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

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Gannett ran the same article on Mississippi jury verdicts in two newspapers on Sunday. The headline of the article in the Hattiesburg American was “Jury Awards Running Rampant.” Meanwhile, the headline for the same article in the Clarion-Ledger was “Jackpot awards still occur.”

The actual article opens with a softer tone:

Large verdicts still are being won here and there in Mississippi nearly 10 years after the state passed legislation capping damages jurors can award in civil cases.

I guess that is sort of true. Highly misleading. But sort of true. The key words being “here and there” with an asterisk to denote that jury verdicts don't reflect actual recoveries, if any.

The article cites a grand total of two cases. First, the Cole v. Ford Motor Co. verdict that I discussed a lot on this blog. The case involved the death of professional baseball player Brian Cole. The general manager for the New York Mets testified at trial that Cole was going to play in the majors. There was a $131 million verdict in the third trial and the case settled. A comment to one of my posts cites a rumor that the case settled for $12 million. Far south of $131 million and a reasonable figure for a pro baseball player.

Second, the $322 million Smith County asbestos drilling mud verdict that I discussed here and here. The article quotes Raleigh lawyer Gene Tullos, who represented the plaintiffs at trial. I have heard that the plaintiffs asked for far less in damages than was actually awarded. The verdict is being chalked up to the Gene Tullos Smith County phenomenon.   

The article goes on to state that the defendant does not expect the verdict to stand on appeal:

Union Carbide has confidence in the Mississippi appellate courts and believes - without hesitation - That this verdict will be completely set aside by post-trial motions or through the appellate process," company spokesman Scot Wheeler said.

"While the case lacks any merit, by just applying the applicable damage limitations, the total award against Union Carbide should be reduced to substantially less than $1 million."

Union Carbide's confidence is well placed. The chances of that verdict getting affirmed on appeal are less than zero.  

As I have discussed previously, plaintiffs are getting crushed in trials in Mississippi. Jury awards are not “running rampant” and any verdicts that are out of line get reversed by the Mississippi Supreme Court. The fact of the matter is that anyone who gets a verdict out of a Mississippi jury and then gets that verdict paid or affirmed on appeal has earned it and deserves it.

The thing that bothers me about this newspaper article is that it sends a message that is wrong. Perhaps intentionally. Perhaps not. Lawyers and judges know that juries are not running rampant, but the general public doesn't.  

The article misses the real story. Why is there a $322 million verdict coming out of Smith County, which looks ultra-conservative on paper? Why are there so many large verdicts coming out of Judge Billy Joe Landrum's courtroom? Those are interesting questions that would make for a good story. But the Gannett article misses those questions on its way to a shallow article with misleading hysteric headlines.  

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This site is turning into the Jones County Litigation Review and Commentary. Yesterday a Jones County jury returned a $1.71 million verdict in a brain injury case.  $1.56 million went to the victim and $150,000 to his wife for loss of consortium. The trial began on January 20.

The victim was a mechanic who was injured from an explosion while repairing the defendant Enviro, Inc.'s 18–wheeler garbage trailer. He was in a coma and on life support and suffered a brain injury with permanent dysfunction.

Gene Harlow and Roy Nowell with Hortman Harlow in Laurel represented the plaintiffs.

Lee Davis Thames and Meade Mitchell (a.k.a. Father Time) from Butler Snow in Ridgeland represented the defendant. No word yet on whether Butler Snow has canceled all future trials with Jones County juries.

Judge Billy Joe Landrum was the trial judge.

I will update this post if I obtain more information.  

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Judge Landrum has denied Baker & McKenzie's post-trial motions in the Evans v. Baker & McKenzie case. Post-trial motion are usually not granted, so this is not a surprise.

Plaintiffs asked Judge Landrum to award attorney's fees in the case, since the plaintiffs recovered punitive damages. The Plaintiff seeks $31.1 million in fees. The cross-plaintiff seeks $8.99 million in fees.

It's my understanding that the attorney's fee request is for a fee of 40% of the judgment. In prior punitive cases, Judge Landrum is said to have awarded a fee of 25% of the verdict.

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I did not get much new information today on the $103 million Evans v. Baker McKenzie verdict.

The lead defense lawyer has been identified as James Brown of Liskow & Lewis in New Orleans. Here is his firm bio page. I am not sure who local defense counsel was or whether they had local defense counsel.

I hear that David Dunbar of Jackson was involved in the trial, but I am not sure of his role.

There was a punitive damages component of the verdict of $150,000. Although miniscule compared to the total verdict, it opens the door to the judge awarding attorney's fees to plaintiff's counsel. Plaintiff's counsel could ask for a percentage of the verdict in attorney's fees—like 1/3. So the miniscule punitive verdict could end up adding a lot to the judgment.

The trial judge was Judge Billy Joe Landrum. Judge Landrum also presided in the August trial that resulted in a $132.5 million verdict in a case involving the death of New York Mets prospect Brian Cole. Here are prior posts on that case.

Judge Landrum has a reputation as being grouchy to defense counsel and I hear that this case was no exception. 

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The Brian Cole verdict against Ford Motor Co. is on the front page of today's Clarion-Ledger. Here is the article. A Ford spokesperson is quoted in the article as saying that the trial was unfair.

Judge Billy Joe Landrum was the trial judge and he conducted the trial in Laurel with a Paulding jury. The article identifies Tab Turner from Arkansas as the lead plaintiff lawyer. Barry Ford and Bill Jones of Baker Donelson in Jackson defended the case with Ford's national roll-over counsel. I am not a fan of the national defense counsel model in Mississippi, but I'll save that discussion for another day.  

The verdict was $131 million for Cole (who died) and $1.5 for the passenger of the Ford Explorer (Cole's cousin who survived). The two were in a roll-over accident on I-10 in Florida. Yea, I know: what was the trial doing with a Paulding jury? There was a venue hook somehow.

Yesterday after the verdict came down I received  numerous reports on it that placed the verdict range from $130 million to $235 million. A Ridgeland attorney with absolutely no connection to the case or involved law firms was the only person to provide the exact correct breakdown of the verdict.

The case settled before entering the punitive damages phase. Ford is getting second guessed for settling the case, but I don't have a problem with it conceptually. Since I do not know the amount of the settlement, I can only comment in general terms.

First, a punitive verdict in the case could have easily been over $100 million in addition to the compensatory verdict.

Second, this was the third trial. Ford has probably already spent $30-$50 million in defense costs and expenses. The result of a winning appeal would likely be the chance to try the case again, presumably before the same judge and another Paulding jury. Ford's cost for the appeal and re-trying the case would likely be in the $5-$10 million range. 

So if the Plaintiffs discounted the verdict to settle the case,  Ford might have felt that settlement was the best business decision. 

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The third trial involving the 2001 death of former New York Mets prospect Brian Cole is taking place before Judge Billy Joe Landrum in Laurel or Paulding (I have heard both). Ford Motor Co. is the defendant. The lawsuit alleges defects in a seatbelt and a propensity of an Explorer to roll-over. 

Two prior trials resulted in hung juries. The case was first tried in 2004 before Judge Robert Evans in Paulding. My recollection is that the plaintiffs moved to recuse Judge Evans after the first trial and the Supreme Court appointed Judge Landrum to take over the case.

The second trial was earlier this year before Judge Landrum and discussed on this blog here and here. 

Plaintiffs contend that Cole would have been a major leaguer, a view supported by the Mets as discussed in this New York Daily News article about the last trial.

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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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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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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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On Thursday the Mississippi Supreme Court vacated two Jones County jury verdicts rendered in one trial in Gallagher Bassett Services, Inc. v. Malone and remanded the case for further proceedings. Here is the Court's opinion. Justice Lamar wrote for the Court.

 The case stemmed from Gary Malone's right leg amputation two years after he suffered a work-related injury. Malone sued Gallagher and his employer Nabors Drilling. Malone alleged that defendants committed a bad-faith delay in paying his workers comp. claim, causing a delay in medical treatment that led to the amputation of his leg.

Nabors filed a cross-claim against Gallagher and entered into a Mary Carter agreement with Malone under which Nabors admitted to bad-faith (by Gallagher) and paid Malone $1.5 million in exchange for the first $250,000 of any sums that Malone recovered from Gallagher and half of any additional sums recovered.

Malone’s claim and Nabors’s cross-claim were tried together. The jury rendered a verdict for Malone on his claim and awarded $250,000 in damages with fault apportioned among Gallagher (42.5%), Nabors (42.5%) and Malone (15%). The trial court entered final judgments against Nabors and Gallagher in the amounts of $106,250 each.

In a separate verdict the jury found for Nabors on its cross-claim against Gallagher and awarded damages in the amount of $1.25 million. The trial court did not submit the issue of punitive damages to the jury.

The Court found that the two verdicts were inconsistent and, therefore, the jury had to be confused. One jury instruction stated that in order to find for Nabors on its cross-claim the jury must find that nothing Nabors did contributed to Malone’s damages. But the jury both assessed fault to Nabors (42.5%) and found for Nabors on its cross-claim. The Court could not reconcile these inconsistent verdicts and vacated both verdicts and remanded the case.

The Court “strongly urge[d]” the trial court to sever Nabors’s cross-claim so that Malone’s claim and Nabors’s cross-claim are not tried in the same proceeding. You have to feel for the trial judge on this point [Judge Billy Joe Landrum], since no party asked for separate trials.

Notwithstanding the loss of his leg, you don't have to feel particularly sorry for the plaintiff and his attorneys, since they get to keep the $1.5 million that Nabors already paid to plaintiff.

 All participating justices concurred except for Justice Chandler, who argued in a dissent that the judgment against Gallagher should be reversed and rendered due to a lack of evidence of gross negligence, malice or reckless disregard.