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.
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.
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?
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.
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:
The Complaint provides many factual details to support the allegations.
The pleaded causes of action are:
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.
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.
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.
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.
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.
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
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.
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.
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?
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.
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.
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