trial Lawyer’s Association and has contributed upwards of $15,000 to Ronnie Musgrove, Jim Hood, Chuck McRae and the Democrat National Committee. He also led the legal effort to overturn the tort reform that helped stop trial lawyers from making Mississippi a legal hellhole.
Phillips is not just a practicing trial lawyer, he is a philosophical advocate for the plaintiffs bar and his election to the Court would not just be a vote but a clever voice of persuasion to move the Court away from the established balance. From my column in June:
Coleman’s opponent is Richard T. “Flip” Phillips of Batesville, a former president of the Mississippi Trial Lawyers Association (now Mississippi Association for Justice). Early in the campaign, Phillips, a well regarded and successful attorney, was being presented to many in the business community as a candidate they could support. But his view of the civil justice system, as discussed in an article published in the Mississippi Law Journal in 2001 titled “Class Actions & Joinder in Mississippi” is exactly the opposite of what state business interests want in a judge.
Phillips wrote, “the fundamental purpose of civil litigation today is shifting from a strictly compensatory purpose to regulatory or punitive purposes.” At a symposium discussing the article, he argued Mississippi became “lawsuit central” in the country not because of the excessively high verdicts, but rather, because the rest of the country was not as enlightened as Mississippi. Rather than reform lawsuit abuse in Mississippi, he seemed to argue the rest of the country should become more like the Magnolia State. In another presentation Phillips argued the elected branches of government have failed to do their jobs and “regulation by litigation” could address policy issues involving tobacco, guns, insurance, health care and product liability.
Because the constitutionality of damage caps could come before the Court, Phillips and Coleman can’t address the issue in the campaign. However, in a 2009 case from DeSoto County, Phillips represented a plaintiff against a construction company who won a $30 million judgment: $13.7 million in noneconomic damages. Because of the damages cap, the trial judge reduced that portion of the verdict to $1 million, leaving $17.2 million for the plaintiff. Phillips appealed arguing the damage cap was unconstitutional and asked the Court to strike it down. The plaintiff and the construction company settled before the Court had an opportunity to decide the issue.
The Court’s decision yesterday not to answer on the constitutionality of Mississippi’s non-economic damage caps should focus attention on the race in the Northern District. While it is unknown how the Court will rule when the question finally and fully comes before it, the perspective of Phillips is clearly known as he has argued before the Court it is unconstitutional.