     Case: 09-60651    Document: 00512157514   Page: 1   Date Filed: 02/27/2013




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

                                                                 FILED
                                                             February 27, 2013

                                No. 09-60651                    Lyle W. Cayce
                                                                     Clerk

LISA LEARMONTH,

                                    Plaintiff-Appellee Cross-Appellant
v.

SEARS, ROEBUCK AND CO.,

                                    Defendant-Appellant Cross-Appellee



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


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
KING, Circuit Judge:
      A federal jury found Sears, Roebuck and Co. liable for causing Lisa
Learmonth’s injuries in an automobile accident. In a general verdict, the jury
awarded her $4 million in compensatory damages. On Sears’ motion, the district
court interpreted the award to include $2.2 million in noneconomic damages,
then reduced this portion of the award to $1 million pursuant to Mississippi’s
statutory cap on noneconomic damages. Learmonth appealed, arguing that the
cap violates the Mississippi Constitution’s jury trial guarantee and separation
of powers provisions. We certified Learmonth’s constitutional challenge to the
Mississippi Supreme Court. Because that court declined the certified question,
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we must address the merits of Learmonth’s appeal. For the reasons that follow,
we AFFIRM.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Lisa Learmonth was seriously injured in a collision between her vehicle
and a van operated by a Sears, Roebuck and Co. employee. Invoking diversity
jurisdiction, Learmonth brought suit against Sears in federal court. After a trial,
the jury found Sears liable for Learmonth’s injuries, and awarded $4 million in
compensatory damages. After the district court entered a judgment for that
amount, Sears filed a motion under Federal Rule of Civil Procedure 59(a) and (e),
arguing that Learmonth had made improper and inflammatory comments in her
opening and closing statements, and that the award’s excessiveness justified
remittitur or a new trial. The motion also included a request to apply
Mississippi’s statutory $1 million cap on noneconomic damages. The cap is set
out in Mississippi Code § 11-1-60, which provides:
      (1) For the purposes of this section, the following words and phrases
      shall have the meanings ascribed herein unless the context clearly
      requires otherwise:
      (a) “Noneconomic damages” means subjective, nonpecuniary
      damages arising from death, pain, suffering, inconvenience, mental
      anguish, worry, emotional distress, loss of society and
      companionship, loss of consortium, bystander injury, physical
      impairment, disfigurement, injury to reputation, humiliation,
      embarrassment, loss of the enjoyment of life, hedonic damages,
      other nonpecuniary damages, and any other theory of damages such
      as fear of loss, illness or injury. The term “noneconomic damages”
      shall not include punitive or exemplary damages.
      ***
      (2)(b) In any civil action filed on or after September 1, 2004, . . . 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.




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       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.
Miss. Code Ann. § 11-1-60 (Supp. 2012).1
       Because neither party had requested a special verdict itemizing damages,
the jury’s award was set out in a general verdict. In ruling on Sears’ Rule 59
motion, the district court segregated the verdict into four parts—$90,098.42 for
past medical expenses, $483,510.00 for future medical expenses, $1,207,486.00
for lost wage-earning capacity, and $2,218,905.60 (the remainder) for
noneconomic damages.2 The court obtained these figures from Sears’ motion.
Sears, in turn, had obtained them from expert testimony presented at trial.
Learmonth did not dispute these figures. On the contrary, she adopted them in
her own arguments opposing remittitur or a new trial. This appears to have been
a strategic decision; in her responsive filings, Learmonth repeatedly noted that
although Sears was attacking the full $4 million verdict as excessive, it had
glossed over the fact that approximately $1.8 million of this amount had been
awarded for actual and projected economic damages.
       In addition to opposing Sears’ request for a new trial or remittitur,
Learmonth challenged the validity of Mississippi’s noneconomic damages cap.
She first contended that § 11-1-60(2)(b) violates the United States Constitution’s
Equal Protection Clause and the Mississippi Constitution’s Jury Trial Clause,
Separation of Powers Clauses, Due Process Clause, and Remedy Clause. U.S.


       1
        Subsection (2)(a), which is not at issue here, sets out a $500,000 noneconomic damages
cap in any malpractice action against a health care provider.
       2
        The sum of these figures exceeds $4 million by two cents. The discrepancy appears to
have resulted from a typographical error.

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Const. amend. XIV, § 1; Miss. Const. art. I, §§ 1, 2; Miss. Const. art. III, §§ 14,
24, 31. Next, Learmonth argued that § 11-1-60(2)(b) violates the holding in
Hanna v. Plumer, 380 U.S. 460 (1965), by requiring amendment of a jury’s
verdict in contravention of the Federal Rules of Civil Procedure. See Fed. R. Civ.
P. 49(b)(2), 58(b) (providing the procedure for entering judgment following a jury
trial). Finally, Learmonth argued that § 11-1-60(2)(b) in effect sets out a
remittitur requirement. Because remittitur is a procedural matter, she
maintained, a federal court cannot be bound by such a requirement under Erie
Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
      Although the district court denied Sears’ request for a new trial or
remittitur, it reduced noneconomic damages to $1 million pursuant to § 11-1-
60(2)(b). The court rejected Learmonth’s challenges to § 11-1-60(2)(b) “[f]or the
reasons well stated in” the memoranda submitted by Sears and the State of
Mississippi, which had intervened to defend the statute’s validity.
      Sears appealed the district court’s denial of a new trial or remittitur. We
affirmed in part, holding that (1) the district court had not abused its discretion
in denying Sears’ motion for a new trial; (2) the $1.2 million award for lost
earning capacity and the statutorily capped $1 million award for noneconomic
damages were not excessive; and (3) this court’s “maximum recovery rule” did
not apply. Learmonth v. Sears, Roebuck & Co. (Learmonth I), 631 F.3d 724,
733–39 (5th Cir. 2011). We also stated that the unadjusted $2.2 million
noneconomic damages award would not have been excessive. Id. at 736 n.3.
      Learmonth cross-appealed, arguing that the noneconomic damages cap
violates the Mississippi Constitution’s jury trial guarantee and separation of
powers provisions. She did not renew her other challenges to § 11-1-60(2)(b).
Because there was no controlling authority at the time of decision, we certified
the constitutional question to the Mississippi Supreme Court. Id. at 739–40. We
held the appeal in abeyance pending that court’s decision.

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      The Mississippi Supreme Court declined our question. Sears, Roebuck &
Co. v. Learmonth (Learmonth II), 95 So. 3d 633, 639 (Miss. 2012) (en banc). The
court analyzed § 11-1-60(2)(b)’s text, which provides that “[the trier of fact] shall
not award the plaintiff more than One Million Dollars ($1,000,000) for
noneconomic damages.” It noted that, for purposes of Learmonth’s cross-appeal,
the parties had agreed that the verdict included a $2,218,905.60 noneconomic
damages award. Id. at 635–36. Nonetheless, because it was not clear that the
jury in this matter would have divided the award into the amounts the district
court used, the Mississippi Supreme Court rejected the parties’ stipulation, and
held that it could not determine whether the “trier of fact” had awarded
Learmonth more than $1 million. Id. at 637. The court further concluded that
because the jury based its award on its “common experience,” “reason,” and
“common sense”—factors known only to the jurors—no outsider could determine
the award’s component amounts with sufficient certainty. Id. at 638 n.7. Because
attempting to determine the noneconomic damages portion would thus
constitute “speculation,” the court refused to answer the constitutional question
“outside the clear context of its application.” Id. at 637 (citing InTown Lessee
Assocs., LLC v. Howard, 67 So. 3d 711, 724 (Miss. 2011) (en banc) (refusing to
“guess” what portion of a general verdict constituted noneconomic damages)).
      Following the Mississippi Supreme Court’s decision, we asked the parties
to re-brief the constitutional issues that Learmonth has raised on appeal, and
permitted amici to do the same. Because Learmonth I was decided over two
years ago, we asked them to include apposite authority that postdated their
original briefs.
                                II. DISCUSSION
A.    Erie
      Immediately after the Mississippi Supreme Court declined our certified
question, the parties submitted letter briefs interpreting that court’s decision.

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In sum, Learmonth interprets Learmonth II as prohibiting a trial court from
applying § 11-1-60(2)(b) unless the jury itself has itemized the verdict such that
noneconomic damages exceed $1 million. She further contends that because this
prohibition is a matter of substantive state law, the Erie doctrine prohibited the
district court from segregating the verdict and required it to enter judgment for
the full $4 million award without applying the damages cap. See Gasperini v.
Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (citing Erie R. Co., 304 U.S.
at 78). Sears argues that federal procedural law controls a district court’s
interpretation of a jury award and use of special verdict forms, and thus urges
us to make an Erie-guess as to § 11-1-60(2)(b)’s constitutionality. See id. As we
will discuss, although the Mississippi Supreme Court’s decision to decline our
certified question appears to us to have a procedural component, we need not
decide whether the court’s decision ultimately amounts to a procedural or a
substantive bar on § 11-1-60(2)(b)’s application because Learmonth has waived
her Erie argument.
      Following certification, the issue was raised for the first time whether our
question was properly before the Mississippi Supreme Court given that the
jury’s verdict did not, on its face, include a noneconomic damages award
exceeding $1 million. The court, after deciding it could not accept the parties’
stipulation as to the noneconomic damages amount, held that it could not
answer our question “outside the clear context of its application.” Learmonth II,
95 So. 3d at 637. Although the Mississippi Supreme Court is privileged to make
its own rules concerning the propriety of considering an issue on appeal, we are
bound by federal procedural rules, including those governing issue preservation.
E.g., AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009); see also
Huss v. Gayden, 991 So. 2d 162, 165 (Miss. 2008) (although the operation of a
Mississippi limitations defense in a federal proceeding is a matter of substantive



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law, the “issue of whether the defense is raised, preserved or should be barred
. . . [is] controlled by federal procedural law”).
      Learmonth raises her “verdict itemization” argument for the first time on
appeal (in her letter brief filed after the Mississippi Supreme Court’s decision)
and did not include it in her initial brief—circumstances that normally cause an
argument to be waived. In re Katrina Canal Breaches Litig., 620 F.3d 455, 459
n.3 (5th Cir. 2010); AG Acceptance Corp., 564 F.3d at 700. Although a party may
provide notice of a change in law that affects issues already developed on appeal,
a change in law normally does not permit a party to raise an entirely new
argument that could have been articulated below or in the party’s opening brief.
See Fed. R. App. P. 28(j); McGinnis v. Ingram Equip. Co., 918 F.2d 1491,
1495–96 (11th Cir. 1990) (en banc).
      One of our sister circuits has suggested, however, that a litigant does not
waive an argument based on a decision of law unavailable during trial court
proceedings if the litigant has properly raised a sufficiently similar issue.
McGinnis, 918 F.2d at 1496. In McGinnis, the Eleventh Circuit addressed
whether it could consider a novel argument based on a Supreme Court decision
postdating the district court proceedings. The court held that the appellant had
waived its argument because it could have made the same “general argument”
to the district court, but had not done so. Id. The same result attaches here.
      It is true that Learmonth II—the basis for Learmonth’s “verdict
itemization” argument—had not been decided at the time of Learmonth’s cross-
appeal. Nonetheless, that decision was grounded in statutory interpretation—a
basis equally available to Learmonth. See Learmonth II, 95 So. 3d at 637 (“[W]e
cannot know with any degree of assurance that ‘they’ (the jury) awarded
Learmonth more than $1 million for noneconomic damages.” (citing Miss. Code
Ann. § 11-1-60(2)(b))). Other authority available during the post-verdict
proceedings also provided an adequate basis for her argument. See Passantino

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v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 510 (9th Cir. 2000)
(a district court itemizing damages has a “general obligation to preserve lawful
jury awards when possible”); Ill. Cent. R.R. Co. v. Gandy, 750 So. 2d 527, 535
(Miss. 1999) (en banc) (“Given the difficulty of interpreting general verdicts, jury
decisions on general verdicts should be given deference.”). Learmonth thus could
have made the “general argument” below that the district court was not
permitted to interpret the jury’s verdict such that § 11-1-60(2)(b) would apply.
      Although Learmonth has waived her “verdict itemization” argument, we
may consider it if she shows that “extraordinary circumstances” are present. AG
Acceptance Corp., 564 F.3d at 700. “Extraordinary circumstances exist when the
issue involved is a pure question of law and a miscarriage of justice would result
from our failure to consider it.” Id. (citation omitted). Learmonth argues that
      taking an Erie-guess after the state supreme court finds the
      question was not properly presented implicates the fundamental
      fairness of a process in which jurisdiction over state issues is lodged
      in federal court. Correction at a later date by a state’s high court
      does nothing for the party against whom the error proved fatal to
      their cause.
We cannot agree. First, Learmonth has offered no authority stating that the
potential for an incorrect Erie-guess constitutes a miscarriage of justice. Second,
federal courts routinely decide unsettled state-law questions, and the issues that
Learmonth has raised have been exhaustively briefed by the parties and various
amici. Indeed, she has not established that we lack any of the ingredients
necessary for a fair and thorough consideration of her appeal. Third, Learmonth
failed to challenge the figures that the district court used to itemize the jury
award, and even adopted them in her arguments respecting the award’s
excessiveness. Finally, as we have discussed, adequate authority existed to
support a “verdict itemization” argument below. Having previously failed to take
obvious steps to avoid § 11-1-60(2)(b)’s application, Learmonth cannot now


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invoke the “miscarriage of justice” exception to extricate herself from the
potential consequences of her own appeal. See Singleton v. Wulff, 428 U.S. 106,
121 (1976).
      Our longstanding procedural rules prevent us from considering
Learmonth’s argument that the district court was prohibited from applying § 11-
1-60(2)(b)’s cap because the jury had not itemized its verdict. Accordingly, we
need not determine whether a federal court is bound under the Erie doctrine by
this apparent prohibition, and will now address Learmonth’s constitutional
challenge. See Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th
Cir. 1986) (en banc) (“The denial of certification forces us to make the Erie-guess
which we sought to avoid.”), abrogated in part by Salve Regina Coll. v. Russell,
499 U.S. 225, 242 (1991).
B.    Constitutional Challenge
      Learmonth argues that § 11-1-60(2)(b) violates the Mississippi
Constitution’s jury guarantee and separation of powers provisions. As we will
discuss, Learmonth has failed to satisfy her burden of establishing a
constitutional violation.
      1.      Legal Standards
      A federal court sitting in diversity applies the substantive law of the forum
state. Salve Regina Coll., 499 U.S. at 226; Coe v. Chesapeake Exploration, L.L.C.,
695 F.3d 311, 316 (5th Cir. 2012). A district court’s determination of state law
is reviewed de novo. Salve Regina Coll., 499 U.S. at 231.
      “The general principle followed [by Mississippi courts] when considering
a possible conflict between the [Mississippi] constitution and a [state] statute is
that the constitutional provision prevails.” Bd. of Trs. of State Insts. of Higher
Learning v. Ray, 809 So. 2d 627, 636 (Miss. 2002) (en banc). However, “[s]tatutes
are clothed with a heavy presumption of constitutional validity, and the burden
is on the party challenging the constitutionality of the statute to carry his case

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beyond a reasonable doubt.” James v. State, 731 So. 2d 1135, 1136 (Miss. 1999).
“All doubts must be resolved in favor of validity of a statute.” PHE, Inc. v. State,
877 So. 2d 1244, 1247 (Miss. 2004) (citation omitted). “Any legitimate
interpretation that creates a reasonable doubt of unconstitutionality may
prevent the court from striking the statute.” Attorney Gen. v. Interest of B.C.M.,
744 So. 2d 299, 301 (Miss. 1999) (en banc) (citation omitted). A statute will be
struck down “only where the legislation under review be found in palpable
conflict with some plain provision of the . . . constitution.” Hood v. State, 17 So.
3d 548, 551 (Miss. 2009) (citation and internal quotation marks omitted).
       If a state’s high court has not spoken on a state-law issue, we “defer to
intermediate state appellate court decisions, unless convinced by other
persuasive data that the higher court of the state would decide otherwise.” Cerda
v. 2004-EQR1 L.L.C., 612 F.3d 781, 794 (5th Cir. 2010) (citation omitted). “In
making an Erie-guess in the absence of explicit guidance from the state courts,
we must attempt to predict state law, not to create or modify it.” Coe, 695 F.3d
at 316 (citation and quotation marks omitted). Accordingly, although we must,
if possible, interpret a challenged statute so as to avoid constitutional defect,
uncertainties in Mississippi’s legal framework are not necessarily to be resolved
in the statute’s favor. The Mississippi Constitution is to be construed in light of
the common law. See Robinson v. State, 108 So. 903, 904 (Miss. 1926).
       2.      Jury Guarantee
       Learmonth argues that § 11-1-60(2)(b) violates the Mississippi
Constitution’s jury guarantee, which provides: “The right of trial by jury shall
remain inviolate . . . .”3 Miss. Const. art. III, § 31. Learmonth contends that § 11-



       3
          This particular language has remained constant in each of Mississippi’s four
constitutions. See Miss. Const. of 1868, art. I, § 12; Miss. Const. of 1832, art. I, § 28; Miss.
Const. of 1817, art. I, § 28. Accordingly, like the parties, we rely on Mississippi authority that
predates the current constitution, which was adopted in 1890.

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1-60(2)(b) infringes upon two rights encompassed by the jury guarantee: (1) the
right to have a jury alone find the proper compensatory damages amount, and
(2) the right to have that factual finding converted, undisturbed, into a legally
binding judgment of equal value. Although the first right surely exists within the
jury guarantee, Learmonth has not proven that § 11-1-60(2)(b) violates this
right. As to the second right, Learmonth has failed to establish “beyond a
reasonable doubt” that it exists as part of the jury guarantee. James, 731 So. 2d
at 1136.
            a.     Factfinding
      Under the Mississippi Constitution, the jury guarantee “extend[s] as far
as it did at common law.” Isom v. Miss. Cent. R.R. Co., 36 Miss. 300, 309 (1858)
(citing Smith’s Adm’r v. Smith, 2 Miss. (1 Howard) 102, 105 (1834)). It is well
established that under the common law jury guarantee, the jury alone makes a
factual finding of “compensatory damages”—the amount of money that will
compensate the plaintiff for a loss or injury. See Dimick v. Schiedt, 293 U.S. 474,
486 (1935); Edwards v. Ellis, 478 So. 2d 282, 289 (Miss. 1985); Schoppe v.
Applied Chems. Div., Mobley Co., 418 So. 2d 833, 836 (Miss. 1982); 1 Dan B.
Dobbs, Law of Remedies § 1.1, at 3–4 (2d ed. 1993). Under Mississippi law,
noneconomic damages are awarded to compensate a tort victim for various forms
of psychic, emotional, and reputational injury. See Miss. Code Ann. § 11-1-
60(1)(a) (“‘[n]oneconomic damages’ means subjective, nonpecuniary damages
arising from,” inter alia, pain, suffering, loss of consortium, and injury to
reputation, and “shall not include punitive or exemplary damages”).
      Learmonth argues that § 11-1-60(2)(b) invades the jury’s exclusive sphere
by revising downward any noneconomic damages finding that exceeds $1 million.
Sears responds that § 11-1-60(2)(b) simply alters the permissible legal effect of
a jury’s award.



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      To address these arguments, we must first place them in the framework
of Mississippi law. Significantly, Mississippi law distinguishes between a jury’s
verdict and a court’s judgment. In the commentary to Mississippi Rule of Civil
Procedure 54 (governing “judgments”), the Advisory Committee on Rules states:
      It is important to differentiate the various steps that are part of
      [creating a final and appealable judgment]. The first distinction is
      between the adjudication, either by a decision of the court or a
      verdict of the jury, and the judgment that is entered thereon. The
      terms “decision” and “judgment” are not synonymous under these
      rules. The decision consists of the court’s findings of fact and
      conclusions of law; the rendition of judgment is the pronouncement
      of that decision and the act that gives it legal effect.
This understanding of the procedural mechanics underlying verdict and
judgment comports with an early Mississippi Supreme Court pronouncement
demonstrating that a court’s judgment is based on, but separate from, factual
findings: “[W]hether the court pronounces the judgment of the law upon facts
found by the jury in cases where a trial by jury is required, or upon facts
ascertained in other modes when they are permitted, the judgment is still the
award of the law.” Lewis v. Garrett’s Adm’rs, 6 Miss. (5 Howard) 434, 455 (1841).
Blackstone provides further support: “The judgment, in short, is the remedy
prescribed by law for the redress of injuries.” 3 William Blackstone,
Commentaries *396; see also Stanford Young, Mississippi Trial Handbook § 37:1
(3d ed. 2012) (“[A] judgment is the conclusion of the law upon the matters
contained in the record.”).
      It is thus appropriate in the instant matter to distinguish between a
“verdict” or “award” (a purely factual finding with respect to compensatory
damages) and a “judgment” (an act whereby the law that applies to the facts at
bar is given effect). See Learmonth II, 95 So. 3d at 639 (the amount of
noneconomic damages is “an essential, contested, requisite fact” (emphasis
added)); City of Jackson v. Locklar, 431 So. 2d 475, 481 (Miss. 1983) (“The jury’s


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[damages] verdict is a finding of fact.”); Nichols v. Daniels, 1 Miss. (1 Walker)
224, 224 (1826) (in a court of law, a judge “pronounce[s] the law arising upon the
facts found by the jury”); cf. Oakes v. State, 54 So. 79, 80 (Miss. 1910) (a verdict
as to liability reflects a mixed question of law and fact).
       In placing § 11-1-60(2)(b) into this framework, we must interpret the
statute “in a manner to avoid constitutional defect if that is possible without
doing violence to the language.” Tolbert v. Southgate Timber Co., 943 So. 2d 90,
97 (Miss. Ct. App. 2006) (Southwick, J.) (citing In re Estate of Smiley, 530 So. 2d
18, 22–23 (Miss. 1988)). Applying this standard, we conclude that § 11-1-60(2)(b)
can be interpreted not to alter a jury’s factual damages determination, but
instead to impose a strictly legal limitation on the judgment that provides the
remedy for a noneconomic injury.
       Section 11-1-60(2)(b) provides that the trier of fact “shall not award the
plaintiff more than One Million Dollars . . . for noneconomic damages.” Because
§ 11-1-60(2)(b) places a limit on a jury’s act of “awarding” noneconomic damages,
it might at first blush appear to interfere with a jury’s factfinding procedure.
Viewing the statute as a whole, however, we do not believe the legislature used
the term “award” in the technical or legal sense of finding a damages amount.
Subsection (2)(c) provides that “[t]he trier of fact shall not be advised of the
limitations imposed by this subsection (2).” Because a jury that is unaware of the
$1 million limit cannot apply it when determining facts, § 11-1-60(2)(b) does not
invade the jury’s factfinding process.4 Moreover, subsection (2)(c) also provides

       4
          Under Mississippi law, a judge cannot influence a jury’s deliberations to the prejudice
of a litigant. See Gulf Hills Dude Ranch, Inc. v. Brinson, 191 So. 2d 856, 861 (Miss. 1966).
Because informing a jury of the limit on noneconomic damages might influence a jury’s
damages finding, we believe subsection (2)(c) does no more than formalize this prohibition. The
Mississippi Legislature has formalized judicial procedure in the past without controversy. See
Odom v. Roberts, 606 So. 2d 114, 119–20 (Miss. 1992) (en banc) (“[W]e trust it is
uncontroversial today that § 11-1-55 is but declarative of the common law [remittitur]
exception to the constitutional [jury] right as existed from the beginning.”), overruled on other
grounds by Dedeaux v. Pellerin Laundry, Inc., 947 So. 2d 900 (Miss. 2007) (en banc).

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that the trial judge shall reduce any award that exceeds the cap. This comports
with a judge’s role of applying the law to the jury’s factual findings—that is,
converting the jury’s award into “the award of the law.” Lewis, 6 Miss. at 455;
see also Natchez & S. R.R. Co. v. Crawford, 55 So. 596, 598 (Miss. 1911) (“[T]he
common-law jury, guaranteed by section 31, is a jury with power alone to try
issues of fact, and not of law.”); Yazoo & Miss. Valley R.R. Co. v. Wallace, 43 So.
469, 470–71 (Miss. 1907) (“trial by jury” means “in court under the forms of law,
with a judge presiding to direct the proceedings in conformity with it”);
Commercial Bank of Rodney v. State, 12 Miss. (4 S. & M.) 439, 515 (1845)
(Sharkey, C.J., dissenting) (“The law defines rights and provides remedies, but
it is for the judiciary to construe the law in its application to the objects of its
provisions, and to enforce the remedy.”); 3 Blackstone, supra, at *116 (the victim
of a legal wrong “acquire[s] an incomplete or inchoate right [to damages], the
instant he receives the injury; though such right be not fully ascertained till they
are assessed by the intervention of the law” (footnote omitted)). Accordingly, we
interpret § 11-1-60(2)(b) to provide that legal effect shall not be given to a jury’s
noneconomic damages finding to the extent the finding exceeds $1 million. The
Mississippi Legislature thus has not invaded the jury’s factfinding role in
enacting § 11-1-60(2)(b).
             b.    Converting Award to Judgment
      Learmonth argues in the alternative that the common law jury right
includes the right to have a jury’s compensatory damages finding translated
dollar for dollar into a binding judgment. Because Learmonth has offered no
dispositive authority supporting this argument, she has not met her burden to
“carry [her] case beyond a reasonable doubt.” James, 731 So. 2d at 1136.
      Before addressing Learmonth’s argument, we note that the Mississippi
cases Sears has offered establish that the Mississippi Supreme Court has
historically recognized the legislature’s authority to alter legal remedies. In

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                                  No. 09-60651

Walters v. Blackledge, 71 So. 2d 433, 444–45 (Miss. 1954), the court upheld a
statutory workmen’s compensation scheme that abrogated common law causes
of action and limited the amount an injured employee’s recovery. See also Wells
v. Panola Cnty. Bd. of Educ., 645 So. 2d 883, 895 (Miss. 1994) (interpreting
Walters as permitting the legislature to “alter or substitute” common law
remedies). In Maranatha Faith Center, Inc. v. Colonial Trust Co., 904 So. 2d
1004, 1007 (Miss. 2004), the court held that “a writ of execution may be issued
against a chose in action,” even though this means of satisfying a judgment was
not permitted at common law. This was so, the court explained, because the
common law rule had been abrogated by legislative enactment. Id. at 1006. In
Natchez & Southern Railroad Co., 55 So. at 599–600, the court upheld the
legislature’s expansion of a personal injury victim’s right to recovery through
replacement of the common law contributory negligence rule with a comparative
negligence regime. The Mississippi Supreme Court has also upheld statutes of
limitations, which impose temporal restraints on tort victims’ recovery. See
Phipps v. Irby Constr. Co., 636 So. 2d 353, 354–57 (Miss. 1993) (en banc); Smith
v. Fluor Corp., 514 So. 2d 1227, 1231–32 (Miss. 1987). Further, the legislature’s
authority to alter personal injury remedies is consistent with its power to “set[]
public policy” in matters of Mississippi tort law. Pinnell v. Bates, 838 So. 2d 198,
202 (Miss. 2002) (en banc).
      To be sure, each of the cases Sears has offered is distinguishable in some
measure from the case at bar, and we do not intend to overstate their
significance. See Coe, 695 F.3d at 316. Nor does our Erie-guess imply that the
legislature’s authority to alter common law remedies is unlimited; we address
only those constitutional arguments Learmonth has raised. Nonetheless, the
authority presented by Sears sets a difficult stage for Learmonth’s constitutional
challenge, which is already subject to a heavy burden of persuasion. James, 731
So. 2d at 1136. Moreover, though we accept that the cases on which Sears relies

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                                       No. 09-60651

are not conclusive as to § 11-1-60(2)(b)’s constitutionality, Learmonth cannot
prevail on her argument that because the legislature has never before enacted
a compensatory damages cap, such a cap ipso facto violates the Mississippi
Constitution. See State v. Hill, 11 So. 789, 790 (Miss. 1892) (that a legislatively
created office is “unknown to the constitution” does not render that office
unconstitutional); Noonan v. State, 9 Miss. 562, 573 (1844) (rejecting the
argument that because the common law was present at the Mississippi
Constitution’s adoption, the legislature is not permitted to alter or repeal
common law rules or principles). Under Mississippi law, it is not Sears’ burden
to prove that § 11-1-60(2)(b) is constitutional; rather, it is Learmonth’s burden
to prove it unconstitutional. James, 731 So. 2d at 1136.
       Learmonth has failed to establish that the jury’s award represents the
remedy to which she is entitled at law. The controlling authority she offers
provides only that Mississippi’s jury guarantee permits a litigant to have a jury
alone find the proper compensatory damages amount. See Edwards, 478 So. 2d
at 289; Yazoo & Miss. Valley R.R. Co. v. Wallace, 45 So. 857, 858 (Miss. 1908)
(“[The Mississippi Supreme Court] never interferes with [a jury’s] finding as to
damages.” (emphasis added)); S. R.R. Co. v. Kendrick, 40 Miss. 374, 390 (1866);
see also Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355 (1998);
Dimick, 293 U.S. at 486; St. Louis, Iron Mountain, & S. Ry. Co. v. Craft, 237 U.S.
648, 661 (1915) (a factual finding cannot be altered on appeal).5
       Nor does Learmonth’s supplemental authority persuade. She offers
decisions in which other states’ supreme courts have struck down statutory

       5
         Citing Illinois Central Railroad Co. v. Barron, 72 U.S. 90 (1866), Learmonth also
argues that compensatory damages cannot be “fixed.” Barron concerned a state statute that
provided a wrongful death cause of action to the deceased’s personal representative for the
exclusive benefit of the widow and next of kin. The statute limited damages for “pecuniary
injuries” under this cause of action to $5,000. The Court did not address the propriety of the
damages cap; it held that the widow or next of kin need not have a valid claim of support from
the deceased to recover under the statute. Id. at 106.

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                                 No. 09-60651

damages caps. See Miller v. Johnson, 289 P.3d 1098, 1138 (Kan. 2012) (Beier, J.,
concurring in part and dissenting in part) (collecting state supreme court
decisions upholding and striking down damages caps). These courts have held
that the common law jury guarantee cannot be parsed such that “the jury is
allowed to determine facts which go unheeded when the court issues its
judgment” because doing so “pays lip service to the form of the jury but robs the
institution of its function.” Lakin v. Senco Prods., Inc., 987 P.2d 463, 473 (Or.
1999) (quoting Sofie v. Fibreboard Corp., 771 P.2d 711, 721 (Wash. 1989)).
Another state supreme court has held that an individual has a “right to the
damages awarded by the jury.” Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d
633, 642 (Mo. 2012).
      We note one prominent observer’s comment that this line of decisions
seems to contradict “the usual notion that the law prescribes the remedy and its
measure.” 2 Dobbs, supra, § 8.8 n.23. Moreover, the hallmark of our
constitutional inquiry is the extent of the jury guarantee at common law. Isom,
36 Miss. at 309. Although the non-Mississippi decisions Learmonth offers rely
on common law doctrines that we accept as valid, we do not believe these
doctrines undermine the proposition that the law defines the permissible
remedy. See Watts, 376 S.W.3d at 638–39 (citing authority providing that
common law permits an award of noneconomic damages, and that a judge can
set aside a verdict only upon finding it was based on passion or prejudice);
Lakin, 987 P.2d at 471 (at common law, a judge that finds a verdict excessive
must grant a new trial (citing Wood v. Gunston, 82 Eng. Rep. 864, 867 (1655)));
cf. Progressive Cas. Ins. v. All Care, Inc., 914 So. 2d 214, 224 (Miss. Ct. App.
2005) (en banc) (“Called upon to resolve disputes, we use the jury system to
allow citizenry to allocate justice as the law permits.” (emphasis added)).
Accordingly, we cannot adopt these courts’ holdings. See Hood, 17 So. 3d at 551.



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      Learmonth recognizes that other states’ supreme courts have struck down
damages caps based on the judgment/verdict distinction, but argues that these
decisions are inapposite because these states’ constitutions, unlike Mississippi’s,
do not include an “inviolate” jury guarantee. See, e.g., Etheridge v. Med. Ctr.
Hosps., 376 S.E.2d 525, 528–29 (Va. 1989) (upholding a damages cap based on
a jury trial clause providing that “trial by jury is preferable to any other, and
ought to be held sacred”). We disagree. A comparison of state high court
decisions shows that a jury guarantee’s “inviolability” is not dispositive of the
question before us. Compare Watts, 376 S.W.3d at 644 (rejecting Etheridge and
invalidating a damages cap based on an “inviolate” jury right), with Gourley ex
rel. Gourley v. Neb. Methodist Health Sys., Inc., 663 N.W.2d 43, 75 (Neb. 2003)
(per curiam) (adopting Etheridge’s reasoning and upholding a damages cap
under an “inviolate” jury right), and Kirkland v. Blaine Cnty. Med. Ctr., 4 P.3d
1115, 1117, 1120 (Idaho 2000) (same). Moreover, “inviolability” simply means
that the jury right is protected absolutely in cases where it applies; the term
does not establish what that right encompasses. See Re/Max Real Estate
Partners, Inc. v. Lindsley, 840 So. 2d 709, 713 (Miss. 2003) (en banc) (although
the jury right is “inviolate,” it does not include a right to a jury in chancery
cases).
      Learmonth also points to Mississippi trial courts that have refused to
apply § 11-1-60(2)(b) on jury guarantee grounds. In Carter v. Interstate Realty
Management Co., the court held that the common law remittitur doctrine
demonstrates § 11-1-60(2)(b)’s incongruity with the jury right: “Judges in
Mississippi may suggest amounts different from what a jury awards, but . . . may
not arbitrarily impose the same. . . . Such a procedure recognizes the high
esteem with which we in Mississippi hold . . . the right to trial by jury.” Cause
No. 14-CI-09-0019, slip op. at 5–6 (Coahoma Cnty. Cir. Ct. Apr. 20, 2012); see
also Schoppe, 418 So. 2d at 836 (under remittitur, “[a]wards fixed by juries are

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                                  No. 09-60651

not merely advisory and will not ordinarily be set aside”). Despite the great
respect that is due a state court’s decision on state-law matters, we are
compelled to disagree. See Cerda, 612 F.3d at 794; Hood, 17 So. 3d at 551. We
first observe that other Mississippi trial courts do not share the Carter court’s
view. See Bryant ex rel. Bryant v. McCarty, Cause No. CV2006-0261CD (DeSoto
Cnty. Cir. Ct. Aug. 27, 2009); Lymas v. Double Quick, Inc., Civ. No. 2007-0072
(Humphreys Cnty. Cir. Ct. Sept. 17, 2008). Further, Mississippi’s remittitur
doctrine concerns only a court’s limited power to set aside a jury’s factual
finding—i.e., its award—upon making certain findings of its own. See Dedeaux,
947 So. 2d at 903 n.1 (remittitur is permitted only if the integrity of a jury’s
factual finding is put into serious doubt). We can find no Mississippi case
suggesting that remittitur prohibits the legislature from altering the law that
provides a plaintiff her remedy, and which a judge is bound to apply. See Lewis,
6 Miss. at 455; Nichols, 1 Miss. at 224; 3 Blackstone, supra, at *396 (“The
judgment, though pronounced or awarded by the judges, is not their
determination or sentence, but the determination and sentence of the law.”).
Indeed, the distinction between a non-discretionary damages cap and a
remittitur determination that depends on judicial findings is consistent with the
traditional   Anglo-American     division    between    legislative   policymaking
(characterized by an “initial policy determination of a kind clearly for nonjudicial
discretion” and lack of a “judicially discoverable and manageable standard”) and
judicial action (which “must be governed by standard, by rule,” and “must be
principled, rational, and based upon reasoned distinctions”). Vieth v. Jubelirer,
541 U.S. 267, 278 (2004).
      In another decision offered by Learmonth, a Mississippi trial court held
that § 11-1-60(2)(b) violates the jury guarantee because Mississippi law requires
a verdict to be “reasonable and based upon the preponderance of the evidence.”
See Tanner v. Eagle Oil & Gas Co., Civ. No. 111-0013, slip op. at 10 (Jasper

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                                  No. 09-60651

Cnty. Cir. Ct. Oct. 22, 2012). However, Learmonth offers no authority supporting
the proposition that properly reaching a verdict alters the law that provides a
tort victim’s remedy.
      In sum, Learmonth has not shown that § 11-1-60(2)(b) is in “palpable
conflict” with the right to have a jury alone find the amount of compensatory
damages, or that the common law jury guarantee includes the right to a
judgment equal to the jury’s damages finding notwithstanding the permissible
legal remedy. Hood, 17 So. 3d at 551. Accordingly, the Mississippi Constitution’s
Jury Trial Clause does not compel us to invalidate § 11-1-60(2)(b)’s application
in this matter.
      3.    Separation of Powers
      Learmonth further argues that § 11-1-60(2)(b) violates the Mississippi
Constitution’s Separation of Powers Clauses, which provide:
      The powers of the government of the State of Mississippi shall be
      divided into three distinct departments, and each of them confided
      to a separate magistracy, to-wit: those which are legislative to one,
      those which are judicial to another, and those which are executive
      to another.
      No person or collection of persons, being one or belonging to one of
      these departments, shall exercise any power properly belonging to
      either of the others. The acceptance of an office in either of said
      departments shall, of itself, and at once, vacate any and all offices
      held by the person so accepting in either of the other departments.
Miss. Const. art. I, §§ 1, 2. She contends that § 11-1-60(2)(b) directly conflicts
with remittitur (a judicial procedure), and is facially invalid as a legislatively
promulgated procedural rule. We disagree.
            a.    Conflict with Judicial Procedure
      Learmonth incorrectly argues that § 11-1-60(2)(b) constitutes legislative
interference with judicial remittitur. Under Mississippi law, remittitur is
permitted if the jury’s verdict has been influenced by “bias, passion, or


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                                       No. 09-60651

prejudice,” or is “contrary to the overwhelming weight of credible evidence.”
Dedeaux, 947 So. 2d at 903 n.1 (citing Miss. Code Ann. § 11-1-55). Remittitur
thus applies only if there is strong reason to question the integrity of the jury’s
factual findings. As we have discussed, § 11-1-60(2)(b) must not be read to alter
a jury’s deliberations or its factual findings, but instead to set a non-
discretionary limit on the permissible legal remedy. See Interest of B.C.M., 744
So. 2d at 301. Because § 11-1-60(2)(b) does not apply to the verdict, it cannot
affect a trial court’s application or non-application of remittitur. Indeed, a trial
judge conceivably could suggest remittitur and—if the suggested noneconomic
damages award is accepted by the parties, yet still exceeds $1 million—apply
§ 11-1-60(2)(b) to the judgment.6
       Learmonth further contends that, in enacting § 11-1-60(2)(b), the
legislature was required to provide either procedural safeguards that parallel
those available under the remittitur doctrine—for instance, the option to have
a new trial—or some other benefit, such as a minimum award “where a jury fails
to award monetary damages commensurate with the injuries and damages
proven at trial.” As in the proceedings below, Learmonth has failed to provide
any apposite authority in support of this argument.
       Relying on a concurrence in a Mississippi Supreme Court decision,
Learmonth also argues that the legislature cannot dictate what constitutes an
appropriate award if the judiciary has established a procedure or guideline for
determining the award’s suitability. See Wheat v. Wheat, 37 So. 3d 632, 644
(Miss. 2010) (Kitchens, J., concurring). Even ignoring that a concurrence does
not set out binding authority, we note that Wheat concerned the guidelines that



       6
         This court and the district court have referred to § 11-1-60(2)(b)’s application as a
“remittitur.” Learmonth I, 631 F.3d at 730, 739–40. As we have discussed, § 11-1-60(2)(b) does
not set out a remittitur requirement. Our prior, incorrect use of that term does not alter any
of our conclusions today.

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                                  No. 09-60651

the Mississippi Chancery Court applies in granting child support. The
concurrence’s conclusion rests upon the Mississippi Constitution’s grant of “full
jurisdiction” to the Chancery Court over matters concerning “minor’s business.”
Miss. Const. art. 6, § 159. Even if we accepted that Wheat stands for the
principle that Learmonth proposes, we could not extend its application from
equity matters to cases at law. Coe, 695 F.3d at 316.
            b.     Facial Challenge
      Learmonth contends that § 11-1-60(2)(b) constitutes a legislatively
promulgated procedural rule, and is thus invalid under Mississippi law. See
Magyar v. State, 18 So. 3d 807, 810 (Miss. 2009) (en banc); Wimley v. Reid, 991
So. 2d 135, 138 (Miss. 2008) (en banc); Hall v. State, 539 So. 2d 1338, 1345 (Miss.
1989) (en banc). She first argues that a legislative act cannot affect the
determination of damages in any measure because this “is a judicial, and not a
legislative, power; one belonging to courts and juries, and not to law-makers, or
legislatures, under our system of government.” Isom, 36 Miss. at 315. Learmonth
has removed this quotation from its proper context. In Isom, a railroad company
had built a road-bed on the plaintiff’s land, for which the plaintiff sought
damages. By statute, a jury assessing damages in a takings case was required
to offset recovery by “the benefits resulting to the owner, by reason of the road
running through his land.” Id. at 310. Mississippi’s constitution at the time
required “just compensation” for any taking. The Isom court held that the
legislature, by requiring an offset of damages based on the railroad’s
improvement to the land, had impermissibly defined “just compensation” under
the Mississippi Constitution. Id. at 315. Isom thus does not stand for the broad
proposition Learmonth forces upon it—that the legislature cannot alter any law
touching upon a jury award. Rather, the Isom court held that only the judiciary
may determine the Mississippi Constitution’s meaning.



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                                   No. 09-60651

      Next, Learmonth argues broadly that the legislature cannot interfere with
a compensatory damages judgment because “trials are the core activity of the
judiciary,” Hall, 539 So. 2d at 1346, and “[a]ny legislation that hampers judicial
action or interferes with the discharge of judicial functions is unconstitutional,”
City of Belmont v. Miss. State Tax Comm’n, 860 So. 2d 289, 297 (Miss. 2003) (en
banc) (quoting 16A Am. Jur. 2d Constitutional Law § 286, at 209–10 (1998)). See
also In re Fiscal Year 2010 Judicial Branch Appropriations, 27 So. 3d 394,
395–96 (Miss. 2010) (en banc); Alexander v. State ex rel. Allain, 441 So. 2d 1329,
1345 (Miss. 1983) (en banc). More specifically, she contends that § 11-1-60(2)(b)’s
command that a judge “shall” reduce any award exceeding $1 million intrudes
on the judiciary’s function. See Miller v. Hay, 143 Miss. 471, 483 (1926) (en banc)
(the legislature, in exercising its power to define a public officer’s duties, cannot
infringe on the judiciary’s exclusive power to abate a pending suit).
      Learmonth’s argument proves too much. By its very nature, non-
procedural law affects judicial functions. The legislature’s definition of civil and
criminal causes of action, for example, alters the elements a jury or judge must
consider to find liability or grant summary judgment. To accept that the
constitutional separation of powers prohibits the legislature from limiting a legal
remedy would be to prohibit the legislature from enacting practically any change
to substantive law. Cf. Bluewater Logistics, LLC v. Williford, 55 So. 3d 148, 159
(Miss. 2011) (en banc) (“[T]he Legislature is free to establish, as a matter of
substantive law, any contract remedy it finds appropriate.”). Moreover, by
Learmonth’s logic, the legislature would be prohibited even from limiting tort
damages after abrogating and replacing a common law cause of action, which
she concedes is a valid legislative act. See Walters, 71 So. 2d at 445.
      The Mississippi Supreme Court has defined procedure as “[t]he mode of
proceeding by which a legal right is enforced, as distinguished from the
substantive law which gives or defines the rights, and which, by means of the

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                                  No. 09-60651

proceedings, the court is to administer; the machinery, as distinguished from its
product.” Jones v. City of Ridgeland, 48 So. 3d 530, 537 (Miss. 2010) (en banc).
Once again, § 11-1-60(2)(b) defines a permissible legal remedy. The statute’s
command that a judge “shall” limit a noneconomic damages judgment is
tantamount to a command that a judge shall apply substantive law. This
legislative tautology does not represent an impermissible intrusion on any
judicial function. If it did, the Mississippi Legislature could not codify common
law remittitur procedures, which it has done uncontroversially. See Odom, 606
So. 2d at 119–20.
      Finally, Learmonth frames her separation of powers challenge as an issue
of legislative authority. If the legislature can limit noneconomic damages to $1
million, Learmonth argues, then nothing prevents it from limiting noneconomic
damages to one dollar. See Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691
S.E.2d 218, 223 (Ga. 2010) (citing Smith v. Dep’t of Ins., 507 So. 2d 1080, 1089
(Fla. 1987) (per curiam)). This would purportedly “end the civil justice system
in the [S]tate of Mississippi.” We are not convinced that this argument properly
falls under a separation of powers analysis. In any event, we believe that
Learmonth has overlooked the possibility that, at least under some
circumstances, the Mississippi Constitution’s Due Process Clause or Remedy
Clause might impose substantive constraints on the legislature’s authority to
cap compensatory damages. See Miss. Const. art. III, § 14; id. § 24 (“[E]very
person for an injury done him in his lands, goods, person, or reputation, shall
have remedy by due course of law . . . .”); R. Brittain Virden, Tort Reform and the
Mississippi Constitution of 1890, 63 Miss. L.J. 797, 809–13, 819–20 (1994).
Learmonth has waived any Due Process or Remedy Clause challenge, however,
because although she raised such arguments below, she has not properly




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                                        No. 09-60651

renewed them on appeal.7 See In re Katrina Canal Breaches Litig., 620 F.3d at
459 n.3. The fact that amicus Mississippi Association for Justice included a
Remedy Clause argument in its brief does not alter this conclusion. See United
States v. El-Mezain, 664 F.3d 467, 539 n.32 (5th Cir. 2011).
       Learmonth thus has failed to establish beyond a reasonable doubt that
§ 11-1-60(2)(b) violates Mississippi’s constitutional separation of powers.
                                   III. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s judgment.




       7
         Learmonth argued below that due process requires the legislature to permit some
means of contesting the adequacy of a noneconomic damages award that has been reduced
under § 11-1-60(2)(b). As we discussed in Section II.B.3.a., she offered a slightly different
argument on appeal as part of her separation of powers challenge, but we rejected it because
she provided no supporting legal authority below or in her opening brief. She greatly expanded
on this argument in her reply brief, invoking for the first time the quid pro quo due process
analysis set out in Wells, 645 So. 2d at 891–92, 894. However, she framed her argument below
as pertaining to a vested property right in the jury’s verdict, which appears to us to be founded
on legal principles different from those implicated in the quid pro quo doctrine. In these
circumstances, Learmonth has waived her quid pro quo due process argument. See In re
Katrina Canal Breaches Litig., 620 F.3d at 459 n.3; In re Fairchild Aircraft Corp., 6 F.3d 1119,
1128 (5th Cir. 1993).

                                               25
