Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

Defense Verdict in Grenada County Medical Malpractice Trial

Posted in Verdicts in Mississippi

On August 18, 2017 a Grenada County jury returned a defense verdict in Estate of Angle v. Wade.

Plaintiffs alleged the wrongful death of Merle Angle. Mr. Angle presented to the emergency room in November 2012 with significant angioedema (swelling of tongue). It progressed over the next half hour to the point of a lost airway. Plaintiff alleged that the ER physician (Dr. Wade) did not timely perform a crychothyroidotomy, which is a procedure similar to a tracheotomy. Plaintiffs argued that Dr. Wade should have performed this procedure because intubation was not feasible.

Plaintiffs proved $400,000 in economic damages. Plaintiffs requested $750,000 in non-economic damages.

The jury voted 11-1 for Dr. Wade and returned a defense verdict.

Devo Lancaster and Ryan Taylor of Winona represented Plaintiffs. Mike Coleman and Jacob Malatesta of Hagwood Adelman Tipton in Jackson represented Dr. Wade.

August Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the August 2017 issue of the Miss. Jury Verdict Reporter:

  • $600,000 verdict- Clay County bad faith case covered here (7/22/17);
  • $188,622 bench verdict- Pearl River County breach of contract case (4/25/17);
  • $77,359 verdict (minus 50% fault to plaintiff)- Hinds County County Court pawn shop mishap case (6/21/17);
  • $50,000 verdict- Hinds County County Court car wreck case (4/20/17);
  • $5,000 verdict- Aberdeen federal court wrongful arrest case w/ pro se plaintiff (7/20/17);
  • defense verdict- Lafayette County medical malpractice case (8/3/17); and
  • directed verdict- Hinds County medical malpractice case (7/18/17).

My Take:

A $5,000 verdict by a pro se plaintiff (represented himself) might be a state record.

That dude now has more dollars in verdicts than half the plaintiff lawyers in Mississippi. [Disclaimer: that’s a joke].

Time for State and PERS Board to Address PERS Crisis

Posted in PERS Crisis

Jeff Amy with the Associated Press had this article Sunday about an outside expert recommending PERS to change its fairy tail underlying assumptions. The recommended changes would affect the underlying investment return assumption that I’ve been harping on for years. Here is the article.

From the article:

The system assumes that inflation will run at 3 percent each year, and that it will earn 4.75 percent above that on its investments, for a total return of 7.75 percent. GRS, though, says that inflation assumption is too high, and says the board should consider planning around a rate of 2 percent to 2.5 percent….

The recommendation comes at a time when the pension fund is already facing the possibility of mandating higher contributions. Projections presented last year showed that, even with the current assumptions, PERS would only be 63 percent funded in 2042. The current funding policy calls for being 80 percent funded by that year, and for mandating higher contributions if that projected level falls below 80 percent for two years in a row. The updated projections will be presented later this year, and the system will be aided by a 15 percent gain in the year ended June 30.

The recommended change leave a disastrous 54% funding level.

The expert recommended that the PERS board change the system now. But outgoing PERS Direct Pat Robertson wants to keep ignoring the problem:

GRS urged the system’s board to make changes quickly, but outgoing Executive Director Pat Robertson says the board needs to consult its regular actuaries.

Changes need to be made “in a deliberative fashion and not in a reactionary fashion,” Robertson said. “We are not in the funded status we need to be, I’ve said that before, but we have $27 billion on hand to help us get there.”

Robertson is in left field. Making changes would not be reactionary. PERS’s problems have been well known since at least Governor Barbour’s administration. My first blog post on the fairy tail investment assumption that GRS is talking about was six years ago. Others were writing about PERS’ problems before me.

If making the needed changes would be reactionary, it’s only because Robertson and the Board have ignored the problems for years. Enough already.

I’m questioning whether Robertson understands the problem. Her continued statements like “we have $27 billion on hand to help us get there” are misleading. The whole problem is that PERS will not be able to pay all its bills when they come due. That it has enough money to pay some bills isn’t a solution. It’s not even a legitimate response to questions about the problem.

Having air in 3 tires doesn’t help if 1 tire is flat. Being about to pay most of your bills at the end of the month will not help when you can’t pay them all. Not having enough money to pay retirees all their benefits is a big deal.

PERS being substantially underfunded is a big deal. It’s long past time to address the problems.

$83,447 Verdict in Oxford Federal Court Retaliation Trial

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On Wednesday a federal court jury in Oxford rendered a plaintiff verdict of $83,447.08 in Griggs v. Chickasaw County. Here is the resulting Judgment.

The plaintiff Lamon Griggs was a Chickasaw County bailiff and solid waste enforcement officer who ran for Sheriff against long-time chief deputy and current Sheriff James Meyers. Griggs lost. Meyers took office and fired Griggs to settle the score.

The jury determined that the firing was wrongful and awarded Griggs $83,447.

Jimmie Gates has a good article in the Clarion-Ledger with more info. on the verdict.

Jim Waide and Rachel Pierce Waide of Waide & Associates in Tupelo represented the plaintiff.

Defense attorneys were Daniel Griffith and Jamie Ferguson Jacks of Jacks Griffith Luciano, P.A. in Cleveland and Gary Carnathan of Tupelo.

District Judge Sharion Aycock presided.

My Take:

A typical small-town political play goes bad. There are more sophisticated ways to deal with political enemies.

Defense Verdict in Hinds County Tort Claims Act Medical Malpractice Trial

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Friday Hinds County Senior Judge Tomie Green rendered a defense verdict in Nickerson v. Univ. of Miss. Medical Center. Here is the Court’s Memorandum Opinion and Order.

The decision was from a 2016 trial of a medical malpractice case against UMMC that Plaintiff filed in 2004.

The case involved the 2003 death of a newborn. Prior to birth the baby was diagnosed with an often deadly heart abnormality (trisuspid artresia). At birth the baby also had pulmonary hypoplasia and several other problems.

The Court determined:

a preponderance of the evidence weighs heavily in favor of this Court’s finding that Dillion Nickerson was very ill at birth, both as to two main organs necessary to sustain his life… Dillion’s pulmonary hypoplasia was the most medically probably cause of Dillion’s death, rather than his cardiac problem…

The Court concluded that plaintiff failed to prove a breach in the standard of care or proximate cause.

John Holiday represented the plaintiff. Mike Coleman and Jacob Malatesta of Hagwood Adelman Tipton in Jackson represented UMMC.

My Take:

The case is so old that electronic filing didn’t exist for most of its existence. I can’t tell from the docket what took it so long to get to trial.

But my guess is the facts. Plaintiff lawyers tend to not push cases they aren’t enthusiastic about.

Update: Based on the comments from attorneys involved in the case, my inclination that the plaintiff’s attorney did not push the case was wrong. By all accounts, he couldn’t get the case set.

Delays in getting cases to trial in state court are as big a problem as ever even though there are fewer pending cases. I don’t get it.

Lengthy delays in resolving cases like what happened in this case are horrible. The Mississippi Supreme Court should amend the Rules of Civil Procedure to require scheduling orders with trial settings like in the federal system. That system is time tested and works. I may talk more about this issue later in a separate post.

Random Thoughts After the Latest Baby Powder Talc Verdict

Posted in General

It was another win for the plaintiffs yesterday in the Mississippi-born Johnson & Johnson baby powder talc litigation. The latest verdict was $417 million a California jury awarded to a single plaintiff after a 4 week trial.

The plaintiffs have now won something like 5 of the 6 trials with most verdicts being massive. That is a ridiculous win percentage in products litigation with top-shelf defense counsel probably operating without a budget.

In big products liability litigation, the plaintiffs’ best chance to win is in one of the first trials. The defense improves the longer it goes and the more cases tried. Their experts get better and their lawyers get sharper from prior trials and massive focus group projects.

That the plaintiffs keep winning nearly every trial suggests that the J&J documents are bad. Real bad.

Sara Randazzo’s article in the WSJ made this astute observation:

Individual jury awards in mass tort litigation are idiosyncratic and are often reduced on appeal. At the same time, the outcome of early trials can give plaintiffs and defendants a better sense of how to value any eventual global settlement.

That sounds right. That trial cost J&J mid-seven figures in defense costs. They are probably also spending seven figures per month on attorney’s fees in the 5,000 pending cases. A rational defendant only does that when they believe they are working down the overall value of the case(s).

Johnson & Johnson is trying to win this litigation on causation. Sometimes liability facts overpower causation defenses. Particularly if there is a suggestion of a cover-up, which comes into play in failure to warn cases. Plus, sometimes you just lose on causation even when you love the defense.

The first time I got hit for six figures was a misfilled prescription case with admitted liability. We loved our causation defense. The jury…..not so much. John Giddens was the plaintiff’s lawyer. If he mentions that trial around others even half as much as he does me, then everyone is sick of hearing about it.

It would probably not be a bad idea for defense lawyers to always reduce their estimate for the strength of their causation defense by half. It’s probably not as strong as you think it is. A jury is not going to spend months or years obsessing on causation.

It’s just not going well for J&J. If they hoped to bleed the plaintiffs’ lawyers dry, it’s not going to work. Even if the plaintiffs’ lawyers couldn’t fund it themselves, they will not have trouble getting litigation financing with this string of verdicts. Other attorneys and hedge funds would line up to invest.

The big Supreme Court decision on venue helps J&J, but it doesn’t win the litigation. They need a kill shot on causation or a string of defense verdicts to lower the value of the inventory. Neither appears imminent.

The plaintiffs’ lawyers could actually put a lot of pressure on J&J by going to a 50-state litigation strategy and a full court press. I doubt they will because they would have to bring in a lot more lawyers, but I’d at least think about it if I were them.

This litigation is getting more interesting all the time. I’d love to know what is going on behind the scenes as far as settlement negotiations and focus groups.

It would not surprise me if both sides are running focus groups twice a month. And if I was in-house counsel managing huge litigation like that, I’d always have separate settlement counsel exploring opportunities to shut the litigation down.

It’s got to be a lot of fun for those involved on both sides.

$2.2 Million Verdict in Hinds County Car Wreck Trial

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Friday a Hinds County Circuit Court jury returned a $2.2 million verdict in Moton v. Leguire and Climate King, LLC.

Facts:

Plaintiff was traveling on I-55 south on August 3, 2016 when the pickup truck she borrowed from her brother to drive to work experienced mechanical difficulties. It was later determined the fuel filter quit working causing the truck to lose power and slow.

The truck slowed or stopped in the middle lane of I-55 South past County Line Road. The Defendant was following another vehicle in the center lane. When the other vehicle swerved to miss the Plaintiff’s truck, the Defendant rear-ended the Plaintiff.

Defendant contended the Plaintiff was stopped in the road creating an unavoidable road hazard.  Defendant submitted a jury instruction attempting to apportion fault to Plaintiff and her brother who loaned her his truck to drive to work on the theory that the truck’s check engine light was on and the Plaintiff and her brother were operating a vehicle in an unsafe condition. Plaintiff contended the Defendant was following too close, speeding and not maintaining a safe distance from the car in front of him.

Injuries:

The Plaintiff’s injuries consisted of a burst fracture at C-7 requiring a surgery and six day stay in the hospital. Plaintiff had medical bills of $157,000.00 and estimated future medicals. Plaintiff also claimed one year of lost wages since she has not worked since the wreck. Her doctor has not cleared her to return to work.

Verdict:

The jury placed 100% fault on the Defendant, no fault on Plaintiff and no fault on Plaintiff’s brother. The jury awarded a total verdict of $2,220,000. The verdict components were:

  • $1,500,000.00 in pain and suffering;
  • $694,000.00 for past and future medical bills; and
  • $26,000.00 for past lost wages.

The trial lasted all last week.

Plaintiff’s attorneys were Ashley Ogden, Jim Smith and Tyler Royals of Ogden and Associates, PLLC in Jackson.

Defense attorneys were Robert Gibbs of Gibbs Travis, and Jason Strong of Daniel Coker, Horton and Bell in Jackson.

Judge William Gowan presided.

My Take:

That’s a big win for the plaintiff. Non-economic damages verdicts of 10x medicals are rare in Mississippi car wreck trials.

It appears that the plaintiff will have to take a $500,000 haircut on the non-economic verdict due to the $1 million cap on non-economic damages.

Public Pensions in Crisis Even After Great Investment Year

Posted in PERS Crisis

The Wall Street Journal (paywall) reported last week that another year of great investment returns has not saved America’s public pensions. The article estimated that the total funding shortfall of public pensions is $4 trillion.

The average investment return for public pensions for the fiscal year ending June 30 was 12.4%. That’s much better than the assumed 7.5% used in Mississippi and many other systems. But:

Yet many of these public pensions remain severely underfunded despite the recent gains, meaning they don’t have enough assets on hand to fulfill all promises made to their workers. Estimates of their collective shortfall vary from $1.6 trillion to $4 trillion.

“It’s a hole that took a long time to dig, so it will take a long time to fill,” said Fitch Ratings analyst Douglas Offerman.

The pensions’ predicament is the result of decades of low government contributions, overly optimistic investment assumptions, over-promises on benefits and two recessions that left many retirement systems with deep funding holes. Demographics are also a factor: Liabilities are rising as waves of baby boomers retire, leaving fewer active workers left to contribute to pension plans.

Experts warn that pensions will not be able to invest their way out of the crisis:

Even if returns remain elevated, large public pensions won’t be able to reverse their shortfall in coming years, according to Moody’s Investors Service. Large public plans currently have just 70% of what they need to pay future benefits to their retirees, according to 2016 figures from Wilshire Consulting.

Funding levels won’t improve significantly unless cities and states ramp up their yearly pension contributions, according to a recent report by the Center for Retirement Research at Boston College. But budget problems in many states and cities mean governments either can’t afford to make aggressive payments or opt to stretch them over decades so big outlays are delayed.

It’s apparently common knowledge that public pensions are in a crisis and cannot meet their commitments. I recently read this passage in the book Black Edge, by Sheelah Kolhatkar:

Hedge fund investors, the people whose money Cohen had such a talent for multiplying, were a predictable and self-serving group. Many of them, including university endowments and pension funds managing retirement accounts for public school teachers and police officers, were only too happy to overlook the questionable things hedge funds were doing–as long as they made money. Pension fund managers in particular had enormous, in some cases impossible, financial obligations to fulfill for their retirees, and very few ways of earning returns they needed. (emphasis added).

The author made this statement in passing. The book is about insider trading at the hedge fund SAC Capital. It left me with the impression that it’s just common knowledge in the financial industry that public pensions are imploding.

$1,222,314 Jury Verdict in Gulfport Federal Court Car Wreck Trial

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On Thursday a federal court jury in Gulfport returned a plaintiff verdict of $1,222,314.93 in Stafford v. Government Employees Insurance Co., et al. Here is the original Complaint.

Plaintiff was rear-ended while working for the county in 2012 by someone who was allegedly looking at her phone. Plaintiff sued the driver and several insurance companies based on underinsured motorist claims.

Plaintiff filed the case in Circuit Court in Pearl River County. Lamorak Insurance Co. removed the case to federal court. Here is the Notice of Removal.

Here is the Verdict.

The jury awarded damages of $572,314.93 in actual economic damages and $650,000 in noneconomic damages.

Here is the judgment.

Plaintiff’s counsel was Collin Maley of Maley & Walker in Jackson and the Penton Law Firm out of Bogalusa, La.

Defense counsel included William Allen, Jessica Malone and Chad Williams with Allen and Allen in Broohhaven.

Judge Sul Ozerden presided.

 

My Take:

I don’t understand defendants removing cases filed in places like Pearl River County or Rankin County to federal court.

If the plaintiff files in state court in a county that is more conservative than the federal court division as a whole, why remove? Particularly since the Fifth Circuit is more likely to affirm a jury verdict than the Miss. Supreme Court.

Jasper County Bad Faith Denial of Claim Verdict Results in $1.9 Million Judgment

Posted in Verdicts in Mississippi

On Saturday a Jasper County jury (Paulding District) rendered a plaintiff verdict in an insurance bad faith claim denial trial in Millsaps v. Allstate Insurance Co.

. The jury’s verdict results in a judgment with the following components:

  • $731,567- dwelling;
  • $185,000- personal property;
  • $36,433- additional living expenses;
  • $17,000- debris removal;
  • $230,000- emotional distress;
  • $100,000- punitive damages;
  • $520,000- attorney’s fees; and
  • $101,248.87- pre-judgment interest.

The total is $1,921,248.87.

Plaintiff’s counsel was Sam McHard and Manion Anderson with McHard, McHard, Anderson & Assoc. in Hattiesburg and Rance Ulmer from Bay Springs.

I did not get a report on defense counsel.

Judge Eddie Bowen presided.

My Take:

The two district composition of Jasper County is controversial in legal circles. Bay Springs is a small town. Paudling is the courthouse and a Coke machine.

The Paulding district is viewed as plaintiff oriented and the Bay Springs district as defense oriented.

The wikipedia page for Jasper County explains why there were originally two county seats. There were two distinct parts of the county in the early 1900’s, but no road connected them until the 1930’s.

The county’s population peaked in 1940 at almost 20,000 and is now under 17,000.

It seems like the county would close one of the courthouses to save costs. But I’ve never heard that was on the table. Not that I’m real plugged-in in Jasper County.