On Tuesday the Mississippi Court of Appeals affirmed a $1,095,000 Hinds County jury verdict in Barnett v. Miss. Valley Silica Co.

Here is my brief post in October 2012 reporting on the verdict.

The decedent worked near sandblasting at Miss. Iron and Steel Co. on High Street in Jackson. He alleged that Valley Silica failed to warn of the danger of silicosis from its sand.

The jury ruled for the plaintiff and apportioned 35% of the fault to Valley. The verdict included $500,000 in punitive damages.

Valley raised at least eight appeal issues.

Judge Wilson wrote the Court’s opinion. The Court affirmed on all issues except for the amount of attorney’s fees. The Court ordered the trial court to make findings of fact and conclusions of law on the amount of attorney’s fees. This will likely be a matter of housekeeping for the trial court as opposed to a real win for Valley.

The Court found that the jury’s verdict was inconsistent, but that Valley waived the argument by not seeking clarification before the Court discharged the jury. The Court also rejected Valley’s real party in interest and standing arguments because Valley did not timely raise them.

The Court rejected Valley’s statute of limitations argument by finding that it was a jury question that Valley did not litigate at trial.

The Court found that the trial court properly applied both the apportionment and non-economic cap statutes.

The Court concluded that there was sufficient evidence to support punitive damages because Valley did not print a warning on its sandbags even though silicosis had been a known danger of sandblasting for decades.

Judges Ishee and Carlton dissented on the issue of standing.

Plaintiff’s counsel were Patrick Malouf, Allen Smith, Tim Porter, Johnny Givens and David McCarty. Defense counsel were John Cosmich, Michael Simmons and Lakeysha Greer Issac.

Judge Winston Kidd presided in the trial.

My Take:

A good win for the plaintiffs.

The main thing that I want to comment on is the issue of the jury’s verdict being inconsistent due to varying jury instructions. I’ve written about this problem before, including here and here. This is going to keep happening until the attorneys and court have more time to evaluate the instructions.

I’ve read or heard Judge Griffis say that appeal judges ride down from the hills after the battle and shoot the wounded. Appellate rulings on jury instructions have a lot to do with that funny (because it feels true) observation.

Judge Griffis has also been writing about the multitude of rules on his blog. I’m occasionally asked if I have any ideas for new rules that would be helpful. I always respond that there needs to be a rule giving trial judges a shot clock for deciding bench trials so they can’t sit on the decision for–and I’m not exaggerating–2-3 years or more.

But we also need a rule on improving the system for formulating jury instructions.I propose that the main jury instruction conference occur before the trial. Some of our federal court judges begin going over jury instructions in chambers days before the parties rest. This is very orderly and helpful. It results in better instructions. I would like to see the process start even earlier.

Judges think they will not like it. I think they are wrong. A pre-trial jury instruction conference would make the trial run smoother and decrease the chance of a screw up in the instructions. You would still have to review and tweak the instructions before closing, but the hardest work would already be done.

  • I had actually forgotten that Judge Griffis was still blogging – thanks for the reminder!

    You are right that jury instructions need to be handled on the federal model.

    I have to suppose that there will be rehearing & cert petitions. The apportionment vs. cap holding is wrong, IMHO (I’ve briefed it before but had a court reach it on appeal). It does at least merit MSSC attention, even if they vote to affirm.

    … Here’s a thought question: had the MSSC expected the first-impression issue of the apportionment/cap procedure to be reached, would it have deflected the case to the COA? Or did whoever signed off on that, think that the case was likely to go down on the standing issue? (Or did anyone think that far ahead, period?)

  • Ian

    How can you address jury instruction before trial of the judge does not yet know what the evidence will be? You can’t put the cart before the horse.

    • PhilipThomas

      If the judge is paying attention then he/she has a general understanding of what the evidence will be. Most federal court judges are already using some form of what I am talking about and it works much better. Judge Bramlette was the first judge I saw do it and Judge Guirola was the next. They started working on jury instructions during the trial. It worked great. And we lost both trials–so this is not a results oriented recommendation.

  • Nacholawyer

    Like TBA, I do not think they can apportion before the applying the cap. Under this method if a jury awarded $1.5M in non-economics and apportioned equally to three defendants, then the Plaintiff would obtain more than the cap would permit. The court didn’t have to deal with this situation because the other two defendants settled out. I don’t think there should be a different rule when there is only one defendant at trial versus the multiple defendant scenario.
    The biggest problem I have with this verdict is the punitive cap. The Court accepted the fact that the defendant had a zero (or negative) net worth but still upheld the 500k punitive award based on what clearly appears to me to be dicta in a MSSC case. What good is the 2% cap on punitives (statutorily tied to net worth) if the Court is free to ignore it when there is no positive net worth. Whether you agree or disagree with the cap, it’s still the law right now. Apparently the defendant would have been better off claiming it had a net worth of $1.00, rather than say it was bankrupt.