I missed it. The Supreme Court issued an Order last week in the Sears v. Learmonth case where the Court is to decide whether Mississippi’s cap on non-economic damages is constitutional. Here is the Court’s September 15, 2011 Order.

The Order states that the Court is hung up on the fact that the verdict form did not separate economic and non-economic damages. The parties stipulated that the amount of non-economic damages was $2,218,905. The Order asks the parties to address:

“what fact(s) and/or legal authority exist for this Court to accept a stipulation regarding the amount of noneconomic damages found by the jury?”

Here is the final judgement in the District Court. It does not separate the damages.

This case came to the Court via certification on the caps issue from the 5th Circuit Court of Appeals.

Justice Michael Randolph issued the Court’s Order.

My Take:

Sears’ reply brief is due November 28, 2011; several weeks after the November elections. Coincidence? Maybe. Maybe not.

But cynics should keep in mind that this is not the first time that the Court has focused on this specific issue. The Court mentioned that economic and non-economic damages should be separated on the verdict form in the InTown Suites decision that I wrote about in June here. In that case, the Court ruled that the defendant could not challenge the amount of non-economic damages on appeal because the verdict form did not separate economic and non-economic damages.

In this case, the record does not contain a verdict form that separates economic and non-economic damages. Under the InTown Suites case, the verdict should be affirmed without reaching the caps question. Except the parties stipulated the amount of damages that were economic and non-economic. That was a bad stipulation for somebody. I can’t decide who.

The Court’s request for more briefing on the stipulation makes sense based on the InTown Suites decision. This is all very interesting.

It would be funny if the Court answers the 5th Circuit’s certification question by stating that the Court finds that under Mississippi law, the amount of non-economic damages can’t be challenged when the verdict form does not separate economic and non-economic damages. Instead of answering the 5th Circuits question, the Court would answer its own question. Possible? Maybe.

Adley (Abdul)Wahab and Christian Allmendinger were sentenced in federal court this week. The DOJ’s press release states:

Two principals of A&O Resource Management Ltd. have been sentenced for their roles in a $100 million life settlement fraud scheme, which included more than 800 victims across the United States and Canada.

Today, Adley H. Abdulwahab, 36, of Houston, a hedge fund manager and part owner of A&O, was sentenced to 60 years in prison. Yesterday, the co-founder and vice president of A&O, Christian Allmendinger, 40, also of Houston, was sentenced to 45 years in prison.

Allmendinger famously delayed a plan to flee based on the mistaken assumption that he would not be taken into custody after the guilty verdict.

Wahab famously lied about attending LSU.

The sentences fit the crime and these guys are getting what they deserve. Read all my posts on the A&O scandal here.

The 2007 Supreme Court Decision:

In June 2003, Jefferson County Circuit Court Judge Lamar Pickard granted Sherwin-Williams summary judgment in a lead paint case (Pollard v. Sherwin-Williams). The Mississippi Court of Appeals affirmed. But on February 15, 2007, the Miss. Supreme Court reversed and remanded the case for trial in a 5–4 decision.

Here is the Court’s 2007 opinion. In reversing the trial court, the Court relied in part on the report of Plaintiff’s expert Dr. John Rosen. Justice Randolph wrote the 2007 majority opinion. Chief Justice Smith dissented, arguing that there was no evidence of product identification. Justices Carlson, Dickinson and Easley joined the dissent.

The 2011 Supreme Court Decision:

The trial was in the Summer of 2009 and resulted in a $7 million jury verdict. Sherwin-Williams appealed. On Thursday the Mississippi Supreme Court issued an opinion reversing the verdict and rendering the case in favor of Sherwin-Williams. Here is the Court’s 2011 opinion.

On appeal, Sherwin-Williams argued that Plaintiff’s expert opinions on causation (including Dr. Rosen) were unreliable under a Daubert analysis. The Court agreed.

Interesting language from the Court’s opinion includes:

• “The plaintiff’s experts seemingly contradict each other and themselves.”
• “it is difficult to determine whether Lidsky’s opinion in the case is, proverbially, a chicken or an egg.”
• “Dr. Lidsky was, essentially, leaning on Dr. Rosen’s theory of causation, who was leaning on Dr. Lidsky’s theory of injury, who was leaning on Dr. Rosen’s theory of causation…ad infinitum.”

Justice Pierce wrote the Court’s opinion. Justice Kitchens wrote an opinion concurring in result only and was joined by Justices Chandler, King and Randolph (in part). Justice Kitchens asserted that Sherwin-Williams should win because there was no proof of product identification.

Nine lawyers represented Sherwin-Williams on the appeal, including Wayne Drinkwater, Luther Munford, John Corlew and other lawyers with their firms. Plaintiff’s attorneys were Porter & Malouf of Ridgeland, Michael Casano of Gulfport and Dennis Sweet of Jackson.

My Take:

In retrospect, it’s easy to say that the Court should have affirmed summary judgment in 2007. Lord knows that’s got to be what Judge Pickard thinks. But the reality is that the differing standards of review in summary judgment and Daubert make it possible that the Court was right both in 2007 and 2011.

This case was a plaintiff lawyer’s worst nightmare and and dream case for defense lawyers. On the plaintiff side, if you are going to lose a big and expensive case like this, you want it to be early—like in 2003 when Judge Pickard granted summary judgment. That saves you a ton of time and money.

Defense lawyers benefit when the reverse happens. This case had a big trial and was at the Supreme Court and Court of Appeals a total of three times. With all the experts involved, I bet Sherwin-Williams had $3–5 million in this case.

It was interesting that Justices Carlson and Dickinson did not join the concurrence, which seemed to be based on the same reasoning as their dissents in 2007. If they had joined the concurrence, then the concurrence would have been the majority opinion and the case would have gone down on product identification instead of Daubert.

The significance of this is that the case would have little—if any—precedent value because product i.d. was such a basic element of the case. A Daubert opinion has the potential to be more in play in future cases.

I’m starting this week’s non-legal report giving kudos to Alan Lange, author of Kings of Tort and formerly of Ya’ll Politics.

While walking in Fondren at 6:30 a.m. Wednesday, I came across Lange and a bunch of JPD Officers who had a suspect in a patrol car. Lange had single-handedly apprehended a burglary suspect who had been spotted in Fondren several times in the past week. The suspect had stolen items on him at the time. Good job to Lange for helping clean up the neighborhood.

My focus on college football is waning with the NFL season underway. With the New Orleans Saints emergence as an NFL power I have become a bigger fan of the pro game than college. The quality of play in the NFL is far superior. Except for the Saints’ defense, which sucks.

The NFL passing game, in particular, is amazing. Plus, NFL games are usually played in 3 hours. In SEC games it seems like Tim Brando is turning it back over to Verne Lundquist for the second half at the 3 hour mark. Four hours is just too long for a football game.

The NFL also has the added feature of not having recruiting. I would give 2 pieces of advice to to college football fans to improve their lives (or at least look less weird):

1. don’t follow recruiting.
2. never read the message boards.

Grown adults going crazy about where some kid is going to college is dumb. Even the ones who follow recruiting know this. More importantly, the correlation between signing individual players and recruiting success is murky. I quit following recruiting a good 10 years ago when I realized that the kids who generated the most excitement in recruiting rarely turned out to be the best players. Even worse, they often never played a down.

Schools have to recruit well to win. But that’s done with good recruiting classes year after year. Ole Miss is not going to win a national championship just because they sign Billy Bob Barnett from Yazoo City.

Message boards are a different matter. Message boards are for losers. I’m convinced that much of the material on message boards is complete fiction. And people believe it.

It always starts off with stuff like this fictitious post from someone who goes by the name NorthJaxReb: “I’ve got a friend whose cousin works in the Georgia A.D.’s office, and she says that Dan Mullen taking the Georgia job is a done deal.” Crap like this almost never turns out to be true.

Do yourself a favor. Never read a message board. You’ll thank me once you break your addiction.

Finally, I’m tired of reading headlines like the one from this article: SEC Officials Hire Lawyers Amid Ethics Scrutiny. Every time I see headlines like this I get my hopes up that what every non-Bama SEC fan knows to be true will finally be exposed: the Refs cheat in favor of Bama. But no, it always has to do with some crooked Wall Street shenanigans. Who cares?

With Judge Spark’s over in Texas canceling the kindergarten party and yours truly not getting and invitation to Swagfest, I’m saying to hell with it. After 2 1/2 years of serious blogging, it’s time for a Fun Friday. So what’s up?

Are you kidding? What’s up? It’s Christmas Eve in Dixie. College football kicks off tomorrow.

The big news, of course, is the prospects of Texas A&M joining the SEC. I view Texas A&M as the SEC school that we put up for adoption at birth and is now being reunited with its birth siblings. They might not have been in the family for the last 50 years, but we feel like we know them.

No one–and I mean no one–is more excited about A&M joining the SEC than LSU fans. LSU and Texas A&M played a great year-opening series in the 80’s and 90’s that was popular with fans of both schools. It was turning into an honest to god rivalry when the games stopped. LSU fans want to renew the rivalry. And God forbid the Tigers don’t have to play Florida every year when they add A&M to the conference slate.

For many LSU fans of my era, a road trip to College Station was unexpectedly the best road trip of their college days. A&M fans were extremely passionate, put on a hell of a show, but could stomach LSU fans without trying to start a fight. Truth be told, the Corps guys couldn’t fight. Man they wanted to. But they were under orders or something. Things got a bit out of hand when LSU fans figured that out.

And that was pre cell phone days, which changed the equation for road trips. We weren’t the Marines and men did get left behind. Sorry Chris. Sorry Matt. It seemed funny at the time. Still does, in fact.

For SEC fans who don’t know what they are getting, know this. Texas A&M belongs in the SEC. I challenge anyone to go to a game in College Station and tell me it’s not the best game atmosphere outside the SEC.

They fill the stadium for yell practice the night before the game. That takes discipline. I don’t know what yell practice is, but it sounds bad ass. If LSU tried to do that the stadium would end up getting burned down. If Ole Miss did it, no one could go to the game because their shoes got dirty the night before. Same for Florida and their tank-tops.

I don’t really get that Corps thing. But whatever it is, it belongs in the SEC.

But without question, the best thing about Texas A&M is the band. I’m serious.

Anyone who thinks that A&M does not have the best band in college football has never seen it. I’m surprised Bama hasn’t just bought the thing. It’s hard to describe the A&M band to people who haven’t seen it. But it’s unique and very entertaining. LSU fans were crestfallen if A&M didn’t bring their band to games in Baton Rouge–even the ultra apathetic and irreverent LSU student section delayed drink refills at half time to watch the A&M band.

And really, shouldn’t every school where the Bear coached be in the SEC?

Don’t worry Ole Miss fans, you will still be the only school with this guy. Seriously, dude? And you don’t know why State recruits better in Mississippi?

Don’t worry State fans, you will still be the only school where your school symbol is a deadly weapon.

Don’t worry Auburn fans, you will still have the biggest in-state inferiority complex in the SEC.

Don’t worry Arkansas fans, while A&M quickly builds conference rivalries, everyone will still wonder what went wrong with the basketball powerhouse we thought we were getting.

Don’t worry Bama fans, we’ll all still hate you most of all.

And for the SEC East, what the hell happened to you?

So let me be the first to give A&M a proper welcome to the SEC: you suck, cheaters.

On August 23, 2011 the Circuit Court of Leflore County rendered a $500,000 bench trial verdict against Greenwood Leflore Hospital in a medical malpractice case. Here is the trial court’s judgment and findings of fact and conclusions of law in Long v. Greenwood Leflore Hospital and Francois Lesage, M.D.

Facts:

Monica Long, age 10, became sick on Friday September 21, 2007. Monica’s mother Stephanie took her to the emergency room at Greenwood Leflore Hospital on Sunday Sept. 23. Monica was in pain and had a fever of 102.

At the hospital Dr. Lesage diagnosed Monica as having an ear infection and prescribed antibiotics.

Later that night, Monica seemed worse and vomited. Her mother called the hospital twice and was told to give Monica antibiotics and bring her back in the morning. At 9:30 a.m. the next morning, Monica collapsed and was taken back to the emergency room. She stopped breathing and was transferred to UMC. Monica died on Sept. 25 from bacterial meningitis.

Noel Harris of Greenville and Michael Cory and Ken Miller of Jackson represented the plaintiff. Gaye Nell Currie and Rex Shannon with Wise Carter in Jackson represented the hospital.

The Court’s Decision:

The case was tried as a bench trial before Judge Ashley Hines because the hospital is subject to the Tort Claims Act. The trial court found that the hospital breached the standard of care in giving medical advice over the phone and not telling Monica’s mother to bring her back to the hospital on Sunday night. The court found that if the hospital had instructed Stephanie to bring Monica back to the hospital, she would have been properly diagnosed and treated and would have survived.

The court awarded the maximum damages of $500,000.

On August 12, 2011 a federal court jury in the Northern District rendered a $578,500 verdict against Boyd Tunica, Inc. d/b/a Sam’s Town Hotel & Gaming Hall in an employment discrimination case. Here is the Jury’s verdict. Here is a Clarion-Ledger article on the verdict.

The jury awarded the following damages:

• $102,000: back pay
• $76,500: mental anxiety
• $400,000: punitive damages.

The plaintiff Marc Silverberg alleged that he was discriminated against because he is Jewish. Here is the Complaint.Here is plaintiff’s brief opposing summary judgment.

Jim Waide of Tupelo represented the plaintiff. Gary Friedman and La Toya Merrit with Phelps Dunbar in Jackson represented the defendant. Judge Allen Pepper Jr. was the trial judge.

The August issue of the Mississippi Jury Verdict Reporter arrived earlier this week. Here is MJVR’s preview of the issue, which contains a summary of the reported verdicts.

The issue includes reports on:

• the June $2.3 million Pearl River County verdict that I reported here;
• the May $750,000 Hinds County nursing home verdict that I reported here and here;
• the June $1.1 million Hinds County bench trial verdict that I reported here; and
• several verdicts that were either defense verdicts or small plaintiff verdicts probably considered defense wins.

As usual, the big plaintiff wins were previously reported. Defense verdicts and small plaintiff verdicts usually were not previously reported. MJVR does a great job of exposing defense wins.

If you removed Hinds and Jones counties from the equation, defense win rates in Mississippi trials would be staggering.

One interesting verdict reported was a July $500,000 punitive damages verdict on the re-trial of a Jones County case that was reversed and remanded by the Mississippi Court of Appeals. In the original trial the trial court applied a preponderance of evidence standard in the punitives phase. The jury awarded $200,000 in punitive damages.

In the re-trial, the trial court applied the correct clear and convincing evidence standard. The jury awarded $500,000 in punitive damages. I guess the defendant won the battle on appeal and ended up losing the war.

You hear about cases where defendants choose to pay judgments rather than appeal because they believe that there could be a bigger verdict in a second trial. This case is an example of that possibility.

The City of Canton is suing Nissan seeking a declaratory judgment that Canton’s 2000 agreement to not annex the Nissan plant located outside Canton for at least 30 years is not binding on the City. Apparently, Canton wants to annex the Nissan plant so that it can collect taxes from Nissan.

Here is the City of Canton’s Complaint, which it filed in state court. Nissan removed the case to federal court.

One of the claims in the Complaint is for a declaration that Canton’s 2000 agreement is not binding on subsequent city administrations. Huh? That argument sounds so bad that it makes me think I’m missing something.

A contract is not binding on a successor administration? So the agreement was actually only for the life of the 2000 administration? Even though the contract said 30 years? Really? Really? What am I missing here?

But it gets worse.

Here are the exhibits to the Complaint. Page 8 is part of a letter to the then Mayor of Canton that stated that a statute passed regarding the project specifically authorized Canton’s administration to bind future administrations.

Barbara Blackmon of Blackmon and Blackmon in Canton represents the City of Canton. Mitchell Cowan with Watkins Ludlam in Jackson represents Nissan. U.S. District Judge Carlton Reeves presides in the case.

My Take:

Nissan appears to be a big favorite in this one. Why? Because a deal’s a deal. I think that’s Latin.

I don’t see how Canton can get out of its 2000 agreement.

So why did Canton make that deal in 2000? Probably because Canton stood to benefit from the Nissan plant due to its proximity to the plant. I’m sure that has been the case.

Also, it seems that Canton can annex every hotel, restaurant and gas station within miles of the Nissan plant. This would allow Canton to tax surrounding properties that benefit from the proximity to the plant.

Several people have mentioned this lawsuit to me. Their comments are uniformly critical of the City of Canton. The public does not sympathize with Canton because the City receives economic benefit from the Nissan plant due to its proximity to the plant. It seems that most people in the state are rooting for Nissan in this one.

There was a $2.8 million verdict last week in Forrest County. This is believed to be the largest verdict in the history of Forrest County by a wide margin.

The plaintiff was paralyzed in a collision with a driver who ran a stop sign. The plaintiff had a huge amount of past and future medical expenses.

William Jones and Michael Ratliff of Hattiesburg represented the plaintiff. Plaintiff’s expert witnesses included Nat Fentress (life care planner) and George Carter (economist).

Vick Smith of Hattiesburg represented the defendant.