Last week Hinds County Circuit Court Judge Winston Kidd issued a bench trial ruling that resulted in a $1.1 million verdict against a manufacturer of tear gas. Here is the Clarion-Ledger article on the verdict.

Facts:

In 2006 Jackson police officers used tear gas to flush out three teen-age car thieves who broke into Linda White’s home. I guess Barney and the other deputies got their men. But then:

White and family members entered the home later that night and began coughing and tearing up from the residual effects of the chemicals released in the house, her family said.

Less than two weeks later, White, 42, was dead.

Lewis, executor of White’s estate, testified at trial that the smell of the tear gas was strong in the house a day after the raid.

White went back to the house three or four times for brief visits to try to clean it or to retrieve clothing, according to the lawsuit.

After her last visit, White went to the hospital, complaining of breathing difficulties. She died in the hospital May 8, 2006.

White died of respiratory failure secondary to the acute respiratory distress, according to an autopsy. The autopsy report cited double exposure to chloroacetophenone, an active chemical in tear gas, and capsaic in fumes, the pungent ingredient in pepper spray, as contributing causes to her respiratory failure, according to the lawsuit.

A wrongful death case ensued.

Judge Kidd’s Ruling:

Judge Kidd found the police 50% at fault and the tear gas manufacturer 50% at fault. The basis for the claim against the tear gas manufacturer appeared to be failure to warn and breach of warranty. Total damages were $2.2 million. But with the City 50% at fault, the tear gas manufacturer (Combined Systems) owes $1.1 million. The City settled before trial.

Chris Graves of Jackson represented the plaintiff. David Curtis of New Orleans represented the defendant.

My Take:

This is an example of why Barney had to keep his bullet in his shirt pocket on The Andy Griffith Show. Bad things can happen when you give weapons to some idiots policemen.

The cops used tear gas in a private home and then sent the residents back in and left? Those cops were the kind of guys who use the light of a match to see if the gas tank is empty.

Week before last a Hinds County jury awarded Amy Smith a little over $112,000 in her lawsuit against Kroger. Here is the Clarion-Ledger article on the verdict.

Smith suffered injuries in a 2010 assault and robbery in the parking lot of the Kroger on I-55 in Jackson. Jackson attorney Ashley Ogden represented Smith. The jury apportioned 30% of the fault to Smith and 70% to Kroger.

It appears that the 30% fault apportionment to the plaintiff will reduce her recovery to less than $80,000. It’s a little frustrating to see the Ledger write a big article on a jury verdict and not clarify that issue.

As to the damages awarded:

Smith suffered injuries, including to her knee and wrist, and post-traumatic disorder, Ogden said. The jury awarded her $12,189.19 for past medical expenses, $25,000 for future expenses and $75,000 for pain, suffering and mental anguish.

Ogden believes lawsuits against this Kroger store are making the premises safer for customers:

“We just want Kroger to fix the problem in the parking lot so that the women who are shopping there don’t have to be afraid of having their purse snatched or being assaulted,” Ogden said.

As president of a local anticrime fighting group, Ogden said, “what we are trying to do is make these businesses aware of their responsibility in participating with us in solving the crime problems.”

Judge Bill Gowan was the trial judge. I don’t know the identity of the defense lawyer.

There were also reports circulating last week of a verdict of over $2 million in Pearl River County. That is the extent of the information that I have been able to gather about that case. That would be some verdict for Pearl River County.

There was a $750,000 jury verdict returned on Saturday in a nursing home case in Hinds County Circuit Court. Judge Bill Gowan was the trial judge. I will have a full report on Tuesday.

I attended the oral argument in Sears v. Learmonth yesterday at the Mississippi Supreme Court. I counted approximately 50 people in attendance—mostly plaintiff lawyers. Given the importance of the decision, I thought that every firm in Jackson hosting summer clerks would be there with their clerks. Perhaps they did not want it to look like they support caps.

The argument lasted 90 minutes. Lawyers for both sides did a good job. Kevin Hamilton of Meridian and Robert Peck of Washington argued for the plaintiff with Peck getting the most time. Frank Citera from Chicago argued for the defense.

Justice Dickinson was the most active Justice in questioning the lawyers. By my count he interrupted lawyers from both sides 6–7 times to ask a question. His key question to plaintiff was: why is this different from tort claims or workers comp where the legislature has removed something from the jury?

A key question by Justice Dickinson to the defense was: doesn’t the constitutional right to trial by jury mean more than the form of the trial?

Other justices and my ballpark count of their number of interruptions with questions (some interruptions involved a series of questions):

• Waller: 6 (3 each side)
• Carlson: 2 (1 plaintiff, 2 defense)
• Randolph: 3 (all plaintiff)
• Pierce: 3 (2 plaintiff, 1 defense)
• Chandler: 3 (1 plaintiff, 2 defense)
• Lamar: 1 (plaintiff)
• Kitchens: 2 (defense)
• King: 0.

My guess is that Justice Dickinson is the justice who most enjoys oral argument.

Justice Randolph cited statistics that of the states that have considered caps, 18 found them constitutional and 4 unconstitutional (Alabama, Oregon, Georgia and Washington).

Justice Chandler challenged defense counsel to cite something that found that there was a society benefit from the caps. Defense counsel couldn’t.

Justice Carlson asked defense counsel if he could name a single case where the non-economic damages were too high and the trial court, court of appeals and supreme court all refused to lower the damages. Citera couldn’t name one, and fell back into the practice of vague references to large verdicts in the jackpot justice days that were settled post-trial or reversed on appeal: Uh…..asbestos…….uh…….silica. Yea, Yea, silica. I remember hearing about a lot of silica nonsense.

Citera stated that he believed that in enacting the caps, the legislature responded to a perceived problem. I agree. But the perceived problem (jury verdicts too high) was not the real problem (venue and joinder problems as discussed here). Stated simply, the policy argument for caps is that we need them because some businesses think they need them—not because they really need them.

Great. We’re stuck with tort reform because its proponents have brain washed a segment of society.

It’s a night-light rationale. We don’t leave the hall light on because our young kids really need it on. We leave it on because they think they need it on and it’s not worth fighting them over.

I’ve given a lot of thought to whether I would make a prediction based on what I saw. I’ve decided that I will, but without identifying what I thought tipped the Court’s hand. I will write it down and may discuss it after the Court issues an opinion.

My Prediction:

The caps stand.

The Clarion-Ledger is reporting that President Obama nominated Jackson attorney Greg Davis to become U.S. Attorney for the Southern District of Mississippi:

President Barack Obama has nominated a Jackson lawyer as the next U.S. attorney for the Southern District of Mississippi.

Gregory Davis is a member of the law firm Davis, Goss & Williams PLLC, which he co-founded.

Davis graduated from Mississippi State University in 1984 and Tulane University School of Law in 1987.

If confirmed by the U.S. Senate, Davis will succeed Dunn Lampton, who retired. First Assistant U.S. Attorney John Dowdy Jr. has been the office’s interim leader since January.

President Obama [a.k.a. The Tortoise] nominated Davis nearly a full year after his name first surfaced as a candidate for the position.

My Take:

Finally, one of my own people gets nominated to an important federal position. That’s right. Davis is……..a golfer.

When Davis walks into the federal courthouse, the U.S. Marshals will say: “now there goes a man who knows the humiliation, degradation, frustration, anger, and total injustice of…..slicing a ball into the drink on 18 with the match on the line.”

Davis is a shining beacon for golfers everywhere that there is hope for overcoming that devilish past time.

A definition of ‘propaganda’ is “information, especially of a biased or misleading nature, used to promote or publicize a particular cause or point of view.” Last week’s Madison County Journal’s editorial supporting tort reform damages caps meets this definition.

Here are some of the gems from the editorial followed by my explanations:

Since tort reform, medical liability insurance premiums have decreased more than 60 percent.

Since tort reform, there has also been a severe recession with record unemployment that was caused by some of the business interests who campaigned for tort reform. But we gave those companies a taxpayer funded bailout and let them return to business as usual.

Also, medical liability insurance premiums decreasing by 60% wasn’t caused by damages caps. It was caused by the Mississippi Supreme Court’s eliminating Mississippi’s mass-joinder law that allowed thousands of plaintiffs to be joined in a single suit.

By removing the incentive of extreme verdicts with exorbitant attorney’s fees, Mississippi no longer attracts thousands of out-of-state plaintiffs clogging our judicial system.

Once again, the paper is crediting tort reform for something caused by the Supreme Court’s elimination of mass-joinder.

Incidentally, I have never once seen an actual lawyer quoted as saying that caps are responsible for eliminating out-of-state plaintiffs as opposed to rulings by the Miss. Supreme Court. So where is the Journal getting its information? Haley Barbour press releases?

And when we wonder why all too often the judiciary did not throw out frivolous lawsuits and sanction attorneys for filing them, we simply think back to the words of Dickie Scruggs when he said “the judiciary is elected with verdict money.”

The reference to Scruggs doesn’t really fit the editorial. But Scruggs was a plaintiff lawyer who went to jail, so they needed to work him into the piece.

Mississippi can’t afford a return to “jackpot justice.”

How exactly would throwing out the caps return Mississippi to the jackpot justice days? They don’t say. They just trust that ole Haley wouldn’t steer them in the wrong direction on this.

The fact of the matter is that lifting the caps would not return Mississippi to the jackpot justice days. Those problems were caused by the mass-joinder law, venue law that no longer applies, Mississippi law that required defendants to post a bond of 125% of a judgment in order to appeal and less than 5 state trial court judges who were not doing their jobs. None of these problems exist anymore and none were affected by caps.

How do I know I’m right on this? First, have you ever noticed that none of these pro-tort reform articles ever quote a lawyer or legal expert such as a law school professor? Not even defense lawyers who campaigned for tort reform. Ever wondered why? Go back to the definition of propaganda and think about it.

Second, since med-mal caps were passed in 2002 and non-economic caps in other cases were passed in 2004 there has not been a single case where the Mississippi Supreme Court had to rule on the constitutionality of the caps. That tells you how few and far between are cases where the caps actually apply.

Tort reform proponents ignore the fact that both the trial court and the appellate court can reduce damages awards that are out of line based on the facts of the case. In the last seven years the Mississippi Supreme Court has reversed most plaintiff verdicts, regardless of the verdict’s size. The Court has affirmed some plaintiff verdicts since Alex Alston wrote his article a few years ago pointing out this fact. But plenty of verdicts are still being reversed.

I don’t know what the Supreme Court will do with the caps issue. But I do know that there are smart justices on the Court. I’m sure they know that tort reform honks are taking the credit for eliminating jackpot justice that should go to the Court. So whoever the pro-tort reformers are trying to fool, it’s not fooling the nine justices who will actually decide the issue.

Here are my prior posts on tort reform.

On Friday June 17, 2011 at 2:00 p.m. I will be speaking about the use of blogging in a law practice at a Univ. of Miss. CLE program in Jackson. Here is a link to the program.

I will try to impart some of what I’ve learned from my now 2+ years of legal blogging. Topics will include the most frequent questions I get from lawyers about this blog: (1) how do I find time to blog; (2) do I get any business from blogging; and (3) who is Kingfish? I will also identify mistakes I’ve made and lessons that I’ve learned in blogging.

Before my presentation Will Manuel of Bradley Arant in Jackson will speak about using Facebook and the Twitter in your practice. I currently use neither, so maybe Will can get me fired up about those aspects of social media.

Following my presentation, Miss. Bar General Counsel Adam Kilgore will take the podium and identify the ethical pitfalls of following the advice given by me and Manuel.

I will also be speaking Friday morning at 10:00 a.m. to a Mississippi Bar Litigation Section meeting. Jimmy Wilkins of Watkins & Eager and I will talk about Social Media and Jurors.

On Wednesday the West Virginia Supreme Court upheld West Virginia’s legislative damages caps. Here is the opinion in MacDonald v. City Hospital, Inc. One of the plaintiff’s lawyers in the case was Robert Peck, who argued for the plaintiff last week in the Sears v. Learmonth case at the Mississippi Supreme Court.

This is not good news for people hoping that the Mississippi Supreme Court will strike Mississippi’s caps in the Sears case.

The oral argument in Sears v. Learmonth is scheduled for tomorrow at 10:00 a.m. in the en banc courtroom at the Mississippi Supreme Court. This is the case where the 5th Circuit Court of Appeals certified the issue of whether Mississippi’s non-economic caps is constitutional.

Each side is allocated forty-five minutes to argue. Should be interesting.

In the last few weeks, I’ve talked to people who believe that the Court will uphold the caps and people who believe that the Court will strike the caps. Both can make logical arguments. Personally, I have no idea what the Court will do.

It’s even conceivable that the case could settle before the Court issues an opinion. The verdict was for $2.2 million in non-economic damages. The parties could emerge from the oral argument and decide that there is a point between $1 million and $2.2 million where they can agree to settle.

On Monday night at 8:00 p.m., the documentary Hot Coffee airs on HBO. You can watch the official trailer for the movie below. The film analyzes tort reform in the U.S.

In addition to the famed McDonald’s spilled-coffee verdict, the movie covers Mississippi Supreme Court elections and the prosecution of former Mississippi Supreme Court Justice Oliver Diaz. John Grisham, Justice Diaz and Jackson lawyer Rob McDuff are all shown in the trailer.