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.

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.

$1,222,314 Jury Verdict in Gulfport Federal Court Car Wreck Trial

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

On Thursday a federal court jury in Gulfport returned a plaintiff verdict of $1,222,314.93 in Stafford v. Government Employees Insurance Co., et al. Here is the original Complaint.

Plaintiff was rear-ended while working for the county in 2012 by someone who was allegedly looking at her phone. Plaintiff sued the driver and several insurance companies based on underinsured motorist claims.

Plaintiff filed the case in Circuit Court in Pearl River County. Lamorak Insurance Co. removed the case to federal court. Here is the Notice of Removal.

Here is the Verdict.

The jury awarded damages of $572,314.93 in actual economic damages and $650,000 in noneconomic damages.

Here is the judgment.

Plaintiff’s counsel was Collin Maley of Maley & Walker in Jackson and the Penton Law Firm out of Bogalusa, La.

Defense counsel included William Allen, Jessica Malone and Chad Williams with Allen and Allen in Broohhaven.

Judge Sul Ozerden presided.

 

My Take:

I don’t understand defendants removing cases filed in places like Pearl River County or Rankin County to federal court.

If the plaintiff files in state court in a county that is more conservative than the federal court division as a whole, why remove? Particularly since the Fifth Circuit is more likely to affirm a jury verdict than the Miss. Supreme Court.

Jasper County Bad Faith Denial of Claim Verdict Results in $1.9 Million Judgment

Posted in Verdicts in Mississippi

On Saturday a Jasper County jury (Paulding District) rendered a plaintiff verdict in an insurance bad faith claim denial trial in Millsaps v. Allstate Insurance Co.

. The jury’s verdict results in a judgment with the following components:

  • $731,567- dwelling;
  • $185,000- personal property;
  • $36,433- additional living expenses;
  • $17,000- debris removal;
  • $230,000- emotional distress;
  • $100,000- punitive damages;
  • $520,000- attorney’s fees; and
  • $101,248.87- pre-judgment interest.

The total is $1,921,248.87.

Plaintiff’s counsel was Sam McHard and Manion Anderson with McHard, McHard, Anderson & Assoc. in Hattiesburg and Rance Ulmer from Bay Springs.

I did not get a report on defense counsel.

Judge Eddie Bowen presided.

My Take:

The two district composition of Jasper County is controversial in legal circles. Bay Springs is a small town. Paudling is the courthouse and a Coke machine.

The Paulding district is viewed as plaintiff oriented and the Bay Springs district as defense oriented.

The wikipedia page for Jasper County explains why there were originally two county seats. There were two distinct parts of the county in the early 1900’s, but no road connected them until the 1930’s.

The county’s population peaked in 1940 at almost 20,000 and is now under 17,000.

It seems like the county would close one of the courthouses to save costs. But I’ve never heard that was on the table. Not that I’m real plugged-in in Jasper County.

Justice Dickinson Leaving Supreme Court

Posted in Mississippi Supreme Court, Politics in Mississippi

I was surprised to read on Tuesday that Miss. Supreme Court Justice Jess Dickinson is leaving the Court to lead the State’s Child Protection Services. Here is the Clarion-Ledger’s article.

Justice Dickinson represented District 2 on the Court. This district covers the Coast, Pine Belt and Southwest Mississippi.

He joined the Court in 2004 after defeating Justice McRae in an election.

Justice Dickinson has a friendly demeanor on the bench during oral arguments that reminds me of Judge Grady Jolly on the Fifth Circuit Court of Appeals and U.S. District Judge Carlton Reeves.

He also managed to write “peas don’t taste good” in a Supreme Court opinion about the sale of a building. That alone makes him a judicial legend in my book.

Dickinson is probably best known in legal circles for his dissenting opinions critical of Mississippi not giving speedy trials to criminal defendants.

He was also a long time member of the Mississippi Access to Justice Commission and clearly had a genuine interest in improving access to the judicial system for the poor.

It will be interesting to see who Governor Bryant appoints to replace Justice Dickinson on the Court. It could be a Court of Appeals judge, one of the many outstanding trial court judges in District 2 or an attorney who practices in the region. It could even be a politician who serves in the state legislature, although I’m not sure how popular that would be among the bench and bar. My guess is not very.

If You’re Working, it’s Not a Vacation

Posted in Attorney Mental Health

This lawyerist.com article by Randall Ryder takes on the topic of lawyers working while on vacation. Here’s the opening:

Taking a vacation as a litigator (especially a solo litigator) can be difficult. Frankly, a vacation may not feel like much of a vacation.

In today’s technological wonderland it’s easy to work from anywhere. The bad thing is clients are increasingly expecting lawyers to work from anywhere.

In my opinion, the best solution is to compromise. Don’t ignore your practice while you are gone, but don’t immerse yourself either.

My Take:

I disagree.

The reason that it doesn’t feel like a vacation is that if you’re working, it’s not a vacation. A vacation is when you get away from work.

If I take my family somewhere and I keep up with emails and make a bunch of work phone calls, then I’m working. The fact it’s in Destin doesn’t matter. My body may be on the beach, but my head is in the same place as if I’m sitting in my office.

My family may be on vacation, but I’m not. And honestly, they aren’t going to be having much of a vacation either if I’m stressed out on work issues.

So far this summer I’ve driven to North Carolina twice, Destin once and spent a couple of days in Rochester, Minnesota. I did not unplug and leave work behind on any of those trips. They weren’t vacations. They were low-productive days working remotely.

Don’t kid yourself. If you’re hunting, at the beach or going to a ballgame and you are reading emails and taking work related calls, then you aren’t on vacation. I’m not suggesting you don’t work on these outings. Most of the time we have to. But don’t kid yourself that it’s a vacation if you’re working.

This is a real issue for attorneys. We can look around and realize we haven’t had a real vacation of a week or more in years. I believe this wears on us and is one of the reasons for all the anxiety and mental health issues in the profession.

I strongly recommend taking at least a 1 week real unplugged vacation every year. Don’t be defensive about it. Tell clients and colleagues about it. You need to be in top form for them when you are not on vacation.

I do not always practice what I preach on this point. But I should.

MLR Investigative Report: What Happened to All the Miss. Litigation Attorneys?

Posted in Attorney Mental Health

For the past few years, the staff at Miss. Litigation Review has noticed a decline in the number of litigation attorneys in Mississippi.

Many wind up practicing in Nashville. But others just drop off the radar. Where did they go? This exclusive footage solves the mystery. I remember this guy. He worked for one of the mass tort firms on silica defense back in the day.

Seriously, as the compensation of private practice fails to keep pace with the stress, I have more and more attorneys telling me they are considering some sort of alternative employment. Specific plans are different, but the key components are a desire for a low responsibility and stress job.

$600,000 Jury Verdict- Clay County Workers’ Comp Bad Faith Case

Posted in Verdicts in Mississippi

On July 23, 2017 a Clay County jury rendered a total plaintiff verdict of $600,000 in Tutor v. UPS and Liberty Insurance. It is thought to be the largest verdict in Clay County history.

Concluding a 6-day trial, the jury rendered compensatory verdicts of $500,000 against the employer (UPS) and $100,000 against Liberty Insurance, which is a subsidiary of Liberty Mutual.

The jury also found that both defendants exhibited reckless disregard for the plaintiff, but awarded $0 in punitive damages.

Expert witnesses included former MWCC Commissioner Lydia Quarles for the plaintiff and Administrative Law Judge Jim Higginbotham for the defendants.

Lance Stevens and Rod Ward (Stevens & Ward in Jackson) and Ed Blackmon (Blackmon and Blackmon in Canton) represented the plaintiff.

Ford Bailey and Gregg Caraway of Wells Marble in Ridgeland represented Liberty. James Shelson and Fred Banks of Phelps Dunbar in Jackson represented UPS.

Judge Lee Coleman presided.

My Take:

I wonder if this had anything to do with the UPS trucks driving around my neighborhood like bats-out-of-hell in the evenings?

Why Junior’s Russia Email is a ‘Smoking Gun’

Posted in National Politics

It’s been said that Donald Trump Jr.’s email to Jared Kushner and Paul Manafort is a ‘smoking gun.’ I haven’t seen much explaining why. This post covers that topic.

Here’s the email:

From: Donald Trump Jr.

Sent: Wednesday, June 08, 2016 12:03 PM

To: Jared Kushner, Paul Manafort

Subject: FW: Russia – Clinton – private and confidential

Meeting got moved to 4 tomorrow at my offices.

Best,

Don

The entire email chain is available here courtesy of the New York Times.

Kushner testified that he didn’t read the email or know that the meeting was to discuss colluding with Russia. How does that claim hold up given the publicly known evidence? Horribly.

First, look at the text of the email: “Meeting got moved to 4 at my offices.” (emphasis added). He wasn’t announcing a meeting. He was telling them that the time for the meeting was changed. He had already explained the meeting either by email or verbally. Why else would Manafort even show up if it wasn’t about the campaign? Why would Kushner think Manafort was invited?

Kush and Junior say the meeting turned out to be about “adoption.” The problem for them is that even under their account, they didn’t know it would be about adoption until they were in the meeting. They were there to talk “Russia – Clinton” with Russians. It’s not credible that Junior got Kush and Manafort to a meeting with Russians while never telling them the subject of the meeting.

And that’s assuming that ‘adoption’ wasn’t code for ‘sanctions.’

Plus, Manafort was the campaign director. If he’s coming, how can it be about anything unrelated to the campaign? And very important to the campaign? In summary, Kushner’s claim that he didn’t know the purpose of the meeting is suspect.

Second, Kushner’s claim that he didn’t read the email is inconsistent with how phones display emails. Look at your emails on your phone. Notice how the subject and the first sentence show up without you even opening the email. Kushner would have seen that the “Russia – Clinton private and confidential” “meeting got moved to 4 tomorrow at my offices” without even trying to read it. Just knowing how in-boxes display emails makes Kushner’s didn’t read it claim dubious. Image result for smoking gun

Incidentally, if I was investigating this, I would get all Junior’s emails during the campaign. I’d be looking for how many had ‘private – confidential’ in the subject and what the subjects of those were.

Did Junior often use that phrase in the subject line? Maybe not. If that’s the case, it’s extra bad for Junior, Kushner and Manafort.

Third, if he didn’t read it, how’d he wind up at the meeting? Think about that one for a minute. The only plausible answer is that they had talked about it, but that might be worse for Kushner.

Fourth, the law presumes you read your documents. Yea, I get that technically it just assumes you read a contract that you signed even if you didn’t. But the underlying premise applies, just not as much as if it was a contract. Kushner is starting with a presumption that he read the email. Just saying he didn’t is unlikely to cut it. Most people will not believe him.

Fifth, documents are considered ‘smoking guns’ because you can’t argue about what’s on the paper. Sometimes you can argue about what it means, but that’s not the case here.

In contrast, oral testimony is more malleable. One of the main things I look at when screening a case is whether the case boils down to a swearing match. This is sometimes referred to as a “he said, she said.” I hate swearing match cases on the plaintiff side. Who can say who the favorite is in a swearing match? Absent other evidence, I rate every swearing match a coin flip, at best.

But you can build a case around documents. In a human vs. document swearing match, the document is always a big favorite. For example, in a medical case, whichever side has to argue that the medical records are wrong about something is not favored to persuade the jury on that point.

The same rationale applies to Junior’s email. Would Kushner go to trial if his defense was that he didn’t read the email and didn’t know that the subject of the meeting was collusion? If he did, it would likely be against the recommendation of his lawyers.

In summary, Junior’s email is a ‘smoking gun’ piece of evidence that the Trump campaign knew and encouraged the Russian government to intervene in the election.

But what about Trump, Sr. Did he know? A few days after this email exchange, he said he would give a big speech exposing Clinton. That’s circumstantial evidence that he knew about the meeting and Russia’s efforts to help him win. The fact he is freaking out over the investigation? The fact that in interviews his tone of voice changes like he is about to cry? More circumstantial evidence that he knew and the vice is tightening.

There also seems to be a pattern developing to Trump’s freakouts. The White House learns of incriminating evidence weeks before the public. So this week’s freakout could be about the big news we hear about next month. What happened this week? Manafort testified and gave Congress his meeting notes. What ever happened to Manafort anyway? Where’s he been hiding out?

Most lawyers I’ve talked to about the known evidence believe that one or more of the Trump-side players have already flipped. Even if they haven’t, it’s going to be really hard for team Trump to hold this together once the FBI starts sweating them. More likely, they start playing ‘Let’s Make a Deal.’