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.

$110,000 Verdict in Gulfport Federal Court Slip-and-Fall Trial

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

On January 11, 2017 a federal court jury in Gulfport rendered a verdict for the plaintiff in Garcia v. Fickling Management Services, Inc. Here is the Complaint.

Plaintiff, Linda Garcia, a 65-year-old woman, slipped and fell down concrete steps covered in ice while exiting her apartment at the Palm Isle apartment complex in Biloxi, MS on January 24, 2014. Defendant managed the complex.

Plaintiff sustained a torn rotator cuff and a disc bulge in her neck.  Plaintiff’s medical expenses totaled approximately $90,000. Plaintiff presented evidence that she would incur an additional $35,000 in medical expenses related to a future neck surgery.

Defendant argued, by way of its expert witness Dr. David Bomboy, that all of Plaintiff’s medical conditions were pre-existing in nature.

At the time of the Plaintiff’s fall, the Mississippi Gulf Coast was experiencing one of the worst winter storms in decades. Plaintiff denied having knowledge of the storm or the ice on the stairs when she exited her apartment and began walking down her stairs.

Plaintiff argued that the Defendant was negligent because it failed to follow its policies and procedures which required the property to put “ice melt” on the stairs and sidewalks of the property in the event of a freeze.  Defendant denied liability by arguing that it placed “Freeze Warning” signs throughout the apartment complex and distributed flyers warning of icy conditions to all tenants prior to the storm (these were disputed by Plaintiff and other tenants who denied every receiving same prior to Plaintiff’s fall). Defendant further argued that it should not be held responsible because the Mississippi coastal properties had no reason to anticipate freezing weather and/or the need for ice melt and that the policy and procedure was merely sent to all properties that it owned/managed with the assumption that the property managers had discretion as to whether or not such policies applied to a particular property.

The jury returned a unanimous verdict in favor of the Plaintiff in the amount of $110,000.00 with fault allocated to the Defendant in the amount of 70%. Here is the verdict form.

Based on the comparative fault, the Court later entered a judgment of $77,000.

The Defendant’s settlement offer before trial was $5,000.

Shandra Yates of Burns & Associates and Rocky Wilkins (all from Jackson) represented the Plaintiff. Ed Taylor with Daniel Coker in Gulfport represented the defendant.

Chief District Judge Louis Guirola presided in the case.

My Take:

This is a noteworthy verdict because slip-and-fall cases usually go to the Coast to die. Before plaintiff lawyers get too excited, it’s going to be tough to round-up a bunch of ice slip cases on the Coast. In my eighteen years living on the Coast I remember 1 significant snow fall and no ice.

January Miss. Jury Verdict Reporter Preview

Posted in General

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

  • $16.5 million settlement- Hattiesburg federal court civil rights case; three men wrongfully convicted of murder; served combined 83 years in prison (8/1/16);
  • $138,960 verdict- Convington County breach of employment contract case covered here (9/9/16);
  • $85,000 verdict- Harrison County county court car wreck case (12/13/16);
  • $6,000 verdict- Hinds County car wreck case covered here (12/5/16);
  • defense verdict- Jefferson County car wreck case (10/13/16); and
  • plaintiff goes to the house during trial- Copiah County timber cutting negligence personal injury case (11/14/16).

DNA evidence cleared the wrongfully convicted in Hattiesburg. The real killer is in prison for a rape committed two years after the murder. The cops beat the plaintiffs (who are all now deceased–one died in prison, the other two shortly after release) into giving false confessions.

My Take:

What a sad case.

Mississippi Judiciary Website Now Mobile Friendly

Posted in Mississippi Court of Appeals, Mississippi Supreme Court

The State of Mississippi Judiciary recently launched a redesigned website. The big difference is the new site is mobile friendly. It looks better on my phone than it does on my monitor.

It’s very easy to access and read the hand down lists on the new site. This seems like a great update.

Both the old site and new site will work for the next few months.

Experts Say Tell Florida Its 7.6% PERS Investment Return Assumption Is Too High

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

The Orlando Sentinel reported last week on a report from the State’s actuarial consultant that stated that Florida’s PERS investment return assumption of 7.6% is too high. The actuaries recommended a 7% investment return assumption. Financial models showed that there was less than a 35% chance of meeting the assumed 7.6%:

The consultants developed financial models that estimated the fund had a 50 percent chance of achieving its long-range rate of return if the projection was 6.3 percent to 7 percent.

“All models developed in 2016 indicated a likelihood of 35 percent or less of actual long-term future average returns meeting or exceeding 7.6 percent,” the report said.

The article explains the political incentives to maintain an artificially low assumed rate:

Lowering the rate of return to 7 percent would have yielded nearly a $38 billion liability, with the fund only being able to pay 79 percent of its long-term obligations. That would have required a significant increase in the pension contributions made by the government agencies to cover that actuarial deficit.

With the new 7.6 percent rate, the pension fund is projected to meet 85.4 percent of its future obligations, representing a $24.9 billion unfunded liability. It will still require a projected contribution increase in the range of $90 million….

But the analysts were in agreement that Florida could not abruptly lower the rate without causing financial disruption for the governments that contribute to the fund on behalf of their employees.

Compare Florida’s numbers to Mississippi’s. Mississippi’s investment return assumption is higher than Florida’s at 7.75% and PERS is only 60% funded. Conclusion: Mississippi is walking much closer to the edge of the cliff than Florida.

Here is a Financial Times article from August that gives a balanced report on the debate over public pension plan assumptions. It gives a great explanation for why pubic pensions have to take higher risks to try to hit their investment assumptions. The basic reason is that funds are using the same assumptions they used when they could achieve the assumed rate of return investing in 73% bonds and 27% cash. With bonds currently yielding so little, funds have to chase returns in risky assets.

I like this quote from Connecticut treasurer Denise Nappier:

“Markets have largely recovered from the troughs seen in the Great Recession, but are susceptible to downside surprises stemming from changes to the global economic outlook,” she said. “If return assumptions are set at levels unlikely to be attained, it will be difficult to achieve them without pursuing high risk investment strategies. It is far more prudent to structure the portfolio based on what is achievable, rather than what is desirable.”

Mississippi is definitely in the ‘desirable’ camp. Just got to Hope.

Justice Bobby Chamberlin Joins Miss. Supreme Court

Posted in Mississippi Supreme Court

On Tuesday Justice Bobby Chamberlin of Hernando became the newest member of the Mississippi Supreme Court. Chamberlin previously served as a circuit court judge.

I wonder if the Supreme Court treats rookie justices like the NFL treats rookies? Will Justice Chamberlin will have to carry the other justices’ robes back to chambers after oral argument?

Also taking oaths on Tuesday for new terms were Justices Jim Kitchens, James Maxwell and Dawn Beam. They were already on the Court, with Justices Maxwell and Beam having replaced Justices Chandler and Pierce.

One thing I like about the current Supreme Court is that all the justices smile in the court photos that adorn the wall outside the courtroom. In the photos from many years ago, the justices were all scowling. I bet they were a real treat to argue to.

I’d much rather practice before a judge who smiles–or at least had proven the capability of smiling. I started to write that this is a trivial point, but changed my mind. It’s actually a pretty big deal. When you’ve seen a judge smile and they rule against you, I don’t think you interpret it the same as when it’s a judge who you’ve never seen act anything but angry or looking for an excuse to be angry.

Lawyers love friendly judges. The late Judge Robert Evans was probably the most popular trial judge in the state during my years of practice. He was the friendliest. You could literally go back to his office and help yourself to coffee. It was standing room only on docket call and motion days.

December 2016 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $220,000 verdict- Jackson federal court (Wingate) FELA case (11/28/16);
  • $30,001 verdict- Hinds County County Court (Cooper-Stokes) engagement ring fraud case (9/28/16);
  • $27,000 total verdict- Harrison County County Court (Hewes) 2-plaintiff uninsured motorist case (10/11/16);
  • mixed verdict (after verdicts on claim, counter-claim, punitives, defendant came out $113,000 ahead) – Harrison county (Schmidt) construction litigation case (11/4/16);
  • defense bench verdict- Hinds County (Gowan) school negligence case (10/10/16);
  • defense verdict- Jackson federal court (Reeves) prison medical care/ 8th amendment case (11/17/16);
  • defense verdict- Forrest County (Helfrich) baseball negligence case–includes a video link of the incident (12/7/16);
  • defense verdict- Harrison County County Court (Hewes) car wreck case (10/20/16);
  • defense verdict- Harrison County (Bourgeois) bank breach of contract case against defendant who didn’t sign the note (11/10/16);
  • defense verdict- Gulfport federal court (Guirola) civil rights case (11/29/16); and
  • defense verdict- Gulfport federal court (Guirola) life insurance dispute (11/18/16).

My Take:

Not a single trial north of Jackson. There were some sporadic trials in DeSoto and Bolivar Counties (including an unreported December med-mal verdict) in 2016. But otherwise, civil trial practice in North Mississippi was dead. People have noticed.

What’s the reason? My System 1 take without seeing any statistics is that the economy is suffering more in most areas of North Mississippi. Since litigation is a byproduct of people moving around, building, getting into disputes and running into each other, there is less litigation in areas that are struggling economically.

Additionally, plaintiff lawyers from outside the region are not eager to file cases in North Mississippi–especially when they can’t file in federal court. There are a lot of reasons for that sentiment.

My Favorite Books of 2016

Posted in Book Reviews

Pretty slow on the legal front, so I’m going to do something new and list my favorite books that I read this year.

A caveat is that I view books as like ice cream–everyone’s taste is a little different. My favorites probably will not be your favorites. But most of us can agree on what are good books.

Here are my favorite books that I read this year:

  • Hillbilly Elegy– and there is a legal hook since it’s a memoir and the author went to law school;
  • When Breath Becomes Air– not a happy ending but a great book;
  • Rebel Yell (biography of Stonewall Jackson)–  what a strange man; imagine a war breaking out and the weirdest dude in your law firm suddenly becomes the best general we’ve got;
  • The Perfect Pass- same author as Rebel Yell (S.C. Gwynne), which is why I read it, has a Mississippi connection–focuses on Bellhaven head coach Hal Mumme; my favorite football book in years–Gwynne can flat out write;
  • Shoe Dog– memoir by Nike founder Phil Knight; I reluctantly read this only because the average Amazon review was 5 stars with hundreds of reviews (that’s unusual); it was unbelievable; I’m not going to say it, but you know…fantastic read focusing on starting Nike;
  • Being Nixon– someone gave me The Last of the President’s Men last Christmas and it set me off on a Nixon and Watergate readgasm; I rate Nixon the most interesting president (but I haven’t read books on some interesting ones like Teddy Roosevelt and Lyndon Johnson); and
  • Dreamland- The True Tale of America’s Opiate Epidemic– dovetails the story of Oxycontin with the rise of heroin, which is very cheap and delivered like pizza in many American cities. An important topic given the growing heroin epidemic that is killing a lot of people in the country, especially young people.

Mississippi PERS in Crisis?

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

AP reporter Jeff Amy recently reported that according to PERS Executive Director Pat Robertson, PERS is not in a crisis. Instead, Robertson says PERS just needs to earn 13% in investment income this investment year:

This ugly picture could be greatly improved by a good year in the stock market. Robertson said that if investments earn more than 13 percent in the current year, projections for 2042 will rebound above 80 percent and PERS won’t have to ask employers for more money. While 13 percent sounds like a lot, the fund has earned more than that in five of the last 10 years.

Sigh…. So misleading. First, Robertson is now banking on a 13% investment return that is over 5% higher than the already inflated assumption of 7.75%? That’s neither smart nor sound from an actuarial standpoint.

Second, here is a chart of PERS investment returns for the last 10 years courtesy of Jackson Jambalaya:

2007: 18.9%
2008: -8.2%
2009: -19.4%
2010: 14.1%
2011: 25%
2012: 0.6%
2013: 13.4%
2014: 18.3%
2015: 3.5%
2016: 1.16%

So those 13% plus years were surrounded by 5 years that ranged from 3.5% to -19.4%. This suggests that a 13% year would be great–but also unsettling from a volatility perspective.

Third, PERS is not going to earn 13% this year. Robertson says PERS just needs a good year in the stock market. Take a look at the PERS Investment Report for the quarter ending September 30. PERS is about 60% invested in the stock market. The rest is in bonds, real estate, cash and private equity. It is highly unlikely that all these asset classes are going to rise 13% this PERS investment year. And Robertson knows that.

Yes, U.S. stocks are on a tear. But non-U.S. stocks are not and bonds are getting hammered. Take a look at this chart of the S&P 500 (GSPC), non-U.S. stocks (VXUS) and bonds (BND) for the year to date. Domestic stocks are up 11.37%, but foreign stocks and bonds have gone nowhere. This does not suggest a 13% investment return for PERS is on the horizon. California is assuming a 6% return for its PERS program and many investment advisors do not believe that is a realistic projection.

To read a detailed analysis on this subject by an investment professional, check out Are U.S. Pension Funds Delusional? on the Pension Pulse blog. Or if that’s too negative, Pension Tsunami is an aggregator site for news on the NATIONAL PENSION CRISIS.

Fourth, and this is the really scary part, stock valuations are at dotcom and housing bubble highs. Hopefully, this time is different. But this time is rarely different. The stock market is arguably more likely to drop 20% next year than rise 20%. And if it just goes nowhere on average for the next 5 years–like it has for the last few years–that’s just as bad as a 20% drop followed by a 20% gain.

Fifth, why is California’s PERS considered to be in a crisis and Mississippi’s is not? When you look at funding ratios, Cal-PERS has a better funding ratio than Mississippi. California is cutting benefits and lowering its investment assumption to reflect expected smaller returns in the future. Meanwhile, Mississippi does nothing.

When someone says “it’s not about the money”, it’s about the money. So when the PERS director says PERS “is not in a crisis”, is it in a crisis? California is in a crisis. Dallas, Fort Worth, other cities, other states–crisis. But Mississippi is different? Despite having the 10th worst funded state plan in the nation? Sure.

PERS participants would be unhappy having their contribution rate raised. But better to raise it a little now than a lot later. Or even worse, cut benefits after retirement. People would understand a higher contribution rate. Later, they will probably be mad that their contribution rate was not raised sooner.

Pat Robertson did not create the problems PERS is having. And she can’t fix them. So I don’t get why she is not pounding on the politicians to start addressing it.

$6,000 Jury Verdict in Hinds County Car Wreck Case

Posted in Hinds County Circuit Court, Verdicts in Mississippi

Last week a Hinds County Circuit Court jury returned a plaintiff verdict of $6,000 in Slaughter v. Nichols-Cohn. As of Friday, the jury verdict and judgment was not on MEC. Here is the Pretrial Order.

The case involved a car wreck in the employee parking garage adjacent to St. Dominic Hospital in Jackson. Both parties were employees who parked in the garage. According to the plaintiff, she was backing out of a parking spot when the defendant smashed into her. According to the defendant, the plaintiff “suddenly, and without warning….began backing out.”

Sidebar: Is there any other way to back out? How do you warn that you are going to back out?

The defendants further contended that the collision was unavoidable and that the plaintiff wasn’t hurt.

Sidebar: The argument that the plaintiff wasn’t hurt is known as the ‘faking it’ defense. Defendants deploy this defense in every non-death personal injury case. Even when an injury is admitted, defendants argue that the plaintiff is faking something. In death cases it converts to the ‘something else killed her’ defense. You may think I’m exaggerating when I say it’s argued in every case. I’m not. Although sometimes it’s just insinuated, which is an arguably better way to run the play.

The plaintiff asked for $6,000 in closing and the jury awarded $6,000 with 75% fault to the defendant.

MEC lists Cooper Miles with Schwartz & Associates in Jackson as Plaintiff counsel. Wade Manor with Scott Sullivan and Streetman in Ridgeland represented the defendant.

Circuit Judge Bill Gowan presided.

My Take:

I use the gym at the Club at St. D and am in that garage almost every day. I’m not surprised that there was a collision there. It’s a free-for-all getting out of the garage when the employees are leaving work in the afternoon.

State Budget Proposals Will Only Make PERS Problems Worse

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

In Kingfish’s recent post on PERS he discussed the structural problems PERS has with growing retiree roles vs. enrolled workers. That problem is apparently guaranteed to get worse with Mississippi’s budget problems.

Lat week at Mississippi Today Adam Ganucheau reported on the legislature’s plans for the 2018 budget. Those plans include eliminating 1,999 vacant state jobs.

Here is the 2016 PERS Valuation Report. Check out page 19 (pdf p . 20), which lists yearly numbers of employee participants and retirees going back to 2007. Here are the numbers for 2007 and 2016:

  • 2007 participants: 162,804
  • 2016 participants: 154,104
  • 2007 retirees: 66,757
  • 2016 retirees: 96,338.

So it’s a steady increase in retirees drawing out of the system with a steady decrease in the number of state workers paying into the system. And we know this problem will get worse because the State is having to eliminate jobs in response to budget shortfalls.

Now check out the schedule of funding progress on page 16 (pdf 20). Here is how the funding levels changed between 2007 and 2016:

  • 2007 funding level: 73.7%
  • 2016 funding level: 60%  (or worse according to Kingfish).

PERS leadership and the state have no answer to this problem. Their plan–if you can call it a plan–is to hope for a miracle in the investment markets. PERS still uses an investment return assumption of 7.75%. This is probably an unrealistic figure.

California, for instance, is being advised by its investment consultants to consider lowering its PERS investment return assumption from 7.5% to 6%:

Only a year earlier, CalPERS investment staff and consultants had agreed that CalPERS was on the right track with its 7.5% figure. So confident were they that they urged the board to approve a risk mitigation plan that did lower the rate of return, but over a 20-year period, and only when returns were in excess of the 7.5% assumption.

Two years of subpar results — a 0.6% return for the fiscal year ended June 30 and a 2.4% return in fiscal 2015 — reduced views of what CalPERS can earn over the next decade. Mr. Junkin said at the November meeting that Wilshire was predicting an annual return of 6.21% for the next decade, down from its estimates of 7.1% a year earlier.

Indeed, Mr. Junkin and Mr. Eliopoulos said the system’s very survival could be at stake if board members don’t lower the rate of return. “Being conservative leads to higher contributions, but you still have a sustainable benefit to CalPERS members,” Mr. Junkin said.

The opinions were seconded by the system’s other major consultant, Pension Consulting Alliance, which also lowered its return forecast.

Meanwhile, Mississippi’s PERS director Pat Robertson is denying that there is a problem using an analogy that Meridian syndicated columnist Bil Crawford recently blew out of the water, via the Miss. Business Journal.

The question is: how bad will they let the problem get before they address it?