Tie Goes to the Runner
November 3, 2015 § 1 Comment
Aside from the fact that the MSSC was called upon to review a chancellor’s award of $30,110,618 in combined actual and punitive damages and civil penalties under the Consumer Protection Act, the case of In the Matter of Mississippi Medicaid Pharmaceutical Average Wholesale Price Litigation: Sandoz, Inc. vs. State of Mississippi, decided October 26, 2015, is remarkable for the fact that it was affirmed by a divided court, and for how Mississippi handles the precedential value of split decisions.
But before we get to that, this case is also fascinating for the mirror-image approaches that the majority and dissents took toward the chancellors’ conclusions re the evidence.
This was a case in which Sandoz, Inc., a generic drug supplier, provided the State Division of Medicaid with its Average Wholesale Price (AWP) index, purporting to show the cost to pharmacies for drugs wholesaled to them by Sandoz. The chancellor found, however, that the AWP claimed by Sandoz exceeded actual wholesale prices charged to the pharmacies by some 886%, causing the state to overpay for drugs provided under the Medicaid program. The chancellor found that Sandoz was guilty of common-law fraud, and that it violated Mississippi’s Consumer Protection Act, and he assessed damages. The chancellor also denied the state’s claim for attorney’s fees, and its claims that the chancellor improperly calculated damages.
Sandoz and the state both appealed. The MSSC affirmed on both direct and cross-appeals.
Justice Chandler wrote the plurality opinion, joined by Kitchens, King, and Randolph specially concurring. Justices Dickinson and Lamar wrote dissenting opinions that were joined by Pierce and Coleman. Waller did not participate. If you’re counting, the score is Affirm = 4, Dissent = 4, Abstain = 1. If the vote is tied, the decision is affirmed. See Rockett Steel Works v. McIntyre, 15 So. 2d 624 (Miss. 1943) (“Three of the judges of this Court are of the opinion that the judgment of the court below should be affirmed, and three [are] of the opinion that it should be reversed; consequently, that judgment must be, and is affirmed.”).
And this is the point at which it gets interesting. Justice Randolph concurred in the result, but he vigorously argued that the court should not have issued an opinion in the case, but rather should have issued an order merely affirming since there was no majority in agreement to issue a statement of the law on the subject. He cites SCOTUS opinions that support his position holding that split decisions have no precedential value, and concludes by questioning why our court clings to its practice of issuing opinions that can be used as precedent in such cases. I have to say that I find his brief concurring opinion persuasive. I commend it to you.
Justice Lamar’s opinion is also interesting for its recitation of the facts in the record. She calls into question many of the chancellor’s conclusions. The prevailing opinion was ultimately swayed, however, by deference to the trial finder of fact’s conclusions.
This case presents some complicated facts, but it’s worth read for its glimpse into the inner workings of our highest court.
The Better Chancery Practice Blog 
I don’t have anything useful to add about the merits, but one perhaps relevant difference between the MSSC and SCOTUS is that when the latter affirms without written decision, it’s usually affirming an appellate decision that has set out some reasoning regarding the trial-court’s opinion. The MSSC is usually affirming a trial-court judgment.
I would be interested to see examples of even splits in the federal courts of appeals, which I guess would tend to be en banc, since 3-judge panels typically decide appeals.