The WSJ reported this morning on the SEC investigating the compensation of executives of oil-driller Nabors Industries, including CEO Eugen Isenberg. Nabors is about to pay Isenberg $100 million to leave the company. The Journal reports that Nabors executives frequently used corporate jets to fly to resort destinations for the wealthy, such as Palm Beach and Martha’s Vineyard.

I know what you’re thinking: “this does not affect me.” That’s where you are wrong. The systemic reallocation of wealth from the middle class to top executives affects virtually all Americans.

Take Nabors, for example. While Nabors executives empty the corporate vault into their own pockets, the company pays 0 to shareholders in the form of a dividend. Don’t think you own shares in Nabors? Think again. If you have a 401k, you probably are invested in a mutual fund that owns shares in Nabors.

Participate in PERS? Same goes for you. As PERS flounders and lawmakers begin to confront projected short-falls, corporations sitting on piles of cash pay hundreds of millions to top executives and little or nothing to shareholders in dividends. If corporations increased dividend payouts by just 2%, PERS would be on much safer footing.

But top executives are not thinking about how to get money to shareholders. They are focused on getting the money into their own pockets. At your expense. And these guys absolutely control the Richublican (Republican) party by making massive contributions to Republican candidates and PAC’s. Contributions paid for by the corporation. Shareholders’ money being used to ensure that America’s top-level graft can continue unabated.

You may think you fit into the Richublican world. But you don’t. They let you think you do. You don’t. Do you have a mansion in Palm Beach, homes in Martha’s Vineyard and Aspen and an apartment in Manhattan? No you don’t. These guys view people who make $500,000 a year as lower middle class. And they’re coming for everyone. Yes, that means you doctors. How’s it going to feel when Medicare and Medicaid get massive cuts to free up even more cash for the CEO elite?

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.

NMC had a good post last week about the Mississippi Supreme Court’s Order requesting briefing on the waiver issue in Sears v. Learmonth. This is the case where the 5^th Circuit asked the Court to decide whether Mississippi’s cap on non-economic damages is constitutional. That was the sole question that went to the Court.

But the Court appears hung up on the fact that the jury’s verdict did not separate economic and non-economic damages and the District Court accepted a stipulation on the damages components. NMC writes:

So I’m going to express two different kinds of surprise, in the form of a question: Why would an appeals court not accept this stipulation by the parties? And, once the federal court has accepted the stipulation, what business is it of the state court, on certification of a different question altogether, to question that?

I’m taking this to mean they really, really don’t want to reach the question of constitutionality of the caps.

Good questions and a logical conclusion based on the posture of the case. Also interesting is Anderson’s comment on NMC’s post wondering why the Court even accepted the question if—as it appears—it wants to avoid answering it.

Here is my prior post on the Court’s request for additional briefing.

Now retired Hinds County Circuit Judge Swan Yerger had a reputation for going out of his way to dismiss cases. Judge Yerger seemed to get reversed by the Mississippi Supreme Court more than any other judge in the state for defense rulings. It happened again last week in Compere v. St. Dominic.

The case was a medical-malpractice action. The plaintiff filed the action less than 60 days after providing defendants with pre-suit notice. The defendants moved for summary judgment based on the deficiency in the pre-suit notice. Judge Yerger took the matter under advisement.

Plaintiff filed a second complaint more than 60 days after giving pre-suit notice. Judge Yerger then dismissed the first case due to the notice defect and dismissed the second case finding it was an improperly filed action under the doctrine of priority jurisdiction.

Judge Yerger also assessed monetary sanctions against plaintiff’s counsel for filing the second complaint. It’s unclear whether defendants requested the sanctions or Judge Yerger did it on his own.

The Supreme Court’s Opinion:

A unanimous Supreme Court reversed the dismissal of the second complaint and imposition of sanctions and remanded the case for further proceedings. The Court reasoned that priority jurisdiction did not apply. Priority jursidiction applies:

“when the same lawsuit has been filed in two different courts, not in the same court. More importantly, that doctrine presupposes a pending action that the plaintiff can proceed upon and obtain ‘adequate relief.’”

The Court noted that defendants “fail to argue or cite any authority that a lawsuit should be dismissed with prejudice and with monetary sanctions under priority jurisdiction.”

Justice Lamar wrote the Court’s opinion. James Bobo of Brandon represented the plaintiff. Lane Staines, Sharon Bridges, Jonathan Werne (all with Brunini), Ray McNamara and Stephanie Edgar (both with Watkins Ludlam) represented the defendants.

My Take:

James Bobo is a good guy, so I am glad to see Judge Yerger’s decision reversed. Cases like this are why Judge Yerger had a reputation for being pro-defense and unfairly dismissing cases. Most people would agree that cases should not be dismissed where there is no authority to support the dismissal.

Incidentally, Judge Jeff Weill replaced Judge Yerger on the Hinds County Circuit Court. Early reviews on Judge Weill have been favorable from both plaintiff and defense lawyers.

The Northeast MS Daily Journal reported yesterday that disbarred Jackson lawyer Vann Leonard will be sentenced on October 13 in federal court in Aberdeen for embezzling $327,585 from a bankruptcy estate. Leonard pleaded guilty in the case in February. The court sealed the file and Leonard returned to the practice law where he (allegedly) embezzled money from clients. Leonard has been in jail since May for embezzlement not related to the federal court charges.

Jackson Jambalaya has provided the only coverage of the Leonard saga in the Jackson area. Other JJ posts are here and here.

Leonard’s client trust account was overdrawn several times in the months leading up to the embezzlement from the bankruptcy estate. It is unlikely that Leonard would have still been practicing law at the time if Mississippi had a rule that required financial institutions to report to the Mississippi Bar when lawyers bounce checks from their trust accounts.

In 1988 the American Bar Association issued a model rule for trust account overdraft notification. Here is a link to the ABA rule. Mississippi should adopt the ABA model rule in order to protect the public from unscrupulous attorneys. If we had such a rule, there would be many fewer victims of Vann Leonard.

Fun Friday is back—at least for this week—by widespread, universal, popular, a couple of dude’s demand.

The SEC looks like a 2 horse race this year between Bama and LSU. The teams look pretty similar, but you have to give Bama the edge for 3 reasons: (1) LSU vs. Bama is in Tuscaloosa, (2) Trent Richardson, and (3) Nick Saban. If Bama wins the national title this year, you kind of have to wonder how much longer Nick Saban will coach. He hides it well if he is a coach forever kind of guy.

But LSU fans have a lot to be optimistic about. LSU has beaten 3 ranked teams away from home and not really been challenged in any game. Usually with a Les Miles team every game is a heart-attack game that goes down to the wire. The fact that LSU has won every game comfortably says a lot about the strength of this team.

What’s up with Miss. State and Ole Miss? Will either win 6 games this year? I don’t see a path for Ole Miss to win 6 after losing to Vandy and BYU. Houston Nutt doesn’t have it anymore. Everyone knows it. The question is: when can Ole Miss afford a new coach?

Isn’t it ironic that Ole Miss has a group of fans called “Forward Rebels” and a bunch of fans who just want to go back to the good ole days of Colonel Reb and Dixie? State is the big winner when many Ole Miss fans refuse to let go of the past.

State might not get to 6 wins either. State’s offense looks terrible. Do they have an offensive line? The Dan Mullen window of opportunity to move up in the coaching ranks is closing. Two losing seasons in a row and he will not have a job at State either.

The Saints look good. But Green Bay looks great. It’s going to be hard for the Saints to get out of the NFC this year, particularly if they have to play in Green Bay in January. At this point, I would not bet on a Saints return to the Super Bowl.

That’s a question that was asked in this weekend’s Clarion-Ledger article by Jerry Mitchell following the unsealing of Ed Peters’ grand jury testimony [available here courtesy of NMC] in Scruggs-gate.

The photo to the right is of Peters and Bobby DeLaughter. Now we know what they are smiling about.

The article quotes Oxford lawyer and blogger Tom Freeland (NMC) on this issue and states:

Oxford lawyer Tom Freeland, who has covered the case closely on his website, North Mississippi Commentor, nmisscommentor.com, said Peters’ statements “show a lot more about what was going on inside and how corrupt it was.”

Elsewhere in the FBI statement, Peters described how he had been approached by both sides in the same lawsuit involving a fatality.

“It’s totally unethical,” Freeland said. “Peters is on both sides of a transaction, hoping money shakes loose.”

What has surprised him is the Scruggs cases weren’t pursued by Mississippi prosecutors.

“These are state crimes, too,” Freeland said. “Both local and statewide prosecutors have left it alone.”

Attorney General Jim Hood sent letters to the local district attorneys in those counties, offering his assistance to them.

District Attorney Ben Creekmore of New Albany said his office met with federal prosecutors and let them know if there was anything that needed to be pursued, he would.

“We felt like any insertion of our office into that whole mess would have gained very little as far as criminal justice is concerned,” he said. “It would have been more attention-seeking than justice.”

He added that his office has “our hands full with our dockets.”

I raised this question in 2010 in this post about a Sid Salter interview of Rankin County District Attorney Michael Guest. Salter raised the question in 2008 in a column that he quotes in his comment responding to my 2010 blog post, and took issue to Johnny Come Lately’s on this issue:

District attorneys in multiple venues in Mississippi have already spoken to the fact that since Mississippi’s attorney general didn’t prosecute public corruption cases against Peters, DeLaughter, Langston, Scruggs, Balducci, Patterson, et al, then they didn’t think they had the resources to go after such charges either. If you will recall in the Neshoba County state charges against former Klansmen Edgar Ray Killen and other high profile cases, the local DA got the active support of General Hood’s office and his personal intervention in the case.

But Hood took a pass on the judicial bribery cases altogether — all of them.

Where were you in 2008 on this issue, Mr. Thomas? Massaging your “certified civil trial advocate” plaque?

What color is that, Bubba?

Next time you have a question about how I go about the interview process, be sure and weigh in again. I love interaction with “certified civil trial advocates” — being a mere mortal and all.

My Take:

I still can’t get over the Salter personal attack, but that’s neither here nor there.

I find it interesting how this issue has evolved since Salter first raised the question in 2008. Salter seemed to blame Attorney General Jim Hood for there being no State prosecution against Peters. But Jerry Mitchell’s 2011 article states that General Hood offered to assist local D.A.’s in prosecutions. And there were at least three D.A. jurisdictions where charges could have been brought. And the feds could have prosecuted too in either the Northern or Southern Districts.

So who’s to blame for what many agree is an injustice that Peters was never charged? I never came up with a good answer to this question. I heard a lot of theories; many of which made sense. But I never heard what I thought was a good definitive answer.

On the issue of Eaton’s culpability for Peters’ actions in the Eaton v. Frisby case, Tom Freeland makes a good point at NMC:

It strikes me that the question isn’t whether Ed Peters, hired as a lawyer by Eaton, was supposed to influence the judge– after all, isn’t that what lawyers do? The question is whether Peters (who was hired secretly and off the record, a fact Eaton’s legal pleadings keep omitting) was hired to improperly influence Judge DeLaughter.

Specifically, I would like to see Eaton’s answer to these two questions that I posed in this 2009 post:

I would like to see Eaton and McGrath answer these two questions:

1. exactly who told you that you should hire Ed Peters?
2. what was the reason(s) you were given for why you should hire Peters?

Because let’s face it: somebody on the Eaton side of the ‘v’ knew that they were hiring Peters to improperly influence DeLaughter. Or at a minimum, they figured it out pretty quickly that that’s what Peters was doing when he came back reporting to them on what he was doing.

Think about it. In the Scruggs v. Wilson case Scruggs’ lawyers knew every move Peters made in communicating with DeLaughter. Eaton v. Frisby was a very complicated trade secrets case. Peters was not Eaton’s primary lawyer—not even close. But we are supposed to believe that—completely on his own—Peters got up to speed on the details of the case and then discussed them with DeLaughter? Come on.

If you haven’t seen it already, you want to check out this recent NMC post on Eaton v. Frisby. NMC also has Ed Peters’ 302 Report here, which details Peters’ involvement in the case. In the 302 report, Peters states that he was hired by Eaton lawyer Mike Shauman of the Quarles Brady law firm in Milwaukee and that Jackson lawyer Mike Allred was Eaton’s local counsel. It’s impossible to read Peter’s account of his improper meeting with DeLaughter about the Eaton case without concluding that the Eaton camp knew about the meeting.

Here is some more information on yesterday’s $2.2 million verdict in Hinds County that was the subject of this post.

The jury deliberated for 45 minutes. Judge Winston Kidd presided in the case. Mark Caraway with Wise Carter in Jackson represented CMMC. Lance Stevens of Jackson represented the plaintiff.

CMMC’s main defense was that there was no contract. CMMC lost this issue on summary judgment, but plans to appeal the decision.

CMMC also believes that it was denied a fair trial because the court did not grant a continuance. The basis for the continuance request was that CMMC’s main fact witness was recently diagnosed with cancer and is currently experiencing the ravages of chemotherapy. The witness was hospitalized the morning that the trial started due to injuries sustained in a fall.

My Take:

Sounds like this was a swearing match case. A doctor is almost always going to win a swearing match. Even when he is the plaintiff. I believe that this is because Americans are indoctrinated from birth to trust their doctor. This carries over into the courtroom.

Here, the doctor and hospital disputed whether a contract existed. The doctor is going to win this type of swearing match most of the time regardless of whether he is the plaintiff or defendant in the case and whether there are holes in his story.

I reject cases all the time because they are going to come down to a swearing match between the doctor and patient over what was said and happened. I feel like I have better odds in a casino that on winning a swearing match against a doctor.

CMMC’s argument on appeal will likely be that the existence of a contract was a question of law and the trial court got the ruling on this issue wrong. That would take the doctor swearing match out of play.

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.

The September edition of the Mississippi Jury Verdict Reporter hit news stands this week and once again does an excellent job of reporting on Mississippi verdicts.

The verdicts reported in the issue include:

• the October 2010 $103 million legal malpractice verdict against Baker & McKenzie discussed in these posts;
• the $578,000 employment discrimination case discussed in this post;
• an August defense verdict in a federal court case involving a train-truck collision; (winning lawyer: George Ritter of Wise Carter)
• a July Hinds County verdict of $500,000 in a FELA case; (losing lawyer: George Ritter of Wise Carter)
• a May $175,000 verdict in a Jones County electrical negligence case;
• a July defense verdict in a Jackson County medical malpractice case;
• an August defense verdict in a Northern District Federal Court race discrimination case;
• a June $180,000 Hancock County verdict for negligence related to a mobile home;
• a plaintiff verdict awarding $0 in damages in a Harrison County negligence case; and
• a $13,680 verdict in a Monroe County eminent domain case.

My Take:

Aside from the anomaly of the Baker McKenzie verdict, it was another mediocre verdict report for plaintiffs.

How can you have a plaintiff verdict with no damages? If there are no damages, shouldn’t it be a defense verdict? I don’t get that one.

What a Summer for George Ritter of Wise Carter in Jackson. Let that be a lesson for all trial lawyers. You win some. You lose some.

Ritter has never been afraid to tee one up, which is a characteristic of all good trial lawyers.