There was a defense verdict this week in a silica trial in Adams County that started on Monday.
Patrick Malouf with Porter & Malouf in Ridgeland and Allen Smith represented the plaintiff.
Wade Manor and Chaney Nichols with Scott Sullivan in Ridgeland represented the defendant.
This is a different trial from the Claiborne County trial going on this week. We may be about to get a lesson in the significance of venue.
The Court of Appeals concluded 2010 with a decision that bothers me. Here is the Court's opinion in Triplett v. River Region Medical Corp.
Facts:
This was a Warren County medical malpractice case against a hospital, doctor and CRNA. River Region got out on summary judgment and the case was tried in May 2008 before Judge Frank Vollor. The case was tried to a defense verdict and the appeal ensued.
One of the issues on appeal was whether the trial court should have ordered a mistrial after defense counsel dropped this bomb in opening statement:
“a doctor from Viginia is the only one, apparently, [that Triplett's heirs] could find in the whole United States to testify against [River Region].”
Plaintiff's counsel objected and the trial court sustained the objection and advised the jury to disregard the statement. The next morning plaintiff's counsel moved for a mistrial and the trial court denied the motion.
Tim Porter, Patrick Malouf and Johnny Givens with Porter and Malouf in Ridgeland represented the plaintiff. Gene Parker and Penny Lawson of Vicksburg represented the defendants.
Court of Appeals Decision:
On appeal a unanimous Court ruled that the motion for mistrial was untimely because under Mississippi law the objection and motion must be made contemporaneously with the improper remarks. That didn't really seem fair to me so I did a little research and have come to the conclusion that the Court of Appeals is getting the law wrong on this.
My Take:
First, defense counsel's statement was way out of bounds. The Court could have at least acknowledged that.
More importantly, the Court's decision does not explain the rationale for the contemporaneous objection rule. But the Mississippi Supreme Court did explain the rule in 1997 in Herrington v. State, 690 So. 2d 1132 (Miss. 1997). There the Court explained that “contemporaneousness is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance.”
Given the rationale for the rule, it would seem that a contemporaneous objection alone should be enough to preserve the issue. Case law from other jurisdictions supports this conclusion.
A New Jersey District Court ruled in Lyles v. Flagship Resort Development Corp., 371 F. Supp. 2d 597 (D. N.J. 2005) that a contemporaneous objection alone is enough to preserve an issue. The Court observed that the law of the Third Circuit is that an objection alone without a motion for mistrial preserves an issue.
In my opinion the Court of Appeals got this wrong. If the reason for the contemporaneous objection rule is that it gives the judge the opportunity to admonish the jury to disregard the improper statement, then the reason for the rule does not apply in this case. There was a contemporaneous objection and the trial court did admonish the jury. If the reason for the rule does not apply, then the rule should not apply. That's basic common sense.
What really bothers me about this decision is that this involved what appeared to be a planned cheap shot. While I agree that a trial court should not grant a mistrial for every improper statement that attorneys make in trial, I believe that trial courts should err on the side of granting a mistrial when the statement appears to be a planned cheap shot. Otherwise, what disincentive do lawyers have for making cheap shots?
There was also an issue in the case whether a juror employed by a law firm who represented the hospital should have been struck for cause. The trial court did not and the Court of Appeals affirmed. I also disagree with these rulings.
Having worked at large law firms, I can say without reservation that staff members—at least the ones with a clue—understand where the firm's bread is buttered. Lawyers and their firms are loyal to their clients—-the law requires it—and a law firm employee should not be on a jury deciding the case of one of the firm's clients.
There was a $5 million verdict on Friday in a Jones County silica trial with 10% fault assigned to the defendant. Here is the Harris Martin article on the verdict:
ELLISVILLE, Miss. –– A Mississippi jury has awarded $5 million to a silica plaintiff, assessing 10 percent liability to American Optical, sources have confirmed to HarrisMartin. McGilberry v. Pangborn Corp., No. 2007-16-CV5 (Miss. Cir. Ct., Jones Cty., Dist. 1.).
The Mississippi First Judicial Circuit Court for Jones County jury reached the verdict on Friday, Aug. 6, sources said. Judge Billy Joe Landrum presided over the one-week trial, which ended after approximately four hours of jury deliberations.
The underlying claims were brought by John McGilberry, who claimed that his work as a jackhammer demolishing concrete exposed him to respirable silica. McGilberry also alleged that he was exposed to silica as a bystander while sandblasting for seven days in the 1970s.
As a result of this exposure, McGilberry claimed that he eventually developed pneumoconiosis.
American Optical, whose 1050 and 1010 disposable respirators were at issue in the case, was the lone remaining defendant at the time of the verdict. The company argued that the plaintiff had failed to properly identify their product; that the exposure history was insufficient to cause silicosis; and that in the plaintiff’s 30-year medical history, he was diagnosed and treated for sarcoidosis but silicosis was never mentioned.
Testifying on behalf of the plaintiff were Steven E. Haber, M.D., pulmonology; Vernon E. Rose, Dr.PH, industrial hygiene; Frank Giles, life care planner; and Charles Dennis, economist.
Testifying on behalf of American Optical were Robert M. Middleton, M.D., pulmonology; David R. Derr, M.D., radiology; Joseph Zdrok, corporate representative; and Dr. David Anderson, industrial hygiene.
Counsel for the plaintiff were R. Allen Smith Jr., Patrick Malouf and John T. Givens of Porter & Malouf in Jackson, Miss.
American Optical was represented by Walter T. Johnson and Michael O. Gwin of Watkins Eager in Jackson, Miss.
Additional Information:
Sources are telling me that $2.5 million of the verdict was for non-economic damages. The defendant wants to reduce the non-economic damages under the cap to $1 million and then apply the 90% reduction due to the defendant being only 10% at fault. This would make the judgment $350,000 instead of $500,000.I do not know if that is the correct way to apply the cap. My guess is that it's not.
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