MCA Chapter 1

in effect

Miss. Code Ann. § 11-1-1 Before whom oaths may be taken.

A judge of any court of record, clerk of such court, court reporter of such court, master, member of the board of supervisors, justice court judge, notary public, mayor, or police justice of a city, town or village, clerk of a municipality, and any officer of any other state, or of the United States, authorized by the law thereof to administer oaths, the judge of any court of record, or the mayor or chief magistrate of any city, borough or corporation of a foreign country; may administer oaths and take and certify affidavits whenever the same may be necessary or proper in a proceeding in any court or under any law of this state, or for the purpose of taking depositions of any party of interest, or witnesses of any suit pending before any such court, or for the perpetuation of testimony, as provided in Section 13-1-57, Mississippi Code of 1972.

Miss. Code Ann. § 11-1-3 Oath of an agent or attorney sufficient in all cases.

In all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be as effectual for all purposes as if made by the party.

Miss. Code Ann. § 11-1-5 All papers relating to a cause filed together.

All the pleadings, writs, proofs, and other papers relating to any cause in court, shall be filed together by the clerk, and carefully preserved in his office.

Miss. Code Ann. § 11-1-6 and 11-1-7. Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991. § 11-1-6 . [Codes, 1942, § 1659.5; Laws, 1972, ch. 341, § 1] § 11-1-7 . [Codes, Hutchinson’s 1848, ch. 54, art. 2 (6); 1857, ch. 62, art. 10; 1871, § 984; 1880, § 2265; 1892, § 914; 1906, § 990; Hemingway’s 1917, § 710; 1930, § 734; 1942, § 1649] Editor’s Notes — Former § 11-1-6 provided for pretrial conferences. Former § 11-1-7 provided that all matters pending when a court fails to hold a term or fails to continue to sit for entire term are continued, that there would be no discontinuance when a court failed to sit on any day in a term, and that a court could take a recess.

Miss. Code Ann. § 11-1-8 Advertising by attorneys not admitted to practice in Mississippi prohibited.

The Legislature recognizes that attorneys should be licensed by the State of Mississippi before engaging in any solicitation of clients in this state. Such licensing of attorneys protects the people of Mississippi in that The Mississippi Bar has direct jurisdiction over attorneys licensed by it. The Mississippi Supreme Court can act against such licensed attorneys in the event that such licensed attorneys commit violations of Mississippi law, court rules and rules of ethics for attorneys. The Legislature finds that this section is necessary for the protection of the people of Mississippi. An attorney who is not admitted to The Mississippi Bar shall not advertise his legal services in this state for the purpose of soliciting prospective clients for commencement of any civil action in this state, or for the purpose of soliciting clients for any civil action already commenced or pending in this state, unless the attorney who is not a member of The Mississippi Bar has associated an attorney who (a) is a member of The Mississippi Bar; and (b) will be associated and actively working on substantial aspects in any civil action filed on behalf of a client solicited as a result of the advertisement. A law firm composed of both attorneys who are members of The Mississippi Bar and attorneys who are not members of The Mississippi Bar may advertise in this state if a majority of the members of the firm are members of The Mississippi Bar. For purposes of this section, a listing in the residential or business section of the white pages of a telephone book shall not be an advertisement.

Miss. Code Ann. § 11-1-9 Continuance of action or proceeding where counsel is legislator.

In any cause now pending or which shall hereafter be pending before any court of this state or before any administrative board, agency or commission of this state or before any court or administrative agency or any county or municipality of this state in which an application for continuance is properly made, predicated upon the ground that the counsel for the party making said application is a member of the Mississippi legislature and if said application is made at a time when the legislature is in session, either regular or extraordinary, or if said legislature will be in session at the time that said cause would be triable, then the continuance shall be granted in all cases.

Miss. Code Ann. § 11-1-11 Repealed.

Repealed by Laws, 1989, ch. 587, § 7, eff from and after April 25, 1989 (became law without the Governor’s signature). § 11-1-11 . [Codes, Hutchinson’s 1848, ch. 53, art. 2 (186), ch. 54, art 2 (7); 1857, ch. 61, arts. 12, 13, ch. 62, art. 7; 1871, §§ 536, 986; 1880, § 2271; 1892, § 920; 1906, § 996; Hemingway’s 1917, § 716; 1930, § 737; 1942, § 1652; Laws, 1952, ch. 239; Laws, 1988, ch. 429, § 1] § 11-1-13 . [Codes, 1892, § 921; 1906, § 997; Hemingway’s 1917, § 717; 1930, § 738; 1942, § 1653; Laws, 1928, Ex. ch. 86; Laws, 1952, ch. 235; Laws, 1966, ch. 352, § 2; Laws, 1988, ch. 429, § 3] § 11-1-15 . [Codes, 1880, § 2272; 1892, § 922; 1906, § 998; Hemingway’s 1917, § 718; 1930, § 739; 1942, § 1654] Editor’s Notes — Former § 11-1-11 prescribed the manner of finding a substitute when a circuit judge, county judge, or chancellor was disqualified from hearing a case. Former § 11-1-13 provided distinctions between a special judge appointed for a particular case and one appointed for an entire term. Former § 11-1-15 provided for judges of other districts to cover for judges who were disqualified in matters of vacation.

Miss. Code Ann. § 11-1-16 Proceedings in vacation; jurisdiction and authority of judge.

Notwithstanding the provisions of any other law to the contrary, the judge of any circuit, chancery, county, youth or family court or any other court of record shall, in vacation, and in the same manner as at a regular term, have jurisdiction to hear and determine and make and enter judgments, orders and decrees in all cases, civil or criminal, which are pending in the court and which were triable at the preceding term. Parties and witnesses duly summoned, subpoenaed or bound by recognizance at the preceding term shall be bound to attend without the necessity of additional process. Petit juries may be impaneled in such cases in the same manner as in termtime. All judgments, orders and decrees which the judge may render or make in such cases tried shall be signed by him and thereupon be entered and recorded on the minute book of the court in which the case or matter is pending, and shall have the same force and effect as if made, entered and recorded in termtime. Appeals may be had and taken therefrom when so entered and recorded, as in other cases, in like manner as is provided by law when cases are tried in termtime. The provisions of this section shall be supplemental and in addition to all other jurisdiction and authority which the judge of any such court may lawfully exercise in vacation or at a special term.

Miss. Code Ann. § 11-1-17 Time for rendition of final decree; right of appeal where decree not entered within required time.

All chancellors or judges of the chancery and circuit courts of the state of Mississippi shall render their final decree on any and all matters taken under advisement by such chancellors or judges not later than six (6) months after the date when same are taken under advisement or not later than six (6) months after the date on which the chancellors or courts or judges set as a date for the final brief or memoranda of authority is required to be filed on or as to the cause taken under advisement, whichever is the latest date after the date on which the cause or case is taken under advisement. In the event a final decree has not been entered within the six months period hereinbefore referred to, then any party to said law suit shall have the right to appeal on the record as otherwise provided the same as if a final decree has been rendered adversely. Said appeal shall be to the supreme court of the state of Mississippi and shall be treated as a preferred case over other cases except election contests.

Miss. Code Ann. § 11-1-18 Bench trials allowed in certain cases where parties agree.

If the parties to a cause of action agree, any claim filed alleging damages may receive a bench trial which shall be conducted in two hundred seventy (270) days or less after the cause of action has been filed. The cause of action shall be a priority item in the court.

Miss. Code Ann. § 11-1-19 Repealed.

Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991. [Codes, Hutchinson’s 1848, ch. 61, art 1 (96); 1857, ch. 61, art 186; 1871, § 627; 1880, § 2298; 1892, § 940; 1906, § 1016; Hemingway’s 1917, § 736; 1930, § 755; 1942, § 1670]

Miss. Code Ann. § 11-1-21 Excess remitted.

Where any bond, taken by virtue of any process or order, by miscalculation or mistake, shall be conditioned for the payment of a larger sum of money than by law ought to have been acquired thereby, and a verdict shall have been rendered thereon for the larger sum, or where a verdict shall be rendered for more damages than the plaintiff shall have demanded by his suit, and judgment be rendered accordingly, it shall be lawful for the plaintiff, at the same or any future term of the court, to release in open court any such excess; or he may in vacation release the same, in writing under his hand, and file it among the papers of the cause; and such release shall cure any error growing out of the excess. If the record of any such judgment be removed to an appellate court before the release be made, it shall be competent for the appellee to make such release in the appellate court; and thereupon, the court, after reversing the judgment, shall proceed to give such judgment as the court below ought to have given if the release had been filed therein; but in such case the appellant shall recover the costs paid, and the judgment shall not be entered against the sureties in the appeal bond.

Miss. Code Ann. § 11-1-23 Court or judge may require new security.

Each court, and the judge thereof in vacation, and any of the judges, if more than one compose the court, in all cases not especially provided for by statute, may require any bond, recognizance, obligation, or undertaking of any kind in any legal proceeding, of which the court has cognizance, which is shown to be insufficient, to be substituted by a new one, with sufficient sureties; and for a failure to comply with the order of the court or judge in the matter, the court or judge may make such order as may be proper in the case, and may direct such process as may be necessary or proper to enforce it; but notwithstanding the discharge of a supersedeas, injunction, attachment, or other process in consequence of such failure, a judgment or decree may be given on the bond or other obligation, or liability on it may be enforced by action or otherwise, as if it had not been held to be insufficient; but if done in vacation, five days’ notice of the time and place of making application for the order shall be given to the opposite party; and in all cases reasonable time shall be allowed for giving new bond, upon such terms as the court or judge may prescribe.

Miss. Code Ann. § 11-1-25 Certain bonds not affected by irregularity.

When a bond, recognizance, obligation, or undertaking of any kind shall be executed in any legal proceeding, or for the performance of any public contract, or for the faithful discharge of any duty, it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, nor what is its amount, nor how it is conditioned; and the persons executing such bond or other undertaking shall be bound thereon and thereby, and shall be liable to judgment or decree on such bond or undertaking as if it were payable and conditioned in all respects as prescribed by law, if such bond or other obligation or undertaking had the effect in such proceeding or matter which a bond or other undertaking payable and conditioned as prescribed by law, would have had; and where any such bond or undertaking is not for any specified sum, it shall bind the parties executing it for the full amount for which any bond or undertaking might have been required in the state of case in which it was given.

Miss. Code Ann. § 11-1-27 Bonds payable to the state in certain cases.

Any bond required to be given in any matter, where it is not prescribed to whom it shall be made payable, may be made payable to the state.

Miss. Code Ann. § 11-1-29 Proceedings on death of surety on bonds, etc.

If any surety on a bond, recognizance, or undertaking of any kind given in any legal proceeding, shall be dead at the time for judgment to be rendered or execution to be issued thereon, that shall not prevent judgment from being rendered or execution being issued on such bond, recognizance, or undertaking against parties thereto who are living, but judgment may be rendered against such parties, and judgment nisi may be entered against the personal representatives of parties who are dead, and citation shall be issued to the personal representative to show cause why the judgment should not be made absolute against them, and it shall be made absolute unless, upon the return of citation executed, good cause be shown against it. Execution may be issued on such judgment against the living parties, and after the absolute judgment against the personal representatives, execution may be issued against them to enforce it.

Miss. Code Ann. § 11-1-31 Death of parties on bonds having force of judgment.

Where execution may be issued on any bond or undertaking, and some of the parties are dead, it may be issued separately against such as are alive, and citation may be issued to the personal representatives of such as are dead, to show cause against the issuance of execution against them on such bond or undertaking; and on the return of such citation executed, if no sufficient cause be shown against it, execution may be issued against them.

Miss. Code Ann. § 11-1-33 Death of parties on bonds having force of judgment; citation in anticipation of judgment.

Citation to the personal representatives of a deceased party may be issued and executed at any time before the time for judgment or execution on such bond, recognizance, or undertaking, requiring the appearance of the representatives before the court having possession or control of the obligation, to submit to judgment or execution thereon; and if issued and executed before the rendition of judgment or issuance of execution against the living parties, judgment may be rendered or execution issued against such personal representatives as well as against parties alive, without delay or further process.

Miss. Code Ann. § 11-1-35 Death of parties on bonds having force of judgment; when citation issued and returnable.

Citations referred to in Section 11-1-33 may be issued in vacation or in term time without any order of court therefor, and may be made returnable on the return day for other process, if issued in vacation, or forthwith, if issued during the term of court, and shall be executed five days before judgment or execution against such personal representatives.

Miss. Code Ann. § 11-1-37 Certification of transferred causes.

If a cause be transferred by order of the chancery court to the circuit court, or vice versa, the clerk of the court ordering the transfer shall forthwith deposit all the papers in the cause, together with his certificate of the fact of the transfer, in the court to which it was transferred, taking the receipt of the clerk therefor.

Miss. Code Ann. § 11-1-39 Proceedings in transferred causes.

When the papers have been deposited in the court to which the cause was transferred, all the parties to the proceeding shall take notice of the fact of the transfer; and the complainant or plaintiff shall file his declaration or bill in the court to which the cause was transferred within thirty days, unless the court, judge, or chancellor shall restrict the time or grant further time; and the defendant shall plead within thirty days thereafter, unless the time, by like means, be restricted or extended. And the cause shall be proceeded with as if it had been originally begun in that court, as of the date on which the cause was originally instituted.

Miss. Code Ann. § 11-1-41 Costs in transferred causes.

The complainant or plaintiff in the first court shall pay all the costs in such court; but he may recover the same of the defendant, in the court to which the cause was transferred, at the discretion of the court.

Miss. Code Ann. § 11-1-43 Seizure of perishable commodities by legal process.

In order to promote the general welfare, to insure, prepare and expedite movement of commerce through the ports of the State of Mississippi, to avoid any unnecessary delay, to indemnify any damages to shippers through said ports, and to prevent any unnecessary delay, it is provided that any person, firm or corporation who shall hereafter seek in the courts of Mississippi, either the circuit courts or the chancery courts, to obtain writ of replevin, writ of sequestration, writ of seizure, writ of attachment, or other legal processes for the purpose of seizing any cargo or shipment of bananas or other perishable commodity passing through the ports of entry in the State of Mississippi, shall, before such writ is issued, post a good and sufficient bond with sufficient sureties thereon, to be approved by the clerk of the court, wherein such proceedings are instituted. Such bond shall be in a sum double the value of the commodities sought to be attached, replevied, sequestrated, seized or otherwise, payable to the person actually in possession of said commodities, and conditioned that the plaintiff therein shall indemnify and pay to the owner of such property such damages as he or it may sustain by reason of such seizure of said property, that he will pay all handling charges, charges that might accrue on demurrage on the ship, cars, warehouses, docks or railroad facilities and all freight charges, and that he will pay all attorney’s fees, court cost and all other damages that might accrue by reason of such illegal seizure thereof.

Miss. Code Ann. § 11-1-45 Seizure of perishable commodities by legal process; declaration or bill.

When any affidavit is filed, either in circuit courts or chancery courts in the state of Mississippi, attaching, sequestrating, replevying, or seizing any commodities described in Section 11-1-43, the plaintiff therein shall be required to file, within forty-eight hours, after the writ or affidavit has been issued, a declaration stating cause of action if in the circuit courts, or a bill of complaint if filed in the chancery courts, stating cause of action upon which the seizure is made. Upon filing of said declaration or bill of complaint, an issue shall be joined thereon, and a hearing, in vacation, may be had before the circuit judge or chancellor in the said district where said writ was issued to determine the rights of the said parties to the ownership of the said commodities so seized. Upon hearing of evidence, the court may in vacation render judgment and award possession to the parties entitled and may, if said writ or writs were illegally issued out, award damages on said bond to the parties entitled thereto.

Miss. Code Ann. § 11-1-47 Seizure of perishable commodities by legal process; possessor presumed to be owner.

The possessor of any perishable commodities as described in Section 11-1-43, shall be presumed to be the owner of said commodities and, in the event any writ of replevin, writ of seizure, writ of sequestration or writ of attachment shall be issued against such commodities, the possessor thereof shall have the immediate right to possession of said commodities upon his furnishing bond payable to the order of the clerk of the court in a sum equal to the value of the commodities.

Miss. Code Ann. § 11-1-49 Seizure of perishable commodities by legal process; process as to nonresident owners.

If the owner of any such cargo or shipment of such perishable commodities be a nonresident of the State of Mississippi and be made a defendant in any action at law or suit in any chancery court, in any court of this state, service of summons or process of such court may be served on such defendant by serving a copy thereof on any steamship agent, ship captain, or other ship’s officer, railroad agent, railroad conductor, stevedore or other person having possession or control of such cargo or shipment and by mailing a copy thereof by registered mail addressed to the last known address of such defendant, return receipt requested. When any summons or process against such nonresident owner of such cargo or shipment has been returned so executed, the defendant shall be considered in court and the action or suit shall proceed as though personal service had been had on such defendant, nonresident owner of such cargo or shipment, and all other process or notices necessary to be served in any court proceeding may be served as herein provided.

Miss. Code Ann. § 11-1-51 Copy of books, papers, or documents furnished; issuance and service of subpoenas duces tecum.

The court in which any action or suit is pending may, on good cause shown, and after notice of the application to the opposite party, in termtime or in vacation, order either party to make available to the other, within a specified time, and on such terms as may be imposed, an inspection and copy, or to grant permission to take a copy or photograph of any books, papers, documents, accounts, letters, photographs, objects, or tangible things, in his possession or under his control containing evidence relating to the merits of the action or proceeding or of the defense thereto; or order any party to permit entry upon designated land or other property in his possession or control, exclusive of said party’s home or place of abode, for the purpose of inspecting, measuring, surveying or photographing the property or any designated relevant object or operation thereon; provided, however, the aforementioned entry upon designated land or other property may extend to a party’s home or place of abode if such party be the plaintiff or complainant in a cause of action based on contractor’s or materialmen’s actions involving the construction, repair or improvement of such home or place of abode. If compliance with such order be refused, such books, papers, documents, accounts, letters, photographs, objects or tangible things shall not be given in evidence in the action or proceeding by the party so refusing; and the court may punish the recusant party as for a contempt of court. If a complainant or plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit or dismissal; and if a defendant fails to comply with such order, the court may, on motion, give judgment or decree against him by default or confession. Provided, however, this section shall neither be applicable to the work product of counsel for any party nor to matters of privilege or national security. The clerks of all county, circuit and chancery courts may issue subpoenas duces tecum without a prior order of the court and a copy of the subpoena shall be served personally or by mail on all attorneys of record in the cause or on any party not represented by an attorney. A subpoena duces tecum may command a person to whom it is directed to produce the books, papers, documents or tangible things designated therein, but on motion the court wherein the cause is pending, in termtime or vacation, promptly and in any event at or before the time specified in said subpoena for compliance therewith (a) may quash or modify said subpoena if it is unreasonable or oppressive, or (b) may condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things. The provisions of this subsection shall be cumulative and additional to any other procedures provided by law. Chancellors and the judges of all county and circuit courts may order writs of subpoena duces tecum in vacation in the same manner as if allowed in open court. The provisions of this subsection shall be cumulative and additional to any other procedures provided by law.

Miss. Code Ann. § 11-1-52 Limitations on charges permitted for photocopying patients’ records by medical provider; physicians to make reasonable charges for depositions; limitations on charges permitted for execution of patient-requested medical record affidavit by medical provider; medical providers to comply with HIPAA.

Any medical provider or hospital or nursing home or other medical facility shall charge no more than the following amounts to patients or their representatives for photocopying any patient’s records: Twenty Dollars ($20.00) for pages one (1) through twenty (20); One Dollar ($1.00) per page for the next eighty (80) pages; Fifty Cents (50¢) per page for all pages thereafter. Ten percent (10%) of the total charge may be added for postage and handling. Fifteen Dollars ($15.00) may be recovered by the medical provider or hospital or nursing home or other medical facility for retrieving medical records in archives at a location off the premises where the facility/office is located. A physician shall only charge normal, reasonable and customary charges for a deposition related to a patient that the physician is treating or has treated. Any medical provider, hospital, nursing home or other medical facility shall charge no more than Twenty-five Dollars ($25.00) for executing a medical record affidavit, when the affidavit is requested by the patient or the patient’s representative. In charging the fees authorized under subsection (1) of this section, the medical provider, hospital, nursing home or other medical facility shall comply with the federal Health Insurance Portability and Accountability Act (HIPAA).

Miss. Code Ann. § 11-1-53 Harrison County; commencement of civil actions, change of venue and transfer of cases between districts.

In Harrison County, a county having two (2) judicial districts, all civil actions shall be commenced in each of the two (2) judicial districts against defendants as if each district were a separate county, and a change of venue from either of such districts to the other, and from either district to any county of the state, and from any county to either of said districts, shall be made according to the procedure provided for by the Mississippi Rules of Civil Procedure; and the jurisdiction of said courts of said districts shall be the same as if each district were a separate county; provided, however, that any suit or action which may be brought in either of said districts may be commenced by filing a declaration or complaint or other pleading with the clerk of said courts at either Gulfport or Biloxi, and the said clerk shall issue process thereon, returnable to the court of the proper district, and shall deposit the papers in the case in the office of the proper district; and provided further, that no suit or action shall be dismissed because of the fact that the defendant may be sued in the wrong district, but said case or cause shall, upon motion, be transferred for disposition to the proper district and court thereof.

Miss. Code Ann. § 11-1-54 Assessment for filing frivolous claims.

If a party files any pleading in a civil action which in the opinion of the court is frivolous, the court may impose an assessment of not more than One Thousand Dollars ($1,000.00) against each party and attorney of record for the party filing the pleading. Such assessment shall be in addition to any other assessments, penalties or sanctions authorized by law or otherwise. The proceeds of any assessment imposed under this section shall be paid to the Mississippi Volunteer Lawyers Project, Inc.

Miss. Code Ann. § 11-1-55 Authority to impose condition of additur or remittitur.

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. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur.

Miss. Code Ann. § 11-1-56 Responsive pleading to precede assignment to a judge.

Civil actions in circuit, chancery and county court shall not be assigned to a judge until at least one (1) defendant has filed a responsive pleading. However, any necessary preliminary matters may be decided by a judge on a separate rotating basis before assignment of the action to a particular judge.

Miss. Code Ann. § 11-1-57 Additional provisions applicable to all courts.

All things contained in Chapters 7 and 11 of this title, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.

Miss. Code Ann. § 11-1-58 Certificate of consultation required in medical malpractice actions; exceptions.

In any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certificate executed by the attorney for the plaintiff declaring that: The attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; or The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because a limitation of time established by Section 15-1-36 would bar the action and that the consultation could not reasonably be obtained before such time expired. A certificate executed pursuant to this paragraph (b) shall be supplemented by a certificate of consultation pursuant to paragraph (a) or (c) within sixty (60) days after service of the complaint or the suit shall be dismissed; or The attorney was unable to obtain the consultation required by paragraph (a) of this subsection because the attorney had made at least three (3) separate good faith attempts with three (3) different experts to obtain a consultation and that none of those contacted would agree to a consultation. Where a certificate is required pursuant to this section only, a single certificate is required for an action, even if more than one (1) defendant has been named in the complaint or is subsequently named. A certificate under subsection (1) of this section is not required where the attorney intends to rely solely on either the doctrine of “res ipsa loquitur” or “informed consent.” In such cases, the complaint shall be accompanied by a certificate executed by the attorney declaring that the attorney is solely relying on such doctrine and, for that reason, is not filing a certificate under subsection (1) of this section. If a request by the plaintiff for the records of the plaintiff’s medical treatment by the defendants has been made and the records have not been produced, the plaintiff shall not be required to file the certificate required by this section until ninety (90) days after the records have been produced. For purposes of this section, an attorney who submits a certificate of consultation shall not be required to disclose the identity of the consulted or the contents of the consultation; provided, however, that when the attorney makes a claim under paragraph (c) of subsection (1) of this section that he was unable to obtain the required consultation with an expert, the court, upon the request of a defendant made prior to compliance by the plaintiff with the provisions of this section, may require the attorney to divulge to the court, in camera and without any disclosure by the court to any other party, the names of physicians refusing such consultation. The provisions of this section shall not apply to a plaintiff who is not represented by an attorney. The plaintiff, in lieu of serving a certificate required by this section, may provide the defendant or defendants with expert information in the form required by the Mississippi Rules of Civil Procedure. Nothing in this section requires the disclosure of any “consulting” or nontrial expert, except as expressly stated herein.

Miss. Code Ann. § 11-1-59 Damages in medical malpractice actions.

In any action at law against a licensed physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor to recover damages based upon a professional negligence theory, the complaint or counterclaim shall not specify the amount of damages claimed, but shall only state that the damages claimed are within the jurisdictional limits of the court to which the pleadings are addressed and whether or not the amount of such damages is ten thousand dollars ($10,000.00) or more, or such other minimum amount as shall be necessary to invoke federal jurisdiction if the action is brought in federal court.

Miss. Code Ann. § 11-1-60 Limitation on noneconomic damages in medical malpractice actions; definitions.

For the purposes of this section, the following words and phrases shall have the meanings ascribed herein unless the context clearly requires otherwise: “Noneconomic damages” means subjective, nonpecuniary damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury. The term “noneconomic damages” shall not include punitive or exemplary damages. “Actual economic damages” means objectively verifiable pecuniary damages arising from medical expenses and medical care, rehabilitation services, custodial care, disabilities, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses. In any cause of action filed on or after September 1, 2004, for injury based on malpractice or breach of standard of care against a provider of health care, including institutions for the aged or infirm, in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than Five Hundred Thousand Dollars ($500,000.00) for noneconomic damages. 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. 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. Nothing contained in subsection (1) of this section shall be construed as creating a cause of action or as setting forth elements of or types of damages that are or are not recoverable in any type of cause of action.

Miss. Code Ann. § 11-1-61 Expert witness in action against physician.

In any action for injury or death against a physician, whether in contract or in tort, arising out of the provision of or failure to provide health care services, a person may qualify as an expert witness on the issue of the appropriate medical standard of care if the witness is licensed in this state, or some other state, as a doctor of medicine.

Miss. Code Ann. § 11-1-62 Protection of medical professionals who prescribe FDA approved drugs.

In any civil action alleging damages caused by a prescription drug that has been approved by the federal Food and Drug Administration, a physician, optometrist, nurse practitioner or physician assistant may not be sued unless the plaintiff pleads specific facts which, if proven, amount to negligence on the part of the medical provider. It is the intent of this section to immunize innocent medical providers listed in this section who are not actively negligent from forum-driven lawsuits.

Miss. Code Ann. § 11-1-63 Product liability actions; conditions for liability; what constitutes a defective product.

Subject to the provisions of Section 11-1-64, in any action for damages caused by a product, including, but not limited to, any action based on a theory of strict liability in tort, negligence or breach of implied warranty, except for commercial damage to the product itself: The manufacturer, designer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller: 1. The product was defective because it deviated in a material way from the manufacturer’s or designer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or 2. The product was defective because it failed to contain adequate warnings or instructions, or 3. The product was designed in a defective manner, or 4. The product 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; and The defective condition rendered the product unreasonably dangerous to the user or consumer; and The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought. A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product’s usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community. (i) In any action alleging that a product is defective because it failed to contain adequate warnings or instructions pursuant to paragraph (a) (i)2 of this section, the manufacturer, designer or seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller, the manufacturer, designer or seller knew or in light of reasonably available knowledge should have known about the danger that caused the damage for which recovery is sought and that the ordinary user or consumer would not realize its dangerous condition. An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates sufficient information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to an ordinary consumer who purchases the product; or in the case of a prescription drug, medical device or other product that is intended to be used only under the supervision of a physician or other licensed professional person, taking into account the characteristics of, and the ordinary knowledge common to, a physician or other licensed professional who prescribes the drug, device or other product. In any action alleging that a product is defective pursuant to paragraph (a) of this section, the manufacturer, designer or seller shall not be liable if the claimant (i) had knowledge of a condition of the product that was inconsistent with his safety; (ii) appreciated the danger in the condition; and (iii) deliberately and voluntarily chose to expose himself to the danger in such a manner to register assent on the continuance of the dangerous condition. In any action alleging that a product is defective pursuant to paragraph (a)(i)2 of this section, the manufacturer, designer or seller shall not be liable if the danger posed by the product is known or is open and obvious to the user or consumer of the product, or should have been known or open and obvious to the user or consumer of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons who ordinarily use or consume the product. In any action alleging that a product is defective because of its design pursuant to paragraph (a)(i)3 of this section, the manufacturer, designer or product seller shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer, designer or seller: The manufacturer or seller knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought; and The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, usefulness, practicality or desirability of the product to users or consumers. (i) The manufacturer of a product who is found liable for a defective product pursuant to paragraph (a) shall indemnify a product seller or designer for the costs of litigation, any reasonable expenses, reasonable attorney’s fees and any damages awarded by the trier of fact unless the seller or designer exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller or designer altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller or designer had actual knowledge of the defective condition of the product at the time he supplied same; or the seller or designer made an express factual representation about the aspect of the product which caused the harm for which recovery of damages is sought. Subparagraph (i) shall not apply unless the seller or designer has given prompt notice of the suit to the manufacturer within ninety (90) days of the service of the complaint against the seller. In any action alleging that a product is defective pursuant to paragraph (a) of this section, the seller or designer of a product other than the manufacturer shall not be liable unless the seller or designer exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; or the seller or designer altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or the seller or designer had actual or constructive knowledge of the defective condition of the product at the time he supplied the product. It is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product. Nothing in this section shall be construed to eliminate any common law defense to an action for damages caused by a product.

Miss. Code Ann. § 11-1-64 Repealed.

Repealed by Laws, 2004, 1st ex. Sess., ch. 1, § 7, eff September 1, 2004, and applicable to all causes of action filed on or after September 1, 2004. [Laws, 2002, 3rd Ex Sess, ch. 4, § 4, eff from and after Jan. 1, 2003.]

Miss. Code Ann. § 11-1-65 Punitive damages; limitations.

In any action in which punitive damages are sought: 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. 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. The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount. In all cases involving an award of punitive damages, the fact finder, in determining the amount of punitive damages, shall consider, to the extent relevant, the following: the 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. The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole. Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others. In determining whether the award is excessive, the court shall take into consideration the following factors: 1. Whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant’s conduct as well as the harm that actually occurred; 2. The degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct; 3. The financial condition and net worth of the defendant; and 4. In mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct. The seller of a product other than the manufacturer shall not be liable for punitive damages unless the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; the seller had actual knowledge of the defective condition of the product at the time he supplied same. In any civil action where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the following: Twenty Million Dollars ($20,000,000.00) for a defendant with a net worth of more than One Billion Dollars ($1,000,000,000.00); Fifteen Million Dollars ($15,000,000.00) for a defendant with a net worth of more than Seven Hundred Fifty Million Dollars ($750,000,000.00) but not more than One Billion Dollars ($1,000,000,000.00); Five Million Dollars ($5,000,000.00) for a defendant with a net worth of more than Five Hundred Million Dollars ($500,000,000.00) but not more than Seven Hundred Fifty Million Dollars ($750,000,000.00); Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) for a defendant with a net worth of more than One Hundred Million Dollars ($100,000,000.00) but not more than Five Hundred Million Dollars ($500,000,000.00); Two Million Five Hundred Thousand Dollars ($2,500,000.00) for a defendant with a net worth of more than Fifty Million Dollars ($50,000,000.00) but not more than One Hundred Million Dollars ($100,000,000.00); or Two percent (2%) of the defendant’s net worth for a defendant with a net worth of Fifty Million Dollars ($50,000,000.00) or less. For the purposes of determining the defendant’s net worth in paragraph (a), the amount of the net worth shall be determined in accordance with Generally Accepted Accounting Principles. The limitation on the amount of punitive damages imposed by this subsection (3) shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict. The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant: If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or While 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. Nothing in this section shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur where appropriate.

Miss. Code Ann. § 11-1-66 Immunity of premise owners from civil liability in certain circumstances.

No owner, occupant, lessee or managing agent of property shall be liable for the death or injury of an independent contractor or the independent contractor’s employees resulting from dangers of which the contractor knew or reasonably should have known.

Miss. Code Ann. § 11-1-66.1 1. Landowners Protection Act; limitation of liability of landowners for certain injuries of invitees injured on landowner's property.

This section shall be known and may be cited as the “Landowners Protection Act.” For any premises-liability actions brought under the laws of the State of Mississippi, no person who owns, leases, operates, maintains, or manages commercial or other real property in the State of Mississippi and no director, officer, employee, agent or independent contractor acting on behalf of any such person shall be civilly liable to any invitee who is injured on said property as the result of the willful, wanton or intentional tortious conduct of any third party who is not a director, officer, employee or agent of the person who owns, leases, operates, maintains or manages such commercial or other real property unless the injured party can prove by a preponderance of the evidence that: The conduct of said third party occurred on the property; The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party; and The third party’s conduct proximately caused the economic and noneconomic damages suffered by the injured party. For any civil actions brought under the laws of the State of Mississippi for the purpose of alleging liability for the injury of an invitee as described in subsection (2) of this section, an atmosphere of violence shall only be established by similar violent conduct: Which occurred three (3) or more times within three (3) years before the third party act at issue; Which took place only on the commercial or other real property where the acts of the third party occurred; and Which are based upon three (3) or more separate events or incidents that resulted in three (3) or more arraignments of an individual for a felony involving an act of violence. For any civil actions brought under the laws of the State of Mississippi for the purpose of alleging liability for the injury of an invitee as described in subsection (2) of this section, civil liability may not be based on the prior violent nature of the third party whose acts or omissions proximately caused the claimed injury or damage unless the person who owns, leases, operates, maintains or manages the property has actual, not constructive, knowledge of the prior violent nature of said third party. If any provision of this section or its application to any person or circumstance is held unconstitutional or otherwise invalid, the remainder of this section or the application of the provision to other persons or circumstances is not affected. Nothing in this section shall be construed to alter the provisions of Section 97-3-15. For purposes of this section, “premises-liability action” means a civil action based upon the duty owed to someone injured on a landowner’s premises as a result of conditions or activities on the land.

Miss. Code Ann. § 11-1-67 Authority to sue traders in firearms reserved to state.

The authority to bring an action against any firearms or ammunition manufacturer, distributor or dealer duly licensed under federal law on behalf of any governmental entity created by or pursuant to an act of the Mississippi Legislature or the Mississippi Constitution of 1890, or any department, agency or authority thereof, for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to the lawful design, manufacture, distribution or sale of firearms, firearm components, silencers, ammunition or ammunition components to the public, shall be exclusively reserved to the state. This section shall not prohibit a political subdivision from bringing an action against a firearm or ammunition manufacturer, distributor or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision, or for injuries resulting from a firearm malfunction due to defects in materials or workmanship. “Political subdivision” and “governmental entity” shall have the meanings ascribed in Section 11-46-1.

Miss. Code Ann. § 11-1-69 Prohibition of hedonic damages in civil actions.

In any civil action for personal injury there may be a recovery for pain and suffering and loss of enjoyment of life. However, there shall be no recovery for loss of enjoyment of life as a separate element of damages apart from pain and suffering damages, and there shall be no instruction given to the jury which separates loss of enjoyment of life from pain and suffering. The determination of the existence and extent of recovery for pain and suffering and loss of enjoyment of life shall be a question for the finder of fact, subject to appellate review, and the monetary value of the pain and suffering and loss of enjoyment of life shall not be made the subject of expert testimony. In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.

Miss. Code Ann. § 11-1-71 Immunity of medical personnel who provide volunteer service in school programs.

Any licensed physician, certified nurse practitioner, psychologist or physician assistant who voluntarily provides needed medical or health services to any program at an accredited school in the state without the expectation of payment shall be immune from liability for any civil action arising out of the provision of such medical or health services provided in good faith on a charitable basis. This section shall not extend immunity to willful acts or gross negligence. Except in cases of rendering emergency care wherein the provisions of Section 73-25-37, Mississippi Code of 1972, apply, immunity under this section shall be extended only if the physician, certified nurse practitioner, psychologist or physician assistant and patient execute a written waiver in advance of the rendering of such medical services specifying that such services are provided without the expectation of payment and that the licensed physician or certified nurse practitioner, psychologist or physician assistant shall be immune as provided herein. Any physician who voluntarily renders any medical service under a special volunteer medical license authorized under Section 73-25-18 without any payment or compensation or the expectation or promise of any payment or compensation shall be immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service unless the act or omission was the result of the physician’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written or oral agreement for the physician to provide a voluntary noncompensated medical service before the rendering of the service by the physician.