Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

Hoopla Over 53% Bar Passage Rate

Posted in Law School

There was a front page article yesterday in the Clarion-Ledger about the 53% passage rate in Mississippi for the July Bar Exam. It opens:

Entering the legal profession in Mississippi is once again proving difficult for those seeking to become a licensed attorney.

The July Mississippi bar exam results released last week showed about 53 percent of the 172 who took the exam passed.

Passage rates are dropping as smart students decide against law school.

Above the Law covered the State’s passage rate in a snarky post here, saying Mississippi’s Bar Exam results “suck.” From ATL:

The results from Mississippi’s July 2017 administration of the bar exam were released yesterday, revealing that only 53 percent of all test-takers passed. That’s an 18 percentage point drop from the July 2016 exam, and a staggering 27 percentage point drop from the July 2013 exam. Something is wrong here.

ATL blames the low passage rates on declining admission standards and dismisses the suggestion that students from out of state law schools are failing the exam:

Some have speculated students from out of state attending law schools in Mississippi may be leading to lower passage rates.

Apparently Mississippi law school graduates who aren’t Mississippi locals are causing lower passage rates on the Mississippi bar exam. That’s a new one we’ve never heard before, and the logic it took to get there may explain why the passage rates on the Mississippi bar exam have sunk to historic lows.

For context, Ole Law School Dean Susan Duncan wrote about the issue here.

31 of 41 (75.6%) first time takers from Ole Miss Law passed the exam. Duncan’s explanation points out that repeat takers of the Bar Exam fail by a 2-1 margin. Duncan’s stats also peg Mississippi’s passage rate at 55.9%.

Ole Miss has reduced its class sizes and denies declining admission standards.

Also, according to this 2013 Witnesseth Blog Post, Mississippi’s Bar exam does not rank among the nations easiest to pass. It ranked 20th hardest.

The Clarion-Ledger article notes that the national average was 58% in 2016.

My Take:

I have trouble getting worked up over this issue.

There aren’t enough jobs waiting for the 53% who passed. No one will need a bar card to yell “Welcome to Moe’s” every time someone walks in the restaurant.

The sad fact is that we still have an over-supply of lawyers in Mississippi. That’s the reality that the people who do pass face on day 1.

As for the exam results, the main problem is that repeat exam takers keep failing. Some people try for years and never pass.

As fewer people take the exam, the people who keep taking it and failing have a disproportionate statistical impact on the passage rate.

Should the Mississippi Board of Bar Admissions pass more people to make the numbers better? No.

Should Mississippi go back to the days where state law school graduates don’t even have to take the exam? God no.

It’s easy to write about Bar Exam passage rates. But the bigger and more important stories are the job market for attorneys, fact that many talented attorneys are leaving the state for better opportunities and the mental health of attorneys.

PERS in a Death Spiral?

Posted in PERS Crisis

This John Mauldin article posted on Zero Hedge is scary for PERS participants and taxpayers. Although I recommend the entire piece, here are some key observations:

Today we will zero in on one of those forces, which last week I called “the bubble in government promises,” which I think is arguably the biggest bubble in human history. Elected officials at all levels have promised workers they will receive pension benefits without taking the hard steps necessary to deliver on those promises. This situation will end badly and hurt many people…

public pension liabilities don’t come out of nowhere the way hurricanes seem to – we know exactly where they will strike. In many cases, we know approximately when they’ll strike, too. Yet we still let our elected officials make impossible-to-fulfill promises on our behalf…

Cities and states don’t have the ability to shed their pension liabilities. They are stuck with them, even as population and property values change…

Total unfunded liabilities in state and local pensions have roughly quintupled in the last decade….

Now, here is the truth about pension liabilities. Let’s assume you have $1 billion in funding today. If you assume a 7% compound return – about the average for most pension funds – then that means in 30 years that $1 million will have grown to $8 billion (approximately). Now, what if it’s a 4% return? Using the Rule of 72, the $1 billion grows to around $3.5 billion, or less than half the future assets in 30 years if you assume 7%….

Remember that every dollar that is not funded today means that somewhere between four dollars and eight dollars will not be there in 30 years when somebody who is on a pension is expecting to get it. Worse, without proper funding, as the fund starts going negative, the funding ratio actually gets worse, sending it into a death spiral….

I have had meetings with trustees of various government pensions. Many of them want to assume a more realistic discount rate, but the politicians in their state literally refuse to allow them to assume a reasonable discount rate, because owning up to reality would require them to increase their current pension funding dramatically. So they kick the can down the road.

Intentionally or not, state and local officials all over the US made pension promises that future officials can’t possibly keep. Many will be out of office when the bill comes due, protected from liability by sovereign immunity…

The pension problem is going to get worse as more and more retirees get stuck with broken promises, and as taxpayers get handed higher and higher bills.

My Take:

Mississippi needs real leadership on the PERS crisis. No more kicking the can down the road.

Defense Verdict in Grenada County Medical Malpractice Trial

Posted in Verdicts in Mississippi

On August 18, 2017 a Grenada County jury returned a defense verdict in Estate of Angle v. Wade.

Plaintiffs alleged the wrongful death of Merle Angle. Mr. Angle presented to the emergency room in November 2012 with significant angioedema (swelling of tongue). It progressed over the next half hour to the point of a lost airway. Plaintiff alleged that the ER physician (Dr. Wade) did not timely perform a crychothyroidotomy, which is a procedure similar to a tracheotomy. Plaintiffs argued that Dr. Wade should have performed this procedure because intubation was not feasible.

Plaintiffs proved $400,000 in economic damages. Plaintiffs requested $750,000 in non-economic damages.

The jury voted 11-1 for Dr. Wade and returned a defense verdict.

Devo Lancaster and Ryan Taylor of Winona represented Plaintiffs. Mike Coleman and Jacob Malatesta of Hagwood Adelman Tipton in Jackson represented Dr. Wade.

August Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the August 2017 issue of the Miss. Jury Verdict Reporter:

  • $600,000 verdict- Clay County bad faith case covered here (7/22/17);
  • $188,622 bench verdict- Pearl River County breach of contract case (4/25/17);
  • $77,359 verdict (minus 50% fault to plaintiff)- Hinds County County Court pawn shop mishap case (6/21/17);
  • $50,000 verdict- Hinds County County Court car wreck case (4/20/17);
  • $5,000 verdict- Aberdeen federal court wrongful arrest case w/ pro se plaintiff (7/20/17);
  • defense verdict- Lafayette County medical malpractice case (8/3/17); and
  • directed verdict- Hinds County medical malpractice case (7/18/17).

My Take:

A $5,000 verdict by a pro se plaintiff (represented himself) might be a state record.

That dude now has more dollars in verdicts than half the plaintiff lawyers in Mississippi. [Disclaimer: that’s a joke].

Time for State and PERS Board to Address PERS Crisis

Posted in PERS Crisis

Jeff Amy with the Associated Press had this article Sunday about an outside expert recommending PERS to change its fairy tail underlying assumptions. The recommended changes would affect the underlying investment return assumption that I’ve been harping on for years. Here is the article.

From the article:

The system assumes that inflation will run at 3 percent each year, and that it will earn 4.75 percent above that on its investments, for a total return of 7.75 percent. GRS, though, says that inflation assumption is too high, and says the board should consider planning around a rate of 2 percent to 2.5 percent….

The recommendation comes at a time when the pension fund is already facing the possibility of mandating higher contributions. Projections presented last year showed that, even with the current assumptions, PERS would only be 63 percent funded in 2042. The current funding policy calls for being 80 percent funded by that year, and for mandating higher contributions if that projected level falls below 80 percent for two years in a row. The updated projections will be presented later this year, and the system will be aided by a 15 percent gain in the year ended June 30.

The recommended change leave a disastrous 54% funding level.

The expert recommended that the PERS board change the system now. But outgoing PERS Direct Pat Robertson wants to keep ignoring the problem:

GRS urged the system’s board to make changes quickly, but outgoing Executive Director Pat Robertson says the board needs to consult its regular actuaries.

Changes need to be made “in a deliberative fashion and not in a reactionary fashion,” Robertson said. “We are not in the funded status we need to be, I’ve said that before, but we have $27 billion on hand to help us get there.”

Robertson is in left field. Making changes would not be reactionary. PERS’s problems have been well known since at least Governor Barbour’s administration. My first blog post on the fairy tail investment assumption that GRS is talking about was six years ago. Others were writing about PERS’ problems before me.

If making the needed changes would be reactionary, it’s only because Robertson and the Board have ignored the problems for years. Enough already.

I’m questioning whether Robertson understands the problem. Her continued statements like “we have $27 billion on hand to help us get there” are misleading. The whole problem is that PERS will not be able to pay all its bills when they come due. That it has enough money to pay some bills isn’t a solution. It’s not even a legitimate response to questions about the problem.

Having air in 3 tires doesn’t help if 1 tire is flat. Being about to pay most of your bills at the end of the month will not help when you can’t pay them all. Not having enough money to pay retirees all their benefits is a big deal.

PERS being substantially underfunded is a big deal. It’s long past time to address the problems.

$83,447 Verdict in Oxford Federal Court Retaliation Trial

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

On Wednesday a federal court jury in Oxford rendered a plaintiff verdict of $83,447.08 in Griggs v. Chickasaw County. Here is the resulting Judgment.

The plaintiff Lamon Griggs was a Chickasaw County bailiff and solid waste enforcement officer who ran for Sheriff against long-time chief deputy and current Sheriff James Meyers. Griggs lost. Meyers took office and fired Griggs to settle the score.

The jury determined that the firing was wrongful and awarded Griggs $83,447.

Jimmie Gates has a good article in the Clarion-Ledger with more info. on the verdict.

Jim Waide and Rachel Pierce Waide of Waide & Associates in Tupelo represented the plaintiff.

Defense attorneys were Daniel Griffith and Jamie Ferguson Jacks of Jacks Griffith Luciano, P.A. in Cleveland and Gary Carnathan of Tupelo.

District Judge Sharion Aycock presided.

My Take:

A typical small-town political play goes bad. There are more sophisticated ways to deal with political enemies.

Defense Verdict in Hinds County Tort Claims Act Medical Malpractice Trial

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Friday Hinds County Senior Judge Tomie Green rendered a defense verdict in Nickerson v. Univ. of Miss. Medical Center. Here is the Court’s Memorandum Opinion and Order.

The decision was from a 2016 trial of a medical malpractice case against UMMC that Plaintiff filed in 2004.

The case involved the 2003 death of a newborn. Prior to birth the baby was diagnosed with an often deadly heart abnormality (trisuspid artresia). At birth the baby also had pulmonary hypoplasia and several other problems.

The Court determined:

a preponderance of the evidence weighs heavily in favor of this Court’s finding that Dillion Nickerson was very ill at birth, both as to two main organs necessary to sustain his life… Dillion’s pulmonary hypoplasia was the most medically probably cause of Dillion’s death, rather than his cardiac problem…

The Court concluded that plaintiff failed to prove a breach in the standard of care or proximate cause.

John Holiday represented the plaintiff. Mike Coleman and Jacob Malatesta of Hagwood Adelman Tipton in Jackson represented UMMC.

My Take:

The case is so old that electronic filing didn’t exist for most of its existence. I can’t tell from the docket what took it so long to get to trial.

But my guess is the facts. Plaintiff lawyers tend to not push cases they aren’t enthusiastic about.

Update: Based on the comments from attorneys involved in the case, my inclination that the plaintiff’s attorney did not push the case was wrong. By all accounts, he couldn’t get the case set.

Delays in getting cases to trial in state court are as big a problem as ever even though there are fewer pending cases. I don’t get it.

Lengthy delays in resolving cases like what happened in this case are horrible. The Mississippi Supreme Court should amend the Rules of Civil Procedure to require scheduling orders with trial settings like in the federal system. That system is time tested and works. I may talk more about this issue later in a separate post.

Random Thoughts After the Latest Baby Powder Talc Verdict

Posted in General

It was another win for the plaintiffs yesterday in the Mississippi-born Johnson & Johnson baby powder talc litigation. The latest verdict was $417 million a California jury awarded to a single plaintiff after a 4 week trial.

The plaintiffs have now won something like 5 of the 6 trials with most verdicts being massive. That is a ridiculous win percentage in products litigation with top-shelf defense counsel probably operating without a budget.

In big products liability litigation, the plaintiffs’ best chance to win is in one of the first trials. The defense improves the longer it goes and the more cases tried. Their experts get better and their lawyers get sharper from prior trials and massive focus group projects.

That the plaintiffs keep winning nearly every trial suggests that the J&J documents are bad. Real bad.

Sara Randazzo’s article in the WSJ made this astute observation:

Individual jury awards in mass tort litigation are idiosyncratic and are often reduced on appeal. At the same time, the outcome of early trials can give plaintiffs and defendants a better sense of how to value any eventual global settlement.

That sounds right. That trial cost J&J mid-seven figures in defense costs. They are probably also spending seven figures per month on attorney’s fees in the 5,000 pending cases. A rational defendant only does that when they believe they are working down the overall value of the case(s).

Johnson & Johnson is trying to win this litigation on causation. Sometimes liability facts overpower causation defenses. Particularly if there is a suggestion of a cover-up, which comes into play in failure to warn cases. Plus, sometimes you just lose on causation even when you love the defense.

The first time I got hit for six figures was a misfilled prescription case with admitted liability. We loved our causation defense. The jury…..not so much. John Giddens was the plaintiff’s lawyer. If he mentions that trial around others even half as much as he does me, then everyone is sick of hearing about it.

It would probably not be a bad idea for defense lawyers to always reduce their estimate for the strength of their causation defense by half. It’s probably not as strong as you think it is. A jury is not going to spend months or years obsessing on causation.

It’s just not going well for J&J. If they hoped to bleed the plaintiffs’ lawyers dry, it’s not going to work. Even if the plaintiffs’ lawyers couldn’t fund it themselves, they will not have trouble getting litigation financing with this string of verdicts. Other attorneys and hedge funds would line up to invest.

The big Supreme Court decision on venue helps J&J, but it doesn’t win the litigation. They need a kill shot on causation or a string of defense verdicts to lower the value of the inventory. Neither appears imminent.

The plaintiffs’ lawyers could actually put a lot of pressure on J&J by going to a 50-state litigation strategy and a full court press. I doubt they will because they would have to bring in a lot more lawyers, but I’d at least think about it if I were them.

This litigation is getting more interesting all the time. I’d love to know what is going on behind the scenes as far as settlement negotiations and focus groups.

It would not surprise me if both sides are running focus groups twice a month. And if I was in-house counsel managing huge litigation like that, I’d always have separate settlement counsel exploring opportunities to shut the litigation down.

It’s got to be a lot of fun for those involved on both sides.

$2.2 Million Verdict in Hinds County Car Wreck Trial

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Friday a Hinds County Circuit Court jury returned a $2.2 million verdict in Moton v. Leguire and Climate King, LLC.

Facts:

Plaintiff was traveling on I-55 south on August 3, 2016 when the pickup truck she borrowed from her brother to drive to work experienced mechanical difficulties. It was later determined the fuel filter quit working causing the truck to lose power and slow.

The truck slowed or stopped in the middle lane of I-55 South past County Line Road. The Defendant was following another vehicle in the center lane. When the other vehicle swerved to miss the Plaintiff’s truck, the Defendant rear-ended the Plaintiff.

Defendant contended the Plaintiff was stopped in the road creating an unavoidable road hazard.  Defendant submitted a jury instruction attempting to apportion fault to Plaintiff and her brother who loaned her his truck to drive to work on the theory that the truck’s check engine light was on and the Plaintiff and her brother were operating a vehicle in an unsafe condition. Plaintiff contended the Defendant was following too close, speeding and not maintaining a safe distance from the car in front of him.

Injuries:

The Plaintiff’s injuries consisted of a burst fracture at C-7 requiring a surgery and six day stay in the hospital. Plaintiff had medical bills of $157,000.00 and estimated future medicals. Plaintiff also claimed one year of lost wages since she has not worked since the wreck. Her doctor has not cleared her to return to work.

Verdict:

The jury placed 100% fault on the Defendant, no fault on Plaintiff and no fault on Plaintiff’s brother. The jury awarded a total verdict of $2,220,000. The verdict components were:

  • $1,500,000.00 in pain and suffering;
  • $694,000.00 for past and future medical bills; and
  • $26,000.00 for past lost wages.

The trial lasted all last week.

Plaintiff’s attorneys were Ashley Ogden, Jim Smith and Tyler Royals of Ogden and Associates, PLLC in Jackson.

Defense attorneys were Robert Gibbs of Gibbs Travis, and Jason Strong of Daniel Coker, Horton and Bell in Jackson.

Judge William Gowan presided.

My Take:

That’s a big win for the plaintiff. Non-economic damages verdicts of 10x medicals are rare in Mississippi car wreck trials.

It appears that the plaintiff will have to take a $500,000 haircut on the non-economic verdict due to the $1 million cap on non-economic damages.

Public Pensions in Crisis Even After Great Investment Year

Posted in PERS Crisis

The Wall Street Journal (paywall) reported last week that another year of great investment returns has not saved America’s public pensions. The article estimated that the total funding shortfall of public pensions is $4 trillion.

The average investment return for public pensions for the fiscal year ending June 30 was 12.4%. That’s much better than the assumed 7.5% used in Mississippi and many other systems. But:

Yet many of these public pensions remain severely underfunded despite the recent gains, meaning they don’t have enough assets on hand to fulfill all promises made to their workers. Estimates of their collective shortfall vary from $1.6 trillion to $4 trillion.

“It’s a hole that took a long time to dig, so it will take a long time to fill,” said Fitch Ratings analyst Douglas Offerman.

The pensions’ predicament is the result of decades of low government contributions, overly optimistic investment assumptions, over-promises on benefits and two recessions that left many retirement systems with deep funding holes. Demographics are also a factor: Liabilities are rising as waves of baby boomers retire, leaving fewer active workers left to contribute to pension plans.

Experts warn that pensions will not be able to invest their way out of the crisis:

Even if returns remain elevated, large public pensions won’t be able to reverse their shortfall in coming years, according to Moody’s Investors Service. Large public plans currently have just 70% of what they need to pay future benefits to their retirees, according to 2016 figures from Wilshire Consulting.

Funding levels won’t improve significantly unless cities and states ramp up their yearly pension contributions, according to a recent report by the Center for Retirement Research at Boston College. But budget problems in many states and cities mean governments either can’t afford to make aggressive payments or opt to stretch them over decades so big outlays are delayed.

It’s apparently common knowledge that public pensions are in a crisis and cannot meet their commitments. I recently read this passage in the book Black Edge, by Sheelah Kolhatkar:

Hedge fund investors, the people whose money Cohen had such a talent for multiplying, were a predictable and self-serving group. Many of them, including university endowments and pension funds managing retirement accounts for public school teachers and police officers, were only too happy to overlook the questionable things hedge funds were doing–as long as they made money. Pension fund managers in particular had enormous, in some cases impossible, financial obligations to fulfill for their retirees, and very few ways of earning returns they needed. (emphasis added).

The author made this statement in passing. The book is about insider trading at the hedge fund SAC Capital. It left me with the impression that it’s just common knowledge in the financial industry that public pensions are imploding.