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

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On Saturday the Clarion-Ledger reported on a looming lawsuit against Ole Miss by the family of Bennie Abram, a football player who died following a workout in February 2010. Here is a CBS Sportsline article on the threatened lawsuit.

The notice letter regarding the lawsuit states that the family will also sue the NCAA, Baptist Hospital and Ole Miss team physician Jeffrey Dennis.

An autopsy determined that Abram died from complications of sickle cell trait. The lawsuit will apparently allege that Ole Miss violated guidelines that minimize the risks associated with the trait.

The Abram family's attorney is Eugene Egdorf with the Lanier Law Firm in Houston.  Egdorf also represented the family of a Rice football player who died due to sickle cell trait after a 2006 workout.

Ole Miss Athletic Director Pete Boone denies that the lawsuit has merit:

"We reviewed all the actions taken by our medical professionals, athletic trainers and coaches and found that medical protocol and emergency action plans complied with the Best Practices at that time for such cases," Boone was quoted as saying in a statement. "We are surprised by this letter from the attorneys and are confident that the facts confirm that we followed the proper procedures."

My Take:

This is case to watch. The lawyer bringing the case has experience with a similar case and works with a nationally respected plaintiff's firm.

That being said, the claim against Ole Miss appears to be subject to the Tort Claims Act. If so, then the claim is presumably subject to a $500,000 damages cap.

The claim against the hospital would be subject to a separate medical malpractice cap statute, which caps recovery for non-economic damages at $500,000. Unlike the Tort Claims cap, however, the medical malpractice cap does not cap economic damages such as future lost wages. 

In addition, the claim against Ole Miss would have to be decided in a bench trial in Lafayette County. That is some home field advantage for Ole Miss.   

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Patsy Brumfield of the Northeast Mississippi Daily Journal reports on the retirement of Northern District U.S. Magistrate Judge Jerry Davis. The very popular Judge Davis is retiring after 37 years in the federal judiciary.

I'm pretty bummed out about Judge Davis retiring. He is the only judge I've ever had who completely struck a defendant's boilerplate objections. The result was astonishing. Turned out that the defendant did have all those documents that they previously denied existed. And guess what? The documents were very helpful to my client's case and the defendant settled shortly after the production.

If more judges did that, we wouldn't be seeing parties object to 90% of written discovery requests. It's a shame that we don't have form interrogatories and requests for production that are per se valid and not subject to objection.   

Chief Judge Michael Mills appointed a nine person selection panel to screen replacements for Judge Davis' position: Supervisors Alfred Rankins and Paul Watson and attorneys Phillip Mansour, Jr., Mary Kathryn Roberts Clark, Richard G. Noble, John Keith Perry, Jr., Whitman Davis Mounger and Charles Swayze, Jr.

It's my understanding that when Magistrate Judge Sumner retired, there were in the neighborhood of a hundred applicants for the position. Keith Ball of Jackson ultimately got the appointment. I expect there to also be many applicants for Judge Davis' position.

Magistrate Judge David Sanders will transfer from Greenville to Aberdeen. Judge Davis' replacement will be based in Greenville.

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Hinds County Circuit Court Judge Jeff Weill has denied Eaton Corporation's Motion to Recuse Trial Judge that I previously discussed in this post. Here is Judge Weill's Order, which was filed on January 20, 2011.

The order states:

 there is no evidence, nor can there be, that the prior involvement of former Judge DeLaughter and other former Hinds County employees in proceedings regarding the above-referenced matter will have any effect, whatsoever, on this judge's ability to be fair and impartial. Further, there is no evidence that can produce a 'reasonable doubt' as to this judge's impartiality as required.

The denial of Eaton's motion is not surprising.

I don't know the genesis of Eaton's motion. But it's the kind of motion that often originates with micro-managing in-house counsel. Sometimes wing-nut these kinds of motions are filed even though the lawyers actually litigating the case know the motions are a bad idea.

In this case Eaton could very well end up liking Judge Weill better than whoever would have replaced him on the case. It's too early for reports to be in, but I suspect that Judge Weill is going to be the type of judge who both sides believe that they get a fair shot with.     

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On December 27, 2010 attorney Sherrie Moore sued the Allen, Cobb, Hood & Atkinson law firm of Gulfport in federal court for sexual discrimination and retaliation. The law firm has been around for many years under various names. Here is the Complaint.

Moore alleges that in 2003 she joined the firm as an equity partner. She alleges that the firm had an unwritten policy against hiring African-Americans. Moore further alleges that in April 2010, an associate with the firm brought two white secretaries at the firm into his office and warned them that people like them would likely be targeted for violence at the upcoming Black Spring Break event on the Coast.

Moore alleges that she then confronted the associate about the inappropriate behavior. She alleges that the associate complained to the other partners, who met and decided to fire Moore. She alleges that she was terminated despite earning the largest bonus in the firm in 2009.

Moore's attorneys are John Maxey and Heather Aby of the Maxey Wann firm in Jackson.

Here is Allen Cobb's Answer, in which the firm denies Moore's allegations. The firm's attorneys are Taylor Smith and Michael Hudson from the Kullman Firm in Tupelo.

My take:

Wow. The allegations sound like scenes from the movie Blazing Saddles.

Cases against lawyers and law firms are knife fights. Cases between lawyers are worse. Just ask the losers of Scruggs-gate.      

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Justice James Graves' Senate Judiciary Committee Re-vote will be Thursday January 27, 2011 at 10:00 a.m. That is 9:00 a.m. Jackson time. Here is the agenda. You can also link to a live webcast of the hearing at the same link. But I doubt that it will be very exciting.

The re-vote is necessary because judicial nominations expired with the end of the 2010 Congress. President Obama re-nominated Justice Graves to the 5th Circuit earlier this month. Graves is expected to pass through the committee and the full Senate with no problem.

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Last week the Costa Rican bond company Provident Capital Indemnity and its owners were indicted in federal court in Virginia for mail and wire fraud. Here is the indictment.

Provident Capital gained attention for defaulting on the bonds that were supposed to guarantee the A&O Life investments.

Here is a Bloomberg article on the indictment. Here is another article about the indictment. Here is a link to the DOJ's press release.

According to the DOJ's press release:

  An indictment unsealed today in U.S. District Court for the Eastern District of Virginia charges Costa Rica-based Provident Capital Indemnity Ltd. (PCI), Minor Vargas Calvo, 59, and Jorge Castillo, 55, each with one count of conspiracy to commit mail and wire fraud, three counts of mail fraud and three counts of wire fraud.  The indictment also seeks forfeiture of more than $40 million from all three defendants.  Vargas was arrested on Jan. 18, 2011, at the John F. Kennedy International Airport, and Castillo was arrested earlier today in New Jersey.

“PCI is accused of lying to investors across the globe to sell more than half a billion dollars worth of ‘guaranteed’ bonds which turned out to be worthless,” said U.S. Attorney MacBride. “This case is another example of how the members of the Virginia Financial and Securities Fraud Task Force are working to detect, deter and punish financial fraudsters who target investors throughout Virginia, the nation and the world.”

        “These defendants allegedly sold $670 million in bonds by making numerous false representations, which were disseminated to thousands of investors,” said Assistant Attorney General Breuer.  “They stand accused of defrauding victims at home and abroad.  As these charges show, the Justice Department is committed to rooting out investment fraud wherever we find it.”

The U.S. Attorney's office from the Eastern District of Virginia is responsible for both the Provident Capital and A&O Life criminal investigations. Hats off to the lawyers, investigators and other members of their team for bringing to justice the perpetrators of a massive financial fraud on good people who were duped by these companies.

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On Wednesday the 5^th  Circuit Court of Appeals affirmed a jury verdict of $2.8 million in Learmonth vs. Sears, Roebuck and Co. The Court also certified the issue of the constitutionality of Mississippi's caps on non-economic damages to the Mississippi Supreme Court.

Here is the Court's opinion.

The case was based on an auto accident between plaintiff's car and a Sears van. Plaintiff suffered a brain injury and numerous broken bones.

The case was tried in Jackson in November 2008. [Correction: it was an Eastern Division case and the trial was in Meridian]. The jury awarded the Plaintiff $4 million, of which $2.2 million was non-economic damages. The trial court reduced the non-economic award to $1 million due to the non-economic damages cap.

Plaintiff asked the Court to certify the cap issue to the Mississippi Supreme Court. Sears initially opposed the request due to the Lymas v. Doublequick case. But Sears withdrew its objection after the Court did not reach the cap issue in that case. The current version of the 5^th  Circuit opinion mistakenly says that Sears requested certification and the Plaintiff initially opposed it. The opposite is true.

Kevin Hamilton and the Hamilton Law Firm in Jackson represented the Plaintiff. Gray Laird of Page Kruger represented Sears at trial. Greenberg Traurig represented Sears on appeal.

Judge Tom Lee was the trial judge.

I will have commentary on this case later—probably early next week.

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Judge Landrum has denied Baker & McKenzie's post-trial motions in the Evans v. Baker & McKenzie case. Post-trial motion are usually not granted, so this is not a surprise.

Plaintiffs asked Judge Landrum to award attorney's fees in the case, since the plaintiffs recovered punitive damages. The Plaintiff seeks $31.1 million in fees. The cross-plaintiff seeks $8.99 million in fees.

It's my understanding that the attorney's fee request is for a fee of 40% of the judgment. In prior punitive cases, Judge Landrum is said to have awarded a fee of 25% of the verdict.

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Baker & McKenzie has filed standard post-trial motions setting up the appeal of the $103 million jury verdict against the firm in Jones County in October. Here is the Motion for JNOV. Here is the Motion for New Trial.

The appeal will be a high stakes battle. Based on the motion for JNOV, it's clear that Baker & McKenzie will argue that the Supreme Court should reverse and render in the case. That would send the plaintiffs home with a loss without there even being a second trial. I have no idea what the prospects are on the appeal.

It appears that David Clark, Wayne Drinkwater and Margaret Cupples of Bradley Arant in Jackson are the lead appellate lawyers in the case. They are really good appellate lawyers.

It's my understanding that the hearing on the motions was scheduled for this week. It's highly unlikely that the trial court will grant either of the motions, but filing the motions is a necessary step for any appeal. I suspect that it will be 18–24 months before the Supreme Court decides the appeal.   

For prior posts on the verdict see here.

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On Thursday the Mississippi Supreme Court ruled in Doe v. Jameson Inn that people who enter a business premises to smoke pot are licensees rather than invitees. Here is the Court's opinion.

The case involved the rape of a thirteen year old at the Jameson Inn in Pearl. The girl left the adjacent Tinseltown movie theater with a group of boys to smoke pot in the boys' room at the Jameson Inn, which was across the street. One of the boys raped the girl in the room.

The circuit court of Rankin County granted the hotel's motion for summary judgment after finding that the girl's status on the property was a licensee. The Supreme Court affirmed.

Property owners owe licensees a duty to refrain from willfully or wantonly injuring persons on their property. The court defined licensee as one who enters property with the owner's permission for the person's own pleasure or convenience.

An invitee is a person who enters property at the owner's invitation for their mutual benefit. Property owners owe invitees a duty to warn the person about dangerous conditions that the owner has express or constructive knowledge of.

Justice Pierce wrote the Court's 6–2 opinion. Justice Kitchens dissented in an opinion joined by Justice Chandler. The dissent argued that there was a fact question about the girl's reason for entering the premises, since the girl gave contradictory statements about the events.

My Take:

The case facts suggest that it would have been very difficult to get a plaintiff's verdict in this case, regardless of the status of the girl.

This is an important decision for pot-heads. The take-home is that druggies need to rent their own room to smoke weed in—that way they will be an invitee. If they go to a friend's room to smoke weed, they are a licensee. If another guest attacks them in that situation, they will not be able to recover. Dude, that's harsh.     

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The Clarion-Ledger reported Monday on a January 7, 2011 jury verdict of $38,000 in a gender discrimination case by Mary Beth Watt against the Miss. Dept. of Wildlife. The verdict was in the federal district court in Jackson.

The article states:

Mary Beth Watt, hired in January 2008, said she was fired about six months after she complained about gender discrimination.When Watt, now 33, began working with Wildlife, Fisheries and Parks, there were 185 male law enforcement officers, referred to as conservation officers, at the time.

After completing her training, Watt was first assigned to Noxubee County, then reassigned to Hinds County. Watt said she was reassigned in order to make her job circumstances difficult and to pressure her to resign, according to court records.

Watt alleged she was the only academy graduate to be sent to a different county. She also said that as a single parent of a young child the transfer presented a hardship.

Believing that her transfer was because of gender discrimination, Watt complained to DWFP Commissioner Charles Rigdon and state Sen. Terry Brown.

The department then terminated Watt in a letter dated July 24, 2008, "on the grounds that she had 'gone outside the chain of command.' "

That does sound like a b.s. reason for firing someone.

Here is the Plaintiff's Complaint in the case.

Here is Judge Dan Jordan's Order denying summary judgment.

Here is the jury's verdict.

Here is the judgment.

Plaintiff can now recover attorney's fees as the prevailing party in a discrimination case. That presumably could substantially increase the State's total liability.

Plaintiff also plans to file a motion to require the Department to reinstate her to her old job.

Jim Waide and Rachel Pierce of Tupelo represented the Plaintiff. Peter Cleveland of the A.G.'s office represented the State.

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Rick Friedman On Becoming a Trial Lawyer is a book that every civil plaintiff lawyer and criminal defense lawyer should read.

The cover flap provides a good description of the book: 

Combining nuts-and-bolts practical advice with inspirational insights, he guides us on the journey every trial lawyer must take, from the struggle to gain trial experience to the search for happiness in a career fraught with conflict and frustration. Along the way he addresses topics as diverse as common mistakes made by even the most experienced trial lawyer to the benefits of psychotherapy. 

The book is divided into three parts: (1) Entering the Jungle [why even do it]; (2) Traps in the Jungle [practice observations and pointers]; and (3) At Home in the Jungle [dealing with personal traps in a difficult profession].

Each part of the book is good. Along the way, Friedman makes numerous observations that are spot on, including:

• Being a good trial lawyer is hard—real hard. He states: “[i]n any particular case you will almost always be outmanned and outgunned.” The only answer is hard work: “[s]imply put, to even have a chance, you have to outwork your opponents—and they work hard.”
• If you want trial experience you are going to have to get it on your own, and money is a huge obstacle to getting it.
• Successful trial lawyers pay a huge personal price for going to trial (because it is so hard).
• Emotional resilience is a job requirement.
• You better love it—because there will be times when you hate it.
• You have to be able to handle losing.
• Your family didn't sign up to be a trial lawyer, so it's no excuse for you to be an ass to them.
• “If the system were fair, we'd hardly be needed. With fair, impartial judges, scrupulously honest oppoents, and intelligent, perceptive jurors, how much would a client need us?”
• “Our clients hire us to enter an unfair system and extract some justice from it.”

There is a lot more there and I highly recommend the entire book. It is only about 200 pages and can be read in a few sittings. If you represent individual plaintiffs or criminal defendants, it will make you feel better about your journey. And who doesn't want to feel better?

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The Clarion-Ledger reported Wednesday that Assistant U.S. Attorney John Dowdy has been appointed interim U.S. Attorney for the Southern District of Mississippi. Dowdy replace Don Burkhalter, who retired this month and was also serving on an interim basis.

Seeing as how the Obama administration has forgotten about U.S. Attorneys in Mississippi, the appointment was made by Chief U.S. District Judge Louis Guirola, Jr.

Dowdy is a career prosecutor who has been with the U.S. Attorney's office since the early 1990's. The Clarion-Ledger article says 1988, but Dowdy was a 1983 graduate of Gulfport High School, which would have put him in law school in 1988. I believe that Dowdy worked in the U.S. Attorney's office during law school, but that would have been in a non-attorney capacity. [Correction: Dowdy began working in the office during law school and tried several cases while still in law school under a limited practices act].

Dowdy is from Gulfport and lived next door to, ahem, and near a bunch of other characters on Harrison Ave. in Gulfport. Dowdy is the nephew of prominent Democrat Wayne Dowdy. Dowdy is also first cousins with Harrison County Assistant D.A. Joel Smith, who is thought to be a leading candidate to replace the retiring Cono Caranna.

Dowdy will presumably hold the U.S. Attorney position until President Obama wakes up and makes a permanent appointment. No word on if or when that will happen.

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Hinds County Circuit Judge Swan Yerger retired effective the end of 2011. Former Jackson City Councilman Jeff Weill was elected to replace Judge Yerger and inherited his docket.

On January 4, 2011–-the day of Judge Weill's investiture—Eaton Corporation moved to have Judge Weill recuse himself from the Eaton v. Frisby case. Eaton filed its motion under seal even though Judge Yerger lifted the seal in the case. Frisby did not file its response under seal. Here is Frisby's response. [Here is page 5, which was not in my initial posting.]

According to Frisby's response, Eaton contends that no judge in Hinds County can be fair due to Judge Yerger's finding that Eaton used Ed Peters to improperly influence Judge Bobby DeLaughter in the case.

Frisby responds that there is no legal or factual basis for recusal of Judge Weill. Frisby also contends that Eaton's motion constitutes improper judge shopping.

Eaton's request to recuse Judge Weill is bizarre. Judge Weill is conservative and is expected to be a detail oriented trial judge. That would seem to be the type of judge who you would want on the case if it's your position that the last judge got it wrong.

Eaton, on the other hand, wants the judge behind door number 2.

Should Judge Weill recuse himself, Eaton has no idea whether it will like the judge who the Supreme Court assigns to the case. I do not know exactly how that system works, but it appears random. That means that the Supreme Court could assign any current Mississippi Circuit Judge. Although it is more likely that it would be one from an area surrounding Jackson, that is no guarantee.

The uncertainty about what judge might be assigned to the case is what makes Eaton's request bizarre. How do you move to recuse a new judge who is a blank slate, but who no one has any real criticism of, in order to get a random draw that could be much worse? A lot of people will probably question that strategy if Judge Weill grants Eaton's motion and Eaton draws a judge who is perceived to be bad for Eaton in the case.

But that is probably a moot point since it appears unlikely that Judge Weill will grant Eaton's motion.      

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This recent New York Times article provides a lengthy analysis of the border-line scam of law school. Law students are going into debt to the tune of tens or even hundreds of thousands of dollars only to find out that there are no jobs for lawyers in this economy.

Along the way the article has some great lines:

“Avoid this overpriced sewer pit as if your life depended on it,” writes the anonymous author of the blog Third Tier Reality — a reference to the second-to-bottom tier of the U.S. News rankings — in a typically scatological review. “Unless, of course, you think that you will be better off with $110k-$190k in NON-DISCHARGEABLE debt for a degree that qualifies you to wait tables at the Battery Park Bar and Lounge.”

Apparently, there is no shortage of 22-year-olds who think that law school is the perfect place to wait out a lousy economy and the gasoline that fuels this system — federally backed student loans — is still widely available.

And all those losers can remain cash-poor for a long time. “I think the student loans that kids leave law school with are more scandalous than payday loans,” says Andrew Morriss, a law professor at the University of Alabama.

This gets to what might be the ultimate ugly truth about law school: plenty of those who borrow, study and glad-hand their way into the gated community of Big Law are miserable soon after they move in. The billable-hour business model pins them to their desks and devours their free time.

Hence the cliché: law school is a pie-eating contest where the first prize is more pie.

“This idea of exceptionalism — I don’t know if it’s a thing with millennials, or what,” she says, referring to the generation now in its 20s. “Even if you tell them the bottom has fallen out of the legal market, they’re all convinced that none of the bad stuff will happen to them. It’s a serious, life-altering decision, going to law school, and you’re dealing with a lot of naïve students who have never had jobs, never paid real bills.”

The bottom line is that taking out a loan to go to law school is a losing bet. It's like betting the hard ways at the craps table. There might be a big pay-off if you hit. But the odds are that you won't. Smart money stays away from losing bets.

Law school might make sense for students who will get a full scholarship or who do not have to go into debt to attend. For everyone else, it is probably a mistake.

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On Thursday in Knight v. Woodfield the Mississippi Supreme Court ruled that Mississippi's long-arm statute covered a Louisiana resident who had an affair with a Mississippi resident. The ruling allows the perpetrator's former spouse to maintain an alienation of affection lawsuit against the Louisiana resident. Here is the Court's opinion. 

Facts:

A Harrison County resident cheated on her husband with a co-worker at her job in Mississippi. The sex took place in Louisiana. Her now ex-husband sued for alienation of affections in Harrison County County Court.

Ruling:

By a 7–2 vote the Court ruled that the Mississippi long-arm statute covered the non-resident defendant. Justice Carlson wrote the majority opinion. The other Justices in the majority were Graves, Dickinson, Randolph, Lamar, Kitchens and Pierce.

The majority ruled that a bunch of emails and text messages satisfied the minimum contacts requirement of the long-arm statute.

Chief Justice Waller dissented and Justice Chandler joined the dissent. The dissent argued that the defendant did not have sufficient minimum contacts with Mississippi.

My Take:

I'm in the dissent camp on this one, but my opinion is jaded by my disdain for the alienation of affection cause of action.

The cause of action has multiple problems, is unproductive and should be abolished.

The defendant was also a non-Mississippi resident in this October verdict in an alienation of affection trial in federal court.

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The Mississippi Supreme Court issued its first opinions for 2011 today, including an interesting opinion in Loggers, LLC v. 1 Up Technologies, LLC. Here is the Court's opinion.

Justice Graves wrote the Court's opinion. 

The underlying case was a small breach of contract case in the Pearl River County Circuit Court. The case was tried before a special master.

At the close of plaintiff's case-in-chief, defendant moved for a dismissal under Miss. R. Civ. P. 12(b)(6) and 41(b) on the ground that the plaintiff was barred from bringing the suit under Miss. Code Ann. 79–29–1007(1). The statute relates to a foreign limited liability company having to be registered in the state to assert a cause of action.

The special master ruled that the defendant waive the affirmative defense by failing to raise it in its answer and then raising it for the first time during trial. The Circuit Court adopted the special master's report and added that a specific affirmative defense such as this cannot be raised by pleading rule 12(b)(6).

On appeal, defendant cited Howard v. Estate of Harper, 947 So. 2d 854 (Miss. 2006) and another case. In Howard, the Court found that a general Rule 12(b)(6) assertion in a motion to dismiss was sufficient to preserve an issue in a medical malpractice case. The Court rejected the argument, stating:

[defendant] cannot merely assert a general defense in its initial response to preserve any other defenses that might be asserted months or years later.

Chief Justice Waller and Justices Carlson, Kitchens, Chandler and Pierce concurred. Justice Randolph concurred in result only without separate opinion. Justices Dickinson and Lamar concurred in part and in result, without separate opinion.

My Take:

I really wish that the concurring Justices issued opinions. What is their problem with Justice Graves' opinion?  

But at least there is an apparent solid six justice majority (5 if you don't count Graves due to expected departure to 5^th Circuit) that defendants have to specifically plead and timely assert affirmative defenses. Howard kind of made the waiver law a joke. I consider this opinion to overrule Howard, but it does not clearly state that. 

 Cynics will say that this shows that different rules apply for doctors, since Howard was a medical malpractice case.

I'm going to miss some of the the flowery catch-all affirmative defenses I've noticed popping up in answers in the last couple of years.

For earlier posts on the waiver of affirmative defense issue, see here.  

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Eaton Corporation touts itself as one of the world's most ethical companies. Its CEO touts the company's ethical values.

Those ethical values did not extend to Eaton's legal department. As discussed in this post, Hinds County Circuit Judge Swan Yerger unsealed an opinion last week in which he found by clear and convincing evidence that Eaton's in-house and outside counsel cheated in a civil lawsuit.

Judge Yerger's opinion gave “just a few examples from an extensive record of clear and convincing evidence” of Eaton's misconduct by turning Ed Peters loose to play fast a loose with the justice system by improperly contacting and influencing Judge Bobby DeLaughter while remaining behind the scenes in Eaton's billion dollar lawsuit.

So far, Eaton's response to Judge Yerger's ruling is to maintain its innocence and state that it will appeal. The Mississippi Supreme Court's ruling on an appeal will be very interesting. My gut feeling is that at the Supreme Court Eaton is going to run into nine justices who—on the whole—are even less sympathetic to Eaton than Judge Yerger.

I don't know how Eaton can genuinely believe that it will win on appeal. In this August 2009 post, I pointed out that Eaton's arguments did not make sense and suggested that Eaton knew what Peter's was doing.

Eaton knew it hired Peters and that he was working on the case. Eaton has never given a legitimate reason for: (1) why it hired Peters; and (2) why after hiring Peters, it actively made sure that Peters' involvement was concealed from Frisby (the defendant in the lawsuit). Eaton's public attempts to answer these questions have been comically bad.

That will be obvious to the Supreme Court. And that's on top of the specific evidence that Eaton knew what Peters was doing. 

Eaton's current lawyers may be telling Eaton this. But if Eaton is taking advice from any of the in-house or outside counsel who got it into this mess, I suspect that Eaton is hearing a self-preserving and incorrect different tune.

In addition, the Supreme Court will be free to write an opinion discussing the entire record before Judge Yerger—not just the examples of misconduct that Judge Yerger cited. That means that things could get even worse for Eaton on appeal. Judge Yerger issued a thorough and well written opinion. But writing opinions is much more of a core function of appellate courts than trial courts. So Eaton's appeal could result in an even more damning opinion from a higher court.

At this point I am waiting to see if Eaton shows signs of a new plan. They sure need one.