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

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The Mississippi Supreme Court Rules Committee on the Legal Profession is proposing a major change to the Rules of Professional Conduct: lawyers will be required to perform 20 hours of pro bono legal services to the poor per year. Those who don't must pay $500.00 to the Bar.

Here is the link to the proposed new rule. The deadline for comments is October 1, 2010.

As can be seen in the linked proposed rule, the current rule is that lawyers should (but don't have to) render 20 hours of legal services per year to the poor. In the alternative, lawyers may make a voluntary contribution of $200 to the Mississippi Bar.

A reader forwarded me a comment letter from Water Valley lawyer John Gillis, who makes some convincing arguments against the proposed rule. Among Gillis' points:

• no other jurisdiction has a mandatory pro bono requirement
• only seven states have mandatory pro bono reporting (including Mississippi)
• eight states have rejected even mandatory pro bono reporting
• a mandatory requirement would spoil the altruism one gets from performing pro bono work
• there will likely be problems in the quality of pro bono work
• lawyers may have problems in finding indigent clients
• the proposed rule provides no organizational or management structures for the new rule
• pro bono is by nature a voluntary act.

Gillis proposes other incentives for voluntary pro bono service, including awarding six hours of CLE credit for lawyers who meet the 20 hour threshold. Incidentally, allowing a few hours of CLE credit for pro bono work was proposed a few years ago by the Bar's Delivery of Legal Services Committee (I chaired the committee). The Commission on Continuing Legal Education rejected the proposal despite support from the Access to Justice Commission.

My Take:

I am a big believer in pro bono service. I try to always maintain at least two active pro bono cases and have relished the sincere appreciation that pro bono clients often communicate. But my initial reaction to the proposed rule is not positive.

I agree that pro bono should be voluntary. I am afraid that if lawyers have to provide pro bono services, then many will resent it and their pro bono clients.

In addition, some lawyers may have practices that are not suited to regularly providing pro bono legal services. Typical pro bono work is in chancery court handling domestic matters such as divorces, guardianships and child custody disputes. Should a transactions lawyer who never enters the courtroom handle these types of cases? Probably not. So what will these lawyers do to fulfill their pro bono requirement?

There are also provisions in the proposed rule that I do not like the sound of. Can some lawyers at firms meet the requirement through the work of others lawyers under the collective discharge provision? If so, this will become known as the “Senior Partners” rule and will lead to senior lawyers at firms making the junior lawyers perform enough pro bono services to satisfy the requirement of the senior lawyers and the junior lawyer. You could have junior associates performing a hundred hours or more of pro bono work to satisfy the requirement for the firms' senior partners.

I also don't like the exemptions. First, cynics will note that it's pretty easy for the Supreme Court to adopt a pro bono requirement that does not apply to its justices.

Second, why do all government lawyers get a pass?

Third, what does “those lawyers who are restricted from practicing law outside their specific employment” mean? In-house counsel? If so, why do they get a pass? Some in-house counsel litigate cases in Mississippi courts. Can any employer enact a rule restricting the practice of law outside their specific employer? If so, I can pretty much guarantee that my employer (Philip W. Thomas, P.A.) is going to pass such a rule so I don't have to worry about this new rule. Expect other law firms to do the same.

Fourth, are the chancery judges going to appreciate it when lawyers who have no business in their courtroom show up representing clients in order to meet their requirement? And will that be good for the client if the opposing party is represented by an attorney experienced in the area of practice?

In conclusion, the proposed rule is paved with good intentions. But I don't like it. The Court and Bar should look for ways to encourage pro bono legal services. They should not mandate it.

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On Tuesday Hinds County Circuit Judge Malcolm Harrison directed a verdict for the defendant in Brown v. Anderson.

The case was a breach of contract case where the plaintiffs (the Browns) sued James Anderson over a house that Anderson sold to the Browns. At the closing, Mr. Brown signed a document—the only document that he signed—stating that he had conducted a walk-thru of the house and found that all electrical, plumbing and HVAC were functioning. The Browns knew that they could have the home inspected before the closing, but did not.

Three weeks after the closing, the Browns hired a home inspector who found numerous alleged problems with the home's electrical, plumbing and HVAC. After the sale, the Browns lived in the house for four years without paying a house note, insurance or taxes until the house was foreclosed by the lender.

The Browns sued Anderson for breach of contract and tortious breach of contract. The Browns sought $90,000 in economic damages (sale price of the house) and personal injury damages. Anderson's defense was that the Browns did not prove a defect at the time of the sale and signed a document at the closing that stated that there were no defects.

The plaintiffs rested on the second day of trial and Judge Harrison granted Anderson's motion for directed verdict. Judge Harrison agreed with Anderson that the Browns failed to establish a prima facie case of breach of contract or tortious breach of contract.

Pieter Teeuwissen of Jackson represented Anderson. Anderson is an employee of the City of Jackson and Teeuwissen, who is the City Attorney, represented Anderson on a pro bono (free) basis.

David McCarty and Drew Martin (?- not Drew Malone as earlier reported) of Jackson represented the plaintiffs.    

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Finally, a Mississippi Supreme Court decision of imminent importance to the masses. On Thursday the Supreme Court decided Ryals v. Board of Supervisors, a “landmark” decision involving whether the Pike County Board of Supervisors can outlaw drinking on the “pristine” Bogue Chitto River and Topisaw Creek. 

The Board of Supervisors banned possessing and consuming alcohol on the river due to landowner complaints of littering, profanity, lewd behavior and…. two dozen reports of individual acts of perversion…. so profound and disgusting… that decorum prohibits listing them here.

Unfortunately for local business owners, no one wants to tube if they can't get their drink on. Business was down 90% following the ban, leading to the lawsuit. Pike County Circuit Court Judge David Strong sided with the Board of Supervisors and upheld the ban. The business owners appealed.

First, the good news for inner tubing drunks. The Supreme Court struck down the ban on possession of beer on the River. You  can take all the beer you want with you on your float.

Now the bad news. You can't drink it. The Court upheld the prohibition of consumption of alcohol on the River.

Will Bardwell—a lifetime Bogue Chitto River Rat—apparently theorizes that drinking on the sandbars will be permitted. I'm going to have to disagree. My interpretation of the decision is that it effectively means that the River will stay dry.

I'm not certain because I am not an Ole Miss fan, but this policy sounds like the exact opposite of the alcohol rules in the Grove before Ole Miss football games.

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On Thursday the Mississippi Supreme Court decided a case that was a dispute over the near-sale of a planned law office building. Here is the opinion in Sweet v. TCI. 

Anderson discussed the opinion here. The case turned on the issue of whether an affidavit was so conclusory as to be ineligible to support a motion for summary judgment. Amazingly, the following passage in Justice Dickinson's dissent convinced only Justice Randolph to join the dissent:

The majority says TCI’s affidavit amounted to a conclusory, self-serving statement. A statement is conclusory if it “[e]xpress[es] a factual inference without stating the underlying facts on which the inference is based.” Paragraph 4 of Small’s affidavit reads “[TCI] attempted to obtain financing satisfactory to it from numerous financial institutions . . . [and was] unable to do so.” That is a statement of fact, not a conclusion. “Peas don’t taste good” is a conclusory statement. But “I have eaten peas and I don’t like peas” is a statement of fact. TCI’s sworn statement that it unsuccessfully had attempted to obtain satisfactory financing from numerous financial institutions is a statement of fact – uncontradicted in the record. Accordingly, I would affirm the chancellor.

My initial reaction was that this was one of the greatest pieces of legal writing in the history of American jurisprudence. But upon further reflection, I've decided that Justice Dickinson should have referred to corn or spinach instead of peas.

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The third trial involving the 2001 death of former New York Mets prospect Brian Cole is taking place before Judge Billy Joe Landrum in Laurel or Paulding (I have heard both). Ford Motor Co. is the defendant. The lawsuit alleges defects in a seatbelt and a propensity of an Explorer to roll-over. 

Two prior trials resulted in hung juries. The case was first tried in 2004 before Judge Robert Evans in Paulding. My recollection is that the plaintiffs moved to recuse Judge Evans after the first trial and the Supreme Court appointed Judge Landrum to take over the case.

The second trial was earlier this year before Judge Landrum and discussed on this blog here and here. 

Plaintiffs contend that Cole would have been a major leaguer, a view supported by the Mets as discussed in this New York Daily News article about the last trial.

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As reported by the Clarion-Ledger, the City of Jackson now faces two conflicting rulings by Hinds County judges on the City's waste water contract.

Last week Hinds County Circuit Court Judge Swan Yerger threatened to throw City leaders in jail unless the City complied with an order to award the contract to United Water Services. I discussed Judge Yerger's ruling in this post.

 But on Thursday Hinds County Chancellor Dewayne Thomas issued this order granting a preliminary injunction that orders the City to not terminate its contract with Jackson Water Partnership.  

If the City complies with Judge Thomas' Order, then it will be in violation of Judge Yerger's Order. But if the City complies with Judge Yerger's Order, then it will be in violation of Judge Thomas' Order.

If I'm Jackson City Attorney Pieter Teeuwissen, this would remind me of the scene from the movie Airplane where Lloyd Bridges says: “looks like I picked the wrong week to stop sniffing glue.”

Now comes news that Judge Yerger has ordered attorneys for the City and United Water to appear before him at 1:00 p.m. today.

Should be real interesting.

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There was a jury verdict of $900,000 last week in the Hinds County Circuit Court in a premises liability case. The rumor around town this week has been that the verdict was for $2 million, but my investigation revealed a verdict of $900,000.

Judge Malcolm Harrison was the trial judge.

The plaintiffs were victims of armed robbery at the Crossings Apartment on Ridgewood Road in Jackson. The jury's verdict was for one of the two victims. Judge Harrison will determine the damages for the other plaintiff, but I do not know why.

I do not know what the injuries/ damages were. There were no punitive damages in the case.

Precious Martin of Jackson represented the plaintiff. James Holland from Page Kruger in Flowood represented the defendant.

One interesting tidbit I'm hearing is that the spouse of a prominent Jackson defense attorney was on the jury.

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Within the last week or so a Gulf Coast arbitrator awarded $2.325 million to a plaintiff whose dump truck collided with an 18–wheeler.

The accident occurred years ago on a four lane road in Jackson County. The 18–wheeler ran a stop sign and crossed two of the four lanes and stopped, with the trailer blocking two lanes. The plaintiff's dump truck collided with the 18–wheeler. All fact neutral fact witnesses agreed that the accident was the 18–wheeler's fault.

The forty-seven year old plaintiff suffered severe injuries and was permanently disabled. The plaintiff had over $180,000 in medical bills. In addition, the plaintiff losing his job caused severe economic hardship for the plaintiff and his family.

The case was originally filed six years ago in the Circuit Court of Jackson County. But the parties agreed to binding arbitration after three trials were continued due to the priority of criminal cases.

At the arbitration hearing, the defense argued that the plaintiff should have stopped his dump truck to avoid the 18–wheeler. The defendant's accident reconstructionist—who had questionable credentials—basically flipped on the witness stand and testified that the plaintiff had only 2.5 seconds to stop, which was impossible due to the size of the dump truck. The arbitrator cited the defense expert in support of his decision.

$1.2 million of the award was for non-economic damages. But it was a pre-cap case, so the caps do not apply. The defendant is not expected to appeal. 

The defendant offered $200,000 to settle before the arbitration. There was a workers comp. lien for the medical bills of over $180,000.

Kasie Braswell and Richard Taylor with the Taylor Martino firm out of Mobile represented the plaintiff. Jim Galloway and Shannon Favre with Butler Snow in Gulfport represented the defendant.

Word on the street on the Coast is that defense counsel is outraged by the result and that Butler Snow has canceled all future mediations with the arbitrator, who is well known and respected in Mississippi.

My Take:

If the defendants only offered $200,000 to settle before trial, then they did not want to settle. Offering $200k to settle with a comp lien of $180k is usually the equivalent of offering zero. If you want to settle, you have to offer a good bit more than the lien. In this case, it probably would have taken an offer of over $500,000 for the plaintiff to even think about it.  

I have heard of the “hey, you hit my 18–wheeler” defense. But most lawyers view it as a weak defense asserted when there is nothing else to argue. Few people actually believe that they will win the case with the defense.

This case could have been a situation where the defendant fell in love with their defense and loss objectivity. You see this happen to lawyers on both sides, who have to buy into their cases in order to do a good job. Published studies show that on average, lawyers do a poor job of predicting the results of their cases. Sometimes lawyers lose all objectivity, which can lead to a really bad—but unexpected—result.

In my opinion, this phenomenon is usually more dangerous for defendants and defense lawyers than plaintiffs and plaintiff lawyers. On the plaintiff side, if you poorly evaluate your case, then there is not a lot that you can do after the case is filed. Defendants will not offer more than nuisance value to settle, which the client will not accept. So you have to try the case and work on doing a better job of evaluating the merits of a case before it is filed. A wise plaintiff lawyer will spend many hours analyzing a case that he ultimately rejects, knowing that the decision can save him countless hours and dollars down the road.   

On the defense side, however, the phenomenon can lead to avoidable huge verdicts that take the defendant (often an insurance company) and defense counsel by surprise. This hasn't always happened when you see a large verdict in a case, but it has a lot of the times. Many times, neutral trial observers were not surprised by the verdict, which often means that the defense fell in love with their case and lost objectivity.

Lawyers have to be careful not to fall into this trap—myself included. Using expected value calculations can help, as discussed in this post. But there is no substitute for experience and having the ability to stay objective in evaluating the range of possible outcomes.

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On Friday a Lauderdale County Circuit Court jury rendered a defense verdict in Payne v. Gowdy et al. in a case tried before Judge Lester Williamson. Here are the case details as reported to me.

Facts

The decedent, Marie Payne, was walking in a parking garage in Anderson Hospital in Meridian after a doctors appointment. Cleveland Gowdy was driving his personal pickup truck to an appointment to get a DOT physical to renew his commercial driver's license so that he could keep driving 18 wheelers. He worked for Schneider National, but was not on the clock and was not driving a Schneider vehicle at the time. Gowdy missed a parking space, put his pickup in reverse and accidentally backed over Marie Payne, an elderly 78 year old female. Ms. Payne died about 30 minutes after the accident.

Lawsuit

The plaintiffs sued Gowdy and his employer, Schneider National, alleging that Gowdy was in the scope and course of his employment because Schneider made the appointment for him to get his DOT physical, he went to a Schneider approved doctor, Schneider paid for the physical and wrote the cost of it off on its taxes as a business expense.

Trial

Gowdy testified at trial that although he stopped, looked in his side mirror and rear view mirror, he never saw  Payne. He also testified that he turned and watched through his rear window the whole time he was backing his truck, but also did not see her then either. Plaintiffs' expert testified that Gowdy should have seen Payne when backing because she was tall enough that five to six inches of her head would have been visible over his tailgate. Gowdy's expert testified that she would have been in a blind spot and would not have been visible to Gowdy.

Schneider's expert testified that under the FMCSR's, Gowdy was not "on-duty" when going to get his physical because it was a prerequisite for employment and was not done at the "direction" of Schneider.

The jury deliberated for 2 hours and returned a defense verdict as to liability. Because Gowdy was not found to be negligent, the jury did not have to render a verdict on the employment issues with Schneider National. The Plaintiffs asked for $3 million in damages.

Plaintiffs' counsel were Rocky Wilkins of Jackson and Henry Palmer of Meridian. Defense counsel were Justin Cluck of Holly Springs (Gowdy) and David Dunbar of Ridgeland (Schneider National).

My Take

The moral of the story here is that parking garages are dangerous for pedestrians. Pedestrians in garages should assume that drivers of vehicles do not see them.  

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On Thursday Hancock County Circuit Court Judge Lisa Dodson declared a mistrial in a Hurricane Katrina wind vs. water trial between Coastal Hardware and Lloyd's of London. The reason for the mistrial was that the jury could not hear the witnesses due to acoustic problems in the courtroom in the recently renovated Hancock County courthouse. I discussed the problems in this post last year.

It's my understanding that in the trial last week Judge Dodson questioned jurors after a juror complained of not being able to hear the witnesses. Several other jurors admitted to having trouble hearing the witnesses. One juror said that they could hear every few words. As a result, Judge Dodson ordered a mistrial.

Former Southern District U.S. Attorney Brad Pigott represents the plaintiff. Whit Johnson of Currie Johnson in Flowood and Atlanta lawyers represent Lloyd's.

The trial will be re-set in October with a Hancock County jury. But the trial will take place at the Harrison County Courthouse in Gulfport.

It is reported that of the four Circuit Judges who cover Hancock County, three already refused to hold trials in the courtroom because of the acoustic problems. But after this latest mistrial, I would be surprised if any of the judges will hold jury trials in the courtroom until the problems are fixed.

More importantly, this raises due process questions about prior trials in the courtroom—particularly prior criminal trials. I hear that there have been two criminal convictions in trials held in the courtroom.  There is nothing to suggest that the experience with the jury last week was unique. This means that juries in the previous criminal trials likely also had trouble hearing witnesses. How would you like to be sitting in Parchman based on a conviction where jurors could not hear due to acoustic issues? This could create some interesting issues for the Mississippi Supreme Court to grapple with.

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On Thursday Hinds County Circuit Judge Swan Yerger threatened to incarcerate Jackson Mayor Harvey Johnson, City Attorney Pieter Teeuwissen and other city leaders over the City's failure to award a waste water contract pursuant to a Court Order issued by Judge Yerger. The Clarion-Ledger reported:

“If the city has failed to comply with this court’s orders …, the court will consider the same to be a willful and deliberate violation of this court and will hold (the city) in civil contempt of court, with the possible penalties of monetary fines and jail time to be assessed against any responsible municipal representatives,” Yerger wrote in the order signed Thursday.

Courtroom observers indicate that Judge Yerger was livid during the hearing and dressed down the City's attorneys for over an hour in what some described as a tantrum.

On Friday the Jackson City Council quickly voted to comply with Judge Yerger's Order:

In a Friday evening meeting, City Council members voted 5-1 in favor of starting the transition from Jackson Water, a partnership of Pennsylvania-based Severn Trent Services and Jackson-based Garrett Enterprises, to New Jersey-based United Water Services.

Hinds County Circuit Court Judge Swan Yerger had threatened to throw city officials in jail unless they acted on his orders to reassign the contract.

I can't really tell from the articles, but it appears that Judge Yerger ordered specific performance in a breach of contract action and that the City failed to comply.

Judge Yerger's actions came just a few weeks after the Mississippi Supreme Court reversed the judge in a case involving the City.

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The MDL Panel on Multidistrict Litigation ruled this week that the BP Oil Spill MDL is going to the Eastern District of Louisiana. Here is the Court's Order. The judge will be Judge Carl Barbier.

The MDL's decision is good for the plaintiffs and great for Louisiana oil spill lawyers, both plaintiff and defense. It's not bad for the Mississippi plaintiff lawyers who filed oil spill cases, since New Orleans is close in proximity.

The decision is bad for the oil companies and terrible for defense lawyers in most Gulf states, including Mississippi.

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There was a $1.5 million verdict today in Lincoln County in a commercial litigation breach of contract case.

Precision Welding sued Denbury Resources for [correction] $4,190,000 for breaching an alleged contract between the parties. Denbury denied liability. The jury reached a unanimous verdict for the plaintiff and awarded $1.5 million in damages.

Walter “Bubba” Morrison of Sessums, Dallas and Morrison in Ridgeland represented the plaintiff. Bill Reed and Brandon Jolly of Baker Donelson in Jackson represented the defendant. The case was tried before Judge David Strong.

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There was a $5 million verdict on Friday in a Jones County silica trial with 10% fault assigned to the defendant. Here is the Harris Martin article on the verdict:

ELLISVILLE, Miss. –– A Mississippi jury has awarded $5 million to a silica plaintiff, assessing 10 percent liability to American Optical, sources have confirmed to HarrisMartin. McGilberry v. Pangborn Corp., No. 2007-16-CV5 (Miss. Cir. Ct., Jones Cty., Dist. 1.).

The Mississippi First Judicial Circuit Court for Jones County jury reached the verdict on Friday, Aug. 6, sources said. Judge Billy Joe Landrum presided over the one-week trial, which ended after approximately four hours of jury deliberations.

The underlying claims were brought by John McGilberry, who claimed that his work as a jackhammer demolishing concrete exposed him to respirable silica. McGilberry also alleged that he was exposed to silica as a bystander while sandblasting for seven days in the 1970s.

As a result of this exposure, McGilberry claimed that he eventually developed pneumoconiosis.

American Optical, whose 1050 and 1010 disposable respirators were at issue in the case, was the lone remaining defendant at the time of the verdict. The company argued that the plaintiff had failed to properly identify their product; that the exposure history was insufficient to cause silicosis; and that in the plaintiff’s 30-year medical history, he was diagnosed and treated for sarcoidosis but silicosis was never mentioned.

Testifying on behalf of the plaintiff were Steven E. Haber, M.D., pulmonology; Vernon E. Rose, Dr.PH, industrial hygiene; Frank Giles, life care planner; and Charles Dennis, economist.

Testifying on behalf of American Optical were Robert M. Middleton, M.D., pulmonology; David R. Derr, M.D., radiology; Joseph Zdrok, corporate representative; and Dr. David Anderson, industrial hygiene.

Counsel for the plaintiff were R. Allen Smith Jr., Patrick Malouf and John T. Givens of Porter & Malouf in Jackson, Miss.

American Optical was represented by Walter T. Johnson and Michael O. Gwin of Watkins Eager in Jackson, Miss.

Additional Information:

Sources are telling me that $2.5 million of the verdict was for non-economic damages. The defendant wants to reduce the non-economic damages under the cap to $1 million and then apply the 90% reduction due to the defendant being only 10% at fault. This would make the judgment $350,000 instead of $500,000.I do not know if that is the correct way to apply the cap. My guess is that it's not.  

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Two different people have told me that they heard from a knowledgeable person that there will be no appeal in the Hinds County La Quinta Inn near-drowning case.

Typically, when a verdict of that size is paid and not appealed the defendant does not have any issues on which to base an appeal. That could have happened in this case if the plaintiffs agreed to all the defendants' jury instructions and never objected to defendant's evidence.

Damages would be hard to appeal. The liability caps do not apply to this verdict because most of the damages were economic.

A lot of people have a problem with the parents' conduct, but apportionment of fault was for the jury and that would be hard to reverse on appeal.

I have seen cases where the losing defendant had nothing to appeal and paid the judgment. This would not be the first time that has happened.

In addition, since the case is unlikely to be reversed and rendered, defendants may not want a new trial. Ogden would likely ask for the same $26 million in the second trial based on the life-care plans. So things could actually get a lot worse for the defendant. The defendant may not want to roll the dice.  

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One week after reversing a $148,000 verdict against the City of Jackson, the Miss. Supreme Court affirmed a $500,000 verdict against the City in a wrongful death case. Here is the Court's opinion in Harris v. City of Jackson.

Like the case last week, this case involved a wreck caused by a Jackson police officer. Hinds County Circuit Court Judge Swan Yerger was the judge in both cases. But that is where the similarities end.

In the case last week, a police officer caused a wreck while responding to an emergency even though she proceeded through a red light slowly with siren and buzzer blaring. This week, the police officer was not responding to an emergency and was speeding through the red light with no siren or lights. Witnesses estimated that the police cruiser was going over 100 mph when it hit the victim's car.

There was an expert report for lost wages of $345,000. The total verdict was $500,000–-the maximum recoverable against a governmental entity.

On appeal, the City argued that it did not waive immunity under the Tort Claims Act because the police officer committed the crime of culpable-negligence manslaughter. The statute does not waive immunity when the employee's conduct constituted a criminal offense.

The Court rejected the argument, finding that the statute excludes “traffic offenses” from the criminal conduct immunity. The actual language of the statute (Miss. Code Ann. 11–46–5) states “traffic violations.”

The Court found that the officer's traffic violations were running a red light and speeding. Since these are traffic violations, the Court reasoned that the City waived immunity.

Justice Lamar wrote the Court's unanimous opinion. Plaintiff's counsel were Chuck Mullins and Merrida Coxwell. Kimberly Banks, Pieter Teeuiwissen and Claire Hawkins represented the City.

My Take:

This decision was a win for the facts of the case. The cop was an idiot and the victim did not deserve to die. Anyone who reads the facts should agree that it's only fair that the City lost. But the Tort Claims Act and general notions of fairness are often inconsistent.

This decision could be viewed as a result oriented decision that could have gone the other way on the law with different facts. The criminal violation that the City relied on was manslaughter—not a traffic violation.

Under the Court's rationale, a governmental entity is liable for any “reckless disregard” conduct as long as it involves a traffic violation in connection with a more serious crime. For example, the City would be liable if a drunk cop shoots his neighbor who he had been feuding with out of a moving cop car, if the car was traveling 20 mph in a 15 mph zone. But if the car was parked or only going 15 mph, the City would not be liable. 

That would be fine with me, since I hate governmental immunity and believe that it creates a system that unfairly stacks the deck against victims. But I'm not sure that this decision was the legislature's intent.   

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Jackson lawyer Carlton Reeves' nomination to be a U.S. District Judge cleared the Senate Judiciary Committee on Thursday. Here is the Clarion-Ledger article on the story. The next step for Reeves is a full Senate vote.

Logic suggests that the Senate vote should take place in the next few weeks. But we're talking Washington politics, so throw logic out the window. Educated estimates are that Reeves' Senate vote will likely be in October or November. But once the Senate approves the nomination—which is very likely—Reeves should be sworn in as a judge in a matter of a few days. Just in time for the new federal courthouse in Jackson, which is scheduled to open later this year.

Word on the street about the nomination of Mississippi Supreme Court Justice James Graves is that his nomination to the 5th Circuit Court of Appeals will drag along, possibly into next year. Estimates are that Justice Graves will not get his Senate Judiciary hearing until sometime in the Fall, possibly after the November elections. That would likely mean a Senate vote in early 2011. Thank Republicans for the delay, but blame the Obama administration for waiting so long to appoint Graves.

There is also a possible doomsday scenario for Graves' nomination. If the Republicans regain control of the Senate in the November elections, they could halt a vote on all Obama appointees until after the 2012 presidential election. That could doom Graves' appointment, despite public support from Mississippi Republicans. While this scenario is unlikely, I am hearing that it is possible.   

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Facts

In July 2007 8 and 9 year old children were left in a room at the La Quinta Inn on Briarwood Drive in North Jackson while their father took their mother to work. It was approximately 7:00 a.m. The parents threatened the children to not go near the pool.

The girl fell into the pool and pulled the boy in while he was trying to pull her out. I am assuming that they could not swim, but don't know. The kids screamed and guests called the front desk. Hotel employees pulled the children from the pool and revived them.

The hotel had another near drowning incident in 2005 when the gate was not locked during non-use hours. The gate to the pool was supposed to be locked from 10:00 p.m. to 9:00 a.m. The gate was left open and not locked on a regular basis.

The girl was in ICU at UMC for a month. The boy was in ICU for 8 days. The children had approx. $130,000 in medical bills. 

The Trial

The case was styled Baby Jane Doe, et al v. La Quinta Franchising, LLC, et al; In the Circuit Court of the First Judicial District of Hinds County, Mississippi; Cause No. 08-495-CIV. The case was tried before Judge Winston Kidd and lasted eight days.

Ashley Ogden was plaintiffs' counsel.

Defense counsel were Ray McNamara and Monte Barton with Copeland Cook in Ridgeland and Charlene Priester of Jackson. Copeland Cook likely associated Priester on the case because she is African-American. McNamara took most of the witnesses for the defense and Priester closed for the defense. I understand that she did a really good job in her closing.  

At trial former and current hotel employees testified that the hotel policy to close and lock the pool gate was frequently violated because the front desk clerks would lock themselves in the office at night due to crime on the property and their fear for their own safety. Former employees testified that the gate did not self-close as it was supposed to, and that during the summer neighborhood kids were constantly coming onto the property to swim in the pool.  Employees testified management instructed the employees to watch out for children and keep the pool gate closed and locked from 10 pm to 9 am to prevent any children from getting in the pool. The assistant manager testified there was a camera on the pool gate and there was a video of the incident. The video was lost or destroyed by the manager. The manager and a former employee testified they were falsifying safety documents and not complying with the hotel rules regarding the pool gate being locked and closed. The manager admitted he did not comply with the hotel policy to be CPR certified.

The father testified that he was primarily at fault, but that he expected the hotel to keep the pool gate closed and locked at that time of day.

Plaintiffs' experts testified that the children had some mild cognitive issues caused by the drowning. Plaintiff introduced a $13 million life care plan for each child and asked for over $26 million in damages.

Some doctors opined that the children suffered no permanent damage. Doctors at UMC performed and IME and testified that the children had the same issues before the incident as after. The kids are both in school seem ok.

The Verdict

At trial, the jury returned a verdict in favor of the Plaintiffs and found the Defendants to be 85% liable and the Plaintiffs’ parents 15% liable.  The jury awarded the girl $3,868,525.46 in total damages, the boy $1,645,852.67 in damages, and the father $100,000.00 in damages, for a total of $5,614,378.13.

Here is the breakdown of the verdict:

a.      Plaintiff Baby Jane Doe

1)     $93,525.46  for past medical expenses

2)     $3,500,000.00 for future medical expenses

3)     $75,000.00  for pain and suffering

4)     $200,000.00 for lost wages

TOTAL:          $3,868,525.46

b.     Plaintiff Baby John Doe

1)     $45,852.67  for past medical expenses

2)     $1,500,000.00 for future medical expenses

3)     $25,000.00 for pain and suffering

4)     $75,000.00 for future lost wages

TOTAL:          $1,645,852.67

 The verdict will be reduced by 15% to factor in  the father's apportioned fault. That will reduce the verdict to $4,772,221.41. 

My Take

It was a dangerous case and the defendant probably offered a significant sum to settle before the trial. Ogden is rumored to be rejecting significant settlement offers in the cases that he is taking to trial.

It was a large verdict, but not unreasonable if the jury accepted plaintiff's expert testimony on damages. A lot of people will criticize the father only being apportioned 15% of the fault. Although I understand that criticism, apportionment of fault is a classic jury question.

The vast majority of the verdict was for economic damages and the verdict is not subject to the tort reform caps on non-economic damages.

The Supreme Court will obviously take a hard look at this case on appeal. I do not know anything about evidentiary or jury instruction issues that often lead to a verdict being reversed and remanded for a new trial. Ogden has a lot of verdicts going up on appeal and it will be interesting to see what the Court does with them.

The sources of the information in this post were Ashley Ogden and courtroom observers. As always, I welcome input from others and will post any additional information that I receive. 

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There was a $5.6 million verdict today in Hinds County Circuit Court in a case tried for the last week and a half before Judge Winston Kidd. The case involved the near-drowning and resuscitation of two children at the La Quinta Inn in Jackson. 

Ashley Ogden represented the plaintiffs. Ray McNamara and Charlene Priester represented the defendants.

I will post more on this verdict on Thursday.

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Tupelo lawyer Kelly Mims is challenging Judge Donna Barnes for her Mississippi Court of Appeals post for the Northern District. Judge Barnes has held the position since 2004.

Here is Mims' campaign website.

Mims is a 2000 graduate of the University of Mississippi School of Law. He has worked as a Lee County Public Defender and appears to have primarily practiced criminal defense in private practice.  Ya'll Politics ran Mims' press release announcing his candidacy today.

 Here is Judge Barnes' campaign website.

Although Mims does not have a track record as a judge, I suspect that he would be a moderate to conservative jurist. He appears to have a conservative background and served in the U.S. Army. His stint as a Public Defender is probably more of a reflection of wanting to get good experience as opposed to a statement of judicial or political values. His private practice has been in a small firm, which almost always results in representing more individuals than insurance companies and corporations.  

Judge Barnes was originally appointed to the court and did not have an opponent in her only election. It remains to be seen how either Judge Barnes or Mims perform on the campaign trail. Contested judicial elections in Mississippi often come down to who campaigns the hardest. And by this I mean actually getting out and meeting voters. That could be the case with this one.

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On Thursday a unanimous Mississippi Supreme Court reversed a $148,000 bench trial verdict against the City Jackson in a Tort Claims Act case stemming from  traffic accident caused by a police officer responding to a report of a man lying injured on a street. Here is the Court's opinion, which Justice Dickinson authored.

The accident occurred at the five points intersection on Woodrow Wilson Drive in Jackson. The officer entered the intersection with lights, siren and buzzer all on. The officer clipped a vehicle driven by the plaintiff, causing plaintiff's vehicle to roll-over. The plaintiff had the right away and did not see or hear the police car due to an obstructed view and the fact that her radio was turned up.

Hinds County Circuit Court Judge Swan Yerger ruled that the police officer's conduct exhibited reckless disregard for the safety of others and awarded the plaintiff over $148,000 in damages. The Mississippi Court of Appeals affirmed the trial court.

The Supreme Court granted cert. and reversed the Court of Appeals and trial court. The Court noted that the reckless disregard for the safety and well-being of others standard sets an “extremely high bar for plaintiff seeking to recover against a city for a police officer's conduct while engaged in the performance of his or her duties. The City is immune from liability for acts of negligence, and even gross negligence is not enough.”

The Court found that there was no evidence that the officer acted in reckless disregard for the safety of others. As a result, the Court reversed and rendered judgment in favor of the City.

This was a huge win for the City of Jackson and its legal department, headed by City Attorney Pieter Teeuwissen. There have been several verdicts against the City in police pursuit cases in the last few years and the City is appealing all of them. I discussed earlier verdicts here and here.

The other verdicts involved wrecks caused by suspects running from the police in high speed chases. If this case where the officer actually caused the wreck did not meet the reckless disregard standard, it is hard to imagine how the standard is met in cases where the wrecks were caused by criminal suspects running from the police. The City has to feel good about its prospects in the appeals of the other cases.