REVISED January 24, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60651

LISA LEARMONTH,

Plaintiff - Appellee 

Cross - Appellant,

v.

SEARS, ROEBUCK AND CO.,

Defendant - Appellant 

Cross - Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

Before KING, STEWART, and OWEN, Circuit Judges.

KING, Circuit Judge:

A jury found Sears, Roebuck and Company liable for causing Lisa

Learmonth’s injuries in an automobile accident and awarded her $4 million in

compensatory damages. The district court denied Sears’ motion for a new trial,

but remitted the non-economic damages portion of the award to $1 million

pursuantto Mississippi’s statutory cap on non-economic damages. Sears appeals

the district court’s denial of its motion for new trial; Learmonth cross-appeals

the constitutionality of the Mississippi statutory cap. We affirm the district

United States Court of Appeals

Fifth Circuit

F I L E D

January 19, 2011

Lyle W. Cayce

Clerk
No. 09-60651

2

court’s judgment insofar as it denied a new trial and certify the state

constitutional question to the Supreme Court of Mississippi.

I. BACKGROUND

Plaintiff Lisa Learmonth was seriously injured in a car accident at the

intersection of Mississippi State Highways 15 and 485. The collision involved

Learmonth’s car, which she was driving, and a Sears, Roebuck and Company

(“Sears”) van driven by James McClelland, a Sears employee. Sears contested

both liability and damages at trial.

The primary factual dispute as to liability was which driver was traveling

on Highway 15, which runs north and south, and which driver was traveling on

Highway 485, which runs east and west at that juncture. The question was a

critical one, as there is a stop sign on Highway 485—but no stop sign on

Highway 15—at the intersection where the accident took place. Therefore,

whoever was driving on Highway 15 had the right-of-way. Both drivers claimed

thatthe other had been traveling east on Highway 485 and had run the stop sign

at the intersection, causing the collision.

Eight fact witnesses testified in connection with the liability issue,

including Learmonth and McClelland. Learmonth, who suffered head trauma

from the collision, testified that she did not remember the accident itself, but

that she had been heading north on Highway 15 to pick up her mother that day

and had called her mother from a town south of the intersection on Highway 15.

Phone records verified that Learmonth called her mother about fifteen minutes

before the accident occurred. McClelland testified that he completed a service

call at the home of Bud Dees, a quarter-mile north of the intersection on

Highway 15, and was driving south on Highway 15 when Learmonth’s car

entered his path. At trial, he testified that he could not remember what time he

left Dees’ home, but in earlier depositions he testified that he left around

11:30 a.m. The accident occurred around 1:30 p.m. Sears submitted an affidavit
No. 09-60651

3

stating that it was unable to locate any information or records, electronic or

otherwise, regarding the service calls, deliveries, or repairs made by McClelland

on the day of the accident, and it was thus unable to confirm McClelland’s

whereabouts on the day of the accident.

One eyewitness testified that he saw the Sears van run the stop sign. Two

other witnesses placed Learmonth traveling north on Highway 15 near the time

of the accident; one of those witnesses stopped to render aid at the scene until

emergency personnel arrived. Three witnesses, including McClelland, testified

that the vehicles came to restin the northeast quadrant of the intersection. One

witness, however, placed the Sears van in the northeast quadrant and

Learmonth’s car in the northwest quadrant.

Several witnesses testified about McClelland’s actions immediately

following the accident. Two witnesses stated that he ran towards or into the

woods near the intersection, with one of those witnesses testifying that he

“walked over there like he was throwing something.” That same witness stated

that the “dude acted like he was going to take off from the scene.” Another

witness did not see McClelland run toward the woods, but testified that he was

pacing near the woods and never approached Learmonth’s car or tried to help

Learmonth. McClelland testified that he ran away from the van because he

thought it was on fire. He further testified that he returned to retrieve his cell

phone when he saw that the van was not on fire; that he called his supervisor

and not 911 because another person was already calling 911; and that he did not

approach Learmonth’s car because emergency personnel were on the way.

Two accident reconstruction experts also testified at length concerning

liability. Learmonth’s expert opined that, based on the measurements taken of

the damage to the vehicles and assuming thattheir final resting place was in the

northeast quadrant, Learmonth’s car was struck while traveling north on

Highway 15 by the larger Sears van traveling east on Highway 485. In his view,
No. 09-60651

4

it was not plausible that both vehicles would come to rest in the northeast

quadrant of the intersection if the larger van, traveling south, struck the car at

a high rate of speed when the car ran a stop sign traveling east. Instead, the van

would have pushed the car to the south side of the intersection. Sears’ expert

testified thatthere was not enough physical evidence to determine the sequence

of events or the cause of the collision.

Learmonth was seriously injured in the accident, suffering, among other

things, traumatic brain injury with loss of consciousness; multiple fractured

bones in her pelvic area which required a permanent screw; a broken collarbone;

acute post-hemorrhagic anemia; and puncture wounds and lacerations to her

face and shoulder. She was hospitalized for five days after the accident, confined

to a wheelchair for two months, and on crutches for several weeks after that.

Her fractures have healed, but Learmonth testified at trial that she continues

to experience chronic pain in her lower back and pain from nerve damage in her

left leg. She receives epidural steroid injections one to three times a year for

pain alleviation, and will continue to do so for the next ten to fifteen years. She

testified that the injections provide some relief for her leg pain, but very little

relief for her back pain. 

Learmonth also presented evidence that she suffered from short- and longterm memory loss, headaches, blackouts, and depression, although not all of

these ailments were documented in her medical records. Her ex-husband

testified that the accident—and Learmonth’s ensuing physical and emotional

problems—were the cause of their divorce. Evidence was also offered of

Learmonth’s decreased capacities for housecleaning, playing with her son, and

taking care of herself.

Learmonth has held three jobs since the accident—waitressing at a

restaurant, selling clothes at a retail store, and working as a bank teller. She

left the restaurant because she could not perform the tasks required due to
No. 09-60651

5

physical and emotional problems; her injured collarbone prevented her from

lifting the server trays over her head, as required, while the emotional problems

manifested themselves in frequent crying. She left her retail job because it

entailed too much standing, and left the teller job on her doctor’s

recommendation due to the pain she experienced from sitting and standing for

long periods of time. 

At the conclusion of the trial, the jury found Sears liable for Learmonth’s

injuries and awarded her $4 million in compensatory damages. The verdict on

its face did not divide the award into separate categories, but the parties agree

thatthe total award can be divided as follows: approximately $1.2 million for lost

earnings; $573,000 in past and future medical expenses; and approximately $2.2

million in non-economic damages. 

Sears moved for a new trial, arguing that Learmonth’s counsel made

improper comments during opening and closing statements, that the district

court admitted improper evidence at trial, and that the jury’s verdict was so

exaggerated that it reflected bias, passion, and prejudice. Sears moved in the

alternative for remittitur on the grounds that the award exceeded both the

bounds of reasonable recovery for injuries of the type Learmonth sustained, as

well as Mississippi’s statutory cap of $1 million on non-economic damages,MISS.

CODE ANN. § 11-1-60(2)(b) (Supp. 2010). Learmonth argued, for her part, that

Section 11-1-60(2)(b) violates the Mississippi constitution. 

The district court denied Sears’ motion for a new trial, but rejected

Learmonth’s challenge to the constitutionality of Section 11-1-60(2)(b) and

remitted the non-economic damages award to $1 million. This appeal and crossappeal followed.

II. DISCUSSION

A. Motion for New Trial
No. 09-60651

6

Sears argues that the district court erred in denying a new trial based on

improper comments made by plaintiff’s counsel during the opening and closing

statements, and the admission of irrelevant and prejudicial evidence at trial. “A

new trial will not be granted based on trial error unless, after considering the

record as a whole, the court concludes that manifest injustice will result from

letting the verdict stand. We will reverse the trial court’s denial of a motion for

a new trial only when there is a clear showing of an abuse of discretion.”

Foradori v. Harris, 523 F.3d 477, 506–07 (5th Cir. 2008) (citations and internal

quotation marks omitted). 

1. Improper Comments by Plaintiff’s Counsel

The propriety of opening and closing arguments is a matter of federaltrial

procedure, and is therefore subject to federal rather than state law in a diversity

case. Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 275 (5th Cir. 1998)

(citations omitted). When an argument is challenged for impropriety or error,

we review “the entire argument . . . within the context of the court’s rulings on

objections, the jury charge, and any corrective measures applied by the trial

court.” Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1238 (5th Cir.

1985). “Alleged improprieties may well be cured by an admonition or charge to

the jury.” Id.

Sears objects to the following statements, listed in the order in which they

were made at trial:

1. “Sears Roebuck has gone on about their business making

money.”

2. “I’m not going to say what happened [concerning the missing

service records from McClelland’s laptop]. But I know, let me

tell you, we live in a society where business can be cold and

cruel and they do what they need to to survive. We know

that.”

3. “And to me, that sun standing still [referring to McClelland’s

testimony that he left Bud Dees’ home at 11:30 but could not
No. 09-60651

7

explain what he was doing before the accident occurred

almost two hours later] keeps him from being credible

altogether with me.”

4. “Well, number one, I don’t believe that he didn’t know where

he was [referring again to McClelland’s testimony about the

time gap]. I believe he made up that story about

leaving—some story.”

5. “Does a credible person jump out of a car and run into the

woods? Now, you may not believe he did. But W. L. Cleveland

doesn’t know anybody from Adam’s house cat, happened to be

standing out there and saw him run off to the woods. Candy

Nance saw him running around everywhere. The patrolman

said he didn’t, but the patrolman didn’t get there until eight

or ten minutes after the accident. By then, he was back.

That’s one way to judge McClelland’s credibility, I think.”

6. “And believe you me, some of this testimony wouldn’t be

undisputed if there was any way to dispute it. I can promise

you that. Somebody would have been here to dispute it,

because their resources are far more powerful than ours.”

7. “And I just—I talked to you about all the injuries that this

woman had. Man, how much more banged up can you get

than to have allthe bones broken and everything? How much

more banged up can you get? And what do they say? Oh, she

was all right in three months. Well, they could have had her

examined by their own doctor if they had wanted.”

8. “You know, there is such a contrast between Bud Dees and

Candy Nance. I mean, I think Candy Nance is a great person.

Don’t ask me what I think of Bud Dees, because I can’t use

that kind of language.”

9. “And you know, everything is relative. Whether something is

big or little, it’s relative. It depends. To me or somebody else

maybe, that’s just so much money. But what if you were in

Lisa’s place? You know?”

Sears’ objection to the comments concerning witness

credibility—statements 3, 4, 5, and 8 above—were not properly preserved for

appeal because Sears neither objected to them during trial, nor raised them

before the district court in post-trial proceedings. Accordingly, we review those
No. 09-60651

8

statements for plain error only and will reverse only if necessary to preserve a

party’s substantial rights. See FED. R. CIV. P. 61; Whitehead, 163 F.3d at 276.

We have held that it is permissible for an attorney “to make statements that

indicate his opinion or knowledge of the case . . . if the attorney makes it clear

thatthe conclusions he is urging are conclusions to be drawn from the evidence.”

United States v. Thompson, 482 F.3d 781, 786 (5th Cir. 2007) (citation and

internal quotation marks omitted). Statements 3 and 5 may fall within this

description, whereas statements 4 and 8 are more questionable. Nevertheless,

we do not find that the statements were so erroneous as to affect Sears’

substantial rights. Indeed, the weight of the evidence showed an unexplained

lapse of time between McClelland leaving Dees’ home at 11:30 a.m. and the

accident at 1:30 p.m., a key issue regarding liability given that Dees’ home is on

Highway 15 just a quarter of a mile north of the intersection where the collision

took place. 

The parties dispute whether we should consider comments 2 and 6. The

district court sustained Sears’ objection to those comments at trial, stating that

they were matters outside of the record, but Sears did not identify them in its

post-trial briefing until its reply brief in support of its motion for a new trial. We

need not decide the issue, however, because even if we consider those comments

together with the other remaining comments, they do not rise to a level of

manifest injustice requiring reversal. 

Sears argues that Learmonth’s counsel used improper conscience-of-thecommunity arguments in statements 1, 2, and 6. A conscience-of-the-community

argument is any “impassioned and prejudicial plea[] intended to evoke a sense

of community loyalty, duty and expectation.” Westbrook, 754 F.2d at 1239. Such

an argument often invokes the parties’ “relative popular appeal, identities, or

geographical locations” to prejudice the viewpoint of the jury against an out-ofstate corporation. Guaranty Serv. Corp. v. Am. Emp’rs’ Ins. Co., 893 F.2d 725,
No. 09-60651

9

729 (5th Cir. 1990). Sears also asserts that Learmonth’s counsel argued a fact

not in evidence in statement 7 and used an improper Golden Rule argument in

statement 9. A Golden Rule argument suggests that the jury “place themselves

in the plaintiff’s position and do unto him as they would have him do unto them.”

Whitehead, 163 F.3d at 278 (citation and internal quotation marks omitted).

We agree with Sears that these comments were improper, but the

impropriety was effectively cured by the court’s sustainment of Sears’ objections

to each of the statements at trial, as well as by the court’s jury charge, which

instructed the jury that “[i]n deciding the facts of this case you must not be

swayed by sympathy or bias or prejudice or favor as to either party”; that

corporations and individuals have “equal standing in the community”; and that

the lawyers’ arguments are not evidence. Moreover, “the failure of defense

counsel to seek a mistrial suggests that any lingering prejudice from the

improper comments was minimal.” UnitedStates v. Diaz-Carreon, 915F.2d 951,

959 (5th Cir. 1990). The district court therefore did not abuse its discretion in

denying Sears’ motion for a new trial on the basis of these improper comments.

2. Admission of Improper Evidence

a. Testimony as to McClelland’s Post-Accident Conduct

We review a district court’s evidentiary rulings for abuse of discretion.

Abner v. Kansas City So. R.R. Co., 513 F.3d 154, 168 (5th Cir. 2008). Sears

argues that testimony pertaining to McClelland’s post-accident conduct should

have been excluded as irrelevant under Federal Rule of Evidence 402, or, in the

alternative, as unfairly prejudicial under Rule 403. Sears’ motion in limine to

exclude this evidence was sufficientto preserve the issue for appeal, even absent

objection at trial. See Mathis v. Exxon Corp., 302 F.3d 448, 459 & n.16 (5th Cir.

2002). 

Evidence that is not relevant is inadmissible under Rule 402. Relevant

evidence is that which has “any tendency to make the existence of any fact that
No. 09-60651

10

is of consequence to the determination of the action more or less probable than

it would be without the evidence.” FED. R. EVID. 401. The central issue as to

liability at trial was which driver, Learmonth or McClelland, was traveling east

on Highway 485 and failed to stop at the stop sign. To the extent that

McClelland’s testimony on his conduct immediately following the

accident—whether he ran into the woods, threw something into the tree line,

failed to render any assistance to Learmonth, or told another witness that there

was nobody in Learmonth’s vehicle—differed from that of other witnesses, it

could render less credible his testimony as to his pre-accident conduct. And as

stated above, McClelland’s whereabouts immediately before the accident was a

critical question as to liability in this case.

Nor is this evidence unfairly prejudicial such that it should have been

excluded under Rule 403. “Rule 403 requires that the probative value of the

evidence must be ‘substantially outweighed by the danger of unfair prejudice’

before the court may exclude the disputed evidence.” Baker v. Can. Nat’l/Ill.

Cent. RR, 536 F.3d 357, 369 (quoting FED.R.EVID. 403). “Unfair prejudice is not

satisfied by evidence that is ‘merely adverse to the opposing party.’ ” Id.

(quoting Brazos River Auth. v. GE Ionics, 469 F.3d 416, 427 (5th Cir. 2006)).

While the jury may have had a negative reaction to the fact that McClelland did

not approach Learmonth’s car or attempt to help her, the jury was equally free

to believe McClelland’s testimony that he did not offer assistance because

someone else at the scene had already called 911, and because emergency

personnel were on the way. And the danger—anticipated by Sears—that the

jury “could mistakenly decide liability based on a misapprehension that

McClelland was impaired and was acting to conceal some illegal substance” was

countered by evidence offered by Sears at trial that McClelland did not appear

to be impaired, and by the fact that no physical evidence was ever produced to

support the lone witness’s testimony that something had been thrown into the
No. 09-60651

11

tree line. The jury was also free to consider all the other testimony offered at

trial regarding liability. We cannot say that the district court abused its

discretion in determining that the danger of unfair prejudice did not

substantially outweigh the probative value of this evidence.

Finally, Sears argues that evidence of McClelland’s post-accident conduct

was inadmissible under Rule 608(b), which provides that “specific instances of

the conduct of a witness, for the purpose of attacking or supporting the witness’

character for truthfulness . . . may not be proved by extrinsic evidence.” This

argument, which was not raised below, is in any event without merit because

Rule 608(b) limits only the use of evidence “designed to show that the witness

has done things, unrelated to the suit being tried, that make him more or less

believable per se.” United States v. Fusco, 748 F.2d 996, 998 (5th Cir. 1984)

(emphasis added). Here, as we have explained, McClelland’s conduct is directly

related to the suit being tried, and this argument is therefore inapposite.

b. Demonstration of Learmonth’s Injury 

Sears also argues that Learmonth improperly demonstrated her injury in

front ofthe jury. Sears presented a video during Learmonth’s cross-examination

showing her walking normally at the Neshoba County Fair a few months prior

to trial. After testifying, Learmonth returned twice to the courtroom, walking

“pretty slowly [and] limping noticeably,” an action the district court

characterized as “tantamount to testimony” that “at least some of the jury”

observed. This action was brought to the parties’ attention by the district court

during a conference in chambers. The court commented, however, that “if you

had any response to that, I wouldn’t do anything about it; but it’s just an

unfortunate occurrence and it doesn’t need to happen again.”

Sears argues thatthe prejudicial effect ofthis demonstration was “obvious

and incurable.” Yet, as Learmonth notes, Sears did not raise any concerns about

the demonstration during the conference in chambers, request to recall
No. 09-60651

1 Sears does not challenge the reasonableness of the award for past and future medical

expenses. 

2 We note that the sum of these numbers is $1 short of the total verdict of $4 million.

12

Learmonth to the stand, or request that any other curative actions be taken.

Accordingly, our review is for plain error only. Foradori, 523 F.3d at 508. 

In the overall context ofthe trial, we find thatthe plaintiff’s demonstration

did not affect Sears’ substantial rights. Learmonth’s gait would have been

readily observed by the jury when she entered and exited the courtroom to

testify. Cf. Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1426 (5th Cir. 1988)

(holding that counsel’s comments on plaintiff’s use of cane did not require a new

trial, because “[t]he jury no doubt had observed [plaintiff’s] hobbled gait as he

took the witness stand” and “[a]ny additional impact on the jury as it watched

[plaintiff] walk to the chalkboard was not seriously prejudicial”). Furthermore,

the jury was free to credit the video evidence presented by Sears, which showed

Learmonth walking in a normal manner. We therefore conclude thatthe district

court did not abuse its discretion in denying a new trial on this basis.

B. Excessiveness of the Jury Award

Sears next contends that the $1.2 million award for lost earning capacity

and the $1 million post-statutory remittitur award for non-economic damages

were contrary to the great weight of the evidence and so exceed the bounds of

reasonable recovery that a new trial or remittitur is required.1 Although the

verdict did not distinguish the amount of the jury’s award for each category of

Learmonth’s damages, the district court concluded—and the parties do not

challenge—that the award was comprised of $90,098 for past medical expenses,

$483,510 for future medical expenses (reduced to net present value), and

$1,207,486 for loss of earning capacity, with the remaining $2,218,905

constituting non-economic damages.2 The district court reduced the non-
No. 09-60651

13

economic damages to $1 million pursuant to Mississippi’s statutory cap on noneconomic damages, Miss. Code Ann. § 11-1-60(2)(b). 

In a diversity case, we apply the new trial or remittitur standard according

to the forum state’s law controlling jury awards for excessiveness. Foradori, 523

F.3d at 497 (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 419, 434

(1996)). Our review under that standard is for abuse of discretion only, id. at

497–98, and “[w]e must give the benefit of every doubt to the judgment of the

trial judge.” Id. at 498 (quoting Gasperini, 518 U.S. at 438–39) (internal

quotation marks omitted).

Mississippi’s statutory standard for granting a new trial or remittitur

provides, in relevant part:

The supreme court or any other court of record in a case in which

money damages were awarded may overrule a motion for new trial

or affirm on direct or cross appeal, upon condition of an additur or

remittitur, if the court finds that the damages are excessive or

inadequate for the reason that the jury or trier of the facts was

influenced by bias, prejudice, or passion, or that the damages

awarded were contrary to the overwhelming weight of credible

evidence.

MISS. CODE. ANN. § 11-1-55 (Supp. 2010). We therefore review the testimony

and exhibits presented to the jury attrialto determine whether the district court

abused its discretion in determining that the damages awarded were not

“contrary to the overwhelming weight of credible evidence.”

1. Loss of Earning Capacity

Learmonth presented evidence to support a determination of a one

hundred percent loss of earning capacity. Her pain management physician

determined thatLearmonth had “reached the point where she can no longer hold

down a job,” and that he planned to take her off of work “due to the severity of

her symptoms including the mechanical back pain and the nerve injury pain in

her left leg or lower extremity.” These injuries affect her ability to work because
No. 09-60651

14

she cannot sit or stand for any long periods of time. He also opined that

Learmonth was a reasonable candidate for long-term disability and that she

would be restricted from work “indefinitely.” 

Learmoth’s vocational rehabilitation counselor also testified that she

would not be able to return to competitive employment, based on the fact that

there were no jobs that would meet her limitations in sitting and standing. And

although Sears repeatedly emphasized that there were no limitations on

Learmonth pursuing her education and thereby increasing her employment

potential, her vocational counselor pointed out that any further education

Learmonth obtained would not increase her tolerance for sitting and standing,

and was thus irrelevant to the limitations that kept her from working. 

Sears relies heavily on the fact that no doctors have placed any physical

restrictions or limitations on Learmonth, and that her treating physician said

that he would not restrict her from performing jobs within her functional

capacity and pain limitations. Sears points out that Learmonth worked at three

different jobs after the accident under the care of her doctors. Although

Learmonth did work atthree jobs, itis undisputed that she had to leave allthree

jobs because of her physical and emotional pain and discomfort. Learmonth’s

restaurant employer testified that she could not physically perform waitressing

duties, which involved carrying heavy loads, and that she was emotionally

unable to perform the lighter work of hostessing. Learmonth described “real bad

pains” in her lower back associated with the sitting and standing in her job as

a bank teller, even though she was allowed to alternate sitting or standing as

often as she liked. Learmonth’s supervisor at the bank testified that Learmonth

constantly readjusted her position, trying to get comfortable, and her doctor

ultimately advised her to stop working there because of her discomfort.

Learmonth also testified that she could not continue her retail job because of the

constant standing and an inability to sit down at the job site. She has to lay
No. 09-60651

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

the result.

15

down several times a day to help with the pain, and she takes a wide variety of

medication on a daily basis.

Based on the assumption that Learmonth could not sustain competitive

employment, and that she had suffered a fifty percent reduction in her ability

to perform household services for herself and her family, Learmonth’s expert

economist opined that the net present value of her future earnings was

approximately $1.2 million. This number was based in part upon a $32,000

yearly income, an average between the annual income of a high school graduate

and that of a person with an associate degree. The evidence at trial showed that

Learmonth had just begun a nursing program at a junior college and had been

a motivated high school student.

Ultimately, the question whether Learmonth suffers so much pain on a

daily basis that she is prevented from working again is a factual question. Upon

reviewing the evidence on both sides, we are convinced that the jury’s verdict as

to loss of earning capacity was not “contrary to the overwhelming weight of

credible evidence.” Accordingly, we refuse to disturb the jury’s verdict on this

issue.

2. Non-Economic Damages

In reviewing the excessiveness of the non-economic damages award, we

consider the post-remittitur amount of $1 million, rather than the $2.2 million

amount originally awarded by the jury.3 Salinas v. O’Neill, 286 F.3d 827, 830

n.3 (5th Cir. 2002); Giles v. Gen. Elec. Co., 245 F.3d 474, 487 (5th Cir. 2001).

There is no doubt that Learmonth suffered serious injuries in the accident.

Among these were a traumatic brain injury with loss of consciousness, multiple

fractures to the pelvis, a fractured clavicle, acute post-hemorrhagic anemia, a

collapsed lung, and puncture wounds and lacerations to her face and shoulder.
No. 09-60651

16

At the emergency room, she had blood coming out of both ears and out of the side

of her head, and was moaning with pain despite the administration of morphine.

After being air-lifted from the local emergency room to University Medical

Center in Jackson, Mississippi, a surgeon performed a sacroiliac joint fusion, in

which he implanted a large and permanent screw across her pelvis in order to

stabilize it. Learmonth was at the hospital for five days, confined to a

wheelchair for two months and then was on crutches for several weeks. For

several weeks after her discharge, her husband had to administer shots in her

stomach in order to prevent blood clots. She was unable to bathe herself, change

her clothes, or use the bathroom on her own. 

Evidence was presented to show that Learmonth still suffers from multiple

injuries, including a herniated disk, nerve injuries to the left leg, degenerative

osteoarthritis in her back, chronic headaches, depression, and memory loss.

After receiving her epidural injections, Learmonth has no feeling from her waist

down to her toes for approximately six hours, during which time she cannot use

the bathroom on her own. She has great difficulty sleeping due to pain, and

frequently awakens through the night screaming and crying. It takes her

approximately fifteen to thirty minutes to position herself to get out of bed each

morning.

Learmonth was nineteen years old atthe time ofthe accident, and she was

described as outgoing, social, and active. Following the accident, she was

described as often angry, depressed, and irritable. Her ex-husband testified that

the physical and emotional strain placed on their marriage following the

accident was the cause of their divorce. The accident has also affected

Learmonth’s relationship with her son, with whom she can no longer do many

of the things she once did. Learmonth’s mother testified that Learmonth’s son,

being too young to understand Learmonth’s limitations, believes that she is

simply lazy.
No. 09-60651

17

Learmonth will continue to require medical care for the remainder of her

life. While she can no longer expect any physical improvement, she will require

regular clinic visits, routine epidural steroid injections, usage of a number of

medications, and physical therapy in order to control her pain. According to

expert testimony, she has a life expectancy of 82 years, which means that she

will continue to experience pain and suffering for another sixty years. Her pain

management physician testified that her pain may actually worsen over time,

and more serious measures—such as the implantation of a spinal cord

stimulator—may be necessary in the future.

Sears argues that Learmonth was doing well within months after the

accident and that whatever long-term symptoms she continues to experience are

well-controlled by medication. This is based upon the medical records of her

surgeon, which reflect that Learmonth reported a month and a half after her

surgery that she did not have any complaints outside of a little discomfort with

prolonged sitting, and that she was “doing well” and “not having any problems.”

Her pain management physician’s medical records show that Learmonth

reported that the epidural steroid injections help “tremendously” with her pain

and provide her with “excellent pain relief” for many months, albeit they do not

relieve pain in her lower back. Learmonth’s neurologist’s records show that

Learmonth reported her headaches to be infrequent, and that the headaches and

memory problems are both well controlled by medication.

The extent of Learmonth’s pain and suffering is a factual question on

which the jury heard multiple witnesses and received conflicting evidence. Upon

reviewing this evidence ourselves, we are unable to say thatthe jury’s verdict as

to non-economic damages was “contrary to the overwhelming weight of credible

evidence.” Accordingly, we refuse to disturb the award.

3. The Maximum Recovery Rule
No. 09-60651

4 Because bothparties proceed without objection to address the Fifth Circuit’s maximum

recovery rule after applying the forum state’s standard pursuantto Gasperini, we do so as well.

5 We do not rely on unreported opinions in applying the maximum recovery rule. See

Lebron v. United States, 279 F.3d 321, 326 (5th Cir. 2002) (“We decline to use unreported

decisions as benchmarks for this purpose.”). However, because Goodyear’s citation indicates

that the decision will be published in the Southern Reporter, we address it here. 

6 The case was filed on November 20, 2002, and thus the non-economic damages award

was not subject to the Mississippi statutory cap, which only applies to cases filed after

September 1, 2004. MISS. CODE ANN. § 11-1-60(2)(b). The remaining $350,000 was for past

and future medical damages; no economic damages were awarded.

18

Sears argues that this circuit’s “maximum recovery rule” supports its

motion for remittitur in the alternative.4 Under the rule, “we remit damage

awards that we find excessive to the maximum amount the jury could have

awarded.” Salinas, 286 F.3d at 830. Although each case must be evaluated on

its own facts, our evaluation of what a jury could have awarded is informed by

awards for similar injuries in Mississippi. See id. at 831. 

Sears directs our attention to two Mississippi decisions that it contends

are most similar to this case. In Goodyear Tire & Rubber Co. v. Kirby, — So. 3d

—, 2009 WL 1058654 (Miss. App. Apr. 21, 2009) (en banc), rh’g denied (Dec. 15,

2009), cert. dismissed, 36 So.3d 455 (Miss. Jun 24, 2010),5the jury awarded a

plaintiff approximately $1.75 million in damages, of which approximately $1.4

million was for non-economic damages, for severe injuries resulting from a car

accident.6Id. at *24–25. Although his initial injuries were similar to and at

least as severe asLearmonth’s,the plaintiff in Goodyear had a different recovery

trajectory. Doctors testified to his brain damage and to a thirty-seven percent

impairment to his body as a whole, as well as to continuing pain in his left knee

and ankle and future pain in his lower back as a side result of post-accident

surgery. At the time of trial, however, he held a full-time job at Nissan making

$20 an hour. Id. at *25. He testified that he considered himself fully recovered,

and represented on a job application and health questionnaire nine months after
No. 09-60651

19

the accident that he was completely recovered, released from all doctors, had no

disabilities, and was willing to travel for the job and to work overtime and

weekends. Id. at *24. Learmonth, on the other hand, will require treatment for

pain for the remainder of her life and suffers from debilitations—such as the

inability to sit or stand for any length of time—from which the plaintiff in

Goodyear does not suffer. Perhaps most significantly, Learmonth cannot work

at all, a harm that goes beyond the economic damage for which she was

separately compensated. 

In Wells Fargo Armored Service Corp. v. Turner, 543 So. 2d 154 (Miss.

1989), the Mississippi Supreme Court remitted a damages award from

$3,416,090 to $850,000, of which $402,000 was for loss of income. Id. at 160.

The plaintiff in that case suffered serious injuries in a car accident, most of

which healed completely. Id. at 159. His left leg remained partially impaired,

however, and he took Motrin for chronic pain caused by calcium deposits and

arthritis that developed as a result of his fractured pelvis. Id. Like Learmonth,

he was totally economically disabled as a result of his injury, in light of his

education and experience and the job market in his area. Id. However, there

are several factors that render Turner unsuitable for comparison. First, the

relative severity of Learmonth’s pain and permanent injuries—which require

epidural injections, doses of multiple medications, and ongoing medical

treatment—stands in contrastto the anti-inflammatory medication taken by the

plaintiff inTurner. The plaintiff in Turner was also older than Learmonth atthe

time of his injury, and the award was rendered twenty years before this case.

Furthermore, loss of earnings is a calculation unique to each person’s age,

education, experience, and other factors, and both Learmonth and the plaintiff

in Turner presented expert testimony as to the net present value of their

respective lifetime income streams in support of their economic damages awards.
No. 09-60651

20

“Because the facts of each case are different, prior damages awards are not

always controlling; a departure from prior awards is merited ‘if unique facts are

presentthat are not reflected within the controlling caselaw.’ ” Lebron v. United

States, 279 F.3d 321, 326 (5th Cir. 2002) (quoting Douglass v. Delta Air Lines,

Inc., 897 F.2d 1336, 1339 (5th Cir. 1990)). Because this case presents unique

facts for which there are no controlling cases in the relevant jurisdiction, the

maximum recovery rule is not implicated and we refuse to substitute our

judgment for that of the jury. Vogler v. Blackmore, 352 F.3d 150, 158 (5th Cir.

2003).

III. CONSTITUTIONALITY OF STATUTORY CAP ON DAMAGES

On cross-appeal, Learmonth argues that Section 11-1-60(2)(b) of the

Mississippi Code violates the Mississippi Constitution. This is an important

question of state law, determinative of the non-economic damages issue in this

case, for which there is no controlling precedent from the Supreme Court of

Mississippi. We therefore certify the question to the Supreme Court of

Mississippi.

CERTIFICATION FROM THE UNITED STATES COURT OF

APPEALSFOR THE FIFTH CIRCUITTO THE SUPREME COURT

OF MISSISSIPPI, PURSUANT TO RULE 20 OF THE

MISSISSIPPI RULES OF APPELLATE PROCEDURE.

TO THE SUPREME COURT OF MISSISSIPPI AND THE

HONORABLE JUSTICES THEREOF:

A. Style of the Case

The style of the case in which this certification is made is Lisa Learmonth

v. Sears, Roebuck and Co., No. 09-60651, in the United States Court of Appeals

for the Fifth Circuit. The case is on appeal from the United States District Court

for the Southern District of Mississippi. Federal jurisdiction is based on

diversity of citizenship.

B. Statement of Facts
No. 09-60651

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

(b) In any civil action filed on or after September 1, 2004, other than those

actions described in paragraph (a) of this subsection, in the event the trier of

fact finds the defendant liable, they shall not award the plaintiff more than One

Million Dollars ($1,000,000.00) for noneconomic damages.

It is the intent of this section to limit all noneconomic damages to the above.

(c) The trier of fact shall not be advised of the limitations imposed by this

subsection (2) and the judge shall appropriately reduce any award of

noneconomic damages that exceeds the applicable limitation.

21

Appellant Lisa Learmonth was seriously injured in a car accident at the

intersection of Mississippi State Highways 15 and 485. The collision involved

Learmonth’s car, which she was driving, and a Sears, Roebuck and Company

(“Sears”) van driven by a Sears employee. Both liability and damages were

contested at trial. At the conclusion of the trial, the jury found Sears liable for

Learmonth’s injuries and awarded her $4 million in compensatory damages.

The verdict on its face did not divide the award into separate categories, but the

parties agree that the total award can be divided as follows: approximately $1.2

million for lost earnings; approximately $573,000 in past and future medical

expenses; and approximately $2.2 million in non-economic damages. 

Upon Sears’ motion,the district court remitted the non-economic damages

award to $1 million pursuant to Section 11-1-60(2)(b) of the Mississippi Code,

which imposes a statutory cap of $1 million on non-economic damages.7 On

appeal, Learmonth renews her arguments below that Section 11-1-60(2)(b)

violates the rightto trial by jury under Mississippi Constitution article 3, section

31, and also violates the separation of powers clauses in article 1, sections 1 and

2. Amicus for Learmonth further argues that Section 11-1-60(2)(b) violates the

guarantee of access to the courts in article 3, section 24 of the Mississippi

Constitution. The State of Mississippi, which intervened in support of Sears to

defend the constitutionality of the statute, argues that there is no “palpable
No. 09-60651

8

In its brief to this court, Sears opposed certification on the ground that Double Quick,

Inc. v. Lymas, — So. 3d —, 2010 WL 3706443 (Miss. Sept. 23, 2010), which was then pending

before the Supreme Court of Mississippi, raised an identical challenge to the constitutionality

of Section 11-1-60(2)(b). Id. at *5. At oral argument, Sears’s counsel indicated that, given the

fact that the Supreme Court of Mississippi did not reach the constitutional question in Double

Quick, see id. at *8, Sears is no longer opposed to certification.

22

conflict” between a jury’s assessment of damages and the legislature’s

determination of the legal consequences of that assessment.

C. Question Certified

We hereby certify, on Learmonth’s unopposed motion,8the following

determinative question of law to the Supreme Court of Mississippi: Is

Section 11-1-60(2) of the Mississippi Code, which generally limits non-economic

damages to $1 million in civil cases, constitutional?

This court disclaims any intention or desire that the Supreme Court of

Mississippi confine its reply to the precise form or scope of the question certified.

If the Supreme Court of Mississippi accepts this certification, the answer

provided by that court will determine the issue on cross-appeal in this case. The

record and copies of the parties’ briefs are transmitted herewith.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court

insofar as it denied a new trial and certify the question regarding the

constitutionality of Mississippi’s statutory cap on non-economic damages on

cross-appeal to the Mississippi Supreme Court.