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

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Having lost the real trial, the Sun-Herald reports that the plaintiff lawyers in the FEMA trailer litigation now want the court to order two non-binding mock trials:

Plaintiffs' attorneys asked a judge to order two nonbinding "summary jury trials" for the litigation after a federal jury on Sept. 24 rejected a New Orleans family's claims that elevated levels of formaldehyde in their FEMA trailer jeopardized their health.

A plaintiffs' lawyer says summary jury trials can promote a mass settlement, but attorneys for trailer manufacturer Keystone RV Company are opposed to the proposal. U.S. District Judge Kurt Engelhardt didn't immediately rule on the request.

Summary jury trials typically last less than a day and cost much less than real trials.

It's almost like having already lost the Super Bowl, the losing team wants Vegas to put a point spread on the game.

I wonder if the plaintiffs proposed the summary jury trials before the real trial? I wonder if plaintiffs conducted their own one day focus group studies or mock trials and like their chances at winning a one day summary trial? I wonder if anyone is raising the fact that every jury consultant you ask will tell you that one day focus group type proceedings are not predictive of the actual outcome at trial?

What I don't wonder is whether the defendants will agree to the proposal. I think we know the answer to that one. The plaintiffs are probably going to have to either settle for peanuts or win a real trial.

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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.