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

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I am pleased to report that Mississippi is getting its own jury verdict reporter with the debut of the Mississippi Jury Verdict Reporter. Here is the website for the reporter and here is a preview of the debut issue. The publisher is Jury Verdicts Publications from Louisville, KY.

I believe that MJVR will be an excellent source of jury verdict information in Mississippi. I have talked with the publisher and they intend to report on all major state and federal court verdicts in Mississippi. Unlike my blog, they will not rely on word of mouth and will check with court clerks across the state for verdict information.

Verdicts in Mississippi are under reported. This is particularly true for defense verdicts. I report what I hear about, but that leaves a lot of unreported verdicts. MJVR has the potential to fill a big information gap.

The price for a yearly subscription is $219.00, but there is an introductory offer of $199.00.

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Last week I posted about the Miss. S. Court's reversal of two jury verdicts in premises liability cases. Here are my thoughts on the decisions.

Lymas v. Double Quick

This case was famous not for the underlying verdict, but because the plaintiff challenged the constitutionality of the damages caps on non-economic damages. The Court reversed and rendered on liability, however, and did not mention the caps in the opinion. Justice Kitchens wrote the opinion for the unanimous majority.

Double Quick hinged on a Daubert analysis of two expert witnesses. The plaintiff had two expert witnesses on security issues, but neither opined on proximate cause other than conclusory statements in response to leading questions. Neither expert explained how the alleged failure to take steps to protect the decedent proximately caused the shooting. As a result, the Court found the testimony to be not based on sufficient facts or data and improperly speculative.

There is something to like in the decision for both plaintiffs and defendants. The Court did not change the underlying law or uphold the damages caps, which plaintiffs and their lawyers like. On the other hand, the Court did not strike the caps and gave defendants and their lawyers a lot to argue on causation issues in premises liability cases involving criminal acts by third parties.  

Rebelwood Apartments

This decision was in the news over the weekend because of the expert testimony of Jackson Deputy Police Chief Tyrone Lewis. The Clarion-Ledger reported:

JPD Deputy Police Chief Tyrone Lewis, testifying for English, said, "There is no documentation, no written statements or anybody to come forward to say that it did not happen at Rebelwood."

Cleveland Ellis III told police he accidentally killed Coleman, his friend, when his gun went off at Woodbine Terrace apartments, where he lived. He said he drove her body to Rebelwood and left her there.

That evidence was not allowed at trial, a decision by Circuit Judge Winston Kidd that the Supreme Court found erroneous.

The disputed evidence consisted of statements contained in police reports. Justice Randolph's majority opinion concluded that the trial court judge (Judge Winston Kidd) should have found the police reports to be sufficiently reliable and admitted the reports (including the statements) into evidence. In my opinion, the Court made the right ruling, but for the wrong reason.

I agree with Justice Chandler's concurrence. Judge Chandler opined that the statements in the police reports were hearsay within hearsay and therefore, should have been excluded. But he agreed that the defendant should have been able to impeach Chief Lewis with the statements in the reports. Chief Lewis' testimony on direct opened the door to him being impeached with the reports.

I am afraid that the majority's opinion will make a mess of the law regarding the admissibility of statements within police reports. 

The majority also concluded that the trial judge should not have allowed plaintiff's economist expert (Dr. Glenda Glover) to base her loss of future earnings analysis on national averages because there was evidence that the decedent earned less than the national average. All justices concurred except for Justice Kitchens.

I thought that the majority got it right on this issue. Sometimes proving lost earnings might require the use of a national average because there is no other evidence to base an opinion on in a particular case. But the national average should not be used as a damages floor when there is evidence that the decedent earned less than the national average. Just as someone who earned more than the national average should be allowed to recover more for loss of future earnings, someone who earned less should recover less.

Finally, the majority found that race was improperly interjected into the economist's testimony by referring to the “Mississippi Black Effect.” I agree with the majority that this was improper. Even if this was not intentional, this sounds like the playing of a race card during trial, which is a big no-no.  

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Blogs were burning up on Friday over this blog post by a California law professor (Eugene Volokh) that suggested that 5^th Circuit nominee and current Miss. S. Ct. Justice James Graves (who is African-American) is racist. Volokh's blog has a national following.

In support of the theory, Volokh contrasted Graves' voting record on several appeals In which Graves did not explain the reason for his votes. Volokh states:

Unfortunately, Justice Graves did not offer any explanation for his different conclusions about the hostile-to-gays speech and the hostile-to-whites speech. Nor did her offer any explanation for the different approaches that the opinions he joined used in those cases.

Will Bardwell believes that the attack is part of a Republican attack on Graves, whose Senate confirmation hearing is on Wednesday.

Bardwell may be right, but it's an odd attack. Following Graves' nomination to the 5^th  Circuit, Gov. Haley Barbour, and Senators Thad Cochran and Roger Wicker all endorsed Graves' nomination. All three are Republicans who have little or nothing to gain from supporting Graves.

I do not believe that Graves is racist

Graves is a black judge who was elected to the Miss. S. Ct. in a majority white district in a race against a white candidate who many people thought played the race card. He did it by convincing many white Republicans to vote for him. That's already impressive. It would be amazing if Graves pulled that off while secretly hating white people.

I can't recall hearing any lawyer who appeared in front of Graves theorize that he is a racist. I can't say that about every African-American judge in Mississippi. When Graves was a Circuit Court judge, the lawyers who had to fear him were those making bad arguments.  

Volokh's article quotes no one from Mississippi and there is nothing in the article to suggest that someone from Mississippi told him that Graves may be racist. Of course, someone fed the story to Volokh.

Appellate Judges Should Explain their Votes

While I have not heard Justice Graves criticized as a racist, I have heard criticism about his frequent dissents without written opinions. I've also heard that it could become an issue in his confirmation process. It appears that it has, though not in a way that anyone I know foresaw.   

The “I told you so” award goes to Tom Freeland, who has long complained about unexplained dissents. Here is Freeland's reaction the Volokh's article, which concludes:

There is a direct virtue to a judge’s explaining their vote beyond telling the public and the parties:  Expressing aloud what one thinks is a great way of testing whether one is right.  I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.

And if judges fail to explain the reason for their vote, it leaves an opening for someone to explain it for them. While I believe that Volokh is wrong, Graves opened himself up to the criticism by not explaining his votes.

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Saturday Update:  The title is a poor choice of words. People are interpreting it as meaning that the decisions were bad for plaintiffs in other cases. That is not what I meant.

I meant that the decisions were bad for the plaintiffs in these cases. I did not mean that the decisions were anti-plaintiff or made changes in the law that are bad for plaintiffs in other cases.

Plaintiff's lost two substantial verdicts today at the Miss. S. Ct.

The much anticipated Lymas v. Double Quick case involving a challenge to Mississippi's damages caps was reversed and rendered on liability. Here is the opinion. Here is the early report by Scoop Bardwell.

Meanwhile, Jackson attorney Ashley Ogden had a $3 million Hinds County premises liability verdict reversed and remanded. Here is the opinion.

I will have commentary on these major decisions in a later post.

Update: I've now read the opinions and judge them [pardon the pun] to be well written and very interesting. Neither case makes substantive changes to premises liability law. 

Tom Freeland (NMC) invented the wheel on the analysis of the Double Quick case. Here is his post about the decision, which links his prior posts that correctly predicted that the plaintiff would lose on liability and that the Court would not reach the caps issue. 

Here is my report on the oral argument in Double Quick, where I noted that the Justices focused on liability issues. Freeland predicted that the case would fall on liability well before the oral argument.

The Ogden case (Rebelwood Apartments) wasn't even decided on premises liability concepts. It went down based on evidentiary and Daubert issues.

I hope to discuss each case individually next week.

Finally, an honest to goodness jury verdict report is coming to Mississippi. I have seen the first issue and will link it next week. It should be a great resource for Mississippi lawyers and will give us much more systematic reporting on verdicts than the current haphazard reporting in newspapers, blogs and courthouse rumor mills.

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In the last two days both the WSJ blog and the Above the Law Blog weighed in on the Mississippi Supreme Court's proposed rule to require Mississippi lawyers to perform 20 hours of pro bono work per year.

Above the Law equates the proposal to slavery, which is a bit over the top. Will Bardwell to ATL to task here.

The WSJ blog quoted a Virginia law professor as being all for the proposal:

George Cohen, a legal ethics expert at Virginia Law School, applauds the proposed Mississippi rule. “trying to get people to be more cognizant of the needs of poor people for legal services is important,” he said. “Making lawyers more aware of their social responsibilities as a quid pro quo for the benefits of practicing law is also a good thing.”

Great. Someone who is not subject to the rule preaching about its virtues. That's something about the rule that irks me: it is coming from Supreme Court Justices who are not subject to its requirements.

I would rather hear from supporters like Bardwell, who at least would be subject to the rule.

Meanwhile, I have decided that I am all for any proposals to require all Virginia Law School professors to spend their summers in Mississippi providing pro bono representation for Mississippi's poor.

Here are prior posts on the proposal.

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On Thursday the Mississippi Supreme Court issued an interesting 7–2 opinion in Burnwatt v. Ear, Nose and Throat Consultants of North Mississippi. Here is the Court's opinion, which Justice Chandler wrote. Justice Kitchens wrote a dissent that Justice Graves joined.

Facts:

The facts of the case were tragic. Alex Burnwatt, aged 9, had a tonsillectomy in 2001 performed by Dr. John Laurenzo. In the days following the surgery, he complained of pain and could not eat or drink without throwing up. After a few days, his parents took him to Baptist Memorial Hospital–North Mississippi (“BMH-NM”). At BMH-NM he vomited blood and collapsed on a bed. A nurse called a code, but resuscitation efforts failed and he died.

Lawsuit:

Alex's parents sued Dr. Laurenzo, his practice group and the BMH-NM. BMH-NM moved for summary judgment and plaintiffs confessed the motion because neither plaintiff, nor Dr. Laurenzo, designated expert opinions that were critical of BMH-NM.

After the dismissal, Dr. Laurenzo designated an expert who opined that he did not breach the standard of care and that Alex's death was caused by resuscitation efforts. Plaintiffs moved to exclude the testimony as an improper attempt to blame BMH-NM.

The trial court allowed the expert to  testify at trial and there was a hung jury. The Supreme Court granted an interlocutory appeal. 

Cynthia Mitchell, John Cocke and Charles Merkel, III with Merkel & Cocke represented the plaintiffs. Shelby Milam, Duke Goza and Dion Shanley represented the defendants.

Majority Opinion:

The Court ruled that the defense expert should be allowed to testify to explain the defendants' theory of the case: “Alex died as a result of pneumothorax (air around the lung that causes the lungs to collapse) during resuscitation efforts.”  In contrast, plaintiffs' theory “was that Alex died as a result of Dr. Laurenzo's negligence in cutting too deeply into the tonsillar bed, resulting in Alex's exsanguination (blood loss) at the hospital.”

Dissenting Opinion:

Justice Kitchens argued that judicial estoppel applied and precluded the defendants from offering the expert opinion that Alex died from the resuscitation attempt. The dissent was critical of a jury instruction that the defense contended that Alex's death occurred during resuscitation attempts.

The dissent reasoned that the expert's testimony and the court's instruction had the effect of laying the responsibility for the death on BMH-NM. The dissent argued that defendants should not be allowed to do this because they limited their theory of the case when the agreed to not blame the hospital.

My Take:

I have changed my mind on this opinion several times in the last day. I am not sure if this was a proper theory of the case defense or improper “sneaky” finger-pointing. Here is what I mean. When a party in a lawsuit is blaming someone else, they should have to point the finger like this:

But defendants—particularly defendants in medical-malpractice--cases often point the finger discreetly, like this:

I call this sneaky finger-pointing. "I'm not blaming anyone....except for that dude over there."

It most commonly arises when a defendant in a medical-malpractice case blames another doctor or nurse (who wasn't sued or has been dismissed), but does not have supporting expert testimony against the non-party.

Plaintiffs can't get away with this because of the clear law that a plaintiff has to have supporting expert testimony to get to the jury. But defendants can get away with this if the trial court lets them because the defense does not have the burden of proof and the law is not developed on this issue.  

I believe that it is improper for a trial court to allow a defendant in a case that requires expert testimony to blame someone else without supporting expert testimony. But I have seen it happen.

I suspect that the plaintiffs' lawyers in Burnwatt have seen it happen too. But what happened in Burnwatt may have been a little different. Or it may have been a little sneakier. I can't tell.

 As I write this, my opinion is that the defense expert should have been limited to testifying that the defendants complied with the standard of care. I reach this conclusion because if—as defense expert says—sometimes resuscitation efforts fail, then that was foreseeable and the fact that Alex died during resuscitation is either not relevant or more prejudicial than probative. The sole issue is whether there was a breach that proximately caused the death.

"Theory of the case" does not trump the rules of evidence. If it did, you would often see a party's theory of the case that the opposing party is a scum-bag who deserves to lose. Alas, the rules of evidence prohibit this type of defense because it is premised on character evidence.   

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Over the weekend the Clarion-Ledger reported on the proposed rule to require Mississippi attorneys to perform 20 hours of pro bono service per year. Here is the article.

The article notes that most of the 64 letters received by the Supreme Court oppose the rule:

Dupont's and Lacy's letters are two of the roughly 64 letters the Supreme Court has received. The vast majority of the letters oppose the mandatory provision.

But the rule has its supporters, including Jackson attorney and blogger Will Bardwell:

There are supporters, however, and Will Bardwell, a Jackson lawyer in private practice for a little more than a year, is among them.

"I understand the argument, doubtlessly voiced by many of my colleagues, that no one should be required to provide what is, in essence, community service," Bardwell said. "Fundamentally, I agree. But the fact is that attorneys are different. That distinction exists as both an honor, and sometimes, a burden.

"But under either instance, it is a badge that each member of the Bar should wear proudly."

Chief Justice Waller sounded non-committal on the rule:

Chief Justice Bill Waller Jr. said the proposals are only a starting point for discussion.

No decision has been made with regard to the amount or the issue of mandatory versus voluntary participation," Waller said.

Most Mississippi lawyers may be apathetic on the issue, given the fact that the Supreme Court has received only 64 letters from the thousands of lawyers in the State.

I am against the proposal for reasons explained in this post.

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The Clarion-Ledger reports on the court proceeding in Hattiesburg on Thursday where two men who were in prison for thirty years were released after DNA tests proved that another man committed the rape and murder that the men “confessed” to. Phillip Bivens and Bobby Ray Dixon were released. A third man, Larry Ruffin, died in prison in 2002. Rob McDuff of Jackson represented the trio.

Jimmy Carter was the President when these men were put in prison. The Iranian Hostage Crisis (remember that?) had not begun. Hall of Fame quarterback Dan Marino had yet to play a down of college football. Brett Favre was 9 years old.

I was 12 years old and finishing up the sixth grade.

These men were in prison for a long time.

  It sounds like there was always evidence that these men were innocent:

In addition, the eyewitness in the case, Patterson's 4-year-old son, Luke, told authorities there was one assailant, not three.

The three men didn't even know each other and confessed under apparent heavy police coercion to avoid the gas chamber:

Bivens, a native of California who had briefly visited his brother in Mississippi, said he never knew Dixon until somebody pointed him out in a jail cell.

He said he decided to plead guilty to a crime he didn't commit because he didn't want to go to the gas chamber.

Incidentally, Dixon has lung cancer and a brain tumor.

The D.A. in 1979 disputed that the men were beaten:

The district attorney, who was in office in 1979, disputed statements that Dixon and Ruffin were beaten, saying he knows the authorities involved in the case.

Well, at least he can finger them—since he “knows” them. Those men deserve to be the subject of police interrogation—and possibly prison—themselves.

Mississippi law allows those who were wrongfully imprisoned to recover $50,000 per year up to a $500,000 maximum. The State should immediately pay $500,000 to Bivens, Dixon and Ruffin's estate. The men should not even have to hire lawyers. The state should pay the money and apologize.

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On Monday Gov. Barbour's office announced the appointment of District Attorney Eddie Bowen to replace the late Judge Robert Evans as circuit judge in the 13th District (Covington, Jasper, Smith and Simpson counties).

Bowen had been the D.A. for the district since 1999. Perhaps most importantly, Bowen's D.A. experience gives him name recognition in the district. That will presumably give him an advantage in the write-in election that will take place in November. I discussed that election in this post.  

It will be interesting to see what will happen if Bowen loses the election. For instance, what if Gene Tullos or David Garner wins? Could the winner refuse the post, thus allowing Gov. Barbour to appoint Bowen again?

The situation looks less chaotic than before Bowen's appointment. But it is still interesting.

This district is a focus for civil litigators because Smith County and the Paulding District of Jasper County have reputations as being dangerous venues for defendants. The recent $131 million verdict against Ford Motor Co. in the Brian Cole lawsuit was tried to a Paulding jury.

I once was co-counsel defending a case in Paulding and there was a plaintiff verdict of $2 million. We felt pretty good about keeping the number that low. It didn't even feel like a loss. [Judge Evans later granted defendants' post-trial motions.]

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A Monday article in the Wall Street Journal takes a look at the MDL process. The article noted that in MDL actions, plaintiff lawyers have to compete for the work:

For plaintiffs' attorneys the streamlining can be brutal.

While hundreds of attorneys may be representing clients in the cases, judges typically pick only a handful to handle the day-to-day workload. The sidelined attorneys must pay the lead lawyers a fee and often say they feel shut out from key decisions.

"Lawyers fight, hog work, are overloaded and squeeze out others," said Joseph F. Rice, a South Carolina plaintiffs' attorney who has been involved in cases filed by asbestos victims and families of victims of the terrorist attacks of Sept. 11, 2001.

Lawyers hogging work and squeezing out other lawyers is usually found on the defense side where lawyers are getting paid by the hour. Lawyers want to do some of the work, but other lawyers will not share. National counsel hogs work and squeezes out local counsel. The problem also happens within a firm if there is not enough work to go around. It was going on in Mississippi firms before the litigation boom in the late 90's and has probably resumed in some firms.

In contrast, on the plaintiff side it is sometimes hard to get co-counsel to do any work. Some plaintiff lawyers will sit back and wait for co-counsel to do the work. If two lawyers with that work ethic are co-counsel, the case can grind to a complete halt.

There are some defense lawyers who have the reputation that they will work up a case, but will not try it unless they believe that it is a slam-dunk.

There are some plaintiff lawyers who have the reputation that they will not work up a case. If the case ever gets to trial, they will usually lose due to the lack of preparation.

The best lawyers on both sides work very hard to prepare their cases and are not afraid to lose at trial. 

 But the MDL appears to turn the plaintiff lawyers into defense lawyers, where they have to compete for work. Pretty funny if you ask me.  

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The Clarion-Ledger reports on a $64,000 verdict rendered on Friday in the U.S. District Court for the Southern District of Mississippi, Jackson Division. The trial lasted four days.

The verdict was against three former detention officers who did not intervene when a fourth officer allegedly beat the plaintiff. The attack occurred in 2005.

The officer who beat the plaintiff was not in the lawsuit because he could not be located for service of process. I have no idea why he was not served through publication, which is a valid method of service used when a defendant cannot be located.

 Plaintiff asked for $514,000 in closing arguments. It's my understanding that the plaintiff had less than $15,000 in medicals related to the attack.

Judge Henry Wingate presided over the trial. Jeanine Carafello of Jackson represented the plaintiff. Jackson City Attorney Pieter Teeuwissen and Anthony Simon of Jackson represented the defendants.

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A reader posted a comment today saying to look at the A&O bankruptcy trustee's website. Under recent developments the cite reports that the government has seized personal assets belonging to Abdulwahab, Oncale, White and other defendants:

The Bankruptcy Trustee further understands that (1) defendants Allmendinger, Abdulwahab and White were initially taken into custody, although one or more of the foregoing may have been released pending arraignment and (2) the United States Attorney has seized personal property of multiple of the defendants to secure monetary damages that may be awarded in the future and is seeking to hold such property pending resolution of the criminal counts.

More significant are links to guilty pleas by Russell Mackert and Tomme Bromseth. Mackert pleaded guilty to conspiracy to commit mail fraud and cash smuggling. Bromseth pleaded guilty to mail fraud. They could get up to 20 years in prison, but the government is asking for a downward departure because they are cooperating with the government.

As part of their plea deals Mackert and Bromseth agreed to fully cooperate with the government. The short answer for what that means is that it means that Wahab and the rest are going down. Mackert knows where the proverbial bodies are buried and those guys don't have a prayer of gaining acquittals with Mackert cooperating.

It also means that Mackert committed perjury in this affidavit that he filed in federal court in Mississippi when he was chasing A&O money in the Colson litigation. I raised this issue in January in this post. RJ Stephens did indeed turn out to be just as fictitious as Keyser Soze in the Usual Suspects.  

Without question, Mackert could still be prosecuted for perjury in Mississippi. But I doubt he will be. 

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The Clarion-Ledger reports that Judge Robert Evans' successor will be chosen by a write-in vote. Judge Evans was the only candidate who qualified to run. He died of cancer after the sign-up deadline passed. The district covers Jasper, Smith, Simpson and Covington counties.

Circuit clerks in the district are not enthused about the upcoming election:

"I see no good coming out of it," Smith County Circuit Clerk Anthony Grayson said. "I'm not looking forward to it. With just 60 days to go, we have to try to educate the voters about it."

Grayson said he wasn't consulted about the process prior to the announcement.

"I'm really disappointed (in the process selected)," Grayson said. "The people of the district deserve better. ... I sort of thought someone would be appointed."

In addition to expecting turmoil, Grayson said he wonders about names of individuals being written on ballots who are not qualified to serve as circuit judge. Also, he worries about names possibly being misspelled.

Not to mention all the votes people with names like Harry Crotch will get.

A circuit court judge is a vitally important position in Mississippi's legal system. Circuit court judges can preside over a capital murder trial one week and a multi-million dollar civil case the next week.

My personal preference is for all circuit court judges to be appointed. I believe that the overall quality of the judiciary would be better with appointed judges. I also believe that politics would play less of a part in the decision making. 

But even if you prefer an elected judiciary, a write-in election is a bad idea. Write-in elections are for positions like class favorite in junior high schools. A write-in election for judge in a four county district will likely lead to many lawyers splitting the votes. If that's the case, there will probably be a run-off between two lawyers who collectively did not accumulate 50% of the vote. Even worse, neither may want the position. 

Also, will lawyers raise money and campaign when the election will be decided by such a crap-shoot mechanism? And that's assuming that they can raise money when they did not qualify to run. 

Hopefully, someone who will be a good judge will win. But right now that would seem to require luck more than anything else.    

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Here it is: the Wahab etc. A&O indictment. Enjoy.

I'm shocked to see that Blue Dymond and Physician's Trust were fake companies set up by Russell Mackert to try to fool regulators. There was no RJ Stephenson. It was really Wahab—and Mackert knew it.

Way back in May 2009 I wrote this:

In this memorable quote from the movie Wall Street the character played by Michael Douglas tells Bud to call a number and tell the man that Blue Horseshoe Loves Anacott Steel. A&O Life's filing in federal court listing its member partners reminded me of this quote. The only new name identified in the affidavit was Blue Dymond Capital Group, LLC, a citizen of the West Indies. The person signing the affidavit was A&O front man Russell Mackert.

Mr. Mackert claims to have personal knowledge of the facts in the affidavit, but does not explain who he is, how he obtained that knowledge or his relationship with A&O. The affidavit does not mention Adley Wahab, who is presumably the man behind the curtain. Mackert and A&O seem shady--real shady.

Shady. And now indicted.

Here is a link to the Justice Department's press release on the indictment. The defendants include an A&O sales agent and a wholesaler.

The indictment seeks $103 million from the defendants. I believe that money recovered by the government in the case may be used to compensate victims. The victims should discuss this issue with their attorney.

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As reported in the comments section of this blog, Adley Wahab and other A&O cohorts were arrested this morning:

Adley was arrested this morning in connection with A&O Lifefunds. US Marshall's and the FBI raided his home in Spring, Texas at approximately 6:15 CST. He was to go before a judge this afternoon although it has been rescheduled for Friday morning. It was delayed due to Mr. Wahab not having a criminal attorney.

Reports are that those arrested include Wahab, Almendinger, Oncale, White, Kurz and Mackert. I will be searching for an indictment and hope to have a full report tomorrow.

Wahab's history includes falsely claiming that he attended LSU. If you're going to lie, why not claim Harvard or another Ivy League school? Probably because those schools never play for a BCS title.

For new readers of this blog who aren't familiar with A&O and its principals, you can read the entire history here.

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Book it. He's running.

Ya'll Politics reports on the latest announcement that Governor Barbour hasn't decided whether to run for president in 2012. Let me translate the political-speak.

What he said:

I'm not giving serious thought to running for president until after the November election,” Barbour said at a breakfast sponsored by The Christian Science Monitor.

What he meant:

Of course I'm running. Why do you have to ask? Are you stupid? What do you think I'm doing up this early speaking at this breakfast? I've been running for a good year. By "serious thought" I mean leaking it to the press and making a formal announcement. That will come after the November elections when the Democrats get killed due to the economy.

Can Haley win:

Yes. No question. The 2012 presidential election will be decided based on what voters think of Obama and the economy. Whoever gets the Republican nomination can win, with the possible exception of Palin. But I don't think she will get the nomination.

Getting the nomination is a crap shoot. But Haley has a good a chance as anyone. I would not bet against him.

I also disagree that Haley is positioning himself for the vice-president slot. Since when does Haley want to play second fiddle? Vice-president would be a consolation prize.

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The Supreme Court's proposed rule for mandatory pro bono in Mississippi will be the subject of a September 23, 2010 Federalist Society luncheon in Jackson. The cost to attend is $20 per plate and the luncheon will be at the MS Museum of Art located in downtown Jackson.

The luncheon will feature a panel discussion moderated by Mississippi Court of Appeals Judge Virginia Carlton. The panel will feature Mark Garriga, Russ Latino, former Chief Justice Ed Pittman and former Bar President Rodger Wilder.

Here is the flyer for the luncheon.

Here is a previous post on the mandatory pro bono requirement.

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In May I posted here about U.S. District Judge Mills' Order in the Maggette v. BL wrongful death case. The case involved the crash of a charter bus on its way to a Harrah's property in Tunica. BL is owned by Harrah's Gaming. Harrah's owns numerous casino properties all over the world.

On Thursday Judge Mills issued an order sanctioning Harrah's by ruling that the bus company involved in the accident was Harrah's agent as a matter of law. Here are some of the hi-lites from Judge Mills order:

BL likely believed that this court would never be in a position to discover the true facts, such as the fact that backup copies of the data in question were routinely sent to secure databases, just as the Magistrate Judge had openly suspected in her November 2009 order. Now that its bluff has very unexpectedly been called and the absurdity of its protestations has been revealed, BL seeks for this court to decline to impose the sanction which it specifically warned it would. [p. 8–9].

This court is not naive. It is aware that litigants are frequently successful in concealing information from courts, largely because the power to conceal one’s own documents is far greater than a court’s power to uncover them. It seems very likely that, for every case in which conduct of this nature is uncovered, there are dozens in which the deception is successful. It is simply too expensive in judicial resources for courts with heavy dockets to uncover this sort of misconduct. [p. 29]. 

Willful ignorance of this court’s orders is clearly no defense, and the fact that BL sought to use it as a defense heightens the court’s suspicion that the actual misconduct of senior BL representatives may have been of a much more serious nature. [p. 15] 

If an IT expert as learned as the special master is unable to clarify the mystery of Harmon’s missing e-mails, then this court will certainly be unable to do so. It does not require an expert, however, to realize that there is a great deal of smoke in this case emanating from multiple offices in Harrah’s corporate legal department, and this court will be excused if it suspects the existence of a fire. To state the obvious, documents do not alter or delete themselves, and when the special master informs the court that documents in this case - and this case alone - were inexplicably accessed and altered or deleted, the court finds it impossible not to harbor great suspicions regarding what information those documents might have contained. [p. 19]

Testimony at the hearing revealed that the special master managed, at separate locations, to discover, in five and seven minutes respectively, information whose existence BL had denied for almost five years. [p.23]

You can download the full Order here.

 My Take:

BL/ Harrah's got off easy. They cheated and the result is that they are deemed to be the principal of the bus company in this case. They can still win on liability by defending the conduct of the bus driver.

If BL/ Harrah's believes that it would have lost on the agency issue if the hidden documents were voluntarily produced, then this ruling does not serve as any much punishment.

If Courts want to discourage these types of shenanigans, then they have to lower the boom when they catch violators. A ruling where the result may not be worse that if the shenanigans had not taken place is not much of a deterrent.  

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The Brian Cole verdict against Ford Motor Co. is on the front page of today's Clarion-Ledger. Here is the article. A Ford spokesperson is quoted in the article as saying that the trial was unfair.

Judge Billy Joe Landrum was the trial judge and he conducted the trial in Laurel with a Paulding jury. The article identifies Tab Turner from Arkansas as the lead plaintiff lawyer. Barry Ford and Bill Jones of Baker Donelson in Jackson defended the case with Ford's national roll-over counsel. I am not a fan of the national defense counsel model in Mississippi, but I'll save that discussion for another day.  

The verdict was $131 million for Cole (who died) and $1.5 for the passenger of the Ford Explorer (Cole's cousin who survived). The two were in a roll-over accident on I-10 in Florida. Yea, I know: what was the trial doing with a Paulding jury? There was a venue hook somehow.

Yesterday after the verdict came down I received  numerous reports on it that placed the verdict range from $130 million to $235 million. A Ridgeland attorney with absolutely no connection to the case or involved law firms was the only person to provide the exact correct breakdown of the verdict.

The case settled before entering the punitive damages phase. Ford is getting second guessed for settling the case, but I don't have a problem with it conceptually. Since I do not know the amount of the settlement, I can only comment in general terms.

First, a punitive verdict in the case could have easily been over $100 million in addition to the compensatory verdict.

Second, this was the third trial. Ford has probably already spent $30-$50 million in defense costs and expenses. The result of a winning appeal would likely be the chance to try the case again, presumably before the same judge and another Paulding jury. Ford's cost for the appeal and re-trying the case would likely be in the $5-$10 million range. 

So if the Plaintiffs discounted the verdict to settle the case,  Ford might have felt that settlement was the best business decision. 

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Ashley Odgen has done it again. On Thursday a Hinds County jury awarded $1.5 million to Ogden's client who injured his hip in a fall at Bailey Lumber & Supply in Jackson.

Michael Baxter and Mason Montgomery of Copeland Cook defended the case. The trial judge was Judge Malcolm Harrison.

For a complete description of the case as provided by plaintiff's counsel, click here.

For information on other recent verdicts obtained by Ogden, click here.

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A Jasper County jury returned a $135 million verdict [I reported earlier that it was $130 million, then $235 million] today in the case against Ford Motor Co. involving the death of New York Mets prospect Brian Cole. I am not sure whether there were punitive damages.

Update: I am confident now that the verdict was in the $130's. See the comment by the plaintiff lawyer.

Update: reports are now that the verdict was all compensatory and the case settled before the punitive phase.

Two earlier trials in the case resulted in mistrials. I am not positive, but I think that this case is so old that the tort caps do not apply. Update: the case was filed in 2001. The caps do not apply.

For prior posts on the case see here, here, and here.

Read the Plaintiff attorney's blog on the verdict here. 

I will have more on this verdict in a future post.

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I heard about Charles W. Eagles book The Price of Defiance–  James Meredith and the Integration of Ole Miss after it was the subject of a panel discussion at the 2010 Mississippi Bar Convention. I'm glad that I did.

Here is the description of the book from the inside flap of the cover:

When James Meredith enrolled as the first African American student at the University of Mississippi in 1962, the resulting riots produced more casualties than any other clash of the civil rights era. Eagles shows that the violence resulted from the university's and the state's long defiance of the civil rights movement and federal law. Ultimately, the price of such behavior--the price of defiance--was not only the murderous riot that rocked the nation and almost closed the university but also the nation's enduring scorn for Ole Miss and Mississippi. Eagles paints a remarkable portrait of Meredith himself by describing his unusual family background, his personal values, and his service in the U.S. Air Force, all of which prepared him for his experience at Ole Miss.

Attempts to keep James Meredith out of Ole Miss were at the epicenter of white Mississippi's effort to maintain segregation and, more importantly, white supremacy. The opponent to Meredith's attempt to enroll at Ole Miss was the State of Mississippi itself, led by Governor Ross Barnett. 

In the early 1960's it was a crime in Mississippi to attempt to overthrow segregation. Judges, politicians, TV stations and most newspapers vehemently opposed both racial equality and desegregation. Segregationists used terms such as “mongrelization” of the races and whatever other scare cards they could dream up to frighten white people.

But by 1960 white supremacy was probably more about power and money than racist ideals. Thinking whites had to know that once African-Americans could vote and had equal access to education that whites would lose their monopoly on political offices and patronage. Putting it bluntly, a bunch of dumb rednecks were going to be out of a job. Plus, the "help" might balk at continuing to work for slave wages.  

African-Americans who opposed the “Southern way of life” risked death. Whites who opposed the system risked being ostracized by whites and getting run out of the state. A white student who ate in the Ole Miss cafeteria with Meredith had her whole family run out of the state. As a result, there was a silent tolerance of the brutal system much the same way that Germans allowed the Holocaust twenty years earlier. 

Ole Miss was caught in the middle of the controversy. Eagles explains how the chancellor and administration ceded control of racial matters to politicians and their appointed trustees. Although it's easy to criticize them now, the chancellor and administration would have been run out of town had they opposed the politicians who controlled the University.

Eagles persuasively argues that everything from Oxford being a back-water town until the boom in the 1990's to Ole Miss not winning an SEC Football title in over 40 years can be traced to the national scorn caused by the resistance to Meredith.

Reading this book evoked a lot of sadness for me. The “Southern way of life” was so unfair and oppressive for so many Mississippians. Over half the people in Mississippi were African-Americans until around 1930 and Mississippi has always had a huge black population. The system existed from until the end of slavery until people my parent's age were grown adults. Including the slavery years, there were 150 years of slavery and white supremacy. We are less than 50 years from the Civil Rights Movement. 

The names of many of the players in the dispute will be familiar to Mississippi lawyers. Retired 5^th Circuit Judge Charles Clark was one of the lawyers who represented the State in opposing Meredith's efforts, and Jackson lawyer Bill Goodman was one of the attorneys who advised Governor Barnett during the crisis. Again, it's easy now to criticize lawyers who represented the State, but that was a different time and people who did not live through it should not take a holier than thou view of something that they didn't live through.   

Former Mississippi Supreme Court Justice Jimmy Robertson makes an appearance as a writer and editor for the Daily Mississippian in the early 1960's who took the controversial position that—God forbid—Ole Miss schedule teams that included African American players. Pretty ironic that it was so controversial given the fact that now before taking the field, every Ole Miss coach and player touches the statue of former player Chucky Mullins (an African-American). Jackson resident the Reverend Duncan Gray Jr. was a rector in Oxford in the early 1960's and was a rare progressive voice among white Mississippians.  

Given how far Mississippi has advanced, it is easy to overlook the courage exhibited by individuals like Meredith, Robertson and Gray, who put themselves in harm's way by voicing opposition to white supremacy. But if we are being honest, few of us can say with certainty that we would have exhibited such moral courage during that era. Indeed, look at how many people who did not. 

There is still racism in Mississippi, as there is in most parts of the country. But the notion of white supremacy is dead except for with complete nuts. In my experience, even people who are racist because of their general views about African-Americans believe that everyone should have equal access to education, job opportunities and political office. Otherwise, you would not see African-Americans elected to political office in majority white districts. But it does occasionally happen.

In conclusion, The Price of Defiance is a fantastic book that makes you think about how far Mississippi has advanced, but also the depth of the hole that we are digging out of. The book should be required reading for all Mississippi lawyers and all students at Mississippi's colleges and law schools.