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

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A Jasper County jury returned a $135 million verdict [I reported earlier that it was $130 million, then $235 million] today in the case against Ford Motor Co. involving the death of New York Mets prospect Brian Cole. I am not sure whether there were punitive damages.

Update: I am confident now that the verdict was in the $130's. See the comment by the plaintiff lawyer.

Update: reports are now that the verdict was all compensatory and the case settled before the punitive phase.

Two earlier trials in the case resulted in mistrials. I am not positive, but I think that this case is so old that the tort caps do not apply. Update: the case was filed in 2001. The caps do not apply.

For prior posts on the case see here, here, and here.

Read the Plaintiff attorney's blog on the verdict here. 

I will have more on this verdict in a future post.

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

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

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

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

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

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

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

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

Judge Malcolm Harrison was the trial judge.

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

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

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

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

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Within the last week or so a Gulf Coast arbitrator awarded $2.325 million to a plaintiff whose dump truck collided with an 18–wheeler.

The accident occurred years ago on a four lane road in Jackson County. The 18–wheeler ran a stop sign and crossed two of the four lanes and stopped, with the trailer blocking two lanes. The plaintiff's dump truck collided with the 18–wheeler. All fact neutral fact witnesses agreed that the accident was the 18–wheeler's fault.

The forty-seven year old plaintiff suffered severe injuries and was permanently disabled. The plaintiff had over $180,000 in medical bills. In addition, the plaintiff losing his job caused severe economic hardship for the plaintiff and his family.

The case was originally filed six years ago in the Circuit Court of Jackson County. But the parties agreed to binding arbitration after three trials were continued due to the priority of criminal cases.

At the arbitration hearing, the defense argued that the plaintiff should have stopped his dump truck to avoid the 18–wheeler. The defendant's accident reconstructionist—who had questionable credentials—basically flipped on the witness stand and testified that the plaintiff had only 2.5 seconds to stop, which was impossible due to the size of the dump truck. The arbitrator cited the defense expert in support of his decision.

$1.2 million of the award was for non-economic damages. But it was a pre-cap case, so the caps do not apply. The defendant is not expected to appeal. 

The defendant offered $200,000 to settle before the arbitration. There was a workers comp. lien for the medical bills of over $180,000.

Kasie Braswell and Richard Taylor with the Taylor Martino firm out of Mobile represented the plaintiff. Jim Galloway and Shannon Favre with Butler Snow in Gulfport represented the defendant.

Word on the street on the Coast is that defense counsel is outraged by the result and that Butler Snow has canceled all future mediations with the arbitrator, who is well known and respected in Mississippi.

My Take:

If the defendants only offered $200,000 to settle before trial, then they did not want to settle. Offering $200k to settle with a comp lien of $180k is usually the equivalent of offering zero. If you want to settle, you have to offer a good bit more than the lien. In this case, it probably would have taken an offer of over $500,000 for the plaintiff to even think about it.  

I have heard of the “hey, you hit my 18–wheeler” defense. But most lawyers view it as a weak defense asserted when there is nothing else to argue. Few people actually believe that they will win the case with the defense.

This case could have been a situation where the defendant fell in love with their defense and loss objectivity. You see this happen to lawyers on both sides, who have to buy into their cases in order to do a good job. Published studies show that on average, lawyers do a poor job of predicting the results of their cases. Sometimes lawyers lose all objectivity, which can lead to a really bad—but unexpected—result.

In my opinion, this phenomenon is usually more dangerous for defendants and defense lawyers than plaintiffs and plaintiff lawyers. On the plaintiff side, if you poorly evaluate your case, then there is not a lot that you can do after the case is filed. Defendants will not offer more than nuisance value to settle, which the client will not accept. So you have to try the case and work on doing a better job of evaluating the merits of a case before it is filed. A wise plaintiff lawyer will spend many hours analyzing a case that he ultimately rejects, knowing that the decision can save him countless hours and dollars down the road.   

On the defense side, however, the phenomenon can lead to avoidable huge verdicts that take the defendant (often an insurance company) and defense counsel by surprise. This hasn't always happened when you see a large verdict in a case, but it has a lot of the times. Many times, neutral trial observers were not surprised by the verdict, which often means that the defense fell in love with their case and lost objectivity.

Lawyers have to be careful not to fall into this trap—myself included. Using expected value calculations can help, as discussed in this post. But there is no substitute for experience and having the ability to stay objective in evaluating the range of possible outcomes.

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On Friday a Lauderdale County Circuit Court jury rendered a defense verdict in Payne v. Gowdy et al. in a case tried before Judge Lester Williamson. Here are the case details as reported to me.

Facts

The decedent, Marie Payne, was walking in a parking garage in Anderson Hospital in Meridian after a doctors appointment. Cleveland Gowdy was driving his personal pickup truck to an appointment to get a DOT physical to renew his commercial driver's license so that he could keep driving 18 wheelers. He worked for Schneider National, but was not on the clock and was not driving a Schneider vehicle at the time. Gowdy missed a parking space, put his pickup in reverse and accidentally backed over Marie Payne, an elderly 78 year old female. Ms. Payne died about 30 minutes after the accident.

Lawsuit

The plaintiffs sued Gowdy and his employer, Schneider National, alleging that Gowdy was in the scope and course of his employment because Schneider made the appointment for him to get his DOT physical, he went to a Schneider approved doctor, Schneider paid for the physical and wrote the cost of it off on its taxes as a business expense.

Trial

Gowdy testified at trial that although he stopped, looked in his side mirror and rear view mirror, he never saw  Payne. He also testified that he turned and watched through his rear window the whole time he was backing his truck, but also did not see her then either. Plaintiffs' expert testified that Gowdy should have seen Payne when backing because she was tall enough that five to six inches of her head would have been visible over his tailgate. Gowdy's expert testified that she would have been in a blind spot and would not have been visible to Gowdy.

Schneider's expert testified that under the FMCSR's, Gowdy was not "on-duty" when going to get his physical because it was a prerequisite for employment and was not done at the "direction" of Schneider.

The jury deliberated for 2 hours and returned a defense verdict as to liability. Because Gowdy was not found to be negligent, the jury did not have to render a verdict on the employment issues with Schneider National. The Plaintiffs asked for $3 million in damages.

Plaintiffs' counsel were Rocky Wilkins of Jackson and Henry Palmer of Meridian. Defense counsel were Justin Cluck of Holly Springs (Gowdy) and David Dunbar of Ridgeland (Schneider National).

My Take

The moral of the story here is that parking garages are dangerous for pedestrians. Pedestrians in garages should assume that drivers of vehicles do not see them.  

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There was a $1.5 million verdict today in Lincoln County in a commercial litigation breach of contract case.

Precision Welding sued Denbury Resources for [correction] $4,190,000 for breaching an alleged contract between the parties. Denbury denied liability. The jury reached a unanimous verdict for the plaintiff and awarded $1.5 million in damages.

Walter “Bubba” Morrison of Sessums, Dallas and Morrison in Ridgeland represented the plaintiff. Bill Reed and Brandon Jolly of Baker Donelson in Jackson represented the defendant. The case was tried before Judge David Strong.

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There was a $5 million verdict on Friday in a Jones County silica trial with 10% fault assigned to the defendant. Here is the Harris Martin article on the verdict:

ELLISVILLE, Miss. –– A Mississippi jury has awarded $5 million to a silica plaintiff, assessing 10 percent liability to American Optical, sources have confirmed to HarrisMartin. McGilberry v. Pangborn Corp., No. 2007-16-CV5 (Miss. Cir. Ct., Jones Cty., Dist. 1.).

The Mississippi First Judicial Circuit Court for Jones County jury reached the verdict on Friday, Aug. 6, sources said. Judge Billy Joe Landrum presided over the one-week trial, which ended after approximately four hours of jury deliberations.

The underlying claims were brought by John McGilberry, who claimed that his work as a jackhammer demolishing concrete exposed him to respirable silica. McGilberry also alleged that he was exposed to silica as a bystander while sandblasting for seven days in the 1970s.

As a result of this exposure, McGilberry claimed that he eventually developed pneumoconiosis.

American Optical, whose 1050 and 1010 disposable respirators were at issue in the case, was the lone remaining defendant at the time of the verdict. The company argued that the plaintiff had failed to properly identify their product; that the exposure history was insufficient to cause silicosis; and that in the plaintiff’s 30-year medical history, he was diagnosed and treated for sarcoidosis but silicosis was never mentioned.

Testifying on behalf of the plaintiff were Steven E. Haber, M.D., pulmonology; Vernon E. Rose, Dr.PH, industrial hygiene; Frank Giles, life care planner; and Charles Dennis, economist.

Testifying on behalf of American Optical were Robert M. Middleton, M.D., pulmonology; David R. Derr, M.D., radiology; Joseph Zdrok, corporate representative; and Dr. David Anderson, industrial hygiene.

Counsel for the plaintiff were R. Allen Smith Jr., Patrick Malouf and John T. Givens of Porter & Malouf in Jackson, Miss.

American Optical was represented by Walter T. Johnson and Michael O. Gwin of Watkins Eager in Jackson, Miss.

Additional Information:

Sources are telling me that $2.5 million of the verdict was for non-economic damages. The defendant wants to reduce the non-economic damages under the cap to $1 million and then apply the 90% reduction due to the defendant being only 10% at fault. This would make the judgment $350,000 instead of $500,000.I do not know if that is the correct way to apply the cap. My guess is that it's not.  

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

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

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

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

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

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

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Facts

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

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

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

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

The Trial

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

Ashley Ogden was plaintiffs' counsel.

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

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

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

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

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

The Verdict

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

Here is the breakdown of the verdict:

a.      Plaintiff Baby Jane Doe

1)     $93,525.46  for past medical expenses

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

3)     $75,000.00  for pain and suffering

4)     $200,000.00 for lost wages

TOTAL:          $3,868,525.46

b.     Plaintiff Baby John Doe

1)     $45,852.67  for past medical expenses

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

3)     $25,000.00 for pain and suffering

4)     $75,000.00 for future lost wages

TOTAL:          $1,645,852.67

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

My Take

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

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

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

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

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

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

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

I will post more on this verdict on Thursday.

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There are reports of a $1.7 million verdict on Monday in Jackson County Circuit Court. The case was a business dispute involving claims for breach of fiduciary duty. Matthew Mestayer and Mark Lumpkin were plaintiff's counsel.

I am trying to get more information on this verdict.

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

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

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

Case Facts According to Plaintiffs

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

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

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

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

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

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

The Verdict

The jury awarded the Plaintiffs the following amounts:

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

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

My Take

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

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

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

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

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A Pike County Circuit Court jury returned a plaintiff's verdict for $25,000 on Thursday in a nursing home case. The defendant was a Tara Cares owned nursing home.

Eric Stacener and Andrew Neely of Jackson represented the plaintiff. Davis Frye, Brad Smith and Barry Ford with Baker Donelson in Jackson represented the defendant. Judge Mike Taylor presided over the trial.

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There are reports of a defense verdict rendered today in a Jefferson County asbestos drilling mud case against Conoco Phillips Chemical. Adams & Reese is believed to have represented the defendants.

I believe that this was the same cast of characters as involved in the April 2010 $15.2 million verdict in Jones County in a drilling mud case that I discussed here, here and here.

This was a huge defense win.

There was another defense verdict in Jefferson County less than a year ago, as reported here.

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The Clarion-Ledger reported today on a $150,000 jury verdict rendered several weeks ago for police officer Shirley Johnson in a Holmes County sexual discrimination case against the City of Belzoni. Here is the article. I had not previously heard about this verdict.

The articles states:

Two weeks ago, a Humphreys County Circuit Court jury awarded police officer Shirley Johnson $50,000 each from the city, Police Chief Mickey Foxworth and officer David James.

Johnson filed the lawsuit in 2006.

Johnson alleged she was harassed by James and that the chief didn't do anything about her complaint.

Plaintiff's attorney Craig Panter of Madison described the case as including a gender discrimination claim:

"It was a bigger issue than just sexual harassment; it was gender discrimination," Panter said Tuesday.

The City of Belzoni filed a motion for judgment not withstanding the verdict and plans to appeal if the motion is denied.

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

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

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

I will post an update if I obtain more information.

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

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

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

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

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

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

The article states:

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

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

 

The court found reckless conduct by the Police:

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

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

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

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

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

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

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

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On April 14, 2010 the Circuit Court of Forrest County, Judge Dale Harkey, rendered a verdict of $579,789 in the med-mal case of Jessie Lee Johnson v. Forrest General Hospital. Here is a copy of the Court’s findings of fact and conclusions of law.

The Plaintiff underwent a successful knee replacement at Forrest General in 1998 and was transfered to the rehabilitation unit in the hospital. Two weeks later, plaintiff’s knee was injured.

Plaintiff alleged that the injury occurred when an aide assisted her to the restroom. She stated that the aide did not put down the foot rest on plaintiff's wheel chair and plaintiff’s foot caught the floor, causing the dislocation of her knee. Multiple additional dislocations followed. Ultimately, a new knee was installed. But the knee became infected and her leg was amputated above the knee.

The aide disputed plaintiff’s testimony. She stated that no accident happened and that both foot rests were on the wheelchair when she transported plaintiff. In addition, the hospital argued through expert testimony that the injury could not have occurred as plaintiff described and that the knee installation was sub-standard, which caused the dislocation.

As an aside, defendants love to dump on other health-care providers in med-mal cases when the other providers weren’t sued (they are “empty chairs”). But when the plaintiffs sue everyone in sight, the providers circle the wagons and go with some variation of a causation defense. This is a big reason that plaintiff lawyers are so cynical towards doctors.

The court weighed the evidence and decided that the plaintiff was telling the truth. The Court did more than take the plaintiff’s word for it. The Court considered evidence of a late nurse’s note that cast suspicion on the hospital’s account of the injury and compared plaintiff’s account to objective evidence in the medical records.

The Court assessed damages of:

• $199,789.54 for medical expenses
• $380,000.00 pain and suffering from at least 7 dislocations and the amputation.

The Court did not enter a final judgment because of the $500,000 cap in Tort Claims Act cases. The Court requested briefs on the Act and the limits of applicable insurance coverage.

Jennifer Ingram Wilkinson of Hattiesburg and a New Orleans firm represented the plaintiff. Gene Parker of Hattiesburg [correction: Vicksburg] represented Forrest General.

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Lawyer’s Weekly USA has this article on the recent Jones County drilling mud verdict that I reported here and here. The article is somewhat slanted because it heavily quotes the plaintiff’s lawyer and not the defendant’s, who declined to comment.

The article opens:

A Mississippi jury has awarded $15 million to a 71 year-old oil industry worker who developed asbestosis after years of handling bags of product containing 99 percent asbestos.

According to the article:

Among the evidence at trial was a handwritten document indicating that the company had weighed the cost of personal injury lawsuits against the profits of continuing to sell asbestos.

The article emphasized closing arguments:

Only one live witness testified for the defense - an expert who opined that it was unlikely the plaintiff had asbestosis even though he admitted he had not reviewed the plaintiff’s extensive work history with asbestos, and ultimately acknowledged that Lofton was a “pulmonary cripple.”

Jones also pointed out that the expert stopped seeing patients in 2000 to devote his full attention to serving as an exclusively defense-side expert, from which he has made over $6 million.

According to Jones, in its closing the defense told the jury that it “took courage” for the expert to give his opinion that the plaintiff did not suffer from asbestosis.

Jones countered in his closing: “It didn’t take any courage; all it took was money.”

Does anyone know what “breaking it off” is in Latin?

The story continues:

Perhaps most damaging to the defense was not putting a corporate representative on the stand.

Jones’ co-counsel Ron Franklin hammered this point home during his portion of closing arguments: “Not one human being, not one executive, not anybody from ConocoPhillips who they can put on the witness stand to tell you this product was safe. Not one person.”

Uh oh. That’s at least arguably an improper argument. It’s similar to the argument discussed in this post that contributed to a Court of Appeals reversal.

And it’s going to be hard for the plaintiff to argue that the argument was harmless if his lawyer was the source of the “perhaps most damaging” assessment. It will be interesting to see how that plays out on appeal.

I dont' get why defense lawyers tend to be so reticent in talking to reporters in situations like this. I put it in the category of things lawyers do for no good reason because that’s how its always been done. It would be tempting to say that we got hosed and are going to appeal. 

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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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I have a little more information on the $15.2 million drilling mud verdict this week in Jones County. The verdict was all compensatory damages. The jury considered punitive damages, but did not return a verdict. 

Reports are that it was an asbestos drilling mud case. The plaintiff has severe asbestosis according to his treating physician Dr. Steve Stogner, who reportedly was a great witness. The defendant was Conoco Phillips, now owned by Chevron Phillips Chemical Co., LLC. Union Carbide settled before trial and Oilfield Service & Supply Co. was dismissed on summary judgment.

Plaintiff's attorneys were Bob Hammond, Phillip Carby and the Franklin Cardwll & Jones firm from Texas.

Defense counsel was Alex Coscullela from Houston, Bernard Booth and Jeff Trotter, all with Adams and Reese.

This was the third drilling mud case tried in Mississippi. The first resulted in a $3.2 million verdict that Judge Robert Evans threw out on a JNOV motion. The second was a defense verdict.

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The Clarion-Ledger reports today on a $19 million jury verdict rendered yesterday in Hinds County against Chevron. The five plaintiffs claimed that exposure to leaded gasoline fumes at a building where they worked caused their children to be born with disabilities. The case was a Jefferson County case in which venue was transferred to Hinds County.

The C-L article explains:

All the women were pregnant when they worked in the old Jefferson County office building in Fayette, which previously was a gas station affiliated with Texaco Inc.

The women sued Texaco, which merged with Chevron Corp. in 2001, saying they were exposed to leaded gasoline fumes from tanks left in the ground when the former gas station was renovated.

Loraine Simon's 20-year-old daughter, Rosalyn, is severely mentally disabled, and the children of the other women suffer from respiratory conditions and learning disabilities.

After the two-week trial, the jury awarded Simon, the lead plaintiff, $15 million.

The trial was moved from Jefferson County to Hinds County on a change of venue request by Texaco because the women were known or worked in the county.

Chevron will appeal:

"Texaco intends to appeal today's verdict, which we believe is contrary to the evidence and law," Texaco attorney Bill Jones III said. "Texaco never owned, operated or controlled the service station or the underground storage tanks at issue. We believe there is no evidence that in any way links Texaco to claims made by plaintiffs."

Dennis Sweet tried the case for the plaintiffs. I do not know who worked up the case. Bill Jones and Barry Ford from Baker Donelson tried the case for Chevron. They have tried a lot of cases in the last ten years and have rarely lost. I was very surprised to hear that they defended a case with that high of a verdict. Judge Lamar Pickard was the trial judge.

I know very little about the case other than what is in the newspaper. But it seems like the verdict will be hard to keep on appeal. Chevron, Exxon, Shell, etc. do not own the gas stations where their gas is sold. The same applies for many businesses that operate under franchise or license agreements. In those situations, the franchisor/ licensor is typically not legally responsible for something that occurs on the premises. Perhaps something was different about this case—perhaps not. If not, this could be a reversed and rendered decision on appeal.

Another question is whether the verdict is subject to Mississippi’s tort reform caps. The article suggests not when it says that the women originally sued Texaco, which merged with Chevron in 2001. This suggests that the case was filed before tort reform laws passed.

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I have a very sketchy report of a $15.2 compensatory verdict in a Jones County drilling mud case. Honestly, I don't know what a drilling mud case is.

It's my understanding that the verdict came in yesterday and the punitive phase was today.

Judge Billy Joe Landrum was the trial judge. The only thing I've heard so far on attorneys was that the lead defense lawyer was out of Houston and in-artfully argued in his last trial loss that the defendant should win because the plaintiff was 80 and had one foot in the grave already.

I have been out of the office today and will investigate this verdict tomorrow.

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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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Wouldn't it be great to have a resource that reports on many civil verdicts in the State of Mississippi? This blog could serve as that resource if more verdicts are reported to me.

Over the last year, I have reported on many verdicts. But my ability to report verdicts is limited to the verdicts that I hear about.

If you hear about a verdict in a Mississippi case, please send me an email about it. In addition to the result, I like information on the facts of the case, venue, judge, attorneys and other interesting information about the case. I typically do not reveal sources on the verdicts that I write about.

It's not unusual for me to hear about a trial going on somewhere in the state, but to not get enough information on it to report the result. Please help build the content on this blog by reporting verdict results.

Please report verdicts by sending me an email or submitting the information on the contact form on my firm web site.

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

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

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

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

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

Other recent verdicts in pursuit cases against the city include:

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

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

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

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

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

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

 

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

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Last week I reported a hung jury in a Jones County Ford Motor Co. trial. The case was actually tried in the Paulding district of Jasper County. Jones County Circuit Judge Billy Joe Landrum presided over the trial because Judge Robert Evans recused himself from the case.

This was the second trial for this case. The first trial was in 2004 and resulted in a mistrial for one of the two plaintiffs and a hung jury for the other.

The basis for the case was the 2001 Ford Explorer accident that resulted in the death of professional baseball prospect Brian Cole of Meridian. Here is a New York Times article about Cole following the accident. Cole was considered the New York Mets’ third best major league prospect at the time of the accident and played for the club’s double-A minor league affiliate.

In the lawsuit, the plaintiff based Cole’s lost wages on the assumption that Cole would have been a regular all-star in the majors—a questionable assumption based on Cole’s minor league statistics. The plaintiffs asked for $140 million in damages.

The case was originally tried in 2004 for three weeks with Judge Evans presiding. Plaintiff lawyers included Wayne Ferrell, Jim Nobles and Texas lawyers.

For the 2010 re-trial, plaintiffs added Tab Turner to the attorney roster. Both sides had many attorneys in the courtroom. The second trial lasted two weeks and resulted in a hung jury for both of the two plaintiffs.

Barry Ford and other Baker Donelson lawyers were involved in both trials on the defense side. Ford typically also brings in out-of-state lawyers to try cases in Mississippi.

It would not be surprising to see this case tried for a third time. The plaintiffs probably have expenses in the case in the six-figure range, which will make settlement difficult. In addition, Ford is not afraid to try cases in tough jurisdictions like Paulding.

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On Thursday Circuit Judge Billy Joe Landrum declared a mistrial after a Jones County Circuit Court jury was unable to reach a verdict in a products liability trial against Ford Motor Co. The trial lasted for several weeks.

Baker Donelson and out-of-state lawyers represented Ford. I do not yet know who represented the plaintiffs or the alleged defect at issue.

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Here is the Greenwood Commonwealth’s article about the recent $12 million Leflore County jury verdict for former Valley basketball player Michael Archie. Information included:

• A judge issued a default judgment in 2005 finding that the owner of Itta Bena’s now-defunct Club Focus, Rosie Meeks Brown, was liable in the case. Brown had never responded to legal filings. The jury’s job, therefore, was to set the amount of damages.
• A second defendant, security guard Johny King, re-sponded to the suit and was going to represent himself, according to Moore. However, King did not show up for the trial.
• When asked if he expected the defendants would ever pay, [Carlos] Moore said he reserved comment. However, Club Focus did have insurance, according to Moore. “They can pay voluntarily, or we can make them pay,” he said.
  
  

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Word on the street in Greenwood is that the $12 million LeFlore County verdict rendered on Wednesday was a damages hearing on a 2005 default judgment. Sources tell me that the defendant nightclub went out of business shortly after the shooting and did not defend the case. No attorney ever appeared to defend the club owner. Plaintiff’s attorney was Carlos Moore of Grenada.

Apparently, the trial involved the plaintiff putting on evidence related to the victim’s damages and the jury making a damages award. The fact that the verdict was high is not surprising, since the underlying injury was severe, the facts presented at the trial were uncontested and the arguments one-sided.

This raises the question of whether the plaintiff will ever collect any of the judgment. Typically, a no-show defendant is a bad sign for the plaintiff.

There is some conflicting information related to this verdict. There are reports that the plaintiff’s attorney is claiming that the club did have liability insurance. But if that is true, the insurer would presumably have hired counsel to defend the case. There are times when there are screw-ups and cases end up with a default judgment even when there is insurance, but the insurance company wakes up at some point and tries to get the verdict set aside.

I appreciate reports from readers regarding the verdict and will post any new information that I receive.   

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The Greenwood newspaper is reporting a $12 million verdict Tuesday for the victim of a 2003 nightclub shooting in Itta Bena. According to the report:

A jury awarded $12 million today to a former Mississippi Valley State University basketball player made a paraplegic by a stray bullet at an Itta Bena nightclub in 2003.

Michael Archie, a Greenwood native, was shot at Club Focus on Jan. 26, 2003, after a fight he was not involved in broke out on the dance floor, Archie testified Monday.

As for the component of the verdict:

The jury awarded $12 million in compensatory damages and $1 per defendant in punitive damages.

Unfortunately, the article is short on details. I am assuming that the trial was in Leflore County. I would like to know how much of the verdict was for non-economic damages, since that component of damages is subject to Mississippi’s $1 million cap on non-economic damages.

I will post more details on this verdict if I obtain them.

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Background

Before Christmas I reported the plaintiff’s verdict for $80,000 in Madison County Circuit Court in the Robertson v. Russell case. My initial impression was that the result was a loss for both sides. I still feel that way.

Facts

The facts of the case were typical for an alienation of affection case (or any example of infidelity). The plaintiff and his long-time wife were in a typical marriage: stable, but certainly without the passion of a new relationship. The defendant was in a similar marriage. The defendant and plaintiff’s wife began an affair, leading to the divorce of both couples. Plaintiff and defendant’s wife later married. There were some lurid details involving the affair, but again, fairly typical for instances of infidelity.

In summary, marriage is boring. Hell, being a responsible grown-up is boring. Affairs are exciting—at least that’s what people who have had them tell me. The fact that the cheaters later married doesn’t prove anything—except for maybe that being single in the South is un-fulfilling. 

Reason that the Verdict was a loss for the Plaintiff:  The verdict was a loss for the Plaintiff because the amount was too low to make the case worthwhile from the Plaintiff’s side. The case involved a week long trial, a lot of discovery and expert witnesses on both sides. Assuming that Plaintiff’s expenses in the case were $30,000, that leaves $50,000 before attorney’s fees. Assuming a 40% attorney’s fee, that leaves the Plaintiff with $30,000. In my opinion it would not be worth $30,000 to have to re-live the failure or your marriage for several years while the case was pending and sit through a week long trial where the defendant’s natural defense was to attack the plaintiff. I’m not sure what amount that would be worth, but $30,000 isn’t close.

Reason the the Verdict was a loss for the Defendant: The verdict was a loss for the Defendant because he has to pay the Plaintiff $80,000 on top of Defendant’s own attorney’s fees and expenses. My estimate is that the Defendant spent north of $100,000 out of his own pocket in attorney’s fees and expenses. Insurance does not cover alienation of affection cases. I can’t characterize a case where the Defendant is out of pocket at least $180,000 as a win.

In addition, a survey of reported verdicts in alienation of affection cases shows that the Defendant was lucky to escape a large verdict in the high six figures at least. In 1999 in Bland v. Hill the Mississippi Supreme Court affirmed a $200,000 verdict from a Lee County case. In 2007 in Fitch v. Valentine, the Mississippi Supreme Court affirmed a $754,500 verdict from a Marshall County case. In 2008 in Pierce v. Cook the Court affirmed a $1.5 million verdict from a case in Rankin County.

Defendant in Roberston v. Russell was found by the jury to have done the same thing as the defendants in the above three cases, but the jury awarded less in damages. It would be easy for a different 12 people to return a much higher verdict for the same conduct.

My point is that the Defendant should have tried to settle the case, but never did. He lost at least $180,000 on top of his own time and stress and could have lost much more. If the Defendant wants to call himself a winner because he could have lost more, he certainly has that right. Many losing players leave the casino every day with the same mind-set—happy that their loss was not worse. But they still lost.

Should the Trial Court have conducted a punitive damages evidentiary hearing?:

Another problem for the Defendant's case is that absent the Supreme Court  abolishing the cause of action, the case may come back from appeal for a punitive phase. The trial judge did not allow a punitive phase in the case, despite the fact that there was a punitive claim and admitted adultry.

The failure to conduct a punitive phase seems to violate the Supreme Court’s directives set out in Bradfield v. Schwartz. In that case, the Court reversed the trial court for not proceeding with a punitive phase after a plaintiff’s verdict in a case with a punitive claim. The Court explained the proper procedure in a case with a punitive damages claim:

If the jury awards compensatory damages, then an evidentiary hearing is conducted in the presence of the jury. At the close of this second phase of the trial, via an appropriate motion for a directed verdict, the judge, as gatekeeper, then ultimately decides whether the issue of punitive damages should be submitted to the trier-of-fact (jury). If the judge, from the record, should determine, as a matter of law, that the jury should not be allowed to consider the issue of punitive damages, a directed verdict shall be entered in favor of the defendant on the issue of punitive damages, and the case will end. If, on the other hand, the judge should allow the issue of punitive damages to be considered by the jury, then the jury, upon being properly instructed by the judge on the punitive damages issue, may decide to award punitive damages, and if so, in what amount, or the jury may decide not to award punitive damages. [HN8] If the jury should award punitive damages, then, prior to entry of the final judgment on an award of punitive damages, the judge, pursuant to Miss. Code Ann. § 11-1-65(1)(f)(I), shall "ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others," by considering the factors set out in Miss. Code Ann. § 11-1-65(1)(f)(ii)(1-4). While the statute does not envision that the judge could increase the amount of the jury's punitive damages award, the judge could unquestionably, consistent with the statute, reduce the amount of the jury's punitive damages award. ¹⁰ Finally, just as in any other case, the judge will ultimately decide, via the appropriate post-trial motions, whether it was error to submit the punitive damages issue to the jury. 

It’s my understanding that in Robertson the trial court refused to allow the case to proceed into an evidentiary hearing after the jury awarded compensatory damages. If so, the case should be coming back on appeal for an evidentiary hearing on punitive damages, unless the Supreme Court abolishes the alienation of affection cause of action. This is good news and bad news for both sides.

For the Plaintiff, the good news is that he may get a punitive phase with a different and probably better jury. The bad news is that based on the trial court’s past ruling, it will probably direct a verdict on punitive damages after the evidentiary hearing. If I represented the Plaintiff, I would ask the Supreme Court on appeal to rule that the issue of punitive damages must be submitted to the jury because there was evidence of an adulterous affair.

In Bland v. Hill the Court suggested that in alienation of affection cases the question of punitive damages hinges on whether there was sex involved in the affair:

It is clear that the reason Buddy wanted to put on proof of adultery is to obtain a punitive damage instruction. This Court has held that [HN9] in cases of adultery malice is presumed.  Walter v. Wilson, 228 So. 2d 597, 598 (Miss., 1969). Buddy cites to Walter, but in Walter the plaintiff was suing for alienation of affections and criminal conversation. Criminal conversation, when it was a viable claim, required proof of a sexual relationship between the alienated spouse and the defendant. In the case sub judice, Buddy was suing only for alienation of affections. Bland was not on notice that he would have to defend against accusations of adultery until after the discovery deadline. Buddy did not proffer any direct evidence, and this Court procedurally bars this claim.

For the Defendant, the good news is that the gate-keeping judge doesn’t believe that punitive damages are warranted in the case. The bad news is the defendant is going to be spending a lot more money in attorney’s fees and there may be a different judge when the case returns from appeal, since Judge Richardson is rumored to be considering retirement.  

Should Mississippi Abolish the Alienation of Affection Cause of Action?:  I raise this question because many people do not believe in the cause of action and there have been dissenting and concurring opinions in the Court calling for the cause of action to be abolished. Justice McCrae called for the action to be abolished in a dissenting opinion in Bland v. Hill, asserting that the courts should get out of the business of policing broken hearts.  

More recently Justice Dickinson called for the elimination of the action in a lengthy concurring opinion in Fitch v. Valentine. Justice Dickinson noted that 42 states do not recognize the action and gives several logical reasons supporting its elimination. One of the noted reasons in the problem with quantifying damages in the cases:

The awarding of damages presents another distinct problem in these actions, as no clear standards for compensating the plaintiff exist. Wyman, 615 P.2d at 455. This opens the door for quasi-punitive damage awards, disguised as actual damages, which are usually tainted by passion and prejudice. O'Neil, 733 P.2d at 698. Of course, I can hardly blame jurors for struggling with this cause of action. The theory of recovery, itself, is flawed. Fundermann, 304 N.W.2d at 791.

Another practical problem with the cause of action is that it prolongs hostilities between individuals who often have to continue to deal with each other due to having children together and who would be better served by burying the hatchet as quickly as possible.

I am in Justice Dickinson’s camp on the cause of action. I’m not a fan of the theory, but it is the law in Mississippi until the Supreme Court or Legislature say otherwise.  

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

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

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

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

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

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

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

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On Friday a Madison County jury awarded Dan Roberston $80,000 in his alienation of affection trial against Dr. George Russell. I view this result as a loss for both sides.

I will have more to say about this verdict next week.

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On Wednesday a Madison County County Court jury returned a verdict of $856,510 for Jackson area developer Mark Jordan in an eminent domain case against the State of Mississippi involving two acres of land. Here is the Clarion-Ledger article on the verdict.

The State took the took the two acres from Jordan pursuant to the state’s eminent domain laws. Jordan agreed that the State could take the land, but disagreed with Jordan’s demand of $1.5 million. The State valued the land at close to $800,000, so the verdict was a win for the State. Of course, collecting over $400,000 per acre for vacant land in a non-urban area does not sound like a loss for Jordan.

The land is located near the intersection of Steed and Sunnybrook roads, across the interstate from Renaissance at Colony Park in Ridgeland. The State needs the land for a new interstate interchange.

 Jordan’s attorneys included Larry Jones and Brandon Jolly of Baker Donelson.

While the jury deliberated, the alienation of affection trial in Roberston v. Russell continued down the hall. I watched a good bit of that trial yesterday. It’s funny how attentive a jury is in an alienation of affection trial. There was no dozing off after lunch. There will probably be a verdict in the case today. Dr. Russell and his former wife are expected to testify today.

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A Tunica County jury failed to reach a verdict after deliberating into the early morning hours Saturday in a products liability case against Ford Motor Co., resulting in a mistrial.

Unfortunately, I do not know much about the alleged defect. I believe the case involved a vehicle catching on fire after a crash.

The trial judge had a capital murder trial starting on Monday, resulting in the jury having to deliberate late into the night Friday before the mistrial was declared.  

Plaintiff’s attorneys were Ralph Chapman and Dennis Sweet. Ford’s lawyers included Barry Ford and Robert Walker from Baker Donelson and out-of-state lawyers.

This follows Ford’s defense verdict in Jefferson County in October.

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

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

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

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

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

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

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

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

Judge Winston Kidd presided over the case.

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Last week a Lowndes County Circuit Court jury awarded Chrissy Strickland $88,000 in damages in an alienation of affection lawsuit against Melissa Simmons. The verdict consisted of $87,500 in compensatory damages and $500 in punitive damages. The small punitive verdict will allow the plaintiff to recover attorney's fees.

The plaintiff (Strickland) alleged that in early 2007 Simmons began an affair with Strickland's husband, who was also Simmons' step-brother (their parents married years earlier). In September  2007, Strickland and Simmons' husband announced that they wanted divorces and were "talking." Plaintiff's investigation revealed that the two were doing a bit more than "talking." The two later married, significantly reducing the number of holiday family gatherings that the couple would have to attend. 

The defendant (Simmons) unsuccessfully argued that the plaintiff's marriage was dead before the affair started and that she did not start having sex with plaintiff's husband until after she and plaintiff's husband announced their plans to divorce their spouses.

I bet no one had to worry about the jury falling asleep during this trial.  

The jury's verdict was based on an 11-1 vote and followed a two and a half day trial. The plaintiff asked for $175,000 in closing argument, but offered to settle the case before trial for less than the amount of the verdict.  

Plaintiff's counsel was Doug Ford with Mitchell McNutt in Columbus. Defense counsel was Tyson Graham of Columbus. Judge Lee Howard presided over the case.  

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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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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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Today a Warren County jury awarded a plaintiff $7.6 million in a silica trial before Judge Isadore Patrick. The verdict included $4.6 million in compensatory damages and $3 million in punitive damages. The trial started last week. It is unclear how Mississippi's damages caps may affect the amount of the verdict.

There is a photograph of silica to the right. Without proper masks sandblasters can suffer lung damage from breathing silica dust.

The defendant was a sand manufacturer. The plaintiff was a former sandblaster who developed silicosis after working for 25 years at a Marathon Letourneau facility. There were other defendants in the case who settled before trial. It's my understanding that the losing defendant made no real offer to settle.

Plaintiff's counsel were Tim Porter and Allen Smith of Jackson. Defense counsel was Chaney Nichols of Scott Sullivan Streetman in Ridgeland and, I believe, John Galloway of New Orleans.

This is not the first large verdict in Warren County this year. I discussed earlier verdicts here and here.

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I recently learned of a jury verdict in Smith County in April. The case was McFarland v. Guy. It was an admitted liability case where an empty chicken waste hauler rear-ended an elderly lady. Plaintiff had $43,000 in medical bills and property damage to her vehicle. At the conclusion of trial the jury awarded the Plaintiff $100,000.00. That is a modest verdict for a case with $43,000 in specials and has to be considered a defense win. That is particularly true since Plaintiff's counsel was Gene Tullos of Raleigh. Tullos is known for obtaining large plaintiff verdicts in Smith County.

 Defense counsel were Heath Douglas of Greenville and Mark Tullos of Raleigh.

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No, that's not a typo. Ford Motor Co. got a defense verdict in Jefferson County today at the conclusion of a two week trial.  

 The plaintiff was a passenger who was paralyzed in a roll-over of a Ford Explorer that was pulling a trailer. The driver of the Explorer passed out from hypoglycemia and ran off the road. Plaintiff's defect allegation was instability of the vehicle and that the seat belt did not work properly. The plaintiff asked for $9.5 million in closing.  

Barry Ford, Bill Jones and Everett White at Baker Donelson were among a team of lawyers representing Ford. Plaintiff's counsel were lawyers from South Carolina and New Orleans. Plaintiff had Deborah McDonald as local counsel, but it's my understanding that she was not brought in until shortly before trial.

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A Harrison County jury returned a defense verdict Wednesday in the defamation trial against WLOX television station:

A jury on Wednesday found that WLOX did not defame a homebuilding company in an “Action Report” in 2006.

The jury of six men and six women deliberated less than two hours before reaching its verdict.

Here is the Sun-Herald article on the verdict. The case stemmed from the station's report on a dispute between a home owner and a building contractor. The plaintiffs asked for $1 million in damages. Here is an earlier post on the trial. The Sun-Herald article continues:

In closing arguments, WLOX attorney Henry Laird told the jury, “They’re blaming WLOX for what Fairley said. The right to free speech is not a one-way street. This is also about the right for you to know and the right for WLOX to report the news.”

Tupelo attorney Jim Waide, representing the Hudsons with Jackson attorney Chuck McRae, said he thought the jury ruled for WLOX “because the TV station is held in high regard in Harrison County.”

In other words, Waide is saying the jury was biased. I wasn't there, but I find that hard to believe. I grew up on the Coast. In my experience people were fairly ambivalent about WLOX, which has to compete with New Orleans and Mobile stations for viewership of the local news shows. I suspect that the jury was fair and the plaintiffs just didn't prove their case.

This verdict is known because the Sun-Herald covered the trial. You never hear about most defense verdicts because defense lawyer's clients don't want the publicity and plaintiff lawyers aren't going to advertise a losing effort. Plaintiff lawyers, on the other hand, sometimes alert the press after a big win. That's why you see more plaintiff verdict stories in the papers.

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A federal jury in New Orleans yesterday returned a defense verdict in the first trial involving claims that FEMA trailers exposed the plaintiffs to dangerous fumes. Here is the AP story on the verdict.

Mississippi residents will remember the steady migration of the trailers heading south on I-55 in the Fall of 2005 after Katrina. Tens of thousands of Coast and South Louisiana residents who lost their homes in Katrina moved into the trailers. There are now hundreds of lawsuits involving allegations that the trailers contained unsafe levels of formaldehyde, which caused health problems. A juror in the case told the press that the plaintiffs never had the "smoking gun" that proved their case.

Although the verdict was only in one case, the verdict was huge for the defendants. With hundreds of similar cases pending, neither side can afford the costs of trying every case. The results in the first few trials dictate whether the inevitable settlement will be on terms favorable to the plaintiffs or defense. Some plaintiff lawyers walk away from mass litigation after only one trial defeat. Others may hang in longer and take another case or two to trial, but at some point there is a limit to the amount of time and money that a plaintiff attorney can put into a losing case. A case like this probably had over $100,000 in expenses that the plaintiff's attorneys had to pay out of pocket and has now loss. Not to mention all the time that they had invested in the case. That puts a lot of pressure on the plaintiff's lawyers in a bell whether trial like this. 

Plaintiff lawyers are simply under more pressure than the defense lawyers in a big trial. That's just a fact.

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A Hinds County jury awarded a total of $4 million to a Jackson couple who were assaulted and beaten in 2008 in their room at the In Town Suites on I-55 in North Jackson. The case was tried before Judge Tommie Green. Plaintiff's counsel was Ashley Ogden of Jackson. Defense counsel was Wade Manor and another attorney with Scott, Sullivan Streetman and Fox of Ridgeland. The jury awarded $2 million to each of the two plaintiffs.

I watched a good portion of this trial and there really was no defense. Someone severely beat the two Plaintiffs in their room at the hotel. The former hotel manager testified that he quit because he feared for his life after having a gun put to his head in an earlier robbery. The manager testified that he begged for security. The corporation that owned the hotel would not grant the manager's requests for armed security, stating that it was not in the hotel's budget. The manager testified that the hotel netted $700,000 in profit in 2007, which was the year before the assault. 

Several police officers testified that there was a major crime problem at the hotel that hotel ownership did not address. The defendant argued that lighting and peep holes in doors was security and that there were inconsistencies in the two plaintiffs' accounts of what happened. Defense counsel seemed to be suggesting that the plaintiffs knew their attackers and were doing something wrong. But the defendant put on no evidence to support this theory. Defendants can occasionally win cases with suspicion and innuendo rather than hard evidence, but it did not happen this week in Hinds County.   

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I previously wrote about the recent $3.3 million verdict in a Rankin County Circuit Court 18-wheeler wrongful death case where a drunk trucker ran a red light and killed someone. Here is a copy of the judgment in the case, as well as the final order dismissing the co-defendant.

The jury's verdict was for $3,333,189.00. It was a general verdict form, so there was no break-down of the verdict into separate categories. The judgment states that $612,500 was previously paid to the plaintiff on behalf of the losing defendants (Joe Ed Carter and M&A Trucking, Inc.). Therefore, the Court reduced the verdict to $2,720,689 and the judgment was for that amount. The case was filed in 2000, so the tort reform caps do not apply to the judgment.

I do not know what any potential appeal issues are, but Judge Samac Richardson is not reversed often and the plaintiff's attorney (John Toney) is very respected in the legal community. Also, Rankin County juries are as conservative as they get. I would be very surprised if this case is reversed on appeal. 

Here is a link to the Mississippi Department of Corrections' profile on Mr. Carter. It states that Mr. Carter was sentenced to 20 years in prison for vehicular homicide and 15 years for aggravated assault.

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Here is the jury's verdict form in the near $16 million verdict against Kia Motors in federal court in Greenville on Friday. The verdict included $5,570,000 in economic damages and $10 million in non-economic damages. The non-economic award will presumably be reduced to $1 million due to Mississippi's statutory cap on non-economic damages.

From the form of the verdict it appears that the defect at issue in the trial was a faulty seat belt in a 2001 Kia Sportage. The injuries were to a minor named Jaleesa Willis and her mother Martha Willis was the plaintiff in the case on Jaleesa's behalf. The jury apportioned Kia 100% of the fault. The trial judge was Judge Allen Pepper.

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I have a report of a $16 million jury verdict today in federal court in Greenville against Kia Motors. The case is presumably a products case involving a defective auto. Defense counsel was David Ayers and Robert Ireland of Watkins & Eager in Jackson.  Plaintiff's counsel was Ralph Chapman from Clarskdale. I am trying to get more information.

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The $3.3 million verdict in Rankin County last week is confirmed. It was an 18-wheeler case where a drunk truck driver ran a red light on highway 49 in Florence. The truck driver pleaded guilty to DUI homicide. The case was a wrongful death suit on behalf of the family of a nineteen-year-old passenger. It was a pre-tort reform case, so the $1 million cap on non-economic damages does not apply. The jury was eleven whites and one African-American. There were ten women on the jury and two police officers. The average age of the jury was approximately 34. The trial judge was Judge Samac Richardson.

John Toney represented the plaintiffs. The defense lawyers were Jack Price of Wise Carter, Ed Taylor of Daniel Coker and Walter Dukes from Gulfport.

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Someone forwarded me an email from Friday that stated that a Rankin County jury returned a $3.3 million verdict in a wrongful death case on Thursday. Plaintiff's attorney was reported to be John Toney. I do not have any other details at this time.

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Ya'll Politics and the Commercial Appeal have the story of a DeSoto County jury awarding $30 million to a teenager who spent eight months in a coma and suffered a severe traumatic brain injury after his vehicle was hit by an over-weight gravel truck driven by an inexperienced driver. The passenger in the vehicle was killed. The truck driver pleaded guilty to manslaughter and aggravated assault and was sentenced to fifteen years probation. The defendant in the trial was APAC Tennessee, Inc., a road paving company. The jury apportioned APAC 70% of the fault. Paul Scott represented the Plaintiff and Bill Luckett represented the Defendant. Luckett tries a lot of cases and wins his share. Although the article is not clear on this point, APAC may be liable for only $21 million (70% of $30 million).  

I suspect that the defendant's insurance carrier was counting on a conservative DeSoto County jury going easy on the defendant. DeSoto County is 76% white and very conservative. Some insurance companies read too much into statistics like that and try cases that should be settled. While many times the tactic works, when it does not it can result in a big verdict. That is especially true in a case like this where there was surely a staggering amount of economic damages.    

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The Law and More Blog has an interview with Chuck Moellenberg, Jr., the Jones Day partner who led the defense in the recent Jefferson County $7 million lead paint verdict. Here is the story. The story contains an "on the record" quote, which suggests there was an "off the record" excerpt that was deleted. Moellenberg characterizes the verdict as an "aberration" in a county where no manufacturer has ever won.

On another note related to the trial, I am hearing a lot of rumors that trial observers did not think much of the defense experts.

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An A.P. article reported in the Clarion-Ledger stated that Sherwin-Williams plans to appeal the $7 million lead paint verdict in Jefferson County last week:

An attorney for Sherwin-Williams said the company will appeal the verdict. Attorney John Corlew said Sherwin-Williams hasn’t used lead in residential paint since 1972.

Before an appeal Sherwin-Williams will file post-trial motions asking Judge Lamar Pickard to issue a judgment in its favor notwithstanding the verdict or a new trial. Sherwin-Williams will probably also ask the judge to reduce the amount of the verdict. Those types of motions are usually denied by trial judges, but they must be filed an ruled on before a filing a notice of appeal. That means that an appeal will not be filed for weeks. A ruling on an appeal is probably two years away. The case could also settle before an appeal is filed or during the appeals process.

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There are reports of a $7 million plus jury verdict this week in a Jefferson County lead paint trial. The case was Pollard vs. Sherwin-Williams Company. It's my understanding that Plaintiff's counsel included Tim Porter and Dennis Sweet of Jackson and Michael Casano of Gulfport. Defense counsel were John Corlew and Kathy Smith of Jackson.

The trial was of a case where Circuit Court Judge Lamar Pickard granted summary judgment for the Defendant and the Court of Appeals affirmed. On appeal, the Mississippi Supreme Court reversed and remanded the case for a trial on the merits. Here is the Supreme Court's opinion. Barring a settlement, look for this verdict to be appealed.

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On June 2, 2009 a Warren County Circuit Court jury returned a $2.83 million verdict in an automobile accident case. Here is the verdict form, which listed twelve categories of damages. I suspect that the defendants would have been better off with a general verdict form with one line for the total damages. Plaintiff's counsel was Gale Walker and John Walker.

There are also reports of a defense verdict last week in Scott County in a medical malpractice wrongful death case. Plaintiff's counsel was Shane Langston and defense counsel was Mildred Morris at Watkins and Eager.

There was also a large verdict in Warren County in April as discussed in this earlier post. Warren County is considered a conservative venue. The string of large verdicts this year in conservative venues suggest two things. First, that large verdicts can be obtained in conservative venues with the right facts. Second, that insurance companies and defense lawyers became overly emboldened by the fact that the Mississippi Supreme Court  went years without affirming a jury verdict and are trying cases that should be settled. But the Mississippi Supreme Court and Court of Appeals have affirmed jury verdicts lately and defense lawyers can no longer confidently tell plaintiff lawyers that we're going to try it, and if you win, we'll get it reversed on appeal. 

It took a while for the legal community to recognize how conservative juries and the appellate court were in the early to mid- 2000's. Now with a swing back to the middle, it may again take a while for everyone to recognize the change.

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

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

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

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Tuesday night it was reported on the MAJ list service that Jackson plaintiff attorney Joey Diaz obtained a $4.6 million verdict Tuesday in a medical malpractice case, with the trial proceeding to the punitive damages phase. The email that was forwarded to me contained no other details.  I will post more information if it becomes available.

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Today's Clarion-Ledger contains an article on the defense verdict last week in a silica trial in Claiborne County. Here is the story. I originally mentioned the verdict last week. The article confirms that Fred Krutz with Foreman Perry led the defense team. The plaintiff was 73-year old Eugene Westrope of Hazlehurst. The defendants were Clemco (air-powered blast equipment), Precision Packaging (concrete producer) and Lone Star Industries Inc. (cement manufacturer). Judge Lamar Pickard was the trial judge.

The plaintiff asked for $4.5 million in damages. The jury returned a defense verdict in a 9-3 vote. In state court in Mississippi at least nine jurors must agree on the verdict. In the article, Krutz largely credited the win to the defendants ability to screen potential jurors who were involved or had family members involved in similar litigation. While I do not doubt the significance of the defendants' ability to assure a level playing field, they still had to try a good case to get the defense verdict once the jury was in the box.  

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There was a defense verdict late Thursday in a Claiborne County silica trial that lasted for at least two weeks. The details that I have are sketchy. I do not know the number of defendants, but I believe that they were sand companies. It appears that plaintiff's counsel included Tim Porter and Allen Smith and defense counsel was led by attorneys from Forman Perry. 

A decade ago Claiborne County was one of the state's notorious plaintiff venues with some huge verdicts. A defense verdict in a mass tort type case in Claiborne County is evidence that civil defendants can receive a fair trial in any Mississippi state court and confirms that the "jackpot justice" era is over in Mississippi.

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A Hinds County Circuit Court jury awarded $2.5 million on Friday to David Marble, a thirty-nine year old cable repairman. Here is the Clarion-Ledger story, which is light on the details. The case was tried before Judge Tommie Green. Ashley Ogden represented the plaintiff and Hugh Gillon from Upshaw Williams represented the defendant, Deviney Construction. Plaintiff alleged that Deviney cut a live electrical wire and left without warning anyone about the hazardous condition. Plaintiff later came into contact with the wire, causing severe injuries.  

It's my understanding that the plaintiff suffered a back injury and that there was expert testimony that he was permanently disabled. I'm not sure how an electrical contact causes a back injury.

I believe that this is Ogden's fourth seven figure verdict in Hinds County this year. There was also an announcement in the paper on Sunday that former Chief Justice Jim Smith is now of counsel with Ogden's firm, which is very ironic. I'll post more on this verdict if I obtain additional information about the case.  

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Week before last there were two civil trial going on in Warren County Circuit Court at the same time. In Bougois v. Magnolia Marine Transport the jury returned a plaintiff's verdict of $1,697,000. The plaintiff injured his back on a barge in 2001 when he was 42 years old. He had two surgeries and was permanently disabled. he alleged that Magnolia Marine failed to provide him with a dolly that he needed to safely perform his job, leading to his injury. The plaintiff's attorney was Kelly Loyacono of Vicksburg. Defense counsel was Ernie Lane of Oxford.

The other trial was a med-mal case with a lawyer as the named plaintiff. The jury returned a defense verdict for the doctor.

These two verdicts illustrate the fact that it is easier to obtain information about plaintiff verdicts than it is for defense verdicts. Defendants win as many trial as plaintiffs, perhaps more. But the cases that make it into the newspaper are the ones involving large awards to the plaintiff.

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More facts emerged this week from the Kroger beating case. The Plaintiff presented the following evidence against Kroger at trial:

1. The assailant told his two accomplices that he had "hit" the Kroger twice previously in the past few months.
2. Kroger had two incident reports for parking lot muggings where the assailant's description matched the assailant in this case.
3. Kroger paid to have off-duty JPD and Hinds S.D. deputies patrol the store to guard against shop lifters. There had been no violent crimes in the store.
4. Kroger had an unarmed security guard in the parking lot who had no power to arrest individuals. The parking lot security cost half ($10.00 per hr.) what the in store security cost. ($17.00-20.00 per hr.).
5. Kroger could have had armed off-duty law enforcement officers in the parking lot at no extra cost by stationing the security guard in the store and the police officer or deputy in the parking lot.
6. Kroger gave its customers no warning of the recent history of violent crimes in the parking lot.
7. At trial Kroger blamed the victim for attempting to defend herself and keep the assailant from taking her purse.

It's amazing to me that anyone can criticize this verdict.

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A Madison County jury awarded a plaintiff $1.9 million today in a car accident case. The verdict may be the largest verdict in the history of the county. The trial judge was Judge William Chapman.

The plaintiff's medical bills were approximately $200,000 and there were over $1 million additional economic damages. The plaintiff's attorney was John Davidson of Jackson.

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On Friday a Hinds County Circuit Court jury rendered a $2.5 million verdict for Linda Knox, a 62 year old woman who in 2007 was severely beaten in the parking lot of the Kroger Grocery Store on I-55 in northeast Jackson. Ms. Knox was hospitalized for two weeks following the attack and was permanently blinded in one eye. Her two attackers targeted older women in shopping center parking lots. Ms. Knox's attorneys were Rocky Wilkins and Ashley Ogden of Jackson. Kroger's attorney was Bill Luckett of Clarksdale.

Viewing the comments to the story on the Clarion-Ledger's website , there is sympathy for Kroger's defense, which the Ledger described as follows: 

But Luckett said there was no way Kroger could have prevented "crazy, drugged out thugs" from carrying out the attack.

Luckett said one of those charged in the crime said they had driven around the parking lot looking for a female to snatch her purse.

"Look at it as an unfortunate event that happened on Kroger's lot," Luckett said.

I'm going to argue the other side of the coin on this one. Businesses on the I-55 corridor in Jackson invite customers in and take their money, but never disclose that there is a history of crime activity in their parking lots. There are many purse snatchings and similar assaults in the parking lots of these businesses. Most do not make the news. Visit that Kroger and I promise you that you will never see a sign that says: "Warning! Crazy drugged out thugs beat up an old lady in the parking lot last week. Shop at your own risk." Businesses like Kroger should either disclose the crime history on their premises or provide protection for their customers.

To get a verdict in a premises liability case the plaintiff must prove that the defendant was on notice of a dangerous condition. Ms. Knox and her attorneys presumably met this burden. I doubt that Ms. Knox knew about the crime wave in the Kroger parking lot--most people do not. Kroger knows this and likes it that its customers do not know, otherwise they might drive out to the Wal Mart. The critics of this verdict would not give Kroger or another business their sympathy if they were attacked in the parking lot of a business with an undisclosed history of crime activity.

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It was reported on  the MAJ (formerly MTLA) list-serve Friday night that a Hinds County Circuit Court jury in Raymond returned a $2 million verdict Friday evening. Patrick Malouf and Johnny Givens of Porter & Malouf represented the plaintiff. Precious Martin represented the defendant. Martin has had success representing plaintiffs in the courtroom this year.

Following the announcement of the verdict on the list-serve, Martin pointed out that his client had only $10,000.00 in insurance coverage. Thanks to my reader who brought this information to my attention. I will post more about this verdict as information becomes available.

Update: Upon further investigation I learned that this was a head-on collision car wreck case. Maison Heidleberg was lead defense counsel. Precious Martin assisted with the trial. It's been reported to me that the defendant lied on the witness stand and that one of the defense closing arguments was that the plaintiff's lawyers would get more than the plaintiff.  The argument may have back-fired if the jury was intent on compensating the plaintiff. It was also reported that the defendant was a teenage driver whose parents are liable by statute and have assets that are subject to the judgment.