Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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The Court of Appeals issued a record (?) thirty-two opinions today leading into the July hiatus. I have not read all thirty-two and hope Tom Freeland or Ipse Blogit beats me to it.

In Borne v. Dunlop Tire Corp.  a unanimous Court affirmed the trial court's grant of summary judgment due to the fact that Plaintiff's affidavit supporting the opposition to the motion was based on hearsay and not personal knowledge. This was a products liability case involving a Ford Explorer roll-over where the Plaintiff did not have the Explorer or the other three tires on the vehicle. Judge Samac Richardson granted summary judgment because the Plaintiff could not prove that the tire that the Plaintiff did have came off the subject vehicle. The Plaintiff's attempt to satisfy this burden consisted of an affidavit from an attorney that was not based on personal knowledge.

The decision could be categorized as a mercy killing. A footnote states that the Plaintiff was able to settle with Ford Motor Co., although I can't imagine it having been for a large amount without the vehicle. Most plaintiff lawyers understand the importance of having the product at issue in a products case. Unfortunately, the actual plaintiffs sometimes let the product get away before hiring a lawyer who will secure the vehicle or other product.

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The Law and More Blog has an interview with Chuck Moellenberg, Jr., the Jones Day partner who led the defense in the recent Jefferson County $7 million lead paint verdict. Here is the story. The story contains an "on the record" quote, which suggests there was an "off the record" excerpt that was deleted. Moellenberg characterizes the verdict as an "aberration" in a county where no manufacturer has ever won.

On another note related to the trial, I am hearing a lot of rumors that trial observers did not think much of the defense experts.

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An A.P. article reported in the Clarion-Ledger stated that Sherwin-Williams plans to appeal the $7 million lead paint verdict in Jefferson County last week:

An attorney for Sherwin-Williams said the company will appeal the verdict. Attorney John Corlew said Sherwin-Williams hasn’t used lead in residential paint since 1972.

Before an appeal Sherwin-Williams will file post-trial motions asking Judge Lamar Pickard to issue a judgment in its favor notwithstanding the verdict or a new trial. Sherwin-Williams will probably also ask the judge to reduce the amount of the verdict. Those types of motions are usually denied by trial judges, but they must be filed an ruled on before a filing a notice of appeal. That means that an appeal will not be filed for weeks. A ruling on an appeal is probably two years away. The case could also settle before an appeal is filed or during the appeals process.

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There are reports of a $7 million plus jury verdict this week in a Jefferson County lead paint trial. The case was Pollard vs. Sherwin-Williams Company. It's my understanding that Plaintiff's counsel included Tim Porter and Dennis Sweet of Jackson and Michael Casano of Gulfport. Defense counsel were John Corlew and Kathy Smith of Jackson.

The trial was of a case where Circuit Court Judge Lamar Pickard granted summary judgment for the Defendant and the Court of Appeals affirmed. On appeal, the Mississippi Supreme Court reversed and remanded the case for a trial on the merits. Here is the Supreme Court's opinion. Barring a settlement, look for this verdict to be appealed.

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The Clarion-Ledger has a story today on former Mississippi Supreme Court Justice Oliver Diaz's defamation lawsuit against former U.S. attorney Dunn Lampton. The case focuses on the government's investigation and prosecution of Diaz and his wife Jennifer while Lampton was U.S. Attorney for the southern district of Mississippi.

Oliver Diaz was acquitted of all charges in two trials and there was pretty much universal agreement in the legal community that the charges were extremely weak. In fact, many people believe that Paul Minor was not convicted in his first trial because he was tried with Diaz and the charges against Diaz were so weak. The fact that Diaz was charged also made the charges against Minor look more politically motivated than they otherwise would have.

The story was better covered yesterday on local blogs, including NMSCommentor.  Mr. and Mrs. Diaz are represented by former Supreme Court Justice Chuck McRae. You have to figure that the lawsuit, which was technically initiated by Lampton's cousin, is about more than money.

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According to this article in the Sunday Clarion-Ledger, Judge Yerger is allowing attorneys for Frisby Aerospace to take the depositions of Joey Langston, Timothy Balducci and Steve Patterson in the Eaton v. Frisby trade secrets case. Judge Yerger previously stayed the proceeding and the article does not explain why he lifted the stay. The three are all currently serving prison sentences for their roles in Scruggs-gate.

Eaton v. Frisby is a huge case involving many of the most prominent attorneys in the state:

In the trade secret case, Eaton Corp. alleges in the lawsuit that engineers who once worked for the Jackson company stole trade secrets for military contracts and gave them to Frisby Aerospace of North Carolina when they went to work there in 2002.

Frisby attorneys maintain rulings from DeLaughter began going in Eaton's favor when Peters became one of Eaton's attorneys. They won't discuss getting depositions of Langston, Balducci or Patterson. But Alan Perry, one of the attorneys, noted in court Peters' role in the other case involving DeLaughter. "It's a similar pattern," Perry said.

It seems like federal authorities who investigated DeLaughter did not find significant evidence of improper conduct in the Eaton case, since the case was not included in the allegations upon which DeLaughter will be tried and did not lead to further indictments.

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Two characterizations Saturday of Brant Brantley, outgoing Director of the Mississippi Commission on Judicial Performance, could not have been more different. According to the Clarion-Ledger in this article:

A man Mississippi judges fear to see in their courtrooms is stepping down as head of the watchdog group that investigates judicial wrongdoing.

In contrast, Jackson blogger the Kingfish disagreed in a post on his Jackson Jambalaya blog:

Fear? If anything they laugh at Brantley as his lax treatment of wayward judges is well-known in the legal community. It is a rare day indeed when Brantley prosecutes someone who is not a justice court judge. Brantley's modus operandi is to discipline a judge after someone else has done the same and forced his hand.

I don't always agree with Kingfish, but he has a way with words and does some excellent reporting on his blog.

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Pursuant to a court order, A&O Life filed another affidavit today regarding the members of the LLC that owns A&O, which is Blue Dymond Capital Group, LLC, which is owned by Physician's Trust, LLC. Here is the affidavit, which was signed by Russell Mackert.

The affidavit states that Brent Oncale and Adley Wahab sold A&O to Blue Dymond in August or September 2007. Incidentally, I also received an email from a Houston lawyer last week who represents Wahab. The email stated that Wahab sold his interest in A&O in the late summer of 2007 and that he has no ongoing managerial or other control with A&O Life Funds LP.

Mackert's affidavit goes on to state that in February 2008, Blue Dymond asked Mackert to assume a managerial/ custodial role for the A&O entities. Paperwork was executed by Mackert's contact at Blue Dymond, R.J. Stephenson. Mackert is now unable to get in touch with Stephenson, which prevents him from identifying the members of Blue Dymond.  

A&O's affidavit raises a dilemma for Judge Ozerden, who appears to be trying to determine if the court has diversity jurisdiction over the dispute. It will be interesting to see what Judge Ozerden does next.

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The New Orleans Times-Picayune is reporting that the Judicial Panel on Multidistrict Litigation has instituted an MDL proceeding in New Orleans for all Chinese Drywall cases pending in federal court. The presiding judge will be Judge Eldon Fallon, who also presided over the Vioxx MDL. Chinese drywall cases involve homes built with drywall containing sulfur, which smells horrible.

In most cases defendants like having an MDL and plaintiffs hate it. While the litigation may be more efficient in an MDL from a global perspective, it usually slows down individual cases. I previously posted about a Chinese Drywall class action filed in Mississippi by Ocean Springs attorney Steve Mullins in this post. The Times-Picayune article did not mention any Mississippi cases, but all federal court cases will be transferred to the MDL. 

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This article in the Northeast Mississippi Daily Journal confirms that Rep. Bennie Thompson submitted to President Obama Christi McCoy as the next U.S. Attorney for the Northern District of Mississippi. McCoy is originally from Booneville and practices in Oxford.

The article mentions Forest attorney Constance Slaughter-Harvey as the potential nominee in the Southern District. That would be interesting, since Slaughter-Harvey is rumored to have removed her name from consideration. More recently, Deborah McDonald of Natchez is rumored to be the leading candidate.

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Several recent newspaper articles and columns speculate on a possible Haley Barbour presidential run in 2012. Here are links to an A.P. article, a short Washington Post article, and a David Hampton column in the Sunday edition of the Clarion-Ledger. The Washington Post story contains the following quote:

As one GOP operative who forwarded today's invitation to the Sleuth put it, "Here's Haley Barbour making some 2012 moves. When you start going to Iowa and New Hampshire, the writing's on the wall."

Speculation is growing about whether Barbour could win the Republican nomination in 2012 and, if so, whether he could win the general election. While I am not laying the odds on either happening, he looks like a viable candidate for several reasons. First, look at history. Jimmy Carter, Bill Clinton and Barack Obama all arguably came more out of nowhere to win the presidency than Barbour would. Barbour looks more plugged in with his party than Carter or Clinton and faces less competition than Obama in getting the nomination.

My second point is Barbour himself. People criticize his heavy southern drawl, but unlike our last two term president, no one ever says that he sounds or is stupid. He is smart and interviews well. He looked and acted like a leader in the days following Katrina--unlike Louisiana and federal leadership.  

Third, look at the competition. Palin? Gingrich? Romney? You can make just as good a case against everyone else as against Barbour. 

Finally, look at how the parties select their nominees. It's a crap shoot. Win Iowa and New Hampshire and everyone else winds up broke and goes home. McCain looked dead as the nominee for months and then he wiped out the field. Most states don't even have a real say in the nomination. Last year the democratic primary was the first time I can remember it not being over by the time Mississippians got to vote.

The nomination process is like a football game decided mid-way through the first quarter. Arkansas State might score an early touchdown and take the lead over Florida, but the game isn't called with Arkansas State declared the winner. But that's basically how the nomination process works. If Haley Barbour--or anyone else--is winning early, then they can win the nomination. And while it's true that not anyone can be in the lead early, Barbour is among the people who can be. So I don't see how you can discount Barbour as a real possibility.  

Win the nomination and Barbour can win the presidency. The 2012 general election will likely be about the nation's feelings about the Obama presidency. The Republican nominee will not matter nearly as much as how the nation feels about Obama.   

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The Mississippi Bar sent an email to members on Friday warning about an internet scam directed at lawyers. Here is NMC's post on the scam, which includes a comment that large regional firm Bradley Arant fell for the scam to the tune of $400,000. There is also an ABA story on Bradley Arant getting victimized. Don't neglect to read the comments, which include:

What do you want to bet this firm only interviews (or interviewed, when anyone was actually hiring) law students in the top 10-15% with Law Journal experience?

Hate to sound like a bitter graduate, but although I may not be in the top 10% or have had the time to do Law Journal, I am certainly not enough of a sucker to have fallen for this trick.  Good grief.

lol i agree.  A C law school student from a 3rd tier law school wouldn’t have fallen for this scam.  It has to be a top 10 student from a top 10 law school. 

The best and brightest have no street smarts and are dumber than a box of rocks when it comes to commen sense. 

If it's any consolation, I bet the victim can spell better than the guy who wrote that last comment. The Bradley Arant incident did not involve any of the firm's Mississippi lawyers.

The scam sounded familiar, so I dug through my deleted emails and found the following email, which sounds a lot like the scam:

I  will be out of the office from April 30th through May 30th. I have asked my assistant Rachael to provide necessary information on a breach of contract case resulting to unpaid balance for goods supplied for your possible representation.

The creditor (Suneom Technology Co., Ltd., China), my client has requested for immediate action to proceed with collection of the outstanding balance valued at

$485,750.00.

You may contact Rachael on -- [redacted] for more information.

Treat with prompt attention.

Thank you.

[redacted]

Law Offices [redacted]

[redacted], White Plains, NY 10601

Toll free: [redacted]

[redacted]

****** CONFIDENTIALITY NOTICE ******

This communication contains information which is legally privileged and confidential. It is for the exclusive use of the intended recipient(s).

 I redacted parts of the email because I do not want any of my lawyer readers stealing this potential lucrative client. Like many lawyers, I receive several emails a week that sound like a variety of this scam.

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In the Colson litigation Judge Ozerden entered the following order today requiring the A&O entities to identify the partners of Physician's Trust, LLC:

TEXT ONLY ORDER directing Movants 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 on or before Tuesday, June 16, 2009, an Affidavit or Declaration identifying the members of Physician's Trust, LLC, and their respective citizenships. If any member of Physician's Trust, LLC, is a partnership or an limited liability company, Movants are directed to likewise identify the partners or members of that entity and their respective citizenships, and so on. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT REGARDING THIS DIRECTIVE. Signed by District Judge Halil S. Ozerden on 6/9/2009. (EMN) (Entered: 06/09/2009)

This is the third similar order and, apparently, the last. The "so on" language should get this matter to the bottom of what Judge Ozerden is apparently looking for: the people who own the A&O entities. It will presumably be Adley Wahab and his partners.

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On June 2, 2009 a Warren County Circuit Court jury returned a $2.83 million verdict in an automobile accident case. Here is the verdict form, which listed twelve categories of damages. I suspect that the defendants would have been better off with a general verdict form with one line for the total damages. Plaintiff's counsel was Gale Walker and John Walker.

There are also reports of a defense verdict last week in Scott County in a medical malpractice wrongful death case. Plaintiff's counsel was Shane Langston and defense counsel was Mildred Morris at Watkins and Eager.

There was also a large verdict in Warren County in April as discussed in this earlier post. Warren County is considered a conservative venue. The string of large verdicts this year in conservative venues suggest two things. First, that large verdicts can be obtained in conservative venues with the right facts. Second, that insurance companies and defense lawyers became overly emboldened by the fact that the Mississippi Supreme Court  went years without affirming a jury verdict and are trying cases that should be settled. But the Mississippi Supreme Court and Court of Appeals have affirmed jury verdicts lately and defense lawyers can no longer confidently tell plaintiff lawyers that we're going to try it, and if you win, we'll get it reversed on appeal. 

It took a while for the legal community to recognize how conservative juries and the appellate court were in the early to mid- 2000's. Now with a swing back to the middle, it may again take a while for everyone to recognize the change.

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Stop and ask the first nine people you pass on the street if it would be fair for a judge to decide the case of someone who contributed $3 million to the judge's campaign and chances are, all nine people will tell you that it would be unfair. But at the U.S. Supreme Court, that very issue garnered the slimmest 5-4 majority decision that the judge in question should have recused himself.

The case was Caperton v. A.T. Massey Coal Co. Here is the Court's opinion. If you don't like reading judicial opinions, then read John Grisham's The Appeal , which was based on the case. The Court's majority opinion reached the correct result and I agree with this observation by the New York Times:

Indeed, the only truly alarming thing about Monday’s decision was that it was not unanimous. The case drew an unusual array of friend-of-court briefs from across the political spectrum, and such an extreme case about an ethical matter that should transcend ideology should have united all nine justices.

The purpose of our nation's justice system is to right the wrongs. The majority opinion did that, as noted by the Los Angeles Times:

In ruling that a justice on West Virginia's highest court should have recused himself from a case involving a campaign benefactor, the U.S. Supreme Court has righted an egregious wrong. More important, the 5-4 decision will encourage judges to avoid both the appearance and the reality of conflicts of interest.

It is disturbing that Chief Justice Roberts and three other hard line conservatives would sanction a clear wrong. The dissent raises the possibility of cases being flooded with motions for recusal. But isn't that better than judicial elections being flooded with special interest cash from individuals and groups who know that the Supreme Court will allow an appellate judge to decide the case of a party who contributed millions to the judge's campaign? Plus, I'm not buying the dissent's argument. How many motions for recusal will be filed based on campaign contributions measured in the thousands or less? Especially since the majority opinion makes clear that recusal would not be required in most instances.

The case hits close to home in Mississippi given the recent judicial bribery scandal. In February a Mississippi Bar Task Force established to make recommendation to strengthen public confidence in the legal system issued this report that concluded that money was the root of public mistrust in the legal system. With respect to Mississippi Supreme Court elections the task force stated:

For some twenty years each election has seen huge amounts of money spent, money largely contributed by donors who have a direct stake in the outcome of judicial decisions.

The Task Force recommended that future justices of the Mississippi Supreme Court should be appointed in order to address this problem. The Task Force is correct, as is the majority's opinion in Caperton. 

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I was able to obtain more information on the recent $4.6 million jury verdict in Hinds County Circuit Court. It is my understanding that the defendant was Baptist Hospital and one or more physicians, but that the verdict was only against the hospital. It was a wrongful death case where the plaintiff's records disclosed that she was allergic to latex, but the hospital used latex gloves in her surgery, causing her to die. The decedent was a young attorney employed by the Department of Human Services and the case was a pre-tort reform cap case. Since the decedent was and attorney, the plaintiff would have been able to prove substantial economic damages.  

The Plaintiffs did not ask that the case proceed to a punitive damages phase. Plaintiff's attorneys at trial were Joey Diaz and Dennis Sweet of Jackson. Judge Kidd was the trial judge.

In a separate case, I understand that there was an 11-1 defense verdict in Hinds County last week in a nursing home case. Sharon Bridges with Brunini was on the defense side and plaintiff's attorneys included John Hawkins and Precious Martin.

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According to an article in today's Sun Herald:

U.S. Rep. Bennie Thompson’s office has made nominations for U.S. attorney positions in Mississippi and awaits action from President Barack Obama, who must fill a large number of open slots.

Thompson’s office wouldn’t provide any details of who was recommended. The recommendations were made to the president between January and March. For now, they wait on word from Washington, where those recommendations are being vetted.

The story referred to speculation on blogs regarding the candidates for the southern district nomination, citing Jackson attorney Kathy Nester, Natchez attorney Deborah McDonald and Jackson attorney Dorsey Carson as the potential nominees for the southern district slot. A Thompson staffer confirmed that the process is still in the early phase.

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Tuesday night it was reported on the MAJ list service that Jackson plaintiff attorney Joey Diaz obtained a $4.6 million verdict Tuesday in a medical malpractice case, with the trial proceeding to the punitive damages phase. The email that was forwarded to me contained no other details.  I will post more information if it becomes available.

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The Clarion-Ledger is reporting that Hinds County Circuit Judge Swan Yerger will not run for reelection when his current term expires on December 31, 2010.

Judge Yerger is 74 years old and has served on the bench since 1997. There have been rumors over the last few months that Judge Yerger would retire at the end of this year, which would allow Governor Barbour to appoint a replacement to serve until the next election. Judge Yerger currently presides over the Eaton v. Frisby trade secrets case, which is probably the biggest case currently pending in any Mississippi state court. Perhaps Judge Yerger plans to stay on the bench through 2010 so that  he can preside over the trial of that case.

Speculation will be rampant over who will run for the seat in 2010. The early favorite would have to be successful Jackson plaintiff attorney Ashley Ogden. Ogden ran against Yerger in the last election and almost won. Rumors around town are that Ogden already plans to run for the seat. Ogden is young and energetic and would be a formidable opponent  for any candidate. Republican interests would fear Ogden due to his plaintiff lawyer background. Ogden's firm web site is called Take Back Jackson and suggests that he never stopped campaigning for the seat. Former Mississippi Supreme Court Chief Justice Jim Smith is now associated with Ogden's firm. The conservative Smith's active support in a campaign would be a huge benefit to Ogden's chances.  

There is no doubt that Judge Yerger's retirement and the looming election to replace him will be a huge story in 2010.  

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The Clarion-Ledger is reporting that Governor Barbour has appointed James Chaney Jr. of Vicksburg to fill the term of retiring Circuit Court Judge Frank Vollor.

Vollor's retired on Sunday after two decades on the bench.

Chaney will serve the remainder of the term through December 2010. He will be one of two judges in the Ninth Circuit District, which includes Warren, Issaquena and Sharkey counties.

The 56-year-old Chaney has served as attorney for the Vicksburg Warren School District since 1987.