The Clarion-Ledger ran this article on Monday about the $2.2 million verdict last week in Hinds County that I discussed here and here.

The article states:

Dr. Adolfo Morales, a board-certified ophthalmologist, had alleged CMMC breached a physician recruitment contract in 2004, which would have allowed him to establish a surgery practice in Jackson.

CMMC said in court papers the final agreement was never consummated because the home office of its parent company, Health Management Associates Inc. in Naples, Fla., had undergone a change in management that did not approve the deal that previously was struck.

But after a three-day trial in Hinds County Circuit Court, the jury sided with Morales.

Nothing in the article changes my prior take, which is that doctors usually win swearing matches. Maybe they shouldn’t, but they do.

There are reports of a $7.5 million verdict last week in Coahoma County. The case was a wrongful death case involving the death of a 2–year old in an apartment fire.

Ralph Chapman and Brennan Chapman of Clarksdale represented the plaintiff.

I will post more information on this verdict if I get any. I’m sure that an upcoming issue of the Miss. Jury Verdict Reporters will have a full report.

There were at least four significant civil trials last week in Mississippi with the plaintiffs winning 3 of 3 that went to verdict. I did not get much information on all but the Amite County verdict. Here is what I know:

1. A $1.2 million verdict in Hinds County Circuit Court against Manhattan Nursing Home. I believe that Manhattan is in the Tara Cares System. Manhattan has a long tradition of being a bad nursing home dating back at least a decade to when it was in the Beverly system. Howard Thigpen of Morgan & Morgan represented the plaintiff. Barry Ford, Davis Frye and Brad Moody of Baker Donelson represented the defendant. Judge Tommie Green presided. This verdict will presumably be reversed due to the caps.
2. A $1.0–plus million verdict in Rankin County in a medical malpractice trial. I believe that the doctor got a defense verdict and the hospital was found liable. I don’t know anymore about this verdict.
3. A $125,000 verdict in Amite County against Farm Bureau Insurance. The case involved a dispute between former agent Alinda White and Farm Bureau based on Farm Bureau implementing sales quotas. Mitch Tyner of the Tyner Law Firm in Jackson represented the plaintiff. Dale Russell and Ellen Robb of Copeland Cook in Ridgeland represented Farm Bureau. Judge Al Johnson presided.

There was also a medical malpractice trial taking place in Pike County last week before Judge Mike Taylor. I do not know whether there has been a verdict.

A Hinds County jury awarded $1.02 million last week to the victim of a miss-filled Coumadin prescription. Coumadin (Warfarin) is a blood thinner prescribed to prevent blood clots that can lead to injuries such as strokes.

Here is a copy of the Complaint. Margie Kemp was the plaintiff. Kemp alleged that Mississippi Discount of Drugs of Clinton gave her 10 mg. tablets of Coumadin instead of the 2 mg. tablets that her doctor prescribed. Employees of Mississippi Foundation of Central Mississippi called in the prescription. The plaintiff sued both.

The error caused plaintiff to suffer Warfarin toxicity, coagulopathy, acute blood loss, anemia, intra-abdominal bleeding and a ruptured spleen. Doctors had to remove her spleen as a result of the injury.

The jury found against Miss. Discount Drugs and rendered a defense verdict for Miss. Foundation of Central Miss.

Judge Tommie Green presided in the case.

Walter ‘Bubba’ Morrison and Robert Greenlee of Sessums, Dallas & Morrison in Ridgeland represented the plaintiff.

Wade Manor of Scott Sullivan in Ridgeland represented Miss. Discount Drugs. Stephen Kruger of Page Kruger in Flowood represented Miss. Foundation of Central Miss.

My Take:

I feel Manor’s pain. I once lost a miss-filled prescription case in Hinds County with Judge Green presiding. Hardly a week goes by that John Giddens (the winning lawyer in the trial) does not remind me of the case.

Incidentally, if you want to get a verdict against Kruger, you have to wear a burlap suit to trial.

Mississippi had two big wins recently in civil litigation headed by Attorney General Jim Hood.

Mississippi Recover $8.1 Million in Tobacco Litigation

A couple of weeks ago, Jackson County Chancery Judge Jaye Bradley ordered R.J. Reynolds to pay the State over $8.1 million based on the company under paying the State in money owed from the 1997 tobacco settlement. Here is the Clarion-Ledger article on the State’s win.

Can you believe it? A tobacco company lied about cigarettes. What’s the world coming to?

Meanwhile, General Hood’s opponent in the November A.G. election criticizes Hood’s use of out-of-state lawyers in A.G. litigation:

His opponent in this fall’s election, Steve Simpson, has criticized Hood for selecting law firms to represent the state without independent oversight.

“If elected, I will ask the Legislature to establish a procedure to review the reasonableness of the contingency fees after an application by the law firm,” Simpson said in a statement. “I believe that our law firms in Mississippi are some of the best in the country and will ask that these firms be given preferential treatment when outside counsel is required.”

So who were these lawyers who Hood hired for the recent tobacco litigation? The Ledger reports:

The state’s legal team was headed by Lee Young, who worked on the original tobacco settlement, Hood said.

So where is this “Lee Young” from? Oh, Pascagoula. Granted that’s in Mississippi, but barely.

Assisting Young on the tobacco case were Matthew Mestayer of Biloxi and Charles Mikhail of Moss Point.

Mississippi Recovers $38 Million in Drug Litigation

Wednesday’s Clarion-Ledger reports that the State is recovering $38 million from Sandoz, Inc. for inflating wholesale prices of prescription drugs:

Judge Thomas Zebert awarded Mississippi $23,661,618 in compensatory damages, $11,830,809 in punitive damages and $2,699,000 in penalties, for a total of $38,191,427.

In addition, the court entered an injunction on Sandoz reporting false average wholesale prices to Mississippi, the release stated.

“Sandoz, with its greed for more profits, caused Mississippi to overpay on drug prescriptions and some of our neediest citizens were being denied health care due to cost overruns,” Hood said in the release.

Representing Mississippi in the drug litigation was Ronnie Musgrove (name sounds familiar) of the Copeland Cook law firm in Ridgeland. The only odd thing about that is that Copeland Cook is a large insurance defense firm.

My Take:

In a two week period Jim Hood recovered $46 million for the State. And he did it with Mississippi lawyers. This was probably not the best two weeks for the Simpson campaign.

The problem that Republicans have in unseating Jim Hood is that Hood seems to be doing a credible job as A.G. I agree with Simpson that Mississippi lawyers should get preferential treatment when outside counsel is needed. But it’s not like Hood only uses out-of-state lawyers. Mississippi lawyers are sprinkled in even on the cases where out-of-state lawyers are used. I just don’t see Simpson getting much traction with this criticism of Hood.

There was a defense verdict this week in the Pike County medical malpractice trial against a doctor that I mentioned in this post. As reported by Shannon Ragland of the Miss. Jury Verdict Reporter in the comments, the style of the case was White v. Sumrall.

I believe that it was a labor and delivery case involving a birth that occurred approximately 15 years ago. The Kitchens Law Firm in Crystal Springs represented the plaintiff. Bob Ramsey of Hattiesburg represented the defendant. Judge Mike Taylor presided in the case.

I’m sure that there will be more information on this verdict in a future issue of the Miss. Jury Verdict Reporter.

On Wednesday a Hinds County jury awarded a physician $2.2 million in a lawsuit against Central Mississippi Medical Center (CMMC) for breach of contract.

Jackson attorney Lance Stevens represented the plaintiff-doctor.

I will post more information about this verdict if when it becomes available.

I previously discussed Union Carbide’s Motion to Recuse Judge Bowen from hearing further proceedings in the Smith County asbestos drilling mud case that resulted in a $322 million verdict. In July, the Mississippi Supreme Court stayed proceedings in the case pending its decision on the recusal issue.

Here is the plaintiff’s response brief filed with the Supreme Court. The plaintiff’s main argument is that Union Carbide waived its recusal request by failing to timely assert the motion. Judge Bowen disclosed that his father was exposed to asbestos before the trial. The brief states:

Union Carbide was given these facts before trial. Despite the fact that Union Carbide and Conoco Phillips had six lawyers in Raleigh, along with a Research Squad laden with laptops, printers, and a comprehensive database which managed to track down detailed private data of several hundred venire members, they claim they were unable to determine anything about Judge Bowen’s parents until after trial. In light of the presence of the Research Squad, a half-dozen lawyers, and seemingly infinite resources to scour the data of Smith County residents, this argument is not credible.

The plaintiff also contends that no reasonable person would question Judge Bowen’s impartiality.

Here is Judge Bowen’s supplemental response in the Supreme Court. Judge Bowen states that he didn’t know that his father ever had an asbestos claim.

My Take:

Six lawyers at trial? And a Research Squad? Outstanding. I envision the Research Squad entering the courthouse every day dressed in camo with laptops and printers strapped to their backs.

One time back in the day I was 5^th chair at a trial. I watched the whole trial from the third row of the gallery. It was fun—in a way. I was billing hours and learning about trial practice with absolutely no pressure. I ate like a king and slept like a baby at night. It was bit like going back to NITA for a week, except I didn’t have to do anything and the trial was for real. I’m the type of lawyer who thinks that I should always be the one first chair at a trial, so I couldn’t have made a career out of 5^th chair. But it was fun to do once.

Last week the Mississippi Supreme Court issued decisions in two cases that will allow voters in the November elections to decide issues related to abortions and eminent domain.The Court basically punted on the substantive issues and decided the cases on procedural grounds.

In Hughes v. Hoseman the plaintiffs challenged Measure 26, which asks voters to decide whether life begins at conception. Cliff Johnson and Rob McDuff of North Congress Street in Jackson represented the plaintiffs.

Here is the Court’s 7–2 opinion. Justice Pierce wrote the majority opinion. Here is a CNN article on the case.

The Court determined that the dispute is not ripe for adjudication, since the amendment has not passed yet. The decision contradicts a 2000 Miss. Supreme Court decision that ruled that the Court does have the authority to review the constitutionality of proposed initiatives. Neither side raised the ripeness issue.

In Speed v. Hoseman, the plaintiff challenged the State’s ability to take and transfer private property through eminent domain. Here is the Court’s 7–2 opinion. Justice Lamar wrote the majority opinion. As in the personhood case, the Court dismissed the case on ripeness grounds.

My Take:

I thought David Hampton’s analysis in the Clarion-Ledger was good:

It is disappointing that the state Supreme Court is allowing the referendums on eminent domain and the so-called “personhood” amendments to proceed on the Nov. 8 ballot. There clearly are legal issues with both, but the court basically punted and said the election should be held before any further consideration. The court said it was not known if the amendments would be rejected, so it would be premature. News flash. As flawed and potentially harmful as both of these amendments are, they will be overwhelmingly approved. The move to restrict eminent domain appeals, wrongly so, to property rights beliefs and the personhood amendment is a thinly veiled referendum on abortion. They have strong public support. They, along with the initiative to require voter ID, however, mostly are politically motivated efforts to appeal to voters passionate about those issues and bring voter turnout, which Republicans see as beneficial to the GOP. The Supreme Court will be seeing these again. The fact that we have an elected Supreme Court most likely played a role here. It would have been very politically unpopular for the judges to block the election. That’s too bad. These initiatives should not be on the ballot.

In all likelihood, the Court’s decision simply delays its having to rule on these politically sensitive issues. I prefer an appointed judiciary so that observers don’t view “an elected Supreme Court” as being a factor in decisions.

Finally, these opinions are more evidence that the principle of stare decisis is not strong in Mississippi—at least not currently.

There has been a lot of press lately about Mississippi’s Public Employees Retirement System (PERS) and the stability of the program. Governor Barbour appointed a special commission to study the system. Here is a recent Clarion-Ledger article on the topic.

Much of the focus—and pretty much all of the Clarion-Ledger’s focus—has been on the future stability of the “13th check”, which provides an extra check at the end of the year for a cost of living increase in retirement benefits.

Ted Carter with the Mississippi Business Journal’s report on the issue focused on the question of whether the PERS assumed rate of investment return is sustainable. I believe that Carter’s focus is correct and the investment return issue is the 600–pound gorilla with PERS—not the 13th check. MBJ’s article states:

The study commission has hired GRS Actuarial and Consulting Services of Southfield, Mich., to help with the panel’s audit recommendations and other proposals.

Schloegel said GRS and the panel will scrutinize PERS projections that the system can maintain returns of 8 percent on investments. “We want to know whether that needs to be looked at and challenged,” he said.

Tim Medley, a speaker and principal of Jackson financial advisory firm Medley & Brown, said 8 percent is “ambitious.”

The PERS Trust, the system’s policy board, should have more investment specialists serving on it and PERS itself should have at least “10” investment analysts rather than the single one it now has, Medley said.

Medley was being nice calling the 8% investment assumption ambitious. A more appropriate term would involve profanity, so I’ll call it hog-wash.

Presumably, money paid into PERS by participants is invested in a combination of stocks and bonds. Care to take a guess on the average return of the S&P 500 for January 1, 2000 through December 31, 2010? 2.4%. In fact, the S&P today is at 1162, a level hit first it in 1998. Think about that. $1,000 invested in an S&P index fund in 1998 is now worth….$1,000.

Stock market returns are fueled by economic growth. If the economy is growing at all—which is up for debate—it’s not by much. And experts predict anemic economic growth could be with us for another decade as we recover from the 2008 financial crisis.

What about bonds? The Vanguard Total Bond Market ETF currently yields 3.2%. That number is not going up unless interest rates rise. But the Fed just committed to another 2 years of interest rates close to zero. You simply can’t find consistent returns of 8% in this market. Historical returns are just that–historical.

How big of an impact does this have on the PERS system? Here is an example. A $1 million account earning 8% for 11 years will grow to $2,331,639. But if the account earns 2.4%, the total after 11 years is only $1,298,074. That’s a difference of $1,033,565. I used the calculator at this website to reach these figures.

What’s the bottom line? PERS is not sustainable at current levels unless there is a dramatic rise in interest rates or a huge turn around in the economy. Personally, I don’t see either happening in the foreseeable future.

That means Mississippi would have to make up the short-fall by allocating money from the State budget to PERS or cutting benefits. Most likely, there will be a combination of both. This should scare state employees, including those in working in the the judicial system.

But don’t blame Governor Barbour or the special commission chair George Schloegel, Mayor of Gulfport. Barbour should get credit for not sticking his head on the sand on this issue and Schloegel is a good choice to chair the commission. Schloegel is the former president of Hancock Bank, which did not have to take TARP bailout money from the government in the 2008 financial crisis. By comparison, Trustmark took $215 million and paid it back. Regions took $3.5 billion and hasn’t paid it back.

Mississippi’s pre-paid college tuition program has a similar problem, as I discussed in this post.