On Friday A&O Life filed an affidavit identifying the members of Blue Dymond Capital Group LLC. Here is the affidavit, which was signed by Russell Mackert. The affidavit lists Physician's Trust LLC as the sole member of Blue Dymond. Physician's Trust was identified last week in a comment on this blog as an entity affiliated with A&O.
Based on his prior orders, Judge Ozerden may order that A&O identify the members of Physician's Trust.
After the 2004 presidential election it appeared that the Democratic Party was dead as a national force. If they could not beat Bush in 2004, they simply could not win on the national scale. Regardless of your political views, it was obvious that the Republicans played the political game much better than the Democrats. But what a difference four years and Barack Obama makes. Now people are saying the same things about the Republican Party. Simply put, President Obama and his team do not get out politicked by the the Republicans.
With the appointment to the Supreme Court Monday of Sonia Sotomayor, Obama made a political maneuver that a few years ago Democrats appeared incapable of making. Here are two articles discussing the politics of the appointment: 1, 2. The beauty of the appointment was that it both played to Democratic base and threatened to further drive a wedge between Republicans and swing voters. One article noted that:
He played smart base politics with the historic selection of a Hispanic (a first) and a woman.
The other article noted:
By nominating Circuit Judge Sonia Sotomayor to be the first Hispanic justice on the U.S. Supreme Court, President Barack Obama all but dared Senate Republicans to risk alienating Latinos by trying to block her confirmation.
It was a foregone conclusion that Obama would appoint someone who Republicans viewed as a "liberal." By appointing a Hispanic woman ,Obama should strengthen Democratic popularity with Hispanic and women voters. The more Republicans attack Sotomayor, the more they risk alienating Hispanic voters, a group who Republicans are surely not ready to give up on.
While Senate Republicans will be under pressure from their base to attack Sotomayor, that would be politically foolish. Baring an unforeseen scandal, Sotomayor will be confirmed by the Senate. It makes little sense for the Republicans to alienate swing voters in order to pander to a base who they cannot lose. What is the Rush Limbaugh wing of the party going to do, start supporting Obama? The President will likely get to fill at least two more seats on the Court, so the Republicans should save their attacks for the next "liberal" appointment.
Of course, the fractured Republican Party may cave to its base and attack Sotamayor. If so, look for the attack dogs to be senators from red states like Mississippi that are locked up for the Republicans and have a low Hispanic population. Republicans should instead focus on regaining the party's identity and determining who will lead the party going forward.
Today's Clarion-Ledger contains an article on the defense verdict last week in a silica trial in Claiborne County. Here is the story. I originally mentioned the verdict last week. The article confirms that Fred Krutz with Foreman Perry led the defense team. The plaintiff was 73-year old Eugene Westrope of Hazlehurst. The defendants were Clemco (air-powered blast equipment), Precision Packaging (concrete producer) and Lone Star Industries Inc. (cement manufacturer). Judge Lamar Pickard was the trial judge.
The plaintiff asked for $4.5 million in damages. The jury returned a defense verdict in a 9-3 vote. In state court in Mississippi at least nine jurors must agree on the verdict. In the article, Krutz largely credited the win to the defendants ability to screen potential jurors who were involved or had family members involved in similar litigation. While I do not doubt the significance of the defendants' ability to assure a level playing field, they still had to try a good case to get the defense verdict once the jury was in the box.
It has now been over four months since President Obama's inauguration. But the President has yet to make his appointments in Mississippi for U.S. Attorneys, U.S. marshals and the vacant federal district judge position. Here is a link to a National Law Journal Article that discusses the appointment process for U.S. Attorneys.
There are a total of ninety-three U.S. Attorney positions in the nation. According to the article, state Democrat leaders have made forty recommendations for U.S. Attorneys to the White House with only six appointments so far. Of the forty recommended, the Justice Department has conducted required screening interviews of only twenty. A former Bush administration official explained that the process takes a long time to complete:
Fulbright & Jaworski partner Michael Battle, former director of EOUSA during the Bush administration, said the speed of the process depends on the layers of local-level vetting, as well as the mechanism for identifying potential candidates, which varies by state. "It takes the better part of six, eight, 10 months, as the White House gets more comfortable with doing this," said Battle. "It just takes time."
Based on this statement, it could be this fall before the appointments of Mississippi's two U.S. Attorney and marshal slots.
As for the district judgeship position that is presumably going to Jackson attorney Carlton Reeves, the article sheds indirect light on the process. The article states that the White House rejected Republican pleas to be included in the appointment process in states like Mississippi that have two Republican senators. This suggests that Senators Cochran and Wicker will not be involved in the process and, therefore, unable to block the appointment of a Democrat such as Carlton Reeves. It seems likely that Democrat leaders have already recommended Reeves and that the vetting process is underway. With a summer recess looming for Congress, however, Reeves will probably not take the bench until sometime this fall at the earliest.
There was a defense verdict late Thursday in a Claiborne County silica trial that lasted for at least two weeks. The details that I have are sketchy. I do not know the number of defendants, but I believe that they were sand companies. It appears that plaintiff's counsel included Tim Porter and Allen Smith and defense counsel was led by attorneys from Forman Perry.
A decade ago Claiborne County was one of the state's notorious plaintiff venues with some huge verdicts. A defense verdict in a mass tort type case in Claiborne County is evidence that civil defendants can receive a fair trial in any Mississippi state court and confirms that the "jackpot justice" era is over in Mississippi.
In a 6-2 vote the Mississippi Supreme Court reversed the Court of Appeals today and awarded summary judgment to the defendants in Estate of Northrop v. Hutto. This was a medical malpractice case where the Harrison County Circuit Court (Judge Lisa Dodson) granted summary judgment to Gulfport Memorial Hospital and other defendants on the grounds that the plaintiff's expert witness did not articulate the required standard of care. The Court of Appeals had reversed the trial court.
Reading between the lines, it appears that the plaintiff's expert was unsophisticated as an expert witness and did not understand what the phrase "standard of care" means. Since the expert did not understand the concept of standard of care, he was unable to articulate the standard. Justice Randolph's majority opinion noted that:
The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff’s selected medical expert. The expert must articulate an objective standard of care.
The opinion then heavily quoted the expert's deposition, including testimony like:
Q: So, obviously, Doctor, this would not indicate the standard of care in Marchof 1999, would it?
A: I don’t -- I’m not sure what you mean by describing the standard of care. None of [the documents brought to the deposition] deal with the standard of care. They are all case reports of infiltration, different problems with extravasation. I have not brought anything on the standard of care if that’s what you’re referring to.. . .
Q: . . . There is no textbook of anesthesia that says in writing the standard of care requires visual or palpation observation of the fluid actually going into the vein during an ongoing case; that is correct?
A: That is correct.
Arguably this last question was a trick question, since medical textbooks typically do not articulate the legal "standard of care." A testifying expert must understand that the phrase "standard of care" means articulating what exactly a minimally competent physician would have done in providing reasonable care to a patient. Stated another way, the expert simply must identify what the defendant should have done and state that this is what the standard of care required.
This case is an example of why plaintiff's attorneys have to be very careful in cases requiring expert testimony. just having an expert who "makes a good witness" or looks good on paper is not enough. The expert must also understand what the plaintiff must prove in order to establish a case and be able to articulate opinions that satisfy the plaintiff's burden. That burden includes identifying what the standard of care required the defendant to do. It is also worth noting that although the defendant does not have the burden of proof, defense experts must also be able to articulate the standard in order to be allowed to testify at trial.
This was a fact specific case with little significance to other cases other than serving as a caution signal to lawyers to make sure that their expert witnesses are prepared to testify.
The Sun Herald is reporting that Circuit Court Judge Jerry Terry has announced his retirement effective June 30. Judge Terry is seventy-five years old and has served on the bench for twenty-two years. He served in the second circuit, which included Harrison, Hancock and Stone Counties.
Governor Barbour will appoint a replacement to fill the remainder of Judge Terry's term, which expires at the end of 2010. Harrison County Assistant District Attorney John Gargiulo might be on the list of canidates to replace Judge Terry.
In this memorable quote from the movie Wall Street the character played by Michael Douglas tells Bud to call a number and tell the man that Blue Horseshoe Loves Anacott Steel. A&O Life's filing in federal court listing its member partners reminded me of this quote. The only new name identified in the affidavit was Blue Dymond Capital Group, LLC, a citizen of the West Indies. The person signing the affidavit was A&O front man Russell Mackert.
Mr. Mackert claims to have personal knowledge of the facts in the affidavit, but does not explain who he is, how he obtained that knowledge or his relationship with A&O. The affidavit does not mention Adley Wahab, who is presumably the man behind the curtain. Mackert and A&O seem shady--real shady. Their presence in this litigation is bad for Steve Colson, because he was doing business with these shady characters.
The Shreveport Times has an article about a local man's lobbying efforts in support of the Arbitration Fairness Act of 2009. Forced to arbitrate a claim against the builder of a bad home, the man was awarded less than the actual cost to repair the home. The arbitrator then destroyed the evidence so that the man could not appeal. Referencing the battle in Congress over arbitration, the article states:
Supporters of the act claim mandatory arbitration clauses force people into unfair situations where the cards are severely stacked against them.
Opponents say getting rid of arbitration would clog the justice system and open the door to countless frivolous lawsuits.
The opponents' argument is a boilerplate argument trotted out every time big business wants to limit public access to the judicial system. The public is wising up, however, as more instances of unfair arbitration proceedings emerge. I am waiting for the Chamber to explain how a consumer can afford to arbitrate a claim over a $10,000 automobile purchase when the consumer has to pay the arbitrator an hourly fee that is typically $200- $400 per hour to hear the case, in addition to his attorney's fees.
Congressional limitations on mandatory consumer arbitration has bipartisan support and appears sure to pass in some form.
A Hinds County Circuit Court jury awarded $2.5 million on Friday to David Marble, a thirty-nine year old cable repairman. Here is the Clarion-Ledger story, which is light on the details. The case was tried before Judge Tommie Green. Ashley Ogden represented the plaintiff and Hugh Gillon from Upshaw Williams represented the defendant, Deviney Construction. Plaintiff alleged that Deviney cut a live electrical wire and left without warning anyone about the hazardous condition. Plaintiff later came into contact with the wire, causing severe injuries.
It's my understanding that the plaintiff suffered a back injury and that there was expert testimony that he was permanently disabled. I'm not sure how an electrical contact causes a back injury.
I believe that this is Ogden's fourth seven figure verdict in Hinds County this year. There was also an announcement in the paper on Sunday that former Chief Justice Jim Smith is now of counsel with Ogden's firm, which is very ironic. I'll post more on this verdict if I obtain additional information about the case.
Here is a Notice of Hearing from the Secretary of State of the State of Illinois that provides background information on Colson dispute intervenor A&O Life. The notice accuses A&O of acting as an unregistered investment adviser in Illinois in connection with its viatical life "investments." Apparently, A&O sold interests in its "investments" as a bond fund. It identifies one of A&O's principals as Adley Wahab, a charged felon in the State of Texas in 2004 for forgery of a financial instrument.
The Notice identifies Wahab as a 1996 graduate of LSU.
In my prior post I mentioned that it looked like Lawyer's Title v. Colson intervenor A&O Life does not want much known about its identity. Looks like Judge Ozerden thought the same thing, except he did something about it with this Text Order issued today:
TEXT ONLY ORDER directing Lewis Holdings, LLC; ReMax Alliance; A&O Bonded Life Assets Management, LLC; A&O Bonded Life Assets, LLC; A&O Bonded Life Settlements Management, LLC; A&O Bonded Life Settlements, LLC; A&O Capital Management, LLC; A&O Life Fund Management, LLC; A&O Life Fund, LLC; A&O Life Funds Management; LLC, A&O Life Funds, LLC; A&O Resource Management, Ltd.; Houston Tanglewood Partners, LLC; Life Fund 5.1 Management, LLC; Life Fund 5.1, LLC; Life Fund 5.2 Management, LLC; and Life Fund 5.2, LLC, to file into the record in this case an Affidavit or Declaration identifying the citizenship of each of their respective members or partners, or if not a partnership or limited liability company, identifying their state of incorporation and principal place of business, on or before Friday, May 15, 2009. NO FURTHER WRITTEN ORDER WILL ISSUE FROM THE COURT REGARDING THIS DIRECTIVE. Signed by District Judge Halil S. Ozerden on 5/8/2009. (EMN) (Entered: 05/08/2009)
It's pretty funny that A&O's efforts to conceal its identity actually brought more attention to it.
The Saturday edition of the Wall Street Journal contained an article on the rise and fall of silica litigation. WSJ writer Kimberly Strassel credits U.S. Silica CEO (and former attorney) John Ulizio with single-handedly exposing silica litigation as a fraud. The truth is more complicated and a lot different.
Plaintiffs began filing silica cases in Mississippi in approximately late 2001. By 2003, there were hundreds of cases on file in Mississippi involving thousands of plaintiffs. Mississippi's jackpot justice era was dying by this time, but mass tort plaintiff lawyers did not yet know it.
In the typical silica cases many plaintiffs sued many defendants under Mississippi's formerly liberal joinder rules. At its height, there were in the neighborhood of fifty defendants sued in most silica cases, from national manufacturers to local paint and hardware stores. Many depositions were held where there were thirty or more defense lawyers appearing, all representing a different client. Even more lawyers attended MDL hearings in Corpus Christi, Texas, where the courtroom was packed with lawyers. Most of the lawyers were from Mississippi, since it was where the majority of the cases were filed.
Keeping the numerous clients and attorneys on the same page was like herding cats. The law firms that appeared to take the lead in this difficult task were (in no particular order): Forman Perry, Brunini, Bradley Arant and Dogan and Wilkinson. There was a defense steering committee with five attorneys on it. I can't recall who they all were, but they all made significant contributions. The one lawyer who I saw doing the most to organize defense meetings where cooperation and coordination was discussed was Cheri Green at Brunini.
U.S. Silica's Mississippi counsel was Watkins Eager. I never saw them organizing or presiding over joint defense meetings, boisterously urging joint defense positions, or otherwise trying to keep all the defendants on the same page. I've never heard of John Ulizio. When I bounced his name off a lawyer who was more involved in silica litigation than me, he hadn't either.
To be fair, Mr. Ulizio deflected credit in the article, but Strasell inferred that he was being modest. Unfortunately, Strasell either confused honesty with modesty or the entire piece was a disguised promotional piece. Here are some of the story's hilights, along with my response:
Mr. Ulizio is a humble guy, and gruffly waves off suggestions that he or his company played any special role in this victory. He ascribes the Texas success to all the defendants equally, as well as the willingness of insurers to join the battle, and to enlist top-notch attorneys. But that is to ignore the knowledge and the backbone Mr. Ulizio and U.S. Silica brought to this fight.
Response: Sorry Ms. Strassel, Ulizio is being honest--not modest. While it might be an over-simplification to equally credit all defendants, the defense success would not have been possible without most of the defendants mostly agreeing on major defense issues. U.S. Silica was not the driving force behind these decisions. There was no one driving force, and whatever role that U.S. Silica played, it was not the lead role in the litigation.
Another of Mr. Ulizio's rules was "to treat cases like real cases," a tactic that would prove important in the later Texas litigation. "There is temptation amongst defendants to treat these as a claims process. We tried not to do that, even in cases we settled. We tried to treat each as a real case, where you take depositions, you have people who know what they are doing asking the questions, you demand real medical evidence," he says.
Response: This passage infers that Ulizio and U.S. Silica took the lead in deposing the doctors who diagnosed the plaintiffs with silicosis. I don't believe that is true. I did not attend those depositions, but it's my understanding that Fred Krutz and Danny Mulholland at Forman Perry took the lead in the depositions. I don't believe those guys would have let another firm's client tell them what to do. I also note that Ulizio admited that U.S. Silica settled some cases. Many defendants never paid a penny, including my clients.
He didn't settle: He went public. Private companies tend not to air their litigation laundry, but the silica CEO talked to the media, detailed his lawsuit figures, ginned up coverage of the lawyers' tactics. The growing story emboldened other defendants to fight back. U.S. Silica also pushed hard, behind the scenes, to depose, investigate and fight.
Response: I'm not sure where Ulizio "went public." I didn't see U.S. Silica pushing other defendants behind the scenes and I do not believe that they were. Nothing U.S. Silica did emboldened other defendants. Everything that happened in the litigation would have happened if U.S. Silica was never a party.
Mr. Ulizio nonetheless credits a lot of the victory to luck, and mistakes by the other side. "The real advantage was simply that asbestos had preceded us, and the plaintiffs' side overreached. They had asbestos plaintiffs who were diagnosed with asbestosis but not silicosis, rediagnosed with silicosis but not asbestosis, by the same doctor, with the same X-ray. They laid the seeds for their own destruction."
Response: Luck didn't have that much to do with it. It was hundreds of weak cases, good lawyering on the defense side and many defendants having a back bone at the same time. The insurance companies that I represented decided to reject the plaintiffs' mass nuisance value settlement demand. Other corporate defendants and insurance companies reached similar decisions on their own. No one from U.S. Silica called us and encouraged our decision. A few defendants settled and some (or at least their lawyers) appeared to be cooperating with the plaintiffs' attorneys.
The defendants had already made one bold move, receiving permission to aggregate the suits in front of Judge Jack. It raised the stakes, but in retrospect it was what also allowed defendants to connect the nefarious doctor-lawyer dots. "It was very important to the effort, because it allowed us to see the pattern, and present that pattern to the judge," he says.
Response: Filing the motion to create the MDL was initially controversial and second guessed. Some attorneys hoped that the MDL would would be assigned to a Mississippi judge, since that is where the most cases were pending. I'm not sure how the case came to be assigned to Judge Jack, but it was a big surprise and she was an unknown commodity. Defendants were not initially thrilled with the assignment and probably initially regretted the MDL. The Jackson lawyer who I heard pushed the idea hardest at the beginning was at Forman Perry and I'm pretty sure he did not represent U.S. Silica. As the litigation progressed, Judge Jack grew on the Defendants. Judge Jack was smart, quick witted and had a sharp tongue in hearings that often evoked laugher at the expense of an unlucky attorney. Fred Krutz was often on the receiving end, but he took it with humor and that appeared to make Judge Jack like him.
Even with all that, Mr. Ulizio feared they'd lose. "There was no reason to believe Judge Jack would be as good as she was before she was as good as she was," he says. "One of the dirty little secrets of this litigation is that it didn't have to turn out the way it did. All's well that end's well is the cliché, right? First it's got to end well."
Response: Ulizio is on the money here. Early in the MDL defense lawyers didn't like Judge Jack and the plaintiff lawyers did. That changed in a big way, but the defendants were scared of her for a while.
Conclusion: Lawyers have a tendecy to over emphasize their role in determining the outcome of a case, but here a reporter did it. Don't get me wrong, lawyers can and do win and lose cases. But lawyers are playing the hand (case facts) that they are dealt. The facts of the case almost always have more to do with the outcome than the lawyers. Silica litigation failed because a small fraction of the thousands of silica plaintiffs actually suffered from silicosis. There was great lawyering on the defense side by counsel representing many courageous clients. But to the extent that there was a hero in the litigation, it was clearly Judge Jack.
Judge Jack took an active roll in the litigation to the point of ordering depositions to take place in her courtroom with her presiding. This is an unusual approach for a United States District Judge. Judge Jack issued a 250 page opinion that exposed the litigation. It was Judge Jack who wrote:
But it is apparent that truth and justice had very little to do with these diagnoses–-otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants.
It is Judge Jack's story that should be told in the Wall Street Journal.
On Thursday a 7-2 majority affirmed the Harrison County Circuit Court's dismissal of a case on a Rule 702/ Daubert issue in McDonald v. Memorial Hospital of Gulfport. This was a medical malpractice case and the issue was whether pathologists could render opinions on breaches in the standard of care by a gastroenterologist. The Court sided with the trial court's finding that the pathologists in this case were not qualified to testify.
Justice Kitchens wrote a scathing dissent joined by Justice Graves. Basically the dissent accuses the majority of saying the law is one thing, but then making it something else by its application of the law. According to the dissent, the majority departs from a nationally applied liberal application of Rule 702 when applied to physician testimony and requires that an expert be a specialist in the same area as the defendant. The dissent states that Mississppi does not adhere to the national standard and applies the most restricitve approach in the nation. The majority disagrees with the dissent's characerization of the state of the law.
The problem for litigators is that this leaves the law murky in this area. Murky law makes it hard to litigate a case.
Rather than try to reinvent the wheel on Justice Souter's retirement and speculation on possible replacements, I am providing links to articles discussing these issues:
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