$135 Million Jury Verdict in Cole v. Ford Motor Co. Trial

A Jasper County jury returned a $135 million verdict [I reported earlier that it was $130 million, then $235 million] today in the case against Ford Motor Co. involving the death of New York Mets prospect Brian Cole. I am not sure whether there were punitive damages.

Update: I am confident now that the verdict was in the $130's. See the comment by the plaintiff lawyer.

Update: reports are now that the verdict was all compensatory and the case settled before the punitive phase.

Two earlier trials in the case resulted in mistrials. I am not positive, but I think that this case is so old that the tort caps do not apply. Update: the case was filed in 2001. The caps do not apply.

For prior posts on the case see here, here, and here.

Read the Plaintiff attorney's blog on the verdict here. 

I will have more on this verdict in a future post.

 

Book Review: The Price of Defiance- James Meredith and the Integration of Ole Miss, by Charles W. Eagles

I heard about Charles W. Eagles book The Price of Defiance–  James Meredith and the Integration of Ole Miss after it was the subject of a panel discussion at the 2010 Mississippi Bar Convention. I'm glad that I did.

Here is the description of the book from the inside flap of the cover:

When James Meredith enrolled as the first African American student at the University of Mississippi in 1962, the resulting riots produced more casualties than any other clash of the civil rights era. Eagles shows that the violence resulted from the university's and the state's long defiance of the civil rights movement and federal law. Ultimately, the price of such behavior--the price of defiance--was not only the murderous riot that rocked the nation and almost closed the university but also the nation's enduring scorn for Ole Miss and Mississippi. Eagles paints a remarkable portrait of Meredith himself by describing his unusual family background, his personal values, and his service in the U.S. Air Force, all of which prepared him for his experience at Ole Miss.

Attempts to keep James Meredith out of Ole Miss were at the epicenter of white Mississippi's effort to maintain segregation and, more importantly, white supremacy. The opponent to Meredith's attempt to enroll at Ole Miss was the State of Mississippi itself, led by Governor Ross Barnett. 

In the early 1960's it was a crime in Mississippi to attempt to overthrow segregation. Judges, politicians, TV stations and most newspapers vehemently opposed both racial equality and desegregation. Segregationists used terms such as “mongrelization” of the races and whatever other scare cards they could dream up to frighten white people.

But by 1960 white supremacy was probably more about power and money than racist ideals. Thinking whites had to know that once African-Americans could vote and had equal access to education that whites would lose their monopoly on political offices and patronage. Putting it bluntly, a bunch of dumb rednecks were going to be out of a job. Plus, the "help" might balk at continuing to work for slave wages.  

African-Americans who opposed the “Southern way of life” risked death. Whites who opposed the system risked being ostracized by whites and getting run out of the state. A white student who ate in the Ole Miss cafeteria with Meredith had her whole family run out of the state. As a result, there was a silent tolerance of the brutal system much the same way that Germans allowed the Holocaust twenty years earlier. 

Ole Miss was caught in the middle of the controversy. Eagles explains how the chancellor and administration ceded control of racial matters to politicians and their appointed trustees. Although it's easy to criticize them now, the chancellor and administration would have been run out of town had they opposed the politicians who controlled the University.

Eagles persuasively argues that everything from Oxford being a back-water town until the boom in the 1990's to Ole Miss not winning an SEC Football title in over 40 years can be traced to the national scorn caused by the resistance to Meredith.

Reading this book evoked a lot of sadness for me. The “Southern way of life” was so unfair and oppressive for so many Mississippians. Over half the people in Mississippi were African-Americans until around 1930 and Mississippi has always had a huge black population. The system existed from until the end of slavery until people my parent's age were grown adults. Including the slavery years, there were 150 years of slavery and white supremacy. We are less than 50 years from the Civil Rights Movement. 

The names of many of the players in the dispute will be familiar to Mississippi lawyers. Retired 5th Circuit Judge Charles Clark was one of the lawyers who represented the State in opposing Meredith's efforts, and Jackson lawyer Bill Goodman was one of the attorneys who advised Governor Barnett during the crisis. Again, it's easy now to criticize lawyers who represented the State, but that was a different time and people who did not live through it should not take a holier than thou view of something that they didn't live through.   

Former Mississippi Supreme Court Justice Jimmy Robertson makes an appearance as a writer and editor for the Daily Mississippian in the early 1960's who took the controversial position that—God forbid—Ole Miss schedule teams that included African American players. Pretty ironic that it was so controversial given the fact that now before taking the field, every Ole Miss coach and player touches the statue of former player Chucky Mullins (an African-American). Jackson resident the Reverend Duncan Gray Jr. was a rector in Oxford in the early 1960's and was a rare progressive voice among white Mississippians.  

Given how far Mississippi has advanced, it is easy to overlook the courage exhibited by individuals like Meredith, Robertson and Gray, who put themselves in harm's way by voicing opposition to white supremacy. But if we are being honest, few of us can say with certainty that we would have exhibited such moral courage during that era. Indeed, look at how many people who did not. 

There is still racism in Mississippi, as there is in most parts of the country. But the notion of white supremacy is dead except for with complete nuts. In my experience, even people who are racist because of their general views about African-Americans believe that everyone should have equal access to education, job opportunities and political office. Otherwise, you would not see African-Americans elected to political office in majority white districts. But it does occasionally happen.

In conclusion, The Price of Defiance is a fantastic book that makes you think about how far Mississippi has advanced, but also the depth of the hole that we are digging out of. The book should be required reading for all Mississippi lawyers and all students at Mississippi's colleges and law schools.

Mandatory Pro Bono Coming to Mississippi?

The Mississippi Supreme Court Rules Committee on the Legal Profession is proposing a major change to the Rules of Professional Conduct: lawyers will be required to perform 20 hours of pro bono legal services to the poor per year. Those who don't must pay $500.00 to the Bar.

Here is the link to the proposed new rule. The deadline for comments is October 1, 2010.

As can be seen in the linked proposed rule, the current rule is that lawyers should (but don't have to) render 20 hours of legal services per year to the poor. In the alternative, lawyers may make a voluntary contribution of $200 to the Mississippi Bar.

A reader forwarded me a comment letter from Water Valley lawyer John Gillis, who makes some convincing arguments against the proposed rule. Among Gillis' points:

  • no other jurisdiction has a mandatory pro bono requirement
  • only seven states have mandatory pro bono reporting (including Mississippi)
  • eight states have rejected even mandatory pro bono reporting
  • a mandatory requirement would spoil the altruism one gets from performing pro bono work
  • there will likely be problems in the quality of pro bono work
  • lawyers may have problems in finding indigent clients
  • the proposed rule provides no organizational or management structures for the new rule
  • pro bono is by nature a voluntary act.

Gillis proposes other incentives for voluntary pro bono service, including awarding six hours of CLE credit for lawyers who meet the 20 hour threshold. Incidentally, allowing a few hours of CLE credit for pro bono work was proposed a few years ago by the Bar's Delivery of Legal Services Committee (I chaired the committee). The Commission on Continuing Legal Education rejected the proposal despite support from the Access to Justice Commission.

My Take:

I am a big believer in pro bono service. I try to always maintain at least two active pro bono cases and have relished the sincere appreciation that pro bono clients often communicate. But my initial reaction to the proposed rule is not positive.

I agree that pro bono should be voluntary. I am afraid that if lawyers have to provide pro bono services, then many will resent it and their pro bono clients.

In addition, some lawyers may have practices that are not suited to regularly providing pro bono legal services. Typical pro bono work is in chancery court handling domestic matters such as divorces, guardianships and child custody disputes. Should a transactions lawyer who never enters the courtroom handle these types of cases? Probably not. So what will these lawyers do to fulfill their pro bono requirement?

There are also provisions in the proposed rule that I do not like the sound of. Can some lawyers at firms meet the requirement through the work of others lawyers under the collective discharge provision? If so, this will become known as the “Senior Partners” rule and will lead to senior lawyers at firms making the junior lawyers perform enough pro bono services to satisfy the requirement of the senior lawyers and the junior lawyer. You could have junior associates performing a hundred hours or more of pro bono work to satisfy the requirement for the firms' senior partners.

I also don't like the exemptions. First, cynics will note that it's pretty easy for the Supreme Court to adopt a pro bono requirement that does not apply to its justices.

Second, why do all government lawyers get a pass?

Third, what does “those lawyers who are restricted from practicing law outside their specific employment” mean? In-house counsel? If so, why do they get a pass? Some in-house counsel litigate cases in Mississippi courts. Can any employer enact a rule restricting the practice of law outside their specific employer? If so, I can pretty much guarantee that my employer (Philip W. Thomas, P.A.) is going to pass such a rule so I don't have to worry about this new rule. Expect other law firms to do the same.

Fourth, are the chancery judges going to appreciate it when lawyers who have no business in their courtroom show up representing clients in order to meet their requirement? And will that be good for the client if the opposing party is represented by an attorney experienced in the area of practice?

In conclusion, the proposed rule is paved with good intentions. But I don't like it. The Court and Bar should look for ways to encourage pro bono legal services. They should not mandate it.

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Directed Verdict for Defendant in Hinds County Breach of Contract Case

On Tuesday Hinds County Circuit Judge Malcolm Harrison directed a verdict for the defendant in Brown v. Anderson.

The case was a breach of contract case where the plaintiffs (the Browns) sued James Anderson over a house that Anderson sold to the Browns. At the closing, Mr. Brown signed a document—the only document that he signed—stating that he had conducted a walk-thru of the house and found that all electrical, plumbing and HVAC were functioning. The Browns knew that they could have the home inspected before the closing, but did not.

Three weeks after the closing, the Browns hired a home inspector who found numerous alleged problems with the home's electrical, plumbing and HVAC. After the sale, the Browns lived in the house for four years without paying a house note, insurance or taxes until the house was foreclosed by the lender.

The Browns sued Anderson for breach of contract and tortious breach of contract. The Browns sought $90,000 in economic damages (sale price of the house) and personal injury damages. Anderson's defense was that the Browns did not prove a defect at the time of the sale and signed a document at the closing that stated that there were no defects.

The plaintiffs rested on the second day of trial and Judge Harrison granted Anderson's motion for directed verdict. Judge Harrison agreed with Anderson that the Browns failed to establish a prima facie case of breach of contract or tortious breach of contract.

Pieter Teeuwissen of Jackson represented Anderson. Anderson is an employee of the City of Jackson and Teeuwissen, who is the City Attorney, represented Anderson on a pro bono (free) basis.

David McCarty and Drew Martin (?- not Drew Malone as earlier reported) of Jackson represented the plaintiffs.    

Is the Party Back On the Bogue Chitto?

Finally, a Mississippi Supreme Court decision of imminent importance to the masses. On Thursday the Supreme Court decided Ryals v. Board of Supervisors, a “landmark” decision involving whether the Pike County Board of Supervisors can outlaw drinking on the “pristine” Bogue Chitto River and Topisaw Creek. 

The Board of Supervisors banned possessing and consuming alcohol on the river due to landowner complaints of littering, profanity, lewd behavior and…. two dozen reports of individual acts of perversion…. so profound and disgusting… that decorum prohibits listing them here.

Unfortunately for local business owners, no one wants to tube if they can't get their drink on. Business was down 90% following the ban, leading to the lawsuit. Pike County Circuit Court Judge David Strong sided with the Board of Supervisors and upheld the ban. The business owners appealed.

First, the good news for inner tubing drunks. The Supreme Court struck down the ban on possession of beer on the River. You  can take all the beer you want with you on your float.

Now the bad news. You can't drink it. The Court upheld the prohibition of consumption of alcohol on the River.

Will Bardwell—a lifetime Bogue Chitto River Rat—apparently theorizes that drinking on the sandbars will be permitted. I'm going to have to disagree. My interpretation of the decision is that it effectively means that the River will stay dry.

I'm not certain because I am not an Ole Miss fan, but this policy sounds like the exact opposite of the alcohol rules in the Grove before Ole Miss football games.

Building Dispute Exposes Justice Dickinson's Disdain for Peas

On Thursday the Mississippi Supreme Court decided a case that was a dispute over the near-sale of a planned law office building. Here is the opinion in Sweet v. TCI. 

Anderson discussed the opinion here. The case turned on the issue of whether an affidavit was so conclusory as to be ineligible to support a motion for summary judgment. Amazingly, the following passage in Justice Dickinson's dissent convinced only Justice Randolph to join the dissent:

The majority says TCI’s affidavit amounted to a conclusory, self-serving statement. A statement is conclusory if it “[e]xpress[es] a factual inference without stating the underlying facts on which the inference is based.” Paragraph 4 of Small’s affidavit reads “[TCI] attempted to obtain financing satisfactory to it from numerous financial institutions . . . [and was] unable to do so.” That is a statement of fact, not a conclusion. “Peas don’t taste good” is a conclusory statement. But “I have eaten peas and I don’t like peas” is a statement of fact. TCI’s sworn statement that it unsuccessfully had attempted to obtain satisfactory financing from numerous financial institutions is a statement of fact – uncontradicted in the record. Accordingly, I would affirm the chancellor.

My initial reaction was that this was one of the greatest pieces of legal writing in the history of American jurisprudence. But upon further reflection, I've decided that Justice Dickinson should have referred to corn or spinach instead of peas.

Cole v. Ford Motor Co. in Trial for Third Time

The third trial involving the 2001 death of former New York Mets prospect Brian Cole is taking place before Judge Billy Joe Landrum in Laurel or Paulding (I have heard both). Ford Motor Co. is the defendant. The lawsuit alleges defects in a seatbelt and a propensity of an Explorer to roll-over. 

Two prior trials resulted in hung juries. The case was first tried in 2004 before Judge Robert Evans in Paulding. My recollection is that the plaintiffs moved to recuse Judge Evans after the first trial and the Supreme Court appointed Judge Landrum to take over the case.

The second trial was earlier this year before Judge Landrum and discussed on this blog here and here

Plaintiffs contend that Cole would have been a major leaguer, a view supported by the Mets as discussed in this New York Daily News article about the last trial.

City of Jackson Between a Rock and a Hard Place on Waste Water Contract Dispute

As reported by the Clarion-Ledger, the City of Jackson now faces two conflicting rulings by Hinds County judges on the City's waste water contract.

Last week Hinds County Circuit Court Judge Swan Yerger threatened to throw City leaders in jail unless the City complied with an order to award the contract to United Water Services. I discussed Judge Yerger's ruling in this post.

 But on Thursday Hinds County Chancellor Dewayne Thomas issued this order granting a preliminary injunction that orders the City to not terminate its contract with Jackson Water Partnership.  

If the City complies with Judge Thomas' Order, then it will be in violation of Judge Yerger's Order. But if the City complies with Judge Yerger's Order, then it will be in violation of Judge Thomas' Order.

If I'm Jackson City Attorney Pieter Teeuwissen, this would remind me of the scene from the movie Airplane where Lloyd Bridges says: “looks like I picked the wrong week to stop sniffing glue.”

Now comes news that Judge Yerger has ordered attorneys for the City and United Water to appear before him at 1:00 p.m. today.

Should be real interesting.

$900,000 Verdict Last Week in Hinds County Premises Liability Case

There was a jury verdict of $900,000 last week in the Hinds County Circuit Court in a premises liability case. The rumor around town this week has been that the verdict was for $2 million, but my investigation revealed a verdict of $900,000.

Judge Malcolm Harrison was the trial judge.

The plaintiffs were victims of armed robbery at the Crossings Apartment on Ridgewood Road in Jackson. The jury's verdict was for one of the two victims. Judge Harrison will determine the damages for the other plaintiff, but I do not know why.

I do not know what the injuries/ damages were. There were no punitive damages in the case.

Precious Martin of Jackson represented the plaintiff. James Holland from Page Kruger in Flowood represented the defendant.

One interesting tidbit I'm hearing is that the spouse of a prominent Jackson defense attorney was on the jury.

$2.315 Million Award in Gulf Coast 18-wheeler Accident Arbitration

Within the last week or so a Gulf Coast arbitrator awarded $2.325 million to a plaintiff whose dump truck collided with an 18–wheeler.

The accident occurred years ago on a four lane road in Jackson County. The 18–wheeler ran a stop sign and crossed two of the four lanes and stopped, with the trailer blocking two lanes. The plaintiff's dump truck collided with the 18–wheeler. All fact neutral fact witnesses agreed that the accident was the 18–wheeler's fault.

The forty-seven year old plaintiff suffered severe injuries and was permanently disabled. The plaintiff had over $180,000 in medical bills. In addition, the plaintiff losing his job caused severe economic hardship for the plaintiff and his family.

The case was originally filed six years ago in the Circuit Court of Jackson County. But the parties agreed to binding arbitration after three trials were continued due to the priority of criminal cases.

At the arbitration hearing, the defense argued that the plaintiff should have stopped his dump truck to avoid the 18–wheeler. The defendant's accident reconstructionist—who had questionable credentials—basically flipped on the witness stand and testified that the plaintiff had only 2.5 seconds to stop, which was impossible due to the size of the dump truck. The arbitrator cited the defense expert in support of his decision.

$1.2 million of the award was for non-economic damages. But it was a pre-cap case, so the caps do not apply. The defendant is not expected to appeal. 

The defendant offered $200,000 to settle before the arbitration. There was a workers comp. lien for the medical bills of over $180,000.

Kasie Braswell and Richard Taylor with the Taylor Martino firm out of Mobile represented the plaintiff. Jim Galloway and Shannon Favre with Butler Snow in Gulfport represented the defendant.

Word on the street on the Coast is that defense counsel is outraged by the result and that Butler Snow has canceled all future mediations with the arbitrator, who is well known and respected in Mississippi.

My Take:

If the defendants only offered $200,000 to settle before trial, then they did not want to settle. Offering $200k to settle with a comp lien of $180k is usually the equivalent of offering zero. If you want to settle, you have to offer a good bit more than the lien. In this case, it probably would have taken an offer of over $500,000 for the plaintiff to even think about it.  

I have heard of the “hey, you hit my 18–wheeler” defense. But most lawyers view it as a weak defense asserted when there is nothing else to argue. Few people actually believe that they will win the case with the defense.

This case could have been a situation where the defendant fell in love with their defense and loss objectivity. You see this happen to lawyers on both sides, who have to buy into their cases in order to do a good job. Published studies show that on average, lawyers do a poor job of predicting the results of their cases. Sometimes lawyers lose all objectivity, which can lead to a really bad—but unexpected—result.

In my opinion, this phenomenon is usually more dangerous for defendants and defense lawyers than plaintiffs and plaintiff lawyers. On the plaintiff side, if you poorly evaluate your case, then there is not a lot that you can do after the case is filed. Defendants will not offer more than nuisance value to settle, which the client will not accept. So you have to try the case and work on doing a better job of evaluating the merits of a case before it is filed. A wise plaintiff lawyer will spend many hours analyzing a case that he ultimately rejects, knowing that the decision can save him countless hours and dollars down the road.   

On the defense side, however, the phenomenon can lead to avoidable huge verdicts that take the defendant (often an insurance company) and defense counsel by surprise. This hasn't always happened when you see a large verdict in a case, but it has a lot of the times. Many times, neutral trial observers were not surprised by the verdict, which often means that the defense fell in love with their case and lost objectivity.

Lawyers have to be careful not to fall into this trap—myself included. Using expected value calculations can help, as discussed in this post. But there is no substitute for experience and having the ability to stay objective in evaluating the range of possible outcomes.