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

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The Clarion-Ledger ran this article on Saturday about Jackson lawyer Wayne Farrell's lawsuit against Arkansas lawyer Tab Turner. The case is a fee dispute among lawyers over the presumed multi-million dollar settlement in the Jasper County Cole v. Ford Motor lawsuit that resulted in a $132 million jury verdict. The case settled shortly after the verdict.

Now the plaintiffs' lawyers are fighting over the attorney's fees:

Jackson lawyer Wayne Ferrell Jr. is suing Arkansas lawyer C. Tab Turner and others in Jasper County Chancery Court, seeking to force Turner to abide by a 2006 attorney-fee sharing agreement.

 The attorneys agreed legal fees and expenses would be split 28 percent for Ferrell, 23 percent for Turner and other attorneys would share the rest. In early 2005, a new contingency fee was worked out with attorneys to receive 50 percent of the total amount awarded to the family. 

Ferrell said in court papers Turner shut out other attorneys from the decision-making process during settlement negotiations.

After a second mistrial in February, Turner requested Ferrell and other attorneys pay about $600,000 in expenses. He said he had incurred more than $832,000 in expenses from the start of his involvement in the case. From the September trial that resulted in the jury verdict, Ferrell said Turner requested payment in advance for expenses incurred for expert witnesses and trial expenses.

But Ferrell said in court papers that Turner hadn't provided any proof by way of invoices from expert witnesses.

"Turner has threatened to pay Ferrell nothing from the fee proceeds even though Ferrell procured the case and even though Ferrell has thousands of hours in the case," Ferrell said in court papers.

This has the potential to be the biggest lawyer fee dispute case since the 1999 Dockins v. Allred decision in which the Mississippi Supreme Court ruled on a fee dispute between Hal Dockins and Mike Allred over the attorney's fees in the Loewen case.

That case resulted in a $500 million dollar verdict in the mid-1990's. Ironically, most people credit Florida attorney Willie Gary for that verdict even though he avoided the fee dispute. Here is a link to a video of Gary re-enacting his closing argument from the Loewen trial. Here is a link to a law review article that examines the controversial Loewen verdict.

I suspect that the Brian Cole settlement deeply discounted the jury's verdict. But even a 90% discount would leave the attorneys fighting over millions of dollars in fees. Lawsuits against and among lawyers are often knife fights. I doubt that this one will be any different.

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The Brian Cole verdict against Ford Motor Co. is on the front page of today's Clarion-Ledger. Here is the article. A Ford spokesperson is quoted in the article as saying that the trial was unfair.

Judge Billy Joe Landrum was the trial judge and he conducted the trial in Laurel with a Paulding jury. The article identifies Tab Turner from Arkansas as the lead plaintiff lawyer. Barry Ford and Bill Jones of Baker Donelson in Jackson defended the case with Ford's national roll-over counsel. I am not a fan of the national defense counsel model in Mississippi, but I'll save that discussion for another day.  

The verdict was $131 million for Cole (who died) and $1.5 for the passenger of the Ford Explorer (Cole's cousin who survived). The two were in a roll-over accident on I-10 in Florida. Yea, I know: what was the trial doing with a Paulding jury? There was a venue hook somehow.

Yesterday after the verdict came down I received  numerous reports on it that placed the verdict range from $130 million to $235 million. A Ridgeland attorney with absolutely no connection to the case or involved law firms was the only person to provide the exact correct breakdown of the verdict.

The case settled before entering the punitive damages phase. Ford is getting second guessed for settling the case, but I don't have a problem with it conceptually. Since I do not know the amount of the settlement, I can only comment in general terms.

First, a punitive verdict in the case could have easily been over $100 million in addition to the compensatory verdict.

Second, this was the third trial. Ford has probably already spent $30-$50 million in defense costs and expenses. The result of a winning appeal would likely be the chance to try the case again, presumably before the same judge and another Paulding jury. Ford's cost for the appeal and re-trying the case would likely be in the $5-$10 million range. 

So if the Plaintiffs discounted the verdict to settle the case,  Ford might have felt that settlement was the best business decision. 

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Last week I reported a hung jury in a Jones County Ford Motor Co. trial. The case was actually tried in the Paulding district of Jasper County. Jones County Circuit Judge Billy Joe Landrum presided over the trial because Judge Robert Evans recused himself from the case.

This was the second trial for this case. The first trial was in 2004 and resulted in a mistrial for one of the two plaintiffs and a hung jury for the other.

The basis for the case was the 2001 Ford Explorer accident that resulted in the death of professional baseball prospect Brian Cole of Meridian. Here is a New York Times article about Cole following the accident. Cole was considered the New York Mets’ third best major league prospect at the time of the accident and played for the club’s double-A minor league affiliate.

In the lawsuit, the plaintiff based Cole’s lost wages on the assumption that Cole would have been a regular all-star in the majors—a questionable assumption based on Cole’s minor league statistics. The plaintiffs asked for $140 million in damages.

The case was originally tried in 2004 for three weeks with Judge Evans presiding. Plaintiff lawyers included Wayne Ferrell, Jim Nobles and Texas lawyers.

For the 2010 re-trial, plaintiffs added Tab Turner to the attorney roster. Both sides had many attorneys in the courtroom. The second trial lasted two weeks and resulted in a hung jury for both of the two plaintiffs.

Barry Ford and other Baker Donelson lawyers were involved in both trials on the defense side. Ford typically also brings in out-of-state lawyers to try cases in Mississippi.

It would not be surprising to see this case tried for a third time. The plaintiffs probably have expenses in the case in the six-figure range, which will make settlement difficult. In addition, Ford is not afraid to try cases in tough jurisdictions like Paulding.