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

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Jackson Jambalaya has the video of the hearing before Hinds County Circuit Judge Tommie Green over Attorney General Jim Hood's helping get the pardon recipients out of jail attempt to block the release of convicts who Gov. Barbour pardoned. I must confess, I didn't watch it. I've never been much on pre-season games. I view the Circuit Court fight as a pre-season skirmish before the Supreme Court decides the issue. 

Procedurally, this reminds me of when Judge Malcolm Harrison had to decide the case that challenged the personhood initiative. Everyone knew that the case involved constitutional issues that the Supreme Court would have to decide. Everyone except the Supreme Court that is. In hindsight, the Supreme Court deciding to not decide was sheer brilliance. But my point is that whatever Judge Harrison ruled, the Supreme Court would have final say. The same appears to apply to Judge Green's decision regarding the Barbour pardons.

One argument being made to uphold the pardons is that the Governor's decision on pardons are final and not subject to review. Cottonmouth was the first site that I saw raise this issue in this post. Anderson cited a dissent from a 1921 Mississippi Supreme Court case that stated that a Governor's decision regarding whether publication was made is not open to judicial review. So far I'm not getting this argument.

The same Mississippi Constitution provision that creates the Governor's right to pardon requires publication before the issuance of the pardon. I don't see where the Constitution grants to Governor the right to pick and choose which provisions have to be followed. Perhaps the Governor does have that right with respect to pardons. But I want to hear it from the Supreme Court before I'm buying it. Or at least get a better justification than I've read so far.  

Finally, I'm against what I perceive to be knee-jerk reaction to Barbour's pardons that the pardon laws should be changed. Getting past the issue of whether that can be done without an amendment to the Constitution, I'm not in favor of throwing out the baby with the bathwater. There are situations where pardons are appropriate and just. I don't want to take away the power to grant the “good” pardons because people don't like how Gov. Barbour exercised that power. People who don't agree with the pardons should be mad at Gov. Barbour—not the law.   

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There were at least four significant civil trials last week in Mississippi with the plaintiffs winning 3 of 3 that went to verdict. I did not get much information on all but the Amite County verdict. Here is what I know:

1. A $1.2 million verdict in Hinds County Circuit Court against Manhattan Nursing Home. I believe that Manhattan is in the Tara Cares System. Manhattan has a long tradition of being a bad nursing home dating back at least a decade to when it was in the Beverly system. Howard Thigpen of Morgan & Morgan represented the plaintiff. Barry Ford, Davis Frye and Brad Moody of Baker Donelson represented the defendant. Judge Tommie Green presided. This verdict will presumably be reversed due to the caps.
2. A $1.0–plus million verdict in Rankin County in a medical malpractice trial. I believe that the doctor got a defense verdict and the hospital was found liable. I don't know anymore about this verdict.
3.  A $125,000 verdict in Amite County against Farm Bureau Insurance. The case involved a dispute between former agent Alinda White and Farm Bureau based on Farm Bureau implementing sales quotas. Mitch Tyner of the Tyner Law Firm in Jackson represented the plaintiff. Dale Russell and Ellen Robb of Copeland Cook in Ridgeland represented Farm Bureau. Judge Al Johnson presided.

There was also a medical malpractice trial taking place in Pike County last week before Judge Mike Taylor. I do not know whether there has been a verdict.

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A Hinds County jury awarded $1.02 million last week to the victim of a miss-filled Coumadin prescription. Coumadin (Warfarin) is a blood thinner prescribed to prevent blood clots that can lead to injuries such as strokes.

Here is a copy of the Complaint. Margie Kemp was the plaintiff. Kemp alleged that Mississippi Discount of Drugs of Clinton gave her 10 mg. tablets of Coumadin instead of the 2 mg. tablets that her doctor prescribed. Employees of Mississippi Foundation of  Central Mississippi called in the prescription. The plaintiff sued both.

The error caused plaintiff to suffer Warfarin toxicity, coagulopathy, acute blood loss, anemia, intra-abdominal bleeding and a ruptured spleen. Doctors had to remove her spleen as a result of the injury.

The jury found against Miss. Discount Drugs and rendered a defense verdict for Miss. Foundation of Central Miss.

Judge Tommie Green presided in the case.

Walter 'Bubba' Morrison and Robert Greenlee of Sessums, Dallas & Morrison in Ridgeland represented the plaintiff.

Wade Manor of Scott Sullivan in Ridgeland represented Miss. Discount Drugs. Stephen Kruger of Page Kruger in Flowood represented Miss. Foundation of Central Miss.

My Take:

I feel Manor's pain. I once lost a miss-filled prescription case in Hinds County with Judge Green presiding. Hardly a week goes by that John Giddens (the winning lawyer in the trial) does not remind me of the case.

Incidentally, if you want to get a verdict against Kruger, you have to wear a burlap suit to trial.

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That sound that you just heard was the jaws dropping of lawyers all over Mississippi in reaction to the Mississippi Supreme Court's decision in InTown Lessee Associates v. Howard. The Court affirmed a total verdict of $4 million to two plaintiffs were were beaten and robbed at the InTown Suites on I-55 in Northeast Jackson. 

Here are the key phrases from Justice Kitchens' unanimous opinion, which it states repeatedly:

“InTown argues for the first time on appeal……”

and

“InTown did not make a contemporaneous objection [at trial]……”

Translation: InTown had nothing to appeal because the potential appeal issues were not preserved during the trial.

For instance, InTown couldn't really attack the damages amount on appeal because at trial InTown agreed to a verdict form that did not separate economic and non-economic damages. The opinion states:

“InTown did not object to these instructions. Because it did not object to the form of the jury instruction at trial, InTown is procedurally barred from doing so on appeal.”

When I blogged about this verdict in 2009 I stated that there was no defense at trial. Even so, I am a little surprised to see this large of a verdict get affirmed on appeal. But if you think about it, this Supreme Court doesn't have much tolerance for stuff like not preserving objections.  

Judge Tommie Green was the trial judge. Jackson attorney Ashley Ogden represented the plaintiffs. Defense trial counsel were Wade Manor and Andy Clark with the Scott Sullivan law firm in Ridgeland. 

InTown's appellate counsel were Trey Jones and Joseph Sclafani with the Brunini law firm in Jackson. To be fair to those guys, they were not hired until after the trial and were playing a losing hand that had already been dealt. Ogden has a reputation of refusing to discuss settlement after trial, so it's unlikely that there was anything that the Brunini lawyers could do to save this one.

This decision will be good for the business of appellate defense lawyers. The take-away for large corporations and insurance companies is to hire your appellate lawyers before the trial and have them in the courtroom to make sure that all potential appeal issues are preserved. 

Here is Randy Wallace's take on the decision.      

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On Thursday the Mississippi Supreme Court reversed a $2.5 million Hinds County jury verdict against Deviney Construction Company. I reported the verdict two years ago in this post.  Here is the Court's opinion.

Facts:

The plaintiff called two Deviney employees as witnesses early during plaintiff's case in chief. Circuit Judge Tommie Green ruled that the defendants cold not reserve questioning and call the witnesses during defendant's case. Defendants had to question the witnesses then or not question them at all. Defendants could not recall the witnesses to question them about the testimony of the eight plaintiff witnesses that followed.

The Ruling:

A restrained opinion stated that: “a defendant should not be required to present his or her evidence during the plaintiff's case.” The Court ruled that this was a major error and remanded the case for a new trial.

Justice Lamar wrote the unanimous opinion.Wayne Drinkwater with Bradley Arant in Jackson represented Deviney on the appeal.  

My Take:

This was a sensible decision. The trial judge's ruling is a real head scratcher.

I feel bad for the plaintiff and plaintiff's counsel Ashley Ogden. It does not appear from the record that plaintiff's counsel asked for the trial court's ruling. Nothing like getting your verdict reversed over something you didn't ask for.

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The May issue of the Mississippi Jury Verdict Reporter hit newsstands on Tuesday. This edition includes 13 verdicts from 2011.

Seven of the 13 verdicts were defense verdicts. The defense verdicts included two from Hinds County Circuit Court with one tried before Judge Winston Kidd and one before Judge Tommie Green.

Of the six 2011 plaintiff verdicts covered, three were for under $100,000. One plaintiff verdict was the $1.7 million Jones County verdict that I discussed here. Another plaintiff verdict was the $1.1 Gulfport federal court verdict that I discussed here. There was also a $250,000 plaintiff verdict in a Tunica County casino slip-and-fall case.  

Here is my post about last month's issue of MJVR. Every litigator in Mississippi should be reading this publication.

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Karen Irby wants to be re-sentenced because, according to Irby, Judge Green showed bias during the sentencing hearing. In my opinion this is a move that is destined to fail.

First, Judge Green's sentence was less than the maximum and within the range of sentences in other similar cases. That does not seem like an excessive sentence. I have watched a lot of sentencing hearings and the defendants pretty much always have a sad story and good reason for a light sentence. But judges almost always stick to the sentencing guidelines.

Second, even if Irby gets a new sentencing, the most likely outcome of that is another sentence that is consistent with the sentence already given.

I find it odd that Irby's campaign for a light sentence basically started on the date of her sentencing hearing. That was probably too late. I doubt that Judge Green decided the sentence on the bench that day. She had probably been thinking about it since the guilty plea.  

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There has been a lot of commentary in the blog-world on Karen Irby’s lawsuit against Stuart Irby, which blames the accident on Stuart.

Matt at Ipse Blogit lays out the chronology of events leading up to Karen’s sentencing hearing, including:

In Karen Irby's petition (filed March 29), she says that while she was driving the car Stuart Irby began yelling at her and assaulting her.  She then says she sped up and crossed into oncoming traffic, and that she had consumed two glasses of wine, and that her BAC was .09. Oddly enough, she doesn't make a causal nexus between the supposed assault and the bad driving in her plea petition. 

NMC states:

Stating this aloud is not to say that anyone who spoke did anything inappropriate– people were properly playing their respective roles, and none of this demonstrates that Karen Irby is lying.  Or telling the truth, for that matter. What we have here is two pieces of apparent evidence: That Karen says she was assaulted, and that someone speaking on Stuart’s behalf says he doesn’t remember.  We have one factor to weigh:  That Karen and Stuart (or Stuart’s mouthpiece) have good tactical and strategic reasons to say those things.  Perhaps the judge’s conclusion to accept what Karen said is a factor, although a second-hand and therefore weak one.

After thinking about it for a couple of days, I do not have an opinion about what really happened in that car that night on Old Canton Road. There are simply too many variables for me to form an opinion.

It’s pretty clear that the Irbys were in the middle of a domestic dispute. And crazy things can happen during domestic disputes. An example is the death of NFL player Chris Henry when he fell out of the back of a pick-up driven by his fiancee while the two were fighting.

I believe Stuart’s lawyer when he says that Stuart does not remember the accident. I would not expect someone who was in an accident with that kind of impact to remember the accident. I would expect the person to have a traumatic brain injury and amnesia is common (but not always present) when there is a traumatic brain injury. However, I would also not expect Karen to remember either.  

I suspect that Karen Irby believes her account whether its true or not. It’s been my experience as a lawyer and in life that people believe what they want to believe. [NMC seemed to allude to this in his post.] People also rationalize events in their own minds so that that others are to blame for their mistakes or bad outcomes. I believe that we are all wired to do this. I see it in young children and adults alike. Everyone has an excuse for everything. Part of parenting is teaching your kids to not make excuses and accept responsibility for their actions.

People who step up and admit that they made a mistake and take responsibility for it are the exception and not the rule. It takes a lot of maturity and character to do this.

It’s also impossible for me to tell how big of a factor the civil case against the Irbys was or the status of the relationship between the Irbys. These could be no factor, or big factors.

The bottom line for me is that while many things could have happened that night, alcohol was probably the single biggest factor in causing the accident. And that applies whether you believe Karen Irby or not. Judge Green's sentence of 18 years suggests that Judge Green thought the same thing.

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As reported by Kingfish and the Clarion-Ledger, Hinds County Circuit Court Judge Tommie Green sentenced Gulfport native and Jackson resident Karen Irby to 18 years in prison today for vehicular homicide (I am not sure of the exact charge). The sentences run concurrently, meaning that with good behavior she will serve less than 18 years. 

Prosecutors say Karen Irby was speeding and had alcohol in her system above the legal limit when the fiery Feb. 11, 2009, crash occurred, killing Dr. Mark Pogue and Dr. Lisa Dedousis, Pogue's fiancee.

The sentence should surprise no one. From reading about sentences in other vehicular homicide cases over the past few years, it looks like If you kill someone driving while you are impaired you are going to be sentenced to around ten years per death. It doesn't matter who you are.

State courts have applied similar sentences to college students, blue collar workers and now someone from one of the most prominent families in Mississippi. There was no reason to believe that Judge Green would do anything different, and she didn't. 

In the federal court system, Wendell Blount of Calhoun City awaits sentencing after being convicted of running over and killing Dutch cyclist Esther Hageman on the Nathcez Trace in 2009 while impaired on Morphine. Blount faces up to 33 years in prison.

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There is a rumor circulating that Jackson lawyer Ashley Ogden has decided not to run for Hinds County Circuit Court Judge. In an article as recent as two weeks ago, Ogden was quoted as saying that he intended to run for the seat being vacated by the retirement of Judge Swan Yerger:

 Jackson lawyer Ashley Ogden, who ran against Yerger four years ago, told The Clarion-Ledger in January he is preparing another run.

"I have an interest in Jackson's crime problem being solved, and that's why I ran in the first place," he said then.

But now comes word that Ogden will not run, effectively handing the seat to Jackson City Councilman Jeff Weill.

Weill is the only person who has qualified to run for the seat. The qualifying deadline is May 7.

There will be a lot of people disappointed by Ogden’s telling people for four years that he is running and then backing out at the last minute. As of yesterday, Ogden even still had his campaign web site running on the Internet. Some will argue that this kept other candidates out of the race.

Ogden’s decision, however, is not a big surprise to many Jackson lawyers. Ogden’s law firm occupies a large building on Capital Street and has numerous employees, including former Supreme Court Chief Justice Jim Smith. The future job prospects of Ogden’s employees in a down legal market could have weighed on his decision to not run.

As for Weill, I have been impressed with him on the City Council and expect him to be a good judge.

In other Hinds County Circuit Court races, Judges Green and Kidd are not expected to have opponents. Judge Malcolm Harrison, who was recently appointed by Governor Barbour, is expected to be opposed by Bill Gowan.

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On Wednesday the Clarion-Ledger reported a $500,000 verdict against University of Mississippi Medical Center (“UMC”) in a Hinds County Circuit Court bench trial. Judge Tommie Green presided in the case and rendered the verdict.   

The case resulted from the 2005 death of 28–year old Tamika Foster less than 48 hours after the emergency delivery of a baby. The case appeared to focus on UMC’s failure to consult a hematologist despite a low blood platelet count. The article explains:

An autopsy determined Foster died as a result of myocardial ischemia with arrhythmia, secondary to thrombotic thrombocytopenia purpura with a history of HELLP.

Thrombotic thrombocytopenia purpura, a much more deadly illness than HELLP, was never diagnosed prior to Foster's death, Green said

Medical experts have defined TTP as a rare disorder where small blood clots form suddenly throughout the body, leading to a sharp decrease in the number of platelets in the blood stream.

The case was decided in a bench trial because the Mississippi Tort Claims Act requires bench trials in lawsuits against government entities, which includes UMC. The Act also places a hard-cap recovery limit of $500,000 for both economic and non-economic damages. Judge Green set the Plaintiff’s damages at $1.2 million and then reduced the verdict to $500,000 to comply with the Tort Claims Act.

David Dunbar of Jackson represented the Plaintiff. Walter Johnson of Watkins Eager in Jackson represented UMC.

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A Hinds County Circuit Court jury awarded $2.5 million on Friday to David Marble, a thirty-nine year old cable repairman. Here is the Clarion-Ledger story, which is light on the details. The case was tried before Judge Tommie Green. Ashley Ogden represented the plaintiff and Hugh Gillon from Upshaw Williams represented the defendant, Deviney Construction. Plaintiff alleged that Deviney cut a live electrical wire and left without warning anyone about the hazardous condition. Plaintiff later came into contact with the wire, causing severe injuries.  

It's my understanding that the plaintiff suffered a back injury and that there was expert testimony that he was permanently disabled. I'm not sure how an electrical contact causes a back injury.

I believe that this is Ogden's fourth seven figure verdict in Hinds County this year. There was also an announcement in the paper on Sunday that former Chief Justice Jim Smith is now of counsel with Ogden's firm, which is very ironic. I'll post more on this verdict if I obtain additional information about the case.