     Case: 09-60651 Document: 00511355913 Page: 1 Date Filed: 01/19/2011




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                                  January 19, 2011

                                 No. 09-60651                      Lyle W. Cayce
                                                                        Clerk

LISA LEARMONTH,

                                           Plaintiff - Appellee
                                           Cross - Appellant,
v.

SEARS, ROEBUCK AND CO.,

                                           Defendant - Appellant
                                           Cross - Appellee




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before KING, STEWART, and OWEN, Circuit Judges.
KING, Circuit Judge:
      A jury found Sears, Roebuck and Company liable for causing Lisa
Learmonth’s injuries in an automobile accident and awarded her $4 million in
compensatory damages. The district court denied Sears’ motion for a new trial,
but remitted the non-economic damages portion of the award to $1 million
pursuant to Mississippi’s statutory cap on non-economic damages. Sears appeals
the district court’s denial of its motion for new trial; Learmonth cross-appeals
the constitutionality of the Mississippi statutory cap. We affirm the district
court’s judgment insofar as it denied a new trial and certify the state
constitutional question to the Supreme Court of Mississippi.
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                                  No. 09-60651

                              I. BACKGROUND
      Plaintiff Lisa Learmonth was seriously injured in a car accident at the
intersection of Mississippi State Highways 15 and 485. The collision involved
Learmonth’s car, which she was driving, and a Sears, Roebuck and Company
(“Sears”) van driven by James McClelland, a Sears employee. Sears contested
both liability and damages at trial.
      The primary factual dispute as to liability was which driver was traveling
on Highway 15, which runs north and south, and which driver was traveling on
Highway 485, which runs east and west at that juncture. The question was a
critical one, as there is a stop sign on Highway 485—but no stop sign on
Highway 15—at the intersection where the accident took place. Therefore,
whoever was driving on Highway 15 had the right-of-way. Both drivers claimed
that the other had been traveling east on Highway 485 and had run the stop sign
at the intersection, causing the collision.
      Eight fact witnesses testified in connection with the liability issue,
including Learmonth and McClelland. Learmonth, who suffered head trauma
from the collision, testified that she did not remember the accident itself, but
that she had been heading north on Highway 15 to pick up her mother that day
and had called her mother from a town south of the intersection on Highway 15.
Phone records verified that Learmonth called her mother about fifteen minutes
before the accident occurred. McClelland testified that he completed a service
call at the home of Bud Dees, a quarter-mile north of the intersection on
Highway 15, and was driving south on Highway 15 when Learmonth’s car
entered his path. At trial, he testified that he could not remember what time he
left Dees’ home, but in earlier depositions he testified that he left around
11:30 a.m. The accident occurred around 1:30 p.m. Sears submitted an affidavit
stating that it was unable to locate any information or records, electronic or
otherwise, regarding the service calls, deliveries, or repairs made by McClelland

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on the day of the accident, and it was thus unable to confirm McClelland’s
whereabouts on the day of the accident.
      One eyewitness testified that he saw the Sears van run the stop sign. Two
other witnesses placed Learmonth traveling north on Highway 15 near the time
of the accident; one of those witnesses stopped to render aid at the scene until
emergency personnel arrived. Three witnesses, including McClelland, testified
that the vehicles came to rest in the northeast quadrant of the intersection. One
witness, however, placed the Sears van in the northeast quadrant and
Learmonth’s car in the northwest quadrant.
      Several witnesses testified about McClelland’s actions immediately
following the accident. Two witnesses stated that he ran towards or into the
woods near the intersection, with one of those witnesses testifying that he
“walked over there like he was throwing something.” That same witness stated
that the “dude acted like he was going to take off from the scene.” Another
witness did not see McClelland run toward the woods, but testified that he was
pacing near the woods and never approached Learmonth’s car or tried to help
Learmonth. McClelland testified that he ran away from the van because he
thought it was on fire. He further testified that he returned to retrieve his cell
phone when he saw that the van was not on fire; that he called his supervisor
and not 911 because another person was already calling 911; and that he did not
approach Learmonth’s car because emergency personnel were on the way.
      Two accident reconstruction experts also testified at length concerning
liability. Learmonth’s expert opined that, based on the measurements taken of
the damage to the vehicles and assuming that their final resting place was in the
northeast quadrant, Learmonth’s car was struck while traveling north on
Highway 15 by the larger Sears van traveling east on Highway 485. In his view,
it was not plausible that both vehicles would come to rest in the northeast
quadrant of the intersection if the larger van, traveling south, struck the car at

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a high rate of speed when the car ran a stop sign traveling east. Instead, the van
would have pushed the car to the south side of the intersection. Sears’ expert
testified that there was not enough physical evidence to determine the sequence
of events or the cause of the collision.
      Learmonth was seriously injured in the accident, suffering, among other
things, traumatic brain injury with loss of consciousness; multiple fractured
bones in her pelvic area which required a permanent screw; a broken collarbone;
acute post-hemorrhagic anemia; and puncture wounds and lacerations to her
face and shoulder. She was hospitalized for five days after the accident, confined
to a wheelchair for two months, and on crutches for several weeks after that.
Her fractures have healed, but Learmonth testified at trial that she continues
to experience chronic pain in her lower back and pain from nerve damage in her
left leg. She receives epidural steroid injections one to three times a year for
pain alleviation, and will continue to do so for the next ten to fifteen years. She
testified that the injections provide some relief for her leg pain, but very little
relief for her back pain.
      Learmonth also presented evidence that she suffered from short- and long-
term memory loss, headaches, blackouts, and depression, although not all of
these ailments were documented in her medical records.           Her ex-husband
testified that the accident—and Learmonth’s ensuing physical and emotional
problems—were the cause of their divorce.         Evidence was also offered of
Learmonth’s decreased capacities for housecleaning, playing with her son, and
taking care of herself.
      Learmonth has held three jobs since the accident—waitressing at a
restaurant, selling clothes at a retail store, and working as a bank teller. She
left the restaurant because she could not perform the tasks required due to
physical and emotional problems; her injured collarbone prevented her from
lifting the server trays over her head, as required, while the emotional problems

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manifested themselves in frequent crying. She left her retail job because it
entailed too much standing, and left the teller job on her doctor’s
recommendation due to the pain she experienced from sitting and standing for
long periods of time.
      At the conclusion of the trial, the jury found Sears liable for Learmonth’s
injuries and awarded her $4 million in compensatory damages. The verdict on
its face did not divide the award into separate categories, but the parties agree
that the total award can be divided as follows: approximately $1.2 million for lost
earnings; $573,000 in past and future medical expenses; and approximately $2.2
million in non-economic damages.
      Sears moved for a new trial, arguing that Learmonth’s counsel made
improper comments during opening and closing statements, that the district
court admitted improper evidence at trial, and that the jury’s verdict was so
exaggerated that it reflected bias, passion, and prejudice. Sears moved in the
alternative for remittitur on the grounds that the award exceeded both the
bounds of reasonable recovery for injuries of the type Learmonth sustained, as
well as Mississippi’s statutory cap of $1 million on non-economic damages, M ISS.
C ODE A NN. § 11-1-60(2)(b) (Supp. 2010). Learmonth argued, for her part, that
Section 11-1-60(2)(b) violates the Mississippi constitution.
      The district court denied Sears’ motion for a new trial, but rejected
Learmonth’s challenge to the constitutionality of Section 11-1-60(2)(b) and
remitted the non-economic damages award to $1 million. This appeal and cross-
appeal followed.
                               II. DISCUSSION
      A.    Motion for New Trial
      Sears argues that the district court erred in denying a new trial based on
improper comments made by plaintiff’s counsel during the opening and closing
statements, and the admission of irrelevant and prejudicial evidence at trial. “A

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new trial will not be granted based on trial error unless, after considering the
record as a whole, the court concludes that manifest injustice will result from
letting the verdict stand. We will reverse the trial court’s denial of a motion for
a new trial only when there is a clear showing of an abuse of discretion.”
Foradori v. Harris, 523 F.3d 477, 506–07 (5th Cir. 2008) (citations and internal
quotation marks omitted).
      1.     Improper Comments by Plaintiff’s Counsel
      The propriety of opening and closing arguments is a matter of federal trial
procedure, and is therefore subject to federal rather than state law in a diversity
case. Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 275 (5th Cir. 1998)
(citations omitted). When an argument is challenged for impropriety or error,
we review “the entire argument . . . within the context of the court’s rulings on
objections, the jury charge, and any corrective measures applied by the trial
court.” Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1238 (5th Cir.
1985). “Alleged improprieties may well be cured by an admonition or charge to
the jury.” Id.
      Sears objects to the following statements, listed in the order in which they
were made at trial:
      1.    “Sears Roebuck has gone on about their business making
            money.”
      2.    “I’m not going to say what happened [concerning the missing
            service records from McClelland’s laptop]. But I know, let me
            tell you, we live in a society where business can be cold and
            cruel and they do what they need to to survive. We know
            that.”
      3.    “And to me, that sun standing still [referring to McClelland’s
            testimony that he left Bud Dees’ home at 11:30 but could not
            explain what he was doing before the accident occurred
            almost two hours later] keeps him from being credible
            altogether with me.”



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      4.    “Well, number one, I don’t believe that he didn’t know where
            he was [referring again to McClelland’s testimony about the
            time gap].     I believe he made up that story about
            leaving—some story.”
      5.    “Does a credible person jump out of a car and run into the
            woods? Now, you may not believe he did. But W. L. Cleveland
            doesn’t know anybody from Adam’s house cat, happened to be
            standing out there and saw him run off to the woods. Candy
            Nance saw him running around everywhere. The patrolman
            said he didn’t, but the patrolman didn’t get there until eight
            or ten minutes after the accident. By then, he was back.
            That’s one way to judge McClelland’s credibility, I think.”
      6.    “And believe you me, some of this testimony wouldn’t be
            undisputed if there was any way to dispute it. I can promise
            you that. Somebody would have been here to dispute it,
            because their resources are far more powerful than ours.”
      7.    “And I just—I talked to you about all the injuries that this
            woman had. Man, how much more banged up can you get
            than to have all the bones broken and everything? How much
            more banged up can you get? And what do they say? Oh, she
            was all right in three months. Well, they could have had her
            examined by their own doctor if they had wanted.”
      8.    “You know, there is such a contrast between Bud Dees and
            Candy Nance. I mean, I think Candy Nance is a great person.
            Don’t ask me what I think of Bud Dees, because I can’t use
            that kind of language.”
      9.    “And you know, everything is relative. Whether something is
            big or little, it’s relative. It depends. To me or somebody else
            maybe, that’s just so much money. But what if you were in
            Lisa’s place? You know?”
      S ears’   objection    to    the       com m en ts   con cern ing   w itness
credibility—statements 3, 4, 5, and 8 above—were not properly preserved for
appeal because Sears neither objected to them during trial, nor raised them
before the district court in post-trial proceedings. Accordingly, we review those
statements for plain error only and will reverse only if necessary to preserve a
party’s substantial rights. See F ED. R. C IV. P. 61; Whitehead, 163 F.3d at 276.

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We have held that it is permissible for an attorney “to make statements that
indicate his opinion or knowledge of the case . . . if the attorney makes it clear
that the conclusions he is urging are conclusions to be drawn from the evidence.”
United States v. Thompson, 482 F.3d 781, 786 (5th Cir. 2007) (citation and
internal quotation marks omitted). Statements 3 and 5 may fall within this
description, whereas statements 4 and 8 are more questionable. Nevertheless,
we do not find that the statements were so erroneous as to affect Sears’
substantial rights. Indeed, the weight of the evidence showed an unexplained
lapse of time between McClelland leaving Dees’ home at 11:30 a.m. and the
accident at 1:30 p.m., a key issue regarding liability given that Dees’ home is on
Highway 15 just a quarter of a mile north of the intersection where the collision
took place.
      The parties dispute whether we should consider comments 2 and 6. The
district court sustained Sears’ objection to those comments at trial, stating that
they were matters outside of the record, but Sears did not identify them in its
post-trial briefing until its reply brief in support of its motion for a new trial. We
need not decide the issue, however, because even if we consider those comments
together with the other remaining comments, they do not rise to a level of
manifest injustice requiring reversal.
      Sears argues that Learmonth’s counsel used improper conscience-of-the-
community arguments in statements 1, 2, and 6. A conscience-of-the-community
argument is any “impassioned and prejudicial plea[] intended to evoke a sense
of community loyalty, duty and expectation.” Westbrook, 754 F.2d at 1239. Such
an argument often invokes the parties’ “relative popular appeal, identities, or
geographical locations” to prejudice the viewpoint of the jury against an out-of-
state corporation. Guaranty Serv. Corp. v. Am. Emp’rs’ Ins. Co., 893 F.2d 725,
729 (5th Cir. 1990). Sears also asserts that Learmonth’s counsel argued a fact
not in evidence in statement 7 and used an improper Golden Rule argument in

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statement 9. A Golden Rule argument suggests that the jury “place themselves
in the plaintiff’s position and do unto him as they would have him do unto them.”
Whitehead, 163 F.3d at 278 (citation and internal quotation marks omitted).
      We agree with Sears that these comments were improper, but the
impropriety was effectively cured by the court’s sustainment of Sears’ objections
to each of the statements at trial, as well as by the court’s jury charge, which
instructed the jury that “[i]n deciding the facts of this case you must not be
swayed by sympathy or bias or prejudice or favor as to either party”; that
corporations and individuals have “equal standing in the community”; and that
the lawyers’ arguments are not evidence. Moreover, “the failure of defense
counsel to seek a mistrial suggests that any lingering prejudice from the
improper comments was minimal.” United States v. Diaz-Carreon, 915 F.2d 951,
959 (5th Cir. 1990). The district court therefore did not abuse its discretion in
denying Sears’ motion for a new trial on the basis of these improper comments.
      2.    Admission of Improper Evidence
            a.    Testimony as to McClelland’s Post-Accident Conduct
      We review a district court’s evidentiary rulings for abuse of discretion.
Abner v. Kansas City So. R.R. Co., 513 F.3d 154, 168 (5th Cir. 2008). Sears
argues that testimony pertaining to McClelland’s post-accident conduct should
have been excluded as irrelevant under Federal Rule of Evidence 402, or, in the
alternative, as unfairly prejudicial under Rule 403. Sears’ motion in limine to
exclude this evidence was sufficient to preserve the issue for appeal, even absent
objection at trial. See Mathis v. Exxon Corp., 302 F.3d 448, 459 & n.16 (5th Cir.
2002).
      Evidence that is not relevant is inadmissible under Rule 402. Relevant
evidence is that which has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more or less probable than
it would be without the evidence.” F ED. R. E VID. 401. The central issue as to

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liability at trial was which driver, Learmonth or McClelland, was traveling east
on Highway 485 and failed to stop at the stop sign.           To the extent that
McClelland’s     testimony    on    his   conduct   immediately    following   the
accident—whether he ran into the woods, threw something into the tree line,
failed to render any assistance to Learmonth, or told another witness that there
was nobody in Learmonth’s vehicle—differed from that of other witnesses, it
could render less credible his testimony as to his pre-accident conduct. And as
stated above, McClelland’s whereabouts immediately before the accident was a
critical question as to liability in this case.
      Nor is this evidence unfairly prejudicial such that it should have been
excluded under Rule 403. “Rule 403 requires that the probative value of the
evidence must be ‘substantially outweighed by the danger of unfair prejudice’
before the court may exclude the disputed evidence.” Baker v. Can. Nat’l/Ill.
Cent. RR, 536 F.3d 357, 369 (quoting F ED. R. E VID. 403). “Unfair prejudice is not
satisfied by evidence that is ‘merely adverse to the opposing party.’ ”         Id.
(quoting Brazos River Auth. v. GE Ionics, 469 F.3d 416, 427 (5th Cir. 2006)).
While the jury may have had a negative reaction to the fact that McClelland did
not approach Learmonth’s car or attempt to help her, the jury was equally free
to believe McClelland’s testimony that he did not offer assistance because
someone else at the scene had already called 911, and because emergency
personnel were on the way. And the danger—anticipated by Sears—that the
jury “could mistakenly decide liability based on a misapprehension that
McClelland was impaired and was acting to conceal some illegal substance” was
countered by evidence offered by Sears at trial that McClelland did not appear
to be impaired, and by the fact that no physical evidence was ever produced to
support the lone witness’s testimony that something had been thrown into the
tree line. The jury was also free to consider all the other testimony offered at
trial regarding liability.   We cannot say that the district court abused its

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discretion in determining that the danger of unfair prejudice did not
substantially outweigh the probative value of this evidence.
      Finally, Sears argues that evidence of McClelland’s post-accident conduct
was inadmissible under Rule 608(b), which provides that “specific instances of
the conduct of a witness, for the purpose of attacking or supporting the witness’
character for truthfulness . . . may not be proved by extrinsic evidence.” This
argument, which was not raised below, is in any event without merit because
Rule 608(b) limits only the use of evidence “designed to show that the witness
has done things, unrelated to the suit being tried, that make him more or less
believable per se.” United States v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984)
(emphasis added). Here, as we have explained, McClelland’s conduct is directly
related to the suit being tried, and this argument is therefore inapposite.
            b.    Demonstration of Learmonth’s Injury
      Sears also argues that Learmonth improperly demonstrated her injury in
front of the jury. Sears presented a video during Learmonth’s cross-examination
showing her walking normally at the Neshoba County Fair a few months prior
to trial. After testifying, Learmonth returned twice to the courtroom, walking
“pretty slowly [and] limping noticeably,” an action the district court
characterized as “tantamount to testimony” that “at least some of the jury”
observed. This action was brought to the parties’ attention by the district court
during a conference in chambers. The court commented, however, that “if you
had any response to that, I wouldn’t do anything about it; but it’s just an
unfortunate occurrence and it doesn’t need to happen again.”
      Sears argues that the prejudicial effect of this demonstration was “obvious
and incurable.” Yet, as Learmonth notes, Sears did not raise any concerns about
the demonstration during the conference in chambers, request to recall
Learmonth to the stand, or request that any other curative actions be taken.
Accordingly, our review is for plain error only. Foradori, 523 F.3d at 508.

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       In the overall context of the trial, we find that the plaintiff’s demonstration
did not affect Sears’ substantial rights. Learmonth’s gait would have been
readily observed by the jury when she entered and exited the courtroom to
testify. Cf. Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1426 (5th Cir. 1988)
(holding that counsel’s comments on plaintiff’s use of cane did not require a new
trial, because “[t]he jury no doubt had observed [plaintiff’s] hobbled gait as he
took the witness stand” and “[a]ny additional impact on the jury as it watched
[plaintiff] walk to the chalkboard was not seriously prejudicial”). Furthermore,
the jury was free to credit the video evidence presented by Sears, which showed
Learmonth walking in a normal manner. We therefore conclude that the district
court did not abuse its discretion in denying a new trial on this basis.
       B. Excessiveness of the Jury Award
       Sears next contends that the $1.2 million award for lost earning capacity
and the $1 million post-statutory remittitur award for non-economic damages
were contrary to the great weight of the evidence and so exceed the bounds of
reasonable recovery that a new trial or remittitur is required.1 Although the
verdict did not distinguish the amount of the jury’s award for each category of
Learmonth’s damages, the district court concluded—and the parties do not
challenge—that the award was comprised of $90,098 for past medical expenses,
$483,510 for future medical expenses (reduced to net present value), and
$1,207,486 for loss of earning capacity, with the remaining $2,218,905
constituting non-economic damages.2                The district court reduced the non-
economic damages to $1 million pursuant to Mississippi’s statutory cap on non-
economic damages, Miss. Code Ann. § 11-1-60(2)(b).



      1
       Sears does not challenge the reasonableness of the award for past and future medical
expenses.
      2
          We note that the sum of these numbers is $1 short of the total verdict of $4 million.

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      In a diversity case, we apply the new trial or remittitur standard according
to the forum state’s law controlling jury awards for excessiveness. Foradori, 523
F.3d at 497 (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 419, 434
(1996)). Our review under that standard is for abuse of discretion only, id. at
497–98, and “[w]e must give the benefit of every doubt to the judgment of the
trial judge.”   Id. at 498 (quoting Gasperini, 518 U.S. at 438–39) (internal
quotation marks omitted).
      Mississippi’s statutory standard for granting a new trial or remittitur
provides, in relevant part:
      The supreme court or any other court of record in a case in which
      money damages were awarded may overrule a motion for new trial
      or affirm on direct or cross appeal, upon condition of an additur or
      remittitur, if the court finds that the damages are excessive or
      inadequate for the reason that the jury or trier of the facts was
      influenced by bias, prejudice, or passion, or that the damages
      awarded were contrary to the overwhelming weight of credible
      evidence.
M ISS. C ODE. A NN. § 11-1-55 (Supp. 2010). We therefore review the testimony
and exhibits presented to the jury at trial to determine whether the district court
abused its discretion in determining that the damages awarded were not
“contrary to the overwhelming weight of credible evidence.”
      1.    Loss of Earning Capacity
      Learmonth presented evidence to support a determination of a one
hundred percent loss of earning capacity. Her pain management physician
determined that Learmonth had “reached the point where she can no longer hold
down a job,” and that he planned to take her off of work “due to the severity of
her symptoms including the mechanical back pain and the nerve injury pain in
her left leg or lower extremity.” These injuries affect her ability to work because
she cannot sit or stand for any long periods of time.        He also opined that




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Learmonth was a reasonable candidate for long-term disability and that she
would be restricted from work “indefinitely.”
      Learmoth’s vocational rehabilitation counselor also testified that she
would not be able to return to competitive employment, based on the fact that
there were no jobs that would meet her limitations in sitting and standing. And
although Sears repeatedly emphasized that there were no limitations on
Learmonth pursuing her education and thereby increasing her employment
potential, her vocational counselor pointed out that any further education
Learmonth obtained would not increase her tolerance for sitting and standing,
and was thus irrelevant to the limitations that kept her from working.
      Sears relies heavily on the fact that no doctors have placed any physical
restrictions or limitations on Learmonth, and that her treating physician said
that he would not restrict her from performing jobs within her functional
capacity and pain limitations. Sears points out that Learmonth worked at three
different jobs after the accident under the care of her doctors.        Although
Learmonth did work at three jobs, it is undisputed that she had to leave all three
jobs because of her physical and emotional pain and discomfort. Learmonth’s
restaurant employer testified that she could not physically perform waitressing
duties, which involved carrying heavy loads, and that she was emotionally
unable to perform the lighter work of hostessing. Learmonth described “real bad
pains” in her lower back associated with the sitting and standing in her job as
a bank teller, even though she was allowed to alternate sitting or standing as
often as she liked. Learmonth’s supervisor at the bank testified that Learmonth
constantly readjusted her position, trying to get comfortable, and her doctor
ultimately advised her to stop working there because of her discomfort.
Learmonth also testified that she could not continue her retail job because of the
constant standing and an inability to sit down at the job site. She has to lay



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down several times a day to help with the pain, and she takes a wide variety of
medication on a daily basis.
         Based on the assumption that Learmonth could not sustain competitive
employment, and that she had suffered a fifty percent reduction in her ability
to perform household services for herself and her family, Learmonth’s expert
economist opined that the net present value of her future earnings was
approximately $1.2 million. This number was based in part upon a $32,000
yearly income, an average between the annual income of a high school graduate
and that of a person with an associate degree. The evidence at trial showed that
Learmonth had just begun a nursing program at a junior college and had been
a motivated high school student.
         Ultimately, the question whether Learmonth suffers so much pain on a
daily basis that she is prevented from working again is a factual question. Upon
reviewing the evidence on both sides, we are convinced that the jury’s verdict as
to loss of earning capacity was not “contrary to the overwhelming weight of
credible evidence.” Accordingly, we refuse to disturb the jury’s verdict on this
issue.
         2.   Non-Economic Damages
         In reviewing the excessiveness of the non-economic damages award, we
consider the post-remittitur amount of $1 million, rather than the $2.2 million
amount originally awarded by the jury.3 Salinas v. O’Neill, 286 F.3d 827, 830
n.3 (5th Cir. 2002); Giles v. Gen. Elec. Co., 245 F.3d 474, 487 (5th Cir. 2001).
There is no doubt that Learmonth suffered serious injuries in the accident.
Among these were a traumatic brain injury with loss of consciousness, multiple
fractures to the pelvis, a fractured clavicle, acute post-hemorrhagic anemia, a
collapsed lung, and puncture wounds and lacerations to her face and shoulder.

         3
        We note that, in this case, review of a $2.2 million damages award would not change
the result.

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At the emergency room, she had blood coming out of both ears and out of the side
of her head, and was moaning with pain despite the administration of morphine.
      After being air-lifted from the local emergency room to University Medical
Center in Jackson, Mississippi, a surgeon performed a sacroiliac joint fusion, in
which he implanted a large and permanent screw across her pelvis in order to
stabilize it.   Learmonth was at the hospital for five days, confined to a
wheelchair for two months and then was on crutches for several weeks. For
several weeks after her discharge, her husband had to administer shots in her
stomach in order to prevent blood clots. She was unable to bathe herself, change
her clothes, or use the bathroom on her own.
      Evidence was presented to show that Learmonth still suffers from multiple
injuries, including a herniated disk, nerve injuries to the left leg, degenerative
osteoarthritis in her back, chronic headaches, depression, and memory loss.
After receiving her epidural injections, Learmonth has no feeling from her waist
down to her toes for approximately six hours, during which time she cannot use
the bathroom on her own. She has great difficulty sleeping due to pain, and
frequently awakens through the night screaming and crying. It takes her
approximately fifteen to thirty minutes to position herself to get out of bed each
morning.
      Learmonth was nineteen years old at the time of the accident, and she was
described as outgoing, social, and active.     Following the accident, she was
described as often angry, depressed, and irritable. Her ex-husband testified that
the physical and emotional strain placed on their marriage following the
accident was the cause of their divorce.       The accident has also affected
Learmonth’s relationship with her son, with whom she can no longer do many
of the things she once did. Learmonth’s mother testified that Learmonth’s son,
being too young to understand Learmonth’s limitations, believes that she is
simply lazy.

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                                  No. 09-60651

      Learmonth will continue to require medical care for the remainder of her
life. While she can no longer expect any physical improvement, she will require
regular clinic visits, routine epidural steroid injections, usage of a number of
medications, and physical therapy in order to control her pain. According to
expert testimony, she has a life expectancy of 82 years, which means that she
will continue to experience pain and suffering for another sixty years. Her pain
management physician testified that her pain may actually worsen over time,
and more serious measures—such as the implantation of a spinal cord
stimulator—may be necessary in the future.
      Sears argues that Learmonth was doing well within months after the
accident and that whatever long-term symptoms she continues to experience are
well-controlled by medication. This is based upon the medical records of her
surgeon, which reflect that Learmonth reported a month and a half after her
surgery that she did not have any complaints outside of a little discomfort with
prolonged sitting, and that she was “doing well” and “not having any problems.”
Her pain management physician’s medical records show that Learmonth
reported that the epidural steroid injections help “tremendously” with her pain
and provide her with “excellent pain relief” for many months, albeit they do not
relieve pain in her lower back. Learmonth’s neurologist’s records show that
Learmonth reported her headaches to be infrequent, and that the headaches and
memory problems are both well controlled by medication.
      The extent of Learmonth’s pain and suffering is a factual question on
which the jury heard multiple witnesses and received conflicting evidence. Upon
reviewing this evidence ourselves, we are unable to say that the jury’s verdict as
to non-economic damages was “contrary to the overwhelming weight of credible
evidence.” Accordingly, we refuse to disturb the award.




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                                     No. 09-60651

       3.     The Maximum Recovery Rule
       Sears argues that this circuit’s “maximum recovery rule” supports its
motion for remittitur in the alternative.4 Under the rule, “we remit damage
awards that we find excessive to the maximum amount the jury could have
awarded.” Salinas, 286 F.3d at 830. Although each case must be evaluated on
its own facts, our evaluation of what a jury could have awarded is informed by
awards for similar injuries in Mississippi. See id. at 831.
       Sears directs our attention to two Mississippi decisions that it contends
are most similar to this case. In Goodyear Tire & Rubber Co. v. Kirby, — So. 3d
—, 2009 WL 1058654 (Miss. App. Apr. 21, 2009) (en banc), rh’g denied (Dec. 15,
2009), cert. dismissed, 36 So.3d 455 (Miss. Jun 24, 2010),5 the jury awarded a
plaintiff approximately $1.75 million in damages, of which approximately $1.4
million was for non-economic damages, for severe injuries resulting from a car
accident.6 Id. at *24–25. Although his initial injuries were similar to and at
least as severe as Learmonth’s, the plaintiff in Goodyear had a different recovery
trajectory. Doctors testified to his brain damage and to a thirty-seven percent
impairment to his body as a whole, as well as to continuing pain in his left knee
and ankle and future pain in his lower back as a side result of post-accident
surgery. At the time of trial, however, he held a full-time job at Nissan making



      4
         Because both parties proceed without objection to address the Fifth Circuit’s
maximum recovery rule after applying the forum state’s standard pursuant to Gasperini, we
do so as well.
      5
         We do not rely on unreported opinions in applying the maximum recovery rule. See
Lebron v. United States, 279 F.3d 321, 326 (5th Cir. 2002) (“We decline to use unreported
decisions as benchmarks for this purpose.”). However, because Goodyear’s citation indicates
that the decision will be published in the Southern Reporter, we address it here.
      6
        The case was filed on November 20, 2002, and thus the non-economic damages award
was not subject to the Mississippi statutory cap, which only applies to cases filed after
September 1, 2004. MISS . CODE ANN . § 11-1-60(2)(b). The remaining $350,000 was for past
and future medical damages; no economic damages were awarded.

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                                 No. 09-60651

$20 an hour. Id. at *25. He testified that he considered himself fully recovered,
and represented on a job application and health questionnaire nine months after
the accident that he was completely recovered, released from all doctors, had no
disabilities, and was willing to travel for the job and to work overtime and
weekends. Id. at *24. Learmonth, on the other hand, will require treatment for
pain for the remainder of her life and suffers from debilitations—such as the
inability to sit or stand for any length of time—from which the plaintiff in
Goodyear does not suffer. Perhaps most significantly, Learmonth cannot work
at all, a harm that goes beyond the economic damage for which she was
separately compensated.
      In Wells Fargo Armored Service Corp. v. Turner, 543 So. 2d 154 (Miss.
1989), the Mississippi Supreme Court remitted a damages award from
$3,416,090 to $850,000, of which $402,000 was for loss of income. Id. at 160.
The plaintiff in that case suffered serious injuries in a car accident, most of
which healed completely. Id. at 159. His left leg remained partially impaired,
however, and he took Motrin for chronic pain caused by calcium deposits and
arthritis that developed as a result of his fractured pelvis. Id. Like Learmonth,
he was totally economically disabled as a result of his injury, in light of his
education and experience and the job market in his area. Id. However, there
are several factors that render Turner unsuitable for comparison. First, the
relative severity of Learmonth’s pain and permanent injuries—which require
epidural injections, doses of multiple medications, and ongoing medical
treatment—stands in contrast to the anti-inflammatory medication taken by the
plaintiff in Turner. The plaintiff in Turner was also older than Learmonth at the
time of his injury, and the award was rendered twenty years before this case.
Furthermore, loss of earnings is a calculation unique to each person’s age,
education, experience, and other factors, and both Learmonth and the plaintiff



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                                   No. 09-60651

in    Turner presented expert testimony as to the net present value of their
respective lifetime income streams in support of their economic damages awards.
       “Because the facts of each case are different, prior damages awards are not
always controlling; a departure from prior awards is merited ‘if unique facts are
present that are not reflected within the controlling caselaw.’ ” Lebron v. United
States, 279 F.3d 321, 326 (5th Cir. 2002) (quoting Douglass v. Delta Air Lines,
Inc., 897 F.2d 1336, 1339 (5th Cir. 1990)). Because this case presents unique
facts for which there are no controlling cases in the relevant jurisdiction, the
maximum recovery rule is not implicated and we refuse to substitute our
judgment for that of the jury. Vogler v. Blackmore, 352 F.3d 150, 158 (5th Cir.
2003).
     III. CONSTITUTIONALITY OF STATUTORY CAP ON DAMAGES
       On cross-appeal, Learmonth argues that Section 11-1-60(2)(b) of the
Mississippi Code violates the Mississippi Constitution. This is an important
question of state law, determinative of the non-economic damages issue in this
case, for which there is no controlling precedent from the Supreme Court of
Mississippi.     We therefore certify the question to the Supreme Court of
Mississippi.
       CERTIFICATION FROM THE UNITED STATES COURT OF
       APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT
       OF MISSISSIPPI, PURSUANT TO RULE 20 OF THE
       MISSISSIPPI RULES OF APPELLATE PROCEDURE.

       TO THE SUPREME COURT OF MISSISSIPPI AND THE
       HONORABLE JUSTICES THEREOF:
       A.      Style of the Case
       The style of the case in which this certification is made is Lisa Learmonth
v. Sears, Roebuck and Co., No. 09-60651, in the United States Court of Appeals
for the Fifth Circuit. The case is on appeal from the United States District Court



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                                        No. 09-60651

for the Southern District of Mississippi.             Federal jurisdiction is based on
diversity of citizenship.
      B.       Statement of Facts
      Appellant Lisa Learmonth was seriously injured in a car accident at the
intersection of Mississippi State Highways 15 and 485. The collision involved
Learmonth’s car, which she was driving, and a Sears, Roebuck and Company
(“Sears”) van driven by a Sears employee. Both liability and damages were
contested at trial. At the conclusion of the trial, the jury found Sears liable for
Learmonth’s injuries and awarded her $4 million in compensatory damages.
The verdict on its face did not divide the award into separate categories, but the
parties agree that the total award can be divided as follows: approximately $1.2
million for lost earnings; approximately $573,000 in past and future medical
expenses; and approximately $2.2 million in non-economic damages.
      Upon Sears’ motion, the district court remitted the non-economic damages
award to $1 million pursuant to Section 11-1-60(2)(b) of the Mississippi Code,
which imposes a statutory cap of $1 million on non-economic damages.7 On
appeal, Learmonth renews her arguments below that Section 11-1-60(2)(b)
violates the right to trial by jury under Mississippi Constitution article 3, section
31, and also violates the separation of powers clauses in article 1, sections 1 and
2. Amicus for Learmonth further argues that Section 11-1-60(2)(b) violates the


      7
          Section 11-1-60(2) provides in pertinent part:

      (b) In any civil action filed on or after September 1, 2004, other than those
      actions described in paragraph (a) of this subsection, 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.

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                                       No. 09-60651

guarantee of access to the courts in article 3, section 24 of the Mississippi
Constitution. The State of Mississippi, which intervened in support of Sears to
defend the constitutionality of the statute, argues that there is no “palpable
conflict” between a jury’s assessment of damages and the legislature’s
determination of the legal consequences of that assessment.
       C.     Question Certified
       We    hereby certify, on        Sears’ unopposed         motion,8    the   following
determinative question of law to the Supreme Court of Mississippi:                         Is
Section 11-1-60(2) of the Mississippi Code, which generally limits non-economic
damages to $1 million in civil cases, constitutional?
       This court disclaims any intention or desire that the Supreme Court of
Mississippi confine its reply to the precise form or scope of the question certified.
If the Supreme Court of Mississippi accepts this certification, the answer
provided by that court will determine the issue on cross-appeal in this case. The
record and copies of the parties’ briefs are transmitted herewith.
                                  IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court
insofar as it denied a new trial and certify the question regarding the
constitutionality of Mississippi’s statutory cap on non-economic damages on
cross-appeal to the Mississippi Supreme Court.




       8
         In her brief to this court, Learmonth opposed certification on the ground that Double
Quick, Inc. v. Lymas, — So. 3d —, 2010 WL 3706443 (Miss. Sept. 23, 2010), which was then
pending before the Supreme Court of Mississippi, raised an identical challenge to the
constitutionality of Section 11-1-60(2)(b). Id. at *5. At oral argument, Learmonth’s counsel
indicated that, given the fact that the Supreme Court of Mississippi did not reach the
constitutional question in Double Quick, see id. at *8, Learmonth is no longer opposed to
certification.

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