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

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As expected, Southern District Judge Sul Ozerden has begun staying the Gulf Oil Spill cases pending a decision on whether an MDL will be created in the litigation. Here is one of Judge Ozerden's orders. 

I am not aware of any of the defendants filing a substantive response to the complaints before entry of the stay orders. Therefore, it will be a while before the emergence of the defendants' strategy for blaming the oil spill on other defendants through cross-claims.  

Judge Ozerden is the judge in most—but not all—of the cases filed in Mississippi. But all the cases are likely to be stayed regardless of the judge.

Everyone agrees that there will be an MDL action. Speculation continues to center on where the MDL will be located. I am not sure when the MDL panel meets next. I have heard July, but I have not verified that report.

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I've heard that in recent weeks there was a medical malpractice trial in Madison County Circuit Court with Judge Samac Richardson presiding. During the trial one of the jurors started having a seizure or some similar type of medical emergency.

At the time, Plaintiff's doctor expert was on the witness stand. The witness doctor froze. Meanwhile, the Defendant doctor rushed to the jury box to provide assistance to the sick juror.

Needless to say, Judge Richardson had to order a mistrial. I wonder who would have won after that episode?

I would love to get more information on this trial, so please contact me if you can verify this story or provide more details. I do not reveal the names of sources in posts if the source does not want me to.

Medical malpractice defense lawyers are more secretive than the CIA about their trials, most of which they win. What ever happened to self-promotion?

Update: John Christopher represented the plaintiff and Whit Johnson with Currie Johnson represented the defendant.

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The Wall Street Journal has been publishing fantastic articles on the events leading to the Horizon Rig explosion.

This article yesterday focuses on faulty BP decision making that led to the explosion.

An article today focuses on the chaos on the rig that was partially caused by chain of command problems.

Here is the link to many WSJ articles. It is a great source of information about the disaster.

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As frustration mounts on the Gulf Coast, and at the White House, here is a suggestion for BP: (play video)

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Karen Irby wants to be re-sentenced because, according to Irby, Judge Green showed bias during the sentencing hearing. In my opinion this is a move that is destined to fail.

First, Judge Green's sentence was less than the maximum and within the range of sentences in other similar cases. That does not seem like an excessive sentence. I have watched a lot of sentencing hearings and the defendants pretty much always have a sad story and good reason for a light sentence. But judges almost always stick to the sentencing guidelines.

Second, even if Irby gets a new sentencing, the most likely outcome of that is another sentence that is consistent with the sentence already given.

I find it odd that Irby's campaign for a light sentence basically started on the date of her sentencing hearing. That was probably too late. I doubt that Judge Green decided the sentence on the bench that day. She had probably been thinking about it since the guilty plea.  

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NMC reported last week on the Order issued by Northern District federal court Judge Mills in the Maggette v. BL (Grand Casinos) case. The Order addresses flagrant deceptive discovery practices by the owners of Grand Casinos and their lawyers. Judge Mills' Order followed two special master reports in the case that you can see here and here.

Judge Mills recognized that the reason that BL and its lawyers got caught was because of the unusual step of a special master being appointed to wade through the discovery morass:

It seems very likely that, if the Magistrate Judge had not taken the extraordinary step of appointing a special master, the truth in this regard would have never been revealed.

I applaud Judge Mills, Magistrate Judge Alexander and the Special Master for exposing this deplorable conduct. But the sad fact of the matter is that many lawyers believe stuff like this happens all the time in civil actions in Mississippi with no repercussions. I share that opinion.

Some people refer to these tactics as "hardball" litigation tactics. But they have become so prevalent in recent years that even good lawyers who usually don't stoop to hardball tactics are starting to fall into the resistant blocking pattern discussed below.

Typically what happens is what I suspect happened in this case. Defense counsel and their client intentionally remained blissfully ignorant of the existence and production of responsive material so that they could later have plausible deniability in the highly unlikely event that their conduct was ever exposed.

It starts with improper boilerplate objections to all are almost all discovery requests. In my practice most defendants assert boilerplate objections to almost every single written discovery request. The boilerplate objection is sometimes followed by a “without waiving this objection” partial response. While I recognize that this is sometimes a legitimate discovery response, it is not a legitimate response if this is the response to every request.

Defendants believe that this allows them to pick and choose what to produce in discovery. They can produce some documents under the partial response and withold others under the objection. Judges rarely recognize that this is a threat to the integrity of the judicial system and strike these types of objections.

I am seeing this type of response to requests for Rule 26 information on experts and the identity of trial exhibits and witnesses. It's my impression that many lawyers believe that by objecting to everything, they are not accountable for not producing relevant and discoverable information. 

Why do defendants and their lawyers do this? Because they can. Courts almost always let them get away with boilerplate objections that leave the plaintiff wondering if they are getting a complete response. Magistrate Judge Davis is the only judge I've had that held a defendant accountable for this and struck the boilerplate objections.

My impression is that most judges view complaints about improper discovery responses as whining. Judges just don't want to hear it. In addition, when plaintiffs do try to get relief for improper boilerplate objections there are many judges at both the state and federal level who buy the defense side B.S. arguments on these issues hook, line and sinker. 

There is a problem in the system that is not being addressed. And the problem is getting worse. I hope that Judge Mills bringing the situation to light in this case will be a wake-up call for the trial court judiciary in Mississippi.

This is primarily a trial court problem because discovery disputes are rarely an issue on appeal.  But there are things that the appellate courts could do to stop this. For instance, there should be a model set of written discovery in state and federal court that imposes a presumption that the requests are not objectionable. A party who objects to the model discovery would have to do so with more than boilerplate objections. The objections would have to come with an affidavit that specifically identifies the basis for the objection. Sanctions should be mandatory if the objection is overruled.

The judiciary should take control over discovery abuses. Boilerplate objections should be struck and lawyers and clients should be held accountable for improper responses. Judge Mills' Order should be a start to that process rather than a footnote in civil litigation that no one remembers a year from now. 

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More information is emerging about the $3 million jury verdict rendered in federal court in Jackson on Friday.

On August 26, 2006 the Plaintiff Megan Durr was a Target employee working in the Target store on I-55 and Countyline Road in Jackson. MBS Construction was an independent contractor doing remodeling in the store for Target. MBS was deconstructing a 14 foot wall and pulled the bolts out on one side causing the wall to fall on Megan Durr and another employee who were working for Target on the other side of the wall. MBS provided no notice of its actions, no warning to the plaintiff and did not mark off the work area to limit access to non-construction persons.

The plaintiff suffered lower and mid back pains and had a double fusion at L4-5 and L5-S1 in December 2009. Her total medicals were about $174,000.00. She claimed lost wages, future medical damages, and pain and suffering. She did not seek punitives.

The defendant claimed the plaintiff had pre-existing degenerative disc disease. The Plaintiff had an almost two year period in 2005 to 2006 where she was either pain free or did not see a doctor for back pain. The defendant also raised the issue that her first two neurosurgeons in 2004 and 2005 recommended against a surgery because the plaintiff claimed to show improvement with medication and physical therapy.

Target joined the suit to recover its workers compensation lien. At trial, Target was not represented by counsel and the plaintiff represented Target's claims. The judge allowed the defendant to allege Target also had a duty to protect its employee and provide a safe work environment even though the defendant did not put on evidence of Target's duty, breach or causation. The evidence presented showed that MBS had an indemnity agreement with Target and still would be liable for any apportionment against Target.

The jury found $2.5 million for pain and suffering and disability, $350,000.00 for hospitalization and medical and nursing care, $100,000.00 for lost wages- Totaling $2,950,000.00.

Ashley Ogden tried the case for plaintiff, assisted by Jim Smith and Wendy Yuan of Ogden and Associates, PLLC.

Greg Spyridon of Spyridon, Palermo, and Dornan, LLC represented the defendant, assisted by John Herke of the same firm and John Corlew of Jackson.

The $2.5 million for pain and suffering will probably be reduced to $1 million due to Mississippi's cap on non-economic damages. Of course, the constitutionality of the cap is currently before the Mississippi Supreme Court.

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There are reports of Ashley Ogden obtaining another large verdict in a premises case, this one in federal court in Jackson. Here is the Complaint in Durr v. MBS Construction.

The Plaintiff was shopping at the Target Store in Jackson in 2004 when a wall fell on her, causing severe injuries. MBS was performing construction work in the store. Target intervened in the case. I am not sure who the verdict was against, since the verdict has not yet been posted on Pacer. I believe that the filing part of Pacer is down for the weekend, so it will probably be filed Monday. There is also no Pre-Trial Order on Pacer, so information about the parties and issues at trial is scarce.

The Plaintiff had a back injury that required surgery and had approximately $180,000 in medicals.

Former Chief Justice Jim Smith and Wendy Yaun [correction: Yuan] tried the case with Ogden. Defense counsel were Greg Spyridon and other attorneys from his New Orleans firm and John Corlew of Jackson. Corlew filed his entry of appearance three days before trial, which I am sure limited his ability to have a meaningful influence on the outcome.

Judge Tom Lee was the trial judge.

I hope to have more on this verdict next week.

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In a unanimous opinion rendered on Thursday in J.B. Hunt Transport, Inc. v. Forrest General Hospital, the Mississippi Supreme Court ruled that an actively negligent tortfeasor may not seek indemnity from a subsequent negligent party. 

Facts

In 2006 Melissa Hall was injured in a motor-vehicle accident with a tractor-trailer operated by J.B. Hunt. She was transported to Forrest General Hospital, where she died five days after the accident.

J.B. Hunt settled with Hall's estate and wrongful death beneficiaries and sued Forrest general for medical malpractice under a common law indemnity claim. Hunt claimed that the wrongful death was exclusively caused by Forrest General and not Hunt.

The trial court granted Forrest General's motion for summary judgment.

Court's Decision

The Court agreed with Forrest General's argument that Hunt was a joint tortfeasor and that there is no right to indemnity between joint tortfeasors. Hunt's argument was that while it was a joint tortfeasor in the original injuries, it was not a joint tortfeasor in the death. The Court disagreed and ruled that because Hunt was a joint tortfeasor, it could not recover under an indemnity theory. As a result, the Court affirmed the grant of summary judgment.  

Justice Lamar wrote the Court's opinion. Mark Hodges with Wise Carter represented Forrest General and David Dunbar represented Hunt.

My Take

This was an interesting case involving an unusual fact pattern. I watched the oral argument in the case back in January and both sides and the Court did a good job of exploring the issue. Although the Court's opinion was only eight pages, this is the kind of decision that could end up as a bar exam question.   

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There have not been any major developments in oil spill litigation in Mississippi in the last few weeks. More cases have been filed, but that is expected and more will be filed going forward.

I am not aware of a defendant filing an answer to the complaints yet. BP has been filing motions to stay the cases pending transfer to an MDL. Transocean is seeking to limit its liability in a Houston court and is filing documents related to that case in Mississippi cases.

Transocean seeks to limit its liability from the spill to less than $27 million. If Transocean is successful, there could be a huge political and public backlash that results in the strategy backfiring. Of course, Transocean has probably considered this and decided to go for the limitation anyway.

 Transocean's stock price has been in a free fall since the explosion along with BP's. 

 

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On Thursday a divided Mississippi Supreme Court affirmed the grant of summary judgment in Akins v. Golden Triangle Planning & Development District, Inc. Here is the opinion.

Facts

The case was a vicarious liability case from the Circuit Court of Oktibbeha County. Plaintiff alleged that Golden Triangle owed him $80,628 in profits that were embezzled by a Golden Triangle employee. The trial court granted Golden Triangle summary judgment because the employee was acting outside the scope of her duties in stealing the money and Golden Triangle did not benefit from the illegal actions.

Majority Opinion

A five justice majority affirmed the trial court. Justice Carlson wrote the majority opinion joined by Chief Justice Waller and Justices Graves, Kitchens and Pierce.

The majority reasoned that the plaintiff could not be granted relief under a respondent superior theory because the employee's actions were for her own personal gain and were of no benefit to Golden Triangle. The majority and trial court applied the four part test for determining whether an employee was acting within the scope of employment in Commercial Bank v. Hearn, 923 So.2d 202 (Miss. 2006).

Dissenting Opinion

Justice Randolph wrote for the dissent joined by Justices Dickinson, Lamar and Chandler.

The dissent stated that the majority applied the wrong law by limiting its analysis to the respondent superior standard in Section 228 of the Restatement (Second) of Agency. The dissent argued that under Sections 219(2) and 261 of the Restatement (Second) of Agency, agency principles may impose liability on employers even where employees commit torts outside the scope of employment. Specifically, an employer may be liable in fraud/ dishonesty/ theft cases where the employee was aided in accomplishing the tort by the existence of the agency relationship. The dissent reasoned that there were genuine issues of material fact under these principles.

My Take

My initial reaction to the case was surprise as to the identity of the justices in the majority. If I had seen the two opinions without knowing the votes, I would have expected four of the five in the majority to join Justice Randolph's dissent. But on the whole, I like it when the Court is not predictable. 

Without doing further research, I have to side with the minority. If the employee of a hotel or carwash steals something from my room or car, I want the owner of the hotel or carwash to be liable. I think they could be under the minority's reasoning, but not the majority's. Hopefully, I am wrong.        

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A 60 Minutes story paints a scathing picture of operations on the Deepwater Horizon in the days and hours leading up to the fatal explosion and resulting oil spill. The main source of the report was Mike Williams, Transocean's chief electronics technician on the rig.

Significant points from the story include:

• With the schedule slipping, Williams says a BP manager ordered a faster pace.
• We were informed of this during one of the safety meetings, that somewhere in the neighborhood of $25 million was lost in bottom hole assembly and 'mud.' And you always kind of knew that in the back of your mind when they start throwing these big numbers around that there was gonna be a push coming, you know? A push to pick up production and pick up the pace," Williams said.
• But the trouble was just beginning: when drilling resumed, Williams says there was an accident on the rig that has not been reported before. He says, four weeks before the explosion, the rig's most vital piece of safety equipment was damaged.
• Williams says, during a test, they closed the gasket. But while it was shut tight, a crewman on deck accidentally nudged a joystick, applying hundreds of thousands of pounds of force, and moving 15 feet of drill pipe through the closed blowout preventer. Later, a man monitoring drilling fluid rising to the top made a troubling find.
  
  "He discovered chunks of rubber in the drilling fluid. He thought it was important enough to gather this double handful of chunks of rubber and bring them into the driller shack. I recall asking the supervisor if this was out of the ordinary. And he says, 'Oh, it's no big deal.' And I thought, 'How can it be not a big deal? There's chunks of our seal is now missing,'" Williams told Pelley.
• In the hours before the disaster, Deepwater Horizon's work was nearly done. All that was left was to seal the well closed. The oil would be pumped out by another rig later. Williams says, that during a safety meeting, the manager for the rig owner, Transocean, was explaining how they were going to close the well when the manager from BP interrupted.
  
  "I had the BP company man sitting directly beside me. And he literally perked up and said 'Well my process is different. And I think we're gonna do it this way.' And they kind of lined out how he thought it should go that day. So there was short of a chest-bumping kind of deal. The communication seemed to break down as to who was ultimately in charge," Williams said.
• What strikes Bea is Williams' description of the blowout preventer. Williams says in a drilling accident four weeks before the explosion, the critical rubber gasket, called an "annular," was damaged and pieces of it started coming out of the well.
• In finishing the well, the plan was to have a subcontractor, Halliburton, place three concrete plugs, like corks, in the column. The Transocean manager wanted to do this with the column full of heavy drilling fluid - what drillers call "mud" - to keep the pressure down below contained. But the BP manager wanted to begin to remove the "mud" before the last plug was set. That would reduce the pressure controlling the well before the plugs were finished.
  
  Asked why BP would do that, Bea told Pelley, "It expedites the subsequent steps."
•  To do it BP's way, they had to be absolutely certain that the first two plugs were keeping the pressure down. That life or death test was done using the blowout preventer which Mike Williams says had a damaged gasket.
• They didn't stop. As the drilling fluid was removed, downward pressure was relieved; the bottom plug failed. The blowout preventer didn't work. And 11 men were incinerated; 115 crewmembers survived.
  

The law does not allow a company to sacrifice safety for profits. But that looks like exactly what BP did.

The more dangerous an activity is, the more careful the company or person performing the activity must be. A drilling operation in deep water must be much more careful than a drilling operation on land, since if anything goes wrong in the deep water, the problem will be much harder to fix. BP and Transocean know this principle, but they ignored it. For money.

In addition to civil liability, authorities need to consider filing criminal charges against BP and key personnel involved in operating the rig. Given the blatant and intentional disregard of safety on the rig and resulting deaths, the matter should at least be presented to a grand jury to determine if criminal charges should be filed.   

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A few weeks ago I ran into Ashley Ogden and asked him about his decision to not run for Judge Yerger's Circuit Court Judge seat. Ironically, the place where I ran into Ogden was at a fundraiser for Jackson City Councilman Jeff Weill, who is running for the seat and is likely to win.

Ogden stated that instead of running for judge, he plans to do some work as a special prosecutor for the Hinds County District Attorney. He hopes to get heavy sentences imposed for crimes such as robbery. Ogden believes that Jeff Weill will be a good judge and he plans to work with Weill in his capacity as a special prosecutor.

Ogden stated that he still has aspirations to be a judge. He believes that at some point in the future Weill will be appointed or elected to higher office and that the Circuit Judge position will be open again. I tend to agree with Ogden's assessment that Weill may end up in higher office.

Bruce Burton and Ali Shamsiddeen have qualified to run against Weill.

I expect Weill to win going away and to be an excellent judge.

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There has been a lot of commentary in the blog-world on Karen Irby’s lawsuit against Stuart Irby, which blames the accident on Stuart.

Matt at Ipse Blogit lays out the chronology of events leading up to Karen’s sentencing hearing, including:

In Karen Irby's petition (filed March 29), she says that while she was driving the car Stuart Irby began yelling at her and assaulting her.  She then says she sped up and crossed into oncoming traffic, and that she had consumed two glasses of wine, and that her BAC was .09. Oddly enough, she doesn't make a causal nexus between the supposed assault and the bad driving in her plea petition. 

NMC states:

Stating this aloud is not to say that anyone who spoke did anything inappropriate– people were properly playing their respective roles, and none of this demonstrates that Karen Irby is lying.  Or telling the truth, for that matter. What we have here is two pieces of apparent evidence: That Karen says she was assaulted, and that someone speaking on Stuart’s behalf says he doesn’t remember.  We have one factor to weigh:  That Karen and Stuart (or Stuart’s mouthpiece) have good tactical and strategic reasons to say those things.  Perhaps the judge’s conclusion to accept what Karen said is a factor, although a second-hand and therefore weak one.

After thinking about it for a couple of days, I do not have an opinion about what really happened in that car that night on Old Canton Road. There are simply too many variables for me to form an opinion.

It’s pretty clear that the Irbys were in the middle of a domestic dispute. And crazy things can happen during domestic disputes. An example is the death of NFL player Chris Henry when he fell out of the back of a pick-up driven by his fiancee while the two were fighting.

I believe Stuart’s lawyer when he says that Stuart does not remember the accident. I would not expect someone who was in an accident with that kind of impact to remember the accident. I would expect the person to have a traumatic brain injury and amnesia is common (but not always present) when there is a traumatic brain injury. However, I would also not expect Karen to remember either.  

I suspect that Karen Irby believes her account whether its true or not. It’s been my experience as a lawyer and in life that people believe what they want to believe. [NMC seemed to allude to this in his post.] People also rationalize events in their own minds so that that others are to blame for their mistakes or bad outcomes. I believe that we are all wired to do this. I see it in young children and adults alike. Everyone has an excuse for everything. Part of parenting is teaching your kids to not make excuses and accept responsibility for their actions.

People who step up and admit that they made a mistake and take responsibility for it are the exception and not the rule. It takes a lot of maturity and character to do this.

It’s also impossible for me to tell how big of a factor the civil case against the Irbys was or the status of the relationship between the Irbys. These could be no factor, or big factors.

The bottom line for me is that while many things could have happened that night, alcohol was probably the single biggest factor in causing the accident. And that applies whether you believe Karen Irby or not. Judge Green's sentence of 18 years suggests that Judge Green thought the same thing.

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In nominating Solicitor General Elena Kagan to the Supreme Court this week, President Obama made a safe choice. Kagan has almost no paper trail because she has never been a judge. There is little evidence to suggest that Kagan is liberal and little about her that can be subjected to legitimate criticism. Attacks from the right will be motivated by the fact that she is an Obama nominee and little else. Barring an Anita Hill type bombshell, Kagan will be confirmed as only the fourth woman to serve on the Court.

Obama also made a safe choice in appointing Justice Sonia Sotomayor last year. Although Sotomayor was a judge who leaned to the left, she was a Hispanic woman. Republicans could not ruthlessly attack her for fear of alienating Hispanic voters.

Two Supreme Court Appointments. Two safe picks. Maybe that helps explain the delays in filling Mississippi vacancies on the 5^th Circuit Court of Appeals, District Courts and U.S. Attorneys.

It takes time to make sure that picks are safe. A lot of digging into their background must be done. And if a candidate turns out to be unsafe, then its back to the drawing board. My personal opinion is that Obama is being overly cautious. Otherwise, his administration is inept in filling vacancies.    

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The Wall Street Journal reports on the high stakes oil spill blame game being played between BP, Transocean and Halliburton. So who is to blame?

BP?

Couldn’t be. BP blames Transocean’s blow-out preventer:

BP, the well owner, blames the failure of a big set of valves on the sea floor, known as the blowout preventer, to halt the blowout once it started.

That seems reasonable. There was a blow-out and the blow-out preventer didn’t work. So it must be Transocean’s fault?

Transocean?

Couldn’t be. Transocean says its not to blame:

Transocean Chief Executive Steven Newman is expected to tell the Senate the explosion occurred "after the well construction process was essentially finished." His prepared testimony then blames the blowout on a failure of the well's lining, saying the blowout had to be caused by "a sudden, catastrophic failure of the cement, the casing or both."

Transocean also claims that it makes no sense to blame the blow-out on the blow-out preventer. Actually, it makes a lot of sense. I’m not saying Transocean is wrong because I don’t know. But it does make sense to at least point the finger at the blow-out preventer for not doing its job.

But Transocean says the blow-out preventer was not responsible for stopping the blow-out in the location where it occured. So it must be Haliburton’s fault?

Halliburton?

Couldn’t be. Halliburton blames Transocean and BP:

Halliburton says it was following Transocean's orders and is "contractually bound to comply with the well owner's instructions on all matters relating to the performance of all work‐related activities."

Before such a plug is placed, the job of keeping underground gas from coming up the pipe is done by heavy drilling fluid inside the well, commonly known as "mud." The plug is normally put in before the mud is removed, but according to the account of Halliburton, Transocean and the two workers, in this case, that wasn't done—drilling mud was removed before a final cement plug was placed in the well.

It is not clear why such a decision would have been made. Rig owner Transocean says that BP, as owner of the well that was just being completed, made key decisions on how to proceed. BP declined to comment on this account of the drilling procedures.

So whose fault is it? Who knows. Maybe we’ll find out one day. Maybe not.

Barring a settlement agreement among the oil companies, they will spend hundreds of millions of dollars in legal fees trying to prove that the other companies were responsible for the blow-out and resulting spill. I am not aware of any cross-claims being filed yet by the oil companies, but they are probably coming.

It will also be interesting to see if any of the oil companies take the initiative and file suit against the other companies in a chosen venue. After all, the MDL proceeding could go anywhere.

If I were advising the oil companies, I would recommend that they consider filing suit against one or more of the other companies in a hand-picked venue. Strategically, that move would make a lot of sense.   

Finally, and this is a big point that we need to remember: It's still leaking. Maybe they should bring in those guys who got Apollo 13 back to Earth.

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As reported by Kingfish and the Clarion-Ledger, Hinds County Circuit Court Judge Tommie Green sentenced Gulfport native and Jackson resident Karen Irby to 18 years in prison today for vehicular homicide (I am not sure of the exact charge). The sentences run concurrently, meaning that with good behavior she will serve less than 18 years. 

Prosecutors say Karen Irby was speeding and had alcohol in her system above the legal limit when the fiery Feb. 11, 2009, crash occurred, killing Dr. Mark Pogue and Dr. Lisa Dedousis, Pogue's fiancee.

The sentence should surprise no one. From reading about sentences in other vehicular homicide cases over the past few years, it looks like If you kill someone driving while you are impaired you are going to be sentenced to around ten years per death. It doesn't matter who you are.

State courts have applied similar sentences to college students, blue collar workers and now someone from one of the most prominent families in Mississippi. There was no reason to believe that Judge Green would do anything different, and she didn't. 

In the federal court system, Wendell Blount of Calhoun City awaits sentencing after being convicted of running over and killing Dutch cyclist Esther Hageman on the Nathcez Trace in 2009 while impaired on Morphine. Blount faces up to 33 years in prison.

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In what is becoming a regular occurrence Hinds County Circuit Court Judge Swan Yerger rendered a $375,000 bench verdict against the City of Jackson in a case involving a police pursuit. Here is the Clarion-Ledger article on the verdict. This is the fourth similar verdict in the last year.

The article states:

The latest ruling comes from a lawsuit filed by a former Richland police officer over injuries he suffered in 2004 when a car being chased by Jackson police struck his personal vehicle.

Thornton, 44, alleged he was forced to resign from the Richland Police Department, where he had been a patrol sergeant, because of the injuries, including a fractured vertebra, a broken foot, ankle trauma, a concussion, lacerated facial muscles and other facial lacerations that left extensive scarring of his face and forehead.

 

The court found reckless conduct by the Police:

The court finds, from a preponderance of the evidence, that the proximate cause of the subject accident and the plaintiff's injuries, ... resulted from the aforesaid reckless conduct of the Jackson Police Department officers," Yerger wrote.

The City wants the court to apportion fault to the other two parties involved:

City Attorney Pieter Teeuwissen said his office filed a motion Friday in response, asking Yerger to "follow his statutory obligation and apportion the liability to the two other parties."

Those parties are Robertson and another driver, Keiwana Lewis, who pulled her car in front of Robertson's before he crashed into Thornton.

"It's not fair to place all the liability on the city when evidence shows clearly at least those two parties bear responsibility, if not all of it," Teeuwissen said. "The cause of the accident was the individual who would not yield to the police and Ms. Lewis, who was changing her CD, not paying attention and pulled in front of that individual."

Teeuwissen seems to have a point about apportionment of fault to other individuals.

It will be interesting to see what happens to these cases if and when they reach the appellate court. Is Jackson the only place where police pursuit accidents occur? Why is it always the police department’s fault? I don’t know the answers to these questions. 

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As expected, BP is moving to stay federal court lawsuits pending a transfer to the Multi-district Litigation (MDL).Here is a motion filed Friday in Parker v. Transocean et al. 

Technically, an MDL has not yet been established. But that is a mere formality. Here is BP’s motion  seeking to transfer 70 cases to an MDL proceeding. This is much greater than the “we’re gonna win in 90 days” group proposed by a few plaintiff lawyers on April 30.

Here is the list of actions that BP wants to include in the MDL. Once the MDL is established federal courts will routinely transfer new filings to the MDL.

The real news in the filings is that BP seeks to have the MDL action in Houston, Texas, which is in the Southern District of Texas. The main reasons supporting this location is that it is the headquarters of all the defendants and is where key witnesses and documents are located.

The defendants are obviously looking for a home field advantage in Houston. In addition, the spill is not moving in that direction. The defendants would obviously like to avoid having the case pending in a court located in an area where the spill makes land fall.

It seems to me that the MDL should be located in the Southern Division of the Southern District of Mississippi. That means Gulfport. The courthouse is located a block from the Gulf and the federal judges can watch the oil make land fall from their office windows. If the spill gets really bad, defendants’ lawyers will be able to smell the oil as they walk into the courthouse. You can't get more convenient than that.

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In response to unprecedented amounts of lawyers “running cases”, the Mississippi Bar issued a press release today concerning solicitation of cases by lawyers. Here is the statement.

The term "running a case" refers to a lawyer obtaining a case by solicitation. Advertising is not considered running a case. Paying an investigator to direct potential plaintiffs to a certain lawyer is considered running a case.

 Key points in the Bar's statement address the practice of law in Mississippi by out-of-state lawyers and improper case solicitation by lawyers.

In other oil spill litigation news, there are reports that the federal court system has already been asked to combine all the oil spill cases in a multi-district litigation proceeding. A federal MDL proceeding is a foregone conclusion. The only interesting questions are where the MDL will be located and who will be the presiding judge.

In addition, New Orleans lawyer Dan Becnel emerged from a meeting yesterday among plaintiff lawyers and predicted that the litigation will be over soon:

 We’re not going to have a long march to trial,” Becnel said yesterday in an interview before the meeting. “This could all be over in 90 days.”

I find that prediction extremely optimistic even though the Oil Pollution Act imposes strict liability on BP. People said the same thing about the length of the Civil War and World War I, and look how those predictions turned out.  

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There is some good analysis of the oil spill in legal blogs. Tennessee lawyer John Day has this post about the impact of the damage cap under the Oil Pollution Act (OPA) on his Day on Torts blog. Day points out that the cap under the OPA for this type of spill is $75 million:

You haven't seen much about it in the press yet,  but BP has the benefit of a cap that will probably limit its liability for the oil spill in the Gulf.  Section 1004 of the Oil Pollution Act (OPA), passed into law in August 1990 after the Exxon Valdez incident, limits the liability of holders of leases or permits for offshore facilities to $75 million per spill, plus removal costs.

In addition, Day points out that if the bulk of the clean up and damages are covered from the Oil Spill Liability Trust Fund, then consumers will be the ones actually paying the bill:

Thus, if the oil damages the coastline, the damages will be hundreds and hundreds of millions, the vast majority of it paid for by consumers who paid the tax on oil, and not the company that negligently created the harm.  That is a crying shame.  

Maybe this tragedy will cause people to re-examine the appropriateness of damage caps in general.   Whether they concern property damage, personal injury or wrongful death, damage caps are nothing but a bailout to those who cause harm. 

Philadelphia, Pa. lawyer and Ocean Springs native Max Kennerly has this post on his Litigation and Trial Blog commenting on the oil spill litigation and, among other things, criticizes some plaintiff lawyers’ first to file mentality:     

Some lawyers read language like the above and, as a matter of habit, throw together a slapdash complaint the moment they see bad news in the papers.

This strategy used to work, and there are indeed old cases in which the class counsel was chosen almost entirely on the basis of the first-to-file.

But those days are behind us, and the first-to-file rule has little influence in the selection of class counsel these days. As the Third Circuit's Task Force Report on the Selection of Class Counsel quoted from a Delaware securities fraud case,

Although it might be thought, based on myths, fables, or mere urban legends, that the first to file a lawsuit in this Court wins some advantage in the race to represent the shareholder class, that assumption, in my opinion, has neither empirical nor logical support.

Too often judges of this Court face complaints filed hastily, minutes or hours after a transaction is announced, based on snippets from the print or electronic media. Such pleadings are remarkable, but only because of the speed with which they are filed in reaction to an announced transaction. It is not the race to the courthouse door, however, that impresses the members of this Court when it comes to deciding who should control and coordinate litigation on behalf of the shareholder class.      

 Both posts are worth reading in their entirety.

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The Wall Street Journal has this article on the competition among plaintiff lawyers to be selected as the lead counsel in the Toyota sudden-acceleration MDl pending in California. The article states:

The first hearing is scheduled for May 13, and lawyers are on edge about whom U.S. District Judge James Selna will pick to run the plaintiffs' case. They're strutting their stuff in official applications filed with the judge.

For the Japanese auto maker, which declined to comment for this story, billions of dollars in legal liability could be at stake as it fights suits tied to its recalls of vehicles because of sudden-acceleration issues. The lawyers' quest is a pot of as much as $500 million in fees. Only a few will share it.

More than 100 lawyers have filed more than 75 federal civil suits. Most of them aim to hold Toyota responsible for a drop in the resale value of its vehicles.

Anyone who has practiced law for more than a week knows that you can’t necessarily identify the best lawyers from their resumes. The reasons probably include that resumes do not show lawyers’ common sense, people skills, tenaciousness and whether they are hard workers.

With all due respect for Judge Selna, she needs another method to award the lead plaintiff counsel role. She needs the Super-stars.

That’s right, I’m talking about that 1970’s show that ran on ABC on Sunday afternoons where stars from various sports battled it out in various events to determine the true Super-star. Many kids had the image of their role model shattered by seeing that a super-star couldn’t swim or sucked in bowling or the obstacle course.

Likewise, a Toyota lawyers Super-stars competition will separate the contenders from the pretenders. Lawyers will not be able to hide behind large verdicts or settlements in their own jackpot justice backyards. They will have to compete on the track. And the pool, bowling alley, obstacle course, etc.

Judge Selna needs to decide this by the Super-stars. It’s the only fair thing to do.

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This one goes into the WTF category. The Sun Herald reports:

Texas Gov. Rick Perry says it's not wise to speculate about what caused an explosion and massive oil spill in the Gulf of Mexico. And he's defending his use of the term "act of God" to describe the disaster.

Perry said Tuesday the phrase is a legal definition and that his point is "nobody knows what happened" at the oil rig off the Louisiana coast. The undersea well has been spewing 200,000 gallons of oil a day.

Perry is right about one thing. An act of god is a legal definition. Under the Oil Pollution Act (OPA), an act of god is one of only three defenses to liability for an oil spill. If BP, Transocean, et al. can convince a court that the spill was an act of god, then they owe nothing for the clean up and damages caused.

But don’t worry. Perry is dead wrong. According to the Environmental Law Handbook (20th ed), courts have interpreted the OPA act of god defense to be very narrow—more narrow than the common law act of god defense. The statutory language of OPA has three elements: the natural phenomenon must be:  (1) exceptional; (2) inevitable; and (3) irresistible.

Like maybe a big hurricane blowing a rig over and causing a spill. Here, there was no “natural phenomenon.” There was an explosion. An Explosion is not a natural phenomenon. Or an act of god.

Governor Perry, just because something was an accident doesn’t mean it was an act of god. Come on Governor, you can’t really think that. 

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WSJ is reporting on two Senators introducing legislation to raise BP’s liability exposure for the Gulf Oil Spill under the Oil Pollution Act (OPA):

On Monday, two Democratic senators introduced legislation to raise the $75 million cap to $10 billion. The bill also proposes that claimants would be able to collect damages from future revenues for the fund, with interest, if damages exceed the $1.6 billion held by the trust fund.

A $75 million cap is ridiculously low for a spill that will affect the entire Gulf Coast and that is predicted to reach the Florida Keys and Atlantic Coast.

The article also explains that oil spill victims may be better off making claims under the OPA than filing lawsuits:

Lawsuits, however, aren’t the only way to go for an alleged victim. A piece of federal legislation passed in the wake of the 1989 Exxon Valdez spill allows injured individuals to make use of a claims process in which the federal government makes payments from a fund collected through a tax imposed on the oil industry.

The benefit of the claims process: those harmed may recover funds without going to state or federal court, which can take years.

Meanwhile, a separate WSJ article explains that the oil spill litigation is headed for an MDL:

Lawyers expect the private litigation to unfold in the same way as the lawsuits against Toyota Motor Corp. over problems tied to unintended acceleration.

The cases will get consolidated and sent to one judge, who will then pick a steering committee made up of a group of plaintiffs' lawyers to direct the litigation.

Early predictions from Mississippi lawyers is that the MDL will not be in Mississippi.

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Since my last post I identified three more Gulf Oil Spill lawsuits filed in federal court in Mississippi. The three are:

1. Nguyen v. Transocean et al.—a class action filed Monday on behalf of shrimpers, fishermen, etc. Plaintiff lawyers are Patrick Sheehan and Hayes Johnson of Biloxi and Robert Gambrell of Oxford.
2. Cajun Maide v. BP, et al.—a class action filed Friday with a class as wide as the Gulf. This case has a big and interesting group of Plaintiff lawyers. The group includes the Barrett firm out of Lexington, a bunch of lawyers from all over the country and the Daniel Coker law firm from Mississippi. Daniel Coker is traditionally an insurance defense firm and I was surprised to see them show up on the plaintiff side of this case. But down the road in the oil spill litigation I expect to see insurance companies suing the oil companies to recoup money paid in claims. So Daniel Coker’s traditional client base will probably be adverse to the oil companies.
3. Trieu v. BP et al.— a class action filed Friday with the class consisting of people and companies in the fishing industry. Plaintiff’s counsel is Robert Wiygul of Ocean Springs.

Some plaintiff lawyers believe that all of the filed suits are premature and that people must first give notice to the responsible party under the Oil Pollution Act. Most people interpret that to mean BP because it is their oil. But I have read quotes where BP is blaming Transocean or other contractors who operated the rig. BP may have a point as to fault, but BP is likely responsible under the Oil Pollution Act.

Plaintiffs in the lawsuits are suing BP and the contractors such as Transocean. Transocean is a deep water driller whose stock (symbol RIG) has gone in the tank since the explosion. Plaintiff’s lawyers will love the fact that the defendants are pointing the finger at each other, since it will make it easier to prove their cases where defendants are blaming each other.

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The Sun Herald is running this article regarding out-of-state lawyers soliciting clients for lawsuits over the Gulf Oil Spill. The leader of the Mississippi Association for Justice is asking Attorney General Jim Hood to investigate:

 We have heard numerous stories of businesses along the Mississippi Gulf Coast that are getting as many as half a dozen phone calls per hour from out-of-state law firms,” the organization’s president, Steve Mullins, said in a letter to Hood. Mullins said trial lawyers’ associations in Alabama, Louisiana and Texas support the call for an investigation.

“We’ve all collectively had enough of this,” Mullins said in an interview with the Sun Herald. “You can’t just come into this state and just represent people willy-nilly. It’s illegal. It’s unethical.”

Mullins told the Sun Herald the problem of illegal solicitations has grown since Katrina, when unethical attorneys stationed private investigators and other runners on the Coast to solicit clients.

“This is widespread,” he said. Under professional rules of conduct, attorneys are not supposed to solicit cases. Also, it is a misdemeanor violation of state statute to practice law in Mississippi without a state license. 

Out-of-state lawyers running cases in Mississippi is nothing new. I remember a conversation that I had over ten years ago with former Mississippi Bar President David Smith (deceased in 1998) in which he lamented the practice and talked about how bad it was for Mississippians. It’s probably gotten worse since then. 

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Five years after Katrina the Gulf Coast is getting its teeth kicked in—again. But the Gulf Oil Spill could be even bigger than Katrina in terms of the economic impact and the area affected by the disaster. 

How Bad Will it Get? 

That’s the big question right now. Straight-shooting Congressman Gene Taylor viewed the spill Saturday and said that it’s not Armageddon. But the question remains: how bad will it be by the time they get the leaking well capped?

Clarion-Ledger writer Bobby Cleveland called the leak a “volcano” of oil:

Think about it: 200,000 gallons a day. That's 139 gallons a minute, 8,333 gallons an hour, 1.4 million gallons a week and 6 million gallons a month.