Updated 2012
STATE OF MISSISSIPPI COMPENDIUM OF LAW
Prepared by Rebecca Blunden
Copeland, Cook, Taylor & Bush, P.A. 600 Concourse, Suite 100
1076 Highland Colony Parkway Ridgeland, MS 39157
(601) 856-7200 www.cctb.com
Tom Carpenter Carr Allison
Building 200, Suite 2001 14231 Seaway Road Gulfport, MS 39503
(228) 864-1060 www.carrallison.com
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PRE-SUIT AND INITIAL CONSIDERATIONS
Pre-Suit Notice Requirements/Prerequisites to Suit
A) Medical malpractice. An action against a healthcare provider for professional negligence may
not be instituted unless the plaintiff gives the defendant at least sixty (60) days written notice
prior to filing suit. MISS. CODE ANN. § 15-1-36(15) (2012). The Mississippi Supreme Court
requires strict compliance with this provision. Arceo v. Tolliver, 949 So. 2d 691, 695 (Miss.
2006). Dismissals for lack of notice are without prejudice. Williams v. Skelton, 6 So. 3d 428,
430 (Miss. 2009).
B) Mississippi Tort Claims Act. A claimant must file a notice of claim with the chief executive
officer of the governmental entity to be sued at least ninety (90) days prior to filing suit. MISS.
CODE ANN. § 11-46-11(1) (2012). Strict compliance is required. Univ. of Miss. Med. Ctr. v.
Easterling, 928 So. 2d 815, 820 (Miss. 2006). However, the notice requirements of the MTCA
can be waived. Stuart v. Univ. of Miss. Med. Ctr., 21 So. 3d 544, 550 (Miss. 2009). Also, a
complaint may be filed without waiting the full ninety (90) days under Section 11-46-11(1) if
the plaintiff receives a denial of notice of claim pursuant to § 11-46-11(3), as § 11-46-11(1)
must be read in conjunction with § 11-46-11(3). Lee v. Mem’l Hosp., 999 So. 2d 1263, 1268
(Miss. 2008).
Relationship to the Federal Rules of Civil Procedure
The Mississippi Rules of Civil Procedure are essentially identical to the Federal Rules of Civil
Procedure. FED. R. CIV. P. 23 regarding class actions has been omitted from the Mississippi Rules.
Since the Mississippi Rules are patterned after the Federal Rules, “Mississippi courts look to federal
interpretations of state rule counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton
Co., 826 So. 2d 1206, 1215 (Miss. 2003).
Description of the Organization of the State Court System
A) Judicial selection. At present, all of the trial and appellate level judges are elected. MISS.
CODE ANN. § 9-1-103 (2012).
B) Structure.
1) Justice Court. Justice courts typically have bench trials only, judges must be over
eighteen (18) and hold a high school or GED degree, and jurisdiction is limited to
$2,500. MISS. CODE ANN. § 9-11-2, et seq. (2012).
2) County Court. County Courts are only found in more populated counties and these
judges must be lawyers. Their jurisdiction extends to $250,000. County Court juries
are composed of six jurors. MISS. CODE ANN. § 9-9-1, et seq. (2012).
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3) Circuit Court. This court is the trial court of general jurisdiction. Each circuit
encompasses one to five counties in their circuit, depending upon population. This
court can hear cases at any level of damages. Circuit court juries are composed of
twelve jurors. MISS. CODE ANN. § 9-7-1 et seq. (2012).
4) Chancery Court. Mississippi has another trial-level court called chancery court.
The chancery court’s jurisdiction is limited to all matters in equity; divorce and
alimony; minor’s business; matters of testamentary and of administration; cases of
idiocy, lunacy, and persons of unsound mind; suits to try title or cancel deeds or other
clouds upon title to real estate, the authority to decree possession and to displace
possession; civil actions to decree rents and compensation for improvements and
taxes; suits on bonds of fiduciaries and public officers for failure to account for
money or property received, or wasted or lost by neglect or failure to collect; suits
involving inquiry into matters of mutual accounts; and appellate jurisdiction from the
justice courts, the county courts, and from various administrative agencies. In choice
of venue between circuit and chancery courts, circuit courts are to be preferred except
when touching upon areas within chancery courts’ limited jurisdiction. Tyson
Breeders Inc. v. Harrison, 940 So. 2d 230, 233 (Miss. 2006).
5) Court of Appeals. This appellate court hears cases as assigned to it by the
Mississippi Supreme Court on referral. Workers’ compensation and Administrative
Law cases are typically assigned to this Court. Appeals from this Court to the
Mississippi Supreme Court are heard only by discretionary writ of certiorari. MISS.
CODE ANN. § 9-4-1 et seq (2012).
Although the Mississippi Supreme Court and Court of Appeals are both appellate
courts, the jurisdiction of the Court of Appeals is limited to those cases assigned to it
by the Supreme Court. MISS. CODE ANN. § 9-4-3 (2012). Once a case has been
assigned to it, the Court of Appeals has full appellate jurisdiction to consider the
case. See Harris v. State, 704 U.S. 1286 (Miss. 1997). However, at any point prior
to a decision by the Court of Appeals, the Supreme Court may remove a case and
return it to the Supreme Court. See Marshall v. State, 662 So. 2d 566 (Miss. 1995).
The Supreme Court must retain jurisdiction over cases imposing the death penalty, or
cases involving utility rates, annexations, bond issues, election contests, or a statute
held unconstitutional by the lower court. MISS. CODE ANN. § 9-4-3 (2012).
6) Supreme Court. This Court is the appellate court of general jurisdiction. It may hear
appellate cases directly from the trial courts. It may also hear appeals from the Court
of Appeals upon certiorari, depending upon a select set of conditions, such as a case
of first impression in the state’s case law. MISS. CODE ANN. § 9-3-1, et seq. (2012).
7) Tribal law. In Williams v. Lee, the United States Supreme Court recognized the
authority that Indian tribes held over their tribal lands. 358 U.S. 217, 233 (1959).
The Mississippi Bank of Choctaw Indians is the only federally recognized Indian
tribe located in Mississippi. See Jones v. Billy, 798 So. 2d 1238 (Miss. 2001). Where
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a cause of action arises between tribal members on Mississippi Choctaw land, federal
law preempts the exercise of state court jurisdiction over the dispute. Id. at 1239
(recognizing that such disputes should be addressed by the proper Choctaw tribal
court).
C) Alternative dispute resolution. Courts will respect “the right of an individual or an entity
to agree in advance of a dispute to arbitration or other alternative dispute resolution.” IP
Timberlands Operating Co., Ltd. v. Denmiss Corp., 726 So. 2d 96, 104 (Miss. 1998).
Arbitration and mediation are not mandatory unless the parties have a contractual provision
requiring such. Miss. Care Ctr. of Greenville, LLC v. Hinyub, 975 So. 2d 211, 214 (Miss.
2008). Mississippi law respects the strong federal policy favoring arbitration. Simmons
Hous., Inc. v. Shelton, 36 So. 3d 1283, 1286 (Miss. 2010).
Service of Summons
A) Person. Under MISS. R. CIV. P. 4(d)(1), other than on an unmarried infant or mentally
incompetent person, service is good via:
1) delivery of copy of summons and complaint personally or to an agent authorized by
appointment or by law; or
2) leaving a copy at the defendant’s usual place of abode with a spouse or other family
member over sixteen (16) years of age and mailing a copy to the person at the place
where the copy was left.
B) Public and private corporations. Under MISS. R. CIV. P. 4(d)(4), service upon a domestic
or foreign corporation or upon a partnership or other unincorporated association that is
subject to suit under a common name is good by delivery of a copy of the summons and
complaint to an officer, a managing or general agent, or to any other agent authorized by
appointment or by law. Whether an agent, like a receptionist, has authority to accept process
is a question of apparent authority decided by the court. Nelson v. Baptist Mem’l Hosp., 70
So. 3d 190, 194-95 (Miss. 2011).
C) Waiver. Under MISS. R. CIV. P. 4(e) service is waived if the waiver is in writing, dated,
signed by the defendant, and duly sworn.
D) Other service provisions. The following are service provisions for other types of
defendants:
1) Unmarried infants: MISS. R. CIV. P. 4(d)(2)(A).
2) Mentally incompetent persons: MISS. R. CIV. P. 4(d)(2)(B)-(C).
3) Incarcerated persons: MISS. R. CIV. P. 4(d)(3).
4) State of Mississippi: MISS. R. CIV. P. 4(d)(5).
5) Counties: MISS. R. CIV. P. 4(d)(6).
6) Municipal corporations: MISS. R. CIV. P. 4(d)(7).
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7) Any other governmental entity. MISS. R. CIV. P. 4(d)(8).
Statutes of Limitations and Statutes of Repose
Mississippi has a general three year statute of limitations. MISS. CODE ANN. § 15-1-49 (2012).
Mississippi has a one year statute of limitations for certain torts that are considered intentional,
including assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, all
actions for slanderous words concerning the person or title, for failure to employ, for libels, and
intentional infliction of emotional distress. MISS. CODE ANN. § 15-1-35 (2012); see also
CitiFinancial Mortg. Co., Inc. v. Washington, 967 So. 2d 16, 19 (Miss. 2007).
A) Construction. There is a six (6) year statute of repose for construction claims. MISS. CODE
ANN. § 15-1-41 (2012). However, fraudulent concealment will toll that statute. Windham v.
Latco of Miss., Inc., 972 So. 2d 608, 614 (Miss. 2008).
B) Contracts.
1) Oral. An action on an unwritten contract, except an unwritten contract of
employment, shall be commenced within three (3) years after the cause of action
accrued. MISS. CODE ANN. § 15-1-29 (2012).
2) Written. There is a three (3) year statute of limitations on written contracts. MISS.
CODE ANN. § 15-1-49 (2012); USF & G Co. v. Conservatorship of Melson, 809 So.
2d 647 (Miss. 2002).
C) Employment.
1) Unwritten contract. Action on an unwritten contract of employment “shall be
commenced within one (1) year after the cause of action accrued.” MISS. CODE
ANN. § 15-1-29 (2012).
2) Written contract of employment. The statute of limitations for a written contract
of employment is three (3) years. MISS. CODE ANN. § 15-1-49 (2012).
3) Employment discrimination. The statute of limitations for employment
discrimination is three (3) years. Id.; Boykin v. Ga.-Pac. Corp., 706 F.2d 1384 (5th
Cir. 1983).
D) Fraud. The statute of limitations for fraud is three (3) years; MISS. CODE ANN. § 15-1-49
(2012); Sanderson Farms, Inc. v. Ballard, 917 So. 2d 783 (Miss. 2005).
E) Governmental Entities. The statute of repose for tort suits against government entities is
one (1) year. MISS. CODE ANN. § 11-46-11(3) (2012); Punzo v. Jackson Cnty., 861 So. 2d
340, 341 (Miss. 2003).
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F) Improvements to realty. The statute of repose for improvements to realty is six (6) years.
MISS. CODE ANN. § 15-1-41 (2012).
G) Professional liability. The statute of limitations for medical malpractice is two (2) years.
MISS. CODE ANN. § 15-1-36 (2012). The statute of limitations for legal malpractice is three
(3) years. MISS. CODE ANN. § 15-1-49 (2012).
H) Property damage. If damage stems from improvements to real property, there is a six (6)
year statute of repose. MISS. CODE ANN. § 15-1-41 (2012). If the damage stems from some
other cause of action, then the statute of limitations applicable to that cause of action is
used, for example the statute of limitations for a mass produced item in construction would
be three (3) years, as opposed to six (6) years under the construction statute of repose.
Winkel v. Windsor Windows & Doors, 983 So. 2d 1055, 1058 (Miss. 2008).
I) Survival. Executors or administrators may commence and prosecute any cause of action
that the deceased may have commenced or prosecuted. They may also be sued in any action
which may have been maintained by the deceased. MISS. CODE ANN. § 91-7-233 (2012). If
a party to an action dies before judgment, the executor or administrator of such deceased
party may prosecute or defend such action and the executor or administrator of such
deceased party may prosecute or defend such action. MISS. CODE ANN. § 91-7-237 (2012).
J) Tolling.
1) Disability of infancy or unsoundness of mind. A person under the disability of
infancy or unsoundness of mind may bring a cause of action within the period of
limitations for that cause of action after the disability has been lifted as provided by
law. MISS. CODE ANN. § 15-1-59 (2012).
a) The age of majority in Mississippi is twenty one (21) years. Anderson v.
R&D Foods, Inc., 913 So. 2d 394, 397 (Miss. 2005).
b) The savings period in favor of a person of unsound mind can run no longer
than twenty one (21) years. MISS. CODE ANN. § 15-1-59 (2012).
2) Death of a party. Death of either party may toll the statute of limitations for one (1)
year. The action may be commenced by or against the executor or administrator of
the deceased party’s estate. MISS. CODE ANN. § 15-1-55 (2012).
3) Absence of the defendant from the state. If a defendant is absent from the state
and the plaintiff seeking to toll the statute of limitations cannot effect service on that
defendant during the relevant time, then the statute of limitations may be tolled.
MISS. CODE ANN. § 15-1-63 (2012); Sullivan v. Trustmark Nat’l Bank, 653 So. 2d
930, 931-32 (Miss. 1995).
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4) Fraudulent concealment. Fraudulent concealment of a cause of action will toll the
statute of limitations, which will not begin running until the discovery of the cause
of action. MISS. CODE ANN. § 15-1-67 (2012). This tolling statute also applies to
the statute of repose for construction deficiencies. MISS. CODE ANN. § 15-1-41
(2012); Windham v. Latco of Miss., Inc., 972 So. 2d 608 (Miss. 2008).
5) Filing of legal proceedings. Filing a complaint will toll the statute of limitations for
the 120-day period allowed for service of process. If service is not made, then the
period of limitation begins running again. Owens v. Mai, 891 So. 2d 220, 223 (Miss.
2002). See also MISS. CODE ANN. § 15-1-57 (2012) (person prevented from
commencing an action); § 15-1-65 (cause of action barred in foreign jurisdiction); §
15-1-36(15) (compliance with pre-suit notice requirements tolls statute of
limitations for medical malpractice sixty days); § 11-46-11(3) (compliance with pre-
suit notice requirements of Mississippi Tort Claims Act tolls statute of limitations
for ninety days). However, cases dismissed for failure to prosecute will not receive
the benefit of tolling. Knight v. Knight, 85 So. 3d 832, 835 (Miss. 2012).
K) Wrongful death. The statute of limitations on bringing a wrongful death claim is subject
to, and limited by, the statute of limitations associated with the specific claims of wrongful
acts which allegedly led to the wrongful death. Jenkins v. Pensacola Health Trust, Inc., 933
So. 2d 923, 926 (Miss. 2006). But beneficiaries’ claims brought within a wrongful death
action, such as claims for loss of society, “cannot accrue, and the statute of limitations for
those claims cannot begin to run, until death.” Saul ex rel. All Wrongful Death Heirs of
Cook v. S. Cent. Reg’l Med. Ctr., Inc., 25 So. 3d 1037, 1040 n.4 (Miss. 2010).
Venue Rules
A) Circuit Court. According to MISS. CODE ANN. § 11-11-3 (2012):
[c]ivil actions of which the circuit court has original jurisdiction shall be
commenced in the county where the defendant resides, or, if a corporation, in the
county of its principal place of business, or in the county where a substantial
alleged act or omission occurred or where a substantial event that caused the injury
occurred.
B) Chancery Court. According to MISS. CODE ANN. § 11-5-1 (2012):
Suits to confirm title to real estate, and suits to cancel clouds or remove doubts therefrom,
shall be brought in the county where the land, or some part thereof, is situated; suits against
executors, administrators, and guardians, touching the performance of their official duties,
and suits for an account and settlement by them, and suits for the distribution of personalty
of decedents among the heirs and distributees, and suits for the payment of legacies, shall be
brought in the chancery court in which the will was admitted to probate, or letters of
administration were granted, or the guardian was appointed; other suits respecting real or
personal property may be brought in the chancery court of the county in which the property,
or some portion thereof, may be; and all cases not otherwise provided may be brought in the
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chancery court of any county where the defendant, or any necessary party defendant, may
reside or be found; and in all cases process may issue to any county to bring in defendants
and to enforce all orders and decrees of the court.
C) County Court. According to MISS. CODE ANN. § 9-9-21 (2012):
(1) The jurisdiction of the county court shall be as follows: It shall have jurisdiction
concurrent with the justice court in all matters, civil and criminal of which the
justice court has jurisdiction; and it shall have jurisdiction concurrent with the
circuit and chancery courts in all matters of law and equity wherein the amount of
value of the thing in controversy shall not exceed, exclusive of costs and interest,
the sum of Two Hundred Thousand Dollars ($ 200,000.00), and the jurisdiction of
the county court shall not be affected by any setoff, counterclaim or cross-bill in
such actions where the amount sought to be recovered in such setoff, counterclaim
or cross-bill exceeds Two Hundred Thousand Dollars ($ 200,000.00). Provided,
however, the party filing such setoff, counterclaim or cross-bill which exceeds Two
Hundred Thousand Dollars ($ 200,000.00) shall give notice to the opposite party or
parties as provided in Section 13-3-83, and on motion of all parties filed within
twenty (20) days after the filing of such setoff, counterclaim or cross-bill, the
county court shall transfer the case to the circuit or chancery court wherein the
county court is situated and which would otherwise have jurisdiction. It shall have
exclusively the jurisdiction heretofore exercised by the justice court in the
following matters and causes: namely, eminent domain, the partition of personal
property, and actions of unlawful entry and detainer, provided that the actions of
eminent domain and unlawful entry and detainer may be returnable and triable
before the judge of said court in vacation.
NEGLIGENCE
Comparative Fault/Contributory Negligence
A) Comparative fault. Mississippi is a pure comparative negligence state. Bradford v.
Barnett, 615 So. 2d 580, 582 (Miss. 1993) (trial court erred in failing to adequately instruct
jury under comparative negligence doctrine). Under the relevant statute, “damages shall be
diminished by the jury in proportion to the amount of negligence attributable to the person
injured, or the owner of the property, or the person having control over the property.” MISS.
CODE ANN. § 11-7-15 (2012).
The state legislature subsequently expanded the doctrine to one of pure comparative fault,
thus requiring an appropriate percent allocation for each party alleged to be responsible,
both with respect to the plaintiff’s damages and to contribution among joint tortfeasors, in a
wide range of actions, including negligence, personal injury or death, and strict liability.
MISS. CODE ANN. § 85-5-7 (2012).
B) Contributory Negligence. Mississippi’s comparative negligence statute does not create
any degrees of liability, and even where a defendant’s negligence is slight compared to the
contributory negligence of the injured, the plaintiff is entitled to recovery, though damages
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will be diminished accordingly. See Bradford, 615 So. 2d at 582 (stating defendant still
entitled to recover 10% of damages despite being 90% negligent).
Exclusive Remedy—Workers’ Compensation Protections
A) Exclusive remedy. Recovery under the Mississippi Workers’ Compensation Act is the
exclusive remedy for an employee injured while acting in the “scope and course of
employment.” Hurdle v. Holloway, 848 So. 2d 183, 185 (Miss. 2003) (employee’s tort
claims against employer for injuries from accident barred by exclusivity provision) (citing
MISS. CODE ANN. § 71-3-9).
B) Willful injuries. However, where (1) the employer or another employee (a) acting in the
course and scope of employment (b) in the furtherance of the former’s business (c) willfully
injures the plaintiff and (2) the latter is not compensable under its provisions, the Act does
not apply. Id. (citing Newell v. S Jitney Jungle Co., 830 So. 2d 621, 624 (Miss. 2002)
(workers’ compensation did not apply where employee shot at work)).
Indemnification
Mississippi law provides for a principal’s right of indemnity against an agent committing a wrong
which gives rise to vicarious liability. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206,
1216-17 (Miss. 2001) (insurance company not entitled to indemnity where settlements paid to third
parties voluntary and not compulsory).
However, non-contractual, implied indemnity requires the following two elements: (1) damages the
claimant seeks to shift are imposed on the former “as a result of some legal obligation to the
injured” and (2) the claimant did not “actively or affirmatively participate in the wrong.” Id.
Joint and Several Liability
A) Effective January 1, 2003, Mississippi abolished joint and several liability, such that a joint
tortfeasor is liable only for the amount of damages allocated in direct proportion to a
percentage of fault. MISS. CODE. ANN. § 85-5-7(2). Joint and several liability still exists for
those "who consciously and deliberately pursue a common plan or design to commit a
tortious act, or actively take part in it." Id. at § 85-5-7(4).
B) Contribution. A jointly liable defendant does have a right to contribution against other
joint tortfeasors. MISS. CODE. ANN. § 85-5-7(4) (2012).
Strict Liability
A) Codification. The Mississippi Products Liability Act codified strict liability common law.
Green v. Allendale Planting Co., 954 So. 2d 1032, 1040 (Miss. 2007) (established statutory
assumption of risk as complete defense to claims for failure to warn and defective design
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brought by injured employee who had knowledge and appreciated that it was a dangerous
situation to approach a farm implement without turning it off).
B) Standard. The Act requires the claimant to establish by a preponderance of the evidence:
(1) at the time a product left control of the manufacturer or seller it (a) was defective
because it deviated in a material way from the manufacturer’s specifications or from
otherwise identical units manufactured according to the same specifications, (b) was
defective because it failed to contain adequate warnings or instructions, (c) was designed in
a defective manner, or (d) breached an express warranty or failed to conform to other
express factual representations upon which the claimant justifiably relied in electing to use
the product; (2) the defective condition rendered the product unreasonably dangerous to the
user or consumer; and (3) the defective and unreasonably dangerous condition of the
product proximately caused the damages for which recovery is sought. Moss v. Batesville
Casket Co., 935 So. 2d 393, 402-03 (Miss. 2006) (children failed to demonstrate alleged
defective condition of casket when it was exhumed resulted in an unreasonably dangerous
condition to the user or consumer proximately resulting in damage, given they knew a
wooden casket would not preserve remains forever and knew casket would deteriorate).
C) Learned intermediary. In accordance with the majority rule, a prescription drug
manufacturer does not maintain a duty to warn the patient, consumer, or general public of
adverse effects; under the learned intermediary doctrine, however, a duty to adequately warn
the treating physician is imposed by Mississippi law. Bennett v. Madakasira, 821 So. 2d
794, 805 (Miss. 2002) (testimony of treating psychiatrist not dispositive on issue of whether
prescriptions warnings were adequate in a negligence action against psychiatrists and drug
manufacturers).
Willful and Wanton Conduct
For an injury to be willful or wanton, as the Mississippi Supreme Court has explained, “[s]omething
more is required to impose liability than mere inadvertence or lack of attention; there must be a
more or less extreme departure from ordinary standards of care, and conduct must differ in quality,
as well as in degree, from ordinary negligence involving a conscious disregard of a known serious
danger.” Leffler v. Sharp, 891 So. 2d 152, 159 (Miss. 2004) (bar owner did not breach duty where
trespasser fell through roof of adjacent building after climbing through open bar window) (quoting
Hoffman v. Planters Gin Co., 358 So. 2d 1008, 1012-13 (Miss. 1978)).
In particular, “willfulness” and “wantonness” suggest knowingly and intentionally doing a thing or
wrongful act. Raney v. Jennings, 158 So. 2d 715, 718 (Miss. 1963) (social guest injured by defect in
premises could not recover against host in absence of evidence establishing something more than
ordinary negligence and maintenance of premises).
DISCOVERY
Electronic Discovery Rules
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The scope of discovery includes electronic data under Mississippi law. MISS. R. CIV. P. 26(b)(5).
To obtain discovery of electronic data, the party seeking discovery “must specifically request
production of electronic or magnetic data and specify the form in which the requesting party wants
it produced.” Id. However, Rule 26(b)(5) limits it to data which is “reasonably available to the
responding party in its ordinary course of business.” See also Choctaw Maid Farms, Inc. v. Hailey,
822 So. 2d 911 (Miss. 2002) (finding that plaintiff in suit for wrongful death arising from
automobile accident is required to disclose accident reconstruction expert’s computer data
compilations concerning test crashes and specific measurements pertaining to vehicle in question).
If extraordinary measures are required to produce the requested electronic data, a court may order
the requesting party to pay the expenses associated with production. Id.
Expert Witnesses
A) Forms of disclosure – reports required. Unless agreed otherwise, Rule 26(b)(4) governs
expert material that parties have the right to discover. MISS. R. CIV. P. 26(b)(4). As long as
the information is otherwise discoverable under the general discovery provisions, this rule
permits discovery of facts known or opinions held by experts acquired or developed in
anticipation of litigation or trial. Id. More specifically, the rule contains: (1) the procedure
for obtaining such discovery and also the procedure to obtain additional discovery (by court
order) and (2) requirements to obtain facts or opinions held by an expert retained by the
responding party who is not expected to be called as a witness; and (3) the duties of the
parties to pay experts a reasonable fee for time spent responding to a discovery request when
additional discovery is allowed. Id.
1) Purpose. As with discovery as a whole, Rule 26(b)(4) seeks to prevent trial by ambush.
Banks v. Hill, 978 So. 2d 663, 667 (Miss. 2008) (“[A]ll experts and expert opinion
should be disclosed prior to trial, eliminating the prospects of unexpected opinions at
trial.”). Absent a scheduling order, the parties must disclose their experts sixty (60)
days prior to trial. Uniform Circuit Court Rules, Rule 4.04. However, deadlines in
scheduling orders take precedence over Rule 4.04’s deadlines. Venton v. Beckham, 845
So. 2d 676, 683 (Miss. 2003).
2) Rule 26 Interrogatory. According to Rule 26(b)(4)(A)(i), a party may require (1) any
other party to designate each person that party intends to call as an expert at trial, (2)
state the subject matter on which the expert is expected to testify, and (3) state the
substance of the facts and opinions to which the expert is expected to testify and a
summary of the grounds for each opinion. See also Jones v. Hatchett, 504 So. 2d 198
(Miss. 1987) (finding that trial court erred when it allowed expert testimony to be
presented at trial even though responding party failed to adequately supplement
interrogatory responses by failing to reveal the identify of the expert and substance of
his testimony).
3) Additional Discovery. Additional discovery may be granted by motion under Rule
26(b)(4)(A)(ii). Id. However, Rule 26 is a two-step process that begins with serving a
Rule 26 interrogatory and receiving the information sought in the interrogatory. If the
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first requirement is not met, a party may not file a motion for additional discovery. See
Smith v. Principal Cas. Ins. Co., 131 F.R.D. 104, 104 (S.D. Miss. 1990) (holding that
propounding interrogatories under Rule 26(b)(4)(A)(i) is a condition precedent to
requesting additional discovery). If a requesting party is granted additional discovery
under this section, that party may be responsible for fees and expenses associated with
obtaining the discovery. Id.
B) Rebuttal Witness. The discovery limitations under Rule 26 are intended to allow the
requesting party access to such information as would be necessary to prepare for cross-
examination. If, on the other hand, an expert has been retained in preparation for trial but is
not expected to be called as a witness, a party may discover facts and opinions held by the
expert “only upon a showing of exceptional circumstances under which it is impracticable
for the party seeking discovery to obtain facts or opinions on the same subject by other
means.” MISS. R. CIV. P. 26(b)(4)(B). Absent such a showing, it is impermissible for a party
to obtain facts known or opinions held by the non-testifying expert. See Gen. Motors Corp.
v. Jackson, 636 So. 2d 310, 314 (Miss. 1992) (“Absent [a showing of exceptional
circumstances], deposition of an expert retained by a party but not expected to testify is
impermissible.”). Rebuttal experts whose testimony had not been disclosed may only be
used to rebut opinions the primary expert only disclosed after the close of discovery. Banks
v. Hill, 978 So. 2d 663 (Miss. 2008).
C) Work product. Rule 26(b)(3) protects documents and other tangible items prepared in
anticipation of litigation or trial by or for a party or prepared by or for a representative of
that party from discovery. Id. For a party to obtain discovery of work product, the requesting
party must show a “substantial need of the materials in the preparation of that party’s case
and that the party is unable without undue hardship to obtain the substantial equivalent of
the materials by other means.” Id. Work product protection is not limited to materials
prepared by attorneys. See Haynes v. Anderson, 597 So. 2d 615, 618 (Miss. 1992)
(“Insurance representatives are included within the Rule.”).
D) Insurance. Insurance representatives are within the scope of the rule, and the burden rests
on the party resisting discovery based on work product privilege to show material sought
was prepared in anticipation of litigation. Id. at 615 (application of work product privilege
to documents in insurer’s investigative file should be determined on case-by-case, item-by-
item basis). Under this approach, courts consider “the nature of the documents, the nature of
the litigation [investigation], the relationship between the parties, and any other fact peculiar
to the case.” Id at 619.
Non-Party Discovery
A) Subpoenas. Under Rule 45, a party served with a valid subpoena may be commanded to (1)
attend a trial, hearing or deposition and give testimony or (2) produce in ten (10) days
certain materials for inspection and copying in the possession, custody or control of the
person. MISS. R. CIV. P. 45(a)(1). A subpoena issued under Rule 45 must come from the
clerk of the court in which the action is pending and may be served anywhere in the state.
Id. Foreign subpoenas are not recognized through issuance of a domestic subpoena upon
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submission of the foreign subpoena to the clerk in the county of deposition. MISS. R. CIV. P.
45(a)(3).
If the subpoena is for a deposition to be taken in foreign litigation, it should be issued by a
clerk of the court for the county in which the deposition will be taken. MISS. R. CIV. P.
45(a)(2). A Mississippi resident may only be required to appear in the county in which he
resides, is currently employed, or transacts business, unless a convenient location is fixed by
the court. Id. Furthermore, a non-resident served with a subpoena in the state may only be
required to appear in the county in which he was served with the subpoena. Id.
If a person fails to comply with a subpoena without adequate excuse, that person may be
found in contempt of court. Id. Sanctions, including attorneys’ fees, can be awarded for
abusive use of subpoenas when the subpoena was issued in bad faith or in such
unreasonable manner as to annoy, embarrass, or oppress the party or the person upon whom
the subpoena was served. See Deliman v. Thomas, 16 So. 3d 721 (Miss. Ct. App. 2009).
The court that issued the subpoena can, upon motion by the party from whom discovery is
sought, issue a protective order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . . .” MISS. R. CIV. P. 26(d).
B) Respondents. In order to comply with a subpoena to produce documents, a person must
produce the requested materials as they are kept in the usual course of business or organize
and label them to correspond with the categories in the demand. MISS. R. CIV. P. 45(e)(1).
If a party intends to withhold information, claiming it is privileged or protected, “the claim
shall be made expressly and shall be supported by a description of the nature of the
documents, communications, or things not produced that is sufficient to enable the
demanding party to contest the claim.” MISS. R. CIV. P. 45(e)(2). The responding party is not
required to prepare or compile specific information within the documents. Id. While a
party is permitted to request relevant information from large, voluminous documents, the
requesting party may be responsible for the expenses associated with obtaining the relevant
information. Id.
C) Time frames for responses. In the absence of an adequate excuse, any person who does not
obey a subpoena may be found to be in contempt of court. MISS. R. CIV. P. 45(g).
1) Quashing or modifying a subpoena. Upon a timely motion by the party issued a
subpoena, a court may modify or quash the subpoena if it (1) fails to allow
reasonable time for compliance, (2) requires disclosure of privileged or other
protected matter and no exception or waiver applies, (3) designates an improper
place for examination, or (4) subjects a person to undue burden or expense. MISS.
R. CIV. P. 45(d)(1)(A). If a subpoena (1) requires disclosure of a trade secret or
other confidential information, or (2) requires disclosure of an unretained expert’s
opinion or information not describing specific events or occurrences in dispute and
resulting from the expert’s study made not at the request of any party, the court may
order appearance or production only upon specified conditions. MISS. R. CIV. P.
45(d)(1)(B).
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2) Timing. Unless the period is shortened by the court for good cause shown, a
subpoena for production or inspection shall allow not less than ten (10) days for the
person upon whom it is served to comply with the subpoena from the date of
service. MISS. R. CIV. P. 45 (d)(2)(A). The person to whom the subpoena is directed
may, within ten (10) days or on or before the time period specified by the court on
the subpoena, serve a written objection to inspection or copying of the designated
materials. Id. If this is done, the party serving the subpoena is not entitled to inspect
or copy the designated documents absent a court order from the court that issued the
subpoena. Id.
At any time at or before compliance is due pursuant to a subpoena, a court may (1)
modify or quash the subpoena if it is unreasonable or oppressive, or (2) condition
the denial of the motion upon the advance of the reasonable cost of producing the
designated documents. MISS. R. CIV. P. 45(d)(2)(C).
Privileges
A) Attorney-client privilege. Generally, communications made between a client and his
attorney are privileged under the Rules of Evidence. MISS. R. EVID. 502 (2012). According
to the rule, a client can assert the privilege to “refuse to disclose and to prevent any other
person from disclosing confidential communications made for the purpose of facilitating the
rendition of professional legal services to the client….” MISS. R. EVID. 502(b). The
attorney-client privilege “does not require the communication to contain purely legal
analysis or advice to be privileged.” Nester v. Jernigan, 908 So. 2d 145, 148 (Miss. 2005)
(internal quotations omitted). Rather, where it “facilitate[s] the rendition of legal services or
advice,” the communication is privileged. Id. (internal quotations omitted). Such
communications are broadly protected in Mississippi. Baker, Donelson, Bearman, Caldwell
& Berkowitz, P.C. v. Seay, 42 So. 3d 474, 494 (Miss. 2011).
1) Confidential information. The privilege only covers confidential communications
made between the client and the attorney. MISS. R. EVID. 502(a)(5). “A communication
qualifies as ‘confidential’ if it was not intended to be disclosed to a third party except as
necessary to render legal services.” Roman Catholic Diocese of Jackson v. Morrison,
905 So. 2d 1213, 1246 (Miss. 2005).
2) Intent. “The test for confidentiality is intent. Thus, a communication made in public
cannot be considered confidential. Intent can be inferred from the particular
circumstances.” MISS. R. EVID. 502, cmt. Exceptions include statements made in
furtherance of a crime or fraud and other instances. See MISS. R. EVID. 505(2)(d).
Under the rule, all information pertaining to the client received by the attorney in his
professional capacity is privileged. Hewes v. Langston, 853 So. 2d 1237, 1244 (Miss.
2003) (emphasis added). Thus, the privilege encompasses correspondence, bills, ledgers,
statements, and time records that pertain to a client’s motive in seeking representation.
Id. This broad rule covers communications made by a client to his attorney as well as
14
those made by the attorney to the client. Id.
B) Work product. The work product doctrine protects an attorney’s thoughts, mental
impressions, strategies, and analysis from discovery by opposing counsel. Hewes, 853 So.
2d at 1245 (citing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). According to the
Mississippi Rules of Civil Procedure, court ordered discovery shall exclude “mental
impressions, conclusions, opinions, or legal theories of an attorney or other representative of
a party concerning the litigation.” MISS. R. CIV. P. 26(b)(3). Unlike the attorney-client
privilege, the work product doctrine is not designed only to protect against disclosure of
confidential communications. Instead, it exists to ensure fairness and efficiency in the
dissemination of legal advice and trial preparation. Hewes, 853 So. 2d at 1245 (citing
Hickman, 329 U.S. at 511). However, the privilege only applies to discovery, not the
admissibility of the otherwise discovered item of evidence. Baker, Donelson, Caldwell and
Berkowitz v. Seay, 42 So. 3d 474, 493 (Miss. 2011).
C) Self-Critical Analysis. A self-critical analysis privilege would protect documents prepared
by a party attempting to address and or rectify problems. Roman Catholic Diocese of
Jackson, 905 So. 2d at 1245. Proponents of the privilege allege that, as a matter of public
policy, allowing these materials to be produced would discourage self-analysis, self-
criticism, and self-improvement. Id. However, the Mississippi Supreme Court has refused
to recognize such a privilege. Id. (“Although we do not find the argument totally
unpersuasive, we decline at this time to recognize or establish this privilege.”).
D) Others for consideration.
1) Joint-defense privilege. The joint-defense privilege, an extension of the attorney-
client privilege, protects communications by a lawyer or representative of a lawyer
representing another party (1) in a pending action and (2) concerning a matter of
common interest, though the latter must in fact be a genuine common interest.
Hewes, 853 So. 2d at 1273 (letters, draft affidavits, and other correspondence
circulated among defense counsel on matters of common interest protected) (citing
MISS. R. EVID. 502(b) and MISS. R. CIV. P. 26(b)(3)).
2) Others. Others include the (1) physician-patient and psychotherapist-patient, (2)
husband-wife, and (3) priest-penitent privileges. See MISS. R. EVID. 503-505.
3) Self-incrimination. Further, federal and state constitutional privileges against self-
incrimination are available to witnesses in both criminal and civil proceedings. See
MISS. R. CIV. P. 26(b); see also In re Knapp, 536 So. 2d 1330 (Miss. 1998) (minister
could invoke privilege in alienation of affection suit on question-by-question basis
where facts were sufficient to subject him to prosecution for homicide and adultery
in future proceedings).
E) Self-Incrimination. The privilege against self-incrimination is a constitutional privilege
embodied in both the United States and Mississippi Constitutions. Additionally, Rule
15
26(b)(1) recognizes this privilege as applied to witnesses in a civil proceeding. In re Knapp,
536 So. 2d 1330, 1334 (Miss. 1988). In order to clarify when the privilege applies, the
Mississippi Supreme Court created a two-step analysis to determine whether the privilege
can be invoked: “First, the Court must determine whether the answers to the question might
reveal that the witness is engaged in criminal activity…Second, if the answers might
incriminate, the court must then determine whether there is even a remote risk that the
witness will be prosecuted for the criminal activities.” In re Knapp, 536 So. 2d at 1334.
F) Statutory Privileges Yield to Rules of Evidence. Certain statutes enacted by the
Mississippi Legislature may appear to create additional confidential communication
privileges. See Whitehurst v. State, 540 So. 2d 1319, 1322 (Miss. 1989) (finding that MISS.
CODE ANN. 63-11-43 read in conjunction with MISS. CODE ANN. 63-11-7 creates a
“privilege” preventing the admission of blood alcohol test results in a civil trial without
consent). However, consistent with the United States Constitution, the Mississippi
Constitution, and the purposes of the Rules of Evidence, these statutory exclusions must
yield to the Mississippi Rules of Evidence. Id. at 1323 (“[B]y virtue of M.R.E. 501 . . . this
privilege has been abrogated.”)
Requests for Admission
For the purposes of the pending action only, a party may serve upon any other party a written
request for the admission of the truth of any matters within the scope of Rule 26(b). MISS. R. CIV.
P. 36(a). According to the rule, the matters set forth in the request must “relate to statements or
opinion of fact or of the application of law to fact, including the genuineness of any documents
described in the request.” Id. Further, each matter requested to be admitted must be separately set
forth for the party to whom the request is directed. Id. Additionally, if a party requests that a
document be admitted as genuine, the party must include copies of the document in its request. Id.
“The purpose of requests for admissions is to narrow and define issues for trial.” Haley v. Harbin,
933 So. 2d 261, 262 (Miss. 2005). Thus, they should not be ambiguous or unreasonable. Id.
(“Although not limited to a specific number, the requests must be reasonable and must be
unambiguous.”).
However, failure to admit the requests for admissions may lead to summary judgment on the
admitted requests. Despite affidavits from the attorney claiming that he did not receive the requests,
a court may reject that assertion and grant summary judgment on the admitted requests. Byrd v.
Bowie, 933 So. 2d 899, 903 (Miss. 2006).
Unique State Issues
A) Court appearance via webcam. Recent amendments to state law permit individuals held
in state custody or any of its political subdivisions, upon waiver of any right the individual
has to be physically present, to appear via webcam or closed circuit television. MISS. CODE
ANN. 99-1-23(1) (2012). This procedure may also be used in any civil proceeding in the
state other than a trial by jury. MISS. CODE ANN. 99-1-23(1)(h) (2012).
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EVIDENCE, PROOFS & TRIAL ISSUES
Accident Reconstruction
Mississippi recognizes and allows the use of accident reconstruction experts at trial as long as they
can be qualified as expert witnesses. Poirrier v. Degrande, 604 So. 2d 268, 270 (Miss. 1992). In
2003, the Mississippi Supreme Court adopted the Daubert/Kumho Tire test. Mississippi Transp.
Comm'n v. McLemore, 863 So. 2d 31, 35 (Miss. 2003).
Appeal
A) When permitted. Generally, appeals are only permitted after final judgment has been
rendered. MISS. CODE ANN. § 11-51-3 (2012) (civil cases); MISS. CODE ANN. § 99-35-101
(2012) (criminal cases).
B) Timing. Notice of appeal must be filed within thirty (30) days after entry of final judgment.
MISS. R. APP. P. 4(a) (2012).
C) Mississippi state courts have an interlocutory appeal procedure, similar to the federal court
interlocutory appeal procedure. MISS. R. APP. P. 5. A petition from an interlocutory appeal
may be made to the Mississippi Supreme Court within twenty one (21) days of the entry of
an interlocutory order. Id. If the petition is granted, a briefing schedule is set.
Biomechanical Testimony
Mississippi recognizes the use of biomechanical testimony if the witness qualifies as an expert in
area of biomechanics. See, e.g., Hyundai Motor Am. v. Applewhite, 53 So. 3d 749, 755 (Miss. 2011)
(allowing biomechanical testimony as defendant’s objection was not contemporaneous); Beckham v.
GMC, 933 So. 2d 1022, 1025 (Miss. Ct. App. 2006) (affirming trial court’s decision to exclude
biomechanical expert testimony due to qualifications); Palmer v. Volkswagen of Am. Inc., 905 So.
2d 564, 590, 596 (Miss. Ct. App. 2003) (noting testimony from a biomechanical expert is
admissible as expert testimony) (overruled on other grounds by Palmer v. Volkswagen of Am. Inc.,
904 So. 2d 1077 (Miss. 2005)).
Collateral Source Rule
A tortfeasor cannot introduce evidence of a plaintiff’s collateral sources of recovery in order to
mitigate or reduce damages. Busick v. St. John, 856 So. 2d 304, 309 (Miss. 2003). The collateral
source rule only applies “when the indemnity or compensation is for the same injury for which
damages are sought.” Brooks v. Purvis, 70 So. 3d 1166, 1172 (Miss. Ct. App. 2011).
Convictions
17
A) Criminal. Specific instances of conduct of a witness for the purpose of attacking his
credibility, other than for conviction of a crime, may not be proved through extrinsic
evidence. MISS. R. EVID. 608 (2012). Criminal conduct can be admitted if the crime was
punishable by death or imprisonment in excess of one year or if the crime involved
dishonesty or false statement. MISS. R. EVID. 609.
Day in the Life Videos
Day in the Life videos are utilized to show an actual day in the life of the victim and are admissible
as “probative evidence to prove loss of society and companionship claims.” Choctaw Maid Farms
Inc. v. Hailey, 822 So. 2d 911, 920 (Miss. 2002); see also Mills v. Nichols, 467 So. 2d 924, 930
(Miss. 1985).
Dead Man’s Statute
The Mississippi Dead Man’s Statute has been repealed. Under MISS. R. EVID. 601, every person is
competent as a witness except a spouse of a party litigant (with exceptions) and a person appointed
by the court to make an appraisal in an eminent domain case.
Medical Records
Medical records can be introduced as an exception to the hearsay rules under MISS. R. EVID. 803(4)
as a statement for the purpose of medical diagnosis and MISS. R. EVID. 803(6) as records of
regularly conducted activity. Medical records can also be self-authenticating under MISS. R. EVID.
902(11).
Offers of Judgment
An offer of judgment can be made at any time more than fifteen (15) days before the start of trial.
MISS. R. CIV. P. 68. The adverse party has ten (10) days to serve written notice of acceptance. Id.
An offer of judgment that is “not accepted shall be deemed withdrawn and evidence thereof is not
admissible except in a proceeding to determine costs.” MISS. R. CIV. P. 68.
Offers of Proof
Under MISS. R. EVID. 103, “[e]rror may not be predicated upon a ruling that admits or excludes
evidence unless a substantial right of the party is affected” and a timely objection is made, or the
substance of the evidence was made known to the court by an offer of proof. Ross v. State, 954 So.
2d 968, 1001 (Miss. 2007). The offer of proof allows the nature and significance of the evidence to
be evaluated. Trotter v. State, 878 So. 2d 248, 251 (Miss. Ct. App. 2004).
Prior Accidents
Pursuant to MISS. R. EVID. 404(b), evidence of other crimes, wrongs, or acts are not admissible to
prove the character of a person in order to show that he acted in conformity within, but may be
admitted for other purposes. MISS. R. EVID. 404(b).
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Relationship to the Federal Rules of Evidence
“Though a few differences exist, the Mississippi Rules of Evidence are generally the same as the
Federal Rules of Evidence. In construing the Mississippi Rules of Evidence, this Court has
generally cited federal case law, which interpreted the federal rule corresponding with the
Mississippi Rule of Evidence at issue in the case.” Hall v. State, 691 So. 2d 415, 420 n.3 (Miss.
1997).
Seat Belt and Helmet Use Admissibility
Failure to use a seat belt will not be considered as contributory or comparative negligence. MISS.
CODE ANN. § 63-2-3 (2012). This statute does not, however, bar admission of seat belt usage in all
cases. Estate of Hunter v. Gen. Motors Corp., 729 So. 2d 1264, 1267-68 (Miss. 1999).
Spoliation
Proof of spoliation gives rise to a spoliation inference that entitles the “non-offending party to an
instruction that the jury may infer that spoliated evidence is unfavorable to the offending party.”
Dowdle Butane Gas Co., Inc. v. Moore, 831 So. 2d 1124, 1127 (Miss. 2002). Such an inference
arises, however, only when the spoliation or destruction was intentional and indicates fraud and a
desire to suppress the truth, and it does not arise where the destruction was a matter of routine with
no fraudulent intent. Tolbert v. State, 511 So. 2d 1368, 1372-73 (Miss. 1987).
Subsequent Remedial Measures
MISS. R. EVID. 407 bars evidence of subsequent remedial measures except to prove control,
ownership, or feasibility, or for impeachment.
Use of Photographs
Photographs are generally admissible only if identified by a witness as a portrayal of certain
facts relevant to the issue and verified by the witness as a correct presentation of those facts.
MISS. R. EVID. 901-903.
DAMAGES
Caps on Damages
A) In any medical malpractice case or case for breach of standard of care against a health
provider filed on or after September 1, 2004, the recovery for noneconomic damages, such
as pain and suffering, emotional distress, loss of society and companionship, loss of
consortium, disfigurement, loss of enjoyment of life, fear of loss/illness/injury, is limited to
$500,000. MISS. CODE ANN. §11-1-60 (2012).
19
For any civil action filed on or after September 1, 2004, other than a medical malpractice
case or a case for breach of standard of care against a health provider, recovery for
noneconomic damages is limited to $1,000,000. MISS. CODE ANN. §11-1-60 (2012).
Juries are not advised of the cap. The judge shall reduce any award for noneconomic
damages in excess of the cap. MISS. CODE ANN. §11-1-60 (2012).
B) Punitive damages. Effective September 1, 2004 and pursuant to Miss. Code Ann. § 11-1-
65, if an entitlement to punitive damages is established, the following caps apply (net worth
is determined in accordance with GAAP):
1) Twenty Million Dollars ($20,000,000) for a defendant with a net worth of more than
One Billion Dollars ($1,000,000,000);
2) Fifteen Million Dollars ($15,000,000) for a defendant with a net worth of more than
Seven Hundred Fifty Million Dollars ($750,000,000) but not more than One Billion
Dollars ($1,000,000,000);
3) Five Million Dollars ($5,000,000) for a defendant with a net worth of more than Five
Hundred Million Dollars ($500,000,000) but not more than Seven Hundred Fifty
Million Dollars ($750,000,000);
4) Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000) for a defendant
with a net worth of more than One Hundred Million Dollars ($100,000,000) but not
more than Five Hundred Million Dollars ($500,000,000);
5) Two Million Five Hundred Thousand Dollars ($2,500,000) for a defendant with a net
worth of more than Fifty Million Dollars ($50,000,000) but not more than One
Hundred Million Dollars ($100,000,000); or
6) Two percent (2%) of the defendant's net worth for a defendant with a net worth of
Fifty Million Dollars ($50,000,000) or less.
Juries are not advised of the cap. The judge shall reduce any award for noneconomic
damages in excess of the cap. MISS. CODE ANN. §11-1-65 (2012).
C) The caps on punitive damages do not apply to actions brought for damages or an injury
resulting from an act or failure to act by the defendant if (1) the defendant was convicted of
a felony under Mississippi or federal law for the act or failure to act that caused the damages
or injury or (2) the defendant was under the influence of alcohol or under the influence of
drugs other than lawfully prescribed drugs administered in accordance with a prescription.
Despite several cases that brought the issue of the constitutionality of Mississippi’s non-
compensatory damage caps before the Mississippi Supreme Court, the Court has yet to rule
on the issue. See, e.g., Double Quick, Inc. v. Lymas, 50 So. 3d 292 (Miss. 2010) (finding
20
that the defendant’s motion for judgment notwithstanding the verdict should have been
granted, thereby dismissing plaintiff’s cross-appeal on the constitutionality of the caps);
Estate of Gibson v. Magnolia Healthcare, Inc., No. 2010-CA-00741-SCT, 2012 Miss.
LEXIS 186 (Miss. Apr. 12, 2012) (refusing to address the issue because the challenge to the
caps was made for the first time on appeal).
Calculation of Damages
A) Factors. There is no exact standard for measuring damages, but the following factors may
be considered in the determination of the amount: the type and duration of injuries; past,
present, and future physical pain and suffering and resulting mental anguish; reasonable and
necessary medical expenses already incurred and those which are reasonably probable to be
incurred in the future; past loss of wages and future loss of earning capacity; and age, sex,
and health of the plaintiff. MISS. PRAC. MODEL JURY INSTR. CIVIL § 11:5; Jackson Pub. Sch.
Dist. v. Smith, 875 So. 2d 1100, 1104 (Miss. Ct. App. 2004). There is also no set calculation
for mental suffering except that they should be fair and just. Whitten v. Cox, 799 So. 2d 1,
17 (Miss. 2000).
B) Punitive damages. Factors to consider in calculating punitive damages are:
[T]he defendant’s financial condition and net worth; the nature and reprehensibility
of the defendant’s wrongdoing, for example, the impact of the defendant’s conduct
on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant’s
awareness of the amount of harm being caused and the defendant’s motivation in
causing such harm; the duration of the defendant’s misconduct and whether the
defendant attempted to conceal such misconduct; and any other circumstances
shown by the evidence that bear on determining a proper amount of punitive
damages.
MISS. CODE ANN. § 11-1-65(1)(e) (2012).
Available Items of Personal Injury Damages
A) Available damages. Damages for past medical bills, future medical bills, disfigurement,
disability, past pain and suffering, future pain and suffering, loss of society, and loss of
income and wages are available.
B) Increased risk of harm. Damages for increased risk of harm are generally not available.
Damages based upon apprehension of future illness or damage must await a manifestation
of that illness or be supported by substantial exposure to the danger, and be supported by
medical or scientific evidence so that there is a rational basis for the emotional fear. S. Cent.
Reg’l Med. Ctr. v. Pickering, 749 So. 2d 95, 98-99 (Miss. 1999).
C) Hedonic Damages. After 2003, hedonic damages are not recoverable separately from pain
and suffering, and expert testimony is not permitted on pain and suffering damages. MISS.
21
CODE ANN. § 11-1-69 (2012). In wrongful death actions, there can “be no recover for loss of
enjoyment of life caused by death.” Id.
Lost Opportunity Doctrine
With the proper economic proof, damages for “lost opportunities” are admissible. United S. Bank v.
Bank of Mantee, 680 So. 2d 220, 224 (Miss. 1996).
Punitive Damages
A) When may be brought. MISS. CODE ANN. § 11-1-65(1)(b)-(c) (2012):
In any action in which the claimant seeks an award of punitive damages, the trier of
fact shall first determine whether compensatory damages are to be awarded and in
what amount, before addressing any issues related to punitive damages. If, but only
if, an award of compensatory damages has been made against a party, the court shall
promptly commence an evidentiary hearing to determine whether punitive damages
may be considered by the same trier of fact.
B) Standard. MISS. CODE ANN. § 11-1-65(1)(a) (2012):
Punitive damages may not be awarded if the claimant does not prove by clear and
convincing evidence that the defendant against whom punitive damages are sought
acted with actual malice, gross negligence which evidences a willful, wanton or
reckless disregard for the safety of others, or committed actual fraud.
C) Caps. For punitive damages, the maximum amount that can be awarded is dependent upon
the defendant’s net worth, unless it is an action brought for damages or for an injury
resulting from an act or failure to act by the defendant when (1) the defendant was convicted
of a felony under Mississippi or federal law for the act or failure to act that caused the
damages or injury or (2) the defendant was under the influence of alcohol or under the
influence of drugs other than lawfully prescribed drugs administered in accordance with a
prescription. Before allowing the jury to consider punitive damages, the trial court will
determine whether punitive damages could be appropriate. The trial is therefore bifurcated
between compensatory and punitive phases. Upon a punitive damage award, the Court must
determine whether the award is excessive and may reduce the amount of the award (aside
from the reduction the cap may require). MISS. CODE ANN. § 11-1-65 (2012); Bradfield v.
Schwartz, 936 So. 2d 931 (Miss. 2006).
Recovery and Pre- and Post-Judgment Interest
A) Prejudgment interest. Prejudgment interest may be awarded to a prevailing party to
provide compensation for the detention of money overdue, i.e., it provides for the time value
of money. Arcadia Farms P'ship v. Audubon Ins. Co., 77 So. 3d 100, 105 (Miss. 2012). A
proper demand for such must be made in the pleadings and the claim for damages must be
liquidated or, in the case of insurance contracts, arise from a bad faith or frivolous denial of
22
a claim. Id. Even if the claims are liquidated, prejudgment interest may be denied if there is
a bona fide dispute as to the amount of damages as well as the responsibility for the liability
for the damages. Id. But see Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So.
2d 1100, 1118 (Miss. 2007) (holding that failing to allege in a complaint the specific date
upon which prejudgment interest was due is not fatal because such was not required by Rule
8 of the Mississippi Rules of Civil Procedure).
B) Post-judgment interest. MISS. CODE ANN. § 75-17-7 (2012):
All judgments or decrees founded on any sale or contract shall bear interest at the
same rate as the contract evidencing the debt on which the judgment or decree was
rendered. All other judgments or decrees shall bear interest at a per annum rate set
by the judge hearing the complaint from a date determined by such judge to be fair
but in no event prior to the filing of the complaint.
Settlement Involving Minors
MISS. CODE ANN. § 93-13-59 (2012) mandates that the chancery court authorize the compromise
and settlement of a minor’s claim before the settlement becomes effective. In re Guardianship of
Lane, 994 So. 2d 775, 780 (Miss. Ct. App. 2008).
Taxation of Costs
A) Trials. MISS R. CIV. P. 54(d)B: Unless provided by statute, “costs shall be allowed as of
course to the prevailing party unless the court otherwise directs.” A party bringing a claim
or defense for the purpose of harassment or delay may be assessed costs and attorneys’ fees.
MISS. CODE ANN. § 11-55-5 (2012).
B) Attorneys’ fees. Mississippi follows the “American rule” regarding attorneys’ fees, which
rule provides that, unless there is contractual provision or statutory authority providing for
attorneys’ fees, no attorneys’ fees can be awarded. In cases when punitive damages are
proper, attorneys’ fees can also be awarded. Kennedy v. Anderson, 881 So. 2d 340, 348
(Miss. Ct. App. 2004).
This Compendium outline contains a brief overview of certain laws concerning various
litigation and legal topics. The compendium provides a simple synopsis of current law and is
not intended to explore lengthy analysis of legal issues. This compendium is provided for
general information and educational purposes only. It does not solicit, establish, or continue
an attorney-client relationship with any attorney or law firm identified as an author, editor or
contributor. The contents should not be construed as legal advice or opinion. While every
effort has been made to be accurate, the contents should not be relied upon in any specific
factual situation. These materials are not intended to provide legal advice or to cover all laws
or regulations that may be applicable to a specific factual situation. If you have matters or
questions to be resolved for which legal advice may be indicated, you are encouraged to
contact a lawyer authorized to practice law in the state for which you are investigating and/or
seeking legal advice.
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