I hear about it from readers who don’t like it when I don’t have a new post every day. Even when I am out of pocket, as I was last week, people mention it to my wife at the law firm where she works. Don’t fret. I’ll be back to a full schedule soon.

There was a lot to talk about last week in Mississippi litigation. But I was unavailable to blog. I plan to start catching up later this week. Topics will include thoughts on the passing of Judge Senter, Governor Barbour’s appointment to the court of appeals and the Hinds County jury verdict in a medical malpractice case. Perhaps we’ll even check in to see how Sophie the wiener dog is enjoying the spoils of victory.

For those who wonder how I blog during trials, the answer is that I don’t. I write a few posts before the trial and then schedule them to post while I am gone.

There is a silica trial taking place this week in Claiborne County. The plaintiff claims that he was exposed to silica at the Grand Gulf Power Plant.

I understand that there are concerns that there could be a mistrial ordered due to the Mississippi River flooding in Claiborne County. Apparently, water is at Hwy 61 near the courthouse and on the rise.

Tim Porter and Johnny Givens of Porter & Malouf in Ridgeland represent the plaintiff.

Chip Wilbanks with Wells Moore in Jackson and Karen Maston with Sedgwick out of Houston represent the defendant MSA. Luther Munford with Phelps Dunbar in Jackson is assisting the defense—presumably for appeal purposes. Munford is an appellate specialist.

Judge Lamar Pickard is the trial judge.

On Thursday the Mississippi Supreme Court reversed a $2.5 million Hinds County jury verdict against Deviney Construction Company. I reported the verdict two years ago in this post. Here is the Court’s opinion.

Facts:

The plaintiff called two Deviney employees as witnesses early during plaintiff’s case in chief. Circuit Judge Tommie Green ruled that the defendants cold not reserve questioning and call the witnesses during defendant’s case. Defendants had to question the witnesses then or not question them at all. Defendants could not recall the witnesses to question them about the testimony of the eight plaintiff witnesses that followed.

The Ruling:

A restrained opinion stated that: “a defendant should not be required to present his or her evidence during the plaintiff’s case.” The Court ruled that this was a major error and remanded the case for a new trial.

Justice Lamar wrote the unanimous opinion.Wayne Drinkwater with Bradley Arant in Jackson represented Deviney on the appeal.

My Take:

This was a sensible decision. The trial judge’s ruling is a real head scratcher.

I feel bad for the plaintiff and plaintiff’s counsel Ashley Ogden. It does not appear from the record that plaintiff’s counsel asked for the trial court’s ruling. Nothing like getting your verdict reversed over something you didn’t ask for.

Another week-long trial. Another loss. I seem to be getting better at losing trials. Since I agree with NMC that it’s bad form to blog about your own cases, you’ll have to read about it in the Mississippi Jury Verdict Reporter.

Is it just me, or does anyone else’s brain feel like a scrambled egg after a long trial? Win or lose.

Meanwhile, in a blatant attempt to avoid commentary on this blog, Governor Barbour filled the the vacant Court of Appeals seat while I was out of town. Here is a link to the the Clarion-Ledger article about Barbour appointing former Hinds County Circuit Judge Ermea “EJ” Russell to the Court. She replace Chief Judge Leslie King, who Barbour promoted to the Supreme Court.

My Take:

I don’t have much of a take on this. I do not know Russell and never practiced before her while she was on the Hinds County bench.

I heard a lot of speculation about who might fill King’s seat before Barbour appointed King to the Supreme Court. I heard little to no speculation about the position after the actual King appointment. But I really didn’t go looking for information on it either.

My general sense is that Russell was not previously on most lawyer’s radar. This means that most people don’t have strong feelings about her appointment one way or the other. That may be a good thing. It will allow Judge Russell to be judged by her work on the Court without pre-conceived notions about her bias or abilities.

I don’t have time to write new content today, so for my readers who complain when I don’t have a new post every day I am directing you to this practice tip at Anderson’s blog. The subject is Miss. R. Civ. P. 45 and who has to file a motion if the person served objects to the subpoena.

Anderson notes:

The burden to go to court is on the party serving the subpoena, not on the served party — which makes sense. Arguably you don’t even have to file the objections (tho I would anyway), just serve them.

This is pretty obvious on the face of the rule, but since three lawyers smarter than I am didn’t know this the other day, it seems worth posting.

Years ago in my big firm days I dissected Rule 45, though I can’t remember why. It led me to the conclusion that most lawyers have never read it. In addition to the language that Anderson cites, there are provisions that:

1. Mississippi residents can only be required to attend a deposition or produce documents in the county where he/she resides, is employed or transacts business [45(b)]; and
2. the subpoena must give at least 10 days to produce documents [45(d)(2)].

Lawyers can get very frustrated when they don’t know this rule and run into someone who does and doesn’t want to produce documents.

Reports from Claiborne County are that the water is rising fast. The plaintiff lives in Vicksburg and had trouble getting to Port Gibson today because Highway 61 is closed.

As a result, Judge Pickard is pressing to get the ongoing silica trial to verdict today. The parties argued jury instructions last night after the jury left for the day. It’s expected that closing arguments will be today. Perhaps even before lunch. If they don’t finish soon they’re going to need some canoes.

Reports are that the plaintiff’s Closer Dennis Sweet is participating in the trial. It will be interesting to see how plaintiff counsel splits closing.

On Tuesday a federal court jury in Gulfport returned a verdict of $1,132,491 in a case involving an 18–wheeler rear-end collision on I-10 in Harrison County. Here is the verdict form, which awarded the following damages:

• medical expenses: $132,491.50
• lost earnings: $850,000
• non-economic damages: $150,000.

The jury assigned 1% fault to an unknown driver. As a result, judgment was entered against the defendants for $902,376.59. Here is the judgment.

Here is the original complaint filed in state court. The case was removed to federal court.

Kasie Braswell of Mobile represented the plaintiff. Benny ‘Mac’ May of Dunbar Monroe in Ridgeland represented the defendants. Judge Louis Guirola was the trial judge.

My Take:

I can’t tell who won. The defendant presumably did not admit liability based on the apportionment part of the verdict form. So plaintiff getting a verdict against the defendant was a win for the plaintiff.

But the amount of the verdict seems small for this case. The plaintiff had economic damages of almost $1 million. The jury’s award of $150,000 in non-economic damages was a victory for the defense. Once you factor in attorney’s fees, the plaintiff would not be made whole by this verdict even if she had no non-economic damages. But with $132,000 in medicals, the plaintiff probably had substantial pain and suffering. So both sides can find something to like about this verdict.

On Friday a Yazoo County Circuit Court jury rendered a $1.165 million verdict in Winstead v. Simmons, et al. On Monday the jury returned a punitive damages verdict for another $100,000. The punitive verdict will allow the plaintiff to recover attorney’s fees.

Plaintiff alleged that he was the victim of a corporate freeze out in a catfish farming operation. Plaintiff also asserted claims for fraud and defamation. Ray Winstead was the plaintiff. The defendants were Harry Simmons and Chat Phillips.

The trial lasted two weeks with Judge Janie Lewis presiding. Dorsey Carson and John Lassiter with Burr Forman in Jackson represented the plaintiff. John Donaldson and Jay Barbour of Yazoo City represented the defendants.

My Take:

This sounds like a big win for the plaintiff. Cases involving shareholder disputes can be interesting and involve a lot of money.

An often over-looked facet of a punitive damages claim is the fact that a punitive verdict allows the plaintiff to recover attorney’s fees. The attorney’s fees for a two week trial of a shareholder dispute case with regional law firm lawyers are going to be well into six figures.

I obtained more information on Tuesday’s million dollar plus verdict in federal court in Gulf port in an 18-wheeler case. According to my reports the plaintiff claimed $155,000 in medical expenses. That means that the jury awarded less than the actual bills in medical expenses. The medicals included $50,000 for a surgery for a blood clot caused by a bad needle stick.

Plaintiff claimed lost wages of $2.1 million. Defendants’ economist said the number was $579,000. The parties disagreed on plaintiff’s work life expectancy. They compromised this disagreement by agreeing to reduce the lost earnings verdict by 26%. That is why the judgment is smaller than the verdict minus the 1% apportionment.

Defendants hoped for a higher fault apportionment to the unknown driver who caused plaintiff’s driver to slam on the brakes. The jury rejected the argument and found that the 18-wheeler should have stayed far enough behind the car to avoid the accident.

The jury was all white and very conservative.

I do not know what the defendants were hoping to keep the verdict to. But based on this information, my estimate is that they wanted to keep it under $500,000. A grand slam home run for the plaintiff would have been a verdict over $2.5 million. Of course, that size verdict is real hard to get in that conservative of a venue.

All in all it looks like a victory for the plaintiff. As is often the case in clear liability auto collision cases, the verdict was well between the two sides’ positions.

The Clarion-Ledger reported on Friday’s guilty verdict in federal court in Jackson of 54–year old Cassandra Faye Thomas. The Jackson doctor was accused of orchestrating a fraudulent scheme to defraud Medicare and Medicaid of $6.9 million. The doctor was convicted of bilking the system through unlawful claims for therapy services. The verdict brings attention to a massive problem that costs U.S. taxpayers billions of dollars every year.

Here is an 2009 overview of healthcare fraud by Sara Rosenbaum, Nancy Lopez and Scott Stifler of the George Washington University Medical Center. Some of the findings include:

• estimates of healthcare fraud range from over $68 to over $200 billion annually;
• 3–10% of healthcare spending is on fraudulent claims;
• 80% of healthcare fraud is committed by healthcare providers; and
• victims tend to be low income and elderly persons.

Entire businesses are set up to game the system. For instance, many nursing home operations reap huge profits from billing Medicare for therapy services during a nursing home resident’s first 100 days in a facility. In a crooked nursing home operation every Medicare resident will receive physical therapy, occupational therapy and speech therapy during their first 100 days in the facility—whether they need it or not. The nursing home bills Medicare for each of these services.

The same nursing homes stop providing therapy as the resident reaches their 100th day in the facility, since Medicaid does not pay for individual services and many residents go to Medicaid as their pay-source after 100 days. Some residents get therapy even though they don’t need it. That results in Medicare fraud.

Equally bad is these nursing homes’ system of not providing therapy to Medicaid residents. Many residents who would benefit from therapy do not receive it because they are not on Medicare and have no pay source other than Medicaid.

As the prosecution of Dr. Thomas shows, the federal government does what it can to stop healthcare fraud. But more needs to be done. This is particularly true since Medicare spending is projected to substantially increase in the coming years. Fraudulent claims are fat in the system that can and needs to be cut, saving taxpayers billions.