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.

$900,000 Jury Verdict- $500,000 Judgment in Jefferson County Silica Trial

Posted in Verdicts in Mississippi

On Tuesday a Jefferson County jury returned verdicts of $800,000 in actual damages and $100,000 in punitive damages in Sampson v. Mississippi Valley Silica Co.

The jury apportioned 50% fault to Miss. Valley Silica, which presumably lowers the judgment in the case to $500,000.

Patrick Malouf and Johnny Givens with Porter & Malouf in Ridgeland and Dennis Sweet of Jackson represented the plaintiff.

Mike Simmons, Lakeysha Greer Isaac and Mark Goldberg with Cosmich Simmons in Jackson represented the Defendant.

Circuit Judge Lamar Pickard presided.

My Take:

Silica litigation? Who knew that’s still a thing?

Defense Verdict in Jackson Federal Court Racial Discrimination Trial

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

On Tuesday a Jackson federal court jury rendered a defense verdict in Zhan v. UMMC. Here is the jury’s Verdict Form.

The jury found that race was not a motivating factor in the plaintiff’s termination.

Here is the plaintiff’s Complaint.

District Judge Carlton Reeves presided over the six day trial.

The plaintiff was pro se, which is fairly obvious from the Complaint.

Robert Greenlee of Flowood and Tommy Whitfield of Brandon represented UMMC.

George Will on the Looming Pension Crisis

Posted in Mississippi Public Employer's Retirement System (PERS)

Conservative columnist George Will wrote this article about America’s looming pension crisis. From the article:

Nowadays, America’s most persistent public dishonesties are the wildly optimistic, but politically convenient, expectations for returns on pension fund investments. Last year, when Illinois reduced its expected return on its teachers’ retirement fund from 7.5 percent to 7, this meant a $400 million to $500 million addition to the taxes needed annually for the fund. And expecting 7 percent is probably imprudent. Add to the Illinois example the problems of the 49 other states that have pension debt of at least $19 thousand dollars per household and numerous municipalities, and you will understand why many jurisdictions will be considering buyouts, whereby government workers are offered a lump sum in exchange for smaller pension benefits…

Pensions, including those of private companies, are being buffeted by a perfect storm of adverse events: People are living longer. Economic growth is persistently sluggish. Bond yields have declined dramatically during seven years of near-zero interests rates, which produce higher valuations of equities, lowering the future returns that can be realistically expected. As of last August, the Financial Times reported that pensions run by companies in the S&P 1500 index were underfunded by $562 billion — up $160 billion in just seven months.

And Will doesn’t even mention the structural problems Kingfish has explained with PERS retirees outpacing new hires. That problem will get worse with Governor Bryant having to regularly announce more cuts to the State budget.

And for the “we’re just grow our way out of this in the stock market” crowd, consider this alarming take on the current investment environment:

The Mother of All Financial Bubbles

But all the fancy charts aren’t what worries me most about the stock market and financial system. What bothers me most is mood. People are in a bad mood about the economy and the future. The mood on the street does not justify the record equity market valuations.

If the general public is correct, then the stock market is poised for a big decline. That would crush PERS and make it impossible for politicians to continue to ignore the danger signals.

Smartphone – Dumb Driver

Posted in General

The Wall Street Journal reported Tuesday on the ‘epidemic issue’ of drivers distracted by their smartphones. In response, auto insurers are raising rates for everyone.

And its not just texting. Insurer surveys show that in 2015, 29% of drivers admitted to accessing the internet while driving compared to only 13% in 2009. Among drivers aged 18 to 29, that rate increases to 54%–only 10% less than the percent in that age group who merely text while driving.

Insurers blame the increases on rising use of smartphones and apps (like Facebook). Allstate President Matthew Winter noted that cell phones were “not as distracting as…when people brought smartphones into the car and began texting and web surfing and videoing and everything else while they were driving.”

The result is that after years of declining car crashes and fatalities, both wrecks and deaths are on the rise.

My Take:

I can’t speak for everywhere, but this is definitely happening in the Jackson area. Drive around Jackson during the lunch hour and you will repeatedly see drivers on their cell phones. And I don’t mean talking or even missing the green light cycle in a turn lane because they spent the whole time looking at their phone.

People are looking at their phone screen and pressing buttons while driving down busy streets. This seems particularly bad on city streets. My guess is that idiots think its okay because they aren’t going that fast.

Drivers who are too lazy to pair their phone to their blue tooth are also a hazard when they try to make turns with one hand on their wheel and one hand holding the phone to their ear. But at least those idiots are looking where they are going.

I’m about ready to give up on this problem. The legislature can pass anti-texting bills, but it does not stop the tide of smartphone addiction. It’s going to take a culture shift like when people started wearing seat belts and got serious about drunk driving. It will happen….one day. But until then, this problem will get much worse. It’s an addiction. People just can’t stop looking at their phones.

$37,200 Jury Verdict in Gulfport Federal Court Sexual Harassment Trial

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

What better way to observe Presidents’ Day than a report on a jury verdict in a recent sexual harassment trial?

The trial was week before last in Gulfport in the case of Canaski v. Mid-Mississippi Properties. Here is the salacious Complaint.

The three plaintiffs alleged sexual harassment and retaliation by defendants after the defendants bought the Diamondhead sports bar where plaintiffs worked. The jury returned verdicts in the following amounts for the plaintiffs:

  • Jennifer Canaski: $10,000
  • Brittany Piazza: $20,600
  • Pamela Necaise: $6,600.

Total verdict: $37,200. Here is the Final Judgment

Defendants offered $10,000 to settle before trial.

Plaintiffs can now file a motion for attorney’s fees, since this was a Title VII case.

Daniel Wade of Johnson, Ratliff & Waide in Hattiesburg represented the plaintiffs. John Martin with Montgomery and McGraw in Canton represented the defendants. Judge Sul Ozerden presided.

My Take:

I found the Complaint’s allegations quiet shocking. A sports bar in Diamondhead? If had seen that coming when I left the Coast in 1985 I would have stayed.

The closest thing to a sports bar on the Coast back then was going to the Fiesta after Mid-South wrestling at the Coliseum and watching the Fabulous Freebirds stomp a mudhole in some local rednecks. Years later I read that Mid-South owner Cowboy Bill Watts did not ban his wrestlers from fighting locals. Losing a fight to locals, however, would get you fired on the spot.

Mississippi House Passes More Tort Reform

Posted in Politics in Mississippi, Tort Reform

The Mississippi House of Representatives passed HB 481 this week. Here is the bill.

The bill legislatively abrogates the collateral source rule.

The purpose of the bill is to kill what’s left of the plaintiff’s bar in Mississippi. Kill the plaintiff’s bar and you kill a shrinking, but reliable, source of campaign contributions for Democratic candidates.

To see who is behind bills like these, you need to see who spends the most on influencing legislation through lobbying activities. Here is page that identifies the top spenders nationally in 2016. The U.S. Chamber leads the way with a total of $103 million–$40 million more than the next highest spender. The Chamber is followed by a bunch of companies that help fund the Chamber.

Lobbying expenditures is on of the reasons I support an appointed judiciary–particularly at the appellate court level. Let me be clear because this always comes up in the comments: I’m not saying appointing judges would remove the politics from the process. It would reduce it–significantly in my opinion.

Yes, there is a lot of backroom intrigue and gossip when it comes to who will get a prime appointment. So? If I’m not close friends with the candidates, does it really matter to me if one person gets appointed over another person when they would both be fine judges? No, it doesn’t. I just want a judge who is always trying hard to be fair and doesn’t have to look over his/her shoulder every time they rule.

They appoint federal judges in Mississippi and most lawyers seem to like them. A federal district judge with a lifetime appointment does not have to worry about an angry Chamber coming after his or her job in the next election. In contrast, a moderate ruling state court judge can face a business funded opponent. Why would the Chamber want a down the middle moderate judge when they could elect one more to their liking?

The Chamber is a business in itself. It’s going to continue to raise and spend money on lobbyists and elections because that’s what it’s for.

More tort reform is on the way. They aren’t ever going to stop trying to pass more. The only hope to completely eliminating the civil justice system for everyone except big business is an independent judiciary.

$150,000 Jury Verdict in Lamar County Car Wreck Trial

Posted in Verdicts in Mississippi

On January 19, 2017 a Lamar County jury rendered a $150,000 verdict in Sullivan v. Tate and Miss. Farm Bureau Casualty Ins. Co.

Plaintiff, Ms. Sullivan, and Defendant, Ms. Tate, were involved in a low-impact collision at the intersection of Oak Grove Road and Lincoln Road on January 15, 2013.  Ms. Sullivan filed suit on January 14, 2016 against the tortfeasor, Ms. Tate, and Ms. Sullivan’s under-insured motorist carrier, Farm Bureau.

Farm Bureau asserted a subrogation cross-claim against Tate and defended Sullivan’s under-insured motorist claim.

Ms. Sullivan pursued claims for soft tissue injuries to her neck and back as well as emotional distress.  At trial, testimony revealed Ms. Sullivan’s airbag did not deploy and her automobile had relatively minor damage and was not totaled, unlike Defendant Tate’s vehicle.

The plaintiff presented evidence that Ms. Sullivan incurred $5,485.00 in past expenses for physical therapy and doctor office visits, past prescription expenses totaling $4,235.46, past expenses for massages totaling $904.50, past mileage to/from providers totaling $281.85, lost wages of $1,360 as well as other past miscellaneous expenses and future medical expenses.

The Defendants disputed the nature, degree and proximate cause of Ms. Sullivan’s injuries, contested whether past and future expenses were/are necessary and reasonable and contested Ms. Sullivan’s claimed damages.

Ms. Sullivan obtained a directed verdict on liability following Tate not presenting sufficient evidence to dispute the negligence of Tate when she failed to yield the right-of-way to Sullivan while attempting to turn left in front of Ms. Sullivan.  Similarly, Farm Bureau obtained a directed verdict as to liability on its subrogation cross-claim against Ms. Tate for the same reasons.

Grant Bennett of Hattiesburg represented the plaintiff. Vick Smith represented Tate. Tucker Mitchell and Randy Day represented Farm Bureau.

Circuit Judge Tony Mozingo presided.

My Take:

In today’s litigation climate, a $125,000 verdict with a little over $12,000 in specials would be a home run in any venue in the state. In Lamar County, it’s a World Series winning grand slam home run in the bottom of the 12th inning.

Lamar County rivals Rankin County as having the most conservative juries in the state.

A few more verdicts like that and Trial Guides will have Grant Bennett writing books on trying cases to conservative juries.

The Wonderful World of Lawyer Emails

Posted in General

I enjoy reading articles about lawyer email etiquette like this one by Stefan Savic on Above the Law. It always reminds me of how ill equipped I and many other lawyers were when we began using email in the mid-1990’s. Because trust me, if you think lawyers need lessons in email etiquette now, you have no idea.

I first used email in my practice in 1995. I was young (28), inexperienced (2 yrs), and overconfident (was it even possible for me to lose a case?). Thankfully, my firm was an early adopter and I learned many of the dangers of a quick trigger with interoffice emails before I began firing them off to opposing counsel.

Savic’s main suggestions for email are:

  • assume the whole world will see it
  • don’t use humor
  • don’t criticize or mock people
  • proofread
  • no profanity.

All good suggestions. Most of these are second nature for me. But I still struggle with not using humor.

Savic notes that written jokes can come off as awkward or insulting. I think it’s hard for people to know that a statement is a joke without hearing your tone of voice or seeing your face. There is also something about knowing the person.

Another theory is that most people don’t have a sense of humor and only laugh when they are cued by others laughing. Yet another theory is that I’m just not that funny. But that’s bullshit (see above) not true.

I do find myself writing humorous emails to opposing counsel, cracking myself up and then deleting the email without sending it. I mentioned this to a colleague the other day and he said he does the same thing.

My biggest suggestion for email is keep it short–at least if you want the recipient to read it. Many people will be reading it on their phone. While driving down the road. When I see a long email and I am out of the office, I often do not read it until I am at a computer. I suspect others are the same way.

So while you are doing that proofreading, edit the email to make it shorter. An added benefit is that short emails have less room to antagonize people as long as you also keep out insults and profanity.

And what if you receive an insulting or attacking email? Don’t respond in kind. Ignore the insults and attacks. I make this suggestion for two reasons:

  1. the fact that the other lawyer is not acting like a professional is not an excuse for you to not act like a professional (I’m pretty sure judges see it my way on this); and
  2. when you continue to act professionally, the other lawyer usually comes around and starts acting right.

I think I’m on to something with suggestion 2. If you treat lawyers the way you want to be treated even when you feel like they aren’t treating you that way–they will usually change their attitude. Before you know it, you will be friends.

$3.1 Million Jury Verdict in Hinds County Premises Case

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Thursday a Hinds County Circuit Court jury returned a total verdict of $3,108,000 in Crogier v. Heritage Properties. $3 million of the verdict was for pain and suffering, so the total verdict will presumably be reduced to $1,108,000 in the judgment.

The case involved a home invasion at an apartment complex in Jackson. Plaintiff was robbed and shot in the leg during the 10:00 a.m. home invasion. Plaintiff could not use his door’s peep hole before opening the door because it was painted over. The three assailants were never caught.

Plaintiff offered evidence that three men committed a series of attacks and robberies in the 18 days before the incident. There was also evidence of many other robberies and other crimes on the site in the years leading up to the incident. The complex was open in the day, but had security and closed gates at night.

Ashley Ogden and Tyler Royals with Ogden & Associates in Jackson represented the Plaintiff. Johnny Wade and Tammye Brown with Brunini in Jackson represented the defendant. Judge Winston Kidd presided.

My Take:

Sometimes you hear about a big verdict and wonder if defense counsel didn’t do a good job. But Johnny Wade is a good and experienced lawyer, so I doubt that wasn’t an issue here.

Despite the recent run of success that defendants have had in Hinds County lately, it’s still a venue where plaintiffs can get the occasional big verdict.

Miss. Court of Appeals Affirms $144,865 Verdict in Breach of Trust Case

Posted in Mississippi Court of Appeals

On Tuesday the Miss. Court of Appeals affirmed a $144,865 verdict in Cassibry v. Cassibry. The Court also remanded the case for a hearing on the issue of attorney’s fees. Here is the Court’s opinion.

The case originated in the Bolivar County Chancery Court with Judge Catherine Farris-Carter presiding.

Judge Barnes wrote the Court’s unanimous opinion.

The case involved a family trust in which one family member was named trustee. The beneficiaries were the testator’s wife and three children, one of whom was trustee. The testator set the trust up as a support trust for his wife with his children as remaindermen.

The trustee bilked at least $55,325 from the trust as ‘loans.’ Unable to even argue that the withdrawals were permitted by the trust document, the defendant argued that the testator’s wife authorized the withdrawals.

The chancellor found that the trustee committed a blatant breach of fiduciary duty.

On appeal, a unanimous Court of Appeals found that there was substantial evidence to support the chancellor’s findings. The Court heavily relied on the Restatement (Third) of Trusts. The Court noted that under the Restatement, “even express authorization to engage in transactions otherwise prohibited under a trustee’s duty of loyalty does not ‘completely dispense with the trustee’s underlying fiduciary obligations to act in the interest of the beneficiaries and to exercise prudence in administering the trust.'”

Stated differently, a trustee must follow the trust agreement or their is a breach of trust. Period. No exceptions. No excuses. Follow the trust document or else. Don’t like it? Then don’t agree to serve as trustee.

The trustee also did a terrible job in maintaining trust records. Again citing the Restatement, the Court noted that a trustee who fails to maintain books and records is liable for loss or expense resulting from that failure and that poor record keeping may cause doubts to be resolved against the trustee.

My Take:

A trustee finger-pointing at a beneficiary or arguing that a beneficiary consented to the violations of the trust document is the classic loser defense in trust cases.

Don’t take my word for it, ask Trustmark. Incidentally, there is currently pending in Hinds County Chancery Court a breach of trust case against Trustmark that makes the Weidner judgment look like chump-change.

I would like to report more on the case, but Trustmark’s lawyers had me thrown out of the courtroom when I went to watch the trial. Seriously. Open court. A good crowd including family members of the attorneys. And I got kicked out. But don’t worry Trustmark, I’ll get caught up when the Court’s decision comes down.

Trustmark appealed Wiender and then paid more than the judgment to settle the case before the Court decided the appeal. That’s not inside information. That’s buried in the appeal docket.

The problem with trustees finger-pointing at beneficiaries is that if the testator wanted to allow the beneficiary to make the decisions, he would not have gone to the trouble of setting up a trust. He would have just given them the assets. The Restatement of Trusts is built around this underlying premise. Trustees–especially institutional trustees–have a huge blind spot on on this point.

The chancellor’s and Court of Appeal’s decisions are completely consistent with the Restatement. That includes the fact that the plaintiff can recover attorney’s fees even without a punitive damages verdict–the Restatement says the Court should have that discretion.

The typical breach of trust case where the plaintiff wins at trial is an obvious breach of the trust document and a defendant that can’t get its brain around trust law.