Day on Torts
The Mississippi Supreme Court accepted review of a case where the plaintiff failed to attach either an attorney’s certificate of consultation, or an expert disclosure in lieu of the certificate, as required by Mississippi Code Annotated Section 11-1-58 (Rev. 2007). The question is whether that fact required a dismissal of the suit as set forth in the statute.
The Court held that "a complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver." The basis of the ruling was the seperation of powers between the Legislature and the Court. The Court said:
Section 11-1-58’s requirement that a certificate accompany the filing of the complaint contradicts these provisions of the Mississippi Rules of Civil Procedure. Furthermore, the statutory requirement is totally inconsistent with Rule 8(f)’s requirement that ‘pleadings shall be so construed as to do substantial justice.’
The Court did not strike the entire statute. It said:
[O]ur holding today has no effect on the constitutionality or applicability of other provisions or requirements of Section 11-1-58. Indeed, we guard just as diligently the Legislature’s prerogative to set forth in legislation whatever substantive, presuit requirements for causes of action, and prerequisites to filing suit, it deems appropriate.
The case is Wimley v. Reid, No. 2007-CA-007593-SCT (Miss. Sept. 18, 2008). Read it here.