The Mississippi Supreme Court has yet to rule on whether major parts of Mississippi's tort reform laws are constitutional. Specifically challenged has been the $1 million cap on noneconomic damages. It is unclear whether the Court will make a decision on noneconomic damages before a new justice is elected, but it is fairly clear the position of one candidate seeking a seat on the Court.

Gov. Ronnie Musgrove appointed Justice George C. Carlson of Batesville to the Court in 2001 and Carlson won an election to a full term in 2004 with 72.8 percent of the vote. In 2008, BIPEC (Business and Industry Political Education Committee) considered Carlson a "balanced" judge on a scale of "balanced - swing - plaintiff" and scored him as one of the top three justices on the Court by their measure. Carlson is not seeking reelection this year and the business community and trial lawyer interests each have a candidate they are supporting for the 33-county Northern District seat.

BIPEC, the Mississippi Physicians PAC, the Mississippi Manufacturers Association and the Mississippi Medical Political Action Committee have recommended or endorsed defense attorney Josiah Dennis Coleman of Toccopola. For Coleman, public service is a family legacy. His father is former Mississippi Court of Appeals Judge Thomas Coleman and his grandfather was Governor and U.S. Fifth Circuit Court of Appeals Justice J.P. Coleman. Coleman practices with the Oxford firm Hickman, Goza & Spragins.

"As a Supreme Court Justice, I will ensure that our laws protect our families and businesses and that Mississippi is a place where fair and swift justice prevail, so as to not threaten the life, liberty, and property of the people. By upholding the values of due process and submitting to the law, I want to prevent unnecessary multiplication of expense and effort to litigate disputes in Mississippi," Coleman said announcing his campaign in March. He continued, "I believe appellate judges should not act to make public policy as though they were members of the legislative branch...the job of our courts is to fairly apply properly enacted law to the facts of the cases before them."

Coleman's opponent is Richard T. "Flip" Phillips of Batesville, a former president of the Mississippi Trial Lawyers Association (now Mississippi Association for Justice). Early in the campaign, Phillips, a well regarded and successful attorney, was being presented to many in the business community as a candidate they could support. But his view of the civil justice system, as discussed in an article published in the Mississippi Law Journal in 2001 titled "Class Actions & Joinder in Mississippi" is exactly the opposite of what state business interests want in a judge.

Phillips wrote, "the fundamental purpose of civil litigation today is shifting from a strictly compensatory purpose to regulatory or punitive purposes." At a symposium discussing the article, he argued Mississippi became "lawsuit central" in the country not because of the excessively high verdicts, but rather, because the rest of the country was not as enlightened as Mississippi. Rather than reform lawsuit abuse in Mississippi, he seemed to argue the rest of the country should become more like the Magnolia State. In another presentation Phillips argued the elected branches of government have failed to do their jobs and "regulation by litigation" could address policy issues involving tobacco, guns, insurance, health care and product liability.

Because the constitutionality of damage caps could come before the Court, Phillips and Coleman can't address the issue in the campaign. However, in a 2009 case from DeSoto County, Phillips represented a plaintiff against a construction company who won a $30 million judgment: $13.7 million in noneconomic damages. Because of the damages cap, the trial judge reduced that portion of the verdict to $1 million, leaving $17.2 million for the plaintiff. Phillips appealed arguing the damage cap was unconstitutional and asked the Court to strike it down. The plaintiff and the construction company settled before the Court had an opportunity to decide the issue.

Ironically for trial lawyers supporting Phillips, he would have already been on the Court had Dickie Scruggs not intervened, according to the book "The Fall of the House of Zeus" by Curtis Wilkie. Wilkie writes, "Scruggs threw his own money and influence into the fight, but some of his efforts appeared erratic to those trying to maintain a majority in favor of the trial lawyers...Scruggs prevailed upon Governor Musgrove to appoint George Carlson, the uncle of Amy Scruggs, the lawyer's daughter-in-law, to fill the seat. Musgrove had intended to name Richard 'Flip' Phillips, who had the backing of most trial lawyers, until Scruggs intervened."

The business community believes Carlson has been a fair justice and hopes his replacement believes like Coleman that judges should not legislate from the bench, rather than Phillips whose philosophy of regulation by litigation turns that idea on its head.



Brian Perry is a partner in a public affairs firm. Contact him at reasonablyright@brianperry.ms.