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

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You’ve got to give it to the Mississippi Legislature for sheer unpredictability. With teachers across the state facing layoffs due to budget shortfalls, you would not think that any state employees are getting raises from the legislature. You would be wrong.

Check out Senate Bill 2610, which authorizes raises of as much as $8,300 per year to District Attorneys and lesser amounts to legal assistants and criminal investigators. The bill authorizes the D.A.’s to pay themselves the raises from office-generated funds, county funds, municipality funds, federal funds, grants or private foundations. So pretty much wherever they can find some money, they can use it to pay themselves.

This bill promises to be rather unpopular with other segments of the population, such as teachers and state court judges. Mississippi’s woefully underpaid state court judges have been unsuccessfully trying to get a pay raise out of the legislature for years.

Senators Nunnelee, Dearing, Jackson and Watson sponsored the bill. It’s my understanding that the bill is on Governor Barbour’s desk for signing.

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As discussed in this post, in March State Senate Insurance Committee Chairman Buck Clarke and the insurance committee killed a bill that would have required Mississippi nursing homes to carry $500,000 in liability insurance coverage. In doing so, Clarke showed that he represents a few rich owners of nursing homes rather than every day Mississippians.

Uninsured nursing homes are a menace to their residents. I have compiled a list of uninsured Mississippi nursing homes. My list includes known nursing homes with no insurance and nursing homes with inadequate insurance. I am lumping these groups together because the danger posed by these homes to their residents is the same.

Here is the list, which will be updated as more uninsured nursing homes are identified. The list includes thirty-seven nursing homes operating a total of 3,752 beds. This means that there are thousands of elderly Mississippians currently in harm's way.  

One interesting aspect of my research is that I have yet to identify a non-profit or government owned nursing home that is uninsured. Of the thirty-seven nursing homes identified so far, they are all operate for a profit. T

These nursing homes have a profit over people mentality. The number one priority of these nursing homes is maximizing profits for the owners. Staffing levels are at state minimum requirements and expenditures for resident meals is limited to a few dollars per day. If one of these nursing homes harms a resident, the first thing they do is write a letter saying that they have little or no liability insurance. A lawsuit does not have to be threatened for them to write these letters. You just have to request the medical records from the nursing home. The tone of the letter is that these nursing homes do not have to take care of their residents because they have developed a system in which they can avoid accountability for hurting people.

It is a travesty of justice that we live in a state that requires motorists to carry liability insurance, but does not make the same requirement for nursing homes that are supposed to care for vulnerable adults who cannot take care of themselves.    

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Last week Judge Bramlette issued an Opinion and Order allowing Jackson New Media, Inc. (Alan Lange’s Ya’ll Politics), WDAM, WLBT and WLOX to challenge the settlement agreement in the State Farm v. Hood case. Attorney General Jim Hood opposes the request to unseal the agreement. The challengers will now file a motion to lift the seal and Judge Bramlette will rule on that motion.

It’s an interesting indicator of the direction of the media that the challenge was made by a blog instead of a print newspaper. In the past, newspapers would have made this type of challenge. But with circulations down and news papers both struggling financially and controlled by large corporations, the days of newspapers being the conscience of the community appear over. That role appears to be shifting to bloggers. But in Mississippi at least, there are probably not enough bloggers yet to completely fill the void.

Hopefully, the success in this case will lead to media outlets challenging Judge Yerger’s confidentiality order in the Eaton v. Frisby case. The case is probably the single biggest case in the Mississippi state court system and involved one of the parties (Eaton) secretly hiring Ed Peters when Bobby DeLaughter was the judge on the case. Judge Yerger’s decision to seal virtually the entire proceeding appears unjustified and, more importantly, is not explained in the public court record. 

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For anyone who is interested in the Karen Irby guilty plea who does not already read Kingfish’s Jackson Jambalaya blog, you are going to want to read his coverage of the plea here and here. For my money Kingfish is the best reporter in Jackson.

I have read speculation that Karen Irby will likely be sentenced to 10 years in prison. My recollection of sentencing in past vehicular manslaughter cases is that the defendant gets 10–15 years per count. Irby will be lucky if her sentence is only 10 years. 

NMC contemplates whether the press coddled Irby because she was rich, white and female. Without question, if this had happened before Karen Irby married Stuart Irby and the victims had not been doctors, there would have been much less press coverage. The Irby family is well known in Jackson to the point of being local celebrities.

Although the family's visible profile does flow from the family's wealth, I suspect that it is the profile that more directly accounts for the coverage than the wealth. I don't think the fact that Irby is white and female had that much to do with the coverage. I remember instances of less press coverage of white females pleading guilty to vehicular homicide.

The press covering famous people differently than everyone else is not unique to Jackson. It is an epidemic in the U.S. in our celebrity loving culture.

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On Friday Judge Allen Pepper in the U.S.D.C. for the Northern District awarded a total of $1.25 million in Sims v. U.S., a Federal Tort Claims Act case involving the VA Medical Center in Memphis. Here are the Court's Findings of Fact and Conclusions of Law.

The plaintiff was left partially paralyzed as a result of medical negligence by the V.A. $425,000 of the damages were to the plaintiff’s wife for loss of consortium. The plaintiff’s damages were broken down as $250,000 for pain and suffering and $850,000 for loss of enjoyment of life.

Plaintiff’s counsel were Mark Lumpkin and Matthew Mestayer of Biloxi and Jeanne Steffin from California. Sam Wright and John Gough from the U.S. Attorneys office in Oxford defended the case.

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To be honest, I did not closely follow the debate over health care reform. It seemed to me like most articles and broadcast media stories focused on all the name calling by politicians and their supporters rather than the content of the legislation. But now that its passed and newspapers have been printing the actual new provisions, it looks pretty good to me.

But I hate the current state of politics in the United States. It’s so divisive and there is so little respect shown between Democrats and Republicans. Our nation’s leaders should be setting a good example of how our government works, not screaming “liar” and “baby killer” from the floor of the House of Representatives. 

And it seems that the current slate of partisan “news” shows are part of the problem. When the Rush Limbaughs, Glenn Becks and Keith Olbermanns (to a lesser extent) of the media get so worked up at people who disagree with their view, it sends the message to Americans that they should also attack people who disagree with their view.

Reasonable people can disagree about health care and other political issues. The fact that someone disagrees with me does not mean that they are a socialist, fascist, idiot, etc…. But that seems to be how many Americans think. And they are being led there by the politicians and the news media that covers them.

The whole scene makes me want to tune out of political debates altogether. I suspect that many other people feel the same way.

As soon as the health care reform passed, Governor Barbour and politicians in many other states announced plans to sue the federal government to try to have the new law held unconstitutional. At least least they didn’t announce plans to secede from the Union.

Will Bardwell and Tom Freeland have commented on the prospects of these lawsuits. I don’t understand how Congress can enact social security, Medicare and a national income tax, but not health care legislation. But I don’t have a problem with the filing of lawsuits. Sure they appear designed to ingratiate certain politicians with potential voters, as opposed to legitimate legal disputes. And why aren’t the same politicians suing to do away with social security and Medicare? I mean, can we really afford them? Of course, it would be political suicide to challenge them.  

The judicial system is in place to resolve disputes and if anyone wants to challenge a law, that is the place to do it. So good luck with the lawsuits. The suits will probably lose and the American people could turn on those who file them if they decide that they actually like green eggs and ham, but I’m sure that they have thought about that. 

But in the meantime, as Rodney King said: “can’t we all just get along?”   

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The Mississippi Court of Appeals issued an interesting opinion on Tuesday and reversed a trial court defense jury verdict in Denham v. Holmes. Here is the Court’s opinion. Presiding Judge Joseph Lee wrote the Court’s opinion. The decision was unanimous, but with several unexplained partial concurrences, which I will discuss later.

Tommy Defer and Bobby Vance represented the plaintiffs. John Hyneman represented the defendant.

Facts

The case involved a car wreck on University Avenue in Oxford. Denham was turning onto the avenue and collided with a pickup truck driven by Holmes. Both vehicles were totaled and the plaintiffs suffered injuries.

Daubert Issue 

Plaintiffs designated Donald Rawson to testify as an expert witness in traffic-collision reconstruction. Rawson was to testify by deposition and the parties stipulated that Rawson was qualified to give an expert opinion on the traffic accident. But at trial, the defendant moved to exclude Rawson’s testimony on the basis that it would not aid the jury in reaching its decision.

Incidentally, I find the procedure leading to the defendant’s objection at trial odd. I suspect that the plaintiff’s attorneys went into trial thinking that they had an agreement for the expert to testify by deposition when the defendant stipulated to Rawson’s expertise and use of the deposition at trial. But there was a challenge to the testimony waiting for them at trial.  

Plaintiffs responded to the defense argument by contending that Rawson’s testimony would assist the jury on technical issues such as speed, sight line, and distance between the vehicles. Specifically, Rawson opined that the defendant could have taken evasive action to avoid the collision.

The trial court excluded the testimony on the grounds that Rawson’s conclusions were based on insufficient facts and data and some of the opinions were legal conclusions that would invade the province of the jury.

The Court of Appeals disagreed, finding that the testimony was based on the facts available from the accident scene and should have been admitted.

I previously criticized the Supreme Court for adopting new Daubert rules. Some have disagreed with my position and I understand their point. But it's my preference that appellate courts simply apply Daubert like the Court of Appeals did here without creating new Daubert rules.

Improper Closing Argument Issue 

 The Court held that it was also reversible error for the trial court to allow defense counsel to comment on the plaintiff’s lack of expert testimony in closing argument. The Court reasoned that the only legitimate purpose of closing argument is to assist the jury in evaluating the evidence and understanding the law and that defense counsel’s comment crossed the line. Trial lawyers need to be aware of this decision when they make closing arguments.

It’s easy for a trial lawyer to get carried away during closing and say something that they technically should not say. I know that I have to fight these urges during closing and am probably not always successful. But no one wants to lose a verdict due to an improper argument, particularly since the benefits of closing arguments are debatable.

My personal belief formed from my trial experience is that jurors have almost always made up their mind before the case reaches closing argument. I often find myself telling co-counsel and/or clients deep into a trial that while I don’t know the jury’s decision, I feel like it has been made. Published statistics support this conclusion and show that most jurors make up their mind during opening statements or shortly after opening.

Luckily, this case would have been reversed regardless of the closing argument issue, due to the Daubert and (uninteresting) jury instruction issues. But I appreciate the Court addressing the issue in its opinion to give guidance to trial attorneys.

Conclusion

Finally, this is a case where I hated to see all the partial concurrences. With several distinct issues in play it would have been nice to have the concurring opinions explained.   

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Kingfish has the story on Jeff Weill's announcement that he is running for the Hinds County Circuit Court Judge seat that is being vacated by Judge Swan Yerger:

Jackson City Councilman Jeff Weill of Ward 1 announced his candidacy for the Hinds County Circuit Judge position currently held by Swan Yerger. Yerger announced he is retiring from the bench. Weill made the announcement before a gathering in front of the Willie Morris Library on Old Canton Road. Weill is a lawyer and former prosecutor.

Weill has done a good job on the city council and is a viable candidate. Jackson lawyer Ashley Ogden is also expected to run for the seat. Some Jackson lawyers doubt that Ogden will run due to the size and success of his private law practice, which includes former Mississippi Supreme Court Chief Justice Jim Smith.

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The Supreme Courts of Illinois and Georgia recently ruled that tort reform statutes placing a cap on non-economic damages in medical malpractice cases are unconstitutional. Will Bardwell has been following the litigation. Here are his posts on the decisions in Georgia and Illinois. Bardwell links to the Georgia opinion. Here is the Illinois opinion.

The opinions reached their results for different reasons. The Illinois court ruled that the cap violates the separation of powers clause of the Illinois Constitution. Interestingly, the Mississippi Supreme Court recently cited the separation of powers clause in striking Governor Barbour’s attempted reduction of the judicial branch appropriations.

The Georgia court ruled that the cap violates the state’s constitutional right to trial by jury. I thought the Georgia opinion was the better read on the whole, but this quote from the Illinois opinion is pretty funny:

That ‘everybody is doing it’ [capping damages] is hardly a litmus test for the constitutionality of the statute. 

I have no idea what the Mississippi Supreme Court will do when it has to decide the issue of the constitutionality of Mississippi’s caps. My gut feeling is that the Court will strike the caps, but I’m not sure what the basis for that feeling is and it could be wishful thinking. 

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On Friday Attorney General Jim Hood announced that he will run for re-election in 2011. As stated in the Clarion-Ledger’s article, the big news with Hood’s announcement is that it ends speculation that he will run for governor in 2011. Hood's decision is a smart one, even if Hood does want to run for governor.

Hood is only forty-seven and has plenty of time to run for governor. With the Hood being a Democrat and the Republican party currently dominating in Mississippi, now is not the time for Hood to give up the office he has for one that he may not win.

The Ledger article points out the commissioner of public safety Steve Simpson may run for A.G.:

Steve Simpson, the commissioner of public safety, said last year that he might run for attorney general in 2011. He could not immediately be reached Friday for comment.

Simpson would presumably run as a Republican. I suspect that Hood would easily beat Simpson. Simpson is from the Coast. Al Hopkins, who is also from the Coast, ran against Hood in the last election and lost. I don’t see Simpson gaining significantly more traction than Hopkins.

Hood promised to continue his good works as A.G.:

"My decision will allow me to continue our hunt for child pornographers and Internet predators; to protect our elderly citizens; and to shield our residents from corporate wrongdoers," Hood said.

Hopefully, Hood will increase prosecutions against nursing homes that abuse and neglect their elderly residents.

Meanwhile, Sunday’s Clarion-Ledger reported on the current state of the Mississippi Democratic party:

Democratic insiders paint a picture of a fractured and unorganized party divided by racial tension and lacking the necessary discipline, leadership and money to make an impact next year in statewide races.

The reasons for the poor Democratic showing in Mississippi are many and complicated. Republicans will probably dominate state-wide elections for many years to come. Jim Hood is the exception, and he may not be able to climb to a higher office than A.G. 

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Main Justice has this story reporting that Southern District Assistant U.S. Attorney Felicia Adams is being considered for the U.S. Attorney in the Northern District. Adams was once thought to be a candidate for the open Fifth Circuit judgeship, but it’s now pretty clear that Justice James Graves will be appointed to the Fifth Circuit unless unexpected opposition emerges. Graves is deep into the vetting process with his name already having been passed on to the A.B.A.

It appears that Adams being in the running for the Fifth Circuit helped her with the U.S. Attorney post, since she was not previously known to be a candidate for the position. Adams is not well known in the Jackson legal community, but is well thought of by those who do know her.

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On Tuesday a unanimous Mississippi Court of Appeals reversed the Circuit Court of Harrison County’s dismissal of a lawsuit against two physicians for failure to comply with the pre-suit notice statute: Miss. Code Ann. 15–1–36(15). Here is the Court’s opinion in Hans v. Memorial Hospital.

The relevant facts were as follows:

• April 2006:           alleged negligent medical care
• March 29, 2007:   complaint filed
• May 2, 2007:        notice letter sent to two doctors 
• May 30, 2007:      two doctors dismissed without prejudice based on failure to provide pre-suit notice
• March 26, 2008:   plaintiffs filed amended complaint joining the two doctors who were dismissed
• August 27, 2008: circuit court again granted doctors’ motion to dismiss.

On appeal, the plaintiff argued that the doctors were properly dismissed from the first action, but were provided the necessary notice before the filing of the amended complaint. The doctors contended that this offended the plain meaning of the pre-suit notice statute. The doctors were in essence arguing that the dismissal without prejudice was really with prejudice. That’s a disingenuous argument.

The Court of Appeals agreed with the plaintiff and reinstated the action. I agree with the Court of Appeals. The doctors had notice of the action before the filing of the amended complaint that named them as defendants.

The lesson in this opinion for plaintiff lawyers is that the sooner the complaint is filed, the more time you have to address any claimed notice deficiencies. By filing the complaint in this case more than a year before the statute ran against the doctors, the plaintiff had plenty of time to correct the deficiency. Of course, plaintiffs often do not start looking for a lawyer until just before the statute of limitations expires—or even after.  

The Court of Appeals affirmed the grant of summary judgment for Memorial Hospital on the grounds that the plaintiff failed to establish a prima facie case of medical malpractice against the hospital.

Judge Donna Barnes wrote the Court’s opinion. 

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As discussed in this March 1 post, State Senate Insurance Committee Chairman Buck Clarke killed a bill that would have required Mississippi nursing homes to carry $500,000 in liability insurance coverage. Sid Salter has the story in today’s Clarion-Ledger.

Why would Buck Clarke kill a bill that passed in the House with bipartisan support? Salter explains:

 Because the nursing home operators, their lobbyists and the insurance industry have vast influence in the Legislature.

The vast influence was bought:

How influential is the nursing home industry at the Capitol? Campaign finance records show that in 2007 Gov. Haley Barbour got $50,000 from the Mississippi Health Care Association (MHCA), the association that represents many of the nursing homes, and $62,000 total from nursing home industry donors.

Campaign finance records show that in 2007, Lt. Gov. Phil Bryant received $50,000 from nursing home operator Ted Cain of Health Services, Inc., in Wiggins, $11,000 from MHCA and $63,250 total from nursing home industry donors.

Campaign finance records show that in 2007, House Speaker Billy McCoy, D-Rienzi, got $5,000 from Cain, and $3,000 from MHCA for a total of $8,000 from the nursing home industry. Clarke, R-Hollandale, in whose committee the nursing home liability insurance bill died, got $1,500 in 2007 campaign contributions from the nursing home industry.

In total, 2007 campaign finance records show that the Mississippi Health Care Association gave a total of $132,000 in contributions to legislators and statewide elected officials.

Lobbying records show in 2009, MHCA paid lobbyist Beth Clay $80,000 to represent the organization's interests.

Elderly people living in nursing homes with Medicaid and Social Security picking up the tab cannot compete with that kind of money. Salter hit on the fact that taxpayer dollars fund these nursing homes:

Is that fair to vulnerable patients in those private facilities? Is it fair for them to have paid taxes or have families paying taxes that subsidize the public nursing homes' tort claim coverage while the laws allow private nursing homes to be uninsured or underinsured for the very same offenses against the elderly? No.

Many nursing homes owned by political subdivisions or private entities already carry at least $500,000 in liability insurance. Ironically, it is the uninsured and underinsured nursing homes that commit the most neglect and abuse of their elderly residents. Insured nursing homes tend to take better care of their residents than uninsured or underinsured nursing homes. 

The reason for this is that the uninsured nursing home owners' profit over patients mentality permeates the entire operation and endangers the lives of their elderly residents. When something bad happens, the nursing home faces little or no legal accountability. If the resident or their family sues and obtains a judgment, the nursing home declares bankruptcy to prevent collection of the judgment. The nursing home then reopens under the same ownership, but as a different corporate entity. It’s a scam designed to aviod liability. 

Think about it. All Mississippians have to have liability insurance to drive vehicles on the road. But nursing homes that are entrusted with caring for our most vulnerable elderly adults can have no liability insurance. That's crazy. 

What can people do who have to put a loved one in a nursing home? Here are a few tips:

• Read my thoughts on choosing a nursing home for a loved one.
• Ask the nursing home at admission if they have at least $500,000 in insurance coverage.
• Avoid nursing homes that now or in the recent past have carried little or no insurance. These include:
  • Community Eldercare Nursing Homes, which is based out of Tupelo and operate under the name Community Living Center of (location); 
  • Trinity Mission Health and Rehab of Clinton;
  • Heritage House nursing homes (various locations);
  • Community Care Center of (location);
  • Hinds County Nursing and Rehabilitation Center, LLC.

There are many more Mississippi nursing homes that are not insured or carry a claims and defense cost eroding policy that basically just covers the fees of the nursing homes’ defense lawyers. If any readers know of any other Mississippi nursing homes that this applies to, please let me know and I will add them to the list.  

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The Healthcare Finance News is reporting that: “Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.” And: “This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.”

The article contains statistics to back up the claims:

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

According to the analysis, healthcare spending rose 83 percent from 2000-09, while medical malpractice payments fell 8 percent (both figures are in unadjusted dollars.)

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of 1 percent of the Centers for Medicare and Medicaid Services’ estimated $2.5 trillion in overall U.S. healthcare spending for 2009.

Last year was the fifth consecutive year that the number of payments has fallen and the sixth straight year in which the value of payments has fallen, according to the analysis. In contrast, U.S. healthcare costs have increased every year since 1965, the first year the data was recorded.

Meanwhile, most valid med-mal claims are never filed:

Studies have found that injuries and deaths caused by medical errors dwarf the number of actual medical malpractice payments. For example, the Institute of Medicine found in 1999 that 44,000 to 98,000 people die every year due to avoidable errors.

The comments to  the article are also worth reading. In one comment a person with 25 years experience in med-mal claims states that there is no relation between healthcare costs and medical malpractice lawsuits.

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Professor William Champion died in Oxford on Friday. Professor Champion was probably the most popular law professor at the Ole Miss Law School in the last forty years. He served on the faculty of the Law School from 1965–1998 and taught thousands of the lawyers who now practice in Mississippi.

Although I was not close to Professor Champion, he did seem to take a special interest in my education in the early 1990’s. He called on me on the first day of Civ. Pro. 2 during my second year. Based on how I answered the question, he decided (incorrectly) that I did not prepare for class. He then proceeded to call on me in every single class for the rest of the semester. All the attention helped me get an ‘A’ in the course, since I had to prepare so hard for every class knowing that he would call on me.

Professor Champion emphasized the need for professionalism and collegiality in the practice of law. He made sure that his students knew that lawyers could vigorously represent their clients without acting like an ass. I remember him saying that opposing counsel should be able to go have a drink together after a day in court without their being any ill will. 

Professor Champion will not soon be forgotten by Mississippi lawyers. Forty or more years from now there will still be students of his practicing law in Mississippi.     

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Today Ya’ll Politics linked to a Washington Examiner Op-ed story that attempted to link Mississippi’s judicial bribery scandal to the current health care debate. I have seen some dumb things written about the legal system. This may be the dumbest.

Try to make sense out of this quote:

There’s no reason why this situation should persist, except that the nation’s top trial lawyers continue to grease the skids in Washington, D.C., and state capitals, piling up money for Democratic politicians who in turn hinder the cause of lawsuit reform. A recent Examiner analysis of contributions from employees of the top 15 plaintiffs’ firms found that less than 2 percent of nearly $1.3 million they donated went to Republicans.

That’s why President Barack Obama and Democrats seek to prevent state-level legal reforms in their health care bill. It’s not just that the bill lacks tort reform provisions, it punishes states that adopt them by withholding federal money.

But those legal reforms are necessary. Otherwise, the natural conclusion is the world portrayed in “Kings of Tort,” the recent book by Alan Lange and former federal prosecutor Tom Dawson. The book describes how former tort baron and current federal prisoner Dickie Scruggs sued his way into a fortune and then began purchasing an entire state’s judiciary. Years before he was caught bribing two Mississippi judges, Scruggs had described as “magic jurisdictions” those places where verdict money was used to stack benches and juries.

This is another straw man argument for tort reform. But this one is worse than the norm.

Scruggs purchased “an entire state’s judiciary”? Really? Because I’ve read Kings of Tort, and that is not what the book says. According to the book, Scruggs tried to bribe two judges, one of who reported it to the feds and the other of whom is now in jail.

And frankly, the statement is a slap in the face of Mississippi’s "entire judiciary". Is the author really claiming that Scruggs purchased all the judges in Mississippi? Is he really that stupid?   

I do not believe that we have a corrupt judiciary in Mississippi. But even if we did, the solution to corruption in an elected judiciary would be:

1. prosecute corrupt judges; and/ or
2. have an appointed judiciary.

Not caps.

Politics in the U.S. is rife with corruption. My guess is that there is less corruption among elected judges than other elected politicians. But regardless, lawsuit caps do not even address judicial corruption, much less solve it.

Why would someone make this argument? According to some, the author of the article (David Freddoso) is a shill of the political right (aka Big Business). Here is an excerpt from a review of Freddoso’s book that attacked President Obama:

David Freddoso's new book, The Case Against Barack Obama: The Unlikely Rise and Unexamined Agenda of the Media's Favorite Candidate is a badly written hatchet job, full of errors and distortions and smears. The author, who works for the right-wing National Review and published his book with Regnery (which printed Unfit for Command, one of the Swiftboating attacks on John Kerry in 2004), simply fails to prove his key assertions, preferring to rely upon a bunch of false attacks, McCarthyist-style denunciations of Obama's associations, and extreme conservative attacks on abortion rights, all of it padded with lengthy digressions on topics unrelated to Obama and his record.

Freddoso's embarrassing excuse for a critique has received virtually no critical attention, thanks to the right-wing press promoting it and the compliant mainstream outlets. A fawning story in the Politico called Freddoso's book "serious" and "a fact-based critique." According to the Politico, it occupies "a small island in the often-shrill sea of criticism of Obama." In reality, Freddoso's book is one more example of that polluted sea of criticism, filled with numerous factual errors, unproven innuendo, guilt by association attacks, and lunatic conspiracy theories that would be laughable if not for the seriousness of these false accusations.

Freddoso’s latest straw man hatchet job that implicates the Mississippi judiciary is both out of line and dumb.

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This week the U.S. Bankruptcy Court for the Northern District of Illinois replaced Patrick Collins with Jeffrey Marwil as trustee of the A&O bankruptcy. Here is the Court’s Order.

For persons not familiar with the A&O investment fraud scam, here are my earlier posts on the scam. 

After A&O declared bankruptcy Patrick Collins was appointed trustee in the case. But Jeffrey Marwil won the creditors’ election, entitling him to be trustee. Collins and several creditors objected. The Court found that Marwil won the election fair and square. Also of note is the fact that the Court found that there was no evidence of improprieties by John Spaulding, who is connected with a law firm that represents many creditors and led the election of Marwil.

The Court stated that Collins did a good job as trustee, but that creditors are entitled to elect a new trustee for any reason or none at all.

I am not a bankruptcy lawyer, but this looks like it was a fight over control of the proceeding. Marwil won because he was backed by a larger group of creditors.

Does anyone know where Adley Wahab is these days? 

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There was a $210,000 punitive verdict on top of the $210,000 actual damages verdict in the Natchez asbestos fraud trial discussed in the prior post.

That's a good verdict for Natchez. I got my clock cleaned there this time last year by Carl Hagwood and Michael Phillips. But they have a nice courtroom and Judge Bramlette is a great judge.

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There was a plaintiff’s verdict yesterday in federal court in Natchez in favor of Ill. Central RR against McComb lawyers  William Guy and Thomas Brock. 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 the Cosey 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.

I also do not know what happened in the punitives phase. I hope to report more on this verdict later.

Danny Mulholland and Tanya Ellis with Forman Perry represented Ill. Central. John Corlew and Kathy Smith of Jackson represented the defendant lawyers. Wayne Dowdy of McComb represented the individuals. Judge David Bramlette presided over the trial.

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Wouldn't it be great to have a resource that reports on many civil verdicts in the State of Mississippi? This blog could serve as that resource if more verdicts are reported to me.

Over the last year, I have reported on many verdicts. But my ability to report verdicts is limited to the verdicts that I hear about.

If you hear about a verdict in a Mississippi case, please send me an email about it. In addition to the result, I like information on the facts of the case, venue, judge, attorneys and other interesting information about the case. I typically do not reveal sources on the verdicts that I write about.

It's not unusual for me to hear about a trial going on somewhere in the state, but to not get enough information on it to report the result. Please help build the content on this blog by reporting verdict results.

Please report verdicts by sending me an email or submitting the information on the contact form on my firm web site.

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Litigators can learn a lot about evaluating the settlement value of a case from mathematicians and poker players. Typically, litigators evaluating the settlement value of a case think about factors such as the liability facts, damages, venue and skill of opposing counsel. These factors swim around the lawyer’s brain and the the lawyer spits out an estimated settlement value without really spending time to identify the various possible outcomes and the probability of each outcome occuring.  

Poker players and professional gamblers speak in terms of Expected Value (EV) and try to base their decisions on the decision that yields the maximum EV.   

Lawyers could do a better job of determining the settlement value of a case by using these factors and their judgment to determine the probability of various identified outcomes and then calculating the Expected Value (EV) of the case.

Explanation of Expected Value (EV)  

Expected Value (EV) is a math calculation used to describe the long-term average outcome of a given scenario. Wikipedia has a good section on expected value.

Here is a simple explanation: if you flip a coin and someone gives you $1 every time it lands on heads and zero when it lands on tails, then the expected value of each coin flip for you is 50 cents, since half the time you will get zero and half the time you will get $1.

The calculation looks like this: (1/2 x 1) + (1/2 x 0) = .5. If you don’t trust my math, you can use this on-line expected value calculator.

EV calculations can be useful in evaluating the settlement value of a case.

Example of Expected Value in a Liquidated Damages Case

Say there is a lawsuit pending with purely economic damages of $100,000. The defendant agrees on the damage amount, but denies liability. If the parties also agree that there is a 50% chance that the plaintiff will win at trial, then the expected value of the case is $50,000: (1/2 x 100,000) + (1/2 x 0) = 50,000. That is not an opinion, that is math. In that situation, the case should settle for $50,000.

Expected Value Calculation in Personal Injury Cases

Let’s say you have a personal injury case. The plaintiff has decided to ask the jury to award $300,000 in damages. The defendant denies liability. The defendant also contends that if the jury does find for the plaintiff, then a reasonable verdict would be $50,000. To calculate the EV in this case you need to use your skills as a lawyer to decide on the probability of various outcomes at trial.

This could look something like this:

Defense verdict- $0: 50%

Plaintiff verdict– $300,000: 10%

Plaintiff verdict– $50,000:  10%

Plaintiff verdict– $100,000: 10%

Plaintiff verdict– $200,000: 10%

Plaintiff verdict– $250,000: 10%

Expected Value = $90,000.  (using EV calculator).

While I am not advocating basing all settlement decisions on the calculated expected value, I am suggesting that using the calculation would allow lawyers to make more informed recommendations to their clients regarding settlement.

But it's Not that Simple

These examples assume that the expected value for the plaintiff is the same as for the defendant. That is, the defendant’s loss equals the plaintiff’s gain. In litigation, however, that is not the case due to the affect of attorney’s fees and case expenses. I will look at how these factors impact settlement values in a later post.

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Litigation Logic– A Practical Guide to Effective Argument is an interesting book. As stated in the introduction:

This book is dedicated to presenting informal fallacies through legal arguments…

The product description on Amazon is:

Learning to use, and defend against, informal fallacies are the keys to effective argument. This one-of-a-kind book examines informal fallacies and features a three-page Legal Logic Flow Chart to help identify the appropriate informal fallacy and counter them. Through the flow chart this book provides two legal examples on which to practice using the chart. This book is ideal for any lawyer who wants to craft a flawless argument.

The focus of the book is principles of logic utilized in legal arguments. 

The book defines informal fallacies as arguments that are flawed, but not in a technical sense. Examples include personal attacks, appealing to bias and prejudice and something you occasionally see in Mississippi courtrooms: appeals to regionalism. The book goes into detail indentfying improper arguments and provides examples from mostly U.S. Supreme Court cases.

I view this book as an academic book as opposed to a practical guide that will be used by trial attorneys. Litigators should know what arguments are improper, but little time is devoted to the subject in law school or bar review exams. This book would be very useful as required reading in law school trial practice and ethics classes. In fact, a law school ethics course that uses this book as a text would be more useful than traditional approaches to ethics courses that are based on case books.

I disagree that the book is ideal for any lawyer who wants to craft a flawless argument. I view it as a theory type book and not a practice book. It is a good book that is worth reading, but it is not going to provide a roadmap for arguing cases.     

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In an article for the Atlantic, legal analyst Andrew Cohen calls tort reform anti-democratic, but ingeniously marketed by corporate America:

Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.  

Personal experience in talking with clients and prospective jurors in voir dire during trials makes me conclude that average citizens do not understand tort reform. Most people think that tort reform addresses frivolous lawsuits instead of lawsuits involving the worst possible conduct. People do not understand that:

It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.   

Why do tort reform’s proponents push a solution that does not apply to the “problem” of frivolous lawsuits? Because frivolous lawsuits is not really the problem for corporate America. They can squash a frivolous lawsuit like a bug. What they can’t squash without damages caps is their liability exposure for terrible conduct such as covering up a product’s dangerous defect. And they know that the public wouldn’t go along with it if the public knew the truth.

The reason that people do not understand tort reform is because proponents of tort reform do not want them to. Tort reform proponents invariably talk about merit-less lawsuits when selling tort reform.

So they pull a bait and switch using a frivolous lawsuits straw man. They talk about despicable trial lawyers and frivolous lawsuits and push through damages caps that don’t even address their stated “problem.”  It’s a ploy—but it’s a smart one to get what they want.

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You heard me. Losing a trial sucks. On multiple levels. Sorry if you don't like my vocabulary.

Even worse, a win does not even out a loss. Tennis great Andre Agassi described it as well as anyone that I've heard even though he was talking about tennis and not trials:

Now that I've won a slam, I know something that very few people on earth are permitted to know. A win doesn't feel as good as a loss feels bad, and the good feeling doesn't last as long as the bad. Not even close.

Shortly after I started my first job as a lawyer I heard veteran trial lawyer Natie Caraway say basically the same thing. It took personal experience winning and losing trials to understand it. 

For me a loss on appeal does not feel bad as a loss at a trial. And the loss of a bench trial does not feel as bad as the loss of a jury trial. The loss of a jury trial feels the worst because you hang it all on the line for twelve people who you don't know and you are shattered when you find out that you could not convince them. And if you believe in your clients case--and most lawyers do--you think that the jury got it wrong. That makes it worse.

I have no answer for the best way to deal with a loss. But I agree with Chicago lawyer John Tucker on this point:

Courtroom lawyers and people who play sports are engaged in an endeavor where there is a  winner and loser of every contest, and no matter how good they are, sometimes they lose.In fact, in both endeavors it is often true  that the better they are the harder their contests and the more  often they will lose. You don't have to like it-in fact, you had better not-but you won't last long if you don't learn to get over it, or at least put it far enough behind you to go on to the next case.

Some lawyers lose a big trial and never recover. They are habitually afraid to re-enter the courtroom for fear of losing again. The best lawyers get over it and seek the adrenalin rush of going back in and putting it all on the line again.

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Sid Salter with the Clarion-Ledger penned this story yesterday about the efforts of Mississippi nursing home owners to defeat a bill pending in the legislature that would require nursing homes to carry $500,000 in liability insurance coverage. My understanding is that the bill passed in the House of Representatives. There is a rumor circulating that Senate Insurance Chair Buck Clarke has been instructed to let the bill die in his committee by the powers that be. That would be horrible for all Mississippians.

Putting a Loved One in a Nursing Home is a Decision Many Mississippians are Faced with Every Day

Like many Mississippians, Salter had to put his parents in nursing homes when their failing health left them unable to care for themselves and in need of more care than family members could provide. This is very common and it could happen to anyone. If you have elderly parents who are not wealthy and you have a job so that you can not provide 24–hour care, then it can happen to you. Salter recognizes that his parents were lucky because they received good care, but that is not always the case:

My folks were fortunate. The people we paid to care for them when we could no longer care for them treated them with respect and compassion.

That's the way it is in most of Mississippi's nursing homes, but not in all of them.

Nursing home abuse happens in Mississippi like it happens in the rest of the country - physical abuse, sexual abuse and financial abuse. There are over 15,500 Mississippians in 184 Mississippi skilled nursing facilities.

Like Salter, I know what it is like to have a parent who needs constant care. You may say that you would never put your loved one in a nursing home. But until you see what it means for someone to need 24–hour care, you really don’t know what you are talking about.  

You can read my thoughts on choosing a nursing home for a loved one here.

Many Mississippi Nursing Homes Carry Little or No Liability Insurance

Most Mississippi nursing homes provide consistently good care to their residents. Many carry adequate liability coverage that is available to compensate victims when the care is not good and causes injury. But there are many Mississippi nursing homes with little or no insurance. Even worse, it is the nursing homes without insurance that provide the worst care.

I represent victims of nursing home abuse and neglect and their families. Most calls that I receive about a potential case involve a small group of nursing homes. Even worse, it is these repeat offenders who carry no liability coverage or only enough to pay their defense attorneys in defending a case.

Exposing the Litigation Strategy of the Nursing Homes with Little or No Insurance 

Not carrying liability insurance is not a financial necessity. Nursing homes are very profitable. It is a defense strategy to avoid being held accountable. When threatened with a suit, the first thing these nursing homes do is write a letter to the victim’s lawyer stating that there is either no insurance, or only enough to pay the defense lawyers. If liability is clear, the nursing homes then make an unfair low-ball settlement offer and insinuate that the nursing home will file bankruptcy if you obtain a big verdict in court.

This creates a no win situation for the victims—and the nursing home owners know it.

Nursing Homes are Very Profitable

Don’t believe nursing home operators when they say that they cannot afford liability insurance. I have seen financial statements from nursing homes. A 100 bed facility that has a Medicare and Medicaid pay source for most of its patients (this applies to most Mississippi nursing homes) can make a $1 million profit in one year. That profit is drained from the nursing home's books by the owners, leaving the facility with no assets on paper that could be recovered in a lawsuit.

There is a Hidden Incentive for Nursing Homes to Provide Bad Care After the First 100 Days

Mississippi is the poorest state in the nation. That means that for many people, Medicare and Medicaid are the only pay sources for nursing home care. That is a good news– bad news situation. The good news is that Medicare eligible patients typically get a lot of therapy during the first 100 days of their stay in a nursing home because the home can bill individual care items to Medicare.

The bad news is that after 100 days in a nursing home Medicare eligibility expires. Medicaid pays the same rate no matter how much therapy and other care the nursing home provides. This often results in everyone getting therapy for 100 days and no one getting therapy after 100 days.

Many residents’ health declines after improving during the first 100 day period because they start receiving less care. If a resident’s health declines and they die, it allows the nursing home to replace the low-rate Medicaid resident with a high-rate Medicare resident. Nursing homes with a lot of new Medicare residents will make a lot more money that homes with fewer Medicare residents. This creates a profit incentive for nursing homes if their long-time residents die.

Again, most nursing homes and their employees provide the best care that they can for as long as they can. But for the cold-hearted greedy owners, there are financial reasons to not provide quality care for all their residents.

Liability insurance balances the playing field.

Liability Insurance Increases Accountability

Mississippi requires us to carry liability insurance if we drive on the roads. That way, if our negligence causes a wreck, then we can be held accountable to the victim. The same should apply to nursing home owners and operators. If it’s fair that we all have to carry car insurance, then it’s fair that they all have to carry liability insurance. Sid Salter said it well:

But it seems that some Mississippi nursing homes don't carry enough liability insurance to cover those damage caps if a vulnerable elderly person is injured, mistreated or abused while in their care.

House Bill 536 requires non-government nursing homes to carry the same $500,000 in liability coverage that government nursing homes carry under the Tort Claims Act. But insurance company and nursing home lobbyists are working overtime to kill the bill. Why?

The nursing homes and the insurance companies got the "tort reform" caps they sought. Now, the elderly deserve some accountability from those same entities with the passage of HB 536.

Mississippi's elderly need less tort reform, not more.