Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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On Friday a unanimous Mississippi Supreme Court entered this Order that prevents Governor Barbour from further reducing judicial appropriations as part of budget cuts caused by dismal revenue collections by the State. Since Friday I’ve eagerly awaited the Governor’s response, which came today in a meeting between Governor Barbour and the Clarion-Ledger’s editorial board [who knew they still had one?]:

  "It's not the way I read that statute," Barbour said, "but there's no use appealing it to the Supreme Court, would be my view."

At least the Governor has kept his sense of humor during the budget crisis.

As far as the Supreme Court’s Order, I side with the Court. That should not be surprising, since I work in the judicial arena. If the Governor can cut the judicial branch’s budget what would prevent a Governor deciding that we don’t need the judicial branch and cutting its budget to zero?

And the Court’s Order shows that the Court recognizes the severity of the State’s budget crisis:

….the appellate and trial courts of this state are fully aware of the economic difficulties facing our state and its people.

The Court goes on to state that it has and will continue to do all that it can to reduce expenditures without compromising its constitutional mandate to administer justice fairly and efficiently. The judicial branch cannot do that without adequate funding.

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Unlike the titles to many of my posts, this is not a rhetorical question. I really don't know the answer.

The background is that a couple of weeks ago the U.S. Supreme Court ruled in a 5–4 decision in the Citizens United case that corporations can freely spend money in federal election campaigns. Pandomonium among liberals ensued, with Keith Olbermann nearly stroking out on live TV. But don't worry. If anything happens to Olbermann, Ben Affleck is willing to take over.

Here are links to Citizens United coverage by the Wall Street Journal and NMC. 

Am I wrong that corporations were already finding ways to funnel all the money they wanted into election campaigns? For instance, this article discusses corporations funneling millions of dollars into elections via the U.S. Chamber of Commerce. 

The article states:

The Chamber has a several-pronged approach in its campaign to eviscerate the public's right to take the country's more detested industries to court. One is to funnel major industry money into state election campaigns, especially races involving judges and state Attorneys General.

On September 11, 2001, a most unfortunate day for a major news story to appear, the Wall Street Journal ran an eye-opening article by Jim VandeHei about how some of this country's largest corporations were pouring millions of dollars into the Chamber, allowing companies to hide behind the Chamber's logo while the group did their dirty work.

Last fall, for example, Wal-Mart Stores Inc., DaimlerChrysler AG, Home Depot Inc. and the American Council of Life Insurers all kicked in $1 million each for one of the chamber's special projects: a TV and direct-mail advertising campaign aimed at helping elect business-friendly judges.

Indeed, that year the Chamber raised over $5 million targeting judges in Michigan, Mississippi, Ohio, Indiana and Alabama who had, according to the Journal, "rendered verdicts against one or more of the companies contributing to the effort."  

No wonder secrecy is a hallmark of the U.S. Chamber/ILR's strategy when getting involved in these electoral races. Indeed, the organization sometimes goes to great lengths to keep its involvement and funding a secret.

This leaves me wondering about what will be the practical difference in the new law, if any.

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Wednesday’s Wall Street Journal contains this article about pay-to-play political donations by law firms that specialize in shareholder actions. WSJ’s analysis revealed that leading plaintiff shareholder lawsuit firms donate massive amounts of cash to state officials, apparently leading to the firms getting hired to represent states in shareholder actions against companies whose shares are owned by state pension funds.

Mississippi was not mentioned in the article and none of the law firms mentioned are located in Mississippi.

The WSJ investigation:

found that 25 leading firms, their lawyers and family members contributed a total of more than $21 million in the past decade to state-level candidates and party funds, as well as to national-party groups that work to elect state officials. Less than 40% went to candidates within the law firms' home states.

Some plaintiffs firms defend the donations as legitimate:

Asked why its lawyers gave to a county treasurer in a state not its own, Labaton Sucharow said its "members and their families make perfectly legal political contributions to elected officials and candidates who support shareholder rights."

But other plaintiff lawyers admit that there are places where you have to pay-to-play:

"There are certain places where, to be in the game, you have to donate," said Steven Toll, a partner at Cohen Milstein Sellers & Toll PLLC in Washington. It has contributed only modestly—$62,000 to out-of-state candidates—and Mr. Toll says he is sure its low level of giving has cost the firm business. But "we want to be chosen on merit, not because we contributed money," he said.

Other plaintiff lawyers are afraid to not donate:

Some lawyers say they aren't sure whether contributing helps them get government business, but are afraid not to. Some track how much rivals donate so they don't fall too far behind.

Critics of the pay-to-play culture include some plaintiff lawyers:

Some lawyers say widespread political giving by plaintiffs' law firms, especially outside their home states and near the time when counsel are chosen, is evidence of a corrosive pay-to-play culture in the securities-litigation industry.

"Plaintiffs' lawyers donate because they think it buys them access to people who make decisions over how pension funds select counsel," says Fred Isquith, a partner at Wolf Haldenstein Adler Freeman & Herz LLP, a plaintiffs' firm in New York. Such giving "creates an appearance of complete impropriety," he says, and "should be outlawed."

The American bar Association also does not approve:

The ABA, in giving guidance on ethics, says lawyers shouldn't accept a "government assignment" if they made a political contribution "for the purpose of obtaining or being considered for" such a job.

The incentive to get shareholder cases is high:

In the biggest cases, legal fees can run in the [tens of] millions.

In Mississippi there have been pay-to-play allegations involving lawsuits where the attorney general hires outside counsel to assert claims on behalf of the State.

Do not look for pay-to-play to end anytime soon despite media attention and criticism from the public and bar. As long as any firms can legally make political contributions and then get hired in a big lawsuit, they will do it. Even firms that despise the system will make the donations because they fear that they have to in order to get the cases.  

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Last week the Mississippi Supreme Court issued its newest Daubert opinion in a 7–2 decision in Hill v. Mills. Justice Dickinson wrote for the majority. Justice Chandler wrote a dissent joined by Justice Graves.

The case originated in the Lincoln County Circuit Court with Judge David Strong as the trial judge. Judge Strong is a popular judge, despite his sad allegiance to Ole Miss athletics—a school that he did not attend until law school when he graduated from the famed Class of 1993.

The case was a medical malpractice case following a miscarriage that plaintiffs claimed could have been prevented by the defendant doctor. Plaintiff’s expert witness could not support his opinions with medical literature. In contrast, the defendant offered literature that supported his expert’s opinions.

 The trial court concluded that this made the opinions of plaintiff’s expert unreliable and excluded the expert’s opinions. Since expert testimony was required in the case, the trial court also granted summary judgment.

The Mississippi Supreme Court basically affirmed the trial court. The Court reversed on the grant of summary judgment for plaintiff’s claims that were unrelated to the wrongful death. But that claim was not the focus of the case and the Court’s decision was a big defense win.

The opinion’s key holding was:

We think the better practice is, when an expert (no matter how qualified) renders and opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.

The Court clarified that this does not mean that there is a requirement that an expert’s opinion be supported by peer-reviewed articles.  

I do not take issue with the decision that the expert in the case should not have been allowed to testify. But I do question whether the Court is following Daubert and its progeny in reaching its decisions and in the scope of its rulings. My criticism is similar to my criticism of the Court’s opinion in Vaughn v. Mississippi Baptist Medical Center that I wrote about here.  

The United States Supreme Court discouraged attempts to apply definitive rules to Daubert issues in Kumho Tire Co. v. Carmichael. In that landmark Daubert case the Court stated the following: 

• We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is "flexible," and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.  Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U.S. 136, 143, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997) (courts of  appeals are to apply "abuse of discretion" standard when reviewing district court's reliability determination). Applying these standards, we determine that the District Court's decision in this case -- not to admit certain expert testimony -- was within its discretion and therefore lawful.
• Our emphasis on the word "may" thus reflects Daubert's description of the Rule 702 inquiry as "a flexible one." 509 U.S. at 594. Daubert makes clear that the factors it mentions do not constitute a "definitive checklist or test." 509 U.S. at 593. And Daubert adds that the gatekeeping inquiry must be "'tied to the facts'" of a particular "case." 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985)). We agree with the Solicitor General that "the factors identified in Daubert may or may not be pertinent in assessing reliability, depending  on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Brief for United States as Amicus Curiae 19. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue. [emphasis added].
• Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged. It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist. Nor, on the other hand, does the presence of Daubert's general acceptance factor help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.
• We do not believe that Rule 702 creates a schematism that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases that it generates are too complex to warrant so definitive a match. [emphasis added].
•  Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
• Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it "reviews a trial court's decision to admit or exclude expert testimony."

In Kumho Tire the Court ruled that the district court did not abuse its discretion by excluding the expert’s opinions in the case. In doing so, it refused to adopt definitive rules to apply to specific types of experts and cases. Daubert and Kumho Tire speak in terms of the trial court’s flexibility in determining whether experts should be allowed to testify.

The Mississippi Supreme Court is not properly emphasizing this flexibility in its opinions and is instead adopting the types of definitive rules that Kumho Tire frowned upon.

In Vaughn, the Court took a Daubert case and made a hard-and-fast rule that nurses cannot testify as to medical causation. In Hill v. Mills, the Court created another definitive rule requiring evidence to respond to a challenge to an expert’s opinions in all cases where a challenge is made, regardless of the circumstances. With all due respect for the Court, adopting definitive rules rather than limiting its ruling to a determination of whether the trial court abused its discretion in making a Daubert ruling is inconsistent with Kumho Tire.

Will Bardwell seemed to come to a similar conclusion in his blog:

Regardless of whether you think the Mississippi Supreme Court's treatment of Miss. Rule of Evidence 702 in Thursday's Hill v. Mills decision was correct, one can't help but conclude that it places a big, big land mine in front of trial litigants.

This is a case with bad facts, but fundamentally, my problem with the decision is that it wades (if not swims neck-deep) into the merits of the expert's opinion. Clearly he was inadequately prepared for the oncoming attack toward his conclusion. But if, as Justice Chandler argues in dissent, an expert is adequately qualified and offers an opinion based on the experience warranting that qualification, then the question of whether he's a quack is a question that should be left to the jury.

More fundamentally, though, the case seems to introduce what Justice Chandler calls a "burden-shifting scheme upon Daubert's reliability prong." And that's the biggest problem with this ruling. As a matter of law, Rule 702 doesn't (or, at least, it didn't) impose on courts the duty to weigh conflicting testimony and to decide whether one witness' testimony invalidates another's. That's a basic jury duty.

My problem with the opinion is that the Court appears to emphasize the result more than how the trial court reached its decision.

In Vaughn, the Court could have struck the expert without creating a rule that nurses can never testify about medical causation. In Hill, the Court could have found that the trial court did not abuse its discretion in striking the expert’s opinions under the facts and circumstances of the case, without creating a rule that requires in all circumstances the expert to have evidentiary support of his opinions.

But the Court went beyond that and issued definitive rules to apply to Daubert issues. This appears contrary to the rulings of the U.S. Supreme Court, which ruled that Daubert does not lend itself to definitive rules.

Daubert determinations are fact specific and case specific. The trial court should have flexibility and considerable leeway in making Daubert determinations. Courts of appeals should then review the trial court’s findings under an abuse of discretion standard. Appellate courts should not take each new Daubert case as an opportunity to create another definitive rule to apply to a growing list of definitive Daubert rules.

But that is not the approach that the Mississippi Supreme Court appears to be taking.

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The Clarion-Ledger ran this article on Monday about the upcoming elections to fill the seats of retiring Judge Yerger (Hinds County Circuit) and Barnett (Hinds County County). The article was largely a repeat from an October article that quoted Ashley Ogden and Jeff Weill stating that they would probably run for Judge Yerger’s seat. I wrote about and Ogden v. Weill race here.

On the County Court side, Jackson attorneys Trent Walker and Melvin Priester have qualified for Judge Barnett’s seat. Walker is a Brandon native and Jackson State graduate who lives in South Jackson. He has extensive experience on both the plaintiff and defense side in civil litigation as well as in the criminal defense arena. He recently obtained an acquittal in a murder trial in North Mississippi that sounded a little like the trial in My Cousin Vinnie. He currently works for Schwartz and Associates in Jackson.

Priester is a special circuit court judge and practices law in Jackson.

The Ledger article does not identify the date of the election or the deadline for qualifying for the races. I believe—and I am not certain about this—that the qualifying deadline is in May and the non-partisan elections are in November.

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Why is it that advertising plaintiff lawyers like to be the hammer? Consider this commercial for the Texas Hammer: 

Which led to some kid making this hillarious parody: 

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Plaintiff’s attorneys are seeking an $8.3 million attorney’s fee following a $40 million settlement between Microsoft and the State of Mississippi stemming from allegations that Microsoft monopolized the personal computer market in Mississippi. Here is a copy of the Petition to Approve Fees. The amount of the attorney's fee must be approved by the trial court in the case.

Plaintiff’s counsel who stand to benefit in the case are Brent Hazzard of Jackson, Susman Godfrey of Houston, Boies Schiller of New York, Precious Martin of Jackson, John Gadow of Jackson and Richard Schwartz of Jackson.

The Petition states that the requested fee represents 7.5% of the total gross settlement. According to the Petition, Plaintiff’s counsel paid over $1.7 million in out-of-pocket expenses over the course of the litigation and expended millions of dollars worth of attorney time in the case. Mississippi State Auditor Stacey Pickering filed an objection to the fee claiming that a special legislative appropriation is required to pay Plaintiff’s counsel the fee specified in their contract with Attorney General Hood.

The dispute seems to be political. A 7.5% contingency fee is not a big fee. Mississippi Republicans have been critical of A.G. actions going back to the days of Governor Fordice trying to stop the tobacco litigation asserted by Attorney General Mike Moore. It would be interesting to see what would happen if a Republican became Attorney General. Would Republicans continue to criticize the A.G. hiring outside counsel to represent the State? Or would the criticism end and the only real difference be the political affiliation of the outside lawyers being hired by the A.G. to represent the State?    

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In a 6–3 decision the Mississippi Supreme Court held in Bloodgood v. Leatherwood that service of process by mail under Miss. R. Civ. P. 4(c)(5) is not effective when the Postal Service returned the mailing marked “Unclaimed/Refused.” Justice Dickinson wrote the majority opinion.

Miss. R. Civ. P. 4(c)(5) allows service of process by certified mail on persons outside the State. The rule states that: “[s]ervice by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked ‘Refused’.” The opinion states that the U.S. Postal Service no longer specifies whether mail was unclaimed or refused and now uses the singular designation “Unclaimed/ Refused”. The majority reasoned that unclaimed and refused have different meanings and that the joint designation renders  impossible a determination of whether a mailing was refused or unclaimed. The Court relied on a U.S. Supreme Court case that held that a mailing returned as unclaimed failed to satisfy due process requirements.

The Court ruled that the trial court improperly found that the defendant was properly served, but remanded the case for a determination of whether the plaintiff could show good cause for the failure to serve process within 120 days.

Justice Graves dissented and was joined by Chief Justice Waller and Justice Kitchens. The dissent argued that service of process complied with Rule 4(c)(5) because:

1. the mailing was returned with the marking “Unclaimed Refused”;
2. the Postal Service attempted to deliver the mailing to the correct address;
3. the Postal Service attempted delivery three times;
4. the addressee received notice of each of the three attempted deliveries; and
5. the defendant was aware of the Complaint, since she filed an Answer.

Both the majority and dissenting opinions are logical and have a point. Hopefully, the Supreme Court will recognize that the Postal Service “Unclaimed/ Refused” designation plays havoc with the language of Rule 4(c)(5). The Court should amend the rule to account for the new designation. The provision deeming service as effective when a mailing is returned as “refused” is meaningless if the Postal Service now stamps everything that is either unclaimed or refused as “Unclaimed/ Refused.”

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As Jeffrey Toobin asks where the judges are, this Houston Chronicle article from last week confirms that President Obama is dragging his feet at filling judicial vacancies and nominating U.S. Attorneys.

The stats tell the story. By this point in their administrations Presidents Clinton and W. Bush had nominated 75 and 66 U.S. Attorneys respectively. Obama has nominated only 42.Of the 42 that have been nominated, 31 have been confirmed.

The article notes that the failure to fill the slots has negative consequences:

“There's no real boss. It means what will be done is the routine. You need a guy who can move the team, and he has to be on the president's team,”

In Mississippi there have been no rumblings of political fights with respect to the vacant U.S. Attorney positions or the vacant U.S. District Court position and 5^th Circuit Court of Appeals position. Blaming Republicans for the slow pace at filling slots rings hallow when the administrations is going so slowly at making nominations and 75% of those nominated have been confirmed.

Like Mississippi, Texas has all its U.S. Attorney slots still open. The Chronicle article suggests that political fighting is the cause:

A classic political stalemate pitting Texas' Democratic congressional delegation and Obama's administration against Texas' pair of Republican senators is partly to blame for the slowed process here. Similar fights in other states, as well as an especially cautious presidential nominating process, have left most of the nation without freshly appointed lead federal prosecutors, who direct law enforcement priorities and approve work on the big projects.

People understand that the administration has been busy with the health care bill, the wars, the terrorist attack, etc.. But the White House has to be able to multi-task and get things done. If President Obama continues to delay in making nominations, then there will be a growing risk that Republicans can stall long enough to prevent Obama from filling all the vacancies that he inherited or came open in his first year. To Democrats, that would be unconscionable.

Adding to the frustration level for Democrats is that the President could fix the problem on his end in a matter of weeks. He could set a meeting date a few weeks out when Obama and his advisors would review the candidates for each vacancy and the President would make a decision. If the President does not have people working for him who can meet such a deadline, particularly after this long already, then he needs a better staff.

Democrats are frustrated. Republicans are giggling behind the President’s back and the President is starting to look like the Cowardly Lion and a possible one term president. That all needs to change in a hurry.