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

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Earlier this year I wrote about a Plaintiff verdict in a Hurricane Katrina wind vs. water trial against Lloyd's of London here, here and here.

The plaintiff was allowed to recover attorney's fees in the case because the Court found that Lloyd's had no arguable basis to deny the claim. On December 21 Judge Sul Ozerden awarded the plaintiffs the following extra-contractual damages:

• $1,922,487.25 in attorney's fees
• $234,800.73 in expenses
• $954,245.31 in pre-judgment interest.

The total extra-contractual damages were $3,111,533.29 (plus post-judgment interest).

Here is Judge Ozerden's 40–page opinion on the attorney's fee issue. The Court awarded a rate for Don Barrett of $375 per hour ($475 hr. requested) and David McMullan's of $300 per hour ($345 requested). From my knowledge of hourly rates in Mississippi, both the rates requested and the rates awarded were in the range of reasonableness when compared to premium rates charged by top litigation attorneys in the state.  

Lloyd's took an interesting approach in opposing the requested rates by identifying the rates of its trial attorneys: $285–hr. for Paul Fields from Atlanta and $200–hr. for Whit Johnson from Currie Johnson in Flowood. Lloyd's should be ashamed that it was paying Whit Johnson only $200–hr. Whit is one of the top defense lawyers in the state and could justify a rate double what Lloyd's was paying him.

Judge Ozerden also reduced the compensatory damages award to $1,832,602.20 based on the policy's coinsurance condition and windstorm or hail deductible. Here is that opinion. 

My Take:

Judge Ozerden's opinions were thorough and well-reasoned.

Don't look for Lloyd's to be lobbying for loser-pays legislation when the State Legislature convenes this week.   

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Friday Mississippi's federal judiciary celebrated the appointment of District Judge Carlton Reeves with his investiture at Jackson State University. The vast majority of the Mississippi federal judiciary attended the event, which was marked by several moving speeches about the Yazoo City native's accomplishment of becoming a federal judge.

Judge Reeves' former law partner Cliff Johnson served as the Master of Ceremonies “Special Master” of the the proceeding. Former Southern District U.S. Attorney Brad Pigott gave what, to me, was the best speech of the event. Pigott—who worked with Reeves for many years at the U.S. Attorney's office and in private practice—noted that Reeves was born in 1964 when white supremacy still ruled in Mississippi. Today, it is hard to imagine how big a disadvantage it was to be born African-American in Mississippi in 1964. Mississippi has come a long way in the last forty-seven years and Carlton Reeves is as good of an example of that as there is.

An emotional Judge Reeves told a humorous and moving account of the first time he entered a law office when he was a teenager. It was the Barbour Law Firm in Yazoo City. Reeves was there to help his mother clean the offices. While his mother cleaned, Reeves played with, and then broke, the copy machine. On Friday, Senior Judge William Barbour, Jr., formerly of the Barbour Law Firm in Yazoo City, administered the oath to Judge Reeves. That may sound like a Hollywood movie, but it's true.

Following the administration of oath and presentation of robe, Judge Reeves took his seat next to Judge Sul Ozerden. Judge Ozerden's investiture several years ago was marked by his moving account of his father's immigration to the U.S. from Turkey with a plane ticket, one suitcase and very little money. I doubt that anyone who personally knew Reeves or Ozerden as they grew up is surprised by their achievements. The story is not that they had the talent to become federal judges, but that they could. Fifty years ago Reeves would have been prevented by his skin color; Ozerden by the fact that his father was not sufficiently 'good ole boy' to have a son rise that far, that fast.  

Perhaps people who think that things used to be better 'back in the day' are wrong. Today, the phrase that “all men are created equal” is more true in this country than it has ever been.

Sadly, Friday's celebration was followed by the death on Saturday of Senior U.S. District Judge Dan Russell, Jr. of of Gulfport. At Judge Reeves' investiture, Southern District Chief Judge Louis Guirola spoke of talking to Judge Russell the prior day and conveyed Russell's wishes of Godspeed to Judge Reeves. Judge Guirola spoke highly of Judge Russell with emotion in his voice. I will reflect more on Judge Russell's passing in a post on Tuesday.          

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In this post in January I wrote about a discrimination lawsuit by Sherrie Moore against the Allen, Cobb, Hood and Atkinson law firm based in Gulfport.

Since the initial filing, there have been a round of recusals by the Coast-based federal court judges:

• Judge Ozerden recusal Order;
• Magistrate Judge Walker recusal Order;
• Order Re-assigning Case; and
• Supplemental Order Reassigning Magistrate Judge.

The “winners” of the judicial sweepstakes are…….Chief Judge Michael Mills and Magistrate Judge Allan Alexander of the Northern District. But the case is still a Southern District case. It's not every day that you see a Coast case get kicked all the way up to Oxford. But it's understandable in a case between a lawyer and an established Coast firm.

 Judge Alexander set the Case Management Conference for April 19, 2011.

The defense lawyers are based out of Columbus and the plaintiff's lawyers are based out of Jackson. So the re-assignment should have little impact on the litigation. 

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A federal court jury in Gulfport rendered a plaintiff verdict yesterday in a Katrina wind vs. water trial against Lloyd's of London. Here is the verdict form, which I interpret to mean that the plaintiff recovers just over $2 million.

Judge Sul Ozerden was the trial judge. I will post more on this verdict next week.

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As expected, Southern District Judge Sul Ozerden has begun staying the Gulf Oil Spill cases pending a decision on whether an MDL will be created in the litigation. Here is one of Judge Ozerden's orders. 

I am not aware of any of the defendants filing a substantive response to the complaints before entry of the stay orders. Therefore, it will be a while before the emergence of the defendants' strategy for blaming the oil spill on other defendants through cross-claims.  

Judge Ozerden is the judge in most—but not all—of the cases filed in Mississippi. But all the cases are likely to be stayed regardless of the judge.

Everyone agrees that there will be an MDL action. Speculation continues to center on where the MDL will be located. I am not sure when the MDL panel meets next. I have heard July, but I have not verified that report.

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It took a year and a half, but President Obama finally nominated Jackson attorney Carlton Reeves to be a U.S. District Judge for the Southern District of Mississippi. The nomination has been expected from the day that Obama won the 2008 presidential election.

Here is Reeves’ profile at his firm’s web site.

Reeves is a Yazoo City native and is a graduate of Jackson State and the University of Virginia School of Law. He clerked on the Mississippi Supreme Court for Judge Rueben Anderson, was the Chief of the Civil Division of the Southern District U.S. Attorney’s Office and has been in private practice with Phelps Dunbar and his current firm of Pigott Reeves Johnson.

Here are my prior posts on Reeves.

Reeves is very popular in the Jackson Bar and the expectation among lawyers is that he will be a fair and popular judge. Reeves will join Bush appointees Judge Dan Jordan and Judge Sul Ozerden as young Southern District judges who will likely be on the bench for thirty or more years.

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In the last couple of weeks I discovered two web sites that are very interesting, but underdeveloped at this time.

Judgepedia is "an interactive encyclopedia of courts and judges." It looks like wikipedia and is designed to allow users to add content like on wikiepedia. This could be a great site for information on judges if it takes off and the content improves. RIght now there are not many Mississippi judges with pages on the site and at least one of the those (Judge Sul Ozerden) contains errors. The site states that Judge Ozerden served in the U.S. Army. Actually, Judge Ozerden served in the U.S. Navy. The site does appear to make corrections. Last week it stated that Judge Ozerden was recommended by Senator Wicker. This week it correctly identifies Senator Lott. Judgepedia will be a go-to web site for litigators if it continues to develop.

The same can be said for  The Robing Room, "where judges are judged." The site allows lawyers to rate judges and displays ratings and comments on judges. It also contains a ranking of the top ten and bottom ten judges. Here is the page for the federal District Court Judges and Magistrates in the 5th Circuit. There are very few ratings at this time for Mississippi federal judges and none for state judges. This would be a great site if there were more ratings and comments for Mississippi judges. 

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There is a rare opening on the 5th Circuit Court of Appeals with Judge Rhesa Barksdale taking senior status. President Obama will appoint someone to fill the seat. For a while it sounded like the appointment would go to someone from Louisiana. Later, I heard that Texas, Mississippi and Louisiana all had a shot at the seat.

I am now hearing that the White House is seriously looking at several candidates from Mississippi. The most prominent name that I am hearing as a candidate is Mississippi Supreme Court Justice James Graves. Justice Graves is qualified with eight years on the Supreme Court and experience as a trial judge before that.

You would expect there to be many people maneuvering to influence who gets this major appointment. A lot will depend on what the White House is looking for in court of appeals judges. If it is looking for someone in their fifties, then it will be tough to beat Justice Graves. President Bush often opted to fill appointments with young people who would likely hold the position for thirty years or more. Examples include Judge Sul Ozerden and Judge Dan Jordan. We do not know enough about President Obama yet to conclude if he will follow a similar strategy. All we really know is that Obama is moving slowly at making Mississippi appointments such as U.S. Attorneys, Marshals and Judge Barbour's District Judge seat.

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The big news yesterday was Governor Barbour's appointment of Gulfport resident and native John Gargiulo to fill the Circuit Judge seat vacated by the retiring Judge Jerry Terry. Here is the Sun-Herald's article on the appointment, which I speculated on in this post in May when Judge Terry announced his retirement. The article states:

Gargiulo attended college on a full ROTC scholarship before graduating from law school and joining a private practice in 1998. He has been a prosecutor with the District Attorney’s Office for nine years.

The following bio was attached to the article:

Age: 42

Hometown: Gulfport

Education: Graduate of St. Stanislaus, University of Southern Mississippi and Ole Miss

Experience: Assistant district attorney for Harrison, Hancock and Stone counties since 2000; private law practice of Bryant Clark Dukes in 1998.

Background: National Guard lieutenant colonel; served in U.S. Air Force as an intelligence officer for five years

Family: He and his wife, Lisa, have twin sons, Andrew and Jordan, 17, and a daughter, Katherine, 14.

It's also my understating that he was deployed in Operation Desert Storm. I am the same age as Gargiulo, but did not know him growing up (other than knowing who he was) because we lived in different neighborhoods and went to different schools. He has an excellent reputation on the Coast and will have no problem getting elected to a full term for the seat. Gargiulo is at least the second 1985 high school graduate from Gulfport to become a judge, joining U.S. District Judge Sul Ozerden.  

The other big story yesterday was the disagreement between Alan Lange at Ya'll Politics and Patsy Brumfield at the N.E. Daily Journal on whether Christi McCoy will still be appointed U.S. Attorney for the Northern District. Lange says that McCoy is out, Brumfield disagrees. Tom Freeland has the latest in this post. I do not have an opinion one way or the other right now, but I do know that Brumfield has mentioned names for the Southern District post after pretty much everyone around here agreed they were out of the running.  This makes me question whether Lange has information that has not yet reached Brumfield.

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Pursuant to a court order, A&O Life filed another affidavit today regarding the members of the LLC that owns A&O, which is Blue Dymond Capital Group, LLC, which is owned by Physician's Trust, LLC. Here is the affidavit, which was signed by Russell Mackert.

The affidavit states that Brent Oncale and Adley Wahab sold A&O to Blue Dymond in August or September 2007. Incidentally, I also received an email from a Houston lawyer last week who represents Wahab. The email stated that Wahab sold his interest in A&O in the late summer of 2007 and that he has no ongoing managerial or other control with A&O Life Funds LP.

Mackert's affidavit goes on to state that in February 2008, Blue Dymond asked Mackert to assume a managerial/ custodial role for the A&O entities. Paperwork was executed by Mackert's contact at Blue Dymond, R.J. Stephenson. Mackert is now unable to get in touch with Stephenson, which prevents him from identifying the members of Blue Dymond.  

A&O's affidavit raises a dilemma for Judge Ozerden, who appears to be trying to determine if the court has diversity jurisdiction over the dispute. It will be interesting to see what Judge Ozerden does next.

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On Friday A&O Life filed an affidavit identifying the members of Blue Dymond Capital Group LLC. Here is the affidavit, which was signed by Russell Mackert. The affidavit lists Physician's Trust LLC as the sole member of Blue Dymond. Physician's Trust was identified last week in a comment on this blog as an entity affiliated with A&O.

Based on his prior orders, Judge Ozerden may order that A&O identify the members of Physician's Trust.

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In my prior post I mentioned that it looked like Lawyer's Title v. Colson intervenor A&O Life does not want much known about its identity. Looks like Judge Ozerden thought the same thing, except he did something about it with this Text Order issued today:

TEXT ONLY ORDER directing Lewis Holdings, LLC; ReMax Alliance; A&O Bonded Life Assets Management, LLC; A&O Bonded Life Assets, LLC; A&O Bonded Life Settlements Management, LLC; A&O Bonded Life Settlements, LLC; A&O Capital Management, LLC; A&O Life Fund Management, LLC; A&O Life Fund, LLC; A&O Life Funds Management; LLC, A&O Life Funds, LLC; A&O Resource Management, Ltd.; Houston Tanglewood Partners, LLC; Life Fund 5.1 Management, LLC; Life Fund 5.1, LLC; Life Fund 5.2 Management, LLC; and Life Fund 5.2, LLC, to file into the record in this case an Affidavit or Declaration identifying the citizenship of each of their respective members or partners, or if not a partnership or limited liability company, identifying their state of incorporation and principal place of business, on or before Friday, May 15, 2009. NO FURTHER WRITTEN ORDER WILL ISSUE FROM THE COURT REGARDING THIS DIRECTIVE. Signed by District Judge Halil S. Ozerden on 5/8/2009. (EMN) (Entered: 05/08/2009)

It's pretty funny that A&O's efforts to conceal its identity actually brought more attention to it.