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

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Last Wednesday a North Mississippi federal court jury awarded $50,000 in emotional distress damages to former Como police chief Cleve Gale. Como fired Gale in 2008 after serving 25 years as chief. The 3–2 vote to terminate Gale was along racial lines with 3 white alderman voting to terminate.

Here is Gale's Complaint. The jury's verdict form indicates that the jury found that race was one motivating factor in the town's decision to fire Gale, but other factors were also involved. Because of this finding, Gale did not recover back pay. Here is the verdict form.

The jury consisted of 7 whites and 1 black.

Jim Waide and Rachel Pierce of Waide & Associates in Tupelo represented the plaintiff. Gary Friedman and Brett Harvey of Phelps Dunbar in Jackson represented the defendant. Judge Michael Mills presided in the case. 

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The news Tuesday of the passing of U.S. District Judge Allen Pepper was a shocker. It was just last week that I reported on a jury verdict in a case tried before Judge Pepper.

The Mississippi legal community expressed uniform admiration for Judge Pepper and sadness over his death. From Patsy Brumfield's article in the NEDJ:

Chief U.S. Dist. Judge Mike Mills:  “I’ve lost a good friend, a wonderful person.” “He was a good judge.” "He will be missed all over the state of Mississippi.”

Ashland attorney Anthony Farese: He was  “an excellent judge who firmly followed the law, but had compassion for his fellow man.”

Oxford attorney Christi McCoy: A finer person has never put on a black robe.” “He truly cared for the people he had to sentence.”

Tupelo attorney Guy Mitchell III: “He was a fair-minded man.”

From Jimmy Gates' article in the Clarion-Ledger:

U.S. Dist. Judge Neal Biggers: “He was a pleasure to work with and also just to hang out with."

Tupelo attorney Jim Waide: "They just loved him around the (federal) courthouse."

Former Greenville Mayor Heather McTeer: “had a strong history on the federal bench" and "was very supportive of his community."

U.S. Dist. Judge Sharion Aycock: “His life included practically every facet of public service - with over thirty years in private law practice, service on numerous state and national professional boards and committees, his military service, his church, his community, not to mention his exemplary service to the federal judiciary."  

A bio on Judge Pepper locate by Cottonmouth states that Judge Pepper maintained a solo practice in Cleveland for thirty years before being appointed to the bench in 1999.

I did not know Judge Pepper and never personally appeared before him. But I have an affinity for any lawyer who can maintain a solo practice for thirty years. Attorneys who practiced before Judge Pepper loved him. He will be sorely missed.   

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On Thursday a North Mississippi Federal Court jury in the Delta Division rendered a total verdict of $771,000 in a retaliatory discharge trial against DeSoto County and jail administrator Steve Atkinson.

The plaintiffs were former jailers Tammy Williams, Cheryl Hambrick and Earl Russell. The plaintiffs alleged that they were fired for reporting Sgt. Stephen Winters for assaulting an inmate in the jail. Here is the Third Amended Complaint. The defendants claimed that the plaintiffs were fired for other reasons.

The firings happened in 2004. Plaintiffs filed suit in 2005. The case was twice appealed to the 5^th Circuit and there was a trial with a hung jury in March 2011.

The jury found for all three plaintiffs against both defendants. Here is the jury's verdict. The jury awarded the following damages:

• $182,000 actual damages to Tammy Willliams
• $215,000 actual damages to Cheryl Hambrick
• $174,000 actual damages to Earl Russell
• $50,000 punitive damages to Tammy Williams
• $50,000 punitive damages to Earl Russell
• $50,000 punitive damages to Cheryl Hambrick

Jim Waide and Rachel Pierce of Waide and Associates and Shane McLaughlin (all of Tupelo) represented the plaintiffs. It appears that Steven Lacey from Barfield & Associates in Madison was the lead defense counsel. 

District Judge Allen Pepper presided in the case.

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Earlier this year I wrote about a Plaintiff verdict in a Hurricane Katrina wind vs. water trial against Lloyd's of London here, here and here.

The plaintiff was allowed to recover attorney's fees in the case because the Court found that Lloyd's had no arguable basis to deny the claim. On December 21 Judge Sul Ozerden awarded the plaintiffs the following extra-contractual damages:

• $1,922,487.25 in attorney's fees
• $234,800.73 in expenses
• $954,245.31 in pre-judgment interest.

The total extra-contractual damages were $3,111,533.29 (plus post-judgment interest).

Here is Judge Ozerden's 40–page opinion on the attorney's fee issue. The Court awarded a rate for Don Barrett of $375 per hour ($475 hr. requested) and David McMullan's of $300 per hour ($345 requested). From my knowledge of hourly rates in Mississippi, both the rates requested and the rates awarded were in the range of reasonableness when compared to premium rates charged by top litigation attorneys in the state.  

Lloyd's took an interesting approach in opposing the requested rates by identifying the rates of its trial attorneys: $285–hr. for Paul Fields from Atlanta and $200–hr. for Whit Johnson from Currie Johnson in Flowood. Lloyd's should be ashamed that it was paying Whit Johnson only $200–hr. Whit is one of the top defense lawyers in the state and could justify a rate double what Lloyd's was paying him.

Judge Ozerden also reduced the compensatory damages award to $1,832,602.20 based on the policy's coinsurance condition and windstorm or hail deductible. Here is that opinion. 

My Take:

Judge Ozerden's opinions were thorough and well-reasoned.

Don't look for Lloyd's to be lobbying for loser-pays legislation when the State Legislature convenes this week.   

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

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

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

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

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

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

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

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

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

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

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On November 4 a Northern District (Western Division) Federal Court jury awarded Michael Mathis $388,000 against Northeast Mississippi Electric Power Association. Here are the jury's special verdict forms.

Here is the plaintiff's complaint. The plaintiff alleged that NEMEPA fired him because he is black. The jury agreed.

The jury awarded $138,000 for back pay and benefits and $250,000 for non-economic damages. In addition, the jury found that the plaintiff should be awarded punitive damages, but could not unanimously decide on an amount.

Jim Waide and Rachel Pierce of Tupelo represented the plaintiff. Lawrence Little of Oxford and Dion Shanley of St. Augustine Florida represented the defendants. Judge Allen Pepper presided in the case.

My Take:

Is it just me, or does it seem like plaintiff verdicts are getting more common in employment cases, but it's harder than ever for a plaintiff to win a personal injury case? Maybe in these tough economic times, juries are placing more value in a person's job.

The jury's verdict on punitive damages is very interesting. Does this mean that the plaintiff gets a new trial on the issue of the amount of punitive damages?

We may not get an answer to that question. The Magistrate Judge is scheduled to mediate the case on Tuesday. Anyone want to bet that the case does not settle?

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On August 12, 2011 a federal court jury in the Northern District rendered a $578,500 verdict against Boyd Tunica, Inc. d/b/a Sam's Town Hotel & Gaming Hall in an employment discrimination case. Here is the Jury's verdict. Here is a Clarion-Ledger article on the verdict.

The jury awarded the following damages:

• $102,000: back pay
• $76,500: mental anxiety
• $400,000: punitive damages.

The plaintiff Marc Silverberg alleged that he was discriminated against because he is Jewish. Here is the Complaint.Here is plaintiff's brief opposing summary judgment.

Jim Waide of Tupelo represented the plaintiff. Gary Friedman and La Toya Merrit with Phelps Dunbar in Jackson represented the defendant. Judge Allen Pepper Jr. was the trial judge.

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The City of Canton is suing Nissan seeking a declaratory judgment that Canton's 2000 agreement to not annex the Nissan plant located outside Canton for at least 30 years is not binding on the City. Apparently, Canton wants to annex the Nissan plant so that it can collect taxes from Nissan. 

Here is the City of Canton's Complaint, which it filed in state court. Nissan removed the case to federal court.

One of the claims in the Complaint is for a declaration that Canton's 2000 agreement is not binding on subsequent city administrations. Huh? That argument sounds so bad that it makes me think I'm missing something.

A contract is not binding on a successor administration? So the agreement was actually only for the life of the 2000 administration? Even though the contract said 30 years? Really? Really? What am I missing here?

But it gets worse.

Here are the exhibits to the Complaint. Page 8 is part of a letter to the then Mayor of Canton that stated that a statute passed regarding the project specifically authorized Canton's administration to bind future administrations.

Barbara Blackmon of Blackmon and Blackmon in Canton represents the City of Canton. Mitchell Cowan with Watkins Ludlam in Jackson represents Nissan. U.S. District Judge Carlton Reeves presides in the case.

My Take:

Nissan appears to be a big favorite in this one. Why? Because a deal's a deal. I think that's Latin.

I don't see how Canton can get out of its 2000 agreement.   

So why did Canton make that deal in 2000? Probably because Canton stood to benefit from the Nissan plant due to its proximity to the plant. I'm sure that has been the case.

Also, it seems that Canton can annex every hotel, restaurant and gas station within miles of the Nissan plant. This would allow Canton to tax surrounding properties that benefit from the proximity to the plant.  

Several people have mentioned this lawsuit to me. Their comments are uniformly critical of the City of Canton. The public does not sympathize with Canton because the City receives economic benefit from the Nissan plant due to its proximity to the plant. It seems that most people in the state are rooting for Nissan in this one.  

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Everyone knows that slots are a sucker's play with the highest house edge in the casino. Not satisfied with crushing a player's wallet, however, Tunica slot machines are now physically attacking patrons.

The Sun-Herald reported today on Randy Perkins' personal injury lawsuit against Tunica Roadhouse Corporation. Here is Mr. Perkins' Complaint, filed in the U.S. District Court for the Northern District of Mississippi.

The Complaint alleges that plaintiff sat down to play the slots “when suddenly, and without warning, the heavy metal front of the slot machine fell onto the Plaintiff.” The machine hit Plaintiff's arm and knocked him off his stool, which caused a back injury. Plaintiff seeks $750,000 in damages.

Jonathan Barrett and Patrick Barrett with the Barrett law firm represent the plaintiff.

My Take:

I wonder if this case could settle for 100,000? Player's points—-not dollars.

Being the cynic that I am, my first thought was that the slot machine gave the plaintiff a monetary thrashing; plaintiff got frustrated; plaintiff physically attacked the slot machine. Plaintiff's attack caused the front of the machine to fall on the plaintiff.

I mean who hasn't wanted to beat the crap out of a slot or video poker machine? Right?

If that is how it happened, the slot machine will probably claim self-defense. 

Of course, it's more likely that some other patron beat the crap out of the slot machine before the plaintiff began playing the machine. Regardless of who attacked the slot, I bet this slot machine had taken a lot of people's money and had it coming.

Please Lord, let there be video. And let it make it to You Tube.

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

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

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

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

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

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On Friday I learned that Jenny Virden has been selected as the next U.S. Magistrate for the Northern District of Mississippi. I asked around and apparently I am the last person to know this.

Here is Ms. Virden's bio on the Chapman, Lewis & Swan website.

I do not recall ever having a case with Virden, but everyone who I talked to about her has been effusive in their praise of her legal abilities. She has the sweet spot of experience that I like to see in Magistrate Judge appointments by having civil litigation experience on both the plaintiff and defense sides. Many (but not all) attorneys without that dual experience have a blind spot in their views toward the other side.

Virden will be based in Greenville. Magistrate Judge David Sanders will move from Greenville to Aberdeen.

Magistrate Judge Jerry Davis is retiring, which created the vacancy that Virden will fill. Judge Davis is probably the most popular magistrate judge in the state among attorneys and will be missed.    

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As mentioned in yesterday's post, Mississippi federal Southern District Judge Dan Russell of Gulfport died on Saturday at the age of 98. Here is Judge Russell's obituary in the Clarion-Ledger.  I read somewhere that he wrote it himself.

I did not know Judge Russell. But by all accounts from Gulfport residents who did know him, he was a real character.

And how he lived through interesting times. Russell was born in 1913 and grew up in Mississippi at a time when the state still felt the consequences of the destruction of the Civil War. He saw the Great Depression, World War I and II (where he served in the Navy), the Civil Rights Movement, man's progression from early flight to space travel, incredible progressions in technology, Hurricanes Camille and Katrina and the transformation of the Mississippi Gulf Coast from a sleepy little coastal area to a strip mall infested home of the casino industry.

Judge Russell was appointed to the federal bench in 1965 by President Lyndon Johnson. To put this in perspective, this was the year after the recently sworn-in Judge Carlton Reeves was born.

My cursory search on Lexis found opinions that Judge Russell wrote in 2007. So it appears that he was an active judge for over 40 years even though he was over 50 years old when appointed to the bench. That is an impressive record of public service that will be tough for anyone to match. 

Both the federal courthouse in Gulfport and the street in from of the courthouse bear is name.   

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Friday Mississippi's federal judiciary celebrated the appointment of District Judge Carlton Reeves with his investiture at Jackson State University. The vast majority of the Mississippi federal judiciary attended the event, which was marked by several moving speeches about the Yazoo City native's accomplishment of becoming a federal judge.

Judge Reeves' former law partner Cliff Johnson served as the Master of Ceremonies “Special Master” of the the proceeding. Former Southern District U.S. Attorney Brad Pigott gave what, to me, was the best speech of the event. Pigott—who worked with Reeves for many years at the U.S. Attorney's office and in private practice—noted that Reeves was born in 1964 when white supremacy still ruled in Mississippi. Today, it is hard to imagine how big a disadvantage it was to be born African-American in Mississippi in 1964. Mississippi has come a long way in the last forty-seven years and Carlton Reeves is as good of an example of that as there is.

An emotional Judge Reeves told a humorous and moving account of the first time he entered a law office when he was a teenager. It was the Barbour Law Firm in Yazoo City. Reeves was there to help his mother clean the offices. While his mother cleaned, Reeves played with, and then broke, the copy machine. On Friday, Senior Judge William Barbour, Jr., formerly of the Barbour Law Firm in Yazoo City, administered the oath to Judge Reeves. That may sound like a Hollywood movie, but it's true.

Following the administration of oath and presentation of robe, Judge Reeves took his seat next to Judge Sul Ozerden. Judge Ozerden's investiture several years ago was marked by his moving account of his father's immigration to the U.S. from Turkey with a plane ticket, one suitcase and very little money. I doubt that anyone who personally knew Reeves or Ozerden as they grew up is surprised by their achievements. The story is not that they had the talent to become federal judges, but that they could. Fifty years ago Reeves would have been prevented by his skin color; Ozerden by the fact that his father was not sufficiently 'good ole boy' to have a son rise that far, that fast.  

Perhaps people who think that things used to be better 'back in the day' are wrong. Today, the phrase that “all men are created equal” is more true in this country than it has ever been.

Sadly, Friday's celebration was followed by the death on Saturday of Senior U.S. District Judge Dan Russell, Jr. of of Gulfport. At Judge Reeves' investiture, Southern District Chief Judge Louis Guirola spoke of talking to Judge Russell the prior day and conveyed Russell's wishes of Godspeed to Judge Reeves. Judge Guirola spoke highly of Judge Russell with emotion in his voice. I will reflect more on Judge Russell's passing in a post on Tuesday.          

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The Clarion-Ledger reported on Friday's guilty verdict in federal court in Jackson of 54–year old Cassandra Faye Thomas. The Jackson doctor was accused of orchestrating a fraudulent scheme to defraud Medicare and Medicaid of $6.9 million. The doctor was convicted of bilking the system through unlawful claims for therapy services.  The verdict brings attention to a massive problem that costs U.S. taxpayers billions of dollars every year.

Here is an 2009 overview of healthcare fraud by Sara Rosenbaum, Nancy Lopez and Scott Stifler of the George Washington University Medical Center. Some of the findings include:

• estimates of healthcare fraud range from over $68  to over $200 billion annually;
• 3–10% of healthcare spending is on fraudulent claims;
• 80% of healthcare fraud is committed by healthcare providers; and
• victims tend to be low income and elderly persons.

 Entire businesses are set up to game the system. For instance, many nursing home operations reap huge profits from billing Medicare for therapy services during a nursing home resident's first 100 days in a facility. In a crooked nursing home operation every Medicare resident will receive physical therapy, occupational therapy and speech therapy during their first 100 days in the facility—whether they need it or not. The nursing home bills Medicare for each of these services.

The same nursing homes stop providing therapy as the resident reaches their 100th day in the facility, since Medicaid does not pay for individual services and many residents go to Medicaid as their pay-source after 100 days. Some residents get therapy even though they don't need it. That results in Medicare fraud.

Equally bad is these nursing homes' system of not providing therapy to Medicaid residents. Many residents who would benefit from therapy do not receive it because they are not on Medicare and have no pay source other than Medicaid.

As the prosecution of Dr. Thomas shows, the federal government does what it can to stop healthcare fraud. But more needs to be done. This is particularly true since Medicare spending is projected to substantially increase in the coming years. Fraudulent claims are fat in the system that can and needs to be cut, saving taxpayers billions.  

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I obtained more information on Tuesday's million dollar plus verdict in federal court in Gulf port in an 18-wheeler case. According to my reports the plaintiff claimed $155,000 in medical expenses. That means that the jury awarded less than the actual bills in medical expenses. The medicals included $50,000 for a surgery for a blood clot caused by a bad needle stick.

Plaintiff claimed lost wages of $2.1 million. Defendants' economist said the number was $579,000. The parties disagreed on plaintiff's work life expectancy. They compromised this disagreement by agreeing to reduce the lost earnings verdict by 26%. That is why the judgment is smaller than the verdict minus the 1% apportionment. 

Defendants hoped for a higher fault apportionment to the unknown driver who caused plaintiff's driver to slam on the brakes. The jury rejected the argument and found that the 18-wheeler should have stayed far enough behind the car to avoid the accident. 

The jury was all white and very conservative.

I do not know what the defendants were hoping to keep the verdict to. But based on this information, my estimate is that they wanted to keep it under $500,000. A grand slam home run for the plaintiff would have been a verdict over $2.5 million. Of course, that size verdict is real hard to get in that conservative of a venue. 

All in all it looks like a victory for the plaintiff. As is often the case in clear liability auto collision cases, the verdict was well between the two sides' positions.    

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On Tuesday a federal court jury in Gulfport returned a verdict of $1,132,491 in a case involving an 18–wheeler rear-end collision on I-10 in Harrison County. Here is the verdict form, which awarded the following damages:

•  medical expenses: $132,491.50
• lost earnings: $850,000
• non-economic damages: $150,000.

The jury assigned 1% fault to an unknown driver. As a result, judgment was entered against the defendants for $902,376.59. Here is the judgment.

Here is the original complaint filed in state court. The case was removed to federal court.

Kasie Braswell of Mobile represented the plaintiff. Benny 'Mac' May of Dunbar Monroe in Ridgeland represented the defendants. Judge Louis Guirola was the trial judge. 

My Take:

I can't tell who won. The defendant presumably did not admit liability based on the apportionment part of the verdict form. So plaintiff getting a verdict against the defendant was a win for the plaintiff.

But the amount of the verdict seems small for this case. The plaintiff had economic damages of almost $1 million. The jury's award of $150,000 in non-economic damages was a victory for the defense. Once you factor in attorney's fees, the plaintiff would not be made whole by this verdict even if she had no non-economic damages. But with $132,000 in medicals, the plaintiff probably had substantial pain and suffering. So both sides can find something to like about this verdict.     

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 A few weeks ago there was a $2 million verdict in a federal court Katrina wind vs. water trial. I last discussed the verdict in this post. Following the verdict the Court ruled that there was no arguable basis for Lloyd's of London to deny the claim, so the plaintiff is entitled to recover attorney's fees and expenses.

Here is plaintiff's motion, which it filed last week. The motion is well written and a good read.

The motion requests the following:

• attorney's fees: $2,312,312
• expenses: $279,338
• interest: $950,389
• Total: $3,512,039.

That's a lot of money. But does anyone want to bet me that the defendant did not have more than $2.6 million in fees and expenses? I bet they did.

Some facts about the scope of the case from the motion:

• pleadings: 400 plus
• depositions: 31
• motions: 68
• summary judgment motions: 4
• pre-trial order: 239 pages.

I look at those stats and see $5–10 million in defense fees and expenses. This is one of those cases where people see the verdict and the motion and think about all the money that the plaintiff's lawyers will make. But the defense lawyers will make as much or more than the plaintiff lawyers while taking no risk. Equally as important, the defense lawyers have been banking their money for years while the plaintiff lawyers have to collect to fill a big hole.

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One of the first posts on this blog was this post in February 2009 about the issue of attorney's fees and expenses in the City of Jackson Firefighters sexual harassment case to be decided by Judge Henry Wingate. Judge Wingate issued his ruling yesterday. Here is the 41 page Order.

Background:

The City lost the trial, but Judge Wingate ordered a new trial in this order due to attorney misconduct by plaintiffs' counsel at trial. Basically, plaintiff's counsel could not follow instructions from the judge during trial. That or they chose not to, which I do not believe based on what I saw.

As I stated in my original post on this case, I watched a bit of the trial and thought that plaintiffs' counsel suffered from a severe case of deer-in-the-headlights due to inexperience. I suspect that their heart rates were so high from nervousness that they could not process Judge Wingate's evidentiary rulings and adjust on the fly.

 Judge Wingate was still unhappy about a lying plaintiff, which I described in my last post:

Judge Wingate was not impressed by one plaintiff who testified on cross-examination that the money for her car payment came directly from God who placed it into her account every month. Frankly, I thought this was a little cheap on God's part. Couldn't God have delivered the car without a note, or at least paid it all off at one time?

In the latest order, Judge Wingate quotes some of the testimony by the lying plaintiff:

Q: And who pays that [car] note?

A: By the the grace of God, supernaturally, it's paid every month.

Q: So you pay it yourself?

A: No. Supernaturally, it's paid for every month. 

Q: [Say what?]

A: When I say 'supernaturally', I mean money come up in my account every month to pay it because the lord is the one who blessed me with it.

The jury awarded this lady $160,000. It appears that Judge Wingate still cannot believe it.

The Ruling on the Motion for Attorney's Fees: 

After Judge Wingate ordered the new trial, the parties settled for $250,000 and agreed that the Court would decide the issue of attorney's fees.

Plaintiffs sought $1,237,812.26 in attorney's fees and expenses. Judge Wingate awarded $263,901.78, which was 21% of the request. The Court got there by reducing the requested rate, cutting some of the hours and reducing the remaining hours to 40% due to the result of the case.

My Take:

Judge Wingate's ruling was a win for the City of Jackson, which stood to lose another million dollars in the case. But what I really find interesting is the lying plaintiff.

Lawyers like to believe that if they can prove that the opposing party is lying, then the impeaching lawyer's side will win the case. That is probably true a lot of the time. But this case shows that it is not always true. Here, a plaintiff lied and won anyway.

This means that a case is not won just because you prove that a witness lied. It is also probably a testament to the power of confirmation bias. People view issues and disputes with pre-conceived opinions and notions and discount evidence that it inconsistent with their pre-conceived views. This is a big factor in it being so hard to get a plaintiff's verdict in many Mississippi counties. The jury in this case probably concluded that the fact that one of the plaintiffs lied was not important and focused on the evidence that supported plaintiffs' case.

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Friday evening a jury in the U.S. District Court for the Southern District of Mississippi, Jackson Division, returned an $875,000 verdict for Claire Harrison in her discrimination lawsuit against LMA North America, Inc.

Here is the Jury Verdict.

I'm having trouble posting the Complaint.

The plaintiff alleged that the company discriminated against women and had a hostile work environment for women. Plaintiff also alleged that the CEO requested sexual favors from the plaintiff and fired her when she refused. The jury agreed.  

The verdict included $125,000 for lost wages and $750,000 for pain and suffering. The plaintiff can now seek an award of attorney's fees.

Ashley Ogden, Jim Smith and Wendy Yuan represented the plaintiff. Randy Patterson and Jennifer Hall from Baker Donelson represented the defendant. Judge Henry Wingate was the trial judge.

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In this post in January I wrote about a discrimination lawsuit by Sherrie Moore against the Allen, Cobb, Hood and Atkinson law firm based in Gulfport.

Since the initial filing, there have been a round of recusals by the Coast-based federal court judges:

• Judge Ozerden recusal Order;
• Magistrate Judge Walker recusal Order;
• Order Re-assigning Case; and
• Supplemental Order Reassigning Magistrate Judge.

The “winners” of the judicial sweepstakes are…….Chief Judge Michael Mills and Magistrate Judge Allan Alexander of the Northern District. But the case is still a Southern District case. It's not every day that you see a Coast case get kicked all the way up to Oxford. But it's understandable in a case between a lawyer and an established Coast firm.

 Judge Alexander set the Case Management Conference for April 19, 2011.

The defense lawyers are based out of Columbus and the plaintiff's lawyers are based out of Jackson. So the re-assignment should have little impact on the litigation. 

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Who was the President in 2010? Anyone who said George W. Bush is wrong, unless they are going by the inscription at the new federal courthouse in Jackson.

The photo below was taken on Wednesday.  

It's a federal building for God's sake. You would think that the feds could get the identity of the President in 2010 right.

Update: NMC explains the reason for the error--and I'm still calling it an error--here.

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Two weeks ago I reported in this post on a $2 million verdict in a Katrina wind vs. water trial. I have not heard anything new about the case other than what I've read on Pacer.

Here is the original Complaint, filed in 2007 and signed by Sid Backstrom of the Scruggs Law Firm. The Complaint appears to be a product of the now infamous Scruggs Katrina Group. It looks like the Barrett law firm ended up trying the case. The Scruggs lawyers were—presumably—unavailable for trial.

The defense team appeared to involve a cast of thousands with lawyers from Atlanta and New Orleans. Whit Johnson from Currie Johnson in Flowood is also listed down in the ranks of defense lawyers. I don't know who did what at trial.  

The Pre-trial order is not available on Pacer. Judge Ozerden ordered the plaintiff to to file a motion for attorney fees before March 17, 2011. An award of attorney fees could substantially increase the defendant's exposure.   

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A federal court jury in Gulfport rendered a plaintiff verdict yesterday in a Katrina wind vs. water trial against Lloyd's of London. Here is the verdict form, which I interpret to mean that the plaintiff recovers just over $2 million.

Judge Sul Ozerden was the trial judge. I will post more on this verdict next week.

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On February 9, 2011 a federal court jury in the Northern District (Western Division) returned a $200,000 verdict against Regions Bank in favor of PGP Investments, LLC. Here is the jury verdict.

Here is PGP's Complaint in the case. PGP alleged that Regions initially agreed to loan money to PGP in January 2008, but reneged on the agreement in the summer of 2008 as the financial markets collapsed. Taylor Boone, son of Ole Miss Athletic Director Pete Boone, was the Regions employee who was responsible for the deal.  

David Shelton of Oxford represented PGP. Frank Holbrook of Butler Snow's Memphis office represented Regions. Chief Judge Michael Mills presided over the case.

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NMC wrote earlier this week about Judge Mills' decision to grant a new trial on damages in the $1.15 million Fred's Dollar trip-and-fall case that I reported in this post in November. Here is NMC's link to the opinion.

The decision generated some interesting comments over at NMC that are worth reading.

Judge Mills devoted the first part of the opinion to scolding Fred's for arguing that Fred's should have won on liability. I found this odd for two reasons. First, Judge Mills himself characterized plaintiff's claims as “rather weak” in his order denying summary judgment. Having gone on the record characterizing plaintiff's claims as weak, I don't see how Judge Mills could have been offended when Fred's argued that it should have won on liability.

Second, Fred's liability argument appeared to be a routine argument by the side that lost. It's unusual to see a judge scold a litigant for making a routine argument. 

The second part of the opinion dealt with the damages issue. Judge Mills acknowledged that the plaintiff had “very significant injuries” and that “a large verdict was fully supported by the evidence.” He then ordered a new trial on damages anyway. Uh?

Judge Mills expressed concern over a note the jury sent out during deliberations asking if Fred's had been paying the plaintiff's medical bills. The opinion states: “[c]learly, the jury would only have been asking about the payment of medical bills if it had received the mistaken impression that they were compensable elements of damages in the case.” Uh? That's not clear to me at all.

The jury's note could have been asking the question because the jury viewed Fred's paying the medical bills as an admission of liability. But really there is no telling what the jury was thinking—at least from the note alone.

The opinion describes plaintiff's failure to put on proof of the medical bills as a tactical decision to try to avoid medical liens.  I would have guessed that it meant that the medical bills were not that high and the plaintiff did not want to anchor the jury's deliberations with a modest amount of medical bills. If that were the case, then the defendant should have put the bills in and can't really complain about that issue now.

The opinion implies that a plaintiff is required to put on proof of medical bills and states that plaintiff must present authority supporting this “unusual and arguably misleading trial strategy.” I find it significant that the last five pages of the opinion did not list any supporting authority for the Court's decision.

With the exception of a few jurisdictions, it's much more common for jury verdicts in Mississippi to be on the low end of reasonable than the high end. But you don't see new trials ordered in those cases. Here there is a verdict on the high end and the defendant gets a new trial. That seems unfair—at least to me. 

These types of decisions have a chilling effect on settlements because defendants and defense lawyers see that courts will bail them out if things go south at trial. It's just one more thing to make the playing field easier for the defense side. Short-sighted defense lawyers need to understand that decisions like this are bad for their practice because they make already gun-shy plaintiff lawyers even more reluctant to file cases.

I am hearing this question being asked a lot from the defense side of the bar: why aren't plaintiff lawyers filing cases anymore? There are a lot of reasons.  But decisions like this are a factor because they contribute to a general perception on the plaintiff's side that the playing field is unfairly tilted for the defense.   

One comment at NMC described the decision as “stupid.” Other comments approved of the decision. Personally, I don't get it on multiple levels.

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Legal Newsline.com reported last week on U.S. Southern Dist. Judge David Bramlette's January 25, 2011 ruling on Illinois Central Railroad's motion for attorney's fees and expenses in its lawsuit against McComb lawyers William Guy and Thomas Brock. Prior posts on that case are here and here.

The title of the article is: “Railroad company losing money on fraud case.” Jackson law firm Forman Perry represented Illinois Central.

Here is Judge Bramlette's thirty page opinion. The opinion looks to have been written with publication in mind, and it will probably be heavily cited in future cases involving attorney's fees and expenses.

The article states:

The company that successfully fought against alleged fraud on the part of two asbestos lawyers is financially in the red on the case.

Illinois Central Railroad decided to sue two Mississippi lawyers who allegedly defrauded the company out of $210,000 in settlements. In doing so, the company racked up nearly $1 million in attorneys fees.

On Jan. 25, U.S. District Judge David Bramlette awarded $547,500 in attorneys fees to Illinois Central, which says it spent $1,075,869.80 in fees, court costs and online research. Illinois Central recovered $588,822.96 in the Jan. 25 order, as well as $420,000 from a jury award last year.

"Illinois Central's 5,731 attorney hours and nearly $1 million in legal fees is extraordinarily high," Bramlette wrote. "First, Illinois Central knew at the outset of this case that its maximum compensatory damages were $210,000.

"Even given the very real possibility of recovering punitive damages, attorneys fees that are nearly five times the maximum compensatory damages recoverable are not reasonable."

Judge Bramlette stated that the requested fees were excessive given the fact that this was a “run-of-the-mill state law case.” The court further found that the bills reflected a failure to exercise “billing judgment” with things like billing for two attorneys to attend one deposition.

Judge Bramlette also cut the costs award from the $58,506 requested to $20,661. There is a good discussion in the opinion about what is properly recoverable as costs in federal court.

My Take:

I didn't find anything unusual about the description of Foreman Perry's bills in the case. Illinois Central is a sophisticated client and had to know when they hired Foreman Perry on an hourly rate that there was a good chance that the railroad would end up underwater in the case. I suspect that the case was about a lot more than the money. Illinois Central probably had a point to make, and I suspect that they made it.

In general though, this does provide a good example of a major difference between the plaintiff side and defense side of a case. On the plaintiff side, when a lawyer bills by the hour the fees can exceed the recovery. There is no danger of that on the defense side. That makes it a lot easier to justify high attorney's fees in a defense case.

Hourly rate defense lawyers sometimes have trouble managing the economics of a plaintiff case. I can think of several examples where defense firm lawyers told be about their fun plaintiff case. When I inquired about the value of the claim, it sounded like it didn't justify the amount of time being put into the case. It sounded like they brought the defense lawyer “leave no stone unturned” mentality to a plaintiff case.

But you can't do that on the plaintiff side. On the plaintiff side, you have to manage your case better than you do on the defense side. You have to always keep the economics of the case in mind. Often, that means that you have to tell the client that the economics don't justify filing the case.

On  the defense side, it's more about justifying each individual billing entry than justifying the entire defense costs. And the defense lawyer can always blame the high bills on the plaintiff's lawyer or the case in general.

The defense lawyer can run up $500,000 in fees and tell the client it's a victory when the case settles for $250,000. They neglect to tell the client that they could have settled for the same $250,000 back when there had only been $10,000 in fees incurred in the case.

For the Illinois Centrals, insurance companies and big corporations of the world, that's on them. Sophisticated users of legal services should be able to figure that out for themselves. But then you start getting into the Dilbert culture of corporate America, which is another story. See my prior post on the Dilbert culture here.    

This case also shows the potential value of a contingency fee contract for a client. The client does not have to worry about attorney's fees exceeding the recovery when there is a contingency contract.

As for the lawyer, trust me on this one: plaintiff lawyers often come out underwater in a case by having substantially more time in a case than they ultimately recover as a fee. And when they lose the case outright, they recover nothing and often have to eat the expenses, which can easily be in the five figures.

I've been on both sides. I like being on the plaintiff side of a case better, but not for the reasons that many defense lawyers suspect. It's not because I make more money with a contingency fee. If someone would guarantee me my hourly rate and a full case load on the plaintiffs side, then I would give up the contingency fee in a heartbeat. Sure I might make more in the contingency fee situation. But I also might lose money or make very little. 

A contingency fee based practice is a huge gamble that many lawyers fail at and wind up heavily in debt. It's a lot like gambling. Don't get me wrong, the defense-hourly rate side of a law practice is also hard and stressful. But it's a lot different. It's a lot harder for a defense lawyer to be real busy all year and lose money.    

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Patsy Brumfield of the Northeast Mississippi Daily Journal reports on the retirement of Northern District U.S. Magistrate Judge Jerry Davis. The very popular Judge Davis is retiring after 37 years in the federal judiciary.

I'm pretty bummed out about Judge Davis retiring. He is the only judge I've ever had who completely struck a defendant's boilerplate objections. The result was astonishing. Turned out that the defendant did have all those documents that they previously denied existed. And guess what? The documents were very helpful to my client's case and the defendant settled shortly after the production.

If more judges did that, we wouldn't be seeing parties object to 90% of written discovery requests. It's a shame that we don't have form interrogatories and requests for production that are per se valid and not subject to objection.   

Chief Judge Michael Mills appointed a nine person selection panel to screen replacements for Judge Davis' position: Supervisors Alfred Rankins and Paul Watson and attorneys Phillip Mansour, Jr., Mary Kathryn Roberts Clark, Richard G. Noble, John Keith Perry, Jr., Whitman Davis Mounger and Charles Swayze, Jr.

It's my understanding that when Magistrate Judge Sumner retired, there were in the neighborhood of a hundred applicants for the position. Keith Ball of Jackson ultimately got the appointment. I expect there to also be many applicants for Judge Davis' position.

Magistrate Judge David Sanders will transfer from Greenville to Aberdeen. Judge Davis' replacement will be based in Greenville.

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On December 27, 2010 attorney Sherrie Moore sued the Allen, Cobb, Hood & Atkinson law firm of Gulfport in federal court for sexual discrimination and retaliation. The law firm has been around for many years under various names. Here is the Complaint.

Moore alleges that in 2003 she joined the firm as an equity partner. She alleges that the firm had an unwritten policy against hiring African-Americans. Moore further alleges that in April 2010, an associate with the firm brought two white secretaries at the firm into his office and warned them that people like them would likely be targeted for violence at the upcoming Black Spring Break event on the Coast.

Moore alleges that she then confronted the associate about the inappropriate behavior. She alleges that the associate complained to the other partners, who met and decided to fire Moore. She alleges that she was terminated despite earning the largest bonus in the firm in 2009.

Moore's attorneys are John Maxey and Heather Aby of the Maxey Wann firm in Jackson.

Here is Allen Cobb's Answer, in which the firm denies Moore's allegations. The firm's attorneys are Taylor Smith and Michael Hudson from the Kullman Firm in Tupelo.

My take:

Wow. The allegations sound like scenes from the movie Blazing Saddles.

Cases against lawyers and law firms are knife fights. Cases between lawyers are worse. Just ask the losers of Scruggs-gate.      

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The Clarion-Ledger reported Monday on a January 7, 2011 jury verdict of $38,000 in a gender discrimination case by Mary Beth Watt against the Miss. Dept. of Wildlife. The verdict was in the federal district court in Jackson.

The article states:

Mary Beth Watt, hired in January 2008, said she was fired about six months after she complained about gender discrimination.When Watt, now 33, began working with Wildlife, Fisheries and Parks, there were 185 male law enforcement officers, referred to as conservation officers, at the time.

After completing her training, Watt was first assigned to Noxubee County, then reassigned to Hinds County. Watt said she was reassigned in order to make her job circumstances difficult and to pressure her to resign, according to court records.

Watt alleged she was the only academy graduate to be sent to a different county. She also said that as a single parent of a young child the transfer presented a hardship.

Believing that her transfer was because of gender discrimination, Watt complained to DWFP Commissioner Charles Rigdon and state Sen. Terry Brown.

The department then terminated Watt in a letter dated July 24, 2008, "on the grounds that she had 'gone outside the chain of command.' "

That does sound like a b.s. reason for firing someone.

Here is the Plaintiff's Complaint in the case.

Here is Judge Dan Jordan's Order denying summary judgment.

Here is the jury's verdict.

Here is the judgment.

Plaintiff can now recover attorney's fees as the prevailing party in a discrimination case. That presumably could substantially increase the State's total liability.

Plaintiff also plans to file a motion to require the Department to reinstate her to her old job.

Jim Waide and Rachel Pierce of Tupelo represented the Plaintiff. Peter Cleveland of the A.G.'s office represented the State.

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Southern District Chief Judge Louis Guirola swore in Carlton Reeves as a United States District Judge this morning in Judge Wingate's courtroom at the federal courthouse in Jackson.

Congressman Bennie Thompson attended the ceremony, as did most of the federal court
 judges based in Jackson and several Mississippi Supreme Court Justices and Court of Appeals Judges.

Judge Reeves spoke for about ten minutes after being sworn in. It was a moving speech and Reeves was overcome by emotion several times.  

Judge Reeves' chambers will be in a temporary location in the current courthouse until the new federal courthouse opens--hopefully within the next 60 days.

Apparently, there have been delays in construction at the new courthouse. One story I've heard is that contractors did not run enough phone lines for the building and they had to rip up concrete to run additional lines. I also hear that no one can move into the building until it is 100% complete.

Judge Reeves' formal investiture ceremony will be later in the Spring.  

Here is the Clarion-Ledger article on the ceremony.

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There were two stealth defense verdicts in the Jackson area last week.

The first was in a racial discrimination case in federal court in Jackson. Here is the Complaint in Brown v. Jackson Municipal Airport Authority. The trial started on December 13 and the jury returned a defense verdict on December 14. Here are the verdict and judgment.

Jennifer Hall and Alan Moore of Baker Donelson represented the defendant. Louis Watson, Jr. of Jackson represented the plaintiff. Judge Dan Jordan was the trial judge.

The second defense verdict last week was in a medical malpractice case in Rankin County. Heber Simmons' firm was on the plaintiff side and Watkins Eager was on the defense. I do not know anything about the facts of the case.

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Here is the Clarion-Ledger's article on Carlton Reeves' confirmation as a U.S. District Judge for the Southern District of Mississippi. The Senate confirmed Reeves in a voice vote on Sunday.

This has been a long time coming to say the least. The fact that Reeves would get the position after President Obama won two years ago was common knowledge.

The fact that it took two years for the confirmation to happen was due to a combination of inefficiency in the Obama administration combined with Republican foot dragging in the Senate. The former is harder to stomach than the latter, since Republicans consider blocking Obama's agenda part of their job. Obama's administration has just been indefensibly slow with making appointments and pushing them through.

Hopefully, the confirmation will mean increased efficiency in the Southern District. Some cases will presumably be reassigned to Reeves from other judges. That should allow for faster rulings. That would please a lot of lawyers and parties who sometimes have to wait a long time for rulings.

It's my understanding that Judge Louis Guirola, Jr. is now the Chief Judge in the Southern District. I am also hearing that Judge Henry Wingate will not be taking senior status anytime soon.

Reeves will be missed on North Congress Street. He arrived at work early, stayed late and came in a lot on the weekends. I am sure that Judge Reeves will bring that work ethic to the bench. If anyone needs a Pigott Reeves Johnson Law Firm sign, I can probably get you a deal on one.

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On Tuesday a federal court jury in the Western Division of the Northern District of Mississippi returned a plaintiff's verdict of $1.15 million in Whiteaker v. Fred's Stores of Tennessee. The case involved a trip and fall accident outside a Fred's Store in Southaven.

Here is the Complaint. The plaintiff alleged that the plaintiff tripped and fell on a wooden corral outside the store that was set up to create a maze that made it harder for shoplifters to get out of the store. The fall resulted in the plaintiff breaking both arms, injuring her neck and chest and breaking several teeth.

Here is Fred's Memo. Supporting Motion for Summary Judgment.

Here is the plaintiff's response.

Here is the Order denying the motion. The Court's opinion characterized plaintiff's case as weak, but involving fact questions for a jury. The judgment and verdict form were not filed on Pacer as of this posting.

The trial lasted two days with Judge Michael Mills presiding. Philip Stroud of Southaven and James Lees of Charleston, West Virginia represented the plaintiff. Robert Jolly and Scott Hollis of Watkins Ludlam's Olive Branch office represented Fred's.

Complaint.

Summary Judgement Memo.

Summary Judgment Response.

Order Denying Summary Judgment.

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Saturday's Clarion-Ledger reported on a $345,020 jury verdict last week in a workplace retaliation claim filed by Renee Summers-Akers against Hinds Community College. The case was tried in the Jackson Division of the Southern District of Mississippi before Judge Tom Lee.

Here is the jury's verdict form.

Here is the court's judgment.

The C-L article states:

Renee Summers-Akers, who taught at Hinds from 1982 until her retirement this spring, alleged she was passed over for a promotion in 2006 because she had aided a colleague who was accusing the college of racial discrimination.

The verdict consisted of compensatory damages and back pay. Summers-Akers is also entitled to seek recovery of her attorney's fees, since this was a civil rights case. The judgment gives her 14 days to file her motion for attorney's fees. If granted, the motion will probably significantly increase Hinds' total liability.

Louis Watson, Jr. of Jackson represented the plaintiff. Ben Piazza and Thomas Bryson of Jackson represented the defendant.

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Warning: If you don't think sarcasm is funny, then you should skip this post.

U.S. District Judge Glen Davidson awarded celebrity student Constance McMillen over $80,000 in attorney's fees and expenses this week in her lawsuit against the Itawamba County School District for the District's bigoted efforts to exclude McMillen from the school prom. McMillen's offense was that she is gay and wanted to bring a girl to the prom as her date. Reminiscent of the 1984 movie Revenge of the Nerds, the district responded with a fake prom for McMillen and the rest of the school's “nerds.”

Here is Judge Davidson's Order.

Here is the motion and here is the District's response, which consisted of asking the judge to nit-pick the attorney's fee itemization. Judge Davidson awarded the vast majority of the requested fees.

That was one damn expensive fake prom. MLR estimates of the District's costs include:

• staging fake prom: $5,000
• payment to McMillen: $35,000
• payment to McMillen's attorneys: $80,000
• payment to District's attorneys: $50,000
• national embarrassment: PRICELESS
• TOTAL: Approximately $170,000.

Please excuse me if my math is wrong. I am a product of Mississippi's public school system. This is in a County where the median income is $38,000 according to U.S. Census Bureau statistics.

As noted in a prior post on this case, the District's response is that it doesn't care because some sucker insurance company has to pay. Don't get your hopes up that the the District will learn anything from this. You can't fix stupid.

Constance McMillen was presumably too busy signing autographs and being the biggest celebrity in the history of Itawamba County to comment on the Court's decision. 

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On October 21, 2010 a federal court jury in Jackson rendered a plaintiff's verdict of $300,000 in an alienation of affection case. Here is the Complaint in Ainsworth v. Gildea. The case settled before the jury could render a verdict on punitive damages.

Here is the jury's verdict form.

Here is the Court's order of dismissal.

Judy Barnett and Michael Malouf of Jackson represented the plaintiff. Jud Lee and Cynthia Speetjens of Madison represented the out-of-state defendant. Judge Dan Jordan was the trial judge.

I don't really know the alleged facts and don't care enough to try to find out. As previously noted, I am not a fan of the the alienation of affection cause of action.

My Take:

So much for the notion that there are not wing-nut verdicts in federal court. On a lighter note, I bet Judge Jordan never expected to preside over an alienation of affection trial when he was nominated and confirmed for the U.S. District Court. And I bet he didn't mind that one bit. But even alienation of affection cases can be removed to federal court. No word yet on whether Judge Jordan will present on the cause of action at the next 5^th  Circuit Judicial Conference. I'm betting not.

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The Clarion-Ledger reports on a $64,000 verdict rendered on Friday in the U.S. District Court for the Southern District of Mississippi, Jackson Division. The trial lasted four days.

The verdict was against three former detention officers who did not intervene when a fourth officer allegedly beat the plaintiff. The attack occurred in 2005.

The officer who beat the plaintiff was not in the lawsuit because he could not be located for service of process. I have no idea why he was not served through publication, which is a valid method of service used when a defendant cannot be located.

 Plaintiff asked for $514,000 in closing arguments. It's my understanding that the plaintiff had less than $15,000 in medicals related to the attack.

Judge Henry Wingate presided over the trial. Jeanine Carafello of Jackson represented the plaintiff. Jackson City Attorney Pieter Teeuwissen and Anthony Simon of Jackson represented the defendants.

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In May I posted here about U.S. District Judge Mills' Order in the Maggette v. BL wrongful death case. The case involved the crash of a charter bus on its way to a Harrah's property in Tunica. BL is owned by Harrah's Gaming. Harrah's owns numerous casino properties all over the world.

On Thursday Judge Mills issued an order sanctioning Harrah's by ruling that the bus company involved in the accident was Harrah's agent as a matter of law. Here are some of the hi-lites from Judge Mills order:

BL likely believed that this court would never be in a position to discover the true facts, such as the fact that backup copies of the data in question were routinely sent to secure databases, just as the Magistrate Judge had openly suspected in her November 2009 order. Now that its bluff has very unexpectedly been called and the absurdity of its protestations has been revealed, BL seeks for this court to decline to impose the sanction which it specifically warned it would. [p. 8–9].

This court is not naive. It is aware that litigants are frequently successful in concealing information from courts, largely because the power to conceal one’s own documents is far greater than a court’s power to uncover them. It seems very likely that, for every case in which conduct of this nature is uncovered, there are dozens in which the deception is successful. It is simply too expensive in judicial resources for courts with heavy dockets to uncover this sort of misconduct. [p. 29]. 

Willful ignorance of this court’s orders is clearly no defense, and the fact that BL sought to use it as a defense heightens the court’s suspicion that the actual misconduct of senior BL representatives may have been of a much more serious nature. [p. 15] 

If an IT expert as learned as the special master is unable to clarify the mystery of Harmon’s missing e-mails, then this court will certainly be unable to do so. It does not require an expert, however, to realize that there is a great deal of smoke in this case emanating from multiple offices in Harrah’s corporate legal department, and this court will be excused if it suspects the existence of a fire. To state the obvious, documents do not alter or delete themselves, and when the special master informs the court that documents in this case - and this case alone - were inexplicably accessed and altered or deleted, the court finds it impossible not to harbor great suspicions regarding what information those documents might have contained. [p. 19]

Testimony at the hearing revealed that the special master managed, at separate locations, to discover, in five and seven minutes respectively, information whose existence BL had denied for almost five years. [p.23]

You can download the full Order here.

 My Take:

BL/ Harrah's got off easy. They cheated and the result is that they are deemed to be the principal of the bus company in this case. They can still win on liability by defending the conduct of the bus driver.

If BL/ Harrah's believes that it would have lost on the agency issue if the hidden documents were voluntarily produced, then this ruling does not serve as any much punishment.

If Courts want to discourage these types of shenanigans, then they have to lower the boom when they catch violators. A ruling where the result may not be worse that if the shenanigans had not taken place is not much of a deterrent.  

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Jackson lawyer Carlton Reeves' nomination to be a U.S. District Judge cleared the Senate Judiciary Committee on Thursday. Here is the Clarion-Ledger article on the story. The next step for Reeves is a full Senate vote.

Logic suggests that the Senate vote should take place in the next few weeks. But we're talking Washington politics, so throw logic out the window. Educated estimates are that Reeves' Senate vote will likely be in October or November. But once the Senate approves the nomination—which is very likely—Reeves should be sworn in as a judge in a matter of a few days. Just in time for the new federal courthouse in Jackson, which is scheduled to open later this year.

Word on the street about the nomination of Mississippi Supreme Court Justice James Graves is that his nomination to the 5th Circuit Court of Appeals will drag along, possibly into next year. Estimates are that Justice Graves will not get his Senate Judiciary hearing until sometime in the Fall, possibly after the November elections. That would likely mean a Senate vote in early 2011. Thank Republicans for the delay, but blame the Obama administration for waiting so long to appoint Graves.

There is also a possible doomsday scenario for Graves' nomination. If the Republicans regain control of the Senate in the November elections, they could halt a vote on all Obama appointees until after the 2012 presidential election. That could doom Graves' appointment, despite public support from Mississippi Republicans. While this scenario is unlikely, I am hearing that it is possible.   

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The Itawamba County School District has agreed to pay $35,000 plus attorney's fees to settle the lawsuit filed by lesbian student Constance McMillen over the school district's efforts to keep her from attending the high school prom. But the school district wants people to know two things:

1. the school district admits no wrongdoing, learned nothing and maintains its high level of stupidity:

   School district attorney Michelle Floyd issued a statement Tuesday saying "the Itawamba County School District believes that Constance McMillen's rights under the United States Constitution were not violated by any act, omission, policy, custom or practice of the district."

2. the district isn't paying anything—some sucker insurance company is:

   Floyd said the district's insurance policy would pay the award.

Newsflash for clueless school district: The insurance company settled because it—along with pretty much everyone else—realizes that you are stupid. A bait and switch fake prom? To keep the gay kid out? Are you kidding me? Do you know how many levels of stupidity that covers? Of course you don't. You were probably running off the handicapped kid when they covered equal rights in school.

Constance McMillen Wins—Itawamba County High School Students are the Big Losers

Constance McMillen comes out of this as the big winner. She handled this matter with dignity, got to meet the President and is nationally famous. 

The saddest thing about this is the horrible example that the school district leadership set for its students. The message to the students at the high school is that it is ok to pick on students who you don't like because of their color, gender, religion, health, sexual orientation, weight, height or anything else that makes people different from you. But its not ok. It's wrong.

But now it will take years for some of these kids to figure it out on their own. Twenty-five years from now Constance McMillen will be receiving apologies from her former classmates who figured it out somewhere along the way and need to apologize to clear their consciences. The guilt that those students will carry around for the rest of their lives makes them the big losers in this debacle.     

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Some lawyers believe that every trial is about who is lying. I am not in that camp. I think that most witnesses believe what they are saying—even when it's wrong.

But I agree that someone lies in many trials. Usually, the worst thing that happens is that the deception causes their side to lose the case. So I was a little surprised when I heard that a North Mississippi man is being prosecuted in federal court for making false statements in a trial. But it's true.

Here is the indictment in U.S.A. v. Rock. The indictment alleges that Kenneth Rock Sr. knowingly made material false declarations during a federal civil trial in North Mississippi in September 2007.  The testimony at issue related to prior criminal convictions, criminal charges and disability income.  

The defendant could get up to five years in jail if convicted. Here is the penalties sheet.

Almost all lawyers stress to witnesses the importance of telling the truth in depositions and on the witness stand. A lying witness is a sure-fire way to blow up a case. But for the witness, it can also lead to criminal charges.    

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Mississippi Republican Senators Thad Cochran and Roger Wicker endorsed Jackson attorney Carlton Reeves at Reeves' Senate Judiciary confirmation hearing on Thursday in Washington. President Obama nominated Reeves to be a U.S. District Court Judge for the Southern District of Mississippi. The position is a lifetime appointment.

A webcast of the hearing can be viewed here. Honestly, it's about like watching paint dry and lacked the grand standing by Senators seen in Supreme Court nominee hearings.

The hearing agenda included four other nominees to the federal bench. I did not watch the entire hearing. By my count there were two Senate Judiciary Committee members at the hearing. Questioning of nominees started at about minute 77 on the webcast.

Senator Kyl of Arizona questioned Reeves about a letter that he wrote in 2007 opposing the nomination of Judge Leslie Southwick to the Fifth Circuit. Reeves handled the questioning well, pointing out that he wrote the letter on behalf of the Magnolia Bar Association. He also pointed out that as of 2007, the Fifth Circuit had only had two African-American judges in its history. In all fairness, Senator Kyl was very polite during the questioning. 

In my opinion, the endorsements by Senators Cochran and Wicker guarantee that Reeves will be confirmed in a landslide vote. The Senate vote is not expected to take place for another several months.

Despite pre-hearing speculation, Reeves did not wear his Mississippi Litigation Review and Commentary baseball cap during the hearing.

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On Monday the Senate Committee on the Judiciary scheduled Jackson attorney Carlton Reeves' confirmation hearing for Thursday of this week. In April President Obama nominated Reeves to be a United States District Judge for the Southern District of Mississippi. The hearing will be at 3:00 central time in Room 226 of the Senate Dirksen Office Building in Washington.

The hearing is open to the public and can be viewed on the internet at this link: http://www.judiciary.senate.gov/hearings/hearing.cfm?id=4687.

Typically, the confirmation hearings for district court nominees are a mere formality. The hearing should not be confused with a full Senate vote, which probably will not take place for at least a couple of months. This is not unusual and in all likelihood, the Senate will approve Reeves' nomination by a wide margin. 

Once the Senate approves Reeves' nomination, he will probably be sworn in as a judge within a matter of a few days. Reeves' formal investiture ceremony will likely be scheduled for a few months after he actually takes the oath and begins serving as a judge. My guess is that Reeves' investiture will be sometime after the new federal courthouse in Jackson opens this Fall. 

For earlier posts on Reeves' nomination see here  and here.

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The A.P. reported Saturday on a three judge panel in U.S. District Court for the Northern District of Mississippi granting the defendant's motion for summary judgment in the lawsuit attempting to force the expansion of Congress. Here is the Court's opinion authored by Fifth Circuit Judge Leslie Southwick.

I previously discussed the case here and here.

The A.P. reported:

Plaintiffs argued that adding House seats would make it easier to create districts roughly balanced by the number of residents. The lawsuit suggested expanding the House to either 1,761 seats or 932 - an expensive, time-consuming and politically contentious proposal.

Americans currently have a negative view of Congress and probably prefer to get rid of many of the current Senators and Representatives instead of adding a bunch more to keep them company.

The plaintiffs refuse to quit and immediately filed this notice of direct appeal to the U.S. Supreme Court.

I expect the Supreme Court to affirm the rejection of the case and I expect the opinion to be unanimous.

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USA Today has this new article on the slow going that President Obama is having in getting federal judicial appointments approved by the Senate. The article is fairly typical of similar articles focusing on the confirmation delay during the past year or so.

 The article notes that the President is appointing record numbers of non-white males:

So far he is setting records for the number of women and minorities nominated to lifetime appointments. Nearly half of the 73 candidates he has tapped for the bench have been women. In all, 25% have been African Americans, 10% Hispanics and 11% Asian Americans.

But delay is the name of the game for Republicans:

During his first 18 months in office, his administration has been thwarted by unprecedented delays. The situation, which has received little notice against the backdrop of a pending Supreme Court nomination and the administration's complex legislative agenda, could undercut Obama's effort to significantly infuse the federal courts with more women and minorities.

The article recognizes that the Obama administration is not blameless:

With few exceptions, Senate Democrats have yet to try to force Republicans' hand. The Obama White House has been distracted by other issues — even on the judicial front, where the administration has had two high-court nominations.

Unfortunately, the article misses the point that a huge delay is the one by the President in making his appointments. It took President Obama a year and a half to nominate Carlton Reeves to the U.S. District Court despite the fact that everyone knew that Reeves would probably get the nomination after Obama won the 2008 election.

It took only eight months or so for the President to nominate Justice James Graves to the 5^th  Circuit. But again, that was too long of a delay given the fact that Graves was the front-runner from the day that Judge Barksdale took senior status. The delays in making the nominations of Reeves and Graves are 100% the fault of the Obama administration.

Sure now that the nominations have been made Republicans can be faulted for going into the 4–corners. But is that surprising? That's how Republicans play politics and Republican Senate leaders argue that it came from the Democratic play book:

I don't say all of this to say there is going to be payback," Sessions said after Leahy earlier criticized GOP stall tactics. "I am saying this to set the record straight because I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000."

Football fans aren't surprised and don't cry when the team ahead starts taking a knee in the last two minutes of the game. Likewise, Democrats should stop crying over spilled milk and should be more proactive in making nominations in a timely fashion and pushing harder to get votes in the Senate.

Earlier posts on President Obama's judicial appointments.

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In 2007 State Farm sued Attorney General Jim Hood. Here is the Complaint. State Farm does not like Jim Hood. No one likes State Farm. When State Farm filed the lawsuit, it filed this motion to seal the case. The Court later unsealed the case.

In 2008 Sate Farm and Hood settled and the Court dismissed the case. Here is the order. The terms of the settlement agreement were confidential and the court ordered that they remain under seal.

In 2009 Ya'll Politics, joined by three television stations, moved to intervene in the case in order to obtain the terms of the settlement agreement. State Farm did not object. General Hood did. Here is Hood's Response to the Motion to Unseal the agreement.

Hood's response states several times that the Court ordered that the settlement agreement be sealed upon a showing of good cause. I have looked for something in the record confirming that statement, but have not found it. Maybe I just missed it.

It seems that Hood views the terms of the settlement agreement as politically embarrassing. But open access to court proceedings should take precedent over politics.  

It is bad form and bad law for court files to be sealed without an evidentiary basis for a finding of good cause in the record. An example is Judge Yerger's unexplained sealing of all relevant pleadings in the Eaton v. Frisby case pending in Hinds County.  In the good old days newspapers viewed themselves as the guardians of public access to the courts and challenged improper sealing of court files and court proceedings. Now, newspapers can't afford to pay the lawyers to make the challenges.

I would like to see Judge Bramlette grant the motion for two reasons. First, it would reverse the trend of unexplained sealing of court files and confidentiality orders not supported with evidence. Second, it would start a trend of new media (a blog) successfully challenging secrecy in the courts. 

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As expected, Southern District Judge Sul Ozerden has begun staying the Gulf Oil Spill cases pending a decision on whether an MDL will be created in the litigation. Here is one of Judge Ozerden's orders. 

I am not aware of any of the defendants filing a substantive response to the complaints before entry of the stay orders. Therefore, it will be a while before the emergence of the defendants' strategy for blaming the oil spill on other defendants through cross-claims.  

Judge Ozerden is the judge in most—but not all—of the cases filed in Mississippi. But all the cases are likely to be stayed regardless of the judge.

Everyone agrees that there will be an MDL action. Speculation continues to center on where the MDL will be located. I am not sure when the MDL panel meets next. I have heard July, but I have not verified that report.

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NMC reported last week on the Order issued by Northern District federal court Judge Mills in the Maggette v. BL (Grand Casinos) case. The Order addresses flagrant deceptive discovery practices by the owners of Grand Casinos and their lawyers. Judge Mills' Order followed two special master reports in the case that you can see here and here.

Judge Mills recognized that the reason that BL and its lawyers got caught was because of the unusual step of a special master being appointed to wade through the discovery morass:

It seems very likely that, if the Magistrate Judge had not taken the extraordinary step of appointing a special master, the truth in this regard would have never been revealed.

I applaud Judge Mills, Magistrate Judge Alexander and the Special Master for exposing this deplorable conduct. But the sad fact of the matter is that many lawyers believe stuff like this happens all the time in civil actions in Mississippi with no repercussions. I share that opinion.

Some people refer to these tactics as "hardball" litigation tactics. But they have become so prevalent in recent years that even good lawyers who usually don't stoop to hardball tactics are starting to fall into the resistant blocking pattern discussed below.

Typically what happens is what I suspect happened in this case. Defense counsel and their client intentionally remained blissfully ignorant of the existence and production of responsive material so that they could later have plausible deniability in the highly unlikely event that their conduct was ever exposed.

It starts with improper boilerplate objections to all are almost all discovery requests. In my practice most defendants assert boilerplate objections to almost every single written discovery request. The boilerplate objection is sometimes followed by a “without waiving this objection” partial response. While I recognize that this is sometimes a legitimate discovery response, it is not a legitimate response if this is the response to every request.

Defendants believe that this allows them to pick and choose what to produce in discovery. They can produce some documents under the partial response and withold others under the objection. Judges rarely recognize that this is a threat to the integrity of the judicial system and strike these types of objections.

I am seeing this type of response to requests for Rule 26 information on experts and the identity of trial exhibits and witnesses. It's my impression that many lawyers believe that by objecting to everything, they are not accountable for not producing relevant and discoverable information. 

Why do defendants and their lawyers do this? Because they can. Courts almost always let them get away with boilerplate objections that leave the plaintiff wondering if they are getting a complete response. Magistrate Judge Davis is the only judge I've had that held a defendant accountable for this and struck the boilerplate objections.

My impression is that most judges view complaints about improper discovery responses as whining. Judges just don't want to hear it. In addition, when plaintiffs do try to get relief for improper boilerplate objections there are many judges at both the state and federal level who buy the defense side B.S. arguments on these issues hook, line and sinker. 

There is a problem in the system that is not being addressed. And the problem is getting worse. I hope that Judge Mills bringing the situation to light in this case will be a wake-up call for the trial court judiciary in Mississippi.

This is primarily a trial court problem because discovery disputes are rarely an issue on appeal.  But there are things that the appellate courts could do to stop this. For instance, there should be a model set of written discovery in state and federal court that imposes a presumption that the requests are not objectionable. A party who objects to the model discovery would have to do so with more than boilerplate objections. The objections would have to come with an affidavit that specifically identifies the basis for the objection. Sanctions should be mandatory if the objection is overruled.

The judiciary should take control over discovery abuses. Boilerplate objections should be struck and lawyers and clients should be held accountable for improper responses. Judge Mills' Order should be a start to that process rather than a footnote in civil litigation that no one remembers a year from now. 

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More information is emerging about the $3 million jury verdict rendered in federal court in Jackson on Friday.

On August 26, 2006 the Plaintiff Megan Durr was a Target employee working in the Target store on I-55 and Countyline Road in Jackson. MBS Construction was an independent contractor doing remodeling in the store for Target. MBS was deconstructing a 14 foot wall and pulled the bolts out on one side causing the wall to fall on Megan Durr and another employee who were working for Target on the other side of the wall. MBS provided no notice of its actions, no warning to the plaintiff and did not mark off the work area to limit access to non-construction persons.

The plaintiff suffered lower and mid back pains and had a double fusion at L4-5 and L5-S1 in December 2009. Her total medicals were about $174,000.00. She claimed lost wages, future medical damages, and pain and suffering. She did not seek punitives.

The defendant claimed the plaintiff had pre-existing degenerative disc disease. The Plaintiff had an almost two year period in 2005 to 2006 where she was either pain free or did not see a doctor for back pain. The defendant also raised the issue that her first two neurosurgeons in 2004 and 2005 recommended against a surgery because the plaintiff claimed to show improvement with medication and physical therapy.

Target joined the suit to recover its workers compensation lien. At trial, Target was not represented by counsel and the plaintiff represented Target's claims. The judge allowed the defendant to allege Target also had a duty to protect its employee and provide a safe work environment even though the defendant did not put on evidence of Target's duty, breach or causation. The evidence presented showed that MBS had an indemnity agreement with Target and still would be liable for any apportionment against Target.

The jury found $2.5 million for pain and suffering and disability, $350,000.00 for hospitalization and medical and nursing care, $100,000.00 for lost wages- Totaling $2,950,000.00.

Ashley Ogden tried the case for plaintiff, assisted by Jim Smith and Wendy Yuan of Ogden and Associates, PLLC.

Greg Spyridon of Spyridon, Palermo, and Dornan, LLC represented the defendant, assisted by John Herke of the same firm and John Corlew of Jackson.

The $2.5 million for pain and suffering will probably be reduced to $1 million due to Mississippi's cap on non-economic damages. Of course, the constitutionality of the cap is currently before the Mississippi Supreme Court.

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There are reports of Ashley Ogden obtaining another large verdict in a premises case, this one in federal court in Jackson. Here is the Complaint in Durr v. MBS Construction.

The Plaintiff was shopping at the Target Store in Jackson in 2004 when a wall fell on her, causing severe injuries. MBS was performing construction work in the store. Target intervened in the case. I am not sure who the verdict was against, since the verdict has not yet been posted on Pacer. I believe that the filing part of Pacer is down for the weekend, so it will probably be filed Monday. There is also no Pre-Trial Order on Pacer, so information about the parties and issues at trial is scarce.

The Plaintiff had a back injury that required surgery and had approximately $180,000 in medicals.

Former Chief Justice Jim Smith and Wendy Yaun [correction: Yuan] tried the case with Ogden. Defense counsel were Greg Spyridon and other attorneys from his New Orleans firm and John Corlew of Jackson. Corlew filed his entry of appearance three days before trial, which I am sure limited his ability to have a meaningful influence on the outcome.

Judge Tom Lee was the trial judge.

I hope to have more on this verdict next week.

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There is a lot of attention today on Carlton Reeves’ nomination to be a U.S. Dist. Judge in Mississippi. Here are some:

• Clarion-Ledger article (a good article with quotes from Reeves, Rep. Bennie Thompson and Reeves’ law partner Cliff Johnson)
• Main Justice
• Ipse Blogit
• NMC
• Will Bardwell
• Y’all Politics
• Minority Defense Litigator

The nomination is getting widespread praise in these outlets and among members of the Mississippi Bar.

Meanwhile, on North Congress Street speculation now turns to whether Senate confirmation will force the frugal Reeves to upgrade his vehicle, which he has been driving since the 90’s.  [Note to soon-to-be Judge Reeves: your ride is awesome. You’re the greatest, (insert your own compliment here)].

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It took a year and a half, but President Obama finally nominated Jackson attorney Carlton Reeves to be a U.S. District Judge for the Southern District of Mississippi. The nomination has been expected from the day that Obama won the 2008 presidential election.

Here is Reeves’ profile at his firm’s web site.

Reeves is a Yazoo City native and is a graduate of Jackson State and the University of Virginia School of Law. He clerked on the Mississippi Supreme Court for Judge Rueben Anderson, was the Chief of the Civil Division of the Southern District U.S. Attorney’s Office and has been in private practice with Phelps Dunbar and his current firm of Pigott Reeves Johnson.

Here are my prior posts on Reeves.

Reeves is very popular in the Jackson Bar and the expectation among lawyers is that he will be a fair and popular judge. Reeves will join Bush appointees Judge Dan Jordan and Judge Sul Ozerden as young Southern District judges who will likely be on the bench for thirty or more years.

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Last week the Clarion-Ledger reported on a $205,506 federal court jury verdict for Melissa Ross, who alleged that she was wrongfully fired from the Mississippi School for the Deaf because she is black. The jury awarded Ross $40,506 for back pay and $165,000 for pain and suffering/ mental anguish/ loss of enjoyment of life/ emotional pain. Here is the Form of the Verdict on file with the Court.

 The C-L article states:

According to the lawsuit, Ross was hired at the deaf school as a special education teacher for Family Consumer Science. She was not proficient in sign language but was trying to improve, according to the lawsuit.

In a 2007 complaint to the Equal Employment Opportunity Commission, Ross said she was hired in August 2006 and was promoted with a raise in February 2007. But in May 2007, she was given a bad evaluation because she was not proficient in sign language and was told she would be fired that July, according to the complaint.

In the complaint, Ross pointed out six black teachers were fired effective July 2007.

The Department of Education was successful in getting some of the claims thrown out in a motion for partial summary judgment. Here is the Court’s Order on that motion.

Michael Brown of Jackson represented the plaintiff. Peter Cleveland with the Miss. Attorney General’s office represented the Department of Education.

The case was in the Jackson Division and was tried before Judge Henry Wingate.

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Governor Haley Barbour plans to sue to bolster his presidential aspirations challenge the constitutionality of the new health-care reform. He’s going to have to take a number and get in line.

As reported by the Clarion-Ledger, State Senator and attorney Chris McDaniel (R) and Hattiesburg attorney Doug Lee beat Barbour to the punch on Friday by filing this Class Action Complaint in federal court in Hattiesburg seeking to have the bill declared unconstitutional. Plaintiff Richard Conrad and McDaniel explained the action to the C-L:

"To be an American citizen and be forced to do anything is kind of contrary to our nature," Conrad said. "If I understand the constitution correctly, we've never been made to purchase or buy a product or service from a private entity."

The plaintiffs say they oppose a mandate, effective in 2014, that would require citizens to purchase health-care insurance or pay a fine.

"Basically, the petitioners are seeking a declaration that the Health Care Act's individual mandate requiring them to purchase health insurance from an insurance company is a violation of congressional authority under the Commerce Clause of the United States Constitution," McDaniel said.

McDaniel said the Commerce Clause gives Congress the authority to regulate commerce but does not give it unlimited power.

I don’t know about you Gregg, but I’m not going to sit here while they bad-mouth the United States of America. Gentlemen.

McDaniel’s Complaint is a hefty twenty-eight pages in length and cites a lot of cases. It’s kind of dry, so you might want to start it with a full cup of coffee. Drafting a twenty-eight page complaint is not easy, so someone put some work into it or one similar.

I am not really getting why Mississippi needs to file a lawsuit over the bill. Fourteen states already filed a lawsuit and McDaniel and Lee are taking a shot at the bill for Mississippians. I’m not sure what there is to be gained from a Barbour led action, other than political capital and attorney’s fees for the outside counsel lucky enough to get hired by Barbour. 

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In September I wrote about the federal court lawsuit to expand Congress that was filed in Oxford. Here is the Complaint in the case and a New York Times article about it. I recently checked on the status of the case, and it is still in active litigation.

 The government responded to the allegations with this motion to dismiss.  In February the plaintiffs filed this response to the motion to dismiss and plaintiff’s own motion for summary judgment. The government’s response to the plaintiff’s motion is due in May.

I stick by my earlier assessment that the lawsuit is a long-shot to succeed—at best. But the plaintiff’s briefs are well-written, which suggests that someone is taking the case seriously.

The case will be decided by the three judge panel of District Court Judges Mills and Pepper and 5^th Circuit Court of Appeals Judge Southwick. With the government's response to the plaintiff’s motion not due for over a month, it probably will be at least five months until the court rules on the motions.

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Last week Judge Bramlette issued an Opinion and Order allowing Jackson New Media, Inc. (Alan Lange’s Ya’ll Politics), WDAM, WLBT and WLOX to challenge the settlement agreement in the State Farm v. Hood case. Attorney General Jim Hood opposes the request to unseal the agreement. The challengers will now file a motion to lift the seal and Judge Bramlette will rule on that motion.

It’s an interesting indicator of the direction of the media that the challenge was made by a blog instead of a print newspaper. In the past, newspapers would have made this type of challenge. But with circulations down and news papers both struggling financially and controlled by large corporations, the days of newspapers being the conscience of the community appear over. That role appears to be shifting to bloggers. But in Mississippi at least, there are probably not enough bloggers yet to completely fill the void.

Hopefully, the success in this case will lead to media outlets challenging Judge Yerger’s confidentiality order in the Eaton v. Frisby case. The case is probably the single biggest case in the Mississippi state court system and involved one of the parties (Eaton) secretly hiring Ed Peters when Bobby DeLaughter was the judge on the case. Judge Yerger’s decision to seal virtually the entire proceeding appears unjustified and, more importantly, is not explained in the public court record. 

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On Friday Judge Allen Pepper in the U.S.D.C. for the Northern District awarded a total of $1.25 million in Sims v. U.S., a Federal Tort Claims Act case involving the VA Medical Center in Memphis. Here are the Court's Findings of Fact and Conclusions of Law.

The plaintiff was left partially paralyzed as a result of medical negligence by the V.A. $425,000 of the damages were to the plaintiff’s wife for loss of consortium. The plaintiff’s damages were broken down as $250,000 for pain and suffering and $850,000 for loss of enjoyment of life.

Plaintiff’s counsel were Mark Lumpkin and Matthew Mestayer of Biloxi and Jeanne Steffin from California. Sam Wright and John Gough from the U.S. Attorneys office in Oxford defended the case.

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There was a $210,000 punitive verdict on top of the $210,000 actual damages verdict in the Natchez asbestos fraud trial discussed in the prior post.

That's a good verdict for Natchez. I got my clock cleaned there this time last year by Carl Hagwood and Michael Phillips. But they have a nice courtroom and Judge Bramlette is a great judge.

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There was a plaintiff’s verdict yesterday in federal court in Natchez in favor of Ill. Central RR against McComb lawyers  William Guy and Thomas Brock. The trial involved the claims in two cases. Here are the Amended Complaints in the Turner case and the Harried case. Ill. Central sued the lawyers and their clients, but the clients obtained a defense verdict at trial.

The Complaints alleged that the individual defendants were plaintiffs in the big Cosey Jefferson County asbestos case that was filed in 1995 in which there was a massive plaintiff verdict around ten years ago. It was one of the verdicts that led to tort reform in Mississippi.

The defendants sued Ill. Central in 2001 in Jefferson County asserting an FELA claim related to exposure to asbestos. The defendants failed to disclose to Ill. Central that they were plaintiffs in the Cosey case and settled their claims with Ill. Central for $90,000 and $120,000 respectively. The individual defendants testified that the lawyers (Guy and Brock) were aware of their prior asbestos claims in Cosey.

Ill. Central sued the lawyers and their clients for fraud. I believe that the verdict was for the $90,000 and $120,000 previously paid by Ill. Central, but a judgment is not on file yet, so I am not sure.

I also do not know what happened in the punitives phase. I hope to report more on this verdict later.

Danny Mulholland and Tanya Ellis with Forman Perry represented Ill. Central. John Corlew and Kathy Smith of Jackson represented the defendant lawyers. Wayne Dowdy of McComb represented the individuals. Judge David Bramlette presided over the trial.

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For the life of me I can’t figure out why interim U.S. Attorney Don Burkhalter says that his office has recused itself from the Paul Minor judicial bribery case when it's clearly not true. Here is the relevant paragraph from Thursday’s Clarion-Ledger article on the subject:

But interim U.S. Attorney Don Burkhalter of the Southern District said his office is indeed recused from the case, with the exception of two attorneys. He said [Ruth] Morgan and Dave Fulcher are working with the Department of Justice on court filings in the trio's appeal, but he is not involved.

Not knowing to quit when he is behind, Burkhalter digs his hole deeper:

"You don't see my signature on the motion," Burkhalter said.

If you don’t personally sign it then your office is not working on it? You know that is bullshit untrue don’t you? Since you are the U.S. Attorney, if anyone who works in the Southern District U.S. Attorney’s office—which includes Morgan and Fulcher—is working on it, then your office is working on it.

Federal public defender George Lucas’ comment is dead-on:

"It appears their perception of a recusal is different than mine."

I would add that their perception of recusal is different from anyone’s living in reality.

Burhalter is playing word games that make him look like a liar. Morgan and Fulcher are assistant U.S. Attorneys in Burkhalter’s office. If they are working on the case, then the office has not recused itself from the case.

Saying that the office is recused—except for the two lawyers who have been assigned to the case—is a bizarre word game that reinforces negative stereotypes about politicians and lawyers. Most people would simply call it a lie. It would be like saying: “I don’t steal—except on Fridays.” The qualifier negates the statement. 

What I can’t figure out is why is Burkhalter playing games on this issue? Who cares if his office has recused itself?

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When the economy crashed in 2008 many previously viable car dealerships went bankrupt due to the huge decrease in sales. Deuce McAllister Nissan in South Jackson was one of the dealerships that went out of business. The dealership was owned by Deuce McAllister, the former star running back for Ole Miss and the New Orleans Saints.

In December the Clarion-Ledger reported under the headline “McAllister files suit against Nissan” that Deuce and Nissan are in a $1.5 million lawsuit stemming from Deuce's personal guaranty of the dealership's operations. Deuce filed a counterclaim in response to Nissan’s Complaint. A more accurate news headline would have been “Deuce on the Hook for $1.5 Million Owed by Failed Nissan Dealership.”

On Thursday Kingfish posted links to the Complaint, Answer and Counterclaim, Nissan’s Motion to Dismiss Counterclaim and Deuce’s Amended Counterclaim. Nissan’s claims are primarily based on its Financing and Security Agreement with Deuce’s dealership and Deuce’s personal guaranty of the dealership’s obligations. You might think that Deuce has the home field advantage in the case, since it is pending in Jackson and everyone loves Deuce. You would be wrong.

Franchise and dealership agreements are drafted by the franchisor’s or manufacturer’s lawyers based on a company’s collective knowledge gained from many years of experience. The terms of the agreement are rarely negotiated and are heavily stacked in favor of the manufacturer/ franchisor. Nissan and other companies like it have been in many lawsuits seeking to collect under personal guarantees against individuals such as Deuce, and they almost always win.

Deuce claims that Nissan "was guilty of negligence in the performance of its obligations under the contracts.." and concealed information from Deuce. The counterclaim does not provide specific details of Nissan's alleged misconduct, nor does it cite any contractual provisions that Nissan breached.

I do not see a negligence theory working in this case. There were contracts between  the parties and the contracts controlled. Either Nissan breached its obligations under the contracts or it didn't, and I suspect that it didn't.

It is common for individuals in a similar position as Deuce to file a counterclaim against the manufacturer or even sue first in a preemptive strike in an attempt to gain leverage in negotiating a decent settlement. But it almost never works. It usually ends up being this simple: (1) the dealership, which is now in bankruptcy, owes Nissan the money; (2) Deuce is personally liable for the dealership’s obligations; so (3) Deuce has to pay Nissan the $1.5 million. If this was a football game, Deuce would be at least a two touchdown underdog to win the game. 

Nissan's attorneys are Jeff Barber and Chad Hammons at Watkins Ludlam. Deuce's lawyer is Joe Roberts of Jackson.

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On December 7, 2009 Natchez Regional Medical Center filed a fifty-three page Complaint against Quorum Health Resources and two Quorum employees (Jeffrey Wesselman and Michael Anderson) who formerly served as the CEO and CFO of NRMC. Here is the Complaint, which NRMC filed in federal court in the Western Division for the Southern District of Mississippi.

NRMC announced the lawsuit last March, as I reported here.

Quorum had a contract to manage NRMC. NRMC’s Complaint alleges that Quorum, Wesselman and Anderson committed fraud and gross mis-management of NRMC. The central allegation of the Complaint is that Quorum and its employees falsely reported to the NRMC board of trustees that the hospital was profitable when in fact, the hospital was actually losing money. The Complaint alleges that the false reports were made so that NRMC would renew Quorum’s management contract. Under the contract, NRMC paid Quorum $200,000 per year and covered the salary and costs associated with the CEO and CFO.

Allegations that Quorum mismanaged the hospital include that Quorum:

• directed NRMC to enter into contracts with physicians that violated federal Stark Laws;
• failed to increase medical services rates to reflect market conditions, resulting in millions of dollars in lost revenue;
• excessively staffed NRMC;
• directed NRMC to purchase supplies from vendors with relationships with Quorum;
• mismanaged physician contracts;
• accounting irregularities and misrepresentations; and
• other mis-management.

The Complaint provides many factual details to support the allegations.

The pleaded causes of action are:

1. breach of fiduciary duty;
2. breach of contract;
3. breach of duty of good faith and fair dealing;
4. negligence;
5. fraud;
6. negligent misrepresentation;
7. aiding and abetting breach of fiduciary duty;
8. fraudulent transfers under Mississippi Uniform Fraudulent Transfers Act; and
9. corporate waste.

NRMC’s attorneys are John Maxey and Kelly Hollingsworth of Maxey Wann and William Ryan and Kevin Hroblac of the Whiteford Taylor firm in Baltimore.

So far no attorney has appeared for Quorum.

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Last Monday I reported that Keith Ball has been selected as the new Magistrate Judge for the Southern District. I had heard the news the previous Friday from someone who was not on the Magistrate Selection Panel.

Then last Wednesday I heard that one of the Southern District Judges was telling lawyers that no announcement had been made on the selection yet. 

But the Clarion-Ledger reported this morning that Judge Wingate confirmed that Keith Ball is the choice:

 U.S. District Judge Henry Wingate, chief judge for the Southern District, on Monday confirmed Ball's selection.

On another note, I saw a comment on another blog that Judge Winston Kidd's name has been submitted for the vacant 5th Circuit Court of Appeals seat. I'm not sure what the person meant by "submitted", but I do not believe it to be true unless he meant that Judge Kidd was one of many potential candidates submitted to the White House for consideration. 

It's my understanding that the White House is still in the vetting process and has not decided on a nominee.  The slow pace of President Obama filling judicial vacancies continues to receive national attention. The White House attorneys in charge of the selection and vetting process are leaving their posts soon, which threatens to further slow the process.

Every so often I am asked my opinion of what it might mean that there has been no announcement for the vacant Southern District Court or 5th Circuit positions. I do not believe that much should be read into it. The White House is just slow in this area. I would not read anything else into it until most of the other open slots around the country are filled with ours still open.

There could be announcements soon, or not for a long time. I don't think anyone really knows which it will be.

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On the heels of Saturday's lackluster loss to Alcorn State in football Jackson State suffered another defeat today when a federal court jury in Jackson awarded LaVerne Gentry $100,000 in her lawsuit against J.S.U. for discrimination and retaliation. Here is the Clarion-Ledger's article. Here is the Ledger's article from last week when the trial started, which described the plaintiff's allegations:

The lawsuit alleges that in or about March 2006 she was denied a raise because of her gender.

"After speaking out about matters of public concern, Dr. LaVerne Gentry was removed from tenure track," according to her lawsuit.

Attorney Lisa Ross (right) talks about the suit filed by her client LaVerne Gentry (left) stemming from Gentry's claim she was denied tenure and a related salary increase at Jackson State University because of her gender. (Brian Albert Broom/The Clarion-Ledger)

 

The jury found for Ms. Gentry on her retaliation claim and for J.S.U. on the discrimination case.

Plaintiff's counsel was Lisa Ross of Jackson. Defense counsel were Gary Friedman and Latoya Merritt with Phelps Dunbar in Jackson.

Ross asked for $100,000 in closing and will be able to file a motion to recover attorney's fees.

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Last month I wrote about the request by the federal court judges in the Northern District to eliminate divisions. Last week the Mississippi Bar reported that the judges have withdrawn  the request:

Last week the Bar was notified by the Fifth Circuit that the judges of the Northern District of Mississippi have agreed by consensus to withdraw their request to eliminate statutory divisions at this time. Thank you to those of you who provided comments.

My interpretation of this is that the members of the Bar were not in favor of the request and spoke out against it in response to the Bar's request for feedback.

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Keith Ball of Jackson has been named the new Magistrate Judge for the Southern District of Mississippi. Ball replaces the popular retiring Magistrate Judge James Sumner. Ball beat out four other finalists and many more applicants from a field narrowed by the Magistrate Selection Panel. The sitting Southern District Judges made the selection.

Ball is originally from Jackson and is a 1990 graduate of the University of Mississippi School of Law. He practiced in Jackson as a civil litigation defense lawyer with Phelps Dunbar and Currie Johnson before moving to Louisville. In Louisville he had a general practice that is typical for many small town lawyers. He stayed in Louisville for about five years before returning to Jackson for another stint with Currie Johnson. At the time of his selection as Magistrate Judge, Ball was working as the Director of Development at Reformed University Ministries.

 I expect Ball to be a popular Magistrate. The fact that he has two stints with the same law firm suggests that he gets along with people and does not burn bridges.

I am not nearly as concerned that Ball drinks the defense side cool-aide because of his years in a general practice in Louisville. This comment is not a slam of defense lawyers. I would not want a judge who drinks the plaintiff side cool-aide either. 

Great judges are the ones who both sides believe are fair. Ball has the potential to be that kind of judge.   

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On Thursday a federal court jury in Gulfport awarded no punitive damages in the latest State Farm Katrina wind vs. water trial. The jury, which had previously awarded the plaintiffs $52,300 in compensatory damages, took 80 minutes to reach its decision.

This is the kind of result where there is no real winner. The plaintiffs cannot be happy with $52,300 for a destroyed home, especially since they may have had over $50,000 in litigation expenses in the case.

State Farm is no doubt happier than the plaintiffs, but having a jury find that State Farm should have paid over $50,000 more than it did may not be good for State Farm's long-term sales. State Farm also would have had $50,000 or more in litigation expenses, plus well over $100,000 in attorney's fees. If you told me that State Farm paid its attorneys $300,000 in fees in the case I would not be surprised.   

Earlier posts on trial:

Judge Senter Encourages State Farm to Settle Latest Wind vs. Water Trial

Split Decision in Wind vs. Water Trial

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The Sun-Herald reports that in the latest Katrina wind vs. water trial a federal court jury deliberated 80 minutes before ruling for State Farm on the wind vs. water issue and the homeowners on the contents claim:

After deliberating for 80 minutes Tuesday, a jury said Reginald Bossier isn’t entitled to any additional money for damage to his Biloxi home during Hurricane Katrina, but State Farm does owe him $52,300 for damage to its contents.

In the case of Bossier v. State Farm Fire & Casualty Co., the jury of five men and three women also found Bossier shouldn't’t receive any compensation for additional living expenses after his home was destroyed.

The jury will return to federal court Thursday at 1 p.m. to decide if Bossier should be awarded punitive damages in the case. Sr. Judge L.T. Sent er Jr. said State Farm had no legal reason for denying Bossier’s claim for three years on and outbuilding and the contents of that building.

Bossier had asked the jury for the policy limit of $650,000 on his home on the north side of Biloxi’s Back Bay. The judge instructed the jury members they could award him from zero to a maximum of $325,337.87 for damage to the home and up to $255,907 for contents.

State Farm appears to be spinning the verdict as  a win, but a large punitive verdict for not paying the contents claim would change their tune. Plaintiffs' counsel were Judy Guise and Shanon Fountain Jr.

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The Sun Herald reports on the ongoing Katrina wind vs. water trial pending before Judge Senter in Gulfport. Here is an earlier article on the trial. The plaintiff seeks policy limits of $650,000. State Farm offered $2,300 on the claim. The article states that after denying State Farm's motion for directed verdict, Judge Senter:

suggested State Farm consider making an offer to policyholder Reginald “Ed” Bossier that would end the trial.

Senter said the record so far includes “some pretty tough stuff” pertaining to the insurance company. “See what you can come up with,” Senter told the attorneys, “and everybody can come out of this with a degree of honor.”

In addition:

State Farm waited four years to compensate the Bossiers for an outbuilding that, according to an eyewitness, was gone after the roaring sound of a tornado passed and before the tide rose. The payment came as the case headed toward trial. Also, the company erred in calculating what was owed for roof and siding damage, correcting the $13,000 mistake with a check in January 2008.

I don't have any word yet as to whether State Farm took the hint from Judge Senter. The plaintiff is Ed Bossier of Biloxi and his attorney is Judy Guice of Biloxi. State Farm's attorneys are Ben Mullen and John Banahan.

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The bar sent out an email last week seeking comments on a proposal by the federal court judges in the Northern District of Mississippi to eliminate divisions:

The judges of the Northern District have requested that the circuit council recommend to the Judicial Conference of the United States and the Congress that Congress rescind 104, thus leaving the Northern District without statutory divisions.  The effect of such action would arguably allow the judges of the Northern District to conduct trials and other proceedings in a case at any place where court is authorized to be held in the district, regardless of where the action is filed.

I cannot tell what the practical effect of the change would be, but my initial reaction is not positive and I have a lot of questions. Under the proposed change how would potential jurors be summoned and from where? Also, how would the trial location be selected? Would the trial always be at the courthouse where the assigned judge has his or her chambers? Will parties and lawyers from one area of the district have to go to another area to try a case just because that is where the judge is? Then, will the Southern District make the same proposal? If we're going to do this why do we need federal courthouses all over the state? Why not have one in the Southern District and one in the Northern District? 

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The Clarion-Ledger ran an article today on the lawsuit filed in Oxford seeking to expand the House of Representatives from the current 435 members to either 932 or 1,761 members. I've got to go with Representative Gregg Harper on this one:

Some, including 3rd District Republican Rep. Gregg Harper of Pearl, think the restructuring would cost too much money.

With rank-and-file members earning $174,000 per year, taxpayers pay more than $75 million per year total in salaries. If there were 932 congressmen, the overall amount would increase to more than $162 million. If there were 1,761 representatives, the total taxpayer cost could be more than $300 million.

"Clearly, this concept would greatly increase the size and cost of our federal government at a time when we should be reducing spending," Harper said.

My law school constitutional law professor George Cochran also commented on the suit. Below are his comments and my take:

Ole Miss constitutional law professor George Cochran calls the suit "innovative," but questions how successful it will be.

Translation: It's a wing nut lawsuit and they are going to lose. Oxford is where innovative lawsuits go to die. They should have filed in San Francisco or Manhattan.

"I'm not sure the right defendants are being sued," Cochran said. "There are a lot of procedural hurdles that could lead to a dismissal."

Translation: This one will be over quick.

Cochran said he wasn't sure who the right defendant would be until he did more research. He said, however, the federal courts may not want to make a ruling on this case because typically the judicial branch cannot tell the legislative what to do and vice-versa.

It would be like a federal judge ruling the war in Iraq is unconstitutional, Cochran said. "That's just not going to happen," he said.

Translation: If this case were an animal, it would be a squirrel.

Cochran also believes the court would take into consideration the cost, as well as how difficult the restructuring would be if the lawsuit were successful.

Translation: Just what Americans don't want--more Washington bureaucrats.

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On Thursday the Department of Justice intervened in a multi-million dollar qui tam lawsuit against Fortune 500 company SAIC and three current or former employees. Here is the A.P. story in the Clarion-Ledger, the government's Complaint and the original Complaint filed by the relator (or whistle blower) David Magee. Magee is represented by Ben Galloway with Owen and Galloway in Gulfport and firms from Cincinnati and Hawaii.

The Complaint alleges that SAIC rigged bids on government contracts. The action appears based on conduct that occurred at Stennis Space Center in Hancock County. Stennis is where NASA tests space shuttle main engines, is a training site for Navy seals, and has a lot of people working on site for the government or contractors who don't like to talk about what exactly they do. The government seeks over $100 million against SAIC. It could be a big payday for Magee, who stands to earn 25% of the recovery for being the whistle blower in the case.