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. Supreme Court Reinstates $1.1 Million Jury Verdict

Posted in Mississippi Supreme Court

Last week in a 5-3 split, the Mississippi Supreme Court reversed a trial court JNOV and reinstated a jury verdict of $1,161,000 in Cheeks v. Autozone, Inc. Here is the Court’s opinion.

Here is my 2012 post on the verdict. The original verdict was for $2,580,000 with 55% fault apportioned to the plaintiff.

From my 2012 post:

The plaintiff was hit by a car while walking on a sidewalk in front of an AutoZone store. Plaintiff sued the driver and AutoZone, which argued that it could not be held liable. Here is the trial court’s order denying AutoZone’s motion to dismiss.

It’s my understanding that the plaintiff had $300,000 in medical bills.

The plaintiff settled with the driver before trial.

Justice Randolph wrote the majority opinion joined by Justices Lamar, Kitchens, Chandler and King. The majority reasoned that the verdict was proper because the jury found that AutoZone created an unsafe condition that proximately caused or contributed to plaintiff’s injury.

Chief Justice Waller wrote a dissent joined by Justices Dickinson and Pierce. Justice Coleman did not participate. The dissent believed that the JNOV was proper because the injury was not foreseeable to AutoZone as a matter of law.

My Take:

This decision will get a lot of water cooler talk by Mississippi lawyers who pay attention. The decision is a major blow to defense lawyers and their clients who go to mediation and proclaim that the Mississippi Supreme Court is one-sided and a place where plaintiff verdicts go to die.

However, it’s not all good news for the plaintiffs. Some would argue that the dissent exhibits a willingness by the Court to substitute its opinion for that of the jury on a fact question (foreseeability, in this case).

Decisions like this create uncertainty for litigants. Uncertainty is good because it promotes settlements.

It’s my opinion that civil defendants who think they are guaranteed to win on appeal are extremely foolish. There are no guarantees in litigation. You can always lose.

An opinion like this is a wake-up call for people who don’t share my opinion.

$10.5 Million Jury Verdict in Retrial of Products Liability Case

Posted in Verdicts in Mississippi

I’m hearing reports of a $10.5 million jury verdict in Coahoma County on Friday in Applewhite v. Hyundai Motor America. The case was originally tried in 2008 with a $4.5 million plaintiff verdict.

In 2011 the Mississippi Supreme Court reversed the trial court and remanded the case for a new trial. Here is the Court’s unanimous opinion. The basis for the reversal was plaintiff’s failure to timely supplement expert opinions.

The retrial was last week, with a $10.5 million plaintiff verdict. I do not have the breakdown of damages or know if they will be impacted by the caps. I’ve received little information on the verdict thus far.

Plaintiffs’ counsel included Dennis Sweet, Terris Harris, Ralph Chapman and Dan Czmanske.

My Take:

That’s a thing about appealing plaintiff verdicts. There is no guarantee of a better result on retrial.

Parties Settle in Caps Challenge Case

Posted in Mississippi Supreme Court, Tort Reform

Those legal nerds observers looking forward to the big oral argument Wednesday in the case where the trial judge ruled that Mississippi’s damages caps are unconstitutional will be disappointed with this: the Court cancelled oral arguments. Here is the updated docket calendar. It states that the Court cancelled oral argument on September 16.

On September 17 the parties filed a joint motion to stay the appeal. The motion states that the parties settled.

Here is my 2012 post about Judge Charles Webster’s ruling that the caps are unconstitutional.

My Take:

The caps live to live or die another day. I don’t know when the Mississippi Supreme Court will ever have to weigh in on the caps. But whoever took the ‘over’ won.

The Court heard oral argument on  the issue in 2011 in the Sears v. Learmonth case. Here is my report from that oral argument, which you can probably still watch online. It was not a particularly hot bench for that argument.

A boring oral argument is, well, pretty boring. I had already pegged this oral argument likely to fall in that category and wasn’t even planning to watch it.

And since the caps issue somehow manages to never be decided by the Court, this is unsurprising.

The practical effect is that Mississippi still has caps. Just like it has for the last 10 years for personal injury and 12 years for medical malpractice.

Wow!!! Have we really had caps for half my career?

It was so much funner in the pre-cap days. I’m not far from frequenting watering holes so I can espouse on how things were so much better back in the day.

The Truth Hurts

Posted in Mississippi Court of Appeals

On September 16, 2014 the Mississippi Court of Appeals affirmed the trial court’s dismissal of the Neilson v. Dawson defamation case. Here is the Court’s opinion. Here is a 2011 post on the case.

The case originated from the book Kings of Tort. The book details the investigation of the 2009 judicial bribery scandal. The Northern District U.S. attorney’s office did not trust the local FBI agent (Neilson) and felt it necessary to conduct the investigation without Neilson knowing about it. Feeling defamed, Neilson sued. 

The Defendants moved for summary judgment. Defendants supported their motion with affidavits from Dawson, the former U.S. Attorney and the former Chief of the Criminal Division for the Northern District explaining why they believed that Neilson was not trustworthy.

In response to the motion for summary judgment, Neilson produced no evidence in support of his claim.

A unanimous Court of Appeals affirmed the dismissal because Neilson failed to meet his burden of showing a genuine issue of fact.

Chief Judge Lee wrote the Court’s opinion.

My Take:

I guess this shows that the truth does hurt.

More From the Lawyers Shouldn’t File Stuff Like this Chronicles

Posted in Gulf Oil Spill Litigation

As if getting crushed in the BP Oil Spill litigation wasn’t enough, District Judge Carl Barbier is calling out BP’s lawyers for cheating by sneakily exceeding the Court’s 35-page brief limit. My favorite article on the ruling is from the Christian Science Monitor. From the article:

The BP legal team had tried to reduce the line spacing in a brief to sneak six extra pages in without exceeding the page limit. US District Court Judge Carl Barbier (a double-spacing purist? a stickler for formatting?) was unimpressed.

“Counsel’s tactic would not be appropriate for a college term paper,” Judge Barbier wrote in a ruling Monday. “It certainly is not appropriate here.”

****

“BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced,” Judge Barbier wrote. “As a result, BP exceeded the (already enlarged) page limit by roughly six pages.”

My Take:

I’d love to have a video of the BP lawyers high-fiving when they came up with the crafty ploy to sneak in a few extra pages.

“Hey S. Steven the 3rd, look at this, reducing the spacing to 1.75 gets us an extra six pages.” “Wow, that’s awesome R. Biff! Judge Barbier is sure to buy our aurguments when we overwhelm him with six extra pages of brilliant legal writing.”

“Yea, we’re awesome. That’s why we make the big bucks and work on the 53rd floor of a big city office building. Let’s go tell the other forty-six lawyers in the firm billing on the case how smart we are.”

September Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the verdicts detailed in the September issue of the Mississippi Jury Verdict Reporter:

  • $173,306 bench verdict- Holmes County nursing home case covered here (7/24/14);
  • $80,993 verdict- Harrison County breach of contract case (8/1/14);
  • $43,560 verdict- Madison County timber trespass case (6/25/14);
  • $36,500 verdict- Jackson federal court disability discrimination case covered here (8/15/14)
  • $35,000 defense counterclaim verdict- Coahoma County car wreck case (6/10/14);
  • defense verdict- Jackson federal court premises liability case covered here (8/15/14);
  • defense verdict- Washington County silica products liability case (2/14/14); and
  • defense verdict- Rankin County battery case (doctor groping nurse) (8/4/14).

My Take:

The plaintiffs didn’t bust the bank, but at least they avoided the goose egg in four of the cases.

$500,000 Verdict Against Target in Hinds County Slip-and-Fall Case

Posted in Hinds County Circuit Court, Verdicts in Mississippi

Last week a Hinds County jury rendered a $500,000 verdict in McFarland v. Target Corp. Here is the Verdict Form.

Lesa McFarland alleged that she fell in Target on August 4, 2011 on the See Spot Save dollar aisle. This was a high traffic aisle that was often ransacked with items on the floor because….who doesn’t like the dollar aisle?

McFarland slipped and fell on place-mats that were on the floor. [Sidebar: I need to go check out the dollar place-mats at Target].

Target violated their own safety rules by not using shelf guards in the area to keep the [$1] place-mats from falling on the floor. Even worse, Target “lost” the videotape of the aisle from the time of the fall after documenting in the incident report that the video was secured. [Oops!].

Target blamed the Defendant for falling down and noted that the video cameras on the dollar aisle were fake because video cameras are expensive. [And who would go to the trouble of shoplifting from the dollar aisle?].

The jury awarded $55,000 in past medical expenses, so I assume that was the total amount of medical bills. The total verdict was $490,000 for the plaintiff and $10,000 for her husband on his loss of consortium claim.

Update: I neglected to mention in the original post that the jury apportioned 20% of the fault to the plaintiff, which will reduce the judgement to $400,000.

Rocky Wilkins and Shandra Yates of Jackson represented the Plaintiff. William Reese with Hand Arendall in Mobile represented Target. Judge Winston Kidd presided in the case.

My Take:

Sounds like Target has some good deals on that dollar aisle.

Lawyers Shouldn’t File Stuff Like This

Posted in Mississippi Supreme Court, U.S. District Courts in Mississippi

The Clarion-Ledger broke the story today about the ridiculous lawsuit that Jackson attorney Herbert Lee filed against Hinds County Circuit Judge Jeff Weill and selected justices of the Mississippi Supreme Court.

Here is Lee’s Complaint, which he filed in federal court in Jackson. It’s an odd Complaint. In it, Lee feels compelled to point out that the defendants are all “Caucasian,” while Lee is “African-American.” Supreme Court Justice Leslie King also decided against Lee, but wasn’t named a Defendant.

Lee presumably didn’t sue Justice King because it would damage his narrative of the white judges sticking it to the black lawyer. Back to the race issue in a moment.

Judge Dan Jordan drew the short straw and was assigned the case–not that this case will be hard or take long to decide.

The background is that two former clients sued Lee for improperly withholding part of a Fen Phen mass tort settlement and won. The Mississippi Supreme Court found unanimously against Lee. Twice. Once here in 2010. And again here in 2014.

Lee’s complaint contends that the sued judges violated his due process and equal protection rights because the “Caucasian” Ed Williams won his fee dispute involving mass tort MDL fees. One problem, the prevailing parties in the dispute with Lee were also African-American, a fact omitted from the Complaint.

My Take:

Never in the history of law have so many lawyers been paid so much, for doing so little, as in the Fen Phen litigation. Yet more than ten years down the road, lawyers are still dealing with allegations that they kept even more money than they were entitled to. In other states lawyers have even gone to jail for stealing clients’ Fen Phen money. Amazing.

Here would be some good counsel for Mr. Lee: “it’s not that you’re black. They just don’t like you.”

That was a joke, by the way, for my readers who don’t get my sense of humor.

Seriously, this case is ridiculous. I first got wind of it in August and decided not to blog about it because it looked silly.

You can’t sue a judge who rules against you. They have immunity. The immunity applies even if the plaintiff alleges that the judge’s acts were done maliciously or corruptly. Like in the case discussed in the book The Price of Justice, which I reviewed here.

The A.G., who represents the defendant judges, will file a motion to dismiss in the near future.  The motion will be granted. End of ballgame.

As I’ve written before, losing sucks. When you do lose, it’s pretty easy to start thinking that somehow, the decision was personal against you. But the reality is that the Court just didn’t buy your arguments. It happens.

Every time a Court rules, one side thinks that the Court got it wrong. Every time.

But you don’t get to sue the judges who ruled against you. There is really only one thing you can do. Suck it up. Congratulate the opposing side. Act like a professional. And then head down to the neighborhood bar, have a few drinks and tell everyone how bad you got hosed in court.

After 40 Years, Lawyer Forgets How to Act in Court

Posted in 5th Circuit Court of Appeals

NMissCommentor had this post yesterday about a 5th Circuit oral argument gone bad for Louisiana lawyer Daniel Broussard. Broussard, who says he’s been doing it for forty years, first interrupted Judge Grady Jolly and then proceeded to argue with him:

Judge Jolly: You need to learn how to argue in the Fifth Circuit.

Attorney: [tries to interrupt]

Judge Jolly: That is, you need to learn how to argue in the Fifth Circuit.

Attorney: I know how to argue in the Fifth Circuit. I’ve been doing it for forty years, Judge.

Judge Jolly: Well

Attorney: I clerked for [District] Judge Herbert Christenberry for three years I think I know a little bit about federal courts. Go ahead and tell me, though.

Judge Jolly: No, I’m just telling you that whenever you argue in the Fifth Circuit, you need to listen to the judges instead of interrupting. We’re the ones that decide the case. We ask questions, we like to have answers. We don’t like you to continue to rumble on.. Now, with that said…

Attorney: [interrupting] I appreciate if it is reciprocal. When I’m answering a question, you interrupt me, you don’t let me finish sentences. Is it reciprocal or not?

Judge Jolly: Well, go take a lesson in how to argue in the fifth circuit.

My Take:

To answer your question Mr. Broussard, no, it’s not reciprocal. Judges get to interrupt in the courtroom. Lawyers don’t.

Remember in My Cousin Vinnie when Joe Pesci’s opening statement was “everything that guy just said is bullshit?” Well one of the things that makes that line so funny for lawyers is that there are plenty of times in court when we’d like to stand up and shout that. Alas, we can’t.

Nor can we interrupt the opposing lawyer when it’s her turn to speak. And for the love of God, we can never interrupt the judge. You have to show decorum and respect for the position even when you don’t think things are going your way in the courtroom.

The best thing about the civil justice system is not its ability to ferret out the truth. The best thing about the system is that it is a peaceful and orderly way to resolve often emotionally charged disputes. That starts with acting appropriately in the courtroom.

For lawyers, that means acting like a professional and showing proper respect for the court. No interrupting, no wise cracks, no lashing out if the judge is being a meany. You have to say, “thank you sir, may I have another?” That’s just the way it works.

Surely Mr. Broussard knew that for most of his 40 plus years of practice.

More on Lawyers’ Professional Reputation

Posted in General

Last week in this post, I noted how important a lawyer’s professional reputation is to judges.

In this July blog post, Judge Primeaux noted that there are two types of lawyers to judges:

To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.

That trust is earned over time and subject to forfeiture:

The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.

***

Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.

But as I noted in my post last week, practicing before a judge who trusts you makes life easier:

There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign. 

I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.