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

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A Hinds County Circuit Court jury returned a $3.6 million verdict Friday in a premises liability case. Judge Winston Kidd was the trial judge.

The Plaintiffs were Benny Ohazurike, Esther Ohazurike, and Darlington Ohazurike (6 year old son). Plaintiff's counsel were Ashley Ogden and former Chief Justice Jim Smith.

The Defendants were Parham Pointe South (owner), Ballard Realty Company (management company), and K. Wayne Rice & Associates (owner). Defense counsel were: (1)     Jamie Travis with Page Kruger & Holland in Flowood (attorney for Parham Pointe South and K. Wayne Rice & Associates); and (2)  Benny “Mac” May with Dunbar Monroe in Ridgeland (attorney for Ballard Realty and Crystal Bridges-Corcoran).

Case Facts According to Plaintiffs

Plaintiff Benny Ohazurike is a creator and designer of board games.  In 2001 Benny and his wife Esther moved into Parham Apartments on Ridgewood Road.  Plaintiff’s apartment had a leaky roof and developed mold and mildew inside the apartment.  Plaintiffs asked management to fix the maintenance problems inside their apartment, including the leaky roof and the mold and mildew inside their apartment and to clean their carpet.  Management refused to perform any maintenance or repairs on their apartment. 

 In mid 2007 a pipe in the Plaintiffs’ bathroom began to leak.  For at least 6 weeks Benny begged the manager and the maintenance staff to fix the leak.  They told Benny they would fix the leak and never did.  In May 2007 Benny and Esther went to the grocery store.  When the family came back to their apartment they discovered the leaking pipe in the bathroom had burst and flooded the majority of the apartment.  Benny had been keeping blueprints for his board games on the floor in the apartment bedroom while he worked on them.  Benny also had blueprints and partial game designs stored in the closet.  The flooding from the burst pipe destroying 19 of Benny’s game designs and blueprints.

 Management did not stop the water spewing from the pipe until several hours after it was discovered and reported by the Plaintiff.  After the flood, management continuously refused to replace the carpet in the apartment, make any other repairs or move the family into a vacant apartment.  Because of the flood the carpet began to mildew and mold spread throughout the apartment.  Plaintiff’s 3 year old son, Darlington, developed a skin condition and a cough.  Benny and Esther also developed coughs and became ill from the mold.  Darlington’s skin is permanently dotted and scarred as a result of the skin condition he developed.  Plaintiffs sued Defendants alleging failure to provide maintenance and repairs both before and after the flood, their failure to clean the mold in their apartment, and failure to replace the mildewed carpet which caused their Plaintiffs’ illnesses.

 At trial several former employees of Parham testified that management and the owners intentionally ignored the Plaintiff’s requests for repairs and maintenance and threw away his maintenance requests.   The employees testified that Benny annoyed management because he asked for repairs and because he acted as an informal security guard and maintenance man and would constantly complain about the lack of maintenance on the property, the crime on the property, and employees not doing their jobs. 

There was testimony that management denied maintenance to the Plaintiffs in order to force them out and rent the apartment for a higher price.  There was testimony that certain members of management and maintenance would randomly turn off the air conditioner to the Plaintiffs’ apartment to force them to move.  One employee, a housekeeper, testified that management forced her to sign false criminal affidavits against Benny alleging that he had threatened her with a gun.  The employee testified that when she refused to go to court and pursue the false charges, management fired her.

The defendants’ witnesses who were all former managers and regional supervisors testified that the plaintiffs were several months behind on rent and that no flood occurred. The defendants testified that just because the rent was late they could not deny maintenance service to tenants. The defense argued that the value of the plaintiffs’ injuries was zero and that the plaintiffs’ damaged games had no value. The plaintiff countered by showing a pattern at the property of no one being able to determine who owed rent because of the problems with managers taking cash and money orders and not applying the rent to the correct tenants. The plaintiff also showed that while he had fallen behind on rent in the past he had always paid up making his rent current and paid.

The Verdict

The jury awarded the Plaintiffs the following amounts:

Benny -  $2,502,208.00, Ester- $500,253.00,  Darlington - $601,251.00.

The total amount awarded to the Plaintiffs was $3,603,712.00.

My Take

The damages verdict sounds really high for those injuries. It will be interesting to see what happens if the case goes up on appeal.

This is Ashley Ogden's sixth seven figure verdict reported on this blog in a little over a year. That is impressive by any measure and places Ogden at the top of the heap of Mississippi plaintiff lawyers. That stature tends to make people a target and it will be interesting to see how Ogden handles the attention.

This verdict will lead to more chatter that I have been hearing as Ogden compiled these verdicts. First, some Jackson lawyers believe that the senior litigation partners at many Jackson defense firms are afraid to try a case against Ogden in Hinds County. Their argument is that senior partners step in and try cases that they think that they will win, but let the lawyers who worked up the case try it when they think they will lose.  This is not my theory—but I've heard it several times. 

Second, this verdict will lead to more talk around town about the irony of Chief Justice Smith working for Ogden. The perception among lawyers on both sides was that the Supreme Court would not affirm a plaintiff's verdict when Smith was the Chief Justice. The fact that Smith went into a plaintiff practice after losing his election to Justice Kitchens is ironic. But it also suggests that the man who led the Court did not share the view that plaintiffs could not get—and keep—a verdict in Mississippi. It will be interesting to see what happens when the Supreme Court rules on the appeals of these cases that Smith worked on with Ogden. 

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More information is emerging about the $3 million jury verdict rendered in federal court in Jackson on Friday.

On August 26, 2006 the Plaintiff Megan Durr was a Target employee working in the Target store on I-55 and Countyline Road in Jackson. MBS Construction was an independent contractor doing remodeling in the store for Target. MBS was deconstructing a 14 foot wall and pulled the bolts out on one side causing the wall to fall on Megan Durr and another employee who were working for Target on the other side of the wall. MBS provided no notice of its actions, no warning to the plaintiff and did not mark off the work area to limit access to non-construction persons.

The plaintiff suffered lower and mid back pains and had a double fusion at L4-5 and L5-S1 in December 2009. Her total medicals were about $174,000.00. She claimed lost wages, future medical damages, and pain and suffering. She did not seek punitives.

The defendant claimed the plaintiff had pre-existing degenerative disc disease. The Plaintiff had an almost two year period in 2005 to 2006 where she was either pain free or did not see a doctor for back pain. The defendant also raised the issue that her first two neurosurgeons in 2004 and 2005 recommended against a surgery because the plaintiff claimed to show improvement with medication and physical therapy.

Target joined the suit to recover its workers compensation lien. At trial, Target was not represented by counsel and the plaintiff represented Target's claims. The judge allowed the defendant to allege Target also had a duty to protect its employee and provide a safe work environment even though the defendant did not put on evidence of Target's duty, breach or causation. The evidence presented showed that MBS had an indemnity agreement with Target and still would be liable for any apportionment against Target.

The jury found $2.5 million for pain and suffering and disability, $350,000.00 for hospitalization and medical and nursing care, $100,000.00 for lost wages- Totaling $2,950,000.00.

Ashley Ogden tried the case for plaintiff, assisted by Jim Smith and Wendy Yuan of Ogden and Associates, PLLC.

Greg Spyridon of Spyridon, Palermo, and Dornan, LLC represented the defendant, assisted by John Herke of the same firm and John Corlew of Jackson.

The $2.5 million for pain and suffering will probably be reduced to $1 million due to Mississippi's cap on non-economic damages. Of course, the constitutionality of the cap is currently before the Mississippi Supreme Court.

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There are reports of Ashley Ogden obtaining another large verdict in a premises case, this one in federal court in Jackson. Here is the Complaint in Durr v. MBS Construction.

The Plaintiff was shopping at the Target Store in Jackson in 2004 when a wall fell on her, causing severe injuries. MBS was performing construction work in the store. Target intervened in the case. I am not sure who the verdict was against, since the verdict has not yet been posted on Pacer. I believe that the filing part of Pacer is down for the weekend, so it will probably be filed Monday. There is also no Pre-Trial Order on Pacer, so information about the parties and issues at trial is scarce.

The Plaintiff had a back injury that required surgery and had approximately $180,000 in medicals.

Former Chief Justice Jim Smith and Wendy Yaun [correction: Yuan] tried the case with Ogden. Defense counsel were Greg Spyridon and other attorneys from his New Orleans firm and John Corlew of Jackson. Corlew filed his entry of appearance three days before trial, which I am sure limited his ability to have a meaningful influence on the outcome.

Judge Tom Lee was the trial judge.

I hope to have more on this verdict next week.

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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 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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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.