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

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Last week the Miss. Court of Appeals affirmed a 2008 Hinds County defense verdict in Clark v. Toyota Motor Sales. Here is the Court's opinion. 

The basis of the case was a 2001 auto-accident in DeSoto County involving a Toyota truck. Part of the appeal centered on Toyota's exemplar truck that Judge Winston Kidd allowed jurors to view in front of the courthouse.  

Wayne Ferrell and a bunch of other lawyers represented the plaintiffs. David Ayers and other Watkins Eager lawyers represented Toyota.

Judge David Ishee wrote the Court's unanimous opinion.

My Take:

This is an example of the fact that it's common for defendants to win civil cases in Hinds County. Usually it's the big plaintiff verdicts that make the paper. But defendants win trials in Hinds County all the time.

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Hinds County Defense Verdict

There was a defense verdict returned on Friday in a Hinds County medical malpractice trial. I do not know the names of the parties or the facts of the case. The vote was 11-1.

Heber Simmons of Ridgeland represented the plaintiff. Mildred Morris of Watkins Eager in Jackson represented the defendant. Stuart Harmon of Jackson represented a defendant who was dismissed via a directed verdict. Judge William Gowan presided in the case.

Wall Street Journal Article on Dr. Adam Lewis

Saturday's Wall Street Journal had a long front-page article about Jackson neurosurgeon Dr. Adam Lewis. Anderson writes about the article here. The article focuses on the death of a 48 year old patient who died hours after back surgery in April.

The WSJ had the man's medical records reviewed by nationally preeminent surgeons, who said that the man was not a candidate for surgery.

Lewis has a high rate of surgeries on his patients and owns part of the company that sells the devices that he implants. Anderson states:

So many doctors cannot rest content making a good living from being doctors; they have to own their own MRI, or their own specialty clinic, or their own medical-device company.

The article (which is behind a pay wall) heavily quotes Lewis' attorney, Whit Johnson with Currie Johnson in Flowood. Dr. Lewis gets sued a lot and is a controversial figure in the Jackson medical community. I don't think that Jackson doctors are surprised by the allegation that Dr. Lewis operates on too many patients. I reported a verdict from earlier this year here.

Kingfish quotes much of the WSJ article here.

Sun-Herald Article on Former Miss. Supreme Court Justice Joel Blass

The Sun-Herald ran this article over the weekend on former Supreme Court Justice Joel Blass of Pass Christian. Blass bucked the racist norm in the Mississippi Legislature in the 1950's and was highly respected in the legal community. The article quotes current Supreme Court Justice Jess Dickinson:

Jess Dickinson, a presiding State Supreme Court Justice, practiced law with Blass in Gulfport in the early 1990s.

“The practice of law today really needs a dose of professionalism,” he said. “The lawyers have gotten so strident and aggressive. They do so in an attempt to represent their clients, but professionalism has seemed to drift away from this profession.

“Joel Blass exhibited the epitome of professionalism. He is a gentleman’s gentleman, a lawyer’s lawyer, a scholar, and a mentor to every lawyer, whether they were in his firm or not. You could always trust him.”

Justice Dickinson's comments are consistent with everything that I've heard about Blass.

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As reported by the Clarion-Ledger last week, Hinds County Chancery Judge Denise Owens issued an Order in favor of Meg Weidner against Trustmark Bank National Bank in a breach of fiduciary duty case. Here is a copy of the Order.

The case stemmed from Trustmark acting as trustee for a trust set up by Dr. William and Margaret Rosenblatt for the benefit of their children and grandchildren. Trustmark improperly disbursed over $1.7 million of principle from the trust to one of the two children (Dee Rosenblatt Farrell). Trustmark fired the employee who screwed up.  

Judge Owens ordered Trustmark to re-pay over $1.7 million to the trust. Trustmark also must pay $100,000 in punitive damages and the plaintiff's attorney's fees, which have not yet been adjudicated. I don't see how the attorney's fees could be less than six figures for a case of this nature.

The trust allowed the beneficiaries to withdraw from the corpus only to meet emergency needs. Trustmark's own policies required this type of distribution to be approved by the bank's trust committee with yearly accountings to the other beneficiaries. Each withdrawal had to be separately approved. None of the 150 corpus invasions over a six year period were approved by Trustmark's trust committee.

There was evidence that the Trustmark officer who screwed up alleged that Dee "had been conning him into invading the corpus to buy clothing."

Trustmark also never obtained the required approval of the disbursements from the other beneficiaries.  

Trustmark is in denial mode:

T. Harris Collier III, Trustmark's general counsel, said in a statement the bank is reviewing Owens' opinion "and considering all of our options."

"The ruling did not find any unauthorized disbursements from the trust," Collier said in the statement. "However, it found that certain administrative and documentation policies and procedures were not followed by the trust officer."

Mike Farrell of Jackson (no relation to Dee Farrell) represented the plaintiff. William Ray of Watkins & Eager represented Trustmark. Luke Dove of Jackson represented Dee Farrell.

My Take:

I didn't understand how this could happen.....until I read the statement by Trustmark's general counsel. Apparently, Trustmark's legal department can't read.

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Two weeks ago the Mississippi Supreme Court reversed a 2009 Scott County defense verdict in a medical malpractice case and remanded the case for a new trial. Here is a link to the Court's opinion in Merchant v. Forest Family Practice Clinic and Dr. John Lee. Dr. Lee is the son of the Sheriff of Scott County.

The Court's opinion considered several issues raised by plaintiff on appeal. The Court rejected most of the issues, but reversed and remanded the case for a new trial due to juror misconduct.

Facts:

During the trial defense counsel asked the following question to plaintiff's expert witness:

as far as your medical legal business picking up, can you tell me if you've been retained as an expert in the case where [counsel for the Estate] is suing Dr. Howard Clark just up the road?

That's right, in a conservative venue with a huge home field advantage, defense counsel played the “these guys are suing another popular doctor” card. [Guys, you really don't need to push the envelope in places like Scott County, since you get jurors like the one you had in this case.] 

After the trial, a juror signed an affidavit that stated that another juror said during deliberations:

that he had been a patient of both Dr. Lee and Dr. Clark. That both were good doctors and that we the jury could not 'let those attorneys keep taking money from our doctors.' and that he continued to refer to [the other lawsuit] in an attempt to persuade his fellow jurors to vote in favor of Dr. Lee. (emphasis added).

Shane and Rebecca Langston of Jackson represented the plaintiff. Defense attorneys were Anastasia Jones, Mildred Morris, James Becker and Tim Sensing all of Watkins Eager in Jackson. Judge Marcus Gordon was the trial judge.

The Court's Opinion:

The Court quoted several voir dire questions where the juror at issue did not admit that he was a patient of the defendant or had knowledge of facts that were relevant to the issues in the case. The Court ruled that the juror's references in deliberations to Dr. Lee as a good doctor and the separate lawsuit against Dr. Clark, 'another good doctor' “reveals a decision guided by neither the evidence admitted nor the circuit court's instructions of law.”

The Court determined that this was juror misconduct that compromised the estate's right to a fair, impartial and competent jury. The Court reversed and remanded the case for a new trial.

Justice Randolph wrote the Court's opinion, which unanimously reversed on the issue of juror misconduct.

My Take:

I have a lot of respect for the defense lawyers in this case. I'm going to assume that they got a little carried away in cross-examination, which can happen. Luckily, the question helped expose an apparently dishonest juror.

I will have a long post on Wednesday about my take-away from this decision.

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On Friday June 17, 2011 at 2:00 p.m. I will be speaking about the use of blogging in a law practice at a Univ. of Miss. CLE program in Jackson. Here is a link to the program.

I will try to impart some of what I've learned from my now 2+ years of legal blogging. Topics will include the most frequent questions I get from lawyers about this blog: (1) how do I find time to blog; (2) do I get any business from blogging; and (3) who is Kingfish? I will also identify mistakes I've made and lessons that I've learned in blogging.

Before my presentation Will Manuel of Bradley Arant in Jackson will speak about using Facebook and the Twitter in your practice. I currently use neither, so maybe Will can get me fired up about those aspects of social media.

Following my presentation, Miss. Bar General Counsel Adam Kilgore will take the podium and identify the ethical pitfalls of following the advice given by me and Manuel.

I will also be speaking Friday morning at 10:00 a.m. to a Mississippi Bar Litigation Section meeting. Jimmy Wilkins of Watkins & Eager and I will talk about Social Media and Jurors.   

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On Thursday a unanimous Mississippi Supreme Court reversed a $4.5 million jury verdict and ordered a new trial in Hyundai Motor America v. Applewhite. 

The decision involved a products liability case tried in the Circuit Court of Coahoma County. The plaintiffs were the beneficiaries of three persons killed in a car crash involving a 1993 Hyundai Excel. Plaintiffs alleged that the vehicle was not crashworthy due to design and manufacturing defects.

Hyundai's appeal focused on Daubert challenges of the plaintiffs' three expert witnesses.  The Court ruled that the trial court did not abuse its discretion by admitting the experts' testimony. Significantly, the Court rejected Hyundai's argument that computer simulations alone are not sufficient to support expert testimony. The Court stated that: “[w]e are not prepared to say that an expert must physically build a model of his alternative design in order to to demonstrate efficacy.”

But the plaintiff got into trouble over changes to testimony that one of the experts made in his deposition errata sheet. The changes were to four variables used to make the expert's calculations. The plaintiff did not precede or follow the errata sheet with a formal supplementation of the expert's opinions pursuant to Miss. R. Civ. P. 26.  

The Court stated that: “[t]he purpose of an errata sheet is to correct scrivener's errors or provide minor clarification; it is not a means of making material, substantive changes to a witnesses's testimony.” As a result, parties may not rely on a witness's deposition errata sheet as a substitute for formal and timely supplementation.

The Court ordered a new trial due to the plaintiffs' failure to supplement their discovery responses.

Justice Kitchens' wrote the Court's opinion. Ralph Chapman and others represented the plaintiffs. Lawyers from Watkins and Eager in Jackson represented Hyundai.

My Take:

This is not a surprising decision. The Supreme Court likes to see the rules of civil procedure adhered to. Lawyers have to be careful to supplement discovery responses, including expert opinions. This was not a total loss for plaintiffs, since the Court remanded the case instead of rendering.

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A Hinds County Circuit Court jury returned a defense verdict on Monday in a medical malpractice case tried before Judge Winston Kidd.

Here is the Complaint in the case filed by James McClure against Dr. Anthony Petro, Dr. Clark Ethridge and Mississippi Baptist Medical Center. The Complaint alleges that Dr. Petro perforated plaintiff's bowel during a laparoscopic procedure and that defendants breached the standard of care in failing to diagnose and treat the perforated bowel.

Dr. Ethridge was quickly dismissed from the case via a summary judgment motion. I can't tell from the docket when Baptist was dismissed, but it appears that Baptist was not at the trial.

The trial lasted one week and one day. The jury's verdict was unanimous. Here is the jury's hand-written verdict. I hear that the jury thought that the plaintiff's case was very weak.

Salvador Bivalacqua of New Orleans represented the plaintiff. From the docket, it appears that Walter Johnson and Mildred Morris from Watkins & Eager represented the Dr. Petro. [correction: It was actually Jim Becker who tried the case for the defense with Walter Johnson. Becker is a legendary veteran of the Mississippi defense bar.  Mildred Morris was not involved in the trial].

If anyone has more info. on this verdict I would be happy to report it. This is an example of a stealth defense verdict in a medical malpractice trial. This happens a lot. I heard about the verdict only because my wife is friends with the spouse of one of the jurors.  

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Last week in State v. Bayer Corp. the Mississippi Supreme Court revived the State’s lawsuit against Bayer for defrauding the state Medicaid program.  

As noted by Will Bardwell, the reversal was based on a technicality where the trial court considered evidence outside the pleadings without converting the  12(b)(6) motion to dismiss to a motion for summary judgment. The reasoning for the distinction is that if the court considers matters outside the pleadings, then the responding party has a right to notice and the opportunity to submit other evidence. It’s purely a procedural issue and it is possible for Bayer to still win the lawsuit for one of the reasons as before.

Justice Kitchens wrote the Court’s opinion. Chief Justice Waller concurred and Justice Dickinson joined in  the concurrence. The concurrence argues that there are occasions where the trial court can consider matters outside the pleadings, such as an insurance policy attached to the Complaint. The concurrence agreed that the exception did not apply in this case.

Governor Ronnie Musgrove and a cast of thousands from Copeland Cook represented the State. Michael Doss and a bunch of other lawyers from Watkins Eager represented Bayer.

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I recently subscribed to the National Law Journal and was a little disappointed at its focus on the D.C. legal scene. So it was much to my surprise that the latest issue contained this nice article on Jackson firm Watkins & Eager. The headline is "Small Mississippi firm makes big name for itself." Of course with 73 lawyers, Watkins & Eager is one of the largest firms in Mississippi. The focus of the article is the fact that the firm represents many blue chip corporations. The article mentions attorneys Michael Ulmer, David Ayers and Paul Stephenson.

The article quotes William Goodman III and mentions how between 1998 and 2004, the firm was swamped with litigation. Those years were definitely a high water mark for litigators in Mississippi, and perhaps the nation. I will have more on that point on a later post about the AAJ's budget shortfall.

Unfortunately, the article is basically a fluff piece with no coverage of pressing questions about Watkins & Eager's firm culture, such as its rejection of the business casual dress code adopted by all the other big firms in Jackson.

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I have a report of a $16 million jury verdict today in federal court in Greenville against Kia Motors. The case is presumably a products case involving a defective auto. Defense counsel was David Ayers and Robert Ireland of Watkins & Eager in Jackson.  Plaintiff's counsel was Ralph Chapman from Clarskdale. I am trying to get more information.