On Friday A&O Life filed an affidavit identifying the members of Blue Dymond Capital Group LLC. Here is the affidavit, which was signed by Russell Mackert. The affidavit lists Physician’s Trust LLC as the sole member of Blue Dymond. Physician’s Trust was identified last week in a comment on this blog as an entity affiliated with A&O.
Based on his prior orders, Judge Ozerden may order that A&O identify the members of Physician’s Trust.
Vanderbilt Mortgage and Finance, Inc. filed a motion to intervene in the Colson-Lawyer’s Title case claiming $33,318 in funds wired to a Prestige Title account with Regions Bank (not Wachovia), but never disbursed or returned. Here is the motion. The motion states that Vanderbilt Mortgage wired the funds on February 17, 2009, which was four days after Lawyer’s Title filed suit and about a month before the Wachovia interpleader.
Vanderbilt’s motion raises several questions. First, why didn’t Vanderbilt file a separate action, since its motion does not establish a connection between Vanderbilt and the Lawyer’s Title action? Second, what was the extent of the Prestige-Colson entities use of Regions accounts and are there any funds in the accounts? Third, has Regions filed any Suspicious Activity Reports (SAR) with the government or interpleaded funds in a state court action?
Banks can get in big trouble for not filing SAR’s. AmSouth, which merged into Regions a few years ago, forfeited $40 million to the federal government in 2004 for not filing SAR’s, as explained in this Justice Department press release and Statement of Facts.
After the 2004 presidential election it appeared that the Democratic Party was dead as a national force. If they could not beat Bush in 2004, they simply could not win on the national scale. Regardless of your political views, it was obvious that the Republicans played the political game much better than the Democrats. But what a difference four years and Barack Obama makes. Now people are saying the same things about the Republican Party. Simply put, President Obama and his team do not get out politicked by the the Republicans.
With the appointment to the Supreme Court Monday of Sonia Sotomayor, Obama made a political maneuver that a few years ago Democrats appeared incapable of making. Here are two articles discussing the politics of the appointment: 1, 2. The beauty of the appointment was that it both played to Democratic base and threatened to further drive a wedge between Republicans and swing voters. One article noted that:
He played smart base politics with the historic selection of a Hispanic (a first) and a woman.
The other article noted:
By nominating Circuit Judge Sonia Sotomayor to be the first Hispanic justice on the U.S. Supreme Court, President Barack Obama all but dared Senate Republicans to risk alienating Latinos by trying to block her confirmation.
It was a foregone conclusion that Obama would appoint someone who Republicans viewed as a “liberal.” By appointing a Hispanic woman ,Obama should strengthen Democratic popularity with Hispanic and women voters. The more Republicans attack Sotomayor, the more they risk alienating Hispanic voters, a group who Republicans are surely not ready to give up on.
While Senate Republicans will be under pressure from their base to attack Sotomayor, that would be politically foolish. Baring an unforeseen scandal, Sotomayor will be confirmed by the Senate. It makes little sense for the Republicans to alienate swing voters in order to pander to a base who they cannot lose. What is the Rush Limbaugh wing of the party going to do, start supporting Obama? The President will likely get to fill at least two more seats on the Court, so the Republicans should save their attacks for the next “liberal” appointment.
Of course, the fractured Republican Party may cave to its base and attack Sotamayor. If so, look for the attack dogs to be senators from red states like Mississippi that are locked up for the Republicans and have a low Hispanic population. Republicans should instead focus on regaining the party’s identity and determining who will lead the party going forward.
Today’s Clarion-Ledger contains an article on the defense verdict last week in a silica trial in Claiborne County. Here is the story. I originally mentioned the verdict last week. The article confirms that Fred Krutz with Foreman Perry led the defense team. The plaintiff was 73-year old Eugene Westrope of Hazlehurst. The defendants were Clemco (air-powered blast equipment), Precision Packaging (concrete producer) and Lone Star Industries Inc. (cement manufacturer). Judge Lamar Pickard was the trial judge.
The plaintiff asked for $4.5 million in damages. The jury returned a defense verdict in a 9-3 vote. In state court in Mississippi at least nine jurors must agree on the verdict. In the article, Krutz largely credited the win to the defendants ability to screen potential jurors who were involved or had family members involved in similar litigation. While I do not doubt the significance of the defendants’ ability to assure a level playing field, they still had to try a good case to get the defense verdict once the jury was in the box.
In the Colson litigation, Judge Ozerden was not satisfied with A&O’s affidavit identifying its partners, and issued the following text order in both cases:
TEXT ONLY ORDER directing movants A&O Bonded Life Assets Management, LLC; A&O Bonded Life Assets, LLC; A&O Bonded Life Settlements Management, LLC; A&O Bonded Life Settlements, LLC; A&O Capital Management, LLC; A&O Life Fund Management, LLC; A&O Life Fund, LLC; A&O Life Funds Management; LLC, A&O Life Funds, LLC; A&O Resource Management, Ltd.; Houston Tanglewood Partners, LLC; Life Fund 5.1 Management, LLC; Life Fund 5.1, LLC; Life Fund 5.2 Management, LLC; and Life Fund 5.2, LLC, to file into the record in this case on or before Friday, May 29, 2009, an Affidavit or Declaration identifying the members of Blue Dymond Capital Group, LLC, and their respective citizenships, and identifying any general or limited partners of A&O Resource Management, Ltd., other than the previously identified general partner A&O Capital Management, LLC, and their respective citizenships. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT REGARDING THIS DIRECTIVE. Signed by District Judge Halil S. Ozerden on 5/19/2009. (EMN) (Entered: 05/19/2009)
With $1.5 million interpleaded by Wachovia, the filed claims to date are:
Total: $14,520,000 (plus Coldwell Banker’s claim)
This means that there is at least $13 million in claims in excess of the amount available to satisfy those claims.
It has now been over four months since President Obama’s inauguration. But the President has yet to make his appointments in Mississippi for U.S. Attorneys, U.S. marshals and the vacant federal district judge position. Here is a link to a National Law Journal Article that discusses the appointment process for U.S. Attorneys.
There are a total of ninety-three U.S. Attorney positions in the nation. According to the article, state Democrat leaders have made forty recommendations for U.S. Attorneys to the White House with only six appointments so far. Of the forty recommended, the Justice Department has conducted required screening interviews of only twenty. A former Bush administration official explained that the process takes a long time to complete:
Fulbright & Jaworski partner Michael Battle, former director of EOUSA during the Bush administration, said the speed of the process depends on the layers of local-level vetting, as well as the mechanism for identifying potential candidates, which varies by state. “It takes the better part of six, eight, 10 months, as the White House gets more comfortable with doing this,” said Battle. “It just takes time.”
Based on this statement, it could be this fall before the appointments of Mississippi’s two U.S. Attorney and marshal slots.
As for the district judgeship position that is presumably going to Jackson attorney Carlton Reeves, the article sheds indirect light on the process. The article states that the White House rejected Republican pleas to be included in the appointment process in states like Mississippi that have two Republican senators. This suggests that Senators Cochran and Wicker will not be involved in the process and, therefore, unable to block the appointment of a Democrat such as Carlton Reeves. It seems likely that Democrat leaders have already recommended Reeves and that the vetting process is underway. With a summer recess looming for Congress, however, Reeves will probably not take the bench until sometime this fall at the earliest.
There was a defense verdict late Thursday in a Claiborne County silica trial that lasted for at least two weeks. The details that I have are sketchy. I do not know the number of defendants, but I believe that they were sand companies. It appears that plaintiff’s counsel included Tim Porter and Allen Smith and defense counsel was led by attorneys from Forman Perry.
A decade ago Claiborne County was one of the state’s notorious plaintiff venues with some huge verdicts. A defense verdict in a mass tort type case in Claiborne County is evidence that civil defendants can receive a fair trial in any Mississippi state court and confirms that the “jackpot justice” era is over in Mississippi.
There was a defense verdict late Thursday in a Claiborne County silica trial that lasted for at least two weeks. The details that I have are sketchy. I do not know the number of defendants, but I believe that they were sand companies. It appears that plaintiff’s counsel included Tim Porter and Allen Smith and defense counsel was led by attorneys from Forman Perry.
A decade ago Claiborne County was one of the state’s notorious plaintiff venues with some huge verdicts. A defense verdict in a mass tort type case in Claiborne County is evidence that civil defendants can receive a fair trial in any Mississippi state court and confirms that the “jackpot justice” era is over in Mississippi.
In a 6-2 vote the Mississippi Supreme Court reversed the Court of Appeals today and awarded summary judgment to the defendants in Estate of Northrop v. Hutto. This was a medical malpractice case where the Harrison County Circuit Court (Judge Lisa Dodson) granted summary judgment to Gulfport Memorial Hospital and other defendants on the grounds that the plaintiff’s expert witness did not articulate the required standard of care. The Court of Appeals had reversed the trial court.
Reading between the lines, it appears that the plaintiff’s expert was unsophisticated as an expert witness and did not understand what the phrase “standard of care” means. Since the expert did not understand the concept of standard of care, he was unable to articulate the standard. Justice Randolph’s majority opinion noted that:
The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff’s selected medical expert. The expert must articulate an objective standard of care.
The opinion then heavily quoted the expert’s deposition, including testimony like:
Q: So, obviously, Doctor, this would not indicate the standard of care in Marchof 1999, would it?
A: I don’t — I’m not sure what you mean by describing the standard of care. None of [the documents brought to the deposition] deal with the standard of care. They are all case reports of infiltration, different problems with extravasation. I have not brought anything on the standard of care if that’s what you’re referring to.. . .
Q: . . . There is no textbook of anesthesia that says in writing the standard of care requires visual or palpation observation of the fluid actually going into the vein during an ongoing case; that is correct?
A: That is correct.
Arguably this last question was a trick question, since medical textbooks typically do not articulate the legal “standard of care.” A testifying expert must understand that the phrase “standard of care” means articulating what exactly a minimally competent physician would have done in providing reasonable care to a patient. Stated another way, the expert simply must identify what the defendant should have done and state that this is what the standard of care required.
This case is an example of why plaintiff’s attorneys have to be very careful in cases requiring expert testimony. just having an expert who “makes a good witness” or looks good on paper is not enough. The expert must also understand what the plaintiff must prove in order to establish a case and be able to articulate opinions that satisfy the plaintiff’s burden. That burden includes identifying what the standard of care required the defendant to do. It is also worth noting that although the defendant does not have the burden of proof, defense experts must also be able to articulate the standard in order to be allowed to testify at trial.
This was a fact specific case with little significance to other cases other than serving as a caution signal to lawyers to make sure that their expert witnesses are prepared to testify.
Over the last several weeks Judge Ozerden issued several orders requiring the parties to provide information on the identity and residency of parties to the case, including members of limited partnerships. Reviewing the parties’ filings, it appeared that the court may lose diversity jurisdiction over the case. That appears to have now happened, with Judge Ozerden entering this Order requiring the parties to show cause as to why the Court should not remand the case to state court on the basis that there is no diversity jurisdiction.
The reason for the Court’s conclusion that the case should be remanded is the fact that Wachovia and Sandion Coldwell Banker are both citizens of North Carolina. As a result, there is not complete diversity of citizenship. Although no party raised this issue, federal courts monitor jurisdiction and sometimes remand cases on their own.
For practical purposes, once the case is remanded to state court it will proceed much like it would if it stayed in federal court. But the case will be much harder to monitor, since unlike in federal courts, state court records are not available to the public on-line. Although the court file will still be public record and available for inspection at the clerk’s office, I will not be in a position to monitor filings like if the case stayed in federal court. This is an unfortunate development for people following the litigation on this blog, since the Sun Herald stopped covering the litigation after an initial article several months ago. I will continue to monitor the Lawyer’s Title action and post updates about it as warranted. In addition, I will continue to monitor the federal court filings for new actions related to the Colson litigation, which I expect.