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

Your Boss Probably Isn’t This Bad

Posted in General

Don’t know how I missed this guy, but the NY Times announced today that Mike Davis, the world’s grumpiest boss has died.

How grumpy you ask? Consider some of these gems contained in memos in the pre-email days:

There will be no more birthday celebrations, birthday cakes, levity or celebrations of any kind within the office,” … “This is a business office. If you have to celebrate, do it after office hours on your own time.”

Do not speak to me when you see me,” the man had ordered in a memo the month before. “If I want to speak to you, I will do so. I want to save my throat. I don’t want to ruin it by saying hello to all of you.”

“On days you have to work, and you think you should be off, you wear slouchy dress attire,” he complained), idle conversation (“Do your jobs and keep your mouth shut!” he once wrote, in all capital letters) and office furniture (“I am paying you to work — not slouch in your chair with your feet up on a desk or table”).

The memos were originally published in a book: Letters of Note, by Shaun Usher.

I’ve had some interesting bosses over the years. My first boss was the foreman of the underground crew at Coast Electric and relished being able to haze the general manager’s son.

The overall boss at the lodge I worked at outside Glacier was such a piece of work that when told that he had once been mauled by a grizzly, I responded “too bad he didn’t eat him.”

And of course I worked at a couple of big firms, where everyone’s idiosyncrasies are on full display.

Does PERS Have 2 Sets of Books?

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

Last week the New York Times published this Mary Williams Walsh article regarding public pensions having two sets of books. Why the difference? The dreaded investment return projections that I have discussed in many prior posts on this topic.

According to the article, public pensions only disclose the financials with the optimistic projections even though they carry a second set of books based on reality. From the article:

It turns out that Calpers, which managed the little pension plan, keeps two sets of books: the officially stated numbers, and another set that reflects the “market value” of the pensions that people have earned. The second number is not publicly disclosed. And it typically paints a much more troubling picture, according to people who follow the money….

But more important, it raises serious concerns that governments nationwide do not know the true condition of the pension funds they are responsible for. That exposes millions of people, including retired public workers, local taxpayers and municipal bond buyers — who are often retirees themselves — to risks they have no way of knowing about…

The two competing ways of valuing a pension fund are often called the actuarial approach (which is geared toward helping employers plan stable annual budgets, as opposed to measuring assets and liabilities), and the market approach, which reflects more hard-nosed math.

The market value of a pension reflects the full cost today of providing a steady, guaranteed income for life — and it’s large. Alarmingly large, in fact. This is one reason most states and cities don’t let the market numbers see the light of day….

Today in California, both the market values and the actuarial pension values for many places are available on a website run by the Stanford Institute for Economic Policy Research. But for the 49 other states, the market numbers remain unknown.

The market-based numbers are “close to the truth of the liability,” Professor Sharpe said. But most elected officials want the smaller numbers, and actuaries provide what their clients want. “Somebody just should have stopped this whole charade,” he said…

Arguably, the flawed standards worsened the problem with each passing year: Actuarial values determine the annual contributions that states and local governments make to their pension plans, so if the target numbers are too low, the contributions will always be too small. Shortfalls will be compounding, invisibly…

The problem is, which rate should be used? An economist would say the right rate for Calpers is the one for a risk-free bond, like a Treasury bond, because public pensions in California are guaranteed by the state and therefore risk-free. And that’s what Calpers does when it calculates market values. It used 2.56 percent when it calculated the bill for the pest control district, producing a $447,000 shortfall.

But the rest of the time, Calpers and virtually all other public pension funds use their assumed annual rate of return on assets, now generally around 7.5 percent. Presto: This makes a pension appear to have a much smaller liability — or even a surplus….

“Every economist who has looked at this has said, ‘It’s crazy to use what you expect to earn on assets to discount a guaranteed promise you have made. That’s nuts!’” Professor Sharpe said.

But what he calls crazy is enshrined in the actuarial standards. And since adhering to the standards makes public pensions look affordable, there is a powerful incentive to preserve those standards.

“Actuaries shamelessly, although often in good faith, understate pension obligations by as much as 50 percent,” said Jeremy Gold, an actuary and economist, in a speech last year at the M.I.T. Center for Finance and Policy. “Their clients want them to.”

My question is how many people in Mississippi’s government are even aware of these issues?

$122,242 Jury Verdict in Madison County Misrepresentation Trial

Posted in Verdicts in Mississippi

Last week a Madison County jury returned a total verdict of $122,242 in Bowles v. Gussio.The verdict included $50,000 in punitive damages.

The case involved misrepresentation and breach of home warranty claims involving defendants’ failure to disclose prior flooding of a home. Here is the Complaint.

Here is the Jury Verdict on liability and actual damages.

Here is the jury verdict on punitive damages.

Plaintiffs’ counsel were Craig Panter of Madison, Elizabeth Crowell of Jackson and Ronald Stutzman of Flowood. Defendants’ counsel was Thomas Waller of Jackson.

$138,000 Jury Verdict in Covington County Unpaid Wages Case

Posted in Verdicts in Mississippi

On Friday a Covington County jury returned a combined verdict of $138,000 in favor of two plaintiffs in Parker v. Culpepper Enterprises, Inc. Here is the Complaint.

The case was filed in Jones County and later transferred to Covington County.

The case involved a dispute relating to the failure of defendants to pay wages and benefits to plaintiffs over the course of several years. The defendant made no offer to settle and the case proceeded to trial.

A unanimous jury rendered verdicts of $65,000 ($40,000 economic; $25,000 emotional distress) for one plaintiff and $73,000 ($48,000 economic; $25,000 emotional distress) for the second plaintiff.

Cory Ferraez with McHard, McHard, Anderson and Associates in Hattiesburg represented the plaintiffs. Wayne Easterling from Hattiesburg represented the defense.

Judge Eddie Bowen presided.

My Take:

Good win for the rookie plaintiff lawyer. I worked on a case with Wayne Easterling 20 years ago and found him to be an astute and talented attorney.

But don’t get too cocky. I won my first trial in a tough case. Of course, I decided I was bullet proof. As Will Raiford famously told me when I acted like a jack-ass when I lost my second trial: “sorry buddy, but you can actually lose these things.” That wasn’t the last time I learned that lesson.

Now that I think of it, I remember Wayne Easterling telling me how bad it was to lose on the plaintiff’s side compared to the defense. He was right.

Losing always sucks. But once you experience a loss on the plaintiff’s side, losing a defense trial is…just…not…the same.

Defense Verdict in Hinds County Premises Liability Trial

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Friday a Hinds County jury returned a defense verdict in Brown v. Waffle House, Inc.

Disclaimer: Personally, I think Waffle Houses are awesome. They could open one on the moon and it would always be at least half full.

Here is the Pre-Trial Order.

The plaintiff was shot in the knee in a gunfight in the parking lot of the Waffle House on Highway 18 in Jackson. Apparently, the plaintiff liked to hang out in the parking lot of that particular Waffle House. His fiancee worked there.

Based on the defense’s theory in the Pre-trial Order, the Waffle House did not have the prior criminal events history that usually underpin third party assailant premises cases. Plaintiff’s theory was that crime was under reported in the area.

Brown called approximately 10 witnesses. They included several JPD officers and expert witnesses.

Waffle House argued that Brown or his buddy started the shootout and that Brown was sleeping in his car in the parking lot, rather than an actual patron. The jury deliberated for about an hour before returning a defense verdict.

Ashley Ogden, Jim Smith and Tyler Royals represented the plaintiff.

Brad Smith, La’Verne Edney and Sterling Kidd with Baker Donelson represented Waffle House.

Judge Tomie Green presided.

Defense Wins Hinds County Car Wreck Case with $75,000 Verdict

Posted in Hinds County Circuit Court, Verdicts in Mississippi

About a month ago a Hinds County jury returned a $75,000 verdict in Taylor v. Stubblefield. Here is the Complaint.

The Defendant, who lives in Hinds County, rear-ended the Plaintiffs in Magee. It appears to have been a low impact rear-ender. My understanding is that the Defendant was going approximately 3 mph. The Defendant admitted liability.

Typical Mississippi Driver

Typical Mississippi Driver

The Plaintiffs offered evidence of $150,000 in medicals and lost wages. But–and this turned out to be a big one–one of the Plaintiffs had preexisting pain and medical treatment.

In closing, the Plaintiffs asked the jury for $350,000. The majority black jury responded with $75,000 ($50k for Sadie; $25k for Joe). Here is the Verdict/ Judgment.

Steve Kennedy and Barry Ford with Baker Donelson represented the Defendants. Jessica Murray and Aundre Branson with Schwartz & Assoc. in Jackson represented the Plaintiffs.

Judge William Gowan presided.

My Take:

Big win for the defense. Word on the street is that Plaintiffs’ last pre-trial demand was $535,000. Attorneys get blamed for demands that are too big, but it’s usually a decision driven by a client over-valuing their case.

Look at it this way. Every day plaintiff firms field calls from people who MAY have a case on liability, but suffered no real damages so they have no case. I refer to this as the “it coulda killed me call.”

The most entertaining of these callers are the ones who think they have a ‘hot commodity’ and that you are about to start sucking-up to them to get the case. In general, older white men are the group most likely to fall into this category. Because of their know-it-all attitude, you don’t feel bad shooting their case down like you do with some people. With the people with the worst attitudes, I actually kind of enjoy it.

And its getting harder all the time for lawyers to bring client expectations down to reality. I’ve been asking around. Everyone is seeing more know-it-all clients than in the past. Criminal lawyers included.

The internet is the reason. People do a little research online and think they are qualified to make judgment calls that it takes attorneys years of experience to master. What these folks completely miss is that cases reported on the internet tend to be outliers–that’s what makes them interesting enough to write about.

State Budget Woes Brings Bad News for Miss. Attorneys

Posted in General

I’m not an economist, but when I read articles like this one in the Northeast Daily Journal about Mississippi’s tax revenues being down I conclude that Mississippi is in a statewide economic recession.

From the article:

Mississippi’s July revenue report, released on Monday during the final days of August, reveals the state collected $11.5 million or 3.9 percent less than it did during July 2015.

***

Nearly all categories of tax collections were down from the previous July. The two largest sources of revenue – sales taxes and personal income taxes – were down $1.8 million or 2.4 percent and $4.2 million or 3.9 percent respectively.

Translation: Mississippians are earning less and spending less than a year ago.

Those seem like huge one year declines. What does the state economy look like if that trend continues for a few years?

The numbers are terrible news for attorneys. My favorite description of what makes a good economic climate for lawyers is one with lots of people moving around. You can apply the analogy to everything from fender benders to contracts for economic developments. In either setting, more people moving around means more people running into each other and generating more opportunities for lawyers.

When an economy is drying up (receding), people are moving around less. When they move around less, they run into each other less. And have even less money to spend on attorneys.

You can find a lot of opinions about what’s to blame for Mississippi’s economic woes. My opinion: it’s complicated.

My chief concern is what it means for the reality on the ground for the profession. It’s not good–it can’t be good.

If the trend continues, another trend will continue: a brain drain of talented lawyers leaving the state for better opportunities elsewhere. In retrospect, this trend started at least a decade ago. But it’s hard to notice a trend when it first starts. It’s more obvious now. Look for it to continue.

August Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the August 2016 issue of the Miss. Jury Verdict Reporter:

  • $2 million and $192,948 verdicts- Bolivar County products liability case alleging defective design of Hyundai anti-lock braking system (10/17/14);
  • $1,036,000 verdict- Jefferson County asbestos products liability case (2/24/16);
  • 400,000 verdict- Washington County breach of contract case involving corn drying system (3/4/16);
  • $395,000 verdict- Jackson County uninsured motorist car wreck case [plaintiff awarded exact amount requested]  (8/9/16);
  • defense verdict- Humphrey’s County truck negligence case covered in this post (7/7/26);
  • defense verdict- DeSoto County car wreck case (8/9/16);
  • summary judgment- Forrest County alienation of affection case (3/1/16).

My Take:

I smell appeals.

Appeals are just about guaranteed when a plaintiff wins a products case. The defendant companies have already spent so much money that it’s easier for the decision maker(s) to say they got screwed and appeal vs. pay the judgment and move along. It can be as much about intercompany politics as the merits of the appeal. Sometimes you just lose. It doesn’t always mean that the decision to try the case was wrong, but people usually don’t view it that way.

Not that defendants in products cases don’t have anything to talk about on appeal. The cases are so complex and expert driven that there are always appeal issues unless the defense lawyers (usually 4-8 in a products trial) slept through trial.

After I wrote the above, I realized that the Hyundai case is two years old, so I looked it up on the Supreme Court’s docket. It is on appeal, but the court reporter still hasn’t submitted the records. The Supreme Court is not amused: Hutton Order.

Two years later and they are still in the starting gate on the appeal. Reminds me of some of my cases.

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.