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

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Now retired Hinds County Circuit Judge Swan Yerger had a reputation for going out of his way to dismiss cases. Judge Yerger seemed to get reversed by the Mississippi Supreme Court more than any other judge in the state for defense rulings. It happened again last week in Compere v. St. Dominic.

The case was a medical-malpractice action. The plaintiff filed the action less than 60 days after providing defendants with pre-suit notice. The defendants moved for summary judgment based on the deficiency in the pre-suit notice. Judge Yerger took the matter under advisement.

Plaintiff filed a second complaint more than 60 days after giving pre-suit notice. Judge Yerger then dismissed the first case due to the notice defect and dismissed the second case finding it was an improperly filed action under the doctrine of priority jurisdiction.

Judge Yerger also assessed monetary sanctions against plaintiff's counsel for filing the second complaint. It's unclear whether defendants requested the sanctions or Judge Yerger did it on his own.   

The Supreme Court's Opinion:

A unanimous Supreme Court reversed the dismissal of the second complaint and imposition of sanctions and remanded the case for further proceedings. The Court reasoned that priority jurisdiction did not apply. Priority jursidiction applies: 

“when the same lawsuit has been filed in two different courts, not in the same court. More importantly, that doctrine presupposes a pending action that the plaintiff can proceed upon and obtain 'adequate relief.'”

The Court noted that defendants “fail to argue or cite any authority that a lawsuit should be dismissed with prejudice and with monetary sanctions under priority jurisdiction.”

Justice Lamar wrote the Court's opinion. James Bobo of Brandon represented the plaintiff. Lane Staines, Sharon Bridges, Jonathan Werne (all with Brunini), Ray McNamara and Stephanie Edgar (both with Watkins Ludlam) represented the defendants.

My Take:

James Bobo is a good guy,  so I am glad to see Judge Yerger's decision reversed. Cases like this are why Judge Yerger had a reputation for being pro-defense and unfairly dismissing cases. Most people would agree that cases should not be dismissed where there is no authority to support the dismissal.

Incidentally, Judge Jeff Weill replaced Judge Yerger on the Hinds County Circuit Court. Early reviews on Judge Weill have been favorable from both plaintiff and defense lawyers. 

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On Tuesday the Mississippi Court of Appeals issued a controversial decision in City of Jackson v. Rhaly. Here is the Court's opinion.

Facts:

The case was a lawsuit against the City for flood damages after a creek overflowed because it was not properly maintained. In interrogatory responses the plaintiffs requested any standard operating procedures which govern the site of the incident. The City's response was: none and that the City would supplement on receipt of further information. Sometime later, the City supplemented the response to identify a procedure without producing it. A week before the trial the plaintiff found the procedure in the clerk's office while researching another case.

This all happened back in the early 2000's before the current City Attorney or anyone working in his office worked in the office.

The plaintiff moved for a default judgment for discovery abuses and Hinds County Circuit Judge Swan Yerger granted the motion. Judge Yerger determined that the City's actions were not willful and wacked them anyway due to their neglect. He awarded $149,872 in damages, $31,226 in attorney's fees and $3,862 in expenses.

Court of Appeals Decision:

Judge Ishee wrote the Court's 5–3 opinion. The Court cited the following factors to consider when determine whether a dismissal was justified. My commentary is in brackets:

1. the failure to comply with the court's order resulted from willfulness or bad faith; [factor clearly not met: there was no order and trial court found it was not willful];
2. the deterrent value of Rule 37 cannot be substantially achieved through a less severe sanction; [factor not present];
3. whether the other party's preparation for trial was substantially prejudiced; [nothing in opinion suggested this factor was present; court of appeals said maybe-but decided that this factor does not have to be present]
4. dismissal may be inappropriate when neglect caused by lawyer rather than client; [pretty obvious that it was the fault of the lawyers in prior administration].

The Court discussed these factors and determined that dismissal was appropriate.

Pieter Teeuwissen and Claire Hawkins represented the City. William Joseph Kerley and John Clark represented the plaintiffs.

Judge Irving dissented joined by Judges Griffis and Maxwell.

My Take:

Judge Yerger had a reputations as perhaps the most defense leaning trial judge in the state. Except when the City of Jackson was a defendant.

I was shocked by this decision. Early indications are that I was not alone in Jackson legal circles. These are not the facts where I would  expect to see a default judgment granted for discovery abuses. In fact, I wouldn't even expect to see a motion filed.

There was no order violated and the plaintiff obtained the documents before trial. Also, the plaintiff did not articulate any real prejudice or move for a continuance. The fact that the plaintiff could have used the documents in depositions and “so forth” could have been handled by a continuance and more depositions at the City's expense.

Parties producing documents shortly before a trial is not uncommon. Sometimes this appears to be gamesmanship. Other times, not. Most of the time, the attorney on the receiving end complains to the Court, but rarely is anything done. Honestly, I didn't know that a default judgment was even possible for what happened here. I'm not condoning it. And I think that attorneys are getting more and more lax in responding to discovery and supplementing their responses. But I am very surprised by the result.

I will probably have more analysis of this opinion in a future post.  

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Alison Grant with the Plain Dealer (Cleveland newspaper) reported last week on two lawsuits recently filed against Eaton Corporation related to the Eaton v. Frisby litigation in Hinds County.

The North Carolina Antitrust Case

The first case is an antitrust case filed by Frisby (now called Triumph Actuation Systems) in North Carolina on February 1. Here is the Complaint in that case. NMC has a nice analysis of the Complaint here.

This is a well written complaint. It should come with a box of popcorn. It ties together the facts of the entire Eaton v. Frisby saga from Eaton paying a former Frisby employee to rat on Frisby to the Peters-DeLaughter saga. The Complaint seeks treble [triple] damages and attorney's fees.

The Complaint names Ed Peters, Jackson lawyer Mike Allred and the Quarles & Brady law firm out of Milwaukee as co-conspirators in the Eaton scheme to covertly influence DeLaughter. According to the Complaint, Allred and Peters had a contingency interest in the proceeds of Eaton's lawsuit against Frisby. That would explain some things. Think about it.

Allred and Peters have both been out of the case for years, but the Quarles & Brady firm remains the apparent driving force behind Eaton's litigation in Mississippi. I have always found that amazing. If I'm Eaton, I have to have completely new counsel to trust the advice that I'm getting. It's my understanding that Eaton only replaced its lawyers in Mississippi.

One theory I heard about Eaton not replacing Quarles & Brady was that the firm has close personal ties to Eaton CEO Sandy Cutler. One person told me that Cutler's father was a longtime senior partner in the firm. I located a Richard Cutler on the firm's website, but have not been able to verify the relationship. If the Frisby-Triumph allegations are true, then Eaton did not replace Quarles & Brady because the firm was conspiring with Eaton.

In any event, I don't see how Eaton can continue to have the firm work on the Frisby-Triumph litigation due to the lawsuit's allegations. But what do I know? I can't see how the firm is still in the case now.

The Ohio Shareholder Derivative Case

The second lawsuit is a shareholder derivative case filed against Eaton directors and employees on February 11 in state court in Ohio. Here is the Complaint in that case.

The Complaint alleges that Eaton directors and employees knew or should have known about the improper conduct by Eaton's lawyers in Mississippi, but did not stop it. The Complaint alleges that the dismissal of the Mississippi lawsuit cost Eaton the proceeds of the lawsuit, which were valued as high as $1 billion.

Eaton CEO's Sale of $26 Million in Company Stock

Coincidentally—or not, Eaton CEO Sandy Cutler sold over $26 million in Eaton shares on February 11, according to the February 19 issue of the Wall Street Journal. It was the 13th largest insider sale of stock in a publicly traded company for the week. The timing of the sale was "interesting."

Chronology of Interesting Events

That leads to the following interesting timeline:

• December 22, 2010: Hinds Circuit Judge Swan Yerger dismissed Eaton's case against Frisby based on finding that Eaton knowingly hired Ed Peters to improperly influence Judge Bobby DeLaughter
• January 28, 2011:  Eaton CEO Sandy Cutler appears on the Jim Cramer Mad Money show talking about Eaton's blowout quarter and expectations of further growth in the company's business.  
• February 1, 2011: Frisby/ Triumph file North Carolina antitrust case alleging that the Peters-DeLaughter connection was only one component of a multi-faceted scheme by Eaton to prevent Frisby from competing against Eaton.
• February 9, 2011: Cutler sells $26 million in Eaton stock less than two weeks after touting the company on Cramer.
• February 11, 2011: Eaton shareholders file derivative action against Cutler and other Eaton employees and directors.

My Take:

It's amazing how Eaton continues to paint itself into a corner and make itself look bad. In 2009, I noted in this post that Eaton's spokesperson Don McGrath repeatedly stuck his foot in his mouth when commenting on the Frisby litigation. At the time, I just thought that Eaton's public relations department issued statements without much thought.

Now, the situation looks deeper than a poor PR campaign. Eaton's repeated missteps and bizarre conduct suggest top-down leadership issues. Cutler selling a boat load of Eaton stock right after Frisby filed its case and just before the filing of the shareholder case makes both Cutler and Eaton look bad.

Another possibility is that Eaton is getting completely out-lawyered by Frisby-Triumph. That's possible. But that also falls on the company's leadership who continues to use a firm that helped get the company into this mess.  

Finally, the shareholder action raises interesting questions: why is the Eaton board of directors allowing Eaton to continue down this path? Does Eaton have an independent and active board of directors? Or is it a bunch of sheep in the Enron board mold?

Stay tuned.     

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Hinds County Circuit Judge Swan Yerger retired effective the end of 2011. Former Jackson City Councilman Jeff Weill was elected to replace Judge Yerger and inherited his docket.

On January 4, 2011–-the day of Judge Weill's investiture—Eaton Corporation moved to have Judge Weill recuse himself from the Eaton v. Frisby case. Eaton filed its motion under seal even though Judge Yerger lifted the seal in the case. Frisby did not file its response under seal. Here is Frisby's response. [Here is page 5, which was not in my initial posting.]

According to Frisby's response, Eaton contends that no judge in Hinds County can be fair due to Judge Yerger's finding that Eaton used Ed Peters to improperly influence Judge Bobby DeLaughter in the case.

Frisby responds that there is no legal or factual basis for recusal of Judge Weill. Frisby also contends that Eaton's motion constitutes improper judge shopping.

Eaton's request to recuse Judge Weill is bizarre. Judge Weill is conservative and is expected to be a detail oriented trial judge. That would seem to be the type of judge who you would want on the case if it's your position that the last judge got it wrong.

Eaton, on the other hand, wants the judge behind door number 2.

Should Judge Weill recuse himself, Eaton has no idea whether it will like the judge who the Supreme Court assigns to the case. I do not know exactly how that system works, but it appears random. That means that the Supreme Court could assign any current Mississippi Circuit Judge. Although it is more likely that it would be one from an area surrounding Jackson, that is no guarantee.

The uncertainty about what judge might be assigned to the case is what makes Eaton's request bizarre. How do you move to recuse a new judge who is a blank slate, but who no one has any real criticism of, in order to get a random draw that could be much worse? A lot of people will probably question that strategy if Judge Weill grants Eaton's motion and Eaton draws a judge who is perceived to be bad for Eaton in the case.

But that is probably a moot point since it appears unlikely that Judge Weill will grant Eaton's motion.      

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Eaton Corporation touts itself as one of the world's most ethical companies. Its CEO touts the company's ethical values.

Those ethical values did not extend to Eaton's legal department. As discussed in this post, Hinds County Circuit Judge Swan Yerger unsealed an opinion last week in which he found by clear and convincing evidence that Eaton's in-house and outside counsel cheated in a civil lawsuit.

Judge Yerger's opinion gave “just a few examples from an extensive record of clear and convincing evidence” of Eaton's misconduct by turning Ed Peters loose to play fast a loose with the justice system by improperly contacting and influencing Judge Bobby DeLaughter while remaining behind the scenes in Eaton's billion dollar lawsuit.

So far, Eaton's response to Judge Yerger's ruling is to maintain its innocence and state that it will appeal. The Mississippi Supreme Court's ruling on an appeal will be very interesting. My gut feeling is that at the Supreme Court Eaton is going to run into nine justices who—on the whole—are even less sympathetic to Eaton than Judge Yerger.

I don't know how Eaton can genuinely believe that it will win on appeal. In this August 2009 post, I pointed out that Eaton's arguments did not make sense and suggested that Eaton knew what Peter's was doing.

Eaton knew it hired Peters and that he was working on the case. Eaton has never given a legitimate reason for: (1) why it hired Peters; and (2) why after hiring Peters, it actively made sure that Peters' involvement was concealed from Frisby (the defendant in the lawsuit). Eaton's public attempts to answer these questions have been comically bad.

That will be obvious to the Supreme Court. And that's on top of the specific evidence that Eaton knew what Peters was doing. 

Eaton's current lawyers may be telling Eaton this. But if Eaton is taking advice from any of the in-house or outside counsel who got it into this mess, I suspect that Eaton is hearing a self-preserving and incorrect different tune.

In addition, the Supreme Court will be free to write an opinion discussing the entire record before Judge Yerger—not just the examples of misconduct that Judge Yerger cited. That means that things could get even worse for Eaton on appeal. Judge Yerger issued a thorough and well written opinion. But writing opinions is much more of a core function of appellate courts than trial courts. So Eaton's appeal could result in an even more damning opinion from a higher court.

At this point I am waiting to see if Eaton shows signs of a new plan. They sure need one.

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Perhaps the biggest legal development of the year in Mississippi happened today during what is usually the quietest weeks of the year for lawyers and the judiciary.

Hinds County Circuit Court Judge Yerger unsealed an opinion today dismissing Eaton Corporation's case against Frisby due to Eaton's hiring Ed Peters to improperly influence Judge Bobby DeLaughter in the case.

Here is the Judgment of Dismissal.

Here is Judge Yerger's opinion.

Eaton has a market cap. of over $17 billion, is in the S&P 500 and has over 70,000 employees.

 Judge Yerger's opinion states that Eaton in-house counsel were aware of Ed Peters' improper ex parte contacts with Judge DeLaughter. The opinion also refers to evidence that suggests that Eaton's general counsel was aware of the scheme to improperly influence Judge DeLaughter.

Judge Yeger's opinion included the following findings:

• Eaton and its counsel intentionally hid Peters' involvement from defendants despite knowledge that Peters was communicating with DeLaughter about the case.
• Eaton Vice President and Chief Counsel Vic Leo sent an email to other Eaton lawyers including General Counsel Mark McGuire that stated that Peters "intends to speak with Court Administrator and the Judge about the trial date. This may take some finessing."
• The same e-mail stated that Peters forecast that the chances of Eaton winning a particular ruling were 100% [note: nothing is 100% in litigation].
• In another email Leo told McGuire that Peters had taken DeLaughter's temperature on a meeting about the possible recusal of Judge Tom Lee in the Frisby criminal trial.
• Eaton's corporate office and Wisconsin counsel were aware of Peters' improper actions. [Note: by this point in the case I believe that Eaton's Mississippi counsel were former Mississippi Supreme Court Justices Reuben Anderson and Fred Banks. I know they took over the representation at some point. Eaton's lead counsel were in Wisconsin. Anderson and Banks have not been implicated to date in Peters' misconduct. They may have had a ceremonial local counsel role in the case. I believe that Mike Allred represented Eaton when Eaton hired Peters].
• Eaton and its counsel were aware of and sanctioned Peters' clandestine actions.
• Eaton "turned Peters loose" to "play fast and loose" with the judicial system without ever appearing in the case [note: this means that Frisby was unaware that Peters was behind the scenes sinking its case.].
• Eaton's counsel failed to present a plausible explanation for their complacency with Peters' conduct.
• Eaton and its counsel knew of the serious improprieties occurring and stood by with blind eyes.

Judge Yerger determined that in order to protect the integrity of the judicial system it was necessary to dismiss Eaton's case with prejudice. A billion dollar trade secrets case has been dismissed due to successful efforts to improperly influence a judge.

The fallout from Scruggs-gate grows. This is another case where but for Tim Balducci getting caught attempting to bribe Judge Henry Lackey, there would have been a serious miscarriage of justice due to blatant cheating. 

Ed Peters remains the Teflon Man, having received immunity from the DOJ. 

For earlier posts on the case go here.

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As reported by the Clarion-Ledger, the City of Jackson now faces two conflicting rulings by Hinds County judges on the City's waste water contract.

Last week Hinds County Circuit Court Judge Swan Yerger threatened to throw City leaders in jail unless the City complied with an order to award the contract to United Water Services. I discussed Judge Yerger's ruling in this post.

 But on Thursday Hinds County Chancellor Dewayne Thomas issued this order granting a preliminary injunction that orders the City to not terminate its contract with Jackson Water Partnership.  

If the City complies with Judge Thomas' Order, then it will be in violation of Judge Yerger's Order. But if the City complies with Judge Yerger's Order, then it will be in violation of Judge Thomas' Order.

If I'm Jackson City Attorney Pieter Teeuwissen, this would remind me of the scene from the movie Airplane where Lloyd Bridges says: “looks like I picked the wrong week to stop sniffing glue.”

Now comes news that Judge Yerger has ordered attorneys for the City and United Water to appear before him at 1:00 p.m. today.

Should be real interesting.

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On Thursday Hinds County Circuit Judge Swan Yerger threatened to incarcerate Jackson Mayor Harvey Johnson, City Attorney Pieter Teeuwissen and other city leaders over the City's failure to award a waste water contract pursuant to a Court Order issued by Judge Yerger. The Clarion-Ledger reported:

“If the city has failed to comply with this court’s orders …, the court will consider the same to be a willful and deliberate violation of this court and will hold (the city) in civil contempt of court, with the possible penalties of monetary fines and jail time to be assessed against any responsible municipal representatives,” Yerger wrote in the order signed Thursday.

Courtroom observers indicate that Judge Yerger was livid during the hearing and dressed down the City's attorneys for over an hour in what some described as a tantrum.

On Friday the Jackson City Council quickly voted to comply with Judge Yerger's Order:

In a Friday evening meeting, City Council members voted 5-1 in favor of starting the transition from Jackson Water, a partnership of Pennsylvania-based Severn Trent Services and Jackson-based Garrett Enterprises, to New Jersey-based United Water Services.

Hinds County Circuit Court Judge Swan Yerger had threatened to throw city officials in jail unless they acted on his orders to reassign the contract.

I can't really tell from the articles, but it appears that Judge Yerger ordered specific performance in a breach of contract action and that the City failed to comply.

Judge Yerger's actions came just a few weeks after the Mississippi Supreme Court reversed the judge in a case involving the City.

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One week after reversing a $148,000 verdict against the City of Jackson, the Miss. Supreme Court affirmed a $500,000 verdict against the City in a wrongful death case. Here is the Court's opinion in Harris v. City of Jackson.

Like the case last week, this case involved a wreck caused by a Jackson police officer. Hinds County Circuit Court Judge Swan Yerger was the judge in both cases. But that is where the similarities end.

In the case last week, a police officer caused a wreck while responding to an emergency even though she proceeded through a red light slowly with siren and buzzer blaring. This week, the police officer was not responding to an emergency and was speeding through the red light with no siren or lights. Witnesses estimated that the police cruiser was going over 100 mph when it hit the victim's car.

There was an expert report for lost wages of $345,000. The total verdict was $500,000–-the maximum recoverable against a governmental entity.

On appeal, the City argued that it did not waive immunity under the Tort Claims Act because the police officer committed the crime of culpable-negligence manslaughter. The statute does not waive immunity when the employee's conduct constituted a criminal offense.

The Court rejected the argument, finding that the statute excludes “traffic offenses” from the criminal conduct immunity. The actual language of the statute (Miss. Code Ann. 11–46–5) states “traffic violations.”

The Court found that the officer's traffic violations were running a red light and speeding. Since these are traffic violations, the Court reasoned that the City waived immunity.

Justice Lamar wrote the Court's unanimous opinion. Plaintiff's counsel were Chuck Mullins and Merrida Coxwell. Kimberly Banks, Pieter Teeuiwissen and Claire Hawkins represented the City.

My Take:

This decision was a win for the facts of the case. The cop was an idiot and the victim did not deserve to die. Anyone who reads the facts should agree that it's only fair that the City lost. But the Tort Claims Act and general notions of fairness are often inconsistent.

This decision could be viewed as a result oriented decision that could have gone the other way on the law with different facts. The criminal violation that the City relied on was manslaughter—not a traffic violation.

Under the Court's rationale, a governmental entity is liable for any “reckless disregard” conduct as long as it involves a traffic violation in connection with a more serious crime. For example, the City would be liable if a drunk cop shoots his neighbor who he had been feuding with out of a moving cop car, if the car was traveling 20 mph in a 15 mph zone. But if the car was parked or only going 15 mph, the City would not be liable. 

That would be fine with me, since I hate governmental immunity and believe that it creates a system that unfairly stacks the deck against victims. But I'm not sure that this decision was the legislature's intent.   

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On Thursday a unanimous Mississippi Supreme Court reversed a $148,000 bench trial verdict against the City Jackson in a Tort Claims Act case stemming from  traffic accident caused by a police officer responding to a report of a man lying injured on a street. Here is the Court's opinion, which Justice Dickinson authored.

The accident occurred at the five points intersection on Woodrow Wilson Drive in Jackson. The officer entered the intersection with lights, siren and buzzer all on. The officer clipped a vehicle driven by the plaintiff, causing plaintiff's vehicle to roll-over. The plaintiff had the right away and did not see or hear the police car due to an obstructed view and the fact that her radio was turned up.

Hinds County Circuit Court Judge Swan Yerger ruled that the police officer's conduct exhibited reckless disregard for the safety of others and awarded the plaintiff over $148,000 in damages. The Mississippi Court of Appeals affirmed the trial court.

The Supreme Court granted cert. and reversed the Court of Appeals and trial court. The Court noted that the reckless disregard for the safety and well-being of others standard sets an “extremely high bar for plaintiff seeking to recover against a city for a police officer's conduct while engaged in the performance of his or her duties. The City is immune from liability for acts of negligence, and even gross negligence is not enough.”

The Court found that there was no evidence that the officer acted in reckless disregard for the safety of others. As a result, the Court reversed and rendered judgment in favor of the City.

This was a huge win for the City of Jackson and its legal department, headed by City Attorney Pieter Teeuwissen. There have been several verdicts against the City in police pursuit cases in the last few years and the City is appealing all of them. I discussed earlier verdicts here and here.

The other verdicts involved wrecks caused by suspects running from the police in high speed chases. If this case where the officer actually caused the wreck did not meet the reckless disregard standard, it is hard to imagine how the standard is met in cases where the wrecks were caused by criminal suspects running from the police. The City has to feel good about its prospects in the appeals of the other cases. 

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The Clarion-Ledger reports on the Mississippi Supreme Court upholding Hinds County Circuit Judge Swan Yerger's $1,560,642.83 sanction against Eaton Corp. and its attorneys in the Eaton v. Frisby trade secrets case.

The reasons for the sanction are unknown and no one is talking:

Eaton and Frisby's attorneys will not discuss the case publicly.

"The information you asked about is under seal by the court, and we are not in a position to comment," said Gary Klasen, a spokesman for Eaton.

"I won't confirm or deny it," said Alan Perry, an attorney for Frisby.

Although Supreme Court documents are public record, many in this case have been filed under seal.

Actually, just about every substantive pleading has been filed under seal in the case. I believe that Frisby opposes the seal, but that Eaton and Judge Yerger support it. Presumably, the reason for the seal is to keep improper conduct under wraps. The biggest mystery in the case is why Judge Yerger wants to keep the matter confidential. The last time I checked the court file there was no order that explained the court's rationale.  

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In what is becoming a regular occurrence Hinds County Circuit Court Judge Swan Yerger rendered a $375,000 bench verdict against the City of Jackson in a case involving a police pursuit. Here is the Clarion-Ledger article on the verdict. This is the fourth similar verdict in the last year.

The article states:

The latest ruling comes from a lawsuit filed by a former Richland police officer over injuries he suffered in 2004 when a car being chased by Jackson police struck his personal vehicle.

Thornton, 44, alleged he was forced to resign from the Richland Police Department, where he had been a patrol sergeant, because of the injuries, including a fractured vertebra, a broken foot, ankle trauma, a concussion, lacerated facial muscles and other facial lacerations that left extensive scarring of his face and forehead.

 

The court found reckless conduct by the Police:

The court finds, from a preponderance of the evidence, that the proximate cause of the subject accident and the plaintiff's injuries, ... resulted from the aforesaid reckless conduct of the Jackson Police Department officers," Yerger wrote.

The City wants the court to apportion fault to the other two parties involved:

City Attorney Pieter Teeuwissen said his office filed a motion Friday in response, asking Yerger to "follow his statutory obligation and apportion the liability to the two other parties."

Those parties are Robertson and another driver, Keiwana Lewis, who pulled her car in front of Robertson's before he crashed into Thornton.

"It's not fair to place all the liability on the city when evidence shows clearly at least those two parties bear responsibility, if not all of it," Teeuwissen said. "The cause of the accident was the individual who would not yield to the police and Ms. Lewis, who was changing her CD, not paying attention and pulled in front of that individual."

Teeuwissen seems to have a point about apportionment of fault to other individuals.

It will be interesting to see what happens to these cases if and when they reach the appellate court. Is Jackson the only place where police pursuit accidents occur? Why is it always the police department’s fault? I don’t know the answers to these questions. 

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On Saturday Jimmie Gates and the Clarion-Ledger reported on Hinds County Circuit Court Judge Swan Yerger throwing out a racial discrimination suit against the City of Jackson by fireman Ricky Haggard.

According to the article:

Ricky Haggard had alleged he was discriminated against after he was removed from overseeing a federal grant's position in 2006 and replaced by a white male when Todd Chandler was interim fire chief.

In dismissing the case:

Yerger said Haggard had to show the city maintained a widespread, persistent practice of racial discrimination of city officials or employees.

"Acts of alleged discrimination that take place in a three-year period in one city department, all under the tenure of one supervisor hardly shows that there existed a persistent, widespread practice that fairly represents municipal policy," Yerger wrote.

Further, Yerger said even Haggard swears that Chandler was demoted as a result of discriminatory remarks Chandler made in the video. "This goes to show that Chandler's alleged conduct was hardly the expected, accepted practice of city employees," Yerger wrote.

 

Haggard apparently rejected a settlement offer from the City:

[City Attorney Pieter Teeuwissen] said the city offered a settlement, but an agreement was never reached.

My guess is that it was not a big offer. The City has been trying a lot of cases in the last few years, which suggests that it has not been making large settlement offers.

There will be an appeal:

Haggard's attorneys, Louis Watson Jr. and Nick Norris, said Yerger's dismissal will be appealed to the state Supreme Court.

Who knows what will happen on appeal. But since Hinds County judges seem to have a tendency to rule against the City, you would think that the dismissal has a good chance to be affirmed on appeal.  

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Kingfish has the story on Jeff Weill's announcement that he is running for the Hinds County Circuit Court Judge seat that is being vacated by Judge Swan Yerger:

Jackson City Councilman Jeff Weill of Ward 1 announced his candidacy for the Hinds County Circuit Judge position currently held by Swan Yerger. Yerger announced he is retiring from the bench. Weill made the announcement before a gathering in front of the Willie Morris Library on Old Canton Road. Weill is a lawyer and former prosecutor.

Weill has done a good job on the city council and is a viable candidate. Jackson lawyer Ashley Ogden is also expected to run for the seat. Some Jackson lawyers doubt that Ogden will run due to the size and success of his private law practice, which includes former Mississippi Supreme Court Chief Justice Jim Smith.

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The Clarion-Ledger ran this article on Monday about the upcoming elections to fill the seats of retiring Judge Yerger (Hinds County Circuit) and Barnett (Hinds County County). The article was largely a repeat from an October article that quoted Ashley Ogden and Jeff Weill stating that they would probably run for Judge Yerger’s seat. I wrote about and Ogden v. Weill race here.

On the County Court side, Jackson attorneys Trent Walker and Melvin Priester have qualified for Judge Barnett’s seat. Walker is a Brandon native and Jackson State graduate who lives in South Jackson. He has extensive experience on both the plaintiff and defense side in civil litigation as well as in the criminal defense arena. He recently obtained an acquittal in a murder trial in North Mississippi that sounded a little like the trial in My Cousin Vinnie. He currently works for Schwartz and Associates in Jackson.

Priester is a special circuit court judge and practices law in Jackson.

The Ledger article does not identify the date of the election or the deadline for qualifying for the races. I believe—and I am not certain about this—that the qualifying deadline is in May and the non-partisan elections are in November.

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Today's Clarion-Ledger contains this article about Jackson city councilman Jeff Weill considering running for the Circuit Court seat that Judge Yerger will vacate with his retirement at the end of next year. The article states:

"It's definitely on my radar," Weill said. "The current plan is to look hard at this opportunity - it's a once-in-a-decade opportunity - and to make a decision after the first of the year."

So far, Weill said his interest has been limited to a few conversations with supporters. But he said he believes he could make more of an impact from the bench on public safety, a key issue in his recent Ward 1 re-election campaign.

"I think I could do more to protect the citizenry as a judge than as a councilman," said Weill, who was re-elected in June to a four-year term on the council. "One of the things Yerger has done is move the criminal docket forward. That's a problem we have and I would like to continue the work he has done."

I can't argue with anything Weill says here, but as a Jackson resident, I would hate to see him leave the city council. I have been impressed with his demeanor and attention to detail on the council.  

Jackson attorney Ashley Ogden also plans to run for seat:

"I have an interest in Jackson's crime problem being solved and that's why I ran in the [last election]," he said. "I would expect a minimum of six to seven people running for that seat, and I'll be one of them."

Ogden will be a formidable opponent for anyone. He garnered 42% of the vote against Judge Yerger and campaigned very hard. Retired Supreme Court Chief Justice Jim Smith now works for Ogden's law firm and will probably be an asset to an Ogden campaign.

Weill is a republican and is probably the hand-picked choice of the the republican party. He has proved that he can win an election and would be a challenge to Ogden. It would not be surprising to see Judge Yerger retire early so that Governor Barbour can give Weill a head start by appointing him to fill the remainder of Yerger's term.

Republicans might not support Ogden because his law practice focuses on representing injured victims instead of insurance companies and big business. While this does not necessarily mean that Ogden would be a bad judge for big business, his background might scare them. Average citizens will love Ogden's tough on crime message and Weill will look like a copy-cat if he uses a similar theme. It promises to be an interesting race.

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A subpoena has been issued in Eaton v. Frisby commanding Bobby DeLaughter to appear for a deposition on October 2, 2009 at 9:00 a.m. at the offices of Forman Perry in Jackson. The subpoena was issued by Frisby's attorneys. The court file also indicates that Frisby is attempting to serve a subpoena on Ed Peters in South Louisiana. Finally, there is a short Order signed by Judge Yerger stating that the transcript of Peters' deposition is to be sealed. The Court will presumably also seal the transcript of DeLaughter's deposition. 

The sealing of matters in this case that are unrelated to trade secrets at issue in the litigation is questionable. I doubt that Peters' and Delaughter's depositions will have anything to do with trade secrets or the underlying facts in the case. A review of the public court file suggests that the court is sealing just about everything that has to do with Peters/ DeLaughter. Why? Who knows. I cannot find an explanation in the file. I can't say for sure that it's not there, since its a large and disorganized file. But both myself and my assistant reviewed the file and did not find an explanation for Judge Yerger's treating the Peters/ DeLaughter aspect of the case like it's espionage. 

One party in the case files just about everything under seal and has resisted attempts to unseal portions of the file. Guess which party? Yep, the party whose attorney had ex parte contact with the judge.

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NMC and others have criticized the sealing of the court file in Eaton v. Frisby. It appears that it started with an an Agreed Protective Order in 2005 that was designed to protect the confidentiality of trade secrets. That was followed by a Supplemental Protective Order later in 2005 that was also directed at trade secrets. Now most pleadings and orders are filed under seal in the case. I don't have a problem with protecting trade secrets. The problem is that protective orders designed for protecting trade secrets are routinely abused with parties designating all sorts of material as protected that are not trade secrets. A review of the docket in Eaton suggests that the parties are improperly filing documents under seal, but it's hard to say when you do not know what is in the material under the seal.

Here is a copy of a printout of the docket in the case, which lists all filings in the case until this week. This shows that many, if not most, of the pleadings and orders are now being filed under seal. I do not know why Judge Yerger is ordering the sealing of so many orders in the case, but I suspect that it has more to do with DeLaughter than trade secrets. If so, I question the correctness of sealing the orders. As a practical matter, transparency in this case is particularly important and would strengthen the public and bar's confidence in the judiciary. Judge Yerger is also closing the hearings and has reportedly kicked Clarion-Ledger reporter Jimmy Gates out of hearings. A few years ago the Ledger would have been fighting the secrecy in this case, but in today's world of struggling newspapers Gannett probably does not want to spend to money on an attorney.

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The Clarion-Ledger is reporting that Hinds County Circuit Judge Swan Yerger will not run for reelection when his current term expires on December 31, 2010.

Judge Yerger is 74 years old and has served on the bench since 1997. There have been rumors over the last few months that Judge Yerger would retire at the end of this year, which would allow Governor Barbour to appoint a replacement to serve until the next election. Judge Yerger currently presides over the Eaton v. Frisby trade secrets case, which is probably the biggest case currently pending in any Mississippi state court. Perhaps Judge Yerger plans to stay on the bench through 2010 so that  he can preside over the trial of that case.

Speculation will be rampant over who will run for the seat in 2010. The early favorite would have to be successful Jackson plaintiff attorney Ashley Ogden. Ogden ran against Yerger in the last election and almost won. Rumors around town are that Ogden already plans to run for the seat. Ogden is young and energetic and would be a formidable opponent  for any candidate. Republican interests would fear Ogden due to his plaintiff lawyer background. Ogden's firm web site is called Take Back Jackson and suggests that he never stopped campaigning for the seat. Former Mississippi Supreme Court Chief Justice Jim Smith is now associated with Ogden's firm. The conservative Smith's active support in a campaign would be a huge benefit to Ogden's chances.  

There is no doubt that Judge Yerger's retirement and the looming election to replace him will be a huge story in 2010.  

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On Friday the Clarion-Ledger reported that Hinds County Circuit Court Judge Swan Yerger stayed Eaton Corp. v. Frisby Aerospace pending a determination of whether former Eaton lawyer Ed Peters improperly influenced Judge DeLaughter when he had the case. Eaton is the plaintiff and alleges that former Eaton employees stole $1 billion in trade secrets and gave them to Frisby. If there is a bigger case pending in Hinds County I do not know what it is.

Frisby is represented by Jackson attorney Allen Perry. According to the Ledger: 

Perry argued Wednesday that Frisby has been put through "a lot of stuff because of what Peters and DeLaughter did to us."

"We know there was improper communications and he has admitted that fact," Perry said in court. "We have been done wrong and we are asking for justice."

Eaton attorney Reuben Anderson countered that Eaton is the real victim as the victim of the trade secrets theft. 

My initial reaction upon reading the article and Perry's quotes was that Frisby is full of it and the case should not be stayed. Upon further analysis, I changed my mind and agree with Judge Yerger's decision. It is prudent for Judge Yerger to stay the case until more of the Peters-DeLaughter facts are known. But unless more allegations surface that are directly related to this case, Frisby is probably going to have to defend the case on the merits. Otherwise, Judge Yerger probably would have already dismissed the case.