It was a split decision in the Court’s Thursday opinion in Waggoner v. Williamson. In the decision a divided court reversed a grant of summary judgment in a malpractice case against prominent plaintiff’s lawyer Ed Williamson and remanded the case for a jury trial.

The plaintiff sued his former attorneys after netting nearly $1.5 million in a 2001 fen phen settlement. The plaintiff claims to have not known that his case was part of an aggregate settlement of $73.5 million–apparently on behalf of 45 clients. Plaintiff’s portion of the aggregate settlement was $3 million.

The majority reasoned that there was a fact question as to adequate disclosure under plaintiff’s breach of fiduciary duty claim. In the majority were Justices Carlson, Waller, Dickinson, Randolph and Lamar.

Justice Pierce wrote a concurring opinion joined by Justices Chandler and Waller (in part). Justice Kitchens wrote a dissenting opinion joined by Justice Graves.

None of the opinions state what many lawyers who read this opinion are thinking. The plaintiff was lucky to recover $3 million and net $1.5 million for injuries that left him well enough to give a deposition in his case against his lawyers. The settlement value of fen phen cases and many other types of cases in Mississippi declined substantially shortly after the plaintiff settled this case. This fact rightfully did not factor into the court’s analysis. But perhaps it should have factored into plaintiff’s decision to sue his former lawyers.

In Killhullen v. Kansas City Southern Railway the Miss. Supreme Court unanimously reversed both the trial court and Court of Appeals granting summary judgment based on KCS’s Daubert challenge of Plaintiff’s expert. This was a crossing accident case. Plaintiff’s expert was a registered professional engineer who made calculations regarding field of vision issues.

The Court rejected KCS’s argument that the expert must be an “accident reconstructionist”:

In rejecting Halfacre’s affidavit due to his lack of “specialized knowledge, training or expertise in the field of accident reconstruction[,]” this Court finds that the circuit court abused its discretion. Given his applied engineering expertise, classification as an accident reconstructionist was not necessary…

This was a sensible decision by the Court. If the issues involve physics, the fact that the expert is not an “accident reconstructionist” should not matter.

I once lost a Daubert challenge of an accident reconstructionist and had to watch him re-create the accident for the jury with a couple of toy matchbox cars. If I had known that was ok, I would have had the 5-year old across the street as my expert.

In Briere v. South Central Regional Medical Center a unanimous Mississippi Supreme Court reversed the trial court’s dismissal of a wrongful death action because an earlier filed action was voluntarily dismissed and the wrongful death statute states that there can be only one wrongful death action. Here is the key language:

We clarify Long and hold that the wrongful-death statute does not require that a second suit be dismissed solely because it was, at some point, pending at the same time as a previously filed suit.

The Court also rejected Defendants’ claim that the pre-suit notice letter was inadequate because it did not adequately describe the Plaintiff’s claims. Here is the key language:

We hold that Briere’s first notice letter complied with the notice requirements of the

MTCA. The broad language in the first letter put SCRMC on notice of all of the claims of which Briere was aware at the time. If suit already had been filed, Briere certainly would have been able to amend her complaint to include the new information, pursuant to Mississippi Rule of Civil Procedure 15.

I have seen a trend in the last year or two of Defendants pushing Long v. McKinney and pre-suit notice arguments beyond logic. Some of these “creative” defense claims are now being decided and rejected by the Court.

In AFLAC v. Ellison the Mississippi Supreme Court reversed the Circuit Court of Smith County and ordered venue transferred from Smith County to Rankin County. Justice Dickinson wrote for the majority, joined by Justices Waller, Carlson, Lamar and Pierce. The Court analyzed the case under Miss. Code Ann. 11-11-3. The majority’s decision turned on the following passage:

It is undisputed that the Atkinsons (who are defendants) reside in Rankin County, and that AFLAC’s principal place of business is outside Mississippi. Thus, pursuant to the plain language of the statute, the action must be commenced in Rankin County, unless Ellison can show that a “substantial act or omission” or a “substantial event causing the injury” occurred in Smith County. However, in searching the record for activity which occurred in Smith County, we find only that Ellison was in Smith County when he was informed of the denial of insurance benefits.

The plaintiff being in Smith County when he got the bad news wasn’t enough. AFLAC is doing cart-wheels all the way to Brandon.

Justice Graves wrote an interesting concurrence stating that the doctrine of stare decisis required the Court to transfer the case to Rankin County. Justice Graves reached his decision despite the fact that he believed that the two cases that set the precedent were wrongly decided.

Justice Randolph dissented along with Justices Kitchens and Chandler. The dissent argued that the in-state defendants waived the venue issue by not asserting it as an affirmative defense. AFLAC, as the out-of-state defendant, lacked standing to assert improper venue because the defense belonged to the in-state defendants and not AFLAC.

I’m going to have to go with Justice Graves on this one. Why reinvent the wheel when there are two prior decisions that mandate reversal?

I don’t like the dissent’s position. If it were the law it would lead to venue shopping. Plaintiffs would cut side deals with in-state defendants to not assert improper venue. This would be especially prone to happen in insurance cases where the agent-company relationship is not always cozy. This would put the AFLAC’s of the world shut out of federal court, stuck in the plaintiff’s home county and side ways with a co-defendant.

Is it just me, or have Randolph and Dickinson been disagreeing a lot lately?