I was fortunate enough to see one of my favorite lawyers, the venerable John Corlew, argue an important case before the Mississippi Supreme Court many years ago. Beginning his argument, he respectfully reminded the Court that we inherited the right to trial by jury from England. He explained that this essential right was originally contained in the Magna Carta issued in June 1215, brought over on the Mayflower, and ultimately guaranteed to us by the United States and Mississippi Constitutions. He followed these solemn words saying something along the lines of, “and by God, we need to take this seriously!”
We do need to take this seriously. The jury trial is the great equalizer – it allows each of us to be judged by our peers and treated equally irrespective of background, politics, socioeconomic status, sex, race or religion. The jury trial is where justice is meted out and I love everything about it.
Yet, I would submit we have taken it for granted in some respects. By taking measures such as enacting caps on damages and enforcing pre-dispute mandatory arbitration in healthcare and consumer cases, lawyers, jurists, state legislators and members of Congress have allowed the erosion of the jury’s role in our system of justice over the past couple decades. It’s wrong and dangerous to continue this course.
John Adams wrote in 1766 that the “liberty and security of the people would be protected by trial by jury. The jury trial is the most extensive and robust expression of direct democracy that the world has ever seen. Quite simply, jurors are the life’s blood of our third branch of government.”
We have the greatest system of justice on earth. I was involved in a Medicare Fraud False Claims Act jury trial before United States District Judge Henry Wingate on the Gulf Coast for 9 weeks just before COVID shut things completely down. He told the jury venire at the outset of the case that visitors come from all over the world to tour the court and ask questions. He told them these visitors marvel at our great system of justice and, in particular, our jury system. Circuit Court Judge Dewey Arthur made similar comments about the importance of our jury system to the jury pool in a medical malpractice case I tried in November of 2020. I have no doubt these expressions from the bench helped to set the tone for justice to be done in these trials.
We have a constitutional right to trial by jury in criminal and civil cases. The Seventh Amendment to The United States Constitution provides:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, then according to the rules of the common law.
Further, Article 3, Section 31 of the Mississippi Constitution provides that “[t]he right of trial by jury shall remain inviolate…”
Our Founding Fathers demanded the sanctity of the jury trial be protected and not interfered with. Some examples:
“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.” John Adams, 1766
“The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.” ThomasJefferson, 1801.
“Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” James Madison, 1789.
Erosion of the Right to Trial by Jury
Arbitrary Caps on Damages
It has long been the jury’s role to determine appropriate damages in civil cases. It is within the purview of the judicial branch to review those awards. However, the Mississippi legislature has interfered with these roles by placing one-size-fits-all caps on damages.
Miss. Code Ann. 11–1-60 arbitrarily limits the jury’s ability to award damages. In 2002 the Mississippi Legislature enacted a $500,000 pain and suffering cap in all medical and nursing negligence cases. This coming July, this law will be 20 years old. Leaving the question of the validity of the caps aside for a moment, the legislation fails to even adjust for inflation. Simply adjusting for inflation, the cap would be up about 50% or adjusted to $762,400. In 2004 the Mississippi legislature enacted a $1,000,000 cap on pain and suffering damages in all other tort cases. Adjusted for inflation that $1,000,000 would now be $1,452,143.
I submit these legislative caps are unconstitutional. Many state legislatures enacted caps during the great wave of “tort reform.” The highest Courts in several of those states have since declared the caps to be unconstitutional. A couple of examples:
Georgia – Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, NO. SO9A1432 (Ga. March 22, 2010). The Court determined that damages caps in medical malpractice cases violated the right to trial by jury under Georgia’s constitution finding that, because the determination of damages has historically rested within the province of the jury, this includes the “attendant right to the award of the full measure of damages, including non-economic damages as determined by the jury.”
The Georgia Supreme Court rejected the medical provider’s arguments that, because punitive damages limits have been upheld, so too should noneconomic damages caps. The Court distinguished punitive damages as not being “facts” determined by the jury. Therefore, limitations on punitive awards did not implicate the right to a jury trial.
Illinois – damages caps have been declared unconstitutional on three different occasions, most notably on grounds of separation of powers. Most recently, the Illinois Supreme Court determined that caps on damages unduly encroach upon the judiciary’s power to determine whether a jury’s award for damages is excessive through remittitur.
The Mississippi Supreme Court will ultimately declare arbitrary caps on damages to be unconstitutional – let’s hope sooner rather than later. As lawyers, we should be doing our part to challenge the caps in appropriate cases.
How do we do that? We should raise the issue early in cases at the trial court level and give notice to the Attorney General’s office. MRCP 24(d) provides that a party asserting the unconstitutionality of a statute “shall notify the Attorney General of the State of Mississippi within such time as to afford [her] an opportunity to intervene and argue the question of constitutionality.” A word to the wise – this is not something that can be raised for the first time on appeal. I invite anyone reading this who is interested in this topic to contact me and I will provide complaints and other pleadings I have used to address this.
Pre-Dispute Arbitration Agreements
Pre-dispute mandatory arbitration in tort cases also endangers the right to a jury trial. Arbitration is not a proper substitute for jury trials in civil cases. I’m not saying arbitration is inappropriate under all circumstances. AIA construction contracts have contained arbitration clauses for a very long time and no construction project ever gets completed on time or on budget. The owners, architects, contractors, subcontractors, et al. know going in they don’t want to get caught up in potentially never-ending litigation when disputes inevitably arise. In this context, sophisticated parties agree on the front end that arbitration is more expeditious and cost-effective than litigation. So be it.
There are other commercial contracts and business deals where the contracting parties decide at the outset that arbitration is the best course to resolve disputes that may arise. These parties are likewise typically sophisticated and have made, usually with the help of their lawyers, the decision to agree as part of their contract to arbitrate disputes that may arise out of their business dealings. These individuals and businesses make knowing and intelligent determinations that arbitration is the acceptable form of dispute resolution when entering into their contracts.
However, under current Mississippi law, a person can be held to have knowingly and intelligently waived his or her constitutional right to trial by jury without ever knowing they’ve done so, such as when they sign documents seeking medical or nursing care that contain mandatory arbitration agreements. Such persons waive their constitutional right to a trial by jury without having any understanding of what arbitration even means, without even being able to read the arbitration terms in admission documents, and under circumstances where nobody even attempts to explain to them what they are signing.
Even if a healthcare administrator, nurse or doctor were to attempt to explain arbitration to a patient, they would not be able to adequately explain what it is. They are healthcare professionals, not lawyers. If they were qualified to give these explanations (they are not), they should not be giving legal advice to patients and their families seeking medical care. And, while I think people are by and large well-intentioned, explanations about arbitration given from healthcare providers to the patient are often something like, “oh don’t worry about that, it’s just something thrown in the paperwork for your benefit,” or “that just means that you can go to court if you want to or you can try to settle out of court if a problem comes up.”
I would also argue that once compelled to arbitration, the parties are effectively denied an opportunity to have valid constitutional issues heard and decided in the case. How so? In my experience, arbitrators follow the law as it stands and do not consider issues challenging the constitutionality of statutes such as caps on damages. If the arbitrator refuses to take up the issue, is that ruling appealable? No. If an arbitrator rules on the issue what appeal rights does the losing party have? Virtually none.
MS Code § 11–15-133 (2016) provides as follows:
(1) Upon application of a party, the court shall vacate an [arbitration] award where:
(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party.
Also, for those of us representing individuals, arbitration is unaffordable for the average consumer. When I oppose motions to compel arbitration, I often attach my own affidavit testifying that, based on arbitrations and costs I’ve encountered over the years, and based on my client’s monthly income, the client cannot afford the costs associated with arbitration. Courts and juries don’t charge our citizens for their services, and making access to justice unaffordable denies access to courts and juries as guaranteed by our state and U.S. constitutions.
Placing Form Over Substance: Notice Letters and Dismissal for Failure to Strictly Comply
Under Miss. Code Ann. § 15–1-36, “[n]o action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. Failure to strictly comply results in dismissal without prejudice.” Thomas v. Warden, 999 So.2d 842, 847 (Miss. 2008).
I’ve encountered arguments recently in cases where pre-suit notice was given, but suit was filed before the 60 days expired under § 15–1-36. The Defendant filed a motion to dismiss and, by the time the motion was filed, the statute of limitations that would have applied in the absence of the tolling under the notice statute had run. Defense counsel argued dismissal must be with prejudice. I successfully negotiated with counsel in one of these cases to allow us a “re-do,” which required a new notice letter, waiting for the time to run, and then proceeding in Court. That was a completely unnecessary delay but the courts have said dismissal is the remedy for failing to strictly comply.
In another recent case, § 15–1-36 notice was given but the suit was filed on Friday, the 59th day following notice rather than on Monday, the next business day. The defendants insisted on pushing the issue to a hearing, claiming that the suit must be dismissed with prejudice – the ultimate sanction and the ultimate example of placing form over substance. The case was settled before this issue was heard by the trial court.
Mississippi law is arguably unclear on this. This needs to be determined and while I believe it will be decided in a way that protects access to the courts and our jury system under our state and federal constitutions, it’s a dangerous issue for plaintiffs and their lawyers, and must be properly argued in compliance with available procedures.
Inadequate Insurance Policies and Eroding Coverage
Nursing homes are not required to carry liability or E&O coverage. Think of that. Any driver must carry $25,000 liability coverage in case of possible injury to others. While that’s clearly not enough, we all need it to drive. Nursing homes, meanwhile, which care for our most vulnerable citizens, are not required to have a penny in coverage. That’s not acceptable in a civilized society.
Nursing homes also get the benefit of $500,000 caps on pain and suffering damages — no matter how horrendous the pain and suffering. One size fits all. And nursing home plaintiffs are without economic damages to add to the $500,000 — no lost earnings and no significant medical bills (at least that aren’t subject to Medicare and Medicaid liens).
To make matters worse, some nursing homes have insufficient limits of liability — $250,000 — which erodes with costs of defense, experts, etc. This effectively creates a cap of $250,000 unless a plaintiff (or their family) has counsel with the wherewithal and fire power to take the matter to verdict in hopes of getting an excess verdict. That can be years in the making, however, and the risks are great. A typical nursing home case requires expenditures of $50,000 or more to get through a trial. Meanwhile, the $250,000 has eroded by defense costs so the money that should be readily available to pay the plaintiff is greatly reduced, requiring collection from a nursing home.
What does this have to do with jury trials? It squeezes the plaintiffs and families, forcing settlements in even the strongest cases for amounts well under even the arbitrary caps on damages enacted by the legislature. Plaintiffs’ lawyers and mediators find themselves explaining to families in horrible cases with huge damages that they really should consider taking an unacceptably low offer early in the case because: a) there’s only $250,000 in available coverage, b) the family will ultimately bear the costs of litigation of a settlement (let’s say conservatively $50,000 for experts, depositions and trial costs), and c) there’s no guarantee of winning but, even if the family hits a homerun under current law obtaining a pain and suffering award in the amount of $500,000, the $250K policy limits will have eroded significantly over the course of litigation and trial. The nursing homes have sewn this up tight, the result being that trial by jury is all but eviscerated in these cases.
I think we all believe in the right to trial by jury. We know it is essential to our system of justice. However, we can ill-afford to pay lip service to this right. Indeed, the United States Constitution says the right to trial by jury shall be preserved and the Mississippi Constitution mandates that the right to a jury trial shall remain inviolate. These are not suggestions. I’m with John Corlew on this – we need to take this seriously and do our part as lawyers and jurists to protect this sacred right. Our system of justice and judicial branch of government depend on it. We cannot remain silent. The profession and people we represent deserve better.