Mississippi Litigation Review & Commentary

Mississippi Litigation Review & Commentary

Comments on the Latest Developments in Mississippi Civil Litigation

Philip is a trial attorney based in Jackson, Mississippi with a diverse civil litigation practice.

After Years of Saying Everything Fine, PERS Raises Employer Contribution Rates

Posted in PERS Crisis

Despite years of publicly disputing critics’ claims that there is a PERS crisis and a record 10 year bull market, PERS raised employer contribution rates in July to address the funding shortfalls. This Northside Sun editorial explains the increase and why it’s not enough.

The cost of the increase is expected to be $77 million for state government and $23 million for cities and counties.

In July Jackson Jambalya had another excellent PERS analysis.

My Take:

It’s a start. Long overdue, not enough of a fix, but a start.

How can a city like Jackson with an infrastructure crisis afford a mandatory PERS contribution increase?

There is no credible argument that PERS is going to work out. PERS cheerleaders’ argument ends after “it used to be worse” and “most other states are in the same boat we are.”

The plan is there is no plan. Pray for a miracle is a prayer, not a plan.

Yet, there is no secret where this is headed. One day, PERS will be scrapped for a 401(k) style retirement system for state workers. Current participants will be grandfathered in, but will have to take a haircut on their expected benefits. State and local governments will have to use more funds to pay PERS obligations instead of paving roads.

PERS has had some changes in leadership in the last year. Hopefully, it will become more realistic about the crisis.

Defense Verdict in Greenville Federal Court Nursing Home Case

Posted in U.S. District Courts in Mississippi, Verdicts in Mississippi

On June 29, 2018, a jury returned a defense verdict in federal court in Dykes v. Cleveland Nursing and Rehabilitation Center, LLC.  The verdict concluded a 5 day trial.

Plaintiff alleged the nursing home negligently failed to adequately prevent and treat a sacral wound, dehydration and infection. Plaintiff argued the staff’s negligent care caused the injuries and death of the 90 year old resident.

The nursing home responded that the staff complied with the standard of care and the resident died as a result of his significant number of advanced diseases.

Plaintiff requested $1.25 million in compensatory damages.

Judge Debra Brown presided. The jury consisted of six African Americans and one white female.

Plaintiff was represented by Paul Williams, John Hawkins, Jason Kirschberg,  David Norquist and Matt Newman.

The nursing home was represented by Brad Smith and Sterling Kidd with Baker Donelson in Jackson and La’Verne Edney with Butler Snow in Ridgeland.

My Take:

A few thoughts. The older the resident, the harder it is for a plaintiff to win a nursing home trial. It gets really hard when the resident was over age 80. The defense’s argument that the person was old and unhealthy and would have died regardless of their care plays well. Defense lawyers have gotten really good at defending nursing home cases by asserting that defense.

Another problem for plaintiffs is that the non-economic damages caps indirectly limit how much money plaintiffs can invest to work up a case. You can’t spend $150,000 working the case up when the most you can get at trial is $500,000. After Medicare/ Medicaid take their cut and the attorneys recoup their fees and expenses, there’s no money left for the plaintiffs. One solution is to handle the case on the cheap. But that also makes it a lot harder to win.

Another solution is to stop taking nursing home cases, which is the approach taken by most plaintiff attorneys who used to handle the cases.

Similar considerations are also a factor in why you don’t see more product liability cases in Mississippi even with a $1 million non-economic damages cap.

5th Circuit Affirms $3.4 Million Products Liability Verdict

Posted in 5th Circuit Court of Appeals

In 2016 I covered a $8.5 million (comparative fault reduced it to $3.4 million) Gulfport federal court verdict in Williams v. Manitowoc Cranes. I wrote:

On Thursday a federal court jury in Gulfport rendered an $8.5 million verdict in Williams v. Manitowoc Cranes, LLC. The case involved a crane accident in which the plaintiff suffered a traumatic brain injury. The plaintiffs filed the case in federal court in 2014.

The jury determined that the crane failed to contain adequate warnings of instructions as to the danger of falling counterweights. The jury awarded plaintiff $7 million in economic damages and $1.5 million in non-economic damages.

The verdict was reduced to $3.4 million because the jury apportioned Manitowoc 40% of the fault. The jury apportioned 50% to the employer and 10% to the plaintiff.

On August 3, 2018 the Fifth Circuit affirmed. Here is the Opinion.

Judge Willett drafted the Court’s opinion on a panel with Judges Jolly and Southwick.

Ben Galloway with Owen and Galloway in Gulfport represented the plaintiff with the assistance of Bryan Comer, Jason McCormick and Desmond Tobias from the Tobias, McCormick & Comer firm in Mobile and Clay Rankin from Fairhope.

Walter Boone and Matthew McDade with Balch & Bingham represented Manitowoc.

My Take:

The Defendant’s big problem on appeal was the standard of review. All the appeal arguments were reviewed under an abuse of discretion or similar standard.

The Defendant needed the Court to ignore the standard of review, weigh evidence, and put itself in the shoes of the trial judge. The Court refused. There was a basis to support all the trial court’s rulings. Nothing in the opinion suggests it was a close call.

My perception is that in general, the odds of the Fifth Circuit reversing a jury verdict are low. It takes something like what happened in this case.

I’m Back…..Barely

Posted in General

Hike’s over. It was….hard. Hiking 18-20 miles a day above 10,000 feet is tough for a desk jockey from sea level.

You know why there aren’t any tall mountains in this picture? Because this is what it looks like when you are on top of them.

The good news is my summer sabbatical from blogging ends this week. The bad news is I didn’t miss it.

I thought about pulling the plug. The main reason I write this blog is because I enjoy it. The professional benefits are nebulous.

How much do I really enjoy it if I never thought about it while I was taking a break? Do I have anything to say that I haven’t already written? Would my time be better spent elsewhere? These are the questions I am pondering.

I will resume regular updates Wednesday and continue blogging until at least February when this blog hits its 10 year anniversary. Beyond that, the jury is out.



Posted in General

For two years I planned to take a 6-week sabbatical in the summer of 2015 to thru hike the Colorado Trail. It didn’t work out.

I had hip problems that made hiking impossible from 2014-2016. It didn’t matter. My wife developed serious health problems that would have pulled me off the trail if I had been hiking in 2015.

Am I thru hiking the trail this year? Unfortunately, no. It will probably have to wait for retirement, hips willing.

I will still be working this summer. But I will be in and out of town, including two weeks on the CT.

So after 9.5 years of regular updates, I am taking a break from blogging.

Look for posts to resume around August 15.

Pictured below is my favorite type of trail. A single track through a mature aspen grove. It’s healing. I will be hiking near where I took this picture, but not on this trail. If you see me in early August with a serene look on my face, you will know I found my spot.

Have a good summer.

A Few Local Twitter Accounts to Follow

Posted in Legal Technology, U.S. District Courts in Mississippi

Local bar organizations are active twitter users. Surprising to me, the U.S. District Court for the Southern District of Mississippi is now on twitter with regular updates: @USDC_MSS.

The Southern District U.S. Bankruptcy Court, Mississippi Bar, Jackson Young Lawyers and Capital Area Bar are also on twitter:

  • @SDMissBankr
  • @JYLawyers
  • @TheMSBar
  • @CABALaw

I have not been active on Twitter in a while. It got overwhelming. You’ve got these national reporters and newscasters who tweet as part of their brand. They tweet all the time. It’s too much.

Rather than cap characters, I wish Twitter would cap tweets in a 24 hour period. Five would be plenty.

You aren’t going to have much to read in this space for the next couple of months. I will explain in a post on Wednesday.

May Miss. Jury Verdict Reporter Preview

Posted in Verdicts in Mississippi

Here is a preview of the May 2018 issue of the Miss. Jury Verdict Reporter:

  • $474,444 verdict- Gulfport federal court slip and fall case discussed here (4/11/18);
  • $350,000 verdict- Lamar County employment tort case discussed here (5/4/18);
  • $110,000 settlement during trial- Gulfport federal court civil rights case (4/18/18);
  • $25,000 verdict- Hinds County County Court employment contract case (12/19/17);
  • mixed verdict- Gulfport federal court breach of contract case (3/30/18);
  • plaintiff bench verdict- Forrest County adverse possession case (4/17/18);
  • defense verdict- Harrison County car wreck case (5/9/18);
  • defense verdict- Jackson federal court breach of fiduciary duty case (5/3/18); and
  • defense verdict- Rankin County medical malpractice case (4/12/18).

My Take:

Federal courts might not be that busy in Mississippi, but they are conducting about half the trials reported in the MJVR.

There are state court venues that either never have civil trials or they aren’t getting reported to MJVR.

Book Review: Jury Selection Handbook, by Ronald H. Clark and Thomas M. O’Toole

Posted in Book Reviews

The full title of this book is Jury Selection Handbook, The Nuts and Bolts of Effective Jury Selection. Here is the book on Amazon. the authors are Ronald H. Clark and Thomas M. O’Toole.

Clark was a co-author of the Cross-examination Handbook, which I reviewed here.

I agree with this review on Amazon:

It was a pleasure reading Jury Selection Handbook by Professor Clark and Mr. O’Toole. To begin with, it is a thorough treatment of the subject. The 14 substantive chapters touch on virtually every facet of the jury selection process. . . . In addition, the text goes far beyond the rudiments and exposes the reader to advanced techniques. . . . I found it to be at once comprehensive, sophisticated, and practical. . . . this is the single best short volume that I have read on jury selection. It would be a valuable addition to the library of any law student interested in litigation, a neophyte trial attorney, or even a counsel with a middling level of experience.” — Edward J. Imwinkelried, Professor of Law Emeritus, UC Davis School of Law

The book starts with an overview of the jury selection process that covers every facet of getting jurors to the courthouse and in the box. It beats how we did it when I was a baby lawyer: watch and learn.

But the book covers more than basics. It is sophisticated enough to be useful to seasoned trial veterans.

I view this as the best single volume available on jury selection.

No Class Actions in Mississippi a Big Deal?

Posted in Mississippi Supreme Court

Jimmy Gates with the Clarion-Ledger has this article about the Mississippi Supreme Court’s recent decision rejecting a petition to adopt Rule 23, which would permit class actions in state court.

Judge Primeaux’s blog post on Monday explains why enacting Rule 23 was not popular. He states:

Before I am flooded with comments along the lines of “Mississippi is the only state without a class-action rule,” and “We are out of step again,” let me point out that I am a member of the MSSC’s Advisory Committee on Rules, and have been since 2010. The committee membership includes plaintiffs’ and defense lawyers, an assistant AG, a public defender, 2 each circuit and chancery judges, a county-court judge, and an appellate judge. I am on the subcommittee that exhaustively studied the proposal, including reading scholarly articles on the subject and studies of other states’ rules. We even interviewed proponents of each side of the debate, something we have not done before during my time on the committee. The proposal was discussed in depth. The unanimous conclusion of the subcommittee (with one abstention) was that the federal Class Action Fairness Act of 2005 (CAFA) has had the effect of making almost all class-action suits removable to federal court, obviating the need for a state rule. The full committee voted unanimously (with one abstention) that the proposed rule not be adopted.

My Take:

I never could get worked up over this issue. Are state court class actions really a thing somewhere?

Don’t get me wrong, I’d rather have them than not have them because it might help business for Mississippi attorneys. But I don’t know that this is a big deal.

About That Good Plaintiff Verdict

Posted in Verdicts in Mississippi

In the April Miss. Jury Verdict Reporter preview post, I commented on an $80k plaintiff verdict in a Harrison County car wreck case that seemed like a plaintiff win. Too much of a plaintiff win it turns out.

Last week the trial court ordered a remittitur that knocks over $30,000 off the judgment. Here is the court’s Opinion.

The court reduced medicals from $20,000 to $18,971 and pain and suffering from $60,000 to $30,000. The actual medicals proven were $18,971. Plaintiff asked for $50,000 in pain and suffering in closing argument. The jury returned $60,000.

Here was the jury’s Verdict.

The plaintiff missed three days of work and received chiropractic treatment for under three months. Much of the medicals were for diagnostic testing that was negative.

My Take:

This is why general verdict forms are better for plaintiffs. The jury awarding more for medicals than the bills may have cost the plaintiff more than $1,021. It may have been the primary factor in losing $30,000 from the pain and suffering verdict.

This will cause teeth gnashing in what’s left of the plaintiff bar. But how you view this decision is a matter of perspective.

Plaintiff lawyer view:

The trial court substituted its judgement for the jury’s. This is bad for the judicial system, bad for the profession and bad for injured parties. Outlier verdicts for the plaintiff in soft-tissue personal injury cases are rare. If the trial court reverses them when they happen, insurance companies have no incentive to settle.

Verdicts of less than the medicals with little or nothing for pain and suffering are much more common. Those verdicts aren’t disturbed by trial judges. The playing field is not level.

Defense oriented view:

The plaintiff got lucky by getting a remittitur instead of the court ordering a new trial. When a jury renders a verdict for more in medicals than actually proven, you know something goofy happened. The trial court screwed up by not ordering a new trial.

The plaintiff wasn’t hurt and the medicals were unnecessary. A $49,310 judgment is still a lot more than the case would likely bring on a retrial. The plaintiff would be an idiot to not accept the remittitur.

Final thoughts:

Something about what underlies the above analysis has a lot to do with why I prefer working on business disputes and other non-personal injury cases.

The personal injury segment of the industry continues to shift to a model where cases are brought by the advertising PI mills vs. adjusters and in-house attorneys. One of the state’s preeminent mediators recently told me that he is mediating a lot of cases with an adjuster and no defense attorney.

That model is good for the PI factories and insurance companies. It’s bad for insurance defense lawyers and street lawyers.

This turned out to be a thought provoking car wreck case.