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

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On Tuesday the Mississippi Court of Appeals affirmed a $4.6 million Hinds County jury verdict in Miss. Baptist Health Systems v. Kelly. Here is the Court's opinion. This was the appeal of a 2009 trial that I wrote about in this 2009 post.

This was a pre-tort reform cap case. Ellen Kelly died as a result of exposure to latex during a surgery procedure at Baptist Hospital in Jackson. A form from an earlier surgery procedure indicated that Ellen was allergic to latex. The jury rendered a verdict against Baptist, but exonerated the doctor defendants.

The awarded damages were:

• $29,604.52– funeral and medical expenses
• $992,109– loss of household services
• $1,415,880– lost wages
• $2,253,065.48– pain and suffering

A big part of Baptist's appeal seemed to center on the fact that the jury exonerated the doctor-defendants, who also had a duty to take a proper history from Ellen. The Court rejected the argument finding that the doctors and nurses had a separate duty.

Baptist also complained because the trial court did not allow the jury to apportion fault to an anesthesiologist. I can't tell for sure, but Baptist may have been trying a version of the sneaky finger-pointing defense that I talked about in this post. The Court rejected this argument because there was no testimony suggesting that the anesthesiologist deviated from the standard of care.

Judge Ishee wrote the majority opinion. Judge Maxwell wrote a specially concurring opinion. Judge Carlton dissented based on her assessment that the plaintiff did not prove medical causation.

Joey Diaz, Christopher Williams and Dennis Sweet represented the plaintiff. Mike Wallace and a bunch of other lawyers from Wise Carter represented Baptist. Judge Winston Kidd was the trial judge.

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The 2007 Supreme Court Decision:

In June 2003, Jefferson County Circuit Court Judge Lamar Pickard granted Sherwin-Williams summary judgment in a lead paint case (Pollard v. Sherwin-Williams). The Mississippi Court of Appeals affirmed. But on February 15, 2007, the Miss. Supreme Court reversed and remanded the case for trial in a 5–4 decision.

Here is the Court's 2007 opinion. In reversing the trial court, the Court relied in part on the report of Plaintiff's expert Dr. John Rosen. Justice Randolph wrote the 2007 majority opinion. Chief Justice Smith dissented, arguing that there was no evidence of product identification. Justices Carlson, Dickinson and Easley joined the dissent.

The 2011 Supreme Court Decision:

The trial was in the Summer of 2009 and resulted in a $7 million jury verdict. Sherwin-Williams appealed. On Thursday the Mississippi Supreme Court issued an opinion reversing the verdict and rendering the case in favor of Sherwin-Williams. Here is the Court's 2011 opinion.

On appeal, Sherwin-Williams argued that Plaintiff's expert opinions on causation (including Dr. Rosen) were unreliable under a Daubert analysis. The Court agreed. 

Interesting language from the Court's opinion includes:

• “The plaintiff's experts seemingly contradict each other and themselves.”
• “it is difficult to determine whether Lidsky's opinion in the case is, proverbially, a chicken or an egg.”
• “Dr. Lidsky was, essentially, leaning on Dr. Rosen's theory of causation, who was leaning on Dr. Lidsky's theory of injury, who was leaning on Dr. Rosen's theory of causation…ad infinitum.”

Justice Pierce wrote the Court's opinion. Justice Kitchens wrote an opinion concurring in result only and was joined by Justices Chandler, King and Randolph (in part). Justice Kitchens asserted that Sherwin-Williams should win because there was no proof of product identification.

Nine lawyers represented Sherwin-Williams on the appeal, including Wayne Drinkwater, Luther Munford, John Corlew and other lawyers with their firms. Plaintiff's attorneys were Porter & Malouf of Ridgeland, Michael Casano of Gulfport and Dennis Sweet of Jackson.

My Take:

In retrospect, it's easy to say that the Court should have affirmed summary judgment in 2007. Lord knows that's got to be what Judge Pickard thinks. But the reality is that the differing standards of review in summary judgment and Daubert make it possible that the Court was right both in 2007 and 2011.

This case was a plaintiff lawyer's worst nightmare and and dream case for defense lawyers. On the plaintiff side, if you are going to lose a big and expensive case like this, you want it to be early—like in 2003 when Judge Pickard granted summary judgment. That saves you a ton of time and money.

Defense lawyers benefit when the reverse happens. This case had a big trial and was at the Supreme Court and Court of Appeals a total of three times. With all the experts involved, I bet Sherwin-Williams had $3–5 million in this case.   

It was interesting that Justices Carlson and Dickinson did not join the concurrence, which seemed to be based on the same reasoning as their dissents in 2007. If they had joined the concurrence, then the concurrence would have been the majority opinion and the case would have gone down on product identification instead of Daubert.

The significance of this is that the case would have little—if any—precedent value because product i.d. was such a basic element of the case. A Daubert opinion has the potential to be more in play in future cases.

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Reports from Claiborne County are that the water is rising fast. The plaintiff lives in Vicksburg and had trouble getting to Port Gibson today because Highway 61 is closed. 

As a result, Judge Pickard is pressing to get the ongoing silica trial to verdict today. The parties argued jury instructions last night after the jury left for the day. It's expected that closing arguments will be today. Perhaps even before lunch. If they don't finish soon they're going to need some canoes.

Reports are that the plaintiff's Closer Dennis Sweet is participating in the trial. It will be interesting to see how plaintiff counsel splits closing.  

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Reports from Port Gibson are that the plaintiff in the Claiborne County silica trial went to the bullpen yesterday and called in……Dennis Sweet of Jackson. 

Yep. The big right-hander entered the ballgame courtroom Wednesday afternoon representing the plaintiff. I didn't know that Sweet was coming out of the pen.  

My earlier post on the ongoing silica trial is here.

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I have not been able to obtain much new information in the Archey v. Marriott case that resulted in a $23 million verdict in Hinds County Circuit Court last week. I posted on the case last week here.

As of late last week, the court file was checked out and the verdict and judgment had not been filed.

I did obtain most of the Complaint, which you can view here. I am missing the page that pleads the premises liability claim. That is presumably the action that resulted in the verdict against Marriott.

The Complaint pleaded excessive force as a negligence claim. Interesting. The Complaint also pleaded claims for assault, battery and intentional and negligent infliction of emotional distress. I would like to see the jury instructions to see what theories went to the jury.

I may make another attempt to get the jury instructions and verdict in the future. But without Pacer, my ability to obtain pleadings in state court actions is limited by time constraints imposed by my practice.

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The Clarion-Ledger reported this morning on a $23 million Hinds County jury verdict yesterday against  Marriott and the City of Jackson. According to the article:

The key question the jury had to decide was whether West was acting as a police officer or was he acting as a security officer for Marriott when he shot Archey.

Archey was seen walking on the parking garage ramp at the Marriott. West lost sight of him after he ran but eventually saw him run across the street and chased him off Marriott's premises. He eventually caught up with [ plaintiff Dale] Archey near the Robert E. Lee Building parking lot.

Deputy City Attorney James Anderson Jr. said West was working and being paid by Marriott when the shooting occurred. But Marriott's attorney, Brett Bollinger, said West wasn't acting as a security officer for the hotel once he left the premises to chase Archey.

****

West testified he was trying to handcuff Archey when Archey made a quick motion, leading him to think Archey may have been reaching for a knife or screwdriver, Bollinger said.

"Dale Archey made a sudden, quick move and Officer West had only a moment to react," Bollinger said. "He feared for his life."

No weapon was located.

West suspected Archey of breaking into cars in the Marriott garage. Plaintiff argued that Archey was homeless and planned to sleep in the garage.

The plaintiff asked for $16 million. The jury awarded $23 million. The jury apportioned 70% fault to Marriott and 30% to the City. That apportionment should result in the City owing zero (according to the City). The City will appeal anyway and by law, does not have to post an appeal bond.

Issues on appeal will include the following:

• standing:  Dale Archey was the plaintiff, but is institutionalized and could not be deposed. A conservatorship was set up, but never substituted as the plaintiff in the case.
• Multiple evidentiary rulings: examples include that the trial court excluded evidence of Archey's criminal history. Archey beat a man to death at age 13 over a drug debt and served time. Archey was also arrested the day before the shooting and had a gun taken away from him. The defense theory was that Archey forgot he did not have his gun and was attempting to pull it when Officer West shot him. Defendants contended that Archey's past was relevant to liability and damages issues. Archey also pleaded guilty to resisting arrest.

It's my understanding that some of the evidentiary issues overlapped with the issues in the Rebelwood Apartments verdict discussed here.

Judge Winston Kidd was the trial judge. Dennis Sweet and Rick Patt of Jackson represented the plaintiff. Brett Bollinger of the Louisiana firm of Allen & Gooch represented Marriott. Deputy City Attorney James Anderson Jr. represented the City of Jackson. 

It's well known that Dennis Sweet loves to draw out-of-state defense lawyers. The argument is that for whatever reason, out-of-state lawyers have trouble connecting with Mississippi juries and tend to exacerbate verdicts. Proponents of this theory can point to many massive verdicts with out-of-state defense lawyers and argue that the verdicts would have been less with Mississippi defense counsel.

It's also theorized that because of Mississippi's history with bet-the-company litigation, Mississippi defense lawyers tend to be more skilled than lawyers from other states who are less experienced in major litigation.     

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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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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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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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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.