Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

For Mississippi native son and attorney Philip Thomas, blogging about law, politics and topical issues in the state extends a conversation he’s been... More

Miss. Court of Appeals Affirms Million-Plus Silica Verdict

Posted in Appellate Decisions From Jury Verdicts, Improving the Jury System, Mississippi Court of Appeals

On Tuesday the Mississippi Court of Appeals affirmed a $1,095,000 Hinds County jury verdict in Barnett v. Miss. Valley Silica Co.

Here is my brief post in October 2012 reporting on the verdict.

The decedent worked near sandblasting at Miss. Iron and Steel Co. on High Street in Jackson. He alleged that Valley Silica failed to warn of the danger of silicosis from its sand.

The jury ruled for the plaintiff and apportioned 35% of the fault to Valley. The verdict included $500,000 in punitive damages.

Valley raised at least eight appeal issues.

Judge Wilson wrote the Court’s opinion. The Court affirmed on all issues except for the amount of attorney’s fees. The Court ordered the trial court to make findings of fact and conclusions of law on the amount of attorney’s fees. This will likely be a matter of housekeeping for the trial court as opposed to a real win for Valley.

The Court found that the jury’s verdict was inconsistent, but that Valley waived the argument by not seeking clarification before the Court discharged the jury. The Court also rejected Valley’s real party in interest and standing arguments because Valley did not timely raise them.

The Court rejected Valley’s statute of limitations argument by finding that it was a jury question that Valley did not litigate at trial.

The Court found that the trial court properly applied both the apportionment and non-economic cap statutes.

The Court concluded that there was sufficient evidence to support punitive damages because Valley did not print a warning on its sandbags even though silicosis had been a known danger of sandblasting for decades.

Judges Ishee and Carlton dissented on the issue of standing.

Plaintiff’s counsel were Patrick Malouf, Allen Smith, Tim Porter, Johnny Givens and David McCarty. Defense counsel were John Cosmich, Michael Simmons and Lakeysha Greer Issac.

Judge Winston Kidd presided in the trial.

My Take:

A good win for the plaintiffs.

The main thing that I want to comment on is the issue of the jury’s verdict being inconsistent due to varying jury instructions. I’ve written about this problem before, including here and here. This is going to keep happening until the attorneys and court have more time to evaluate the instructions.

I’ve read or heard Judge Griffis say that appeal judges ride down from the hills after the battle and shoot the wounded. Appellate rulings on jury instructions have a lot to do with that funny (because it feels true) observation.

Judge Griffis has also been writing about the multitude of rules on his blog. I’m occasionally asked if I have any ideas for new rules that would be helpful. I always respond that there needs to be a rule giving trial judges a shot clock for deciding bench trials so they can’t sit on the decision for–and I’m not exaggerating–2-3 years or more.

But we also need a rule on improving the system for formulating jury instructions.I propose that the main jury instruction conference occur before the trial. Some of our federal court judges begin going over jury instructions in chambers days before the parties rest. This is very orderly and helpful. It results in better instructions. I would like to see the process start even earlier.

Judges think they will not like it. I think they are wrong. A pre-trial jury instruction conference would make the trial run smoother and decrease the chance of a screw up in the instructions. You would still have to review and tweak the instructions before closing, but the hardest work would already be done.

A Look at Filing Statistics for Labor and Employment Cases in Federal Court

Posted in U.S. District Courts in Mississippi

Mississippi Bar Labor and Employment Section Chair Nick Norris recently provided me with the section’s research regarding labor and employment filings in federal court for 2005 – 2014. Here it is:

Labor and Employment Section Filing Statistics

With the exception of a bump during 2009-2010, Northern District filings have remained constant at about 100 per year. Southern District filings are over 150 per year and exceed 200 many years.

Southern District judges granted dispositive motions in 87% of the cases. Their Northern District counterpart granted summary judgment in 71% of the cases.

It’s my impression–and I could be wrong–that there are more pro se filings in employment cases than other areas. Under those circumstances, you would expect a high percentage of dispositive motions to be granted. This is despite the fact that I have heard multiple stories about federal court judges bending over backwards to hold pro se litigants’ hands through the litigation process.

In general, pro se litigants either can’t find a lawyer because they don’t have a viable case and/or don’t know how to plead and prove their case.

The good news for labor and employment defense lawyers is that filings are steady in the Northern District and on the rise in the Southern District. There are not many civil litigation practice areas that can say this.

The report also contains statistics on how often particular federal court judges grant dispositive motions. I question whether the sample size is large enough to provide meaningful data in this area. As the report notes, the judges have not had the same number of cases and every case is factually different.

In any event, this is great information for labor and employment lawyers and useful to all civil litigation attorneys.

Details Slowly Emerge in Hinds County Million-Plus Med-Mal Verdict

Posted in Hinds County Circuit Court, Verdicts in Mississippi

I received a report last week of a $1.3 million verdict in Hinds County in a medical malpractice case. I have been hampered in putting together a report on the verdict because the Complaint predates electronic filing in Hinds County and the judgment and verdict are not on file yet.

The case is Sanders v. Miss. Baptist Medical Center. Other defendants include Brentwood Behavioral Health and Emergency Medical Associates.

Reports are that the jury apportioned Brentwood 90% of the fault and Baptist 10% of the fault. That means the big winner was Emergency Medical Associates and its attorneys Susan Steffey and Walter Johnson from Watkins Eager.

Baptist has already filed a Motion for JNOV. The motion identifies the following components of the verdict:

  • $880,180 – economic damages to decedent’s family
  • $250,000- pain and suffering to decedent’s family
  • $250,000- loss of love society and companionship to decedent’s family.

That totals $1,380,180. There do not appear to be any cap issues with the verdict.

Jason Varnado and Gene Naylor from Wise Carter represented Baptist. Whit Johnson from Currie Johnson represented Brentwood. Dennis Sweet and Jeffrey Graves represented the plaintiffs. Judge Winston Kidd presided.

Update: Here is the Complaint.

Jury Acquits Mikal Watts in BP Oil Spill Fraud Trial

Posted in General

On Thursday a federal court jury in Gulfport acquitted Texas lawyer Mikal Watts and two other employees of his law firm on fraud charges related to BP oil spill claims. The jury convicted two defendants who made up fictitious claimants and turned the information over to Watts’ firm.

Here is the Anita Lee’s Sun Herald’s article on the verdict.

Here is Guillermo Contreras’s article in the San Antonio Express. In this article Watts blasts overzealous federal prosecutors. The article also addresses Watts’ gamble in representing himself at trial:

Professor Geary Reamey, who teaches criminal law at St. Mary’s University School of Law, and John Convery, a former federal prosecutor who is now president of the Texas Criminal Defense Lawyers’ Association, said the result was very unusual for a defendant who serves as his or her own lawyer.

“It’s extremely rare for a person representing himself to win against the federal government, or the state government, for that matter,” Reamey said.

Convery said he was stunned by the result, calling it “astonishing” and saying, “Apparently the jury had a lot more respect for someone who does represent himself. No one has more on the line. Apparently, that sincerity shone through.”

My Take:

I’m in the crowd that thought Watts lost his marbles when he decided to represent himself. I was wrong.

It now looks like the feds were overreaching along the same lines of the misguided Justice Oliver Diaz prosecution.

Watts has more than repaired his reputation in winning. He has built on it. He made two huge gambles in going to trial and representing himself. He won them both at the end of a five week trial. This should move him to the head of the table in the mass tort world of plaintiff lawyers where the principal asset of many of the leading players is superior bragging skills.

This win proves that Mikal Watts is for real as a trial lawyer.

HB 1523 Update: Gov. Bryant Starts a Quick 0-2 at 5th Circuit

Posted in 5th Circuit Court of Appeals, Politics in Mississippi

News from the HB 1523 front.

Governor Bryant filed two more motions to lose again, this time at the 5th Circuit Court of Appeals. Today the Court granted both Bryant’s motions to lose again by denying his motion for stay pending appeal and motion to expedite the appeal. Here is Order.

Gov. Bryant may think filing a bunch of losing motions somehow helps his case. It doesn’t. It hurts his case. It makes Bryant and his lawyers look like a bunch of wing-nuts. It’s hard to take wing-nuts seriously. What do they say when they get to a real argument: “we mean it this time“?

Not that they have any real arguments.

This brings Bryant’s record in the HB 1523 lawsuit to 0-4. That’s very impressive when you consider that there has only been one substantive ruling in the case and anyone with any sense would only be 0-1 at the same stage of the litigation.

The 2008 Detroit Lions team that went 0-16 is getting nervous.

I thought I was going to hate the HB 1523 litigation, but the Gov’s futility is making it damn entertaining.

Hat tip to Mediumlaw attorney in the comment to this post.

Could Florida Really Have Worse Drivers Than Mississippi?

Posted in General

I was stunned when this new Smart Asset study came out ranking Mississippi drivers as only the second worst in the country. The fact that Mississippi drivers are terrible is, obviously, unsurprising. But Florida’s are worse? I’m not buying it.

Either the study is flawed or–more likely–Mississippi drivers on vacation in Florida drag down Florida’s numbers. Where do Mississippians go on vacation? Florida. Do they become better drivers on vacation? Of course not. They get worse–as evidenced by how they react to new traffic controls like round-abouts (go the wrong way) and eight lane highways (move to the far left lane and slow down).

Typical Mississippi Driver

Typical Mississippi Driver

All summer long from Mobile to Orlando, Mississippi drivers are bringing their unique driving skills to Florida. So while Florida may be the location of the nations’ worst driving, I’m still putting my money on Mississippi drivers as being the worst.

Consider these questions:

  1. Where else can you see people miss an entire green light cycle because they were looking at their cell phone?
  2. Where else is it common for 2 cars to back up the interstate by driving side-by-side at the same (slow) speed?
  3. Where else do people drive all over the road trying to drive one handed while they talk on their cell phone?
  4. Because they are too lazy to figure out how to pair their blue tooth to their SUV?
  5. Where else are turn signals decorative lighting instead of an indication of a pending turn or lane switch?
  6. Where else do people driving far under the speed limit get offended when you pass them, start trying to race you, only to fall back because of their dog-chasing-a-squirrel like attention span?
  7. Where else do you want to pull people over and congratulate them for exhibiting merely competent driving skills?
  8. Where else do you (very) occasionally find yourself thinking: “that’s surprising, the guy in front of me isn’t driving like an idiot.”
  9. Where else do you take one look at many banged up cars and think: “they’re about to wander into the other lane and take someone out”?

Nowhere else. We’re number 1 for bad drivers. I rest my case.

Mississippi’s PERS Funding Ratio is 10th Worst in the Nation

Posted in Mississippi Public Employer's Retirement System (PERS)

According to this Bloomberg report, Mississippi’s PERS funding ratio of 60.9% as of 2014 was the 10th worst in the nation. Here is a link.

Given the performance of the equity markets, it seems odd that Mississippi’s funding ratio decreased from 67.3% in 2009 to 60.9% in 2014.

Regardless, with asset values at all time highs and PERS heavily invested in stocks, things can get worse from here.

Consider this take via Bloomberg  from investing expert Bill Gross:

“Pension funds and mom and pop on main street are looking forward to their pension of 7 or 8 percent, and if they don’t get it, they’re in trouble,” Gross said. Instead, investors should expect returns of around 4 percent, Gross said, reiterating the view from his recent monthly investment outlook that low interest rates have already hurt returns for banks, insurance companies, pension funds and savers.

A sustained 4% investment return for PERS would create an epic calamity for Mississippi’s budget.


Judge Reeves Grants Phil Bryant’s Motion to Lose Again

Posted in Politics in Mississippi, U.S. District Courts in Mississippi

“Thank you sir may I have another!”

On Monday U.S. District Judge Carlton Reeves denied Governor Phil Bryant’s Motion to Stay preliminary injunction preventing HB 1523 from becoming law. Here is Larrison Campbell’s article on the decision on Mississippi Today and here is the order denying motion to stay.

It was a stupid motion. Judges don’t issue preliminary injunctions and then stay them. They would just not issue the injunction in the first place. It was–literally–just a motion to lose again.

There are some gems in Judge Reeves’ Order. In footnote two he notes that the appellants (Governor Bryant and the head of DHS) and their new lawyers don’t know the facts because they didn’t attend the hearing. He later notes that the appellants didn’t even address one of his Establishment Clause findings.

The opinion concludes:

In this case the public interest is better served by maintaining the status quo–a Mississippi without HB 1523. To the extent the preliminary injunction will help alleviate the damage wrought on this State by an HB 1523-cause economic boycott, moreover, that too supports denying a stay of the injunction.

The motions are denied. The baton is now passed. [to the Fifth Circuit Court of Appeals].

If I was writing that decision it would have taken me weeks of editing to remove the snarky sarcasm that would have been in my first draft.

It’s on to glory at the Fifth Circuit for Governor Bryant. Look for him to lose several times there, since he likes to file motions to lose again.

The Onion Breaks Down Jury Selection

Posted in General

The Onion has been on a roll lately in the presidential election cycle. My favorite recent article is this one on the Trump campaign pondering going negative. And if you don’t know what the Onion is, you are really missing out. The ‘article’ includes this gem:

We’ve tried to run a clean campaign that we can all take pride in, but if we’re truly serious about winning this thing, now might be the time to drop the nice guy act and get a little dirty,” said campaign chairman Paul Manafort, adding that the candidate should at the very least consider ramping up personal attacks on his opponents, even if the tactic feels slightly underhanded.


Then today, they released this article on ‘How Juries are Selected.’ Steps 3, 6, 8, and 9 are gold.

3. Mad scramble to cobble together series of legally viable excuses to eliminate minorities from jury pool.

6. Those lucky enough to naturally exude potential bias get to go home.

8. One last sweep for any hippies.

9. Excited jurors rush to courtroom only to discover it’s a goddamn department store slip-and-fall case.

Funny. And true.

Tough Choices for Mississippi College

Posted in Law School

The following is a guest post by Jackson attorney Ken Walley. It was drafted on the heels of the recent Clarion-Ledger article extolling the virtues of a law degree that this blog covered here.

Dean Rosenbatt retired at the right time. The collapse in demand for law degrees is hitting Mississippi College hard. 2011 saw MC’s last big class: 214 students. Then, reforms pushed by the watchdog group Law School Transparency and negative media attention gave college students the picture of the job market that law grads already knew. As applications fell, MC shrank the 1L class size by 55 students and maintained quality. That is, until 2014, when the bottom fell out:

graph 1Source: Law School Transparency. For a sharper image click here

What the graph doesn’t show is what is happening at the bottom of the class. The 25th percentile of the 2010 1L class had an LSAT and GPA of 147 and 2.94, respectively. That’s about what the median student looks like today. Despite a 40% cut in the class size to 122 students, the 25th percentile of the 2015 1L class was at 142 for the LSAT and a GPA of 2.73. A 142 LSAT score would put you at the 18th percentile of all test-takers (including those that don’t go to law school), and you’ve still got a quarter of your law school class below you. I will focus on the bottom of the class, because I assume that’s where you’ll find those that fail the bar exam, rather than at the middle or top.

Even to be an unemployed lawyer, you’ve got the pass the bar exam, and GPA and LSAT scores are available indicators for test-taking ability. According to Law School Transparency’s metrics, students at the 75th percentile of MC’s 2015 1L class are at high risk for failing the bar, and more than a quarter are considered at “extreme risk.” MC’s bar passage rates are about to become very, very important.

In June, a Department of Education panel recommended temporarily stripping the ABA of the power to accredit new law schools, a responsibility it has held for 93 years. Under heightened scrutiny, the ABA is likely to amend the minimum bar passage requirement for schools to require at least 75% of all graduates that take a bar exam to pass within two years for a school to remain accredited.

Passage rates are declining with student quality all over the country, and Mississippi is no exception. As I recall, when I took it in 2009, the passage rate was 85%. The passage rate for Mississippi’s July, 2015 bar exam was 70.2%. For 2014, MC Law reported an average school pass rate of 72%, which is below the new requirement. The students that took that bar exam are measurably better than the ones that will be taking the bar in 2017 and 2018.

The ABA’s consumer information disclosures have been around long enough that we can now follow a class from its 1L year through to when it takes the bar exam. In 2011, there were five law schools in the country that had 25th percentile LSAT scores in the low 140’s, as MC now does, and we can see how each performed on the bar exam three years later:

School 25th percentile LSAT (2011) 25th percentile GPA (2011) Passage rate (2014)
Appalachian University Law School 142 2.66 44.1%
Lincoln Memorial School of Law 144 2.7 78.57%
U. of Puerto Rico School of Law 143 3.38 55.56%
Southern University Law Center 143 2.59 55.57%
UMass-Dartmouth School of Law 142 2.85 64.91%
Mean Passage Rate: 59.7%

Last year, Mississippi bar repeat takers passed at a rate of 35%. This number includes MC and Ole Miss classes that were more academically qualified than the MC Law classes that started in 2014 and 2015. Assuming the Class of 2018 follows the average pass rate of these comparable schools, and that every student who fails the bar takes it one more time (in reality, some will give up after the first try and few can afford the $825 exam fee more than twice) and passes at a 35% rate, we get an expected composite two-year pass rate for the MC Class of 2018 of 73.8%. Not good enough.

To prevent law schools from gaming the system by taking more 1L students only to fail them before they can take the bar, the ABA is also expected to amend its rules to impose a 20% maximum attrition rate. When a school exceeds that, there is a rebuttable presumption that the school has made exploitative admissions decisions. MC’s attrition rate is 20.5%. If more risky students come that cannot be removed before they take the bar, MC’s accreditation will be under review 2-3 years from now.

From what Dean Scott says, applications are up this year, but nationally they’re only up about 1% from their lowest numbers since the late 1970’s. Those applications are also coming later in the year, indicating a lack of enthusiasm for law school. Students are demanding bargains, and they’re not bringing the credentials they used to. Top students are unconvinced that any law school would be a good idea even with hefty grants. MC’s median scholarship is almost twice what it was 5 years ago and more students get them, but it hasn’t allowed them to get any more selective. At an 85% acceptance rate, MC approaches a de facto open admissions policy.

With class size almost halved and scholarships up, its not crazy to assume that MC’s revenue will halve. If MC Law’s costs haven’t adjusted, Mississippi College will not go deep into its small $69 million endowment to support it. Without the ability to put a lot more cash on the table, Dean Scott should not expect future classes to look any better than this last one.

MC could shrink the class size yet again, but their riskiest students constitute at least one-third of this last class and maybe as many as half of them. Is it worth staying open with class sizes of 60 or 70? MC will need to provide intensive bar prep classes for students and grads who’ve failed the bar, and maybe even dissuade poor students from taking the bar, hopefully by finding them non-legal jobs. Alternatively, MC could lobby the Supreme Court to make the bar exam easier, like Oklahoma did recently. There aren’t a lot of good choices, but MC has to act now. If there is even a question about losing their accreditation, it’ll scare off the qualified students they need.