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

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Once again this year the Mississippi Legislature is considering a bill that will provide a raise to Mississippi state court judges. And once again, passage of the bill is far from certain. The Legislature's failure to act on this issue is a head scratcher.

This document explains why Mississippi judges need a raise. Of note, Mississippi judges are the lowest paid in the nation by far. The low pay is causing many judges to leave the bench. 

So the hold-up must be that the State budget can't afford the raise, right? Wrong. The proposed raised would be covered by filing fees in court cases. It will not cost tax payers anything. 

I honestly have no idea why this bill does not fly through the Legislature. It's a no brainer. And the bill is supported by pretty much everyone.

So if everyone supports a bill, then the Legislature should pass it, right? Since they represent everyone and all. We'll see.

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Chancery Judge Larry Primeaux published this post about expert witnesses yesterday on his blog. The entire post is a must read, but I found this paragraph to be particularly interesting:

• If you are asked in discovery to provide the information set out in MRCP 26(b)(4)(A)(i) as to the subject matter, the substance of facts and opinions, and a summary of the grounds for opinions, you must provide a substantial enough answer to give the other side a reasonable idea of what the expert’s opinions will be and what it is that the expert uses as a basis for the opinion. If you do not timely provide that information, the testimony may be excluded, or you may be severely limited by a skimpy answer. This is important, and may be crucial to your case. If you don’t have a system in place to remind you to update and supplement your discovery well in advance of trial, you’d better come up with one for your survival’s sake.

This is interesting to me because I see a lot of the “skimpy answer” in my practice, but none of the “you may be severely limited by a skimpy answer.” It would be real interesting to see an expert's testimony limited to the skimpy answer. Lawyers who practice before Judge Primeaux are on notice that it could happen to them.    

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On Friday a federal court jury in Hattiesburg rendered a verdict for the plaintiff (Will Graves) and awarded damages of $12,251,178 in a products liability trial involving the 2008 roll-over of a 1995 Toyota 4-Runner SUV. Here is a newspaper article about the verdict.

The accident left Will Graves paralyzed from the chest down. He was 16 at the time of the accident. The jury assessed the plaintiff with 40% fault for the accident, reducing the amount of the judgment to $7,350,706. 

Here is the Complaint in the case.

Here is the jury's verdict. The verdict included the following components of damages:

• $570,000- future lost wages
• $681,188- past medicals
• $8,500,000- future medicals and life care
• $2,500,000- past and future pain and suffering, mental anguish and loss of enjoyment of life.

Judge Keith Starrett presided in the trial. The trial lasted 3 weeks and numerous expert witnesses testified for both sides.

Plaintiff's counsel were Joe Sam Owen, Ben Galloway, Rob Meyers and Dal Williamson. Defense counsel included David Ayers and Jennifer Rogers of Watkins Eager in Jackson.

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The trial in the products liability case against Ford Motor Company that I mentioned in this post two weeks ago is scheduled to resume on Monday. 

If Republican Gary Chism's “Loser Pays” legislation passes, this will be one of the last products liability cases ever tried in the State of Mississippi. Chism, who works for insurance companies even when he is not in the legislature, wants losing plaintiffs to pay defendants theie attorney's fees and expenses incurred in a trial.

When a products liability case like the one against Ford makes it to trial, the plaintiff has already avoided a mine field of summary judgment motions and the court has ruled that there is a genuine issue of material fact that needs to be decided by a jury. In other words, the defendant's case is not a slam-dunk.

In the current trial, Ford has six lawyers from three different law firms in the courtroom and another three support staff. In addition, both sides must spend hundreds of thousands of dollars in expert witness fees. Under Chism's loser pays system, a defense verdict in a trial like this would most likely force the plaintiff and her attorneys into bankruptcy.

If any plaintiffs attorneys were foolish enough to file a case against a big corporation or insurance company, the defendant would try the case even with a small chance of winning in the hopes of putting the lawyer out of business and scaring other lawyers from ever suing the company again.

If Chism's bill passes, Mississippians will have no recourse to hold manufacturers responsible for dangerous products. Corporations could ignore public safety rules with impunity. 

• A crib manufacturer sells a crib that it knows has a defect where babies get their heads caught between the rails and choke? No accountability in Mississippi.
• A drug manufacturer puts a drug on the market that it knows causes heart attacks? No accountability in Mississippi.
• A maker of household cleaning products releases a product that blows up in high heat and humidity conditions? No accountability in Mississippi.
• Ten students killed in a school bus crash caused by a bad axle installed by the manufacturer? No accountability in Mississippi.

Don't say these cases are different. They aren't. They wouldn't be viable under Chism's system, because the defendant always has a chance to win no matter what.

These are just four of innumerable examples of what can happen if the legislature passes Chism's bill. Mississippi's public policy would be “Profits over People.”          

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I've heard from a lot of defense lawyers this week about what an abomination the Republicans' "loser pays" legislation would be for the people of the State of Mississippi. My response is.....say it (play video):

Not to me. I get it. Say it to your elected representatives. Say it publicly. Don't be afraid. You can do it.

Do not tell me that you are afraid that your clients would not like it if you say it.

First, you underestimate your clients. Those in-house lawyers and insurance adjusters you work for need the legal system just as bad as you do. What exactly is it you think they would be doing if they didn't have you to manage? Like you, they are expendable. So they will not get bent out of shape if you speak up for the citizens of your state.

Second, you aren't going to have any clients if this bill passes. Look to the lawyer to your right. Look to the lawyer to your left. Look at your legal assistant and secretary. None of you will have your current job in three years if this bill passes. Entire insurance defense firms will disappear. Litigation departments of full service firms will be gutted.

Most importantly, this bill is bad for the people of this state. And you know it.

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On Monday I wrote about the Republicans' “loser pays” legislation in Mississippi. Republican sponsored “loser pays” legislation is also on the table in Tennessee, as reported in the Tennessean (a Gannett Company). Critics of the Tennessee bill state that the bill is unfair to regular folks:

Daniel Clayton, a medical malpractice lawyer in Nashville, said working-class Tennesseans and small businesses, on the other hand, might be too scared to file a lawsuit that has merit because the outcome of litigation is uncertain and they could get stuck paying the litigation fees of a company with an army of lawyers.

“If loser pays passes, it gives incredible power to insurance companies and big business because they can intimidate people and bankrupt people to make it very difficult for a family or small business to hold a corporation or insurance company accountable for wrongdoing,” Clayton said.

But unlike Republican Gary Chism's Mississippi bill, the Tennessee bill actually has provisions that go both ways:

Another bill would require a plaintiff to pay the litigation costs of a defendant if the plaintiff refused a settlement offer from the defendant only to win less than 75 percent of the settlement offer at trial. Such payments would be taken out of, and capped at, a plaintiff's award at trial. The law would similarly punish defendants who refuse a settlement offer if the plaintiff wins more than 125 percent of their settlement offer at trial.

The Tennessee bill does favor large corporations. But at least Tennessee legislators felt like they needed to add provisions that made it at least look fair on the surface. Mississippi Republicans feel no such pressure. But are we really surprised? 

No. No. And No.

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Today is Mardi Gras. I know this because my calendar says that tomorrow is Ash Wednesday. Otherwise, I wouldn't know. I miss Mardi Gras.

Growing up in Gulfport schools were closed for Mardi Gras. The parades on the Coast were fun, particularly the Pass Christian parade on Sunday and the Biloxi night parade on Tuesday.

The Mardi Gras holiday continued while I attended college at LSU. We always had a big party on a flat bed truck on the parade route in Uptown New Orleans. This was back when the drinking age in Louisiana was 18. The weather was always really nice or freezing cold. Never anything in between. 

The party started by around 8:00 a.m. and was in full force by 10:00 a.m. By noon, forget it. Because you probably weren't going to remember it.

Around dark, everyone stumbled back to their cars or started looking for rides back to Baton Rouge. It was just about impossible to get into real trouble with the cops on Mardi Gras. I knew a guy who got pulled over and was too drunk to say his ABC's. The cops let him go.

Then I get to law school at Ole Miss and they have class on Mardi Gras. What's up with that? And north of Wiggins Mardi Gras is just another work day.

Now I'm used to it. When friends or family from the Coast talk about Fat Tuesday, I almost can't believe that it's still a holiday. I have trouble remembering that just because it's in my past doesn't mean it's in everyone's past. And now that I think about it, I sort of miss it.           

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As expected, Republicans are moving forward with “Loser Pays” legislation in the Mississippi Legislature. But there is a major twist. Only some losers pay. With the Republican party controlled by big business, can you guess which ones?

Here is Representative Gary Chism's - House Bill 562. The title tells a lot: “An Act to Provide for the Payment of Costs and Expenses Incurred by a Prevailing Defendant in a Civil Action…..”

The key provisions of the bill are:

• defendants may recover the “expenses which may include time spent in preparation of defense and other legitimate expenses to the court for approval of payment from the plaintiff and the plaintiff's attorney to the defendant in the event that the decision is in favor of the defendant.”
• “If the plaintiff's attorney has a payment arrangement of a set fee or an hourly fee as his remuneration from the the plaintiff, then the attorney will have no obligation to the defendant.”

This means that big corporations that can afford to pay their lawyers by the hour can sue whoever they want without risking the loser pays provision. The poor and middle class who can only sue if an attorney will take the case on a contingency fee run the risk of having to pay the big corporation's legal fees if they lose. This would obviously force losing plaintiffs into bankruptcy.

And what happens if somebody does take on the big corporation and wins? No loser pays. The corporation gets away with just paying what it owed to get the plaintiff back to even.

Rep. Chism's proposal would turn the American civil justice system on its head in Mississippi. Not only will it kill the legal profession, it gives corporations a license to disregard safety rules whenever they want. This bill would make Mississippi the most dangerous place to live in the United States.

It will be interesting to see if the defense bar and Mississippi Bar as a whole has the guts speak out against this bill.     

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On Thursday the Mississippi Supreme Court affirmed a $150,000 jury verdict in the Humphrey County Circuit Court in City of Belzoni v. Johnson. The case was a 1983 action filed in state court.

Plaintiff claimed that she was sexually harassed by another police officer while she served on the City of Belzoni's police force. Plaintiff sued the City, the police chief and the harassing officer. The trial was in 2010. The damages verdict was for emotional damages, which the jury instructions defined as “emotional pain, suffering, inconvenience, and mental anguish.” 

The Court found that Plaintiff presented sufficient evidence to support her claims. In addition, the Court noted that Tort Claims Act notice of claim requirements do not apply to 1983 actions filed in state court.

On the issue of Plaintiff's damages, the Court found that the verdict was supported by Plaintiff's testimony that the harasser's behavior affected her confidence, self respect and dignity. She testified that the conduct offended and humiliated her and cause her to suffer chest pains, headaches and unable to sleep.

Justice King wrote the Court's unanimous opinion.

Steven Panter and Ronald Stutzman represented the Plaintiff. Stephanie Morris and Thomas Morris represented the Defendants.

My Take:

Although the opinion does not read like this was a very significant decision, it could get cited a good bit in cases where defendants complain about verdicts that include damages for emotional harm.    

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On Monday a federal court jury in Gulfport rendered a defense verdict in a slip and fall case against the U.S. Government and several other defendants. Here is the Plaintiff's second amended complaint.

The plaintiff (Robert Weisler) worked as a security officer at NASA's Stennis Space Center in Hancock County. In 2008, Weisler suffered injuries in a fall after exiting the Government Printing Office where he worked. Plaintiff alleged that the fall was due to a slippery concrete sidewalk that was defectively designed and maintained.

The trial began on February 7 before Judge Sul Ozerden. Judge Ozerden granted the government's motion for directed verdict during the trial. The jury rendered a defense verdict for the other defendants at the end of a six day trial. Here is the verdict form.  

Chad Stelly of New Orleans represented the plaintiff.

The docket lists a lot of defense lawyers in the case. Crockett Lindsey of the U.S. Attorney's Office in Gulfport represented the government. I believe that Robert Wilkinson of Dogan and Wilkinson in Pascagoula, Bill Whitfield with Copeland and Cook in Gulfport and other lawyers were involved in the trial on the defense side.

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Today's WSJ has an article about the health dangers associated with investment banking. Much of the article sounds familiar to attorneys:

Every individual she observed over a decade developed a stress-related physical or emotional ailment within several years on the job, she says in a study to be published this month.

*****

By the fourth year, however, many bankers were a mess, according to the study. Some were sleep-deprived, blaming their bodies for preventing them from finishing their work. Others developed allergies and substance addictions. Still others were diagnosed with long-term health conditions such as Crohn's disease, psoriasis, rheumatoid arthritis and thyroid disorders.

*****

By the sixth year, the participants, now in their mid-30s, had split into two camps: the 60% who remained "at war" with their bodies, and the remaining 40% who decided to prioritize their health, meaning they paid more attention to sleep, exercise and diet and set limits on how much they allowed work to consume them.

I doubt that this is unique to bankers and attorneys. My guess is that it's pervasive in all high-stress jobs including the military. Those who cannot find a balance tend to be unhealthy and miserable human beings, regardless of their supposed professional success.

But can there be real balance in a high stress job? Or is “balance” simply learning to manage the stress? These are important questions. Dr. Malcolm Kendrick concludes in his book the Great Cholesterol Con that stress—rather than high cholesterol—is the leading cause of heart disease. If true, the key questions for me are whether managing stress reduces the health risks associated with it and if so, by how much?

The answers to these questions would have a huge impact on whether I would like to practice law until I'm 80 or not past 60.  

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The February edition of the Mississippi Jury Verdict Reporter has been released. It was particularly bleak for plaintiffs in personal injury cases. Two medical malpractice trials;two defense verdicts in medical malpractice trials. One in Hinds County and the other in Jackson County.

The plaintiff “won” a Lauderdale County car wreck case. The verdict was for $9,964. The plaintiff had $10,182 in medical bills related to the wreck and needs an additional surgery that will cost $26,000.

This next one is unusual. In Hancock County, a passenger in a buggy pulled by a horse was thrown from the buggy when a car hit it. The pair in the buggy were on their way home from a big night at the American Legion bar in "the" Kiln. Plaintiff's medical bills were $12,000. The jury rendered a defense verdict for the driver of the car and a $500 verdict against the buggy driver, who was unrepresented at trial. The jury probably would have awarded more to the horse, but he was apparently not injured in the mishap.

The Reporter also provided detailed information on the following cases previously covered in this blog:

• The $654,000 Warren County slip and fall verdict (minus 50% for plaintiff's fault);
• the $771,000 verdict in the federal court Desoto County jailor firing case, involving the secret “what happens in jail stays in jail” policy;
• the $333,319 Rankin County bench verdict in a wrongful death case;
• the $50,000 federal court racial discrimination verdict in the case filed by the former police chief against the Town of Como.

There was also:

• a September 2011 Adams County breach of contract verdict of nearly $2 million in a dispute between a casino and an ATM company; and
• a $335,459 federal court verdict in Gulfport in a products liability case between two big companies where only property damage was involved.

Ten years ago, conventional wisdom was that plaintiffs were always better off in state court. When you look at the results in the last few years, I'm not sure that is the case anymore outside Hinds County and a few other state court jurisdictions.

In federal court, a plaintiff will usually resolve her case faster, have a judiciary that is more active in pushing settlement, and the verdict is more likely to be affirmed on appeal than in state court. And in conservative jurisdictions, federal court juries may be awarding more damages than state court juries, especially in personal injury cases. 

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Yesterday Tom Freeland live-blogged the oral argument at the Mississippi Supreme Court in the Pardon-gate case. I enjoyed the thread and especially enjoyed the many comments. 

After generally agreeing that Tom Fortner got the better of it at the oral argument and that the convicts will probably win, the commenters moved on to the more pressing question of who Jim Hood looks like. "Floyd Pink" stated:

Jim Hood looks like the Bad Guy owner of the Karate Studio in the original Karate Kid.

You mean this guy?

Other folks agreed.

Then "P.B. Pike" flipped Floyd, and got him agreeing that Hood looks like Conway Twitty.  

Both good choices, obviously. But neither are perfect. The Cobra Kai dude is in too good of shape and too much of a punk bad-ass to be Hood. Conway Twitty looks too much like a man who knows that he could sleep with half the women in the State of Alabama.

The debate led me to another supporting actor from an awesome 80's movie. The coach from the movie Visionquest (Charles Hallahan):

Whatever the Supreme Court decides in Pardon-gate, this debate is sure to rage for a long time.

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Lots of interesting court proceedings in Jackson today. The Mississippi Supreme Court will hear oral arguments today at 9:00 a.m. in the Barbour Pardon-gate case. As always, you can watch the video of the arguments live here at the Supreme Court's website. It's an en banc hearing, so you can bet that there will be some good questioning from the Justices.

At the new federal courthouse in Jackson, a Ford Motor Co. products liability trial continues before Judge Carlton Reeves. If I am not mistaken, the trial is in its third week. Myles Parker represents the plaintiff. Baker Donelson and national counsel represent Ford.

At the Hinds County courthouse, a medical malpractice trial continues before Judge Jeff Weill. Stephen Kruger of Page Kruger represents the defendant.

Finally, there was a premises liability verdict in Hinds County yesterday in a trial before Judge Winston Kidd. I believe the verdict was $300,000. Precious Martin represented the plaintiffs and Jason Strong of Daniel Coker in Jackson represented the defendants.

That reminds me, one day I need to tell my story about having dinner with Joe Daniel and Curtis Coker at the bar convention years ago. Funny stuff.  

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The Mississippi Secretary of State's Office announced yesterday that a Mississippi lawyer was scammed out of hundreds of thousands of dollars:

The Secretary of State’s Office has been alerted to an internet scheme with international ties that bilked a Mississippi attorney out of hundreds of thousands of dollars.

The Mississippi attorney received an email from someone purporting to be Robert Larsen of Larsen Fabrics located in the United Kingdom. “Mr. Larsen” claimed a Mississippi company owed money on a contract and was willing to settle. “Mr. Larsen” employed the Mississippi attorney to collect the debt. The attorney was then informed the Mississippi company was prepared to settle.

A fraudulent settlement check was sent to the attorney, allegedly from the Mississippi company. The attorney deposited the check and wired funds to a Japanese account before the fraud was discovered. The Mississippi company had no knowledge of the scheme until contacted by investigators.

The Mississippi Bar warned lawyers the same basic scam in 2009. I've written about lawyer email scams multiple times on this blog. I'm not so much surprised that someone got scammed as I am that someone bought the same tired scam that worked 3 years ago. I used to get multiple emails per week trying to run this scam. It now seems like it is down to no more that 1 a month.  

I don't know who it was who fell for this scam, but I'm pretty sure it wasn't Bill M. Lott.  

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As reported on Jackson Jambalaya last week, Hinds County Chancery Judge Dewayne Thomas jailed Brandon lawyer Michael J. Brown for—allegedly—stealing $3 million from a minor client. Judge Thomas' Order is posted in full on JJ.

If you're like me you said, “wait a minute, I've heard of Michael Brown.” Problem is, the Mississippi Bar Directory lists 5 Michael Browns practicing law in Mississippi—all of them in the Jackson area. So the Michael Brown that you know might not be the thief (allegedly).

As for the alleged thief Michael J. Brown, they need to put that guy in jail and throw away the key. The guy never deposited the funds into a bank account. It sounds like he knew that he was going to steal the money—or at least “borrow” it—from day 1.

Lawyers stealing from their clients is a recurring theme lately with the Van Leonard fiasco and other instances of lawyer thievery. Courts need to give these guys harsh sentences to deter other lawyers from "borrowing" client funds.  

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On Friday a Bolivar County jury rendered a unanimous defense verdict in favor of Cleveland Nursing & Rehab Center and Tara Cares. The nursing home is part of the Tara Cares system, which is a national nursing home management company.

The trial involved a stage IV pressure sore suffered by a long time resident of the nursing home. The case was tried before an all African-American jury.

Gail Aiken of Clinton and Donna Hodges of Ridgeland represented the plaintiff. Brad Smith, La'Verne Edney and Clay Gunn of Baker Donelson in Jackson represented the defendants. 

This was a huge defense win. Conventional wisdom is that nursing home pressure sore cases are hard for defendants to win. This is probably because pressure sores are usually preventable and nursing homes historically have not enjoyed the same jury bias that works in favor of doctors in medical malpractice cases. 

Nursing homes have won a lot of defense verdicts in Mississippi in the last few years with Wilkins Tipton and Baker Donelson both winning multiple trials representing nursing homes.  

Following the win, Brad Smith sent a firm-wide email announcing that until further notice, all Baker Donelson employees should greet him with "You Da Man." The exception is firm associates, who are to greet him as "Mister.....You Da Man." [Note: There wasn't really an email. This paragraph was a joke aimed at Brad Smith, who I worked with at Baker Donelson from 1997-2002.].      

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How is a case decided when there is a Tort Claims Act defendant and a non-Tort Claims Act defendant? Jackson lawyer Madison Taylor of the Wilkins Tipton firm examines that question in a recent Mississippi Law Journal article titled: Resolving the conflict between the bench trial provision of the Mississippi Tort Claims Act and the right of trial by jury under the Mississippi Constitution.

Lawyers who have ever litigated these type of mixed-bag cases may feel like an equally appropriate title might be “looks like I picked the wrong week to stop sniffing glue.” Sadly, a generation of young lawyers has never seen the movie Airplane and completely misses this awesome joke.

The article starts with a dry summary of sovereign immunity and the Mississippi Tort Claims Act (MCTA). After noting that severance is probably not appropriate for the mixed-defendant case, the article discusses inconsistencies in allocation of fault that can happen when a judge is the fact finder of the claim against the governmental entity and a jury is the fact finder of the claims against the non-governmental entity defendant.

For instance, what happens if the judge apportions 0% of fault to the governmental entity and 100% to the private party and the jury does the opposite: 100% to the governmental entity? When that happens, the plaintiff and his lawyer win the prize for best “trial gone bad” story. Because the article concludes that the answer to what happens in that situation is: “too bad.”   

The article concludes by asserting that the Mississippi Supreme Court should enact a rule to clarify the procedural conflict between the Mississippi Constitution's right to a jury trial and the MTCA's bench trial provision. Taylor asserts that the Court's rules should include the requirement that the the judge render a decision regarding the government entity before the jury verdict regarding the private defendant. That would be an interesting requirement that a lot of lawyers might support.

One of the favorite past-times of trial lawyers is to trade war stories of how long it took judges to rule in various bench trials. There can be a bit of urban legend feel to some of these stories. A lawyer once claimed that he had been waiting on a bench trial ruling for over 5 years—and counting. Needless to say, he did not wait at the courthouse like you would with a jury trial. I recently waited slightly more than 2 years for a bench trial ruling. By that point, I no longer remembered most of the witnesses' names and only had a broad recollection of the evidence at trial.     

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I received some new information on the $654,000 verdict in Warren County two weeks ago in a slip and fall case.

According to new reports, the jury apportioned 50% fault to the plaintiff. A 50% fault apportionment reduces the judgment to $327,000.

It's also my understanding that Rob Wells did not try the case. Another lawyer with the Young Williams firm tried the case.

Finally, it's my understanding that the defendant plans to appeal.