MISSISSIPPI, all too used to ranking last or near last among the states in everything from education to wealth to race relations, has just seen a black mark against it erased: It is no longer the “jackpot justice” state, notorious for huge jury awards to plaintiffs who sue corporations and doctors on a contingency fee basis.
In a remarkable 83-day special session ending on November 26, the Mississippi legislature rewrote the laws that had made the state so hospitable to big-award liability cases. Punitive damages were capped; awards for pain and suffering in medical malpractice cases were capped; and the lax venue rules that had allowed plaintiffs to shop for locales likely to produce sympathetic juries were swept away by the requirement that most cases be tried in the counties where the plaintiffs reside.
As late as the very eve of the special session, few anticipated this sweeping outcome. The issue, after all, had been around for years. Mississippi jury awards against tobacco, asbestos, and drug manufacturers were among the highest in the nation. And in 1994, state attorney general Michael Moore had put Mississippi on the map by filing landmark state litigation against the tobacco industry. Debate had long raged between conservative and business forces bent on tort reform and skeptics who debunked the “liability crisis” as PR and argued reforms would bar injured individuals from seeking redress.
In 2002, the reformers got some high-profile help from out of state. In May, with liability premiums rising and insurers fleeing Mississippi, the U.S. Chamber of Commerce actually warned companies against doing business in the state. It was the first time in its 90-year history the chamber had singled out a state for such treatment.
Local politicians took notice. Within a month, the legislature announced hearings on the civil justice system, and Governor Ronnie Musgrove, saying Mississippi needed “a good, fair playing field for business, industry, and our citizens,” called for the special session. Local media kept the pressure on. Reporter Joey Bunch of the Biloxi Sun Herald, notably, stayed on the story, airing the arguments and testing the claims of both sides.
Then on August 7, President Bush weighed in. Addressing the Mississippians for Economic Progress, in Madison, he said the “lawsuit industry” was “devastating the practice of medicine” in Mississippi. Out-of-control awards hurt ordinary people, he stressed, not big business, by driving doctors out of the state and raising health insurance costs.
At the time, with the special session due to begin on September 5, Bush’s audience still thought they were gearing up for an extended legislative fight, more like three years than three months. Governor Musgrove had said he would sign a tort reform bill only on condition he could first sign a prison reform bill not substantially different from one the legislature had rejected just weeks before. And there were other reasons to doubt Musgrove’s zeal. According to the Jackson Clarion-Ledger, in the last election 43percent of his campaign contributions had come from trial lawyers.
But in the end, leadership emerged from an unexpected quarter. Lieutenant Governor Amy Tuck, who presides over the senate, and who had not previously championed tort reform, threw her weight behind the issue, holding out for a substantial package of changes. The medical malpractice bill capping noneconomic damages at $500,000 was passed and signed by the governor in October.
Negotiations on liability reforms dragged on into late November. The logjam was finally broken on November 24, when the CBS program “60Minutes” aired “Jackpot Justice,” an exposé of the disorder in Mississippi’s courts. In less than 48 hours, the senate passed the product liability package 43-6. The vote in the House was 108-12. The final compromise establishes a sliding scale of ceilings on punitive damage awards for product liability based on the net worth of defendants, up to a maximum of $20 million, with some exceptions. It also includes the venue reforms, curbs on frivolous lawsuits, and protections for retailers who sell defective products through no fault of their own.
The political fallout from all this has been striking. Lieutenant Governor Tuck left the Democratic party to join the Republicans at the beginning of December. Several Democratic senators went with her or are rumored to be considering the switch.
Will the reforms stand? Many of the votes in the special session were roll calls, and legislators’ records are expected to be an issue in the upcoming state elections. This month’s 45percent to 90percent increases in medical malpractice premiums for all doctors in the state demonstrate there’s still work to do.
In a state with elected judges, judicial nullification of the new provisions is of some concern. But Barbara Bruin, a lawyer active in the tort reform campaign, insists the courts are changing. She notes, “Mississippians elected pro-reform judges this fall.”
Bruin continues, “As we speak, the legislature has reconvened. People are inspired by the momentum that was created in the special session and are anxious to continue to deal with the crisis facing the state.” Trent Lott notwithstanding, it seems that Mississippi is finally doing something right.
Katherine Mangu-Ward is an editorial assistant at The Weekly Standard.
