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

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That sound that you just heard was the jaws dropping of lawyers all over Mississippi in reaction to the Mississippi Supreme Court's decision in InTown Lessee Associates v. Howard. The Court affirmed a total verdict of $4 million to two plaintiffs were were beaten and robbed at the InTown Suites on I-55 in Northeast Jackson. 

Here are the key phrases from Justice Kitchens' unanimous opinion, which it states repeatedly:

“InTown argues for the first time on appeal……”

and

“InTown did not make a contemporaneous objection [at trial]……”

Translation: InTown had nothing to appeal because the potential appeal issues were not preserved during the trial.

For instance, InTown couldn't really attack the damages amount on appeal because at trial InTown agreed to a verdict form that did not separate economic and non-economic damages. The opinion states:

“InTown did not object to these instructions. Because it did not object to the form of the jury instruction at trial, InTown is procedurally barred from doing so on appeal.”

When I blogged about this verdict in 2009 I stated that there was no defense at trial. Even so, I am a little surprised to see this large of a verdict get affirmed on appeal. But if you think about it, this Supreme Court doesn't have much tolerance for stuff like not preserving objections.  

Judge Tommie Green was the trial judge. Jackson attorney Ashley Ogden represented the plaintiffs. Defense trial counsel were Wade Manor and Andy Clark with the Scott Sullivan law firm in Ridgeland. 

InTown's appellate counsel were Trey Jones and Joseph Sclafani with the Brunini law firm in Jackson. To be fair to those guys, they were not hired until after the trial and were playing a losing hand that had already been dealt. Ogden has a reputation of refusing to discuss settlement after trial, so it's unlikely that there was anything that the Brunini lawyers could do to save this one.

This decision will be good for the business of appellate defense lawyers. The take-away for large corporations and insurance companies is to hire your appellate lawyers before the trial and have them in the courtroom to make sure that all potential appeal issues are preserved. 

Here is Randy Wallace's take on the decision.      

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The Mississippi Supreme Court affirmed a $4 million Hinds County premises liability verdict today. Here is the opinion. This was the 2009 Ashley Ogden In Town Suites case that I discussed here.

I will post more on this decision later.

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The Clarion-Ledger is reporting that President Obama nominated Jackson attorney Greg Davis to become U.S. Attorney for the Southern District of Mississippi:

President Barack Obama has nominated a Jackson lawyer as the next U.S. attorney for the Southern District of Mississippi.

Gregory Davis is a member of the law firm Davis, Goss & Williams PLLC, which he co-founded.

Davis graduated from Mississippi State University in 1984 and Tulane University School of Law in 1987.

If confirmed by the U.S. Senate, Davis will succeed Dunn Lampton, who retired. First Assistant U.S. Attorney John Dowdy Jr. has been the office's interim leader since January. 

President Obama [a.k.a. The Tortoise] nominated Davis nearly a full year after his name first surfaced as a candidate for the position.

My Take:

Finally, one of my own people gets nominated to an important federal position. That's right. Davis is……..a golfer.

When Davis walks into the federal courthouse, the U.S. Marshals will say: “now there goes a man who knows the humiliation, degradation, frustration, anger, and total injustice of…..slicing a ball into the drink on 18 with the match on the line.” 

Davis is a shining beacon for golfers everywhere that there is hope for overcoming that devilish past time.  

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I watched the HBO documentary Hot Coffee on Monday night. Here are a few random thoughts.

• The Mississippians in the documentary were superb. Former Miss. Supreme Court Justice Oliver Diaz, Jackson attorney Rob McDuff, former Miss. Supreme Court Justice Chuck McRae and author John Grisham all spoke eloquently and convincingly.    
• I had forgotten how bogus the government's case against Diaz appeared. For me, the fact that the government prosecuted Diaz soiled the prosecutions of Minor, Teel and Whitfield. I don't have a problem with those prosecutions. But the decision to prosecute Diaz was a mistake and, in retrospect, looks politically motivated.  
• I felt stupid to have never connected the fact that taxpayers pay for the cost of tort reform. When tort victims fully recover in the Court system, Medicaid and Medicare are reimbursed and are not saddled with the plaintiff's future medical care. Under the cap system, people wind up back on the Medicaid rolls and these entities receive less reimbursement.
• It also reminded me that the system that Mississippi nursing homes use to shield their operators from liability also shifts the burden or paying for their negligence to taxpayers who are funding Medicare and Medicaid.
• I had never seem the pictures of the burns to the legs of the victim in the McDonald's coffee case or heard the actual facts of the case. The fact that people in this country were misled by her lawsuit is sad.
• The documentary solidified what I had already figured out: the general public does not understand tort reform. They believe that caps apply to frivolous lawsuits. In fact, the opposite is true. Caps only come into play in non-frivolous cases with extensive injuries. Big business has effectively and intentionally misled the public on this issue.

The film made me sad. Sad for the victims portrayed in the film, who were under compensated due to caps or kept from the courthouse due to mandatory arbitration clauses. Sad for the American public, who were duped into supporting tort reform by those they trust.  

The film also made me sad for my profession. The legal profession has had its image tarnished by greedy ambulance chasers who advertise that they can get large sums of money for accident victims who were not really hurt. They may not come out and say that in their ads, but that is what they are selling.

Have you ever noticed that in lawyer commercials with people who got a big check, the people don't look hurt? How it's never the family of the dead guy? Or the woman who lost her leg? Or the child who suffered brain damage and will never be able to take care of herself? Think these commercials could be a factor in public support of tort reform?       

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Last week Hinds County Circuit Court Judge Winston Kidd issued a bench trial ruling that resulted in a $1.1 million verdict against a manufacturer of tear gas. Here is the Clarion-Ledger article on the verdict.

Facts:

In 2006 Jackson police officers used tear gas to flush out three teen-age car thieves who broke into Linda White's home. I guess Barney and the other deputies got their men. But then:

White and family members entered the home later that night and began coughing and tearing up from the residual effects of the chemicals released in the house, her family said.

Less than two weeks later, White, 42, was dead.

Lewis, executor of White's estate, testified at trial that the smell of the tear gas was strong in the house a day after the raid.

White went back to the house three or four times for brief visits to try to clean it or to retrieve clothing, according to the lawsuit.

After her last visit, White went to the hospital, complaining of breathing difficulties. She died in the hospital May 8, 2006.

White died of respiratory failure secondary to the acute respiratory distress, according to an autopsy. The autopsy report cited double exposure to chloroacetophenone, an active chemical in tear gas, and capsaic in fumes, the pungent ingredient in pepper spray, as contributing causes to her respiratory failure, according to the lawsuit.

A wrongful death case ensued.

Judge Kidd's Ruling:

Judge Kidd found the police 50% at fault and the tear gas manufacturer 50% at fault. The basis for the claim against the tear gas manufacturer appeared to be failure to warn and breach of warranty. Total damages were $2.2 million. But with the City 50% at fault, the tear gas manufacturer (Combined Systems) owes $1.1 million. The City settled before trial.

Chris Graves of Jackson represented the plaintiff. David Curtis of New Orleans represented the defendant.

My Take:

This is an example of why Barney had to keep his bullet in his shirt pocket on The Andy Griffith Show. Bad things can happen when you give weapons to some idiots policemen.

The cops used tear gas in a private home and then sent the residents back in and left? Those cops were the kind of guys who use the light of a match to see if the gas tank is empty.  

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Patsy Brumfield wrote an excellent article about retiring U.S. Magistrate Judge Jerry Davis that ran in Saturday's Northeast Mississippi Daily Journal. Here is a link to the article.

The article provides a biographical profile on Judge Davis. Regarding his Magistrate position, the article states:

He describes the career he's about to leave as "the best job in the federal judiciary," so long as you're in north Mississippi.

By that, he means that magistrate judges here aren't treated like the "B Team" as may be the practice in some other districts. Here, they have broad powers and preside over all types of cases in tandem with a district judge.

"They want us to do as much as we can," he said of the district's judges, Mills, Sharion Aycock and W. Allen Pepper, along with senior judges, Neal Biggers and Glen Davidson.

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On Monday night at 8:00 p.m., the documentary Hot Coffee airs on HBO. You can watch the official trailer for the movie below. The film analyzes tort reform in the U.S.

In addition to the famed McDonald's spilled-coffee verdict, the movie covers Mississippi Supreme Court elections and the prosecution of former Mississippi Supreme Court Justice Oliver Diaz. John Grisham, Justice Diaz and Jackson lawyer Rob McDuff are all shown in the trailer.

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On Wednesday the West Virginia Supreme Court upheld West Virginia's legislative damages caps. Here is the opinion in MacDonald v. City Hospital, Inc. One of the plaintiff's lawyers in the case was Robert Peck, who argued for the plaintiff last week in the Sears v. Learmonth case at the Mississippi Supreme Court.

This is not good news for people hoping that the Mississippi Supreme Court will strike Mississippi's caps in the Sears case.

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Here is all the information that I've been able to obtain on the recent jury verdict in Pearl River County.

Reportedly, there were 12 plaintiffs. The defendant was Mitchell Crane Services. The case involved personal injuries sustained in 1999. But I do not know what kind of case it was. The trial was bifurcated. The liability phase was tried in 2005.

A couple of weeks ago, a jury awarded total damages of $2.3 million in the damages phase. The largest amount was $1.3 million and went to a woman with $755,000 in medical expenses. Two other plaintiffs were awarded less than $2,600.

Mitch Tyner of Jackson represented the plaintiffs. Bill Whitfield with Copeland Cook's Gulfport office represented the defendant.

My Take:

Not enough information here for me to have a take on the case, so I'll reminisce about Pearl River County.

A community South of Poplarville called Derby was like a second home to me growing up. My parents were from there and both sets of my grand-parents lived there.

Probably my earliest memory as a child are a few snippets from riding out Hurricane Camille in the Derby Baptist Church.

When I was a young child, it was a big deal to get to go to “town” (Poplarville). This was back before the influx of people from Louisiana into Pearl River County. It was small, very rural and very conservative. It has a different feel today, even though I suspect that it is still very conservative. 

It does not seem that long ago. But now, both my parents and all four grandparents are gone and buried in Poplarville cemeteries. The only time that I go to Poplarville now is for funerals or to visit the cemetery.

I have always wanted to try a case in the Pearl River County Courthouse in Poplarville. At this stage of my life, it would be an emotional experience for reasons not readily apparent to others in the courtroom.     

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On Thursday a unanimous Mississippi Supreme Court reversed and remanded a 2009 Rankin County defense verdict based on the trial court's refusal to allow attorneys representing different wrongful death beneficiaries to separately question witnesses during trial. Here is the Court's opinion in Dooley v. Byrd. 

Facts:

The case involved the death of two-year-old Jonathan Dooley, who was killed when the car driven by his mother collided with a trailer owned by the defendants. The facts of how the accident happened were disputed and not germane to the Court's opinion. (I know… “the G.D. Germans got nothing to do with it”—Sheriff Buford T. Justice).

Dooley had 5 wrongful death beneficiaries. Jackson lawyers Don Evans and Jim Smith (former Chief Justice of the Miss. Supreme Court) represented 3 of the beneficiaries, including Jonathan's mother. William Fulgham represented the other two beneficiaries, including Jonathan's father.

Apparently, Jonathan's parents were separated or already divorced at the time of the accident and there was no love lost between them.

At trial, the two sets of lawyers had different theories and strategies. Rankin County Circuit Judge Samac Richardson (now retired) allowed each set of attorneys to give opening statements. The opinion states:

However, peace was short-lived when, in the second day of trial, Dewey requested the court's permission to question Byrd after Leah had completed her examination of him. 

The trial court refused, instructing plaintiffs' counsel to work together in presenting their case.

Supreme Court's Decision:

The Court agreed that plaintiffs' counsel should have been allowed to separately question witnesses. The Court also determined that there was reversible error in the jury instructions. As a result, the Court reversed the judgment and remanded the case for a new trial.

Chief Justice Waller wrote the Court's opinion. Justices Kitchens and King did not participate.

My Take:

It will be interesting to see if there are any repercussions from this opinion in other cases. For instance, will some aligned wrongful death beneficiary-plaintiffs show up with different attorneys for the strategic reason of getting two bites of the apple with respect to trial participation? How big of a mess will it be when the beneficiaries have different lawyers and can't get on the same page?

Double teaming already happens on the defense side all the time in cases with multiple defendants. You see defense lawyers play "good cop, bad cop" in the name of separate defendants. However, it's been my impression that double-teaming at trial has limited benefit and probably is a waste of time.

It will be interesting to see how this decision impacts how plaintiff lawyers try wrongful death cases. In this case it seems like it caused a big mess due to the different theories.

Incidentally, if this is the right case that I am thinking of I heard that Don Evans and Jim Smith weren't getting along at trial either—even though they represented the same beneficiaries.

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Week before last a Hinds County jury awarded Amy Smith a little over $112,000 in her lawsuit against Kroger. Here is the Clarion-Ledger article on the verdict.

Smith suffered injuries in a 2010 assault and robbery in the parking lot of the Kroger on I-55 in Jackson. Jackson attorney Ashley Ogden represented Smith. The jury apportioned 30% of the fault to Smith and 70% to Kroger.

It appears that the 30% fault apportionment to the plaintiff will reduce her recovery to less than $80,000. It's a little frustrating to see the Ledger write a big article on a jury verdict and not clarify that issue.  

As to the damages awarded:

Smith suffered injuries, including to her knee and wrist, and post-traumatic disorder, Ogden said. The jury awarded her $12,189.19 for past medical expenses, $25,000 for future expenses and $75,000 for pain, suffering and mental anguish.

Ogden believes lawsuits against this Kroger store are making the premises safer for customers:

“We just want Kroger to fix the problem in the parking lot so that the women who are shopping there don't have to be afraid of having their purse snatched or being assaulted," Ogden said.

As president of a local anticrime fighting group, Ogden said, "what we are trying to do is make these businesses aware of their responsibility in participating with us in solving the crime problems."

 

Judge Bill Gowan was the trial judge. I don't know the identity of the defense lawyer.

There were also reports circulating last week of a verdict of over $2 million in Pearl River County. That is the extent of the information that I have been able to gather about that case. That would be some verdict for Pearl River County. 

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Judge Primeaux has an interesting post today on the smell test. He opens:

Sometimes you know something ain’t right.  It doesn’t pass the smell test.

Or, as US Supreme Court Justice Potter Stewart opined, famously employing a different sense when attempting to define obscenity:  “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”  Jacobellis v. Ohio, 378 US 184, 197 (1964).

Lawyers have to know when to use the smell test and when they have to look past it.

When I started my own law firm nine years ago I had no experience as a plaintiff lawyer. I knew I could litigate a case from the plaintiff side. But I learned the hard way that I did not have the experience to do a good job screening a plaintiff case. In essence, I had no sense of smell for screening cases. The result was that I took some cases that I shouldn't have.

Nine years later after screening hundreds—if not thousands—of cases, I have a keen sense of smell. It's now common for me to reject a case that sounds promising on the surface because the case doesn't pass the smell test. Many times, I can't put my finger on why. I just know that something ain't right.

Defense lawyer friends of mine sometimes can't believe how many hours I can put into evaluating a case before rejecting it. A defense lawyer who only bills by the hour views this as a waste of time. But lawyers with experience taking cases on a contingency know better.

When the case will be on a contingency, the most important time the lawyer spends on the case is the time spent evaluating whether to take the case. Once the lawyer takes the case, she is out the plane door regardless of whether the parachute ends up opening or not.

Rick Friedman says that a plaintiff lawyer should not take a case unless he is willing to take it to trial….and lose. I agree. But I still do everything that I can to avoid that happening. Sometimes that means rejecting a case based on a gut-feeling. The proverbial smell test.

Perhaps that means being overly-cautions with some potential cases. But taking too many cases that go south is a good way to work yourself out of your law practice.

Defendants and defense lawyers, on the other hand, can put too much emphasis on the smell test. But that is a topic for another day.     

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I attended the oral argument in Sears v. Learmonth yesterday at the Mississippi Supreme Court. I counted approximately 50 people in attendance—mostly plaintiff lawyers. Given the importance of the decision, I thought that every firm in Jackson hosting summer clerks would be there with their clerks. Perhaps they did not want it to look like they support caps.

The argument lasted 90 minutes. Lawyers for both sides did a good job. Kevin Hamilton of Meridian and Robert Peck of Washington argued for the plaintiff with Peck getting the most time. Frank Citera from Chicago argued for the defense.

Justice Dickinson was the most active Justice in questioning the lawyers. By my count he interrupted lawyers from both sides 6–7 times to ask a question. His key question to plaintiff was: why is this different from tort claims or workers comp where the legislature has removed something from the jury?

A key question by Justice Dickinson to the defense was: doesn't the constitutional right to trial by jury mean more than the form of the trial?

Other justices and my ballpark count of their number of interruptions with questions (some interruptions involved a series of questions):

• Waller: 6 (3 each side)
•  Carlson:  2 (1 plaintiff, 2 defense)
• Randolph: 3 (all plaintiff)
• Pierce: 3 (2 plaintiff, 1 defense)
• Chandler: 3 (1 plaintiff, 2 defense)
• Lamar: 1 (plaintiff)
• Kitchens: 2 (defense)
• King: 0.

My guess is that Justice Dickinson is the justice who most enjoys oral argument.

 Justice Randolph cited statistics that of the states that have considered caps, 18 found them constitutional and 4 unconstitutional (Alabama, Oregon, Georgia and Washington).

Justice Chandler challenged defense counsel to cite something that found that there was a society benefit from the caps. Defense counsel couldn't.

Justice Carlson asked defense counsel if he could name a single case where the non-economic damages were too high and the trial court, court of appeals and supreme court all refused to lower the damages. Citera couldn't name one, and fell back into the practice of vague references to large verdicts in the jackpot justice days that were settled post-trial or reversed on appeal: Uh.....asbestos.......uh.......silica. Yea, Yea, silica. I remember hearing about a lot of silica nonsense.

Citera stated that he believed that in enacting the caps, the legislature responded to a perceived problem. I agree. But the perceived problem (jury verdicts too high) was not the real problem (venue and joinder problems as discussed here). Stated simply, the policy argument for caps is that we need them because some businesses think they need them—not because they really need them.

Great. We're stuck with tort reform because its proponents have brain washed a segment of society.

It's a night-light rationale. We don't leave the hall light on because our young kids really need it on. We leave it on because they think they need it on and it's not worth fighting them over.

I've given a lot of thought to whether I would make a prediction based on what I saw. I've decided that I will, but without identifying what I thought tipped the Court's hand. I will write it down and may discuss it after the Court issues an opinion.

My Prediction:

The caps stand.

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Wall Street's Most Wanted Report Securities Fraud Blog reports that on Friday a federal court jury in Virginia convicted A&O Life co-founder Adley Abdulwahab for his involvement in the $100 million A&O Life fraud scheme.

According to the government's press release:

 “Today’s quick verdict found Mr. Abdulwahab guilty of a $100 million fraud and stealing the life savings of elderly retirees and hundreds of others who have seen everything they worked years for disappear,” said U.S. Attorney MacBride. “This case, involving victims in dozens of states, clearly demonstrates that a national fraud case can have real implications to everyday people. That is why we created the Virginia Financial and Securities Fraud Task Force last year to go after national cases that impact ordinary citizens on Main Street as well as Wall Street.”

“Mr. Abdulwahab participated in a $100 million fraud scheme, cheating more than 800 victims across the United States and Canada,” said Assistant Attorney General Breuer. “While lying to investors about his education and criminal history, he was off buying fancy cars with their money. Today, a jury let him know that financial crime has consequences, and that investment fraud will not be tolerated.”

“Today’s quick verdict found Mr. Abdulwahab guilty of a $100 million fraud and stealing the life savings of elderly retirees and hundreds of others who have seen everything they worked years for disappear,” said U.S. Attorney MacBride. “This case, involving victims in dozens of states, clearly demonstrates that a national fraud case can have real implications to everyday people. That is why we created the Virginia Financial and Securities Fraud Task Force last year to go after national cases that impact ordinary citizens on Main Street as well as Wall Street.”

“Mr. Abdulwahab participated in a $100 million fraud scheme, cheating more than 800 victims across the United States and Canada,” said Assistant Attorney General Breuer. “While lying to investors about his education and criminal history, he was off buying fancy cars with their money. Today, a jury let him know that financial crime has consequences, and that investment fraud will not be tolerated.”

Five individuals have pleaded guilty in connection with the A&O fraud scheme: David White, the former President of A&O; Brent Oncale, former vice president of A&O; Russell E. Mackert, an attorney for A&O; Eric M. Kurz, a wholesaler of A&O investment products; and Tomme Bromseth, an A&O sales agent in the Richmond area.

A jury convicted Christian Allemindinger in March. The Houston Chronicle reports that sentencing will be in September.

My Take:

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The oral argument in Sears v. Learmonth is scheduled for tomorrow at 10:00 a.m. in the en banc courtroom at the Mississippi Supreme Court. This is the case where the 5th Circuit Court of Appeals certified the issue of whether Mississippi's non-economic caps is constitutional.

Each side is allocated forty-five minutes to argue. Should be interesting.

In the last few weeks, I've talked to people who believe that the Court will uphold the caps and people who believe that the Court will strike the caps. Both can make logical arguments.  Personally, I have no idea what the Court will do.

It's even conceivable that the case could settle before the Court issues an opinion. The verdict was for $2.2 million in non-economic damages. The parties could emerge from the oral argument and decide that there is a point between $1 million and $2.2 million where they can agree to settle. 

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On Friday June 17, 2011 at 2:00 p.m. I will be speaking about the use of blogging in a law practice at a Univ. of Miss. CLE program in Jackson. Here is a link to the program.

I will try to impart some of what I've learned from my now 2+ years of legal blogging. Topics will include the most frequent questions I get from lawyers about this blog: (1) how do I find time to blog; (2) do I get any business from blogging; and (3) who is Kingfish? I will also identify mistakes I've made and lessons that I've learned in blogging.

Before my presentation Will Manuel of Bradley Arant in Jackson will speak about using Facebook and the Twitter in your practice. I currently use neither, so maybe Will can get me fired up about those aspects of social media.

Following my presentation, Miss. Bar General Counsel Adam Kilgore will take the podium and identify the ethical pitfalls of following the advice given by me and Manuel.

I will also be speaking Friday morning at 10:00 a.m. to a Mississippi Bar Litigation Section meeting. Jimmy Wilkins of Watkins & Eager and I will talk about Social Media and Jurors.   

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On Thursday the Mississippi Supreme Court ordered that Chancery Judge Talmadge Littlejohn of New Albany be publicly reprimanded and fined $100 for jailing Oxford lawyer Danny Lampley for refusing to say the Pledge of Allegiance in his courtroom. Here is the Clarion-Ledger article on the case. Here is the Supreme Court's opinion. Chief Justice Waller wrote the Court's unanimous opinion.

I previously wrote about the incident here, here and here.

The Court accepted the recommendation of the Mississippi Commission on Judicial Performance. The Commission found that Judge Littlejohn violated several Canons of the Mississippi Code of Judicial Conduct. The Court found that Judge Littlejohn's actions injured the integrity and independence of the judiciary and damaged public perception of the judiciary.

To his credit, Judge Littlejohn admitted his misconduct and cooperated with the Commission.

My Take:

The Commission and Supreme Court handled this matter very well. I hope that Judge Littlejohn was just having a bad day and that this incident does not reflect his judicial temperament.

Back when this happened people were debating what would happen if a spectator refused to stand when a judge entered the courtroom. I saw this happen in December in a federal court trial on the Coast before Judge Guirola. After it happened a couple of times, Judge Guirola insisted that spectators stand as a show of respect to the court and the judge's position. He said that spectators didn't have to personally respect him, but they did have to respect the Court and the position.

I thougt that Judge Guirola handled the matter very well, but it was un-comfortable.

The worst thing about it was that the spectator—who was not connected to the parties or attorneys—sat behind my counsel table. Tim Holleman of Gulfport was one of the opposing attorneys. I did about the only thing I could in that situation: asked the lady to please move and sit behind Tim.

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Union Carbide wants Smith County Circuit Judge Eddie Bowen to recuse himself from hearing further proceedings in the inexplicably massive asbestos verdict rendered last month. Here is Union Carbide's motion.

Union Carbide points to the fact that Judge Bowen's father settled an asbestos case with Union Carbide 20 years ago. Union Carbide figured this out after the trial based on an investigation instigated by Judge Bowen's comments about his father during trial.

 According to Union Carbide, this creates a blatant conflict of interest that requires Judge Bowen to recuse himself. Significantly, during voir dire Judge Bowen struck for cause all panel members who themselves or their immediate family members had ever asserted an asbestos claim.

My Take:

It's a well-written motion. Perhaps a little heavy on the use of text in the footnotes, but that is a matter of personal preference. I use more footnotes than most lawyers. But I mostly use them for citations. Legal writing guru Brian Garner contends that citations in the body make pleadings and briefs harder to read.

I can see Union Carbide's point. But the fact that the settlement was 20 years ago and Judge Bowen allowed nine days of voir dire weigh against recusal.

The motion goes slightly over the top at times. Using professional wrestling terminology, the motion's reference to the elder Bowen's case being filed by “the law firm of 'Dickie Scruggs, P.A'.” invokes 'cheap heat.' It would be like the 'villain' in a wrestling show in Oxford taking the mike and saying Ole Miss sucks and Miss. State is the best school in Mississippi. That would be cheap heat.   

There was no such thing as “Dickie Scruggs, P.A.” Scruggs didn't refer to himself as “Dickie” and a review of the Secretary of State's corporate records confirms there was no entity by that name. It's my understanding that 'Dickie' was a nickname for Scruggs used by some of his closest friends and people who didn't know him at all. I guess saying “Richard F. Scruggs P.A.” just didn't have the same ring to it.

Apparently, we're in a period of Scruggs cheap heat references. Like in the Madison County Journal article that I discussed in this post. These references to Scruggs appear forced and a bit silly.

Strategically, Union Carbide is in an interesting position. Do they really want another judge assigned to the case who is more likely to order a new trial? Does Union Carbide really want a new trial in Smith County before its appeal to the Mississippi Supreme Court? I don't think I would.

What Union Carbide could be doing is trying to knock Judge Bowen out from hearing its other cases in Bowen's circuit and any re-trial of the Smith County case after an appeal.

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Good news litigants! The Sun-Herald reports that Hancock County has repaired its acoustically challenged courtroom. The paper reports:

Acoustical experts found the reverberation in the courtroom lasted three to seven seconds, nearly four times longer than was needed. New carpet and seat covers were placed in the audience section of the courtroom. A new layer of acoustical panels was added to the walls to absorb sound. Officials say the reverberation has been reduced to about 1.25 seconds.

I have no idea what that means. But I'm glad they fixed the problem.

It is a beautiful courtroom. Unfortunately, before the repair it had the worst acoustics of any courtroom—and perhaps any room at all—that I've ever been in.

For previous posts on the courtroom see here and here.

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On Saturday a Hinds County jury returned a $750,000 verdict in a nursing home case involving Manhattan Nursing and Rehab. Center in Jackson. I believe that Manhattan is part of the Tara Cares chain. All the damages were non-economic damages.

The case was a wrongful death case involving Mannie Williams, aged 87. Ms. Williams fell and suffered a fractured pelvis at home. She went to Manhattan for short term rehab. with a plan to return home. While in the nursing home, she suffered multiple pressure sores, also known as bed sores. The pressure sores included a stage IV sacral (tailbone area) wound that became infected and caused Ms. Williams' death.  

Stage IV pressure sores are serious injuries. If you doubt the severity of a stage IV sacral pressure sore, go to google images and search “stage iv sacral pressure sore.” But don't do it right after a meal. Wikipedia has a good explanation of pressure sores here. Pressure sores are usually preventable with regular turning.

The case was tried before Judge William Gowan. The trial started on Wednesday and ended on Saturday.

Eric Stracener and Andrew Neely of Jackson and Jake Adams of Brandon represented the plaintiff.

Davis Frye, Barry Ford and Brad Moody with Baker Donelson in Jackson represented the defendant. 

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There was a $750,000 jury verdict returned on Saturday in a nursing home case in Hinds County Circuit Court. Judge Bill Gowan was the trial judge. I will have a full report on Tuesday.

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A definition of 'propaganda' is “information, especially of a biased or misleading nature, used to promote or publicize a particular cause or point of view.” Last week's Madison County Journal's editorial supporting tort reform damages caps meets this definition. 

Here are some of the gems from the editorial followed by my explanations:

Since tort reform, medical liability insurance premiums have decreased more than 60 percent.

Since tort reform, there has also been a severe recession with record unemployment that was caused by some of the business interests who campaigned for tort reform. But we gave those companies a taxpayer funded bailout and let them return to business as usual.

Also, medical liability insurance premiums decreasing by 60% wasn't caused by damages caps. It was caused by the Mississippi Supreme Court's eliminating Mississippi's mass-joinder law that allowed thousands of plaintiffs to be joined in a single suit.

By removing the incentive of extreme verdicts with exorbitant attorney's fees, Mississippi no longer attracts thousands of out-of-state plaintiffs clogging our judicial system.

Once again, the paper is crediting tort reform for something caused by the Supreme Court's elimination of mass-joinder.

Incidentally, I have never once seen an actual lawyer quoted as saying that caps are responsible for eliminating out-of-state plaintiffs as opposed to rulings by the Miss. Supreme Court. So where is the Journal getting its information? Haley Barbour press releases?

 And when we wonder why all too often the judiciary did not throw out frivolous lawsuits and sanction attorneys for filing them, we simply think back to the words of Dickie Scruggs when he said "the judiciary is elected with verdict money."

The reference to Scruggs doesn't really fit the editorial. But Scruggs was a plaintiff lawyer who went to jail, so they needed to work him into the piece.

Mississippi can't afford a return to "jackpot justice."

How exactly would throwing out the caps return Mississippi to the jackpot justice days? They don't say. They just trust that ole Haley wouldn't steer them in the wrong direction on this.

The fact of the matter is that lifting the caps would not return Mississippi to the jackpot justice days. Those problems were caused by the mass-joinder law, venue law that no longer applies, Mississippi law that required defendants to post a bond of 125% of a judgment in order to appeal and less than 5 state trial court judges who were not doing their jobs. None of these problems exist anymore and none were affected by caps.

How do I know I'm right on this? First, have you ever noticed that none of these pro-tort reform articles ever quote a lawyer or legal expert such as a law school professor? Not even defense lawyers who campaigned for tort reform. Ever wondered why? Go back to the definition of propaganda and think about it. 

Second, since med-mal caps were passed in 2002 and non-economic caps in other cases were passed in 2004 there has not been a single case where the Mississippi Supreme Court had to rule on the constitutionality of the caps. That tells you how few and far between are cases where the caps actually apply.

Tort reform proponents ignore the fact that both the trial court and the appellate court can reduce damages awards that are out of line based on the facts of the case. In the last seven years the Mississippi Supreme Court has reversed most plaintiff verdicts, regardless of the verdict's size. The Court has affirmed some plaintiff verdicts since Alex Alston wrote his article a few years ago pointing out this fact. But plenty of verdicts are still being reversed.

I don't know what the Supreme Court will do with the caps issue. But I do know that there are smart justices on the Court. I'm sure they know that tort reform honks are taking the credit for eliminating jackpot justice that should go to the Court. So whoever the pro-tort reformers are trying to fool, it's not fooling the nine justices who will actually decide the issue.  

Here are my prior posts on tort reform.

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Here is a brief update on what is going on with the A&O Life criminal defendants:

• Adley Abdulwahab: trial set for June 7, 2011
• Christian Almendinger: sentencing August 12, 2011
• Brent Oncale, Russell Mackert, Eric Kurz, Tommy Browseth: sentencing July 22, 2011

I can't imagine Wahab actually going to trial. But I hope that he does, since a conviction at trial may carry a longer sentence than a guilty plea.

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The June issue of the Mississippi Jury Verdict Reporter was emailed earlier this week. This edition includes 8 jury verdicts from 2011.

Four of the eight verdicts were defense verdicts. One of the defense verdicts was my recent losing effort in a medical malpractice trial in federal court in Aberdeen. 

Of the four plaintiff verdicts, only one was a personal injury case. That was the $1 million Hinds County med-mal verdict that I reported in this post. 

The other 3 plaintiff verdicts were:

• the $1.17 Yazoo County shareholder dispute reported in this post;
• a $212,900 federal court verdict in a Katrina negligent misrepresentation case; and
• an $80,000 Hinds County verdict in a nuisance case.

Two of the defense verdict were in personal injury cases. So to recap, there were 3 personal injury jury verdicts reported and 2 of those 3 were defense verdict.

Perhaps someone could forward this information to the Clarion-Ledger and Gannett, who want to pretend like it's 1999.

Here is my post on the May 2011 edition of MJVR.

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Gannett ran the same article on Mississippi jury verdicts in two newspapers on Sunday. The headline of the article in the Hattiesburg American was “Jury Awards Running Rampant.” Meanwhile, the headline for the same article in the Clarion-Ledger was “Jackpot awards still occur.”

The actual article opens with a softer tone:

Large verdicts still are being won here and there in Mississippi nearly 10 years after the state passed legislation capping damages jurors can award in civil cases.

I guess that is sort of true. Highly misleading. But sort of true. The key words being “here and there” with an asterisk to denote that jury verdicts don't reflect actual recoveries, if any.

The article cites a grand total of two cases. First, the Cole v. Ford Motor Co. verdict that I discussed a lot on this blog. The case involved the death of professional baseball player Brian Cole. The general manager for the New York Mets testified at trial that Cole was going to play in the majors. There was a $131 million verdict in the third trial and the case settled. A comment to one of my posts cites a rumor that the case settled for $12 million. Far south of $131 million and a reasonable figure for a pro baseball player.

Second, the $322 million Smith County asbestos drilling mud verdict that I discussed here and here. The article quotes Raleigh lawyer Gene Tullos, who represented the plaintiffs at trial. I have heard that the plaintiffs asked for far less in damages than was actually awarded. The verdict is being chalked up to the Gene Tullos Smith County phenomenon.   

The article goes on to state that the defendant does not expect the verdict to stand on appeal:

Union Carbide has confidence in the Mississippi appellate courts and believes - without hesitation - That this verdict will be completely set aside by post-trial motions or through the appellate process," company spokesman Scot Wheeler said.

"While the case lacks any merit, by just applying the applicable damage limitations, the total award against Union Carbide should be reduced to substantially less than $1 million."

Union Carbide's confidence is well placed. The chances of that verdict getting affirmed on appeal are less than zero.  

As I have discussed previously, plaintiffs are getting crushed in trials in Mississippi. Jury awards are not “running rampant” and any verdicts that are out of line get reversed by the Mississippi Supreme Court. The fact of the matter is that anyone who gets a verdict out of a Mississippi jury and then gets that verdict paid or affirmed on appeal has earned it and deserves it.

The thing that bothers me about this newspaper article is that it sends a message that is wrong. Perhaps intentionally. Perhaps not. Lawyers and judges know that juries are not running rampant, but the general public doesn't.  

The article misses the real story. Why is there a $322 million verdict coming out of Smith County, which looks ultra-conservative on paper? Why are there so many large verdicts coming out of Judge Billy Joe Landrum's courtroom? Those are interesting questions that would make for a good story. But the Gannett article misses those questions on its way to a shallow article with misleading hysteric headlines.