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

Another Hinds County Nursing Home Trial — Another Defense Verdict

Posted in Hinds County Circuit Court, Verdicts in Mississippi

As discussed here, two weeks ago a Hinds County jury in Judge Winston Kidd’s courtroom rendered a defense verdict in a nursing home / medical malpractice case.

Last week, there was a another trial of a nursing home case in Hinds County, this one in Judge Tommie Green’s courtroom. The result was another defense verdict.

I do not know the facts of the case– look for coverage in an upcoming issue of the Mississippi Jury Verdict Reporter. Like the prior week, the attorneys were from Morgan and Morgan on the plaintiff side and Baker Donelson on the defense side.

That’s all I’ve got on this one.

$148,566 Jury Verdict in Monroe County Breach of Employment Contract Case

Posted in Verdicts in Mississippi

On September 30, 2015 a Monroe County jury rendered a verdict of $148,566 in Cooper v. Pioneer Health Services. The verdict was the result of a three day trial.

The plaintiff (Lisa Cooper Elgin) was a former nurse practitioner at Pioneer Hospital in Abderdeen. The jury found that Pioneer breached its employment contract with the plaintiff, failed to pay her for accrued paid time off and fired her because she reported abuse of an elderly patient in the hospital’s senior care unit.

Plaintiff’s attorneys were Jim Waide and Rachel Pierce Waide of Waide & Associates in Tupelo.

J. Tucker Mitchell and Stephen D. Stamboulieh of Mitchell Day in Ridgeland represented Pioneer.

Circuit Judge Jim Pounds presided in the case.

Defense Verdict in Hinds County Nursing Home/ Med Mal Case

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Friday a Hinds County jury rendered a defense verdict in a case against Lakeland Nursing and Rehabilitation Center and Dr. David Flemming. Here is the jury’s verdict.

I watched the trial for several hours Friday morning while the nursing home was putting on its case.

The case involved a 79-year-old woman who died two days after entering the nursing home for post-surgery rehabilitation after an ankle injury. The decedent was found dead in her room at the nursing home in the middle of the night. The plaintiff sued the nursing home, related entities, Dr. Flemming and River Oaks Hospital.

Dr. Flemming managed the patient’s hospital care before discharge to the nursing home. River Oaks was not at the trial. Given what I saw, I’m pretty sure they did not settle before trial. Either the plaintiff let them out or they got out on summary judgment.

The plaintiff originally alleged that the decedent died from an over-dose of Darvocet based on the autopsy toxicology report. When confronted with the clinical records of medication administration, however, Dr. Steven Hayne amended the autopsy result because the decedent was not given enough Darvocet to cause the blood levels in the toxicology report. Dr. Hayne also noted that they fired that the lab company due to inaccurate reports. The new cause of death was cardiovascular disease.

The plaintiff then switched courses and alleged that the nursing home caused dehydration and should have sent the decedent back to the hospital due to low blood pressure. But the decedent’s blood pressure was the same as when she entered the facility and in the hospital.

I’m not sure what the plaintiff’s theory against the physician was.

Dr. Kathy Gregg was the nursing home’s physician expert. They also had a nurse expert, but I don’t remember her name.

The jury consisted of eleven black people and one white person.

Brad Smith and La’Verne Edney with Baker Donelson represented the nursing home. Stephen Kruger with Page Kruger and Holland represented Dr. Flemming. Wes Fulgham with Morgan and Morgan represented the plaintiff.

Judge Winston Kidd presided in the case.

My Take:

The plaintiffs’ case fell apart when the toxicology report went south. They probably should have gone to the house. They could have even sued the lab company for making the family think that the medical providers killed their mother.

A good nursing home case usually involves long-term neglect. This lady wasn’t in the nursing home long enough to build a credible neglect case. As for the doctor, I still have no idea why he was sued. I get River Oaks–they would have given the Darvocet that ended up not being given.

This is yet another example of the fact that Hinds County juries render defense verdicts when plaintiffs fail to prove their cases. People often confuse the fact that Hinds County jurors do not have a pro-defendant bias as meaning that the jurors are pro-plaintiff. It’s an incorrect conclusion. Amazingly, there are still some lawyers who do not know better.

My focus group studies show that plaintiffs and defendants are on equal footing in Hinds County. This conclusion is backed up by many defense verdicts in the county.

$3.1 Million Attorney’s Fees Award in Bruister’s Millions ERISA Case

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

Last month I wrote here about a $6.5 million federal court bench verdict in an ERISA breach of fiduciary duty case.

On Tuesday, U.S. District Judge Dan Jordan entered this Order awarding the plaintiffs $2,700,459.25 in attorneys fees and $416,052 in expenses. That raises the plaintiffs’ total judgment in the case to almost $10 million.

Included as an exhibit in the briefing on the motion was this 2013 National Law Journal billing survey for large law firms. There are some firms with Mississippi offices on the list.

There are some east coast firms on the list with average partner billing rates of over $1,000 per hour. For the firms with a presence in Mississippi, the average partner hourly rate is in the $400 per hour range. I would put the Mississippi lawyers from the $400 per hour firms up against the $1,000 per hour East Coast lawyers any day of the week.

Total Number of Mississippi Lawyers Stagnates

Posted in General, Politics in Mississippi, Tort Reform

This WSJ law blog article led me to this ABA chart tracking state attorney populations on both a current and historical basis.

According to the report, Mississippi has 7,059 attorneys. That’s up 8.6% from the 6,500 we had in 2005, but down from the 2007 peak of 7,312.

States with the most growth in attorneys are growth states with vibrant economies:

  • Arizona- 30.6%
  • Florida- 53.3%
  • Georgia- 25.7%
  • North Carolina- 33.7%
  • North Dakota- 27.9%
  • Pennsylvania- 27.4%
  • Tennessee- 27.8%
  • Utah- 46.1%
  • Texas- 24.6% (over 86,000 lawyers total)
  • Wyoming- 27.6% (less than 2,000 lawyers total)

To fully appreciate what this means for the legal industry in Mississippi, check out some of my prior posts about civil action filings here and here. The short version is that in 2015 we need a lot less lawyers in Mississippi than we did in 2005, yet have 8.6% more.

And the revenue pie is much smaller than it was 10 years ago. In this 2014 post I speculated that litigation revenue in Mississippi is down 80% from the peak. I still think that’s a good estimate.

The bottom line is that we have way too many lawyers in Mississippi for all of us to make a good living. We could probably lose 2,000 attorneys in the state and no one would notice.

What would be good for Mississippi attorneys is the same thing that would be good for all Mississippians: economic development. Unfortunately, we are led by crony capitalists who think an economic development plan is giving money to strip mall developers. We need a long term plan. Not ad hoc tax breaks that wreak of cronyism.

Headline on ‘Ambulance-Chasing Lawyers’ Misses the Mark

Posted in General

Here’s the headline from an article that was on my Zite feed last week: Google’s most expensive search keywords are for ambulance-chasing lawyers. The article goes on to explain how legal related keywords are the most expensive on Google pay-per-click. For instance, ‘San Antonio car wreck attorney’ costs $670.44.

Although it’s an attention grabbing headline, it’s wrong. The lawyers paying for pay-per-click advertising on Google are advertising–not chasing ambulances. Some people might think it’s all the same, but it’s not. ambulace chasing

‘Ambulance chasing’ is sometimes called ‘running cases’ or ‘case running.’ It’s different from advertising. Running cases is targeted solicitation. Sometimes it’s the lawyer running the case. More often, someone else is running the case for the lawyer. Within the plaintiff bar, there is a general belief that the majority of high value personal injury cases are ‘run.’

Sometimes an ‘investigator’ shows up at the hospital or someone’s house and directs a case to a particular lawyer. An extremely common complaint among lawyers is that they knew a family with a potentially big personal injury case, but some other lawyer came in and ‘ran’ the case within days of the accident.

Who is involved in running cases? The most common profession that I hear about is funeral home directors.  I’ve also heard speculation that first responders, nurses and tow truck drivers sometimes provide information to attorneys or their runners to assist in running cases. There are also reportedly freelance case runners who run cases and direct them to the highest bidder.

A lot of money can be made in running cases. I’m talking six figures for the biggest cases.

Advertisers–on the other hand–are trying to get the potential client to reach out to them. Advertisers are trying to compete with case runners.

A pay-per-click means that you pay the amount when someone clicks on your ad. They do not have to end up contacting you, much less hire you. So if car wreck click is worth $670, imagine how much running a big case could be worth.

The fact that lawyers feel compelled to run cases and/or spend hundreds of dollars for a Google click says something about the competitiveness within the legal profession for business. I doubt anyone went to law school planning to advertise or run cases. But it’s the world they find themselves in.

On the plus side, the below-the-surface aspects of the profession make for some great John Grisham novels.

September Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the September issue of the Miss. Jury Verdict Reporter:

  • $936,950 jury verdict- Jackson federal court breach of settlement agreement case covered here (9/1/15);
  • $460,000 jury verdict- Gulfport federal court breach of insurance contract case (9/11/15);
  • $12,965 jury verdict- Harrison county car wreck case / plaintiff had $18,598 in medical bills (8/12/15);
  • defense verdict- Washington County medical malpractice case (8/28/15);
  • defense verdict- Rankin County medical malpractice case (9/3/15);
  • defense verdict- Jackson federal court employment discrimination case (8/13/15); and
  • defense verdict- Harrison County breach of non-compete agreement case (8/19/15).

My Take:

Keep telling me plaintiffs are better off in state court. Defense lawyers never tell me in federal court that if you get a verdict, it will get reversed on appeal.

Hats off to the lawyers who told me seven years ago that federal court was where plaintiffs needed to be. You know who you are.

Former Jackson County Sheriff Loses $260,000 Verdict For Hitting on Deputy

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

A Gulfport federal court jury rendered a $260,000 verdict last week against former Jackson County Sheriff Mike Byrd. Here is the Sun Herald’s article on the verdict. Here is the Complaint.

The plaintiff also sued Jackson County, which prevailed in the lawsuit. As for Byrd’s conduct, the Sun Herald reports:

Seibert said she had been in the public affairs job for just two months when Byrd tried to influence a judge in a child-custody case involving Seibert’s daughter. She said Byrd met “behind closed doors” with the judge in the case and then told her she was “his baby.”

In addition, Seibert said Byrd ordered meetings with her behind closed doors, during which he touched her inappropriately and asked her at one point to meet him at a hunting camp to have sex.

On another occasion, she said, Byrd stood so close to her she could smell his breath and told her, “You know you want to kiss me.”

In other instances, Seibert said Byrd grabbed her buttocks, rubbed his hand up her leg and said at one point he wanted to “taste” her.

On another occasion, she said, Byrd told her he loved her and wanted her and gave her a gold necklace to show he was “serious” about her. Seibert turned the necklace over the Jackson County District Attorney’s Office.

Seibert said Byrd also started making threats to move her to another job if she continued to refuse his advances, saying she should be “loyal” to him and threatened that if she left the department, “he would ruin her career and give her a bad recommendation.”

Byrd resigned in 2013 after kicking a man in the nuts and then ordering the destruction of a video of the attack.

Here is the jury verdict.

The jury found for the plaintiff on the intentional infliction of emotional distress claim, but for the defendants on the sexual harassment claim. That results in a a verdict against Byrd, but not Jackson County.

Monte Tynes and Keith Miller of Pascagoula represented the plaintiff.Harry Mullen of Pascagoula represented Byrd. Paula Yancey and Ryan Frederic of Pascagoula represented Jackson County.

District Judge Keith Starrett presided in the case.

My Take:

Is Jackson County the big winner in this case?

This verdict may not be great news for the plaintiff. A verdict against the county would be easier to collect. A verdict for sexual harassment would open the door for an award of attorney’s fees.

What was the jury thinking? How was that not sexual harassment? A boss playing grab-ass and demanding that an employee meet him for sex is not sexual harassment? Good lord!

Byrd is a blight on the record of all the crooked sheriffs on the Coast who preceded him. What ever happened to gentlemen crooked sheriffs like Leroy Hobbs?

Bruister’s Millions

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

Jackson Jambalaya reported last year on a $6.5 million verdict in an ERISA breach of fiduciary duty case. The case was tried in federal court in Jackson. JJ’s post included Judge Dan Jordan’s 84 page opinion that followed a 19 day bench trial.

My Take:

I don’t remember hearing much about this verdict at the time. But holly cow! A 19 day bench trial equates to something like a two month jury trial. Sounds like all the lawyers made a killing.

And now, let’s dive into the opinion:

ERISA, ESOT, ESOP…..zzzzzzzz. man sleeping

It’s actually seems kind of interesting. A California lawyer somehow finagled his way into being both lead counsel and a material trial witness–for the losing side. (p. 31). Oops.

$900,000 Punitive Damages Verdict in Jackson Federal Court Breach of Contract Case

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

Last Wednesday a federal court jury in Jackson rendered a punitive damages verdict of $900,000 in KLLM Transport Services, LLC v. JBS Carriers, Inc. Here is the punitive verdict.

This was in addition to the compensatory verdict of $36,950. Here is the compensatory verdict. The jury determined that JBS breached the duty of good faith and fair dealing.

The trial was of a lawsuit filed in 2012. Here is the Complaint. The complaint alleged that JBS breached a 2010 settlement agreement of a suit where KLLM alleged that JBS was responsible for two former KLLM employees violating their non-compete agreements with KLLM. The specific breach at issue was JBS’ promise that it would not cancel a hauling contract with KLLM.

It was a hotly contested case. There are now over 220 ECF docket entries.

KLLM’s counsel included Stephen Kennedy, Cable Frost, Brad Moody and Michael Bernier with Baker Donelson in Jackson.

JBS’s counsel included Brian Eberle of Denver and Lyle Robinson of Ridgeland.

District Judge Henry Wingate presided in the case.