Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

Tate Reeves Should Withdraw From Governor’s Race — Run for U.S. Senate in 2020

Posted in Politics in Mississippi

Tate Reeves should be the one having a good time in Washington, D.C. today. He should have taken the appointment to replace Thad Cochran and fought off Mike Espy’s campaign in 2018. He should be in Washington learning, building relationships and biding his time.

It might not be ideal, but it’s not too late. For the good of Mississippi, Tate Reeves should withdraw from the governor’s race and instead run for U.S. Senate in 2020.

Politically, running for Senate looks safer for Reeves than running for Governor. He’s behind Jim Hood in the polls. But he may not even get to Hood with Chief Justice Bill Waller’s entry into the race. Do not sleep on Waller’s chances.

If you see Waller at lunch and greet him, he’s very friendly. You like him. You think he likes you. That’s a gift most of us don’t have. It’s in Waller’s DNA.

I had Waller’s father (the former Governor) as opposing counsel in one case. He was late in his career and could be crusty. But by the end of that case, I loved that man. He was honest, straightforward and endearing. Waller, Sr. once made my all time favorite deposition objection: “What in the hell does that have to do with any damn thing?

Reeves doesn’t have that. But he doesn’t need it to be a Senator. See, e.g., McConnell, Mitch.

Mississippi needs a powerful senator. Jim Eastland, John Stennis, Thad Cochran, Trent Lott, Roger Wicker, Cindy Hyde-Smith. We are moving in the wrong direction. We’ve replaced powerful senators with empty suits. This is going to haunt us if it doesn’t change.

Wicker doesn’t have it. He is weak and doesn’t understand power. Letting someone else (whether it’s a Texas Senator or Phil Bryant) pick the replacement for Fifth Circuit Judge Grady Jolly proves that.

Word on the street is Wicker doesn’t care about judges. Well then he’s a moron. It’s not about caring about judges. It’s about caring about power. Wicker doesn’t care or doesn’t understand the accumulation and exercise of power.

But what about Reeves? What’s his biggest knock as Lieutenant Governor? That he cares too much about the accumulation and exercise of power. He would be perfect for the Senate. That’s a feature, not a bug in the Senate.

Wicker was just re-elected to a 6-year term, so we’re never getting rid of him.

But Cindy Hyde-Smith has to run again in 2020. That’s the seat Reeves needs to slide into. If necessary, Reeves will have to primary Cindy Hyde-Smith in 2020. But it shouldn’t be necessary. Republican leadership needs to convince her to not run in 2020. She’s not a good fit. She had to draft Roger Wicker to be her mouthpiece in the 2018 campaign. She will never be an influential senator.

Yes, Reeves could probably have that job now if he had wanted it. But that’s water under the bridge.

Change of plans. What’s a terrible mistake attorneys repeatedly make? Forgetting litigation is fluid and not adjusting strategy, tactics and/or valuation as the case proceeds. For Reeves, this is a fluid situation. He should shift his political strategy.

Reeves would be a better senator than governor. His role model should be Mitch McConnell, not Phil Bryant. That’s not a knock on Bryant. He does his thing very well. But Bryant couldn’t be a McConnell. Maybe Reeves could.

Reeves would be a better senator than the ones we have now.  He would only have to run once instead of the twice if he had been appointed to replace Cochran. He would not have to run again until 2026. By 2035, he could easily be one of the most powerful men in Washington.

Reeves is a better fit for the Senate. Waller or Hood would be better fits for Governor. Reeves would be a better Republican candidate against Mike Espy in 2020.

That election may not be a replay of 2018. In a presidential election year, black voter turnout should be higher than 2018. Espy needs that to offset where he lost the 2018 race: the Coast. Espy clearly thinks he can beat Hyde-Smith in 2020–he’s already qualified to run.

By the way, Jim Hood needs to spend half his time on the Coast between now and November.

Reeves could score points if he did this right. He could have a press conference and say he’s always wanted to be Governor. But he realizes that Mississippi needs him more in Washington, D.C. So he’s sacrificing his lifetime dream for Mississippi.

Have you seen how old U.S. Senators are? Reeves is in his 40’s. He could be in leadership by 60. He would have more power, make more money and never have a serious challenger in an election. It’s a better move for him and Mississippi.

So what are the chances of this happening? None. Mississippi never does the smart thing.

$55,000 Verdict in Hinds County Chancery Court Defamation Trial

Posted in Verdicts in Mississippi

On February 11, 2019 a specially appointed Hinds County Chancellor (Judge James Bell) rendered a $55,000 verdict in Tyrone Lewis v. Lewis et al.

You can view the Court’s ruling at this post on Jackson Jambalaya.

JJ states:

Former Hinds County Sheriff Tyrone Lewis won a defamation lawsuit against his ex-wife, Tony Davis, and several other defendants in Hinds County Chancery Court yesterday. Hinds County Sheriff Tyrone Lewis sued in June 2015 for an injunction as well as damages against the defendants. Sheriff Lewis claimed they acted together to slander and defame him through social media over several months in 2015 prior to the August primary.

Two Dennis Sweets of Jackson represented ex-Sheriff Lewis. William Bell of Ridgeland of Jackson represented the Defendants.

My Take:

I don’t see a lot of defamation cases in Mississippi.

$2 Million Verdict in Hinds County Car Wreck Case

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Thursday February 7, 2019, a Hinds County jury in Jackson returned a unanimous $2 million verdict for the plaintiff in Kirkland v. Barnett.

Plaintiff Carole Kirkland alleged that Defendant Mary Judith “Judy” Barnett ran a red light at the intersection of Pascagoula and State Street in downtown Jackson causing their cars to violently collide.  Ms. Kirkland suffered a broken wrist and a knee injury that left her with a permanent impairment.  She presented proof of $31,000 in past medical bills and $20,000 in future medical treatment.

After deliberating less than an hour, the jury found that Ms. Barnett was negligent for the crash and awarded Ms. Kirkland damages for her past medical bills, future medical bills, pain and suffering, and permanent impairment.

Ms. Barnett filed a counterclaim alleging her light was green and that Ms. Kirkland caused her to suffer injuries.  The jury found that Ms. Kirkland was not negligent and awarded $0 to Ms. Barnett on the counterclaim.

Barnett’s insurer was Allstate. Allstate’s pretrial offer was $5,000.

Rocky Wilkins of Morgan & Morgan represented the Plaintiff Carole Kirkland.  Sam Thomas defended the counterclaim for Ms. Kirkland.

Scott Rogers of Vernis & Bowling represented the Defendant Judy Barnett.  Toby Gamill represented Ms. Barnett on the counterclaim.

Senior Circuit Judge Tomie Green presided.

My Take:

Big win for Kirkland. Back to the drawing board for Allstate on case valuation.

How could Allstate be so sure it would win a swearing match?

You know who doesn’t like the $5,000 pretrial offer? Math.

Amid Lawyer Exodus, More Tort Reform for Mississippi?

Posted in Politics in Mississippi

You Haven’t Heard the Truth About the “Landowners Protection Act”

Guest post by: Shanda M. Yates[1]

You have no doubt seen at least one article discussing the “Landowners Protection Act” which is pending before both the House and Senate.  But, if you aren’t a lawyer or one of the large corporate sponsors of the bill, have you paid attention?  Many supporters of the Act have gone out of their way to convince the public that these bills mean nothing to the average citizen; that your life will not be impacted.  Some have even gone so far as to grossly misstate the scope and reach of the proposed bill[2].  However, what you haven’t heard is the truth.

Contrary to what supporters of the Act have been circulating in the media this week, the proposed, overly broad legislation is not needed to protect “innocent property owners” against being sued anytime a crime occurs on their property[3].  Why? Because the current law handed down by the Mississippi appellate courts already does that.  Under the current law, claims against a business owner stemming from a third-party criminal assault or attack on the business owner’s property will only survive under very limited circumstances.  Such claims are only viable if (1) the property owner knew that the third-party was a violent or dangerous person yet failed to take reasonable action to remove the person from the property or (2) that the property was located in an “atmosphere of violence” and the property owner had knowledge of same yet failed to implement reasonable security measures.[4]  Current law also places limits on what is sufficient to constitute an “atmosphere of violence” and even which evidence may or may not be used to establish the existence of same.[5]

In a nut shell, and without any “legalese,” the law currently limits the scope of a property owner’s liability to instances where the property owner failed to act reasonably.  That’s right – to avoid civil liability under the existing law a property owner simply has to enact reasonable measures to protect its customers, patrons or tenants. [6]  Seems reasonable, right?

Nonetheless supporters and backers of the proposed Act want to remove all liability of a property owner in virtually every context in which a crime is committed on its property.  Property owners would no longer have a duty to “act reasonably” to protect its customers, patrons, and tenants from violent criminal activity that it knows is occurring on its property.

If you are still unsure as to whether the proposed Act is a really awful idea, consider a few simple examples that illustrate the overwhelming public safety concerns posed by the ill-conceived and poorly written legislation:

Example 1:          Under Section 2(3)[7] of this Act, an apartment complex owner who rents an apartment to a man who has previously raped multiple women would be immune from liability when that same man rapes a young girl in a stairwell of the apartment complex.  Even if the apartment complex knew of the man’s prior criminal history when it leased the apartment to the rapist.

Example 2:          Under Section2(1)(b)[8] of the proposed Act, the owner of a hotel could turn a blind eye to a child sex-trafficking ring that is being run out of the hotel.  Instead of imposing a duty of “reasonableness” on the hotel owner in this situation, the proposed legislation would provide immunity to the hotel owner unless one of the girls who was repeatedly raped on the property could prove that the hotel owner “actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of the third-party.”  It would no longer be enough that the hotel owner knew about what was occurring on the property and failed to reasonably react to same.  Under the proposed Act, the hotel owner would escape all civil liability unless it could be shown that the owner actively encouraged the young girls’ repeated rapes.

The bottom-line is that the proposed Act is contrary to the general public safety of Mississippi citizens.  The proposed Act is overly broad and creates gaping loopholes by which commercial property owners can avoid liability at the expense of Mississippians.

Please contact your state representatives, Tate Reeves, the Lieutenant Governor, Philip Gunn, the Speaker of the House, and Mark Baker, Chairman of the House Judiciary A Committee, and tell them that you do not support this law. 

 

[1] Shanda Yates is currently a partner at Burns & Associates, PLLC.  Since 2007 her practice has been limited almost exclusively to premises liability cases, such as those at issue in the Landowners Protection Act.  Yates’ practice has been equally divided between representing business owners/operators and persons injured on commercial property.  Yates has published articles and taught seminars relevant to maintaining safe businesses.  She is an AV-rated attorney, a current member of the Mississippi Association for Justice and is the past editor of the Mississippi Defense Lawyers Quarterly.

[2] “#MSLeg: ‘A gross misuse of your position.’ Meeting over controversial bill ends in shouting,” Clarion Ledger, February 5, 2016

[3] NPR with Mark Baker this morning

[4] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (“where an alleged dangerous condition is the threat of an assault, the requisite cause to anticipate the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.”)

[5] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (holding that a plaintiff had failed to offer sufficient evidence of the existence of an “atmosphere of violence” on Kroger’s parking lot where plaintiff only offered evidence of three purse snatchings in the parking lot and failed to offer any evidence of prior violent attacks).

[6] See, e.g., Fenelon v. Jackson MetroCenter Mall, Ltd., 172 So. 3d 760 (Miss. Ct. App. 2012) (holding that “a landowner is not an insurer of the invitee’s safety, but does owe an invitee the duty to keep the premises reasonably safe” and “as a general principle, premises owners are not strictly liable for all injuries occurring on their properties as a result of criminal acts of third parties.”)

[7] Section 2(3) states “Civil liability may not be based on the prior violent nature of the third party whose acts or omissions proximately caused the claimed injury or damage.”

[8] Section 2(1)(b) states: “The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party”

Medical Malpractice Win Rates for Plaintiffs is Consistent

Posted in Verdicts in Mississippi

Courtesy of Shannon Ragland with the Mississippi Jury Verdict Reporter and sister publications is this plaintiff win rate in medical malpractice trials:

State

Years

Plaintiff

Record

Plaintiff

Win %

Mississippi

2011-2018

37-129

22.2 %

Kentucky

1998-2018

234-837

21.8 %

Alabama

2002-2018

119-361

24.8 %

Tennessee

2005-2018

78-286

21.3 %

My Take:

It’s amazing how consistent the numbers are between states.

Keep in mind these are verdicts–not cases. Medical malpractice defendants win a lot of cases on summary judgment.

For anyone who might think a lot of cases settle, you’re wrong. Very few medical malpractice cases settle. Hospitals sometimes settle, but doctors almost never do.

We know from focus groups that prospective jurors are exceptionally biased towards doctors. Biased jurors are unwilling to apply a negligent standard of care in medical malpractice cases. They want willful or wanton conduct.

The uncertainty is the ‘why.’ Many doctors are rude. Going to a doctor’s office is often an unpleasant experience because customer service is so bad. At many hospitals, patients need a family member in the room with them because the staff is over-worked or lazy. You don’t hear many pleasant experiences that don’t involve going to a national center like Mayo, Cleveland Clinic or MD Anderson.

So I have a hard time believing the bias is because people just love doctors. Something else is going on there.

These stats help explain why there are so few medical malpractice lawyers. It was a viable practice specialty in the 90’s. Today, I don’t know a single lawyer who only handles medical malpractice cases.

Big Verdict in Hinds County Medical Malpractice Trial – 15% Fault to Defendant

Posted in Hinds County Circuit Court, Verdicts in Mississippi

On Friday a Hinds County jury returned a $2.5 million plaintiff verdict in Williams v. Ilercil. The jury apportioned 85% fault to St. Dominic Hospital, which settled before trial, and 15% to the defendant Orhan Ilercil.

Of the verdict, $872,000 was for economic damages. After applying the $500,000 cap for non-economic damage, the total verdict is $1,372,000. 15% of that is $205,800.

The pre-trial order explains the facts and parties’ theories: Ilercil pre-trial order.

The Defendant also wants a set-off for the amount of St. Dominic’s settlement.

Heber Simmons and Bryan ‘Trey’ Smith with Simmons Smith Mercier & Harris in Ridgeland represented the plaintiff.

Whit Johnson and Senica Tubwell with Currie Johnson in Flowood represented the defendant.

Circuit Judge Tomie Green presided.

My Take:

On the surface, the totality of the case seems like a good result for the plaintiff. It also doesn’t seem like a terrible result for the defendant. Even St. Dominic came out looking smart for settling.

It will be interesting to see whether the plaintiff cross-appeals on the constitutionality of the non-economic caps if the defendant appeals.

How the Court addresses the defendant’s argument for apportionment and set-off would also be interesting.

$350,000 Verdict in Jackson Federal Court Civil Rights Trial

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On Wednesday a federal court jury in Jackson returned a $350,000 verdict for the plaintiff in Sturkin v. Patrick.

Here is the Jury Verdict.

Here is the Complaint.

Plaintiff Donna Sturkin alleged Vicky Patrick was her probation officer in drug court. Sturkin alleged Patrick violated her rights by stealing from the store where plaintiff worked and demanding free rooms at the hotel where she worked. Patrick allegedly threatened plaintiff with jail if she did not comply.

When plaintiff did not comply, Patrick falsely reported to the court that plaintiff tested positive for alcohol. That resulted in plaintiff being jailed. The Complaint alleges she was not Patrick’s only victim. Plaintiff sued others, but Patrick was the only defendant at trial.

The jury concluded Patrick violated plaintiff’s civil rights and awarded her $350,000 in damages.

Craig Panter of Madison and Ronald Stutzman of Flowood represented the plaintiff.

Ottowa Carter of Clinton represented Patrick.

District Judge Carlton Reeves presided.

January 2019 Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the January 2019 issue of the Miss. Jury Verdict Reporter:

  • $1.6 million verdict- Harrison County termite damage case covered here (12/13/18);
  • defense verdict- Hinds County car wreck case (12/5/18);
  • defense verdict- DeSoto County medical malpractice case (11/29/18);
  • defense verdict- Tate County car wreck case (12/5/18);
  • defense verdict- Jackson County wrongful termination case (12/12/18); and
  • defense verdict- Hancock County car wreck case (12/10/18).

My Take:

For those keeping score at home, that’s a .166 batting average for plaintiffs.

Maybe it’s a coincidence, but the more attorneys advertise on television, the worse plaintiffs seem to do in trials.

In the mid-90’s, in general, trials were coin flips. Now, plaintiffs are trying to roll a hard 8.

Perhaps instead of showing happy clients without a scratch, plaintiff attorneys should show the wreckage (both human and property) suffered by clients who get big settlements.

About That No Discovery Proposal

Posted in Improving the Jury System

Last month two federal court of appeals judges sucking up to speaking at the Federalist Society Convention advocated no discovery in cases worth less than $500,000. From the Slate article:

Thomas Hardiman, a judge on the 3rd U.S. Circuit Court of Appeals, made what should have been viewed as a shocking declaration for a federal judge. Hardiman told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” The audience applauded. A fellow panelist, Judge Amul Thapar of the 6th Circuit, chimed in, “Can I say amen?” Thapar later repeated his endorsement of the idea.

My Take:

Thank god those guys aren’t orthopedic surgeons. “Your knee hurts? I’ve got just the solution. We’ll chop off your leg.

I doubt they were serious. In a tactic known well to touring musicians and professional wrestlers, this sounds like ‘cheap heat’ playing to the crowd. Ever heard “It’s great to be here tonight in Memphis, Tennessee” (or wherever you saw the show)?

I don’t know who is in the crowd at a Federalist Society Convention. But if it was lawyers and judges, I doubt their cheers were serious either. The judicial system is not known for embracing change.

I know it was not a bunch of insurance company people. The last thing in the world insurance companies want is to roll the dice in a trial where they haven’t been able to evaluate the risks due to insufficient information.

The first problem I see is who and how is it determined that a case is worth less than $500,000? Are we talking the amount the plaintiff is suing for, or the value of the case factoring in possible outcomes?

There are cases where plaintiffs sue for $2 million, but the case is worth less than $500,000. There are cases worth less than $500,000, where the plaintiff recovers $2 million. There are cases worth $2 million, where the plaintiff recovers $0.

District and Magistrate Judges have their fingers on the pulse of litigation enough to understand this. Court of Appeals judges? Let’s just say they view the landscape from a height far above reality on the ground.

I am all for improving the litigation system. I agree that discovery is not efficient. But the main reason it is not efficient is that in a system designed to prevent trial by ambush, many litigants try to conceal evidence and conduct trial by ambush.

Maybe we should try to improve the system work before we eliminate it?

In many cases, there is way too much mindless discovery conducted. Every witness in every case does not need to be deposed.

Why depose someone who you know what they are going to say? Some would respond that they don’t know what someone will say until they depose them. I disagree. Most witnesses say what you would expect them to say.

Deposing experts, in particular, is often counter-productive for the party taking the deposition. Think you are going to flip an expert in a deposition? Of course not.

Does there need to be a 7 hour time limit for depositions in all cases? Isn’t 3 hours plenty of time in most cases?

Should the mandatory disclosure system be updated and improved?

Should there be two summary motion deadlines in case management orders, one for affirmative defenses not dependent on discovery and a later deadline for other grounds?

These are just a few ideas off the top of my head. The system can definitely be improved. I’m just not sure a blanket ban on discovery in cases deemed to be small potatoes is the best way to do it.

A Look at Civil Filing Statistics

Posted in General, Tort Reform

This post is a follow up on a 2014 post about civil filings in Mississippi. Cliff Johnson, the Director of the MacArthur Justice Center at Ole Miss Law School, provided me with these updated statistics: Civil Cases filed 2001 – July 2018 .

Another helpful document for analyzing filings is the Mississippi Supreme Court’s Annual Report. Here is the 2017 Report. Reports dating to 1998 are on the Court’s website.

This page from the 2017 Annual Report breaks down state court filings by year for 2010 – 2017: State trial court filings and dispositions. Interesting stats for these years:

  • Chancery Court filings down from 88,424 to 59,221
  • Chancery Court disposed cases down from 64,994 to 56,079
  • Circuit Court civil filings down from 25,800 to 19,328
  • Circuit Court civil disposed cases down from 22,249 to 15,557

The drop in Circuit Court filings ended in 2013. Filings were fairly flat from 2013 through 2017.

In the federal courts, personal injury case filings for the 2010’s decade are consistently lower than in the 2000’s.

But in state’s of similar size, federal court filings are higher than in Arkansas, Kansas, Utah and New Mexico and lower than Nevada.

None of those states has seen the drop in filings experienced by Mississippi.

My Take:

These stats should help civil litigation attorneys analyze their career plans. If your practice is working, there is less to fear about it drying up than in prior years when filings were dropping.

If your practice is not working, you are going to have to cut into someone else’s business or find another job.

If you are thinking about starting a practice, you need to plan how you will get cases and realize industry growth will not be a tailwind. Competition for work is fierce.