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

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

 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.

• Email This
• Print
• Comments
• Trackbacks

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. 

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.   

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.

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

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.

• Email This
• Print
• Comments
• Trackbacks

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.

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

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

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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."

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.   

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

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.  

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

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.