2011 Mississippi Litigation Year in Review (Part 2: July-December)

Posted on December 23, 2011 by Philip Thomas

Yesterday I provided a recap of the big stories on this blog during the first half of 2011. Today we look at the second half of the year.

July

August

September

October

November

December

All posts dating back to 2009 are available on the Archives page of this site. I remember some posts that I wrote years ago like it was yesterday. Others I barely remember at all.

I hope you enjoy reading this blog. It should be around for at least another year.

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2011 Mississippi Litigation Review Year in Review (Part 1: January-June)

Posted on December 22, 2011 by Philip Thomas

With the holidays upon us and 2011 coming to a close, here is a look back at the top legal stories of the year reported on MLR.

January

February

March

April

May

June

Tomorrow I will review July-December.

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Miss. Court of Appeals Affirms Defense Verdict in Toyota Motor Vehicle Products Liability Case

Posted on December 21, 2011 by Philip Thomas

Last week the Miss. Court of Appeals affirmed a 2008 Hinds County defense verdict in Clark v. Toyota Motor Sales. Here is the Court's opinion. 

The basis of the case was a 2001 auto-accident in DeSoto County involving a Toyota truck. Part of the appeal centered on Toyota's exemplar truck that Judge Winston Kidd allowed jurors to view in front of the courthouse.  

Wayne Ferrell and a bunch of other lawyers represented the plaintiffs. David Ayers and other Watkins Eager lawyers represented Toyota.

Judge David Ishee wrote the Court's unanimous opinion.

My Take:

This is an example of the fact that it's common for defendants to win civil cases in Hinds County. Usually it's the big plaintiff verdicts that make the paper. But defendants win trials in Hinds County all the time.

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$4.6 Million Med-Mal Verdict Settled Before Court of Appeals Affirmed Verdict

Posted on December 20, 2011 by Philip Thomas

Last week I wrote about the Mississippi Court of Appeals affirming a $4,691,000 verdict against Baptist Hospital in a wrongful death case. I later heard that the case actually settled a few weeks before the Court issued its opinion. It's my understanding that the case settled for an amount in the neighborhood of $2.8 million.

The Court of Appeals docket shows that two days after the Court issued its opinion, the parties filed a joint motion to dismiss appeal and a motion to vacate the Court's opinion.

 To review, here is the chronology:

  • 2000:                 alleged medical malpractice occurred
  • 2001:                 lawsuit filed
  • June 2009:          $4,691,000 verdict
  • late Nov. 2011:    case settled for approx. $2.8 million
  • Dec. 13, 2011:     Court of appeals affirmed verdict.
  • Dec. 15, 2011:     joint motion to vacate appeal.

It's interesting that Baptist settled the case 11 years after the incident occurred—but 2 weeks before the Court issued an opinion affirming the verdict.

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Nationwide Ins. Co. Wins Federal Court Dec. Action-Bad Faith Trial

Posted on December 19, 2011 by Philip Thomas

On Thursday a Jackson Division federal court jury returned a verdict for Nationwide Insurance Co. in a dispute with an insured. Here is the verdict in Nationwide v. Doolittle.

Here is Nationwide's Dec. Action Complaint. Nationwide alleged that the Doolittles made material misrepresentations in their fire-loss claim regarding the contents of their home. 

Here is the Doolittle's Answer and Counterclaim, in which the Doolittles alleged bad faith.

Judge Dan Jordan presided in the case. Jason Bush, La'Verne Edney and Wes Mockbee with Baker Donelson represented Nationwide. Lance Stevens and Rod Ward of Jackson represented the Doolittles.

On a somewhat humorous note, the Doolittles were reportedly observed giving the Baker Donelson lawyers the bird in the parking lot after the trial.

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Chancellor Gene Fair Appointed to Court of Appeals

Posted on December 16, 2011 by Philip Thomas

Gov. Barbour appointed Chancellor Gene Fair of Hattiesburg to the Mississippi Court of Appeals on Wednesday to fill the term of the retiring Judge William Meyers. Here is the Clarion-Ledger article on the appointment. Judge Fair has served as a chancellor since 2007 of the district that covers Forrest, Lamar, Marion, Pearl River and Perry counties.

I have not appeared before Judge Fair and do not know him. But for some reason, he sounds fair.   

I strongly favor former chancellors holding some of the seats on the Court of Appeals and Supreme Court. Chancery court law is often a lot different from Circuit Court law—as I am often reminded when I have to venture into chancery court.

It makes sense to have former chancellors on the appellate courts. I have heard numerous lawyers express similar sentiments over the years. 

And how can you do better than a judge named Fair? If I were him, my campaign slogan would be: "Keep it Fair." 

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PERS Study Commission Recommendations Don't Go Far Enough

Posted on December 15, 2011 by Philip Thomas

Governor Barbour's PERS Study Commission released its report yesterday. JJ has the video and data helpful to analyzing the situation. There is also commentary at Cottonmouth and Ya'll Politics.

Although I often disagree with the commentary at Ya'll Politics, this statement is dead on:

What the Legislature will do with these recommendations is anyone's guess. But burying our heads in the sand isn't the answer; we must begin to eat this elephant and find a way out of our current situation.

The solution is definitely not to kick the can down the road for 5 years as suggested by Democratic Senator Hob Bryan. That would be a weak self-serving move that would make the problem worse in the long run.

Fact is, the PERS Commission's recommendations don't go far enough. There will always be shortfalls as long as the underlying investment returns assumption is inflated and unrealistic. The current assumption is 8%. The commission recommends reducing the assumption to 7.5%. Problem is, the actual average return for the last 10 years was 5.41%—still 2% lower than the recommended assumption.

Who really believes that the stock market it going to perform much better over the next 10 years than it did over the last 10 years? Hell, it could even perform worse. In 2001 the world was not confronting a spreading sovereign debt crisis that will force governments world wide to cut spending. 

The world in 2001 was also not confronting the current oil supply crunch where every time it looks like the economy gets going, oil prices spike causing the economy to stall. There is no solution to the oil supply crunch because demand is increasing in emerging economies as fewer countries export oil because of increased domestic consumption and the depletion of existing oil fields.    

This is a “Houston, we have a problem” moment in the world, U.S. and Mississippi. Ignoring the problem is not the answer. Does it suck for PERS participants? Absolutely. Is it unfair? You bet. But cuts are going to have to be made. And the sooner they start cutting, the smaller the cuts will have to be.

Now is the time for leadership among Mississippi politicians—particularly Republicans since they are in control. Will they step up and make hard decisions on tough issues like PERS? Or will they pander to the far right and pass embarrassing legislation on social issues and pass laws to help CEO's? We're about to find out.

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Mississippi Court of Appeals Affirms $4,691,000 Jury Verdict Against Baptist Hospital in Wrongful Death Case

Posted on December 14, 2011 by Philip Thomas

On Tuesday the Mississippi Court of Appeals affirmed a $4.6 million Hinds County jury verdict in Miss. Baptist Health Systems v. Kelly. Here is the Court's opinion. This was the appeal of a 2009 trial that I wrote about in this 2009 post.

This was a pre-tort reform cap case. Ellen Kelly died as a result of exposure to latex during a surgery procedure at Baptist Hospital in Jackson. A form from an earlier surgery procedure indicated that Ellen was allergic to latex. The jury rendered a verdict against Baptist, but exonerated the doctor defendants.

The awarded damages were:

  • $29,604.52– funeral and medical expenses
  • $992,109– loss of household services
  • $1,415,880– lost wages
  • $2,253,065.48– pain and suffering

A big part of Baptist's appeal seemed to center on the fact that the jury exonerated the doctor-defendants, who also had a duty to take a proper history from Ellen. The Court rejected the argument finding that the doctors and nurses had a separate duty.

Baptist also complained because the trial court did not allow the jury to apportion fault to an anesthesiologist. I can't tell for sure, but Baptist may have been trying a version of the sneaky finger-pointing defense that I talked about in this post. The Court rejected this argument because there was no testimony suggesting that the anesthesiologist deviated from the standard of care.

Judge Ishee wrote the majority opinion. Judge Maxwell wrote a specially concurring opinion. Judge Carlton dissented based on her assessment that the plaintiff did not prove medical causation.

Joey Diaz, Christopher Williams and Dennis Sweet represented the plaintiff. Mike Wallace and a bunch of other lawyers from Wise Carter represented Baptist. Judge Winston Kidd was the trial judge.

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Miss. Supreme Court Reverses and Renders $3.72 Million Hinds County Jury Verdict Against Trustmark in Banking Dispute

Posted on December 13, 2011 by Philip Thomas

On Thursday the Mississippi Supreme Court reversed and rendered a $3.72 million jury verdict in Trustmark National Bank v. Roxco Ltd. Here is the Court's opinion.

Facts:

Roxco was the general contractor on several state construction contracts. State law requires 3% of the cost of construction to be retained to ensure completion, but allows the contractor to access the retained amount by depositing other acceptable security. Based on this statute, Roxco deposited $1,055,000 in securities with Trustmark.

Roxco defaulted and the State instructed Trustmark to transfer the funds to the state treasury account. Roxco told Trustmark not to. Trustmark transferred the funds pursuant to the State's instructions.

The Lawsuit:

Roxco sued Trustmark for breach of contract and conversion in Hinds County Circuit Court. Trustmark defended on the basis that Miss. Code Ann. § 31–5–15 permitted the release of the funds.

The trial court did not grant Trustmark judgment as a matter of law based on the state statute. In February 2009 a jury found for Roxco and awarded it $3,720,000 in damages.     

Chris Shapley and Trey Jones with Brunini represented Trustmark. James Bobo and Precious Martin represented Roxco. Judge Tommie Green presided in the trial court.

The Court's decision:

A unanimous Court agreed with Trustmark that the statute allowed Trustmark to transfer the securities to the State. As a result, the Court reversed the trial court and rendered. Justice King wrote the Court's decision.

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$250,000 Verdict in North Mississippi Federal Court Excessive Force Trial

Posted on December 12, 2011 by Philip Thomas

On November 16 a Western Division North Mississippi Federal Court Jury returned a $250,000 verdict in an excessive force case in Wilson v. Desoto County.

Here is the Pre-trial Order, which shows the parties' factual contentions. Plaintiff was arrested for DUI in 2009 and brought to the Desoto County jail with his girlfriend. Plaintiff alleged that Sheriff's Department personnel beat him after he told his girlfriend that she could request that she be searched by a female officer. Plaintiff's injuries included an orbital (eye socket) fracture.

The Defendants contended that the officer in question “tripped over his own feet while trying to restrain Wilson” and they fell to the floor. 

The jury found for the plaintiff against Desoto County and the tripping attacking officer. Here is the jury's verdict. Here is the judgment.   

Phillip Stroud and Brandon Flechas of Southaven represented the plaintiff. Daniel Griffin and Michael Carr of Cleveland represented the defendants. Judge Neal Biggers presided in the case.

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December Edition of Mississippi Jury Verdict Reporter Details 12 Miss. Verdicts

Posted on December 8, 2011 by Philip Thomas

The December edition of the Mississippi Jury Verdict Reporter hit news-stands last week with details on 12 Mississippi verdicts. The edition included details on the following verdicts:

  1. $2,862,920 Forrest County verdict (August) that I had minimal info. on in this post;
  2. $1,213,300 Hinds County verdict (September) in a nursing home case that I mentioned in this post;
  3. defense verdict in a Leflore County medical malpractice bench trial;
  4. $388,000 federal court verdict in race discrimination case in November that I discussed here;
  5. $1 million Jones County verdict (but 25% fault to defendant) in mesothelioma case;
  6. defense verdict in November federal court premises liability trial;
  7. defense verdict in Pike County medical malpractice trial in September that I covered here;  
  8. defense verdict in Hinds County medical malpractice trial in October that I mentioned here;
  9. defense verdict in July Rankin County construction negligence trial;
  10. defense verdict in October federal court race discrimination trial;
  11. directed verdict in October Jackson County medical malpractice trial;and
  12. $265,000 verdict in September Forrest County trial in a car wreck case.

The edition also notes that next month it will publish a Year in Review issue with a complete summary of Mississippi jury trial litigation, sorting results by case type, county, region, judge, and attorney. That should be a great resource.

My Take:

Read between the lines and this edition was horrible for plaintiffs. The defedants won outright 7 of the 12 trials. There isn't sufficient insurance coverage in the big Forrest County verdict. Tort reform caps will presumably reduce the Hinds County nursing home verdict. The 25% fault in the Jones County meso. trial should reduce defendant's liability to $250,000–-if they don't appeal. 

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Another PERS Bombshell: Funding Level Drops Again, More on the Unrealistic Investment Returns Assumption

Posted on December 7, 2011 by Philip Thomas

Kingfish with Jackson Jambalaya dropped another PERS bombshell yesterday in this post. JJ links the latest PERS actuary report, which states that PERS' funding level has dropped to 62.2%. The post includes a lot of relevant data regarding PERS. 

I found these figures to be particularly frightening:

Asset allocations:
47.8% in US equities
25.4% in debt securities
4.6% in real estate
19.5% in non-US equities

That is a very aggressive asset allocation, with almost 70% invested in stocks and only 25% invested in bonds (I am assuming that “debt securities” are bonds). Having 70% invested in the stock market is great in years where the market rises dramatically. But in bad years—years like 2008 (-8.2%) and 2009 (-19.4%)–-investment performance gets killed.

More importantly, the growing global sovereign debt crisis means that future growth of the world economy—and the stock market that follows the economy up and down—is far from a sure thing. The world borrowed its way into the current debt crisis. The bill is now due in Europe and will be due here in the U.S. soon. That means more bad years in the stock market and fewer great years. And the great years the market does have will likely be on the heels of a horrendous year.   

The bottom line on this is that Mississippi is playing Russian Roulette with the stock market. Russian Roulette is dangerous. Currently, PERS is dangerous. 

I previously wrote here and here that the PERS 8% investment assumption is not realistic. A passage from the Chris Martenson book The Crash Course explains why unrealistic investment assumptions are so dangerous:

State and municipal pensions are in horrible shape, and in 2010 were found to be underfunded by $3 trillion and more than $500 billion, respectively. This happened for two reason. First, various governmental administrations regularly made the decision to defer funding of these promises until some later date….Second, the plan administrators were allowed to make absurd projections of future rates of return sometimes as high as 11 percent per year. These were clearly not achievable, yet the assumptions remained in place. The attractiveness of this practice is that the higher the assumed rate of return, the less money had to be placed into the account.

*****

The problem with using such wrong assumptions is that instead of working for you, compounding works against you. Even a slight miss in returns a few years back will mushroom into a very large future shortfall. That's just how compounding works, and that's exactly where hundreds of underfunded pension plans now find themselves.

Mississippi is one of those pension plans. This is something that will have huge and profound ramifications in our State in the coming years. One day soon this will be the biggest news story in Mississippi.

State political leaders are going to have to deal with the problem—and the sooner the better. They don't want to because there are only two solutions, both of which will make people mad: (1) require higher contributions from participants; and (2) reduce benefits. That sucks, but that's how it is. The Republican leadership needs to step up and start dealing with this problem in January. The longer they wait the greater the political backlash will be when PERS blows up.  

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Miss. Supreme Court Reminds Trial Lawyers Not to Violate the Golden Rule

Posted on December 6, 2011 by Philip Thomas

The Golden Rule is moral of reciprocity that states that a person should treat others as the person would like others to treat him or her.  

Trial lawyers think of the Golden Rule a bit differently. For lawyers, the Golden Rule is more like: don't invoke the Golden Rule, for God's sake. The Supreme Court reminded trial lawyers why this their Golden Rule last week in Holliman v. State. The Court unanimously reversed a murder conviction and remanded the case for a new trial because the prosecutor repeatedly violated the Golden Rule.

The Court's opinion quoted the violation:

In the statement that [Brian Holliman] gave on October 29th . . . this defendant admitted – I believe the exact words in the statement are: I purposely pointed my shotgun at Laura-Lee Holliman. He purposely pointed a loaded shotgun with the safety off and his finger on the trigger at another human being. I grew up with guns. And I’m not one to play with them. If I did not have the respect with them that I do, then perhaps it would have been a dramatic thing for me to take that shotgun over there, open the breach, and walk in front of the jury and point it at each and every one of you. What would you have felt if I had done that, Ladies and Gentlemen?

[Brian’s counsel objected and was overruled.]

Let’s change that a little bit. Let’s say that I took a round and put it in the chamber and then walked before you, once again pointing it at each and every one of you, with the safety off and my hand not on the trigger, how would you feel? Would you squirm? You think you might duck? Let’s suppose that I take that loaded shotgun, I point it at you in your face, and I knock the safety off. I still don’t have the finger on the trigger. 

[Objection was continued by Brian’s counsel, and again, overruled.]

How would you feel then? Would you feel threatened, Ladies and Gentlemen? Would you think that I was irresponsible or worse? Would you feel the danger and the presence of it? Let’s say that I put the round in the gun, and I take the safety off, and I put my finger on the trigger, and I point it at you as I come down this line. You’d be outraged. And you should be. Because what I’m doing when I do that is creating a situation that fatal consequences may very likely occur. 

The Court quoted a 1993 opinion that described violation of the Golden Rule as inefficient, ineffective and unprofessional.

Justice King wrote the Court's opinion.

My Take:

I will never forget when I learned the Golden Rule. I was a rookie defense lawyer and started using it in the closing of my very first trial. The plaintiff's attorney objected and the judge quickly sustained the objection and looked at me like I was a moron. After I finished the closing, a veteran lawyer watching the trial explained it to me. My response: “Really?” Of course I was mortified that I had not known this.

Occasionally, I will talk to a young lawyer who doesn't know what the Golden Rule is. When I tell them, the response is usually: “Realllly?” Really. As the Supreme Court just reminded us.   

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What's Worse--Entitlements or Ignorance About What They Are?

Posted on December 5, 2011 by Philip Thomas

I've been complaining to friends for a while that it seems like many people don't understand what "entitlements" are. Many people seem to think that entitlements are solely welfare and similar programs. They don't understand that America's biggest entitlement burdens are social security and Medicare.

This letter to the editor in Sunday's Clarion-Ledger confirmed my suspicion:

Apparently this is it. It seems, the greatest country in the history is about to fall. Just at the pinnacle of its greatness, America is nearing collapse because we are giving it all away.

Shocking reports reveal that more than 50 percent of Americans are receiving entitlements. I could understand 10 percent because, rightfully so, Americans should be sensitive to the underprivileged, and infirm, but there can be no doubt the 50 percent includes the lazy and the deadbeats as well.

When did it become a source of pride to receive entitlements? In the old days, people hid the fact that they needed government assistance. The stigma of the freeloader has been removed and the government has gone to a welfare credit card.

Liberals decry that conservatives are trying to make the word entitlement a dirty word. What solution is offered by the liberals? To attack the most productive citizens in America.

In my mind, entitlements is a dirty word, and as a working middle-class, conservative who never received any entitlement whatsoever. my opinion is that many of that 50 percent have contributed nothing to the system, and, therefore, are entitled to nothing.

This guy clearly does not understand that entitlements include social security and Medicare. But even if he did get it, he would still be wrong because these programs aren't "giving it away." You have to pay into the system in order to qualify.

The following chart shows U.S. budget expenditures for 2010:

The C-L letter writer thinks that "entitlements" are only the 16% orange category of this chart. But 42% of the budget is social security and Medicare. The following chart shows the projections for these costs:

If you are a "working middle-class conservative", the entitlements of social security and Medicare are not "dirty words." They are programs that you have paid into that will provide retirement benefits and access to health care when you are old.

How much do you want to bet that the man who wrote this letter receives entitlements?

One thing this guy does get right is that America's future entitlement obligations are a huge problem. To be blunt, they can't be met. Especially with the Country spending trillions of dollars serving as the world's policeman. And, not coincidentally, sustaining a huge defense budget that makes defense contractors rich. Some would even say that making select companies money was the primary reason for America's war in Iraq.  

Entitlements are a huge issue that impact everyone. America must address the issue by, among other things, drastically cutting the defense budget. But the first step in the process should be educating people like this guy what entitlement are.  

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Remembering Governor Bill Waller

Posted on December 1, 2011 by Philip Thomas

Former Mississippi Governor Bill Waller, Sr. died on Wednesday at the age of 85. Gov. Waller served as governor from 1972 to 1976. There was a 1–term limit at the time.

In the 1960's Gov. Waller served as Hinds County District Attorney and twice tried Byron De La Beckwith for the murder of Medgar Evers. Both trials ended in mistrials. It was impossible to convict a white man for murdering a back man in Mississippi at that time, but credit Waller for trying.

I knew Gov. Waller not as a politician (I was 5 when he was elected and 20 when he last ran for office in 1987), but as a fellow lawyer. I had the pleasure of working with Gov. Waller over the last few years in a case where he represented the plaintiffs and I represented one of the defendants. We developed a good working relationship in the case and I always enjoyed talking to him. The best word that I can use to describe Gov. Waller as a lawyer is that he was a character.

As a lawyer, Gov. Waller was a character in a way that no one in my generation is or can be. There was simply no telling what he would say or do in the case. Once while his client was being deposed by a very young co-defense lawyer, Gov. Waller kept entering and leaving the conference room while the deposition proceeded in his absence. 

At one point the lawyer taking the deposition started asking questions that Gov. Waller took issue with. Now keep in mind that Gov. Waller had not opened his mouth once in the deposition and had been in and out of the room. So did he “object to the form”? Not hardly. He loudly asked “what in the hell does that have to do with anything?” The stunned lawyer tried to explain, at which point Gov. Waller made his point even more forcefully. It was classic.

At another point in the case I was trying to broker a settlement. Things broke down when Gov. Waller increased his demand. By a lot. Frustration abounded on the defense side, since we were willing to pay the earlier demand. But Gov. Waller didn't care. He insisted on the higher amount. And guess what? He got it. Every penny of it. I greatly admired the tenacity even while it was making my job hell in trying to get the case settled.

Gov. Waller's personality was a gift. The more I dealt with him, the more I understood why he was a successful politician. He had one of those endearing personalities that no matter what he did, it made you like him even more. That is a super-rare trait. He was a true character who was one of my all-time favorites in opposing counsel.       

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