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

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There was a lot of speculation in the comments to my Doomsday Post last week that the Republican controlled government in Mississippi will push for the Legislature to enact “loser pays” laws similar to what Texas recently enacted. Here is a link to an article in Inside Counsel Magazine that discusses the Texas “loser pays” law.

The article states:

The most significant feature of the 2011 Omnibus Tort Reform Bill is a modified loser-pays proposition that shifts fees to the loser when a case is disposed of on a motion to dismiss. While Perry has publicly touted the law as a landmark reform that will attract businesses to the state and allow employers “to spend less time in court and more time creating jobs,” the statute may prove to be a mixed blessing, and it certainly won’t deliver a deathblow to the plaintiffs bar.

I did not know that before this law, Texas did not have provisions that allow defendants to file a motion to dismiss that challenges the legal sufficiency of the allegations in the complaint:

Prior to passage of the latest tort reform bill, Texas was one of only eight states that didn’t permit parties to file motions to dismiss, which challenge the legal sufficiency of the allegations in the complaint. Not only does the new law create a motion-to-dismiss procedure, but it also makes it mandatory that the loser pays the winner’s fees for litigation of the motion. This has two advantages for businesses—courts can quickly dispose of meritless lawsuits prior to costly discovery, and a company can force the plaintiff who filed the case to foot the bill for the motion.

But the Texas “loser pays” provision goes both ways:

The flip side is that the loser-pays provision goes both ways. If a defendant files a motion to dismiss on which the plaintiff ultimately prevails, the defendant will be paying plaintiffs counsel’s bills. Many think the provision ultimately favors the plaintiffs bar.

The Texas provision also affects offers of judgment:

Finally, the reform attempts to encourage both sides of a dispute to settle cases before trial by clarifying the rules for making an offer of judgment. Similar to Federal Rule of Civil Procedure 68, the Texas law permits a party to protect itself from incurring additional legal fees early on by making a reasonable settlement offer or demand.

Under the new rule, if a plaintiff obtains a jury verdict of 80 percent or less of the settlement offer made by the defendant prior to trial, the defendant is entitled to its legal fees incurred after the date of the settlement offer, up to the total amount of the verdict. Likewise, if the plaintiff obtains a verdict of 120 percent or more than his settlement demand, the plaintiff is entitled to recover fees incurred after the demand was made. The statute also permits the prevailing party to recover costs associated with taking depositions, such as court reporter fees.

My Take:

I haven't formed an opinion yet on the offer of judgment aspect of the Texas rule. But how in the name of God's green earth could a state not have a rule that allowed a defendant to file a motion to dismiss? That's about as screwed up feature of litigation as I have ever heard. An early motion to dismiss allows a defendant to obtain dismissal in a case that does not state a viable claim. You've got to have that rule in the books.

In my opinion, this provision in the Texas form of “loser pays” would not hurt good plaintiff lawyers and their clients, so long as it does not change the legal standards for deciding a motion to dismiss. That standard is that the court must assume that all allegations in the complaint are true. Good plaintiff lawyers will hardly ever—if ever—lose a motion to dismiss with that standard.   

If I am on the defense side of a case, I do not want this law on the books. If I am defending a case I want to be able to file a motion to dismiss without having to pay attorney's fees to the plaintiff lawyer if I lose.

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I missed it. The Supreme Court issued an Order last week in the Sears v. Learmonth case where the Court is to decide whether Mississippi's cap on non-economic damages is constitutional. Here is the Court's September 15, 2011 Order.

The Order states that the Court is hung up on the fact that the verdict form did not separate economic and non-economic damages. The parties stipulated that the amount of non-economic damages was $2,218,905. The Order asks the parties to address:

 "what fact(s) and/or legal authority exist for this Court to accept a stipulation regarding the amount of noneconomic damages found by the jury?"

Here is the final judgement in the District Court. It does not separate the damages.

This case came to the Court via certification on the caps issue from the 5th Circuit Court of Appeals.

Justice Michael Randolph issued the Court's Order.

My Take:

Sears' reply brief is due November 28, 2011; several weeks after the November elections. Coincidence? Maybe. Maybe not.

But cynics should keep in mind that this is not the first time that the Court has focused on this specific issue. The Court mentioned that economic and non-economic damages should be separated on the verdict form in the InTown Suites decision that I wrote about in June here. In that case, the Court ruled that the defendant could not challenge the amount of non-economic damages on appeal because the verdict form did not separate economic and non-economic damages.

In this case, the record does not contain a verdict form that separates economic and non-economic damages. Under the InTown Suites case, the verdict should be affirmed without reaching the caps question. Except the parties stipulated the amount of damages that were economic and non-economic. That was a bad stipulation for somebody. I can't decide who.

 The Court's request for more briefing on the stipulation makes sense based on the InTown Suites decision. This is all very interesting.

It would be funny if the Court answers the 5th Circuit's certification question by stating that the Court finds that under Mississippi law, the amount of non-economic damages can't be challenged when the verdict form does not separate economic and non-economic damages. Instead of answering the 5th Circuits question, the Court would answer its own question. Possible? Maybe.  

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Mississippians will go to the polls in November to decide State House of Representative races. The results of those races will determine whether the House will be majority Democrat, with a Democratic speaker, or majority Republican with a Republican speaker. The election will likely have a profound affect on the future of the legal profession in Mississippi.

Today's Wall Street Journal reports:

The Republican Party has launched a major push to capture the Mississippi House of Representatives this fall, a goal that has eluded it since Reconstruction and that would remove nearly every vestige of Democratic control from the state's government.

Election 2011

Mississippi enacted tort reform in 2004 that placed a $1 million cap on non-economic damages. The State previously capped ($500,000) non-economic damages in medical malpractice cases—and the statute defines medical malpractice broadly.

It's my understanding that since 2004, Republican legislators have continued to propose bills to further restrict individuals' access to justice in the court system. Specific examples that I've heard were proposals to:

• reduce the non-economic damages cap to $250,000 in all cases;
• eliminate a private right of action for bad faith denial of an insurance claim; [can you imagine what would happen after the next hurricane if this passed?];
• eliminate the right to sue pharmaceutical companies for defective drugs if the FDA approved the drug; and
• basically eliminating the right to sue for injuries caused by defective products [you couldn't with a $250,000 cap anyway].

There are political observers in Mississippi who believe that if Republicans gain control of the House, then the legislature will enact some or all of these measures.

What More Tort Reform Would Mean for Lawyers

What would that mean for the legal profession in Mississippi? Think about it.

With a $250,000 non-economic damages cap, there would be few cases that justified spending $50,000–100,000 in expenses getting a case to trial. Those cases are cases with huge economic damages due to something like paralysis or a plaintiff who earned a lot of money who can make a big lost wages claim. But only a very small percentage of the population earns enough to make a large lost wages claim.

Therefore, a $250,000 cap would eliminate personal injury cases that require expert witnesses. If you don't believe me, look at what has happened in nursing home litigation. The nursing home corporate shell game combined with $250,000 claims eroding insurance policies has virtually killed nursing home litigation in Mississippi. Wilkes and McHugh left the state. So did defense firms that specialized in nursing home defense. Nursing home litigation used to be the majority of my practice. I have not filed a case in several years.

Because of the costs of expert witnesses, personal injury cases other than fender-bender cases would largely go away.

Plaintiff lawyers who made money during the litigation boom would likely retire. Other plaintiff lawyers would attempt to convert their practices to general practices that primarily handled criminal and domestic work. That would not be a panacea, however, because the competition for those cases would be fierce.

Many defense lawyers would lose their jobs and many defense firms would go away. I'm not naming any names, but many of the medium-sized litigation firms would cease to exist. Firms with 40–50 litigators would see that number reduced in half at least, unless most of their cases are outside the State of Mississippi.

A lot of lawyers would retire. A lot of lawyers would leave the state or take in-house jobs paying a fraction of what they now earn. Many legal assistants, secretaries, court reporters and other legal industry support staff would lose their jobs.

There would be negative repercussions in the local economy of Jackson, where the legal industry ranks behind only the government and medical industries as far as jobs. Owners of office space such as Parkway Properties would suffer due to the declining demand for office space. Private schools in the Jackson area would lose students. Country clubs, bars and restaurants frequented by lawyers would take a big hit.

Lawyers Are Ignoring The Risk 

It's interesting that hardly anyone is talking about this in the legal profession. You would think that lawyers would be scared to death. Instead, most are blissfully ignorant that they could be out of a job in two years.

In particular, big firm lawyers not at the top of the firm's compensation pyramid ignore the danger to the future of their careers. These are the lawyers who either ignored tort reform or outright supported it. They were actually surprised when the combination of tort reform and the end of mass joinder led to some of their friends getting laid off.

You would think these folks would look at how many fewer defense lawyers there are in 2011 compared to 2001 and the current purge at Watkins Ludlam/ Jones Walker and see that things could go bad for them. Instead, they wrongly view their jobs as tenured or civil servant type positions.

Why do people ignore danger like this? I think it's human nature. Only Noah built an ark.

But not everyone is ignoring the signs of danger. Some lawyers are building their ark. There are plaintiff lawyers who are making contingency plans for advertising campaigns for domestic work. There are defense lawyers who are taking bar examinations in other states and trying to get a foothold in those states.

I have not finalized my contingency plan for what I will do if we get more tort reform. But I am thinking about it. My current practice probably will not be viable if we get more stringent tort reform. Much as it would pain me to have to go back to work for someone else, I might have to. But in another state.    

In my opinion, the Mississippi Supreme Court is on the brink of upholding Mississippi's cap on non-economic damages. I am on the record as stating that the caps have not had the impact that big business propaganda outlets give them.  But once the Court upholds the current caps, how could it reject lower caps? Or any other legislative measures to limit access to justice? It probably can't.

Which means that the future of the legal profession hangs in the balance of the November legislative races. And hardly any lawyers know it.   

 Democrats now enjoy a 13-seat advantage in the 122-member Mississippi House, while the Senate and six of seven other statewide offices are under Republican control. Attorney General Jim Hood is the only Democrat to hold statewide office.

The state GOP has brought in a new party boss: 25-year-old campaign strategist Tim Saler, who most recently headed up Republicans' successful campaign to capture the legislature in North Carolina.

Republicans need a net gain of eight seats to take control of the House and are targeting 21 Democrats they believe are vulnerable. Mr. Saler, who is the state GOP's executive director, said his party plans to spend more than $1 million supporting its candidates, deploying sophisticated polling and consumer data to get out the vote, as well as advertising and other help. "In some respects, we are bringing a gun to a knife fight," he said. 

Democrats now enjoy a 13-seat advantage in the 122-member Mississippi House, while the Senate and six of seven other statewide offices are under Republican control. Attorney General Jim Hood is the only Democrat to hold statewide office.

Republicans need a net gain of eight seats to take control of the House and are targeting 21 Democrats they believe are vulnerable. Mr. Saler, who is the state GOP's executive director, said his party plans to spend more than $1 million supporting its candidates, deploying sophisticated polling and consumer data to get out the vote, as well as advertising and other help. "In some respects, we are bringing a gun to a knife fight," he said.

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On Monday night at 8:00 p.m., the documentary Hot Coffee airs on HBO. You can watch the official trailer for the movie below. The film analyzes tort reform in the U.S.

In addition to the famed McDonald's spilled-coffee verdict, the movie covers Mississippi Supreme Court elections and the prosecution of former Mississippi Supreme Court Justice Oliver Diaz. John Grisham, Justice Diaz and Jackson lawyer Rob McDuff are all shown in the trailer.

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On Wednesday the West Virginia Supreme Court upheld West Virginia's legislative damages caps. Here is the opinion in MacDonald v. City Hospital, Inc. One of the plaintiff's lawyers in the case was Robert Peck, who argued for the plaintiff last week in the Sears v. Learmonth case at the Mississippi Supreme Court.

This is not good news for people hoping that the Mississippi Supreme Court will strike Mississippi's caps in the Sears case.

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I attended the oral argument in Sears v. Learmonth yesterday at the Mississippi Supreme Court. I counted approximately 50 people in attendance—mostly plaintiff lawyers. Given the importance of the decision, I thought that every firm in Jackson hosting summer clerks would be there with their clerks. Perhaps they did not want it to look like they support caps.

The argument lasted 90 minutes. Lawyers for both sides did a good job. Kevin Hamilton of Meridian and Robert Peck of Washington argued for the plaintiff with Peck getting the most time. Frank Citera from Chicago argued for the defense.

Justice Dickinson was the most active Justice in questioning the lawyers. By my count he interrupted lawyers from both sides 6–7 times to ask a question. His key question to plaintiff was: why is this different from tort claims or workers comp where the legislature has removed something from the jury?

A key question by Justice Dickinson to the defense was: doesn't the constitutional right to trial by jury mean more than the form of the trial?

Other justices and my ballpark count of their number of interruptions with questions (some interruptions involved a series of questions):

• Waller: 6 (3 each side)
•  Carlson:  2 (1 plaintiff, 2 defense)
• Randolph: 3 (all plaintiff)
• Pierce: 3 (2 plaintiff, 1 defense)
• Chandler: 3 (1 plaintiff, 2 defense)
• Lamar: 1 (plaintiff)
• Kitchens: 2 (defense)
• King: 0.

My guess is that Justice Dickinson is the justice who most enjoys oral argument.

 Justice Randolph cited statistics that of the states that have considered caps, 18 found them constitutional and 4 unconstitutional (Alabama, Oregon, Georgia and Washington).

Justice Chandler challenged defense counsel to cite something that found that there was a society benefit from the caps. Defense counsel couldn't.

Justice Carlson asked defense counsel if he could name a single case where the non-economic damages were too high and the trial court, court of appeals and supreme court all refused to lower the damages. Citera couldn't name one, and fell back into the practice of vague references to large verdicts in the jackpot justice days that were settled post-trial or reversed on appeal: Uh.....asbestos.......uh.......silica. Yea, Yea, silica. I remember hearing about a lot of silica nonsense.

Citera stated that he believed that in enacting the caps, the legislature responded to a perceived problem. I agree. But the perceived problem (jury verdicts too high) was not the real problem (venue and joinder problems as discussed here). Stated simply, the policy argument for caps is that we need them because some businesses think they need them—not because they really need them.

Great. We're stuck with tort reform because its proponents have brain washed a segment of society.

It's a night-light rationale. We don't leave the hall light on because our young kids really need it on. We leave it on because they think they need it on and it's not worth fighting them over.

I've given a lot of thought to whether I would make a prediction based on what I saw. I've decided that I will, but without identifying what I thought tipped the Court's hand. I will write it down and may discuss it after the Court issues an opinion.

My Prediction:

The caps stand.

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The oral argument in Sears v. Learmonth is scheduled for tomorrow at 10:00 a.m. in the en banc courtroom at the Mississippi Supreme Court. This is the case where the 5th Circuit Court of Appeals certified the issue of whether Mississippi's non-economic caps is constitutional.

Each side is allocated forty-five minutes to argue. Should be interesting.

In the last few weeks, I've talked to people who believe that the Court will uphold the caps and people who believe that the Court will strike the caps. Both can make logical arguments.  Personally, I have no idea what the Court will do.

It's even conceivable that the case could settle before the Court issues an opinion. The verdict was for $2.2 million in non-economic damages. The parties could emerge from the oral argument and decide that there is a point between $1 million and $2.2 million where they can agree to settle. 

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A definition of 'propaganda' is “information, especially of a biased or misleading nature, used to promote or publicize a particular cause or point of view.” Last week's Madison County Journal's editorial supporting tort reform damages caps meets this definition. 

Here are some of the gems from the editorial followed by my explanations:

Since tort reform, medical liability insurance premiums have decreased more than 60 percent.

Since tort reform, there has also been a severe recession with record unemployment that was caused by some of the business interests who campaigned for tort reform. But we gave those companies a taxpayer funded bailout and let them return to business as usual.

Also, medical liability insurance premiums decreasing by 60% wasn't caused by damages caps. It was caused by the Mississippi Supreme Court's eliminating Mississippi's mass-joinder law that allowed thousands of plaintiffs to be joined in a single suit.

By removing the incentive of extreme verdicts with exorbitant attorney's fees, Mississippi no longer attracts thousands of out-of-state plaintiffs clogging our judicial system.

Once again, the paper is crediting tort reform for something caused by the Supreme Court's elimination of mass-joinder.

Incidentally, I have never once seen an actual lawyer quoted as saying that caps are responsible for eliminating out-of-state plaintiffs as opposed to rulings by the Miss. Supreme Court. So where is the Journal getting its information? Haley Barbour press releases?

 And when we wonder why all too often the judiciary did not throw out frivolous lawsuits and sanction attorneys for filing them, we simply think back to the words of Dickie Scruggs when he said "the judiciary is elected with verdict money."

The reference to Scruggs doesn't really fit the editorial. But Scruggs was a plaintiff lawyer who went to jail, so they needed to work him into the piece.

Mississippi can't afford a return to "jackpot justice."

How exactly would throwing out the caps return Mississippi to the jackpot justice days? They don't say. They just trust that ole Haley wouldn't steer them in the wrong direction on this.

The fact of the matter is that lifting the caps would not return Mississippi to the jackpot justice days. Those problems were caused by the mass-joinder law, venue law that no longer applies, Mississippi law that required defendants to post a bond of 125% of a judgment in order to appeal and less than 5 state trial court judges who were not doing their jobs. None of these problems exist anymore and none were affected by caps.

How do I know I'm right on this? First, have you ever noticed that none of these pro-tort reform articles ever quote a lawyer or legal expert such as a law school professor? Not even defense lawyers who campaigned for tort reform. Ever wondered why? Go back to the definition of propaganda and think about it. 

Second, since med-mal caps were passed in 2002 and non-economic caps in other cases were passed in 2004 there has not been a single case where the Mississippi Supreme Court had to rule on the constitutionality of the caps. That tells you how few and far between are cases where the caps actually apply.

Tort reform proponents ignore the fact that both the trial court and the appellate court can reduce damages awards that are out of line based on the facts of the case. In the last seven years the Mississippi Supreme Court has reversed most plaintiff verdicts, regardless of the verdict's size. The Court has affirmed some plaintiff verdicts since Alex Alston wrote his article a few years ago pointing out this fact. But plenty of verdicts are still being reversed.

I don't know what the Supreme Court will do with the caps issue. But I do know that there are smart justices on the Court. I'm sure they know that tort reform honks are taking the credit for eliminating jackpot justice that should go to the Court. So whoever the pro-tort reformers are trying to fool, it's not fooling the nine justices who will actually decide the issue.  

Here are my prior posts on tort reform.

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Gannett ran the same article on Mississippi jury verdicts in two newspapers on Sunday. The headline of the article in the Hattiesburg American was “Jury Awards Running Rampant.” Meanwhile, the headline for the same article in the Clarion-Ledger was “Jackpot awards still occur.”

The actual article opens with a softer tone:

Large verdicts still are being won here and there in Mississippi nearly 10 years after the state passed legislation capping damages jurors can award in civil cases.

I guess that is sort of true. Highly misleading. But sort of true. The key words being “here and there” with an asterisk to denote that jury verdicts don't reflect actual recoveries, if any.

The article cites a grand total of two cases. First, the Cole v. Ford Motor Co. verdict that I discussed a lot on this blog. The case involved the death of professional baseball player Brian Cole. The general manager for the New York Mets testified at trial that Cole was going to play in the majors. There was a $131 million verdict in the third trial and the case settled. A comment to one of my posts cites a rumor that the case settled for $12 million. Far south of $131 million and a reasonable figure for a pro baseball player.

Second, the $322 million Smith County asbestos drilling mud verdict that I discussed here and here. The article quotes Raleigh lawyer Gene Tullos, who represented the plaintiffs at trial. I have heard that the plaintiffs asked for far less in damages than was actually awarded. The verdict is being chalked up to the Gene Tullos Smith County phenomenon.   

The article goes on to state that the defendant does not expect the verdict to stand on appeal:

Union Carbide has confidence in the Mississippi appellate courts and believes - without hesitation - That this verdict will be completely set aside by post-trial motions or through the appellate process," company spokesman Scot Wheeler said.

"While the case lacks any merit, by just applying the applicable damage limitations, the total award against Union Carbide should be reduced to substantially less than $1 million."

Union Carbide's confidence is well placed. The chances of that verdict getting affirmed on appeal are less than zero.  

As I have discussed previously, plaintiffs are getting crushed in trials in Mississippi. Jury awards are not “running rampant” and any verdicts that are out of line get reversed by the Mississippi Supreme Court. The fact of the matter is that anyone who gets a verdict out of a Mississippi jury and then gets that verdict paid or affirmed on appeal has earned it and deserves it.

The thing that bothers me about this newspaper article is that it sends a message that is wrong. Perhaps intentionally. Perhaps not. Lawyers and judges know that juries are not running rampant, but the general public doesn't.  

The article misses the real story. Why is there a $322 million verdict coming out of Smith County, which looks ultra-conservative on paper? Why are there so many large verdicts coming out of Judge Billy Joe Landrum's courtroom? Those are interesting questions that would make for a good story. But the Gannett article misses those questions on its way to a shallow article with misleading hysteric headlines.  

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There are at least two cases currently before the Mississippi Supreme Court that challenge the constitutionality of Mississippi's damages caps. Oral argument has not been scheduled in either case.

The first appeal is the APAC v. Bryant case from this 2009 DeSoto County verdict in the amount of $30 million to a teenager who spent eight months in a coma and suffered a severe traumatic brain injury following a collision with a gravel truck. The truck driver pleaded guilty to manslaughter and aggravated assault. A review of the docket suggests that briefing is not complete. The appellees filed their brief on February 25, 2011. The appellant has not filed a reply. The case has not been submitted for a decision and will not be until the case is fully briefed.

The second case is the Learmonth v. Sears case reported here. This is the case where the 5^th  Circuit Court of Appeals certified the issue of the constitutionality of the caps to the Miss. Supreme Court. Here is the Court's docket in the case, which shows that briefing has not even started. 

Procedurally, the APAC case is months ahead of the Sears case. But the APAC case probably involves more issues on appeal that just the caps. The Sears case has one issue before the Court: the constitutionality of the caps. 

At this point, the question is when will oral argument be and when will the Court issue decisions? The short answer is no time soon. It's likely that the earliest that the Court will schedule oral argument in the cases is sometime this summer. That would likely mean a decision in the fall.   

Here is the Court's docket calendar for March through April. I only see two oral arguments on it. One of those has a record of only two volumes, so that case has not been tried yet. The second argument is on April 19, 2011 in the Sherwin-Williams lead paint trial in Jefferson County. I talked about that verdict here, here and here. 

Update, 3-8-11, 1:30 p.m.: A reader alerted me to the fact that in the Learmonth v. Sears case, briefing is actually complete because the briefs came from the 5th Circuit and there will be no further briefing other than the amicus briefs.

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The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.  

Case Background

The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.

The Court Focused on Liability Issues

The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.

It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.

Justices Were Skeptical of Legislative Caps Arguments

On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.

Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.

Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.

In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.

Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.

One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.   

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Run-of-the-Mill Justice is the title of an article by Stanford Law professor Nora Freeman Engstrom published in a recent issue of the Georgetown Journal of Legal Ethics. Here is the article. The Article claims to represent the first ever careful study of settlement mill law firms. The article defines “settlement mills” as:

 “high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial.”

The basis for the article included documentary evidence and fifty interviews with forty-nine current or former settlement mill attorneys or employees. The article is a must read for anyone in private practice or interested in the practice of law.

Some of the points that I found most interesting were:

• conventional plaintiff’s firms expand significant resources screening cases and almost universally decline more cases than they accept
• settlement mills usually sign a case if there is insurance involved
• clients served by settlement mills are comparatively uneducated and underprivileged and disproportionately belong to historically disadvantaged ethnic and racial minority groups
• for most lawyers, a good reputation is the cornerstone of financial success
• contingency fees have an advantage over other legal payment schemes because they (imperfectly) align the client and attorney’s financial interests
• settlement mills settle cases with only a few hours of employee time and almost no attorney time
• the “grim outlook” for plaintiffs at trial counsels in favor of settlement of cases
• when adjusted for inflation, the median jury trial tort award decreased 56.3% between 1992 and 2001 [WOW!]
•  90.5% of Texas personal injury lawyers agreed that juries were awarding less in cases with comparable injuries
• settlement mills rarely file lawsuits and almost never engage in formal discovery
• settlement mill negotiators and insurance adjusters come to a common understanding of case values
• settlement mills are terrible for individuals with a meritorious case with large damages
• insurance companies like settlement mills because they settle big cases at a discount and settle other cases fast.

Atlanta lawyer and blogger Ken Shigley compared settlement mills to kudzu:

Such law firms are able to operate in this manner only because federal courts bar tough regulation of legal advertising, and their operations operate "under the radar" because they almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

The statistics regarding the decrease in jury trial awards is amazing. I suspect that the trend has continued since 2001. The suspicion and disdain that many jurors have for plaintiffs seems to be growing in our tort reform culture bought and paid for by the U.S. Chamber.

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The Supreme Courts of Illinois and Georgia recently ruled that tort reform statutes placing a cap on non-economic damages in medical malpractice cases are unconstitutional. Will Bardwell has been following the litigation. Here are his posts on the decisions in Georgia and Illinois. Bardwell links to the Georgia opinion. Here is the Illinois opinion.

The opinions reached their results for different reasons. The Illinois court ruled that the cap violates the separation of powers clause of the Illinois Constitution. Interestingly, the Mississippi Supreme Court recently cited the separation of powers clause in striking Governor Barbour’s attempted reduction of the judicial branch appropriations.

The Georgia court ruled that the cap violates the state’s constitutional right to trial by jury. I thought the Georgia opinion was the better read on the whole, but this quote from the Illinois opinion is pretty funny:

That ‘everybody is doing it’ [capping damages] is hardly a litmus test for the constitutionality of the statute. 

I have no idea what the Mississippi Supreme Court will do when it has to decide the issue of the constitutionality of Mississippi’s caps. My gut feeling is that the Court will strike the caps, but I’m not sure what the basis for that feeling is and it could be wishful thinking. 

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The Healthcare Finance News is reporting that: “Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.” And: “This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.”

The article contains statistics to back up the claims:

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

According to the analysis, healthcare spending rose 83 percent from 2000-09, while medical malpractice payments fell 8 percent (both figures are in unadjusted dollars.)

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of 1 percent of the Centers for Medicare and Medicaid Services’ estimated $2.5 trillion in overall U.S. healthcare spending for 2009.

Last year was the fifth consecutive year that the number of payments has fallen and the sixth straight year in which the value of payments has fallen, according to the analysis. In contrast, U.S. healthcare costs have increased every year since 1965, the first year the data was recorded.

Meanwhile, most valid med-mal claims are never filed:

Studies have found that injuries and deaths caused by medical errors dwarf the number of actual medical malpractice payments. For example, the Institute of Medicine found in 1999 that 44,000 to 98,000 people die every year due to avoidable errors.

The comments to  the article are also worth reading. In one comment a person with 25 years experience in med-mal claims states that there is no relation between healthcare costs and medical malpractice lawsuits.

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Today Ya’ll Politics linked to a Washington Examiner Op-ed story that attempted to link Mississippi’s judicial bribery scandal to the current health care debate. I have seen some dumb things written about the legal system. This may be the dumbest.

Try to make sense out of this quote:

There’s no reason why this situation should persist, except that the nation’s top trial lawyers continue to grease the skids in Washington, D.C., and state capitals, piling up money for Democratic politicians who in turn hinder the cause of lawsuit reform. A recent Examiner analysis of contributions from employees of the top 15 plaintiffs’ firms found that less than 2 percent of nearly $1.3 million they donated went to Republicans.

That’s why President Barack Obama and Democrats seek to prevent state-level legal reforms in their health care bill. It’s not just that the bill lacks tort reform provisions, it punishes states that adopt them by withholding federal money.

But those legal reforms are necessary. Otherwise, the natural conclusion is the world portrayed in “Kings of Tort,” the recent book by Alan Lange and former federal prosecutor Tom Dawson. The book describes how former tort baron and current federal prisoner Dickie Scruggs sued his way into a fortune and then began purchasing an entire state’s judiciary. Years before he was caught bribing two Mississippi judges, Scruggs had described as “magic jurisdictions” those places where verdict money was used to stack benches and juries.

This is another straw man argument for tort reform. But this one is worse than the norm.

Scruggs purchased “an entire state’s judiciary”? Really? Because I’ve read Kings of Tort, and that is not what the book says. According to the book, Scruggs tried to bribe two judges, one of who reported it to the feds and the other of whom is now in jail.

And frankly, the statement is a slap in the face of Mississippi’s "entire judiciary". Is the author really claiming that Scruggs purchased all the judges in Mississippi? Is he really that stupid?   

I do not believe that we have a corrupt judiciary in Mississippi. But even if we did, the solution to corruption in an elected judiciary would be:

1. prosecute corrupt judges; and/ or
2. have an appointed judiciary.

Not caps.

Politics in the U.S. is rife with corruption. My guess is that there is less corruption among elected judges than other elected politicians. But regardless, lawsuit caps do not even address judicial corruption, much less solve it.

Why would someone make this argument? According to some, the author of the article (David Freddoso) is a shill of the political right (aka Big Business). Here is an excerpt from a review of Freddoso’s book that attacked President Obama:

David Freddoso's new book, The Case Against Barack Obama: The Unlikely Rise and Unexamined Agenda of the Media's Favorite Candidate is a badly written hatchet job, full of errors and distortions and smears. The author, who works for the right-wing National Review and published his book with Regnery (which printed Unfit for Command, one of the Swiftboating attacks on John Kerry in 2004), simply fails to prove his key assertions, preferring to rely upon a bunch of false attacks, McCarthyist-style denunciations of Obama's associations, and extreme conservative attacks on abortion rights, all of it padded with lengthy digressions on topics unrelated to Obama and his record.

Freddoso's embarrassing excuse for a critique has received virtually no critical attention, thanks to the right-wing press promoting it and the compliant mainstream outlets. A fawning story in the Politico called Freddoso's book "serious" and "a fact-based critique." According to the Politico, it occupies "a small island in the often-shrill sea of criticism of Obama." In reality, Freddoso's book is one more example of that polluted sea of criticism, filled with numerous factual errors, unproven innuendo, guilt by association attacks, and lunatic conspiracy theories that would be laughable if not for the seriousness of these false accusations.

Freddoso’s latest straw man hatchet job that implicates the Mississippi judiciary is both out of line and dumb.

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In an article for the Atlantic, legal analyst Andrew Cohen calls tort reform anti-democratic, but ingeniously marketed by corporate America:

Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.  

Personal experience in talking with clients and prospective jurors in voir dire during trials makes me conclude that average citizens do not understand tort reform. Most people think that tort reform addresses frivolous lawsuits instead of lawsuits involving the worst possible conduct. People do not understand that:

It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.   

Why do tort reform’s proponents push a solution that does not apply to the “problem” of frivolous lawsuits? Because frivolous lawsuits is not really the problem for corporate America. They can squash a frivolous lawsuit like a bug. What they can’t squash without damages caps is their liability exposure for terrible conduct such as covering up a product’s dangerous defect. And they know that the public wouldn’t go along with it if the public knew the truth.

The reason that people do not understand tort reform is because proponents of tort reform do not want them to. Tort reform proponents invariably talk about merit-less lawsuits when selling tort reform.

So they pull a bait and switch using a frivolous lawsuits straw man. They talk about despicable trial lawyers and frivolous lawsuits and push through damages caps that don’t even address their stated “problem.”  It’s a ploy—but it’s a smart one to get what they want.

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In November the American Association of Justice published this report identifying five myths about medical negligence (malpractice).

The identified myths are:

1. there are too many frivolous malpractice lawsuits;
2. malpractice claims drive up health care costs;
3. doctors are fleeing;
4. malpractice claims drive up doctors’ insurance premiums; and
5. tort reform lowers insurance rates.

Note: Yesterday's Natchez Democrat contained this article by attorney Sam Gwin that covered some of these issues in Mississippi.

The AAJ report then debunks each myth. Key points include:

• medical negligence causes 98,000 hospital deaths per year;
• there have been steady declines in the last decade in the number of malpractice lawsuits and the amounts of settlements and verdicts;
• the vast majority of filed medical negligence cases have merit;
• the amount spent to defend and compensate victims of medical negligence is .3% of health care costs;
• much of the “defensive medicine” is performed to generate more revenue for health care providers; and
• insurance premium levels are generally the same in states with damages caps as states without damages caps.

I would add another myth to this list: the myth that damages caps affect frivolous lawsuits. This might be the biggest myth of all. Proponents of damages caps argue that they are needed to address frivolous lawsuits, but it's cases with merit and severe damages that caps impact.

The public does not understand this. The public believes that caps affect frivolous cases and are surprised when you explain that caps restrict the recovery of victims of catastrophic injuries to an amount that is less than full compensation.

I am not convinced that damages caps will be permanent. At some point, there could be public backlash similar to what has happened with consumer arbitration. I have no doubt that the public supports legitimate attacks on frivolous suits. I do not believe that an informed public would support damages caps. Both courts and legislatures have a tendency to gravitate to public opinion.

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Every few months there is a new newspaper article that credits legislative tort reform with the reduction in lawsuits filed against physicians in Mississippi. The latest example is this article that appeared in the Sunday Natchez-Democrat.

In discussing the alleged need for national tort reform in medical malpractice litigation the article makes familiar statements about what happened after Mississippi enacted legislative tort reform:

the number of medical malpractice claims has dropped by 91 percent from its peak, and the state’s largest medical liability insurer has dropped its premiums by 42 percent

The article suggests that this data is solely due to non-economic caps:

Under current law, individuals may pursue civil claims against physicians and other health care providers for alleged torts — breaches of duty that result in personal injury. Mississippi legislators in 2004 put a $500,000 cap on pain-and-suffering or non-economic damage awards in medical malpractice cases, ending the state’s reputation as the “judicial hell hole for jackpot jury verdicts” — a phrase coined by Gov. Haley Barbour.

Frivolous lawsuits hit their apex in Jefferson County, where a pharmacist was named in more than 1,000 lawsuits. A Jefferson County jury awarded $1 billion to the family of a woman who had taken the drug Pondimin, a weight loss remedy known as fen-phen that is now off the market.

Absent from this article and other similar articles is any mention of the Mississippi Supreme Court's 2004 opinion in Janssen Pharmaceutica v. Armond. The Court's decision in Jannsen had more to do with reducing lawsuits against doctors than did tort reform's non-economic damages caps.

Before Janssen there could be hundreds of plaintiffs with no connection joined in one lawsuit in a venue that was bad for defendants, such as Jefferson County. Janssen itself involved 56 plaintiffs suing a pharmaceutical company and 42 Mississippi physicians who prescribed Propulsid to the plaintiffs. The Court held that joinder of the claims into one case was improper and ordered claims of the individual plaintiffs severed and transferred to a proper venue. 

After Janssen, mass tort plaintiff lawyers basically stopped filing tons of cases in Mississippi. This greatly reduced the number of lawsuits against doctors who were getting sued like crazy in pharmaceutical litigation cases where the doctors were not even real targets and were sued to keep the case out of federal court. A huge percentage of the 91% reduction in claims against doctors resulted from the impact of Jannsen. It had a much bigger impact on the reduction in filings against doctors than did legislative tort reform caps.

The second biggest impact on reducing the number of pharmaceutical cases against doctors was the tort reform provision that required plaintiffs to get an expert to sign off on the case before filing suit. This provision could impact the number of suits, since most of the claims against doctors in drug lititgation were not legitimate. So two things contributed to the reduction in the number of suits: (1) Janssen; and (2) the expert certification requirement.

Caps simply did not reduce the number of suits.

The fallacy with legislative caps on non-economic damages is that proponents claim that caps are needed to address frivilous (baseless) lawsuits. But the reality is that the caps come into play in the cases with merit and severe damages. Examples include cases where injuries are severe and permanent, such as brain damage or paralysis. A plaintiff lawyer is not going to choose not to file one of these cases because of the caps. But the victim will recover less money.

A damages cap does not affect a case where a plaintiff sues a doctor with a baseless claim in hopes of a quick settlement. That type of case will be thrown out by the judge on summary judgment before a trial. Insurance companies know this, but the general public does not.  Apparently, the media does not understand this either, since it continues to ignore the Mississippi Supreme Court's contribution to the reduction on cases filed against doctors.

It's not surprising that politicians ignore Janssen and give all the credit to themselves. That's something polititicians do with both credit and blame. But it's disappointing that the media continues to drink the Kool-Aid. 

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Matt Eichelberger at Ipse Blogit has this outstanding post taking issue with Governor Barbour's latest tort reform scare tactic that I wrote about here.  Eichelberger notes:

Now, having practiced in the civil arena before, I can assure you that pre-suit notice, in reality, does nothing more to help settle a case than the filing of a complaint does. It's just a trap to ensnare unwary citizens and keep them from getting justice when they are harmed by a state actor. Period.

and:

Here are the number of physicians in Mississippi by year from 1998 through 2007:

1998 - 5,133
1999 - 5,232
2000 - 5,399
2001 - 5,544
2002 - 5,680
2003 - 5,820
***TORT REFORM ENACTED***
2004 - 5,872
2005 - 5,872
2006 - 5,890
2007 - 5,961

Anyone notice anything odd? For all the hue and cry from tort reform proponents about doctors leaving Mississippi and the health care crisis that would ensue, we had growth in the number of physicians in Mississippi during the 6 years leading up to tort reform, and in fact, we have had less growth since tort reform.

Meanwhile, yesterday the Clarion-Ledger proved what a joke it is as a newspaper with this editorial, which takes Barbour's bait hook, line and sinker, without being able to explain why Barbour is right. Having a good outdoors writer, cartoonist and sports writer does not make a good newspaper.

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The Clarion-Ledger reported in this story on Monday about Governor Barbour's attempt to politically scare the Mississippi Supreme Court into reversing a near-unanimous opinion. Here is the Governor's amicus brief filed with the Mississippi Supreme Court. Here is the Supreme Court's opinion in Price v. Clark. As an initial comment, the Court's decision in Price that filing a lawsuit tolls the running of the statute of limitations was clearly correct and is consistent with the laws of civil procedure in states throughout the nation. The Court's decision in Price has nothing to do with the merits of the case. The defendants can still win on the merits through a summary judgment motion or as the result of a trial.

The shocking aspect of the Governor's brief is the fact that the Governor admits that the real purpose of the pre-suit notice requirement is to impose a penalty on plaintiffs who do not successfully navigate the pre-suit notice mine field:

The Legislature cannot have intended to establish a pre-suit notice requirement but virtually no penalty for non-compliance.

This is a bombshell. The Governor of Mississippi is stating that the state's tort reform laws contain a designed trap to eliminate cases on behalf of unsophisticated plaintiffs who do not properly jump through a set of hoops before filing suit. That was not supposed to be a reason for the notice requirements. Previously, the only reason given to justify the pre-suit notice requirements was that it would give a defendant a chance to investigate a case and settle it before incurring the expense of defending the lawsuit. This reason was already suspect, since defendants never actually try to settle a case after receiving notice, but before suit is filed. Representative Ed Blackmon correctly observed in  the Ledger's article:

The current law requires people who are injured to provide parties certain information with the hopes of settlement before litigation is filed, he said. "I don't know of a single case settled during that time. It's once in a blue moon."

What's happening instead, he said, is Mississippi is reverting to "the dark days when it was a crap shoot whether parties could even get in the courthouse."

What really happens is medical defendants wait to see if the plaintiff navigates the pre-suit notice mine field. In many instances, the defense starts the case by filing a ridiculous motion to dismiss asserting a twisted and absurd reason that the statutory notice provisions were not complied with. The pre-suit notice requirements are complicated and trip up competent lawyers. Regular people who try to assert a lawsuit on their on behalf don't have a prayer. Only after the initial motion to dismiss is resolved will a defendant even think about trying to settle the case--regardless of the merits of the case.  

Now we know as a result of Governor Barbour's brief that the real reason for pre-suit notice requirements in Mississippi is to obtain dismissal of cases with merit. Indeed, a case without merit is destined to be thrown out by the court anyway. This is sordid and wrong. Justice is supposed to be blind and everyone is supposed to have a fair shot in the court system. Govenor Barbour, on the other hand, wants the deck stacked in favor of insurance companies and big business.   

As I discussed in this post back in March, the Supreme Court's changes to multi-party joinder laws had a huge impact in reducing the number of cases against doctors where the doctors should not have been named as defendants. The other major factor with tort reform was the caps on non-economic damages. Pre-suit notice provisions were not a factor at all in reducing lawsuits. They have simply become a mechanism for cases with merit to be dismissed--a mechanism that Govenor Barbour wants to preserve.

If the Supreme Court revisits its decision in Price it should rule that the pre-suit notice requirements are unconstitutional and unenforceable. As support for its ruling the Court should point to the statement in Governor Barbour's brief.

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How would you feel if you were sentenced to two years in prison for speeding because murder has gotten out of hand? Chances are you wouldn't like it, since a petty offense like speeding doesn't have anything to do with serious crimes. But the U.S. Chamber of Commerce and tort reform supporters commit a similar bait-and-switch when pushing the tort reform agenda.

An April 28 Bloomberg article discusses the Chamber's renewed push for tort reform and cites shocking statistics about the unfairness of arbitration proceedings for employees and consumers. The Chamber's tort reform advertisements are pure propaganda. The Chamber cites lawsuits that sound frivolous. But the Chamber does not seek remedies that hold filers of frivolous lawsuits accountable. Instead, it seeks to put caps on recoveries in all cases, including for victims in legitimate cases with large damages. It's like arguing that you should be put in jail for speeding because there is a murder problem. The public does not understand this distinction, which is how the Chamber wants it.

Tort reform passed in Mississippi years ago. The public does not understand what legislation passed or what it means. I have yet to meet a client or potential client who understood that tort reform caps damages for meritorious cases. Everyone just assumes that it only affects frivolous lawsuits, since that's what the Chamber and other tort reformers talk about. Unfortunately, there has been no organization with the funding or marketing acumen to educate the public on the Chamber's propaganda. 

The Bloomberg article also cites a study that found what many lawyers have long suspected, that arbitrators favor business interests in the hopes of getting hired in future cases:

Alexander Colvin, a labor professor at Cornell University, published a study in January that examined employment dispute statistics from the American Arbitration Association. Employees won 31.6 percent of the time if the employer had no other case with AAA; 16.9 percent of the time if the employer had more than one case with AAA; and 12 percent of cases where an employer and a particular arbitrator were involved in cases more than once.

Colvin worries that “repeat player bias” is at work, with arbitrators favoring employers in hopes of being selected for future hearings

Of course, the Chamber argues for arbitration with claims that it is quicker, cheaper and just as fair as a court proceeding. In a previous post I criticized the costs of arbitration, but now there is solid evidence that arbitration is unfair in addition to being expensive. There is currently an arbitration fairness act pending in Congress that would ban pre-dispute arbitration agreements in some consumer agreements, such as nursing home admission agreements. Look for the Chamber's propaganda push to fight this legislation. You can bank on the fact that the Chamber's ads will be based on its frivolous lawsuit bait and switch tactics. 

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In its March 7, 2009 print edition, the Clarion-Ledger editorializes about the 60% decline in premium costs for medical malpractice insurance for physicians since the passage of tort reform legislation. I was not able to find the editorial on-line in order to link it.

The Ledger points out that the plaintiff's bar wrongly predicted that malpractice premiums would not decline following tort reform. While this is a true statement, the Ledger is wrong to give all the credit to legislative tort reform. I believe that there were at least two other factors that had a significant impact on malpractice premiums.

First, a court-imposed change in multi-plaintiff joinder laws. In the late 1990's and early 2000's, physicians were being named as defendants in pharmaceutical and other mass tort cases filed in Mississippi. In many instances, the physicians were not really target  defendants and were sued in an effort to prevent out of state corporations from removing the cases from state court to federal court. But the physicians' insurance carriers had to hire lawyers to defend the cases. And since the nature of multi-party mass tort cases makes them more expensive to defend, medical insurers had to spend a ton of money on defense costs in cases that the doctors should not have even been in. 

At some point--and I do not remember the exact year--joinder laws were changed so that each plaintiff had to file and litigate his case individually. Once that happened, out-of-state mass tort lawyers largely left the state and the number of filed cases in which doctors were "venue" defendants decreased significantly.    

 The second factor not identified by the Ledger was the perception by some in the plaintiff's bar that the Mississippi Supreme Court would not affirm a plaintiff's verdict in a medical malpractice case. This had a chilling affect on the number of malpractice cases filed. It should be noted that in recent months the Supreme Court has affirmed at least two medical malpractice verdicts.

If the Ledger was correct that tort reform was the sole reason that doctors' insurance premiums declined, then wouldn't all liability premiums be lower? My personal experience with insurance premiums is that my malpractice premiums have gone up and my personal general liability coverage has not decreased.   

Hopefully, the sea-change in the litigation climate will settle down physicians and decrease the open hostility by some doctors towards the plaintiff's bar.