Directed Verdict for Defendant in Hinds County Breach of Contract Case

On Tuesday Hinds County Circuit Judge Malcolm Harrison directed a verdict for the defendant in Brown v. Anderson.

The case was a breach of contract case where the plaintiffs (the Browns) sued James Anderson over a house that Anderson sold to the Browns. At the closing, Mr. Brown signed a document—the only document that he signed—stating that he had conducted a walk-thru of the house and found that all electrical, plumbing and HVAC were functioning. The Browns knew that they could have the home inspected before the closing, but did not.

Three weeks after the closing, the Browns hired a home inspector who found numerous alleged problems with the home's electrical, plumbing and HVAC. After the sale, the Browns lived in the house for four years without paying a house note, insurance or taxes until the house was foreclosed by the lender.

The Browns sued Anderson for breach of contract and tortious breach of contract. The Browns sought $90,000 in economic damages (sale price of the house) and personal injury damages. Anderson's defense was that the Browns did not prove a defect at the time of the sale and signed a document at the closing that stated that there were no defects.

The plaintiffs rested on the second day of trial and Judge Harrison granted Anderson's motion for directed verdict. Judge Harrison agreed with Anderson that the Browns failed to establish a prima facie case of breach of contract or tortious breach of contract.

Pieter Teeuwissen of Jackson represented Anderson. Anderson is an employee of the City of Jackson and Teeuwissen, who is the City Attorney, represented Anderson on a pro bono (free) basis.

David McCarty and Drew Martin (?- not Drew Malone as earlier reported) of Jackson represented the plaintiffs.    

City of Jackson Between a Rock and a Hard Place on Waste Water Contract Dispute

As reported by the Clarion-Ledger, the City of Jackson now faces two conflicting rulings by Hinds County judges on the City's waste water contract.

Last week Hinds County Circuit Court Judge Swan Yerger threatened to throw City leaders in jail unless the City complied with an order to award the contract to United Water Services. I discussed Judge Yerger's ruling in this post.

 But on Thursday Hinds County Chancellor Dewayne Thomas issued this order granting a preliminary injunction that orders the City to not terminate its contract with Jackson Water Partnership.  

If the City complies with Judge Thomas' Order, then it will be in violation of Judge Yerger's Order. But if the City complies with Judge Yerger's Order, then it will be in violation of Judge Thomas' Order.

If I'm Jackson City Attorney Pieter Teeuwissen, this would remind me of the scene from the movie Airplane where Lloyd Bridges says: “looks like I picked the wrong week to stop sniffing glue.”

Now comes news that Judge Yerger has ordered attorneys for the City and United Water to appear before him at 1:00 p.m. today.

Should be real interesting.

$900,000 Verdict Last Week in Hinds County Premises Liability Case

There was a jury verdict of $900,000 last week in the Hinds County Circuit Court in a premises liability case. The rumor around town this week has been that the verdict was for $2 million, but my investigation revealed a verdict of $900,000.

Judge Malcolm Harrison was the trial judge.

The plaintiffs were victims of armed robbery at the Crossings Apartment on Ridgewood Road in Jackson. The jury's verdict was for one of the two victims. Judge Harrison will determine the damages for the other plaintiff, but I do not know why.

I do not know what the injuries/ damages were. There were no punitive damages in the case.

Precious Martin of Jackson represented the plaintiff. James Holland from Page Kruger in Flowood represented the defendant.

One interesting tidbit I'm hearing is that the spouse of a prominent Jackson defense attorney was on the jury.

Jackson City Leaders Avoid Jail Time Over Wastewater Flap

On Thursday Hinds County Circuit Judge Swan Yerger threatened to incarcerate Jackson Mayor Harvey Johnson, City Attorney Pieter Teeuwissen and other city leaders over the City's failure to award a waste water contract pursuant to a Court Order issued by Judge Yerger. The Clarion-Ledger reported:

“If the city has failed to comply with this court’s orders …, the court will consider the same to be a willful and deliberate violation of this court and will hold (the city) in civil contempt of court, with the possible penalties of monetary fines and jail time to be assessed against any responsible municipal representatives,” Yerger wrote in the order signed Thursday.

Courtroom observers indicate that Judge Yerger was livid during the hearing and dressed down the City's attorneys for over an hour in what some described as a tantrum.

On Friday the Jackson City Council quickly voted to comply with Judge Yerger's Order:

In a Friday evening meeting, City Council members voted 5-1 in favor of starting the transition from Jackson Water, a partnership of Pennsylvania-based Severn Trent Services and Jackson-based Garrett Enterprises, to New Jersey-based United Water Services.

Hinds County Circuit Court Judge Swan Yerger had threatened to throw city officials in jail unless they acted on his orders to reassign the contract.

I can't really tell from the articles, but it appears that Judge Yerger ordered specific performance in a breach of contract action and that the City failed to comply.

Judge Yerger's actions came just a few weeks after the Mississippi Supreme Court reversed the judge in a case involving the City.

Update on the $5.6 Million La Quinta Inn Near-drowning Case

Two different people have told me that they heard from a knowledgeable person that there will be no appeal in the Hinds County La Quinta Inn near-drowning case.

Typically, when a verdict of that size is paid and not appealed the defendant does not have any issues on which to base an appeal. That could have happened in this case if the plaintiffs agreed to all the defendants' jury instructions and never objected to defendant's evidence.

Damages would be hard to appeal. The liability caps do not apply to this verdict because most of the damages were economic.

A lot of people have a problem with the parents' conduct, but apportionment of fault was for the jury and that would be hard to reverse on appeal.

I have seen cases where the losing defendant had nothing to appeal and paid the judgment. This would not be the first time that has happened.

In addition, since the case is unlikely to be reversed and rendered, defendants may not want a new trial. Ogden would likely ask for the same $26 million in the second trial based on the life-care plans. So things could actually get a lot worse for the defendant. The defendant may not want to roll the dice.  

Update on the $5.6 Million La Quinta Inn Near Drowning Case

Facts

In July 2007 8 and 9 year old children were left in a room at the La Quinta Inn on Briarwood Drive in North Jackson while their father took their mother to work. It was approximately 7:00 a.m. The parents threatened the children to not go near the pool.

The girl fell into the pool and pulled the boy in while he was trying to pull her out. I am assuming that they could not swim, but don't know. The kids screamed and guests called the front desk. Hotel employees pulled the children from the pool and revived them.

The hotel had another near drowning incident in 2005 when the gate was not locked during non-use hours. The gate to the pool was supposed to be locked from 10:00 p.m. to 9:00 a.m. The gate was left open and not locked on a regular basis.

The girl was in ICU at UMC for a month. The boy was in ICU for 8 days. The children had approx. $130,000 in medical bills. 

The Trial

The case was styled Baby Jane Doe, et al v. La Quinta Franchising, LLC, et al; In the Circuit Court of the First Judicial District of Hinds County, Mississippi; Cause No. 08-495-CIV. The case was tried before Judge Winston Kidd and lasted eight days.

Ashley Ogden was plaintiffs' counsel.

Defense counsel were Ray McNamara and Monte Barton with Copeland Cook in Ridgeland and Charlene Priester of Jackson. Copeland Cook likely associated Priester on the case because she is African-American. McNamara took most of the witnesses for the defense and Priester closed for the defense. I understand that she did a really good job in her closing.  

At trial former and current hotel employees testified that the hotel policy to close and lock the pool gate was frequently violated because the front desk clerks would lock themselves in the office at night due to crime on the property and their fear for their own safety. Former employees testified that the gate did not self-close as it was supposed to, and that during the summer neighborhood kids were constantly coming onto the property to swim in the pool.  Employees testified management instructed the employees to watch out for children and keep the pool gate closed and locked from 10 pm to 9 am to prevent any children from getting in the pool. The assistant manager testified there was a camera on the pool gate and there was a video of the incident. The video was lost or destroyed by the manager. The manager and a former employee testified they were falsifying safety documents and not complying with the hotel rules regarding the pool gate being locked and closed. The manager admitted he did not comply with the hotel policy to be CPR certified.

The father testified that he was primarily at fault, but that he expected the hotel to keep the pool gate closed and locked at that time of day.

Plaintiffs' experts testified that the children had some mild cognitive issues caused by the drowning. Plaintiff introduced a $13 million life care plan for each child and asked for over $26 million in damages.

Some doctors opined that the children suffered no permanent damage. Doctors at UMC performed and IME and testified that the children had the same issues before the incident as after. The kids are both in school seem ok.

The Verdict

At trial, the jury returned a verdict in favor of the Plaintiffs and found the Defendants to be 85% liable and the Plaintiffs’ parents 15% liable.  The jury awarded the girl $3,868,525.46 in total damages, the boy $1,645,852.67 in damages, and the father $100,000.00 in damages, for a total of $5,614,378.13.

Here is the breakdown of the verdict:

a.      Plaintiff Baby Jane Doe

1)     $93,525.46  for past medical expenses

2)     $3,500,000.00 for future medical expenses

3)     $75,000.00  for pain and suffering

4)     $200,000.00 for lost wages

TOTAL:          $3,868,525.46

b.     Plaintiff Baby John Doe

1)     $45,852.67  for past medical expenses

2)     $1,500,000.00 for future medical expenses

3)     $25,000.00 for pain and suffering

4)     $75,000.00 for future lost wages

TOTAL:          $1,645,852.67

 The verdict will be reduced by 15% to factor in  the father's apportioned fault. That will reduce the verdict to $4,772,221.41. 

My Take

It was a dangerous case and the defendant probably offered a significant sum to settle before the trial. Ogden is rumored to be rejecting significant settlement offers in the cases that he is taking to trial.

It was a large verdict, but not unreasonable if the jury accepted plaintiff's expert testimony on damages. A lot of people will criticize the father only being apportioned 15% of the fault. Although I understand that criticism, apportionment of fault is a classic jury question.

The vast majority of the verdict was for economic damages and the verdict is not subject to the tort reform caps on non-economic damages.

The Supreme Court will obviously take a hard look at this case on appeal. I do not know anything about evidentiary or jury instruction issues that often lead to a verdict being reversed and remanded for a new trial. Ogden has a lot of verdicts going up on appeal and it will be interesting to see what the Court does with them.

The sources of the information in this post were Ashley Ogden and courtroom observers. As always, I welcome input from others and will post any additional information that I receive. 

Hinds County Jury Returns $5.6 Million Verdict in Hotel Near-drowning Case

There was a $5.6 million verdict today in Hinds County Circuit Court in a case tried for the last week and a half before Judge Winston Kidd. The case involved the near-drowning and resuscitation of two children at the La Quinta Inn in Jackson. 

Ashley Ogden represented the plaintiffs. Ray McNamara and Charlene Priester represented the defendants.

I will post more on this verdict on Thursday.

$3.6 Million Verdict in Hinds County Premises Case

A Hinds County Circuit Court jury returned a $3.6 million verdict Friday in a premises liability case. Judge Winston Kidd was the trial judge.

 

The Plaintiffs were Benny Ohazurike, Esther Ohazurike, and Darlington Ohazurike (6 year old son). Plaintiff's counsel were Ashley Ogden and former Chief Justice Jim Smith.

 

 

The Defendants were Parham Pointe South (owner), Ballard Realty Company (management company), and K. Wayne Rice & Associates (owner). Defense counsel were: (1)     Jamie Travis with Page Kruger & Holland in Flowood (attorney for Parham Pointe South and K. Wayne Rice & Associates); and (2)  Benny “Mac” May with Dunbar Monroe in Ridgeland (attorney for Ballard Realty and Crystal Bridges-Corcoran).

 

Case Facts According to Plaintiffs

 

Plaintiff Benny Ohazurike is a creator and designer of board games.  In 2001 Benny and his wife Esther moved into Parham Apartments on Ridgewood Road.  Plaintiff’s apartment had a leaky roof and developed mold and mildew inside the apartment.  Plaintiffs asked management to fix the maintenance problems inside their apartment, including the leaky roof and the mold and mildew inside their apartment and to clean their carpet.  Management refused to perform any maintenance or repairs on their apartment. 

 

 In mid 2007 a pipe in the Plaintiffs’ bathroom began to leak.  For at least 6 weeks Benny begged the manager and the maintenance staff to fix the leak.  They told Benny they would fix the leak and never did.  In May 2007 Benny and Esther went to the grocery store.  When the family came back to their apartment they discovered the leaking pipe in the bathroom had burst and flooded the majority of the apartment.  Benny had been keeping blueprints for his board games on the floor in the apartment bedroom while he worked on them.  Benny also had blueprints and partial game designs stored in the closet.  The flooding from the burst pipe destroying 19 of Benny’s game designs and blueprints.

 

 Management did not stop the water spewing from the pipe until several hours after it was discovered and reported by the Plaintiff.  After the flood, management continuously refused to replace the carpet in the apartment, make any other repairs or move the family into a vacant apartment.  Because of the flood the carpet began to mildew and mold spread throughout the apartment.  Plaintiff’s 3 year old son, Darlington, developed a skin condition and a cough.  Benny and Esther also developed coughs and became ill from the mold.  Darlington’s skin is permanently dotted and scarred as a result of the skin condition he developed.  Plaintiffs sued Defendants alleging failure to provide maintenance and repairs both before and after the flood, their failure to clean the mold in their apartment, and failure to replace the mildewed carpet which caused their Plaintiffs’ illnesses.

 

 At trial several former employees of Parham testified that management and the owners intentionally ignored the Plaintiff’s requests for repairs and maintenance and threw away his maintenance requests.   The employees testified that Benny annoyed management because he asked for repairs and because he acted as an informal security guard and maintenance man and would constantly complain about the lack of maintenance on the property, the crime on the property, and employees not doing their jobs. 

 

There was testimony that management denied maintenance to the Plaintiffs in order to force them out and rent the apartment for a higher price.  There was testimony that certain members of management and maintenance would randomly turn off the air conditioner to the Plaintiffs’ apartment to force them to move.  One employee, a housekeeper, testified that management forced her to sign false criminal affidavits against Benny alleging that he had threatened her with a gun.  The employee testified that when she refused to go to court and pursue the false charges, management fired her.

 

The defendants’ witnesses who were all former managers and regional supervisors testified that the plaintiffs were several months behind on rent and that no flood occurred. The defendants testified that just because the rent was late they could not deny maintenance service to tenants. The defense argued that the value of the plaintiffs’ injuries was zero and that the plaintiffs’ damaged games had no value. The plaintiff countered by showing a pattern at the property of no one being able to determine who owed rent because of the problems with managers taking cash and money orders and not applying the rent to the correct tenants. The plaintiff also showed that while he had fallen behind on rent in the past he had always paid up making his rent current and paid.

 

The Verdict

 

The jury awarded the Plaintiffs the following amounts:

 

Benny -  $2,502,208.00, Ester- $500,253.00,  Darlington - $601,251.00.

 

The total amount awarded to the Plaintiffs was $3,603,712.00.

 

My Take

 

The damages verdict sounds really high for those injuries. It will be interesting to see what happens if the case goes up on appeal.

 

This is Ashley Ogden's sixth seven figure verdict reported on this blog in a little over a year. That is impressive by any measure and places Ogden at the top of the heap of Mississippi plaintiff lawyers. That stature tends to make people a target and it will be interesting to see how Ogden handles the attention.

 

This verdict will lead to more chatter that I have been hearing as Ogden compiled these verdicts. First, some Jackson lawyers believe that the senior litigation partners at many Jackson defense firms are afraid to try a case against Ogden in Hinds County. Their argument is that senior partners step in and try cases that they think that they will win, but let the lawyers who worked up the case try it when they think they will lose.  This is not my theory—but I've heard it several times. 

 

Second, this verdict will lead to more talk around town about the irony of Chief Justice Smith working for Ogden. The perception among lawyers on both sides was that the Supreme Court would not affirm a plaintiff's verdict when Smith was the Chief Justice. The fact that Smith went into a plaintiff practice after losing his election to Justice Kitchens is ironic. But it also suggests that the man who led the Court did not share the view that plaintiffs could not get—and keep—a verdict in Mississippi. It will be interesting to see what happens when the Supreme Court rules on the appeals of these cases that Smith worked on with Ogden. 

 

Miss. S. Ct. Upholds $1.5 Million Sanction Against Eaton and its Lawyers--What Did They Do?

The Clarion-Ledger reports on the Mississippi Supreme Court upholding Hinds County Circuit Judge Swan Yerger's $1,560,642.83 sanction against Eaton Corp. and its attorneys in the Eaton v. Frisby trade secrets case.

The reasons for the sanction are unknown and no one is talking:

Eaton and Frisby's attorneys will not discuss the case publicly.

"The information you asked about is under seal by the court, and we are not in a position to comment," said Gary Klasen, a spokesman for Eaton.

"I won't confirm or deny it," said Alan Perry, an attorney for Frisby.

Although Supreme Court documents are public record, many in this case have been filed under seal.

Actually, just about every substantive pleading has been filed under seal in the case. I believe that Frisby opposes the seal, but that Eaton and Judge Yerger support it. Presumably, the reason for the seal is to keep improper conduct under wraps. The biggest mystery in the case is why Judge Yerger wants to keep the matter confidential. The last time I checked the court file there was no order that explained the court's rationale.  

DOJ Denies Appeal for Disclosure of Ed Peters Immunity Deal---Do they Know It's Disclosed in Kings of Tort?

Surprise, surprise! After seven months, the DOJ denied my appeal seeking disclosure of Ed Peters' immunity deal with the government. Here is the letter denying the appeal.

Previous posts about DOJ's refusal to disclose Peters' immunity deal are here, here, here, and here

In the last of the above-linked posts I point out that former DOJ prosecutor Tom Dawson disclosed the terms of Peters' deal in Kings of Tort, which Dawson co-authored with Jackson political observer Alan Lange:

On page 199, the book states that in exchange for immunity, “Peters would surrender his law license, resign from the bar permanently, and forfeit all monies received from Scruggs and Langston, in addition to [throwing Bobby DeLaughter under the bus] testifying truthfully.” That’s it.

The fact that DOJ continues to refuse to produce the agreement when one of its former prosecutors disclosed the terms of the deal in a book makes me want to run out and join the Tea Party. You've got to love the bureaucracy.

Needless to say, I am not going to waste my time filing a lawsuit trying to confirm what Dawson disclosed in his book.

Karen Irby Moves to Withdraw Guilty Plea

Kingfish broke the story Tuesday on Karen Irby's motion to withdraw her guilty plea. Here is Kingfish's report and the motion. Here is today's Clarion-Ledger article on the story.

The motion seems to be barking up the right tree as far as the applicable law. But it's going to be a big hill to climb. Here is the applicable law:

1. Voluntariness
 
U.R.C.C. 8.04(A)(5) provides that "it is within the discretion of the court to permit or deny a motion for the withdrawal of a guilty plea." If the defendant is advised regarding the nature of the charge and the consequences of the plea, it is considered "voluntary and intelligent." Alexander v. State, 605 So. 2d 1170, 1172 (Miss.1992). Furthermore, "Solemn declarations in open court carry a strong presumption of verity." Baker v. State, 358 So. 2d 401, 403 (Miss.1978) In Roland v. State, 666 So. 2d 747, 750 (Miss.1995), this Court held that when the trial court questions the defendant and explains his rights and the effects and consequences of the plea on the record, the plea is rendered voluntary despite advice given to the defendant by his attorney. Id. See Smith v. State, 636 So. 2d 1220, 1225 (Miss.1994).
 
2. Ineffective assistance of counsel.
 
Another ground for reversal of a guilty plea is ineffective assistance of counsel. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).The two-part test set out in Strickland is whether counsel's performance was deficient and, if so, whether the deficiency prejudiced the defendant to the point that "our confidence in the correctness of the outcome is undermined." Neal v. State, 525 So. 2d 1279, 1281 (Miss.1987). This standard is also applicable to a guilty plea. Schmitt v. State, 560 So. 2d 148, 154 (Miss.1990). A strong but rebuttable presumption exists that "counsel's conduct falls within a broad range of reasonable professional assistance." McQuarter v. State, 574 So. 2d 685, 687 (Miss.1990). To overcome this presumption, the defendant must show that "but for" the deficiency a different result would have occurred. Strickland, 466 U.S. at 694, 104 S. Ct. 2052. 

So there is a strong presumption under the law that the plea was voluntary and that there was an effective assistance of counsel.

But the motion raises some interesting facts. Karen Irby estimates that Stuart Irby paid attorney Joe Holloman at least $500,000 in the case. The motion attaches documents that show that Holloman was was paid at least $95,000 on the case and projected that it would cost $632,224 to defend the case through trial. 

There is nothing illegal or improper about one person paying another's legal bills. In fact, it is very common. The key is that the attorney represents the defendant--not the person paying the bills. Holloman claims that he maintained his loyalty to Karen Irby and there is no evidence at this point that proves otherwise. There are only allegations by a convicted felon.

Karen Irby already sued Stuart Irby. She will probably sue Joe Holloman too.   

I still doubt that Karen Irby will be successful in getting her sentence reduced, but she has made it interesting. There could be a book or movie in this before it is over.

Karen Irby Having Buyer's Regret With Guilty Plea

Kingfish reports on Karen Irby's two prong attack on her 18–year sentence for causing the deaths of Mark Pogue and Lisa Dedousis. Irby is asking the Mississippi Supreme Court to order Judge Tommie Green to recuse herself from the case and making a similar request to Judge Green. As grounds for the request, Irby argues that her lawyer had a conflict of interest because he was being paid by Stuart Irby.

Irby also faults her original lawyer for not asserting the defense of intervening superseding cause, which would have pointed the finger at Stuart Irby. The problem with this argument is that it is based on an affirmative defense in a civil case that is used when the defendant denies liability. The defense would not be applicable even in a civil case where the defendant admitted liability, which is essentially what Irby did by pleading guilty.

In a criminal case it would not be an affirmative defense. Instead, it would be the basis for a not-guilty plea. But Karen Irby pleaded guilty. And in order to plead guilty, Irby had to state on the record that she was satisfied with her legal representation.

The oddest thing about Irby's strategy is that she is not asking to be allowed to withdraw her guilty plea. She just wants a lighter sentence. The the grounds for the lighter sentence is that she didn't do it—Stuart Irby did. But you don't get a lighter sentence when someone else did it—you get acquitted.

It appears that Karen Irby expected a light sentence due to the support of the victims' families and her allegations against her husband. But Irby's sentence of a less than maximum 18 years is not surprising, as reflected in this post after the plea but before the sentencing. Irby could have gotten 20 years. In fact, she could get 20 years if she is successful in re-opening her sentencing.

Irby's attempt to get her sentence reduced is interesting. But it's unlikely to be successful. 

Report: $1.1 Million Medical Malpractice Jury Verdict in Hinds County

I have a report of a $1.1 million jury verdict returned Wednesday in Hinds County Circuit Court in a case tried before Judge Winston Kidd.

The reported facts are that it was a wrongful death case. The decedent had stomach ulcer surgery and was released from the hospital. After discharge the ulcer hemorrhaged, causing the death. I assume that the plaintiff alleged that the surgery was not properly completed and the decedent should not have been released from the hospital.

Alton Peterson was the plaintiff's lawyer. Defense lawyers were Whit Johnson, Stephen Kruger and Marc Caraway. I do not yet know the identity of the parties.

I will post an update if I obtain more information.

Judge Kidd Orders DHS to Pay $500,000 to Sexually Abused Child

Monday's Clarion-Ledger had this article covering Hinds County Circuit Court Judge Winston Kidd's Order that the Mississippi Department of Human Services (DHS) must pay $500,000 in damages to a child who was sexually abused while in DHS custody.

The case stems from a Judge Kidd's 2004 ruling awarding the child $750,000 and the 2007 Mississippi Court of Appeals that affirmed on liability, but remanded the case for a new trial on damages.

In one part of its decision, the Court of Appeals said DHS' investigation of the youth's claim was "grossly inadequate."

Jackson attorney Cliff Johnson represented the child and characterized the damages as follows:

"Our client suffered horrific abuse while under the care of the state of Mississippi, and we hope that the state will at long last accept responsibility for its conduct," Johnson said.

 

My Quick Take on Karen Irby's Attempt for Re-sentencing

Karen Irby wants to be re-sentenced because, according to Irby, Judge Green showed bias during the sentencing hearing. In my opinion this is a move that is destined to fail.

First, Judge Green's sentence was less than the maximum and within the range of sentences in other similar cases. That does not seem like an excessive sentence. I have watched a lot of sentencing hearings and the defendants pretty much always have a sad story and good reason for a light sentence. But judges almost always stick to the sentencing guidelines.

Second, even if Irby gets a new sentencing, the most likely outcome of that is another sentence that is consistent with the sentence already given.

I find it odd that Irby's campaign for a light sentence basically started on the date of her sentencing hearing. That was probably too late. I doubt that Judge Green decided the sentence on the bench that day. She had probably been thinking about it since the guilty plea.  

Ashley Ogden Explains Decision to Not Run for Hinds Circuit Judge

A few weeks ago I ran into Ashley Ogden and asked him about his decision to not run for Judge Yerger's Circuit Court Judge seat. Ironically, the place where I ran into Ogden was at a fundraiser for Jackson City Councilman Jeff Weill, who is running for the seat and is likely to win.

Ogden stated that instead of running for judge, he plans to do some work as a special prosecutor for the Hinds County District Attorney. He hopes to get heavy sentences imposed for crimes such as robbery. Ogden believes that Jeff Weill will be a good judge and he plans to work with Weill in his capacity as a special prosecutor.

Ogden stated that he still has aspirations to be a judge. He believes that at some point in the future Weill will be appointed or elected to higher office and that the Circuit Judge position will be open again. I tend to agree with Ogden's assessment that Weill may end up in higher office.

Bruce Burton and Ali Shamsiddeen have qualified to run against Weill.

I expect Weill to win going away and to be an excellent judge.

 

Irby v. Irby is Hard to Explain

There has been a lot of commentary in the blog-world on Karen Irby’s lawsuit against Stuart Irby, which blames the accident on Stuart.

Matt at Ipse Blogit lays out the chronology of events leading up to Karen’s sentencing hearing, including:

In Karen Irby's petition (filed March 29), she says that while she was driving the car Stuart Irby began yelling at her and assaulting her.  She then says she sped up and crossed into oncoming traffic, and that she had consumed two glasses of wine, and that her BAC was .09. Oddly enough, she doesn't make a causal nexus between the supposed assault and the bad driving in her plea petition

NMC states:

Stating this aloud is not to say that anyone who spoke did anything inappropriate– people were properly playing their respective roles, and none of this demonstrates that Karen Irby is lying.  Or telling the truth, for that matter. What we have here is two pieces of apparent evidence: That Karen says she was assaulted, and that someone speaking on Stuart’s behalf says he doesn’t remember.  We have one factor to weigh:  That Karen and Stuart (or Stuart’s mouthpiece) have good tactical and strategic reasons to say those things.  Perhaps the judge’s conclusion to accept what Karen said is a factor, although a second-hand and therefore weak one.

After thinking about it for a couple of days, I do not have an opinion about what really happened in that car that night on Old Canton Road. There are simply too many variables for me to form an opinion.

It’s pretty clear that the Irbys were in the middle of a domestic dispute. And crazy things can happen during domestic disputes. An example is the death of NFL player Chris Henry when he fell out of the back of a pick-up driven by his fiancee while the two were fighting.

I believe Stuart’s lawyer when he says that Stuart does not remember the accident. I would not expect someone who was in an accident with that kind of impact to remember the accident. I would expect the person to have a traumatic brain injury and amnesia is common (but not always present) when there is a traumatic brain injury. However, I would also not expect Karen to remember either.  

I suspect that Karen Irby believes her account whether its true or not. It’s been my experience as a lawyer and in life that people believe what they want to believe. [NMC seemed to allude to this in his post.] People also rationalize events in their own minds so that that others are to blame for their mistakes or bad outcomes. I believe that we are all wired to do this. I see it in young children and adults alike. Everyone has an excuse for everything. Part of parenting is teaching your kids to not make excuses and accept responsibility for their actions.

People who step up and admit that they made a mistake and take responsibility for it are the exception and not the rule. It takes a lot of maturity and character to do this.

It’s also impossible for me to tell how big of a factor the civil case against the Irbys was or the status of the relationship between the Irbys. These could be no factor, or big factors.

The bottom line for me is that while many things could have happened that night, alcohol was probably the single biggest factor in causing the accident. And that applies whether you believe Karen Irby or not. Judge Green's sentence of 18 years suggests that Judge Green thought the same thing.

Karen Irby Sentence of 18 Years Not Surprising

As reported by Kingfish and the Clarion-Ledger, Hinds County Circuit Court Judge Tommie Green sentenced Gulfport native and Jackson resident Karen Irby to 18 years in prison today for vehicular homicide (I am not sure of the exact charge). The sentences run concurrently, meaning that with good behavior she will serve less than 18 years. 

Prosecutors say Karen Irby was speeding and had alcohol in her system above the legal limit when the fiery Feb. 11, 2009, crash occurred, killing Dr. Mark Pogue and Dr. Lisa Dedousis, Pogue's fiancee.

The sentence should surprise no one. From reading about sentences in other vehicular homicide cases over the past few years, it looks like If you kill someone driving while you are impaired you are going to be sentenced to around ten years per death. It doesn't matter who you are.

State courts have applied similar sentences to college students, blue collar workers and now someone from one of the most prominent families in Mississippi. There was no reason to believe that Judge Green would do anything different, and she didn't. 

In the federal court system, Wendell Blount of Calhoun City awaits sentencing after being convicted of running over and killing Dutch cyclist Esther Hageman on the Nathcez Trace in 2009 while impaired on Morphine. Blount faces up to 33 years in prison.

$375,000 Bench Trial Verdict in City of Jackson Police Pursuit Case

In what is becoming a regular occurrence Hinds County Circuit Court Judge Swan Yerger rendered a $375,000 bench verdict against the City of Jackson in a case involving a police pursuit. Here is the Clarion-Ledger article on the verdict. This is the fourth similar verdict in the last year.

The article states:

The latest ruling comes from a lawsuit filed by a former Richland police officer over injuries he suffered in 2004 when a car being chased by Jackson police struck his personal vehicle.

Thornton, 44, alleged he was forced to resign from the Richland Police Department, where he had been a patrol sergeant, because of the injuries, including a fractured vertebra, a broken foot, ankle trauma, a concussion, lacerated facial muscles and other facial lacerations that left extensive scarring of his face and forehead.

 

The court found reckless conduct by the Police:

The court finds, from a preponderance of the evidence, that the proximate cause of the subject accident and the plaintiff's injuries, ... resulted from the aforesaid reckless conduct of the Jackson Police Department officers," Yerger wrote.

The City wants the court to apportion fault to the other two parties involved:

City Attorney Pieter Teeuwissen said his office filed a motion Friday in response, asking Yerger to "follow his statutory obligation and apportion the liability to the two other parties."

Those parties are Robertson and another driver, Keiwana Lewis, who pulled her car in front of Robertson's before he crashed into Thornton.

"It's not fair to place all the liability on the city when evidence shows clearly at least those two parties bear responsibility, if not all of it," Teeuwissen said. "The cause of the accident was the individual who would not yield to the police and Ms. Lewis, who was changing her CD, not paying attention and pulled in front of that individual."

Teeuwissen seems to have a point about apportionment of fault to other individuals.

It will be interesting to see what happens to these cases if and when they reach the appellate court. Is Jackson the only place where police pursuit accidents occur? Why is it always the police department’s fault? I don’t know the answers to these questions. 

Bruce Burton Qualifies to Run for Hinds Circuit Judge

Jackson lawyer Bruce Burton has qualified to run against Jeff Weill for Hinds County Circuit Judge for the seat being vacated by Judge Swan Yerger. Burton's profile is much lower than Weill's and I don't think that he can beat Weill.

The deadline to qualify to run is May 7 (I think).

Judge Yerger Tosses Jackson Fireman's Racial Discrimination Lawsuit

On Saturday Jimmie Gates and the Clarion-Ledger reported on Hinds County Circuit Court Judge Swan Yerger throwing out a racial discrimination suit against the City of Jackson by fireman Ricky Haggard.

According to the article:

Ricky Haggard had alleged he was discriminated against after he was removed from overseeing a federal grant's position in 2006 and replaced by a white male when Todd Chandler was interim fire chief.

In dismissing the case:

Yerger said Haggard had to show the city maintained a widespread, persistent practice of racial discrimination of city officials or employees.

"Acts of alleged discrimination that take place in a three-year period in one city department, all under the tenure of one supervisor hardly shows that there existed a persistent, widespread practice that fairly represents municipal policy," Yerger wrote.

Further, Yerger said even Haggard swears that Chandler was demoted as a result of discriminatory remarks Chandler made in the video. "This goes to show that Chandler's alleged conduct was hardly the expected, accepted practice of city employees," Yerger wrote.

 

Haggard apparently rejected a settlement offer from the City:

[City Attorney Pieter Teeuwissen] said the city offered a settlement, but an agreement was never reached.

My guess is that it was not a big offer. The City has been trying a lot of cases in the last few years, which suggests that it has not been making large settlement offers.

There will be an appeal:

Haggard's attorneys, Louis Watson Jr. and Nick Norris, said Yerger's dismissal will be appealed to the state Supreme Court.

Who knows what will happen on appeal. But since Hinds County judges seem to have a tendency to rule against the City, you would think that the dismissal has a good chance to be affirmed on appeal.  

Ashley Ogden Not Running Against Jeff Weill for Hinds County Circuit Court Judge

There is a rumor circulating that Jackson lawyer Ashley Ogden has decided not to run for Hinds County Circuit Court Judge. In an article as recent as two weeks ago, Ogden was quoted as saying that he intended to run for the seat being vacated by the retirement of Judge Swan Yerger:

 Jackson lawyer Ashley Ogden, who ran against Yerger four years ago, told The Clarion-Ledger in January he is preparing another run.

"I have an interest in Jackson's crime problem being solved, and that's why I ran in the first place," he said then.

But now comes word that Ogden will not run, effectively handing the seat to Jackson City Councilman Jeff Weill.

Weill is the only person who has qualified to run for the seat. The qualifying deadline is May 7.

There will be a lot of people disappointed by Ogden’s telling people for four years that he is running and then backing out at the last minute. As of yesterday, Ogden even still had his campaign web site running on the Internet. Some will argue that this kept other candidates out of the race.

Ogden’s decision, however, is not a big surprise to many Jackson lawyers. Ogden’s law firm occupies a large building on Capital Street and has numerous employees, including former Supreme Court Chief Justice Jim Smith. The future job prospects of Ogden’s employees in a down legal market could have weighed on his decision to not run.

As for Weill, I have been impressed with him on the City Council and expect him to be a good judge.

In other Hinds County Circuit Court races, Judges Green and Kidd are not expected to have opponents. Judge Malcolm Harrison, who was recently appointed by Governor Barbour, is expected to be opposed by Bill Gowan.

Hood's Lawyers and Pickering Still Fighting Over Fee in Microsoft Case

In January I wrote about the $8.3 million attorney fee sought in Attorney General Jim Hood’s action against Microsoft. The dispute continues with Plaintiff’s counsel filing this Memorandum Opposing Intervention by State Auditor Stacey Pickering on March 24, 2010.

Hood’s lawyers argue that Pickering is late  to the dance, having filed his motion to intervene over five years after Hood hired the lawyers and they filed the lawsuit. A cursory reading of the response suggests that Pickering is going to lose. But does he even care?

Political gamesmanship is the likely motivator behind Pickering’s attempted intervention. He arguably gets the political benefit from his stance regardless of whether he wins or not. Either way, he can claim on the campaign trail that he challenged Jim Hood and “trial lawyers.” Winning the challenge was probably always a secondary goal.

Incidentally, I recently read that the general public does not vilify "trial lawyers" as much as some people think.

Don't Miss Kingfish's Excellent Analysis of Irby Plea

For anyone who is interested in the Karen Irby guilty plea who does not already read Kingfish’s Jackson Jambalaya blog, you are going to want to read his coverage of the plea here and here. For my money Kingfish is the best reporter in Jackson.

I have read speculation that Karen Irby will likely be sentenced to 10 years in prison. My recollection of sentencing in past vehicular manslaughter cases is that the defendant gets 10–15 years per count. Irby will be lucky if her sentence is only 10 years. 

NMC contemplates whether the press coddled Irby because she was rich, white and female. Without question, if this had happened before Karen Irby married Stuart Irby and the victims had not been doctors, there would have been much less press coverage. The Irby family is well known in Jackson to the point of being local celebrities.

Although the family's visible profile does flow from the family's wealth, I suspect that it is the profile that more directly accounts for the coverage than the wealth. I don't think the fact that Irby is white and female had that much to do with the coverage. I remember instances of less press coverage of white females pleading guilty to vehicular homicide.

The press covering famous people differently than everyone else is not unique to Jackson. It is an epidemic in the U.S. in our celebrity loving culture.

 

Kingfish: Jeff Weill Running for Hinds County Circuit Court Judge

Kingfish has the story on Jeff Weill's announcement that he is running for the Hinds County Circuit Court Judge seat that is being vacated by Judge Swan Yerger:

Jackson City Councilman Jeff Weill of Ward 1 announced his candidacy for the Hinds County Circuit Judge position currently held by Swan Yerger. Yerger announced he is retiring from the bench. Weill made the announcement before a gathering in front of the Willie Morris Library on Old Canton Road. Weill is a lawyer and former prosecutor.

Weill has done a good job on the city council and is a viable candidate. Jackson lawyer Ashley Ogden is also expected to run for the seat. Some Jackson lawyers doubt that Ogden will run due to the size and success of his private law practice, which includes former Mississippi Supreme Court Chief Justice Jim Smith.

State Auditor Pickering Denies Politically Motivated Lawsuit Against Attorney General Jim Hood Based on Politics

 Former State Auditor and current Lieutenant Governor Phil Bryant’s (R) lawsuit that challenged the payment of attorney’s fees to lawyers who Attorney General Jim Hood (D) hired to sue MCI is clearly politically motivated. So naturally current Auditor Stacey Pickering (R) denied that the suit is politically motivated, as reported in the Clarion-Ledger on Saturday:

[Hood’s attorney Fred] Krutz said he thinks the auditor's office waited two years to go after the attorneys fees because the case is politically motivated.

"It was always about politics," he said.

Pickering denies that's the case. "It is our belief that precedent is on our side," he said. "Any money recovered would be public funds."

Pickering is a politician. Most people assume that most acts by politicians are politically motivated. The odds that Bryant’s lawsuit against Hood was politically motivated are somewhere north of 99%.

The MCI case resulted in $100 million in cash and $7 million in property paid to Mississippi. Former Mississippi attorney Joey Langston’s law firm received a $14 million attorney’s fee in the case, which MCI paid. 

Hinds County Circuit Court Judge Winston Kidd threw the case out last week finding that:

Since the subject attorney's fees were not paid by the state and did not come out of any state funds, this Court finds that there is absolutely nothing improper or illegal about MCI's payment of attorney's fees to the Langston Law Firm," Kidd's ruling states.

I previously criticized aspects of Hood’s hiring outside counsel, particularly his hiring Texas lawyers who made a huge campaign contribution to Hood. But Hood is right in this case. The argument that a lawyer already hired and paid must give the fee back is thin. Even thinner is the argument that it’s the Legislature’s job to dole out the fee. The Legislature’s job is to pass laws—not administer attorney’s fees in a lawsuit.

If Bryant and Pickering do not like the system, then they should lobby the Legislature to change it—not file grandstanding lawsuits that cost the taxpayers money.

How much money? Both Hood and Pickering hired outside counsel in this case, who are paid by taxpayers—not MCI. Pickering’s lawyers alone cost the State $340,000 for a loss—with Pickering promising to take his gamesmanship to the Mississippi Supreme Court. The appeal will cost the State an additional six figures in attorney's fees. 

There is a big difference from the outside counsel fee in the MCI case and in Bryant/ Pickering's lawsuit:

  • In the MCI case taxpayers paid nothing for outside counsel.
  • In the Bryant/ Pickering case taxpayers paid hundreds of thousands for outside counsel.
  • In the MCI case Mississippi won.
  • Bryant/ Pickering lost their case.
  • The MCI case made valid claims against a crooked corporation.
  • Bryant/ Pickering's case made novel claims that lost.   

In the MCI case, Hood hired a Mississippi law firm that recovered $107 million for Mississippi from a crooked corporation. Hats off to Jim Hood on this one. I’m sure that money has come in handy over the last view years given the State’s terrible budget crisis.

Pickering needs to stop the taxpayer bleeding and shut this lawsuit down.

Voters who are tired of the political gamesmanship need to remember this episode when Bryant runs for governor and Pickering runs for whatever he decides to run for next.

Verdicts in High-Speed Pursuit Cases May Cause City of Jackson to Stop Chasing Suspected Criminals

Thursday’s Clarion-Ledger reports on a $700,000 verdict entered by Hinds County Circuit Court Judge Winston Kidd on February 5 in a bench trial against the City of Jackson.

The case involved a fatal car wreck in Jackson involving a suspect who was running from Jackson police officers. The suspect crashed into the plaintiffs. One person was killed and the other two injured. Judge Kidd awarded $500,000 to the estate of the deceased and $100,000 to each of the survivors. The city argued that the officer stopped the pursuit before the crash. The case was tried in April 2008. Warren Martin represented the plaintiffs.

Jackson City Attorney Pieter Teeuwissen stated that the city will appeal because the Tort Claims Act caps the total possible recovery at $500,000:

City Attorney Pieter Teeuwissen said the city will appeal, in part because the judgment appears to exceed the amount of damages that can be levied against a Mississippi city. State law states that "damages against a governmental entity .... arising out of a single occurrence" are capped at $500,000.

I have not researched the law to analyze this issue. I suspect that Teeuwissen is right, since the Tort Claims Act stacks the deck in favor of governmental entities. That being said, I agree that the way Judge Kidd applied the cap should be the law.

Other recent verdicts in pursuit cases against the city include:

  • In September, Hinds County Circuit Judge Swan Yerger handed down a $500,000 verdict against the city in the case of WLBT Channel 3 meteorologist Eric Law and his wife, Kristina, both of whom were seriously injured when struck by a suspect fleeing police in 2006.

  • In May, Special Hinds County Circuit Judge William Coleman order the city to pay $400,000 in damages for its part in a chase that began in Raymond and ended when Alice Marie Wilson struck a vehicle driven by Alice Faye Clausell, killing her and injuring her two daughters.

The city’s response to these verdicts may be to stop chasing suspected criminals:

Teeuwissen said he is concerned about the way judges have been treating these cases. Such large awards against the city may force the Jackson Police Department to abandon pursuits because the city cannot afford it, he said.

And that could hamper the city's ability to fight crime, he said.

"If these cases are upheld we are heading to a point where you can't have a pursuit in an urban area. If that is the case you can imagine the effect it will have on crime," he said. "You may have to tell your officers, 'We don't want you thinking in the field and making split-second decisions on whether this suspect is worth pursuing.' "

 

I don’t have the answer to this dilemma. The police need to be able to pursue suspects, but pursuits need to be carried out in a way where innocent bystanders are not injured. 

Clarion-Ledger Report: Two Qualified for Election for Judge Barnett's Seat, None for Judge Yerger's Seat

The Clarion-Ledger ran this article on Monday about the upcoming elections to fill the seats of retiring Judge Yerger (Hinds County Circuit) and Barnett (Hinds County County). The article was largely a repeat from an October article that quoted Ashley Ogden and Jeff Weill stating that they would probably run for Judge Yerger’s seat. I wrote about and Ogden v. Weill race here.

On the County Court side, Jackson attorneys Trent Walker and Melvin Priester have qualified for Judge Barnett’s seat. Walker is a Brandon native and Jackson State graduate who lives in South Jackson. He has extensive experience on both the plaintiff and defense side in civil litigation as well as in the criminal defense arena. He recently obtained an acquittal in a murder trial in North Mississippi that sounded a little like the trial in My Cousin Vinnie. He currently works for Schwartz and Associates in Jackson.

Priester is a special circuit court judge and practices law in Jackson.

The Ledger article does not identify the date of the election or the deadline for qualifying for the races. I believe—and I am not certain about this—that the qualifying deadline is in May and the non-partisan elections are in November.

$500,000 Bench Trial Verdict in UMC Tort Claims Act Case

On Wednesday the Clarion-Ledger reported a $500,000 verdict against University of Mississippi Medical Center (“UMC”) in a Hinds County Circuit Court bench trial. Judge Tommie Green presided in the case and rendered the verdict.   Judge Tomie Green

The case resulted from the 2005 death of 28–year old Tamika Foster less than 48 hours after the emergency delivery of a baby. The case appeared to focus on UMC’s failure to consult a hematologist despite a low blood platelet count. The article explains:

An autopsy determined Foster died as a result of myocardial ischemia with arrhythmia, secondary to thrombotic thrombocytopenia purpura with a history of HELLP.

Thrombotic thrombocytopenia purpura, a much more deadly illness than HELLP, was never diagnosed prior to Foster's death, Green said

Medical experts have defined TTP as a rare disorder where small blood clots form suddenly throughout the body, leading to a sharp decrease in the number of platelets in the blood stream.

The case was decided in a bench trial because the Mississippi Tort Claims Act requires bench trials in lawsuits against government entities, which includes UMC. The Act also places a hard-cap recovery limit of $500,000 for both economic and non-economic damages. Judge Green set the Plaintiff’s damages at $1.2 million and then reduced the verdict to $500,000 to comply with the Tort Claims Act.

David Dunbar of Jackson represented the Plaintiff. Walter Johnson of Watkins Eager in Jackson represented UMC.

Update: $1 Million Verdict in Hinds County McDonald's Premises Liability Case

A Hinds County jury returned a $1 million verdict this week for a plaintiff who was beaten by a Wackenhut security guard in a McDonald’s restaurant located on Highway 80 in Jackson after a dispute with the manager over a cup of ice.

The plaintiff was allegedly a homeless man who was intoxicated at the time of the incident. He claimed to be a frequent customer of the McDonald’s. The plaintiff was arguing with the manager when the Wackenhut guard used force to remove plaintiff from the store. Plaintiff claimed to suffer a broken shoulder and other injuries.

The jury was shown a video of the attack. The Wackenhut guard shoved the plaintiff out the doors of the store, causing the plaintiff to fall and hit his head. The guard then followed the plaintiff out and stomped on the plaintiff, causing his shoulder to shatter. 

The defense argued that the use of force was justified and that plaintiff had a knife, but several witnesses testified that they did not see the plaintiff with a knife. 

The jury deliberated for 2 hours and 45 minutes and apportioned 75% of the fault to Wackenhut and its guard and 25% to McDonald's.

The entire verdict was for compensatory damages. The plaintiff did not request punitive damages.

Plaintiff’s counsel were Rocky Wilkins and Ashley Ogden of Jackson.

 Michael Wolf and Smith Boykin of the Page Kruger firm represented the Wackenhut guard. Matt Taylor of the Streetman firm represented Wackenhut. Jason Strong and Garner Berry of the Daniel Coker firm represented McDonald's.    

Judge Winston Kidd presided over the case.

Governor Barbour Appoints Malcolm Harrison to Replace Judge DeLaughter as Hinds County Circuit Court Judge

Governor Barbour appointed Malcolm Harrison Circuit Court Judge for Hinds County today to fill the term of Judge Bobby DeLaughter. Harrison is currently the County Attorney for Hinds County. Here is Harrison's bio:

Hinds County Attorney, S. Malcolm O. Harrison is a native of Jackson, Mississippi and graduated with honors from Jackson State University in 1991. Attorney Harrison attended Cumberland School of Law, Samford University in Birmingham, Alabama graduating in 1994 with his Juris Doctor degree. Attorney Harrison was admitted to the Mississippi Bar, April of 1995. Attorney Harrison is licensed to practice law in all Courts in the State of Mississippi, including the Supreme Court of Mississippi as well as the Fifth Circuit Court of Appeals in Louisiana.

Hinds County Attorney


Attorney Harrison is a member of several legal associations including, the American Bar Association, Mississippi Bar Association, Magnolia Bar Association, Mississippi Trial Lawyers Association, and American Trial Lawyers Association.

Attorney Harrison is involved and holds many offices in civic organizations, including Leadership Jackson; City of Jackson, Mayor's Youth Initiative, NAACP; Salvation Army; Trustee Board Member, Farish Street Missionary Baptist Church; 7th District Scholarship Chairman; Omega Psi Phi Fraternity, Inc.; T.C. Almore Lodge #242 F&AM; and Jackson State University, National Alumni Association.

On November 2,1999, Attorney Harrison was elected County Attorney for Hinds County Attorney for Hinds County, Mississippi. Attorney Harrison was the first African American elected County Attorney for Hinds County, Mississippi. Attorney Harrison also serves as the City Prosecuting Attorney for Bolton, Mississippi.

Attorney Harrison is married to the former Tammiko Walker and they have two sons, Khari and Kiland.

You can read my prior posts speculating about Harrison getting this seat here. I view this as a smart appointment by Barbour, who appears to be positioning himself for a possible presidential bid. He recently came under criticism for not appointing African-American judges, which I discussed here. Look for Barbour to appoint more black judges over the next couple of years in order to repair his image on this issue.

Harrison will probably have opposition in the next election, but he stands a good chance to retain the seat if he campaigns hard.

Weill v. Ogden Battle Looms to Replace Judge Yerger

Today's Clarion-Ledger contains this article about Jackson city councilman Jeff Weill considering running for the Circuit Court seat that Judge Yerger will vacate with his retirement at the end of next year. The article states:

"It's definitely on my radar," Weill said. "The current plan is to look hard at this opportunity - it's a once-in-a-decade opportunity - and to make a decision after the first of the year."

So far, Weill said his interest has been limited to a few conversations with supporters. But he said he believes he could make more of an impact from the bench on public safety, a key issue in his recent Ward 1 re-election campaign.

"I think I could do more to protect the citizenry as a judge than as a councilman," said Weill, who was re-elected in June to a four-year term on the council. "One of the things Yerger has done is move the criminal docket forward. That's a problem we have and I would like to continue the work he has done."

I can't argue with anything Weill says here, but as a Jackson resident, I would hate to see him leave the city council. I have been impressed with his demeanor and attention to detail on the council.  

Jackson attorney Ashley Ogden also plans to run for seat:

"I have an interest in Jackson's crime problem being solved and that's why I ran in the [last election]," he said. "I would expect a minimum of six to seven people running for that seat, and I'll be one of them."

Ogden will be a formidable opponent for anyone. He garnered 42% of the vote against Judge Yerger and campaigned very hard. Retired Supreme Court Chief Justice Jim Smith now works for Ogden's law firm and will probably be an asset to an Ogden campaign.

Weill is a republican and is probably the hand-picked choice of the the republican party. He has proved that he can win an election and would be a challenge to Ogden. It would not be surprising to see Judge Yerger retire early so that Governor Barbour can give Weill a head start by appointing him to fill the remainder of Yerger's term.

Republicans might not support Ogden because his law practice focuses on representing injured victims instead of insurance companies and big business. While this does not necessarily mean that Ogden would be a bad judge for big business, his background might scare them. Average citizens will love Ogden's tough on crime message and Weill will look like a copy-cat if he uses a similar theme. It promises to be an interesting race.

Mississippi's Punitive Damages Cap May Not Apply in Irby Case

Late Monday blogs and the Clarion-Ledger reported the filing of the anticipated civil suit against Karen and Stuart Irby. Here is a link to the Complaint. One interesting aspect of the case is the fact that Mississippi's cap on punitive damages that was enacted with tort reform may have limited or no application in the case. Here is relevant language from the statute, Miss. Code Ann. 11-1-65:

(3) (a) In any civil action where an entitlement to punitive damages shall have been established under applicable laws, no award of punitive damages shall exceed the following:

      (i) Twenty Million Dollars ($ 20,000,000.00) for a defendant with a net worth of more than One Billion Dollars ($ 1,000,000,000.00);

      (ii) Fifteen Million Dollars ($ 15,000,000.00) for a defendant with a net worth of more than Seven Hundred Fifty Million Dollars ($ 750,000,000.00) but not more than One Billion Dollars ($ 1,000,000,000.00);

      (iii) Five Million Dollars ($ 5,000,000.00) for a defendant with a net worth of more than Five Hundred Million Dollars ($ 500,000,000.00) but not more than Seven Hundred Fifty Million Dollars ($ 750,000,000.00);

      (iv) Three Million Seven Hundred Fifty Thousand Dollars ($ 3,750,000.00) for a defendant with a net worth of more than One Hundred Million Dollars ($ 100,000,000.00) but not more than Five Hundred Million Dollars ($ 500,000,000.00);

      (v) Two Million Five Hundred Thousand Dollars ($ 2,500,000.00) for a defendant with a net worth of more than Fifty Million Dollars ($ 50,000,000.00) but not more than One Hundred Million Dollars ($ 100,000,000.00); or

      (vi) Two percent (2%) of the defendant's net worth for a defendant with a net worth of Fifty Million Dollars ($ 50,000,000.00) or less.

   (b) For the purposes of determining the defendant's net worth in paragraph (a), the amount of the net worth shall be determined in accordance with Generally Accepted Accounting Principles.

   (c) The limitation on the amount of punitive damages imposed by this subsection (3) shall not be disclosed to the trier of fact, but shall be applied by the court to any punitive damages verdict.

   (d) The limitation on the amount of punitive damages imposed by this subsection (3) shall not apply to actions brought for damages or an injury resulting from an act or failure to act by the defendant:

      (i) If the defendant was convicted of a felony under the laws of this state or under federal law which caused the damages or injury; or

      (ii) While the defendant was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription.

(4) Nothing in this section shall be construed as creating a right to an award of punitive damages or to limit the duty of the court, or the appellate courts, to scrutinize all punitive damage awards, ensure that all punitive damage awards comply with applicable procedural, evidentiary and constitutional requirements, and to order remittitur where appropriate.

 

Karen Irby has been charged with a felony and reports are that both Karen and Stuart Irby had been drinking on the night of the accident. So it looks like the punitive cap may not apply in the case.

Eaton v. Frisby: Does Eaton have any Good Arguments?

Jimmy Gates at the Clarion-Ledger reports on a hearing yesterday in Eaton v. Frisby on the issue of whether the Peters-DeLaughter aspect of the case will be kept under seal. The more that this story develops the weaker Eaton's arguments sound. The article summarized the party's positions as follows:

Frisby:

But Alan Perry and Robert McDuff, attorneys for Frisby, now known as Triumph Group Inc., argued sealing should be done on a document-by-document basis.

"Closing everything engenders suspicion and mistrust," McDuff said.

Eaton:

Eaton has argued to keep many court papers sealed, including Yerger's order for Peters to give a deposition. Peters' transcript, however, would be sealed until the court makes a final determination, Yerger ruled.

Yerger asked [Mike] Wallace how Eaton would be prejudiced if the documents in the Eaton vs. Frisby case weren't sealed.

"By suspicion," Wallace responded.

Frisby has the better argument by far. We're ALREADY suspicious.Eaton wanting to maintain secrecy into the investigation of Eaton makes me more suspicious. If you did nothing wrong, why do you care if everything is public?

Eaton hired Ed Peters in the biggest civil case in Mississippi-- a theft of trade secrets case involving hundreds of millions of dollars. Peters' background was as a prosecutor, not as a civil trial lawyer who had obtained a lot of big verdicts. Then Peters did not file an entry of appearance in the case and Frisby did not even know he was on the case. Eaton says that it hired Peters because he had tried a lot of cases. But Eaton's story has some obvious holes.

First, when you hire a hot-shot trial lawyer you want that lawyer to appear in the case to try to scare the other side. Having Peters lay in the weeds does not really serve a purpose. Second, it begs the question of how Peters was being paid? Lawyers getting paid by the hour have an economic incentive to formally appear in the case so that the opposing party has to mail them all their pleadings. In a case this big, a lawyer billing by the hour stands to make a lot of money just reading all the pleadings that the parties file. That was apparently not a big concern for Peters.

Third, Eaton's claim is just intellectually dishonest. Although I believe that there should be, there is no prohibition in Mississippi of hiring a lawyer because of the lawyer's perceived relationship with the judge. The lawyer can't discuss the case with the judge, but he can work on the case. And if the judge respects the lawyer because he knows him, that's just part of it. Our system trusts the judge to not let the relationship influence him and the lawyer to not contact the judge about the case. Here, Eaton could literally just have said that it hired Peters because it thought that Peters could help it with the judge. But Eaton can't say that here, since DeLaughter had no way to know that Peters was on the case, since Peters never filed an entry of appearance.

Eaton appears to be conceding that Peters had improper contact with DeLaughter. Larry Latham's testimony in a 2008 hearing before Judge Yerger pretty much proves that fact with circumstantial evidence. Eaton's defense appears to be that it did not know what Peters was doing. But that begs the question of why Peters would do it on his own? Tim Balducci did it with Judge Lackey because he was sucking up to Scruggs. Peters did it with DeLaughter in the Langston case for a million dollars. But in the Eaton case why would Peters, with Scruggs' million already in his pocket, risk his and DeLaughter's freedom on a case where he wasn't even the lead local attorney for Eaton? When he didn't even appear on the pleadings? When if he was getting paid by the hour he would get paid the same win or lose? It just doesn't make sense unless:

  1.  Peters and DeLaughter were so corrupt that they did not even think about crossing ethical lines; or
  2. Eaton and/ or one or more of Eaton's other lawyers knew what Peters was doing.

If there's another plausible explanation I'd like to hear it.

Eaton v. Frisby: DeLaughter's Deposition Scheduled for October 2, 2009

A subpoena has been issued in Eaton v. Frisby commanding Bobby DeLaughter to appear for a deposition on October 2, 2009 at 9:00 a.m. at the offices of Forman Perry in Jackson. The subpoena was issued by Frisby's attorneys. The court file also indicates that Frisby is attempting to serve a subpoena on Ed Peters in South Louisiana. Finally, there is a short Order signed by Judge Yerger stating that the transcript of Peters' deposition is to be sealed. The Court will presumably also seal the transcript of DeLaughter's deposition. 

The sealing of matters in this case that are unrelated to trade secrets at issue in the litigation is questionable. I doubt that Peters' and Delaughter's depositions will have anything to do with trade secrets or the underlying facts in the case. A review of the public court file suggests that the court is sealing just about everything that has to do with Peters/ DeLaughter. Why? Who knows. I cannot find an explanation in the file. I can't say for sure that it's not there, since its a large and disorganized file. But both myself and my assistant reviewed the file and did not find an explanation for Judge Yerger's treating the Peters/ DeLaughter aspect of the case like it's espionage. 

One party in the case files just about everything under seal and has resisted attempts to unseal portions of the file. Guess which party? Yep, the party whose attorney had ex parte contact with the judge.

Ipse Blogit: Gunn out, Hinds County Judge in for DeLaughter Seat

Ipse Blogit is reporting rumors than Phillip Gunn has withdrawn his name for consideration Judge DeLaughter's seat in Hinds County Circuit Court and that the appointment will be an already sitting judge in Hinds County. Kingfish posted a comment to the story that Chancellor Dwayne Thomas is considering a run for the position.

Peters Immunity Deal Questioned

The Clarion-Ledger contained two stories on Sunday about the controversial decision by the federal government to grant Ed Peters immunity in the judicial bribery scandal involving Judge Bobby DeLaughter. One is an opinion piece stating that Peters got off easy. The other article  mentions the fact that Peters could still face prosecution, stating:

But that doesn't mean Peters won't be charged in other districts for his alleged wrongdoings in other cases DeLaughter heard, Mississippi College School of Law professor Matt Steffey said. "Many people are justly concerned that Mr. Peters and Mr. Peters alone escaped criminal liability."

But at this point it appears that Peters will escape prosecution. The article quotes Hinds County D.A. Robert Smith as stating that he will not prosecute Peters:

Hinds County District Attorney Robert Shuler Smith said his office wouldn't investigate Peters because it's been a federal issue. "They've never called me and asked for our help," Smith said.

Smith said there was not a conflict of interest because of his relationship with Peters, who publicly endorsed Smith for district attorney. The two once were seen eating lunch together in Hattiesburg earlier this year. Smith said Peters was giving him advice on running a DA's office.

That's weak. Smith might as well just admit that he feels indebted to Peters. Smith is letting Peters take a walk not only in Scruggs v. Wilson, but also in Eaton v. Frisby if the facts in the government's 404(b) motion in the DeLaughter case are true. Here is NMC's discussion of that issue. Peters was prepared to testify that he conspired with DeLaughter in Eaton.

As for Mississippi Attorney General Jim Hood:

A spokesperson for Attorney General Jim Hood neither confirmed nor denied an investigation by Hood's office.

Many of Hood's prosecutions have been of the shoot first and ask questions later variety. Given this tendency to rush in, I doubt that Hood will prosecute at this late date. His office just will not come out and admit it.

That leaves one person not mentioned in the article who could prosecute Peters: Rankin-Madison County District Attorney Michael Guest. According to Tim Balducci, Peters, Steve Patterson, Joey Langston and Balducci met at the Jackson or Madison airport to discuss Peters' communications with Judge DeLaughter about Scruggs v. Wilson. Both airports are in Guest's jurisdiction. While I am no criminal law expert, it sounds like a conspiracy was committed in Guest's jurisdiction. It is unclear why Guest, who is a Republican, would not be eager to prosecute in this high profile case. It is unclear whether Guest has a personal relationship with Peters or if pressure has been put on Guest to not prosecute in the case. At this point, it looks like Guest is the last hope for those who would like to see Peters held accountable for his role in the scandal. Clarksdale attorney Charlie Merkel expresses the sentiments of many when he states:

"I hope [the investigation] goes forward, and I hope the rest of the culprits get nailed, but I am not optimistic that will happen."

Eaton v. Frisby Docket Sheet and Protective Orders

NMC and others have criticized the sealing of the court file in Eaton v. Frisby. It appears that it started with an an Agreed Protective Order in 2005 that was designed to protect the confidentiality of trade secrets. That was followed by a Supplemental Protective Order later in 2005 that was also directed at trade secrets. Now most pleadings and orders are filed under seal in the case. I don't have a problem with protecting trade secrets. The problem is that protective orders designed for protecting trade secrets are routinely abused with parties designating all sorts of material as protected that are not trade secrets. A review of the docket in Eaton suggests that the parties are improperly filing documents under seal, but it's hard to say when you do not know what is in the material under the seal.

Here is a copy of a printout of the docket in the case, which lists all filings in the case until this week. This shows that many, if not most, of the pleadings and orders are now being filed under seal. I do not know why Judge Yerger is ordering the sealing of so many orders in the case, but I suspect that it has more to do with DeLaughter than trade secrets. If so, I question the correctness of sealing the orders. As a practical matter, transparency in this case is particularly important and would strengthen the public and bar's confidence in the judiciary. Judge Yerger is also closing the hearings and has reportedly kicked Clarion-Ledger reporter Jimmy Gates out of hearings. A few years ago the Ledger would have been fighting the secrecy in this case, but in today's world of struggling newspapers Gannett probably does not want to spend to money on an attorney.

Barbour 0-20 Appointing Black Judges

The U.S Census Bureau web site states that thirty-seven percent of Mississippians are black. According to this article in Sunday's Clarion-Ledger, Governor Barbour has appointed twenty state court judges in his tenure with all twenty being white. That's a really bad statistic for a man positioning himself for a presidential run. The Republican Party's Southern Strategy appears dead after the last presidential election. Getting most of the white votes in the South isn't enough anymore. Anyone who wants to be president is going to need to pick up minority votes somewhere. With a stat like this, blacks are out as potential Barbour supporters. And are Hispanics going to think that Barbour will be a good president for them with a stat like this? Probably not. This is the type of statistic that will get major national media attention should Barbour run for president. I am on record as stating that Barbour has a legitimate shot in 2012, but stuff like this could kill him.

With disgraced Judge Bobby DeLaughter's seat now open Barbour could begin to rectify this horrible record by appointing a black lawyer to fill DeLaughter's seat. But the leading candidates rumored to be on Barbour's list are all white. Given the importance of the seat it would be shocking if Barbour appointed a black to the position and would be the clearest signal yet that Barbour is positioning himself for a 2012 presidential bid.

Weekend Update: C-L Speculates on DeLaughter's Replacement and Status of Judicial Bribery Probe

Saturday's Clarion-Ledger contains this article about possible appointees for the Circuit Court Judge seat formerly held by Bobby DeLaughter. The article mentions Rep. Phillip Gunn and Judges Bill Skinner and Bill Gowan as possible replacements. Ipse Blogit has this position going to Gunn if he wants it. Ipse Blogit probably has much better sources on this than the Ledger.

Sunday's Clarion-Ledger has this article about the status of the judicial bribery probe and the Eaton v. Frisby case. While the probe may not be over, I have trouble believing that it is going anywhere. The original indictments of Scruggs and company were handed down quickly. With all of those guys cooperating it's hard to believe that it would take this long for more indictments. Everyone thought that there would be more lawyers indicted in the fen phen probe, but there never were. The judicial bribery probe looks similar as far as dying a slow death.

The most interesting part of the article were the quotes of Eaton senior vice president of communications Don McGrath. McGrath denies that Ed Peters was brought into the case to improplery influence Ed Peters:

"There are a lot of false statements in here," said Don McGrath, senior vice president of communications for Eaton, said of the document. "In no way did we ask Ed Peters to imply or ask or insinuate that he would do anything improper in trying to influence Judge DeLaughter or any other judge."

Asked why Eaton decided to hire Peters, a longtime prosecutor, McGrath replied, "There are few Mississippi trial lawyers that have as much experience as Ed Peters."

As for Peters not being listed with the other attorneys of record, McGrath explained that not everyone who works on a lawsuit gets mentioned. "There's no requirement to list everybody working on the case," he said.

I don't buy any of this. First, there is not one lawyer in the Jackson area who would believe that Peters' job on the case was to do anything other than influence DeLaughter. If Eaton's objective was for Peters to "properly" influence DeLaughter, that is a slippery slope. The fact that Peters never filed an entry of appearance, which is standard when a new lawyer enters a case, suggests that the intent was to improperly influence DeLaughter. Otherwise, how would DeLaughter know that Peters was even in the case, since he never appeared?

Second, the justification that Eaton hired Peters because of his trial experience is hogwash. If that was true, Peters would have been trying civil cases all over the state instead of focusing his civil practice on airport meetings sandwiched around lunch with the judge at Shoney's. If McGrath cannot do any better than this he needs to keep his mouth shut.

Third, although there is no requirement to mention everyone working on a case, why exactly did Eaton not disclose that Peters was on the case? The fact that it's not required sounds more like a defense than a real reason. Peters was involved in the case and apparently talked DeLaughter into replacing Jack Dunbar as special master. Peters went so far as to call Larry Latham to see if he would be willing to serve as special master, but later left a cryptic message with Latham to not mention his name. To Latham's credit, he immediately reported this. This leaves the question of what Eaton and its lawyers knew about all this.

According to Tim Balducci's testimony about Scruggs v. Wilson, Peters did not get hired and then never communicate back with the people who hired him. In the Scruggs case, Peters communicated his every move back to the Scruggs team. Why would it have been any different in Eaton? Why would Peters have taken it upon himself to get the special master replaced after a bad ruling?  And would he have done it without consulting with the other Eaton lawyers on the case? In my opinion, the answer is no. The bottom line is that the more information that emerges, the worse it looks for Eaton.

I intend to write more about this later, but there should be a rule or law in Mississippi that prohibits the hiring of a lawyer because of the lawyer's personal relationship with the presiding judge. There is currently no such prohibition.  

Update on Two Hinds County Jury Verdicts

I was able to obtain more information on the recent $4.6 million jury verdict in Hinds County Circuit Court. It is my understanding that the defendant was Baptist Hospital and one or more physicians, but that the verdict was only against the hospital. It was a wrongful death case where the plaintiff's records disclosed that she was allergic to latex, but the hospital used latex gloves in her surgery, causing her to die. The decedent was a young attorney employed by the Department of Human Services and the case was a pre-tort reform cap case. Since the decedent was and attorney, the plaintiff would have been able to prove substantial economic damages.  

The Plaintiffs did not ask that the case proceed to a punitive damages phase. Plaintiff's attorneys at trial were Joey Diaz and Dennis Sweet of Jackson. Judge Kidd was the trial judge.

In a separate case, I understand that there was an 11-1 defense verdict in Hinds County last week in a nursing home case. Sharon Bridges with Brunini was on the defense side and plaintiff's attorneys included John Hawkins and Precious Martin.

Hinds Circuit Judge Swan Yerger announces retirement in 2010

The Clarion-Ledger is reporting that Hinds County Circuit Judge Swan Yerger will not run for reelection when his current term expires on December 31, 2010.

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Judge Yerger is 74 years old and has served on the bench since 1997. There have been rumors over the last few months that Judge Yerger would retire at the end of this year, which would allow Governor Barbour to appoint a replacement to serve until the next election. Judge Yerger currently presides over the Eaton v. Frisby trade secrets case, which is probably the biggest case currently pending in any Mississippi state court. Perhaps Judge Yerger plans to stay on the bench through 2010 so that  he can preside over the trial of that case.

Speculation will be rampant over who will run for the seat in 2010. The early favorite would have to be successful Jackson plaintiff attorney Ashley Ogden. Ogden ran against Yerger in the last election and almost won. Rumors around town are that Ogden already plans to run for the seat. Ogden is young and energetic and would be a formidable opponent  for any candidate. Republican interests would fear Ogden due to his plaintiff lawyer background. Ogden's firm web site is called Take Back Jackson and suggests that he never stopped campaigning for the seat. Former Mississippi Supreme Court Chief Justice Jim Smith is now associated with Ogden's firm. The conservative Smith's active support in a campaign would be a huge benefit to Ogden's chances.  

There is no doubt that Judge Yerger's retirement and the looming election to replace him will be a huge story in 2010.  

Malcolm Harrison: future Hinds County Circuit Court Judge?

A reader of this blog emailed me and suggested that Malcolm Harrison would be a strong candidate in a special election to fill Judge DeLaughter's seat should the position become open. Harrison is the current county prosecutor, has a solid reputation, lives in the Raymond area (seat of the 2nd judicial district), is African-American and has previously won two county-wide elections. These are strong credentials for the position.

Another suggested possibility to fill the seat was Jackson attorney Melvin Priester. It has been a number of years since any of the Hinds County Circuit Court Judge positions were vacant. A vacancy would no doubt cause a huge amount of political intrigue and jockeying.