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

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As widely reported, the Mississippi Supreme Court ordered Judge Eddie Bowen to recuse himself in the Smith County asbestos drilling mud case that was tried to a $322 million verdict in May. In June the defendant Union Carbide moved for Judge Bowen's recusal in the case because his father sued Union Carbide 20 years ago and settled the case. Judge Bowen and the plaintiffs opposed the motion.

The Mississippi Supreme Court's hand-down list on Thursday included the following unanimous ruling:

In Re: Union Carbide Corporation, et al.; Smith Circuit Court; LC Case #: 2006-196; Ruling Date: 05/19/2011; Ruling Judge: Eddie Bowen; Disposition: Union Carbide's Petition for Disqualification of Trial Judge Pursuant to M.R.A.P. 48B, for an Immediate Stay of All Proceedings, and for Other Extraordinary Relief is granted. Judge Eddie H. Bowen shall immediately recuse himself from further proceedings in Smith County Circuit Court Cause No. 2006-196, and all matters pending therein shall continue to be stayed until such time as a judge is appointed to preside. To Grant: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Kitchens and Chandler, JJ. Not Participating: Randolph, Pierce and King, JJ. Order entered.

Anderson links the actual order in the comments.

My Take:

I miss Judge Evans.

This case is a mess. $322 million for a single plaintiff case in a venue that—let's be honest—is funny. As in 'odd' funny. The chances of that verdict holding up on appeal are exactly 0.

A new judge will be appointed by the Supreme Court. That judge will presumably order a new trial or significantly reduce the verdict. Then they may all get to go back down to Raleigh for another trial with Gene Tullos and a Smith County jury. Where Union Carbide will once again be a big underdog.     

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The Clarion-Ledger reports that the write in election for the Circuit Judge position in Smith, Covington, Jasper and Simpson Counties will stay on the November ballot. I previously discussed the write in election in this post.

The Supreme Court appointed Judge Henry Lackey to decide if the election will continue. Judge Lackey ruled that it will. Circuit Court clerks in the district filed the lawsuit challenging the election.

The lawsuit created an unusual alliance between Attorney General Jim Hood, Governor Haley “I haven't decided if I'm running for President” Barbour and Secretary of State Delbert Hoseman.  The C-L reports:

Assistant Attorney General Harold Pizzetta, who argued the case on behalf of the state, said that when Barbour, Hood and Hosemann all agree that the write-in election should take place, "it's a freaking miracle probably a correct interpretation of the law."

Meanwhile, Circuit Court clerks revealed that Donald Duck leads in the early polling:

Donald Duck is in the running for circuit judge in the write-in election to replace the late Judge Robert Evans in the four-county court district, a circuit clerk said Wednesday.

I couldn't support the Duck, but I might could get behind the newly elected Ole Miss Dancing Bear, which has proven electability after defeating a shark and a rusty old Sugar Bowl “hotty toddy” in the hotly contested Ole Miss mascot election. 

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On Monday Gov. Barbour's office announced the appointment of District Attorney Eddie Bowen to replace the late Judge Robert Evans as circuit judge in the 13th District (Covington, Jasper, Smith and Simpson counties).

Bowen had been the D.A. for the district since 1999. Perhaps most importantly, Bowen's D.A. experience gives him name recognition in the district. That will presumably give him an advantage in the write-in election that will take place in November. I discussed that election in this post.  

It will be interesting to see what will happen if Bowen loses the election. For instance, what if Gene Tullos or David Garner wins? Could the winner refuse the post, thus allowing Gov. Barbour to appoint Bowen again?

The situation looks less chaotic than before Bowen's appointment. But it is still interesting.

This district is a focus for civil litigators because Smith County and the Paulding District of Jasper County have reputations as being dangerous venues for defendants. The recent $131 million verdict against Ford Motor Co. in the Brian Cole lawsuit was tried to a Paulding jury.

I once was co-counsel defending a case in Paulding and there was a plaintiff verdict of $2 million. We felt pretty good about keeping the number that low. It didn't even feel like a loss. [Judge Evans later granted defendants' post-trial motions.]

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The Clarion-Ledger reports that Judge Robert Evans' successor will be chosen by a write-in vote. Judge Evans was the only candidate who qualified to run. He died of cancer after the sign-up deadline passed. The district covers Jasper, Smith, Simpson and Covington counties.

Circuit clerks in the district are not enthused about the upcoming election:

"I see no good coming out of it," Smith County Circuit Clerk Anthony Grayson said. "I'm not looking forward to it. With just 60 days to go, we have to try to educate the voters about it."

Grayson said he wasn't consulted about the process prior to the announcement.

"I'm really disappointed (in the process selected)," Grayson said. "The people of the district deserve better. ... I sort of thought someone would be appointed."

In addition to expecting turmoil, Grayson said he wonders about names of individuals being written on ballots who are not qualified to serve as circuit judge. Also, he worries about names possibly being misspelled.

Not to mention all the votes people with names like Harry Crotch will get.

A circuit court judge is a vitally important position in Mississippi's legal system. Circuit court judges can preside over a capital murder trial one week and a multi-million dollar civil case the next week.

My personal preference is for all circuit court judges to be appointed. I believe that the overall quality of the judiciary would be better with appointed judges. I also believe that politics would play less of a part in the decision making. 

But even if you prefer an elected judiciary, a write-in election is a bad idea. Write-in elections are for positions like class favorite in junior high schools. A write-in election for judge in a four county district will likely lead to many lawyers splitting the votes. If that's the case, there will probably be a run-off between two lawyers who collectively did not accumulate 50% of the vote. Even worse, neither may want the position. 

Also, will lawyers raise money and campaign when the election will be decided by such a crap-shoot mechanism? And that's assuming that they can raise money when they did not qualify to run. 

Hopefully, someone who will be a good judge will win. But right now that would seem to require luck more than anything else.    

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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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A memorial service for Judge Robert Evans is scheduled for Friday, July 23, 2010 at 10:00 a.m. at the Smith County Courthouse in Raleigh. Here is Judge Evans' obituary, which ran in the Clarion-Ledger on Sunday.  

In addition to his legal and judicial career, Judge Evans was an avid historian and authored The Sixteenth Mississippi Infantry: Civil War Letters and Reminiscences.

I recommend the book for Civil War buffs. It is quiet moving at times, such as when you learn that men whose letters you had been reading were killed in battle.

I never told Judge Evans that I read and enjoyed his book because I didn't want to look like an ass-kisser. But now I wish that I had.

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The Clarion-Ledger reports today that funeral services for Judge Evans are still pending:

Funeral services are pending for Circuit Judge Robert G. Evans, who died Tuesday from cancer. He was 61.

Evans died at St. Dominic Hospital in Jackson, less than two months after being diagnosed with pancreatic cancer, according to a statement from his office.

Thursday's print edition ran this article about Judge Evans.

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Circuit Court Judge Robert Evans has died. Judge Evans presided over the Thirteenth District, which included Covington, Jasper, Simpson and Smith Counties.

It's my understanding that Judge Evans was diagnosed with pancreatic cancer a couple of months ago. 

Judge Evans was very popular among both the Bar and Judiciary in Mississippi. On the rare occasions that I heard a lawyer state that the did not enjoy practicing before Judge Evans, the person who said it was clueless.

 I have not received notice of funeral arrangements and will post them when I do.   

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Thirteenth District Circuit Court Judge Robert Evans has been unable to preside over cases for some time due to an illness. Judge Evans' district includes Covington, Jasper, Simpson and Smith Counties and he is the only judge in the district.

Judge Frank Vollor has stepped in to preside over cases in the district on an interim basis. Judge Vollor retired from the bench in 2009 after serving as a Circuit Court Judge for the Ninth District, which includes Warren County.

I am sure that Judge Vollor will do a great job, but Judge Evans is irreplaceable. If I could pick one state or federal trial judge to try a case before, it would be Judge Evans. He maintains complete control over his courtroom while basically having an open chambers for the lawyers during a trial. Lawyers from both sides spend a lot of time in Judge Evans' office during trials drinking coffee and shooting the bull.

When Judge Evans rules he has a way of softening the blow for the side that he is ruling against. In addition, he has a great judicial temperament and I have never seen him “poison the well” with a jury by using different tones of voices to lawyers on opposing sides. He is a great trial judge.

I have heard Judge Evans state how much he loves his job and how fun it is. That passion is evident in the courtroom and he makes trying a case fun for the lawyers.

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I have a little more information on the $15.2 million drilling mud verdict this week in Jones County. The verdict was all compensatory damages. The jury considered punitive damages, but did not return a verdict. 

Reports are that it was an asbestos drilling mud case. The plaintiff has severe asbestosis according to his treating physician Dr. Steve Stogner, who reportedly was a great witness. The defendant was Conoco Phillips, now owned by Chevron Phillips Chemical Co., LLC. Union Carbide settled before trial and Oilfield Service & Supply Co. was dismissed on summary judgment.

Plaintiff's attorneys were Bob Hammond, Phillip Carby and the Franklin Cardwll & Jones firm from Texas.

Defense counsel was Alex Coscullela from Houston, Bernard Booth and Jeff Trotter, all with Adams and Reese.

This was the third drilling mud case tried in Mississippi. The first resulted in a $3.2 million verdict that Judge Robert Evans threw out on a JNOV motion. The second was a defense verdict.

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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.