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

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

When I wrote this post a couple of weeks ago I could not locate a recently filed lawsuit against a law school based on deceptive marketing of graduates' job prospects. But last week the ABA Journal reported on a case filed by a former student against the Thomas Jefferson School of Law.

Here is a link to the Class Action Complaint in Aladruda v. Thomas Jefferson School of Law, courtesy of Legal Ethics Forum.

The Complaint pleads causes of action that will be familiar to lawyers with experience in deceptive sales practices cases. Claims include common law based actions for fraud and negligent misrepresentation.

The plaintiff amassed $150,000 in student loan debt. She claims that she was misled by the school's use of statistics that 80% of law school grads find jobs. Apparently, delivering pizza does count as a job in those statistics.

My Take:

I doubt that law schools are laughing. I believe that law schools do have exposure in these types of cases. If you intentionally use misleading statistics to induce someone to spend six figures attending your law school, then you may have exposure to fraud-related claims.

Keep in mind that many law school applicants are not sophisticated when it comes to recognizing deceptive marketing. A twenty-two year old college senior can be naive and gullible. Are law schools taking advantage of this? Probably.

The amount of the economic damages at stake in these cases suggests that there could be other similar cases filed. If one law school settled, it could open a floodgate of litigation against other law schools. And they wouldn't have to be class actions. A lawyer could make a go of it in individual cases if she represented many students with a lot of debt.

Update:

The Above the Law Blog has good coverage of the lawsuit here.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The Clarion-Ledger reported last week on a $553,000 jury verdict in a Hinds County medical malpractice trial against Jackson neurosurgeon Dr. Adam Lewis. The article provided a good description of the plaintiff's allegations:

Joanne Hartwig's negligence lawsuit in Hinds County Circuit Court said Dr. Adam Lewis' surgery on Aug. 1, 2005, left a plate in her back in the wrong position and one of the screws to fuse the lumbar spine bones together floating, not attached to bone.

Hartwig said the problem was discovered after she sought a second opinion because her condition continued to worsen under Lewis' care.

On Nov. 28, 2005, Hartwig said she had to undergo another surgery via her abdomen for the removal of the hardware.

"Ms. Hartwig sustained painful, debilitating injuries of a permanent nature, as well as the pain and suffering associated with having to undergo multiple surgeries and procedures," her lawsuit has said.

The components of the jury's verdict were:

• $178,000– economic damages
• $375,000– non-economic damages.

The article states that Dr. Lewis will appeal.

Precious Martin of Jackson represented the plaintiff. Whit Johnson of Currie Johnson in Flowood represented Dr. Lewis. Judge Winston Kidd was the presiding judge.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

Another week-long trial. Another loss. I seem to be getting better at losing trials. Since I agree with NMC that it's bad form to blog about your own cases, you'll have to read about it in the Mississippi Jury Verdict Reporter.

Is it just me, or does anyone else's brain feel like a scrambled egg after a long trial? Win or lose.

Meanwhile, in a blatant attempt to avoid commentary on this blog, Governor Barbour filled the the vacant Court of Appeals seat while I was out of town. Here is a link to the the Clarion-Ledger article about Barbour appointing former Hinds County Circuit Judge Ermea “EJ” Russell to the Court. She replace Chief Judge Leslie King, who Barbour promoted to the Supreme Court.

My Take:

I don't have much of a take on this. I do not know Russell and never practiced before her while she was on the Hinds County bench. 

I heard a lot of speculation about who might fill King's seat before Barbour appointed King to the Supreme Court. I heard little to no speculation about the position after the actual King appointment. But I really didn't go looking for information on it either.

My general sense is that Russell was not previously on most lawyer's radar. This means that most people don't have strong feelings about her appointment one way or the other. That may be a good thing. It will allow Judge Russell to be judged by her work on the Court without pre-conceived notions about her bias or abilities.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

I hear about it from readers who don't like it when I don't have a new post every day. Even when I am out of pocket, as I was last week, people mention it to my wife at the law firm where she works. Don't fret. I'll be back to a full schedule soon.

There was a lot to talk about last week in Mississippi litigation. But I was unavailable to blog. I plan to start catching up later this week. Topics will include thoughts on the passing of Judge Senter, Governor Barbour's appointment to the court of appeals and the Hinds County jury verdict in a medical malpractice case. Perhaps we'll even check in to see how Sophie the wiener dog is enjoying the spoils of victory.

For those who wonder how I blog during trials, the answer is that I don't. I write a few posts before the trial and then schedule them to post while I am gone.   

• Email This
• Print
• Comments (20)
• Trackbacks
• Share Link

Saturday's Clarion-Ledger had this article about all the law school graduates with no jobs. MC Law Dean Jim Rosenblatt had this circumspect quote in the article:

“This economy makes for a tougher job market, but our students work very hard," MC Law Dean Jim Rosenblatt said.

The article quotes statistics that I'd bet money are misleading:

According to the National Conference of Bar Examiners, about 80 percent of the students will pass the bar exam on the first try, and nearly 90 percent of students from each school had jobs within nine months of graduation in 2009 - the most recent figures available.

It's my understanding that some of Dean Rosenblatt's recent graduates are working very hard with jobs…..delivering pizzas. Last time I checked, you didn't need a law degree to get a job at Domino's. 

Does that 90% employed figure count jobs that graduates take because they can't find a job using their law degree? Does it count service industry jobs that do not even require a college degree? I'm betting yes.   

Let's be honest. Law schools are big business and represent profit centers for their universities. How much does a year of law school cost at MC? $50,000? So is it in a law school's interest to tell applicants that the school will take you money and spit you out in three years without a job? No, it's not.   

And for what? From what I hear, it's unlikely that a graduate of a Mississippi law school will get a real legal industry job. And the notion that going into $150,000 in debt for a law degree that you are not going to use is a joke. 

How about hanging up your shingle after law school? Two words: good luck. I'm not saying that it can't be done. But it often ends badly—even for lawyers with years of experience. And when its over, they have even more debt.    

Meanwhile, law school classes are getting bigger. And the money keeps rolling in for the universities.

• Email This
• Print
• Comments (7)
• Trackbacks
• Share Link

On Thursday the Mississippi Supreme Court reversed a $2.5 million Hinds County jury verdict against Deviney Construction Company. I reported the verdict two years ago in this post.  Here is the Court's opinion.

Facts:

The plaintiff called two Deviney employees as witnesses early during plaintiff's case in chief. Circuit Judge Tommie Green ruled that the defendants cold not reserve questioning and call the witnesses during defendant's case. Defendants had to question the witnesses then or not question them at all. Defendants could not recall the witnesses to question them about the testimony of the eight plaintiff witnesses that followed.

The Ruling:

A restrained opinion stated that: “a defendant should not be required to present his or her evidence during the plaintiff's case.” The Court ruled that this was a major error and remanded the case for a new trial.

Justice Lamar wrote the unanimous opinion.Wayne Drinkwater with Bradley Arant in Jackson represented Deviney on the appeal.  

My Take:

This was a sensible decision. The trial judge's ruling is a real head scratcher.

I feel bad for the plaintiff and plaintiff's counsel Ashley Ogden. It does not appear from the record that plaintiff's counsel asked for the trial court's ruling. Nothing like getting your verdict reversed over something you didn't ask for.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

A Claiborne County jury returned a confusing plaintiff verdict Friday afternoon in the silica trial I have been following. The jury's total verdict awarded total damages of $750,000 and apportioned 10% fault to the defendant MSA. So the plaintiff gets $75,000 right? It's not that simple.

The plaintiff's proof and request was for $119,000 in economic damages. But the jury awarded $650,000 in economic damages.

The jury awarded $100,000 in non-economic damages. The plaintiff requested $2 million in non-economic damages.

The fact that the jury awarded much less in non-economic damages than the plaintiff requested usually wouldn't be a big deal. It happens a lot. But the jury awarding much more than the plaintiff requested in economic damages is odd.  It looks to me like the jury got confused filling out the verdict form and got the economic and non-economic amounts reversed.   

The defense has an argument that the $650,000 in non-economic damages must be reduced to $119,000 consistent with the proof. That would reduce the total judgment to around $21,000. The plaintiff may argue that the court should order a new trial on damages due to the confusing verdict. The defendant will want no part of that.

The defendant may consider putting up $75,000, calling it a win, and going to the house.

The plaintiff was a gentleman in his late 70's who can do 13 pull-ups and plays the trumpet. Perhaps not the best facts for a case alleging lung damage.

Prior posts on this trial are here, here and here.   

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

Reports from Claiborne County are that the water is rising fast. The plaintiff lives in Vicksburg and had trouble getting to Port Gibson today because Highway 61 is closed. 

As a result, Judge Pickard is pressing to get the ongoing silica trial to verdict today. The parties argued jury instructions last night after the jury left for the day. It's expected that closing arguments will be today. Perhaps even before lunch. If they don't finish soon they're going to need some canoes.

Reports are that the plaintiff's Closer Dennis Sweet is participating in the trial. It will be interesting to see how plaintiff counsel splits closing.  

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

There was a defense verdict this week in a silica trial in Adams County that started on Monday.

Patrick Malouf with Porter & Malouf in Ridgeland and Allen Smith represented the plaintiff.

Wade Manor and Chaney Nichols with Scott Sullivan in Ridgeland represented the defendant.

This is a different trial from the Claiborne County trial going on this week. We may be about to get a lesson in the significance of venue.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Reports from Port Gibson are that the plaintiff in the Claiborne County silica trial went to the bullpen yesterday and called in……Dennis Sweet of Jackson. 

Yep. The big right-hander entered the ballgame courtroom Wednesday afternoon representing the plaintiff. I didn't know that Sweet was coming out of the pen.  

My earlier post on the ongoing silica trial is here.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

There is a silica trial taking place this week in Claiborne County. The plaintiff claims that he was exposed to silica at the Grand Gulf Power Plant.

I understand that there are concerns that there could be a mistrial ordered due to the Mississippi River flooding in Claiborne County. Apparently, water is at Hwy 61 near the courthouse and on the rise.  

Tim Porter and Johnny Givens of Porter & Malouf in Ridgeland represent the plaintiff.

Chip Wilbanks with Wells Moore in Jackson and Karen Maston with Sedgwick out of Houston represent the defendant MSA. Luther Munford with Phelps Dunbar in Jackson is assisting the defense—presumably for appeal purposes. Munford is an appellate specialist.

Judge Lamar Pickard is the trial judge.

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

I don't have time to write new content today, so for my readers who complain when I don't have a new post every day I am directing you to this practice tip at Anderson's blog. The subject is Miss. R. Civ. P. 45 and who has to file a motion if the person served objects to the subpoena.

Anderson notes:

The burden to go to court is on the party serving the subpoena, not on the served party -- which makes sense. Arguably you don't even have to file the objections (tho I would anyway), just serve them.

This is pretty obvious on the face of the rule, but since three lawyers smarter than I am didn't know this the other day, it seems worth posting.

Years ago in my big firm days I dissected Rule 45, though I can't remember why. It led me to the conclusion that most lawyers have never read it. In addition to the language that Anderson cites, there are provisions that:

1. Mississippi residents can only be required to attend a deposition or produce documents in the county where he/she resides, is employed or transacts business [45(b)]; and
2. the subpoena must give at least 10 days to produce documents [45(d)(2)].

Lawyers can get very frustrated when they don't know this rule and run into someone who does and doesn't want to produce documents.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Friday I learned that Jenny Virden has been selected as the next U.S. Magistrate for the Northern District of Mississippi. I asked around and apparently I am the last person to know this.

Here is Ms. Virden's bio on the Chapman, Lewis & Swan website.

I do not recall ever having a case with Virden, but everyone who I talked to about her has been effusive in their praise of her legal abilities. She has the sweet spot of experience that I like to see in Magistrate Judge appointments by having civil litigation experience on both the plaintiff and defense sides. Many (but not all) attorneys without that dual experience have a blind spot in their views toward the other side.

Virden will be based in Greenville. Magistrate Judge David Sanders will move from Greenville to Aberdeen.

Magistrate Judge Jerry Davis is retiring, which created the vacancy that Virden will fill. Judge Davis is probably the most popular magistrate judge in the state among attorneys and will be missed.    

• Email This
• Print
• Comments (6)
• Trackbacks
• Share Link

The plaintiff's lawyers in the Smith County asbestos drilling mud verdict first reported in this post have issued a press release. You can view the press release here.

The case was Brown v. Union Carbide and Connoco Phillips. Drilling mud is used on oil rigs to push down the drill pipe and force oil to the surface. The plaintiff was a 48–year old who was diagnosed with asbestosis and requires oxygen 24/7.

The jury apportioned fault at 50% per defendant—there were two defendants.

The defendants were CP Chem and Union Carbide. CP Chem was represented by Alex Coscullela of Adams and Reese in Houston, Jeff Trotter with Adams and Reese in Jackson, Robert Johnson of Natchez and David Garner of Raleigh. 

Union Carbide was represented by Michael Terry with Hartline Dacus in Corpus Christi and Marcy Croft with Forman Perry in Jackson.

Defense lawyers from other firms complained to me about the comment in my last post about large defense firms not letting young partners first chair big trials. They are trying to spin it as an insult of Ms. Croft. My comment was on the how the system usually works, not Ms. Croft's legal abilities. I do not know Ms. Croft, but she has a reputation in the Jackson legal community as a good and serious lawyer.

Plaintiff's counsel represents 600 plaintiffs on other similar cases pending in Mississippi.

There is also a rumor that plaintiff's counsel went in Char in Jackson last night, had the band play Queen's “We are the Champions” and ran around the place "taking a victory lap" giving everyone high fives. Really?    

• Email This
• Print
• Comments (10)
• Trackbacks
• Share Link

I received a report yesterday of a $322 million jury verdict in a Smith County asbestos drilling mud case. I have few details to report at this time.

I believe that Union Carbide was the defendant. The verdict consisted of $22 million in compensatory damages and $300 million in punitive damages.

Allen Hossley of Texas was reportedly the plaintiff's lawyer. No word yet on whether plaintiff also brought in Gene Tullos of Raleigh to "Ole Shep" the defendants in closing.

Forman Perry of Jackson was reportedly involved in the defense. The only attorney's name that I've heard is Marcy Croft. Given how big defense firms staff and try cases, I doubt that Croft first chaired the trial because she was admitted to practice in 1998. I suspect that a more experienced lawyer first chaired the trial. Who was it?

I hear that "national counsel" tried the case for the defense. That typically means a lawyer from outside Mississippi. I'm not sure that there is a venue in the state where that would be a worse idea than Smith County.

I assume that Judge Eddie Bowen was the trial court judge.

My Take:

I don't know what drilling mud is, but it's my new practice specialty.

Smith County is an odd venue. On the surface it looks like it would be real conservative like Rankin or Simpson County. But underneath the surface it is very dangerous for defendants.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The May issue of the Mississippi Jury Verdict Reporter hit newsstands on Tuesday. This edition includes 13 verdicts from 2011.

Seven of the 13 verdicts were defense verdicts. The defense verdicts included two from Hinds County Circuit Court with one tried before Judge Winston Kidd and one before Judge Tommie Green.

Of the six 2011 plaintiff verdicts covered, three were for under $100,000. One plaintiff verdict was the $1.7 million Jones County verdict that I discussed here. Another plaintiff verdict was the $1.1 Gulfport federal court verdict that I discussed here. There was also a $250,000 plaintiff verdict in a Tunica County casino slip-and-fall case.  

Here is my post about last month's issue of MJVR. Every litigator in Mississippi should be reading this publication.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

The Mississippi Supreme Court has scheduled the oral argument in the Sears v. Learmonth case for June 14, 2011 at 10:00 a.m. Here is the Court's docket calendar. The case is listed on the last page.

This is the case where the 5^th Circuit Court of Appeals certified the issue of the constitutionality of Mississippi's non-economic damages caps. This issue was before the Court last year in the Lymas v. Doublequick case discussed here, but the Court did not reach the issue because it reversed and rendered on liability. The Court cannot side-step the issue in this case, since the caps are the only issue for the court to decide in the case.

And now for my long anticipated prediction for the case: I predict that there will be a big crowd at the oral argument.

Here is my prior post on the case. Here is another post where I mention the case.

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

On April 27, 2011 Hinds County Circuit Judge Winston Kidd issued a $500,000 bench trial verdict against the City of Jackson in Sandifer v. City of Jackson. Here is the Court's Opinion. Here is the Clarion-Ledger article on the case.

Facts:

In 2006 Toice Wilson murdered Tawana Sandifer, aged 16. Before the girl's death, Jackson police officers Kenneth Talton and Maurice Clark had sexual relations with Tawana. JPD investigated Clark for having sex with Tawana in 2004 (when she was 14), but the investigation did not go anywhere. [I know, big surprise that a JPD investigation against one of its own didn't go anywhere]. Both Talton and Clark admitted having sex with Tawana during the investigation of Tawana's death. Toice Wilson had no connection with JPD.

Tawana's family sued the City and the officers alleging that they were responsible for Tawana's death. The Court rejected the City's defense that the officers were acting outside the scope of employment and that the allegations were excluded from the Tort Claims Act due to the officers' criminal conduct. The Court found that had the officers done what they were supposed to, Tawana would not have been out on the streets and vulnerable to the attack of Wilson. Therefore, the Court found that the officers contributed to Tawana's death.

The Court apportioned 50% of the fault to Wilson and awarded the Plaintiffs the maximum allowed under the Tort Claims Act: $500,000. Precious Martin of Jackson represented the Plaintiffs.

My Take:

The City does not have to post a bond to appeal, so look for this to go up on the issues of causation and whether the City can be liable under these circumstances.

Is it just me, or is the real story here the fact that Talton and Clark were not prosecuted for sexual battery? Talton and Clark admitted that they had sex with the girl. From the Clarion-Ledger article:

A Jackson Police Department Internal Affairs investigator testified at trial that Talton and Clark admitted having sex with the teenager.

Clark resigned and faced no charges.

Talton was fired and charged with sexual battery, but the charge was dropped for lack of evidence.

Since when is a confession not enough evidence to charge someone with a crime? Cops are not above the law and it should not be up to federal authorities to bring non-federal officers to justice. Cases like this send the message to cops that they can do whatever they want and D.A's and other law enforcement officers will look the other way.