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

Jones County Voters Elect New Circuit Judge

Posted in Politics in Mississippi

For the first time in nearly 30 years, someone other that Judge Billy Joe Landrum will preside over the Jones County Circuit Court in January. Laurel attorney Dal Williamson defeated Judge Landrum in Tuesday’s runoff.

Not much media coverage of the runoff. I couldn’t find anything other that the WDAM story linked above, which provides little information.

Rare Circuit Court Judge Runoff Today

Posted in Politics in Mississippi

Today Jones County voters will decide a rare runoff in a Circuit Court Judge election. The runoff is between longtime incumbent Judge Billy Joe Landrum and Laurel attorney Dal Williamson. Things have gotten a bit heated in Laurel.

From the WDAM article on the election:

 “My opponent has resorted to negative ads, untruth, that’s very disappointing,” said candidate Dal Williamson. “When I pick up the newspaper and I read an ad that says no circuit court experience, zero jury trials.” 

Williamson said it concerns him when he sees statements about him in full page ads. He said an ad that states he has no circuit or county court experience is false. 

“He has never tried in my court since I’ve been on the bench, ever, period,” said incumbent Judge Billy Joe Landrum. 

Williamson said he’s handled at least 16 cases in the Jones County Circuit Court, which are all signed by Judge Landrum and go back to at least 1993.

My Take: 

How many people are going to get out and vote when the race on the ballot is a runoff for a judicial position? My guess is not many. That must favor whoever has the most hardcore supporters.

About the first time that I ever appeared in court when I was about 12 fresh out of law school was in Judge Landrum’s courtroom. I don’t remember what the case was about. But notorious lawyer Travis Buckley filed some sort of motion to strike our written discovery because it contained sub-parts. Seriously.

Seeing where this was headed, my supervising partner at Wise Carter–the one with subparts in his form discovery–sent me to the slaughter argue the motion.

Everyone in the courtroom expected the kid lawyer from Jackson to lose the motion. And he did.

Judge Landrum was kind of gruff in the hearing. But 20 years and many hearings later, it’s memorable only because it was my first court appearance, Buckley was on the other side and it was about the stupidest motion I’ve ever seen filed.

Of course, I’ve never used sub-parts in written discovery since then.

PERS Still Massively Underfunded Despite Stock Market Hitting All-Time Highs

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

Steve Wilson at Mississippi Watchdog recently wrote here about how Mississippi’s pension system ranks nationally. From the article:

A new report by nonprofit State Budget Solutions says Mississippi’s Public Employees’ Retirement System of Mississippi is carrying $56 billion in unfunded liabilities, worst in the nation — now at 53 percent of the gross state product in 2013. It covers only 27 percent of the state’s liabilities, which is fifth-worst.

The amount of unfunded liability compared to gross state product is an attempt to make an apples to apples type comparison, since population differences make ranking total unfunded liability not particularly illuminating. 

Mississippi’s fund enjoyed stellar rates of return of 18% in 2014 and 13.4% in 2013. That’s good news.

But to get there, the fund had to heavily invest in stocks as opposed to bond investments that typically support conservative investments programs.

There are people who argue that the world economy is in a liquidity bubble as a result of QE type programs. These people predict that at some point, governments will have to stop pumping money into the economy and that when that happens, the stock market is going to crash again.

Were that to happen, Mississippi’s PERS is going to get massacred if it remains so heavily invested in stocks. And considering the fact that PERS is still way underfunded despite record returns, expect the system to keep chasing high returns in the stock market.

The stock market has lost 50% of its value twice in the last 15 years. Now it’s at all time highs. Yet for the average Joe (like me), the general economy still feels pretty bad. There is a disconnect there that makes many people fearful of the stock market at its current valuations.

What would happen to PERS if there was another 50% drop in the stock market in the next 5 years? The whole thing should be scary for lawmakers, taxpayers and PERS participants.

But don’t expect this to come up when the legislature convenes in January. No elected official wants to be the bearer of bad news when it comes to PERS.

November Mississippi Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

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

  • $4,568,116 verdict- Hinds County products liability case discussed here (10/7/14);
  • $484,481 verdict- Harrison County medical malpractice case (9/25/14);
  • $65,000 verdict- Aberdeen federal court employment retaliation case discussed here (9/20/14);
  • plaintiff verdict- Oxford federal court insurance coverage dispute (9/26/14);
  • defense verdict- DeSoto County medical malpractice case (9/9/14);
  • defense verdict- Madison County pedestrian collision case (9/9/14);
  • defense verdict- Jackson federal court nursing home case discussed here (10/23/14); and
  • defense verdict- Panola County alienation of affection case discussed here (10/17/14).

My Take:

At 2-2, it was a bad month for doctors. First, the retired doctor plaintiff lost the pedestrian collision case resulting from his walking track collision with another patron at The Club.

This was a landmark verdict. It’s not often that walkers are zoned out enough to actually collide. Even rarer do injuries result. But then a big circuit court trial? John Grisham must be salivating to work this trial into one of his books.

Later in September, a doctor lost a medical malpractice trial in Harrison County of all places. 

Doctors evened their record by winning a DeSoto County medical malpractice trial and a Panola County alienation of affection trial.

Winning half your games will get you fired as the football coach at most SEC schools. The same probably applies for  representing doctors in Mississippi in 2014.

U.S. Supreme Court Reverses 5th Circuit in a Jim Waide §1983 Action

Posted in 5th Circuit Court of Appeals, U.S. Supreme Court

On Monday the U.S. Supreme Court reversed a 5th Circuit decision that affirmed the District Court’s grant of summary judgment in Johnson v. City of Shelby. Here is the Court’s per curiam Opinion.

The plaintiffs worked as police officers for the City of Shelby. They alleged that they were fired for refusing to ignore an alderman’s criminal activity.

The District Court dismissed the Complaint because plaintiffs failed to specifically invoke 42 U.S.C. §1983 in their complaint. The Fifth Circuit affirmed. 

In reversing the Fifth Circuit, the Court stated:

federal pleading rules call for a ‘short and plain statement of the claim showing that the pleader is entitled to relief’….they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.

If you’re like me, you are wondering about Twombly and Iqbal. But the Court explained that they:

…are not in point, for they concern the factual allegations of a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard….Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. 

It appears that the Court granted cert and reversed all in one shot. That’s got to be a great feeling given the long odds on the Court granting cert in a case.

Jim Waide of Tupelo represented the plaintiffs.

Gary Friedman, William Harvey and LaToya Merritt with Phelps Dunbar in Jackson represented the City of Shelby.

$125,000 Jury Verdict in Oxford Federal Court Bad Faith Case

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

On November 4, 2014 a federal court jury in Oxford rendered a plaintiff verdict of $125,000 in Pass v. GEICO. Here is the Judgment.

Here is the Pre-Trial Order.

The plaintiffs bought car insurance from GEICO over the telephone. GEICO sent plaintiffs an insurance card showing they were covered. Nine days later, plaintiffs were in a car wreck.

GEICO denied coverage, claiming that the plaintiff’s bank account had insufficient funds to cover the premium. Bank records showed, however, that GEICO never attempted to debit plaintiffs’ account and the account had more than sufficient funds to cover the premium.

The jury agreed with plaintiffs and awarded $125,000 in damages. I am assuming that the trial judge refused to instruct the jury on bad faith, since there was no mention of a finding on the issue in the jury’s verdict.

Plaintiffs’ attorney was Shirly Byers of Holly Springs. GEICO’s attorney was Melanie Stewart of Germantown. Judge Sharion Aycock presided in the case.

Defense Verdict in Jackson Federal Court Nursing Home Trial

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

On October 23 a federal court jury in Jackson rendered a defense verdict in Haymore v. Chadwick Nursing & Rehab. Center. Here is the Court’s memorandum opinion denying SJ, which outlines the case facts.

The nursing home resident entered the facility in 2009 at the age of 79 with a history of diabetes, strokes and other medical issues. At the time of the admission, the resident had a dark purple mushy area on her right foot that did not heal, progressed to a Stage III pressure sore, became infected and led to an above the knee amputation. Plaintiff alleged that Defendant’s negligence caused the amputation.

The jury disagreed, finding that the nursing home did not breach the standard of care. Here is the verdict form.

The trial lasted from October 20-23.

Davis Frye and La’Verne Edney with Baker Donelson in Jackson represented Chadwick.

Wes Fulgham with Morgan & Morgan in Jackson represented the plaintiff.

Judge Sul Ozerden presided in the case.

My Take:

Not a big surprise given the resident’s condition when she entered the nursing home (wound present and resident diabetic).

Plaintiffs run into trouble in bed sore cases when the sore started before the resident entered the nursing home and the resident’s underlying medical condition makes it difficult for a wound to heal.

Defense Verdict in Panola County Alienation of Affection Trial

Posted in Alienation of Affection Lawsuits, Verdicts in Mississippi

On October 17, 2014 a Panola County jury rendered a defense verdict in Thomas v. Beer. The case involved everyone’s favorite cause of action–alienation of affection.

The defendant was an OBGYN who had an affair with a nurse who was married, but had filed for divorce. The evidence included over 1,700 text messages between the the doctor and nurse.

The defendant doctor convinced the jury with arguments that the affections were already alienated due to the plaintiff’s conduct before the nurse filed for divorce and the nurse was the pursuer. [Picture Sheriff Buford T. Justice telling the Bandit what an outstanding pursuee he was].  

Ray Hill, III of Oxford represented the defendant. Robert Schultze and Cory Williamson of Oxford represented the plaintiff.

My Take:

Doctors seem to be the favored target in alienation of affection lawsuits. Perhaps another white-coat day at the capital is in order with doctors threatening to leave the state if the legislature does not protect them from all these alienation of affection lawsuits.

How Many Lawyer Ranking Services Do We Need?

Posted in General

When I started practicing, when it came to lawyer ratings there was pretty much Martindale-Hubbell and nothing else. Perhaps there were other services at the time. But Martindale-Hubbell ratings were a big deal compared to anything else.

In the last twenty years Martindale-Hubbell’s prominence decreased significantly. Most lawyers no longer feel it necessary to buy a listing in Martindale-Hubbell’s directory. Many lawyers ended their relationship with the company with a bad taste in their mouth due to questionable billing and contract renewal practices.

With the internet, many other similar type outfits have sprung up. Now days lawyers get bombarded with attorney rating/ ranking sites. They include:

Most–if not all–of these services have one thing in common: they are trying to sell something to lawyers. The less direct will list or rank a lawyer without money exchanging hands and merely try to sell something in connection with the lawyer showing off his/her “prestigious” ranking.

Others are more overt and require a large payment or hundreds of dollars in annual dues to be included in the organization’s listing. 

The interesting question is how much does all this stuff matter? A lawyer could spend a lot of money related to these organizations. What would the return of investment be?

I don’t have the answer. Like many (if not most) lawyers, I struggle with this question every time I get an invitation or solicitation.

Bar Tribunal Eviscerates Jury Verdict Against Mississippi Attorneys

Posted in Mississippi Supreme Court

In 2010 I posted about a jury verdict for fraud against McComb lawyers Thomas Brock and William Guy. Here is the post and a related post about a ruling on a motion for attorney’s fees in the case.

From my 2010 post:

The trial involved the claims in two cases. Here are the Amended Complaints in the Turner case and the Harried case. Ill. Central sued the lawyers and their clients, but the clients obtained a defense verdict at trial.

The Complaints alleged that the individual defendants were plaintiffs in the big Cosey Jefferson County asbestos case that was filed in 1995 in which there was a massive plaintiff verdict around ten years ago. It was one of the verdicts that led to tort reform in Mississippi.

The defendants sued Ill. Central in 2001 in Jefferson County asserting an FELA claim related to exposure to asbestos. The defendants failed to disclose to Ill. Central that they were plaintiffs in theCosey case and settled their claims with Ill. Central for $90,000 and $120,000 respectively. The individual defendants testified that the lawyers (Guy and Brock) were aware of their prior asbestos claims in Cosey.

Ill. Central sued the lawyers and their clients for fraud. I believe that the verdict was for the $90,000 and $120,000 previously paid by Ill. Central, but a judgment is not on file yet, so I am not sure.

After the verdict, the Mississippi Bar brought disciplinary charges against Brock and Guy. On October 16, 2014, the Mississippi Supreme Court threw out the charges. From the Court’s hand down list:

The Mississippi Bar v. Thomas W. Brock; Consolidated with 2010-BD-01859-SCT The Mississippi Bar v. William S. Guy; Disposition: Respondents’ Motion to Dismiss Complaints is granted. This Court hereby accepts and adopts the recommendations of the Special Tribunal with respect to this case. Adopting said recommendations, this Court finds that the clear-and-convincing evidence standard required for imposition of disciplinary action against attorneys in Mississippi has not been met in this case. The complaints filed against Thomas W. Brock and William S. Guy by the Mississippi Bar are dismissed. Costs of this action shall be assessed to the Mississippi Bar. Waller, C.J., for the Court. Order entered.

In reaching its decision, the Court adopted the Complaint Tribunal’s Findings of Fact and Recommendations. The findings state in part:

…there is in fact not clear and convincing evidence that either Attorney Brock or Attorney Guy had actual knowledge of the subject prior asbestos lawsuit or diagnosis, or otherwise committed actual fraud.

In a footnote the Tribunal further states:

Indeed, upon the Tribunal’s careful consideration of all such evidence, there is no credible or otherwise persuasive evidence that either such attorney actually committed fraud.

Based on the Tribunal’s findings, the Bar even joined the motion to dismiss the complaints, stating that:

disbarment of, or other disciplinary action against, either of the two respondents is inappropriate under the circumstances.

Here is the Bar’s Joinder to Motion to Dismiss Complaints.

My Take:

It’s not easy to write a blog post when you can’t stop singing to yourself: “I’ve been working on the railroad, all the live long day.” Thank god I don’t remember any other lines of that song.

It’s hard to read this as meaning anything other than the jury got it wrong. Just another reminder that jury trials are crap shoots.

What ever happened to the days when mass tort lawyers drank together, golfed together, “played” together and made sure that in the end, everyone got paid?