Mississippi Litigation Review & Commentary

Jackson Lawyer Partially Wins Lawsuit Over Fee in Fen-Phen Litigation

Philip Thomas — Thu, 17 May 2012 05:00:34 -0600

In 1999 American Home Products Corporation, the manufacturer of the diet drug fen-phen, agreed to pay $3.75 billion to settle thousands of lawsuits by the drug's users. The drug was linked to heart valve disease. It was a stunning settlement that included payments of hundreds of thousands of dollars to plaintiffs who took the drug with no apparent ill-effects. Some plaintiffs recovered in the millions.

Many lawyers who signed up fen-phen cases like it was Krayoxx in the latest John Grisham novel (The Litigators) received millions in legal fees. In an extreme version of American Greed, lawyers in Kentucky stole settlement funds from their clients. They received lengthy prison sentences.

Last week in Jackson, Mississippi lawyer Herbert Lee partially won a lawsuit by his former clients that alleged that Lee kept too much of the plaintiffs' fen-phen settlement. First, Hinds County Circuit Judge Jeff Weill ruled that Lee owes the two plaintiffs $600,000 based on a miscalculation of the clients' share of an MDL refund.

According to the Clarion-Ledger's article:

In allocating the refund, Lee retained 45 percent as his attorney's fee and refunded each client a per capita share, rather than a pro rata share, of the remaining 55 percent.

As a result, each of Lee's diet-drug clients receiving one-thirteenth of the refund instead of an amount based on a percentage of the total settlement, according to court records.

The article doesn't say this, but I read this to mean that Lee over-paid some of his clients from the MDL refund and now has to make up the short-fall. That's a lot different than what happened with the lawyers in Kentucky who stole from their clients.

Lee won a unanimous jury verdict on the plaintiffs' claim that Lee's fee should have been 40% of the recovery instead of 45%.

Ed Blackmon of Canton represented Herbert Lee. Lance Stevens of Jackson represented the plaintiffs.

Eaton Corp. in Hot Water Again Over Peters-DeLaughter Mess in Eaton v. Frisby Case

Philip Thomas — Tue, 15 May 2012 05:00:09 -0600

Alison Grant with the Plain Dealer in Cleveland wrote an article on Eaton Corp.'s latest trouble in its Hinds County litigation against Frisby Aerospace. Here is the article.

The article covers Hinds Circuit Judge Jeff Weills' Order requiring multiple Eaton employees—including CEO Alexander Cutler—to explain why Eaton did not previously produce emails from Ed Peters that discussed his communications with Judge Bobby DeLaughter about the case. Here is Judge Weill's order.

The article states:

In one email, Peters wrote to a top Eaton lawyer, "If you can keep mgmt. off your back for just a short time (relatively) I think they will be VERY pleased with you."

***

In the March emails, Peters advised Eaton in-house attorney Vic Leo that Judge DeLaughter was "spending every free minute" on a crucial ruling in the lawsuit and that "we are getting priority time," according to a motion Frisby filed last month.

In a followup email the same day, Peters said he was "REALLY pushing to get the ox out of the ditch, but the Jdg IS in trial for the next 2-3 weeks," and "I'm PUSHING."

The email chain was forwarded to another Eaton in-house lawyer, Sharon O'Flaherty, and to Michael Schaalman, an outside lawyer for Eaton from Quarles & Brady in Milwaukee.

The October email string, also about contacts between Peters and DeLaughter, looped in several other Eaton attorneys, including General Counsel Mark McGuire.

Eaton continues to deny any misconduct on its part. A denial that looks more and more ridiculous every time more details are revealed in the case.

Eaton apparently is also continuing to stand behind in-house lawyer Vic Leo and outside lawyers Quarles & Brady of Milwaukee, both of whom communicated with Peters. Eaton's sticking with these guys actually looks worse than if it didn't. It makes it look like Eaton is worried about damage control that could result if they were to cut them loose.

Judge Weill's Order requests that Eaton suggest the appropriate sanction against Eaton. That's a clever move by Judge Weill, who seems to be operating at a judicial level far beyond his two years on the bench. Eaton has to come up with a suggestion that doesn't really hurt Eaton, but doesn't look completely ridiculous.

Here are my earlier posts on Eaton v. Frisby.

North Mississippi Serial Killer--Fake Officer or Is a Cop the Killer?

Philip Thomas — Mon, 14 May 2012 15:22:40 -0600

Talk about blind spots. The A.P. reports that there may be a serial killer in North Mississippi. The article states:

Thomas Schlender, 74, of Raymond, Neb., was found in his car on Interstate 55 in nearby Panola County on May 8 about 1:30 a.m. Three days later, Lori Anne Carswell, 48, of Hernando, was found near her car on Mississippi Highway 713 in Tunica County on Friday about 2:15 a.m.

Mississippi Bureau of Investigation Director Larry Waggoner said authorities were investigating whether the suspect was impersonating an officer and that is how the people ended up on the side of the road.

How do they know it's not an off-duty officer in an unmarked car who is the killer? Given where this happened, it could be a cop from Arkansas or Tennessee who is driving across state lines to kill people. Granted it's probably not a real cop. But you can't just exclude all cops as suspects when they would have the easiest time pulling someone over.

Last Minute Qualifiers Liven Up Supreme Court Elections

Philip Thomas — Mon, 14 May 2012 07:50:45 -0600

Well, things certainly got interesting for Mississippi Supreme Court races Friday with two last minute qualifiers. State Representative Earl Banks qualified to run against Chief Justice William Waller and Hattiesburg attorney Tal Braddock qualified to run against Justice Mike Randolph. Oh, my!

The Braddock candidacy will be the most talked about in legal circles. Not because Braddock can win; he can't. But because of the Braddock stories that take an almost mythic quality due to their “I can't believe it” facts. Those stories will get told a lot over the next few weeks. The stories are very entertaining, much in the same way that Tucker Max stories are entertaining.

Braddock will not pose a serious challenge to Justice Randolph, a Governor Barbour appointee who will be able to raise more money than he will have to spend in the campaign. Any sentiment that Braddock will raise significant money from the plaintiff's bar is misguided.

Many lawyers in the plaintiff's bar will hear the infamous Braddock stories and conclude that he should not be on the Supreme Court. Some of those will openly support Randolph. The rest will not contribute to Braddock's campaign because they don't think he can win or they don't have the money to contribute to a campaign due to the tough economic times.

I look for Randolph to out fundraise Braddock by something like 20–1 and to win with something like 80% of the vote.

The Waller-Banks race will likely be more competitive, yet less interesting within the legal community. To be honest, my initial reaction to Banks' candidacy was: “who?” Perhaps Banks is well known in political circles. But not so much in the legal community.

Banks seems to be defining himself as a populist candidate who is willing to stand up for the individual against big corporations. Matt Eichelberger at the pro-Democratic Cottonmouth blog believes that Banks may actually emerge as the favorite against Waller due to the demographics in the central district. We'll have to see how this one plays out.

Long time readers of this blog know that I am not a fan of an elected judiciary. The argument for an appointed judiciary is particularly compelling at the appellate court level. I would prefer that sitting Supreme Court justices not have to hit the campaign trail.

Barring Last Minute Qualifiers, Most Supreme Court and Court of Appeals Judges Are Unopposed

Philip Thomas — Wed, 09 May 2012 05:00:24 -0600

According the the League of Women Voters of Mississippi's website, the qualifying deadline for elections for the Mississippi Supreme Court and Court of Appeals is this Friday May 11 at 5:00 p.m.

Here is the Secretary of State's Qualifying List. Chief Justice Waller and Justices Randolph and King do not have opponents.

Richard 'Flip' Phillips and Josiah Coleman are qualified for the race to replace the retiring Justice Carlson. Lydia Quarles was on this list at one time, but has withdrawn.

On the Court of Appeals, Judge Fair does not have an opponent. Perennial candidate Ceola James has qualified to run against Judge EJ Russell.

Judge Weill Petitions Supreme Court to Stop Judge Green's Case Assignment Plan for Hinds County

Philip Thomas — Tue, 08 May 2012 07:13:53 -0600

Hinds Circuit Judge Jeff Weill petitioned the Mississippi Supreme Court to stop Senior Judge Tommie Green's plan to assign only civil cases to Judge Weill and Judge Kidd with all criminal cases assigned to Judge Green and Judge Gowan. Here is Judge Weill's petition, minus the cover page (I don't have it). Here is my earlier post on Judge Green's plan.

I haven't had time to read Judge Weill's petition in detail, but one thing is clear. My assumption that all the Hinds Circuit Judges had signed off on Judge Green's plan was wrong. I should have listened to Coach Buttermaker's lecture about why you should not ass-u-me anything.

Federal Judge Dismisses City of Canton's Lawsuit Against Nissan

Philip Thomas — Mon, 07 May 2012 05:00:13 -0600

As reported in the Clarion-Ledger last week, District Judge Carlton Reeves dismissed the City of Canton's lawsuit against Nissan. Canton sought a declaratory judgment that its 2000 agreement to not annex the Nissan plant for at least 30 years is not binding.

Here is Judge Reeves' opinion.

Here is my post on the lawsuit from last year where I noted how unpopular the lawsuit was.

Judge Reeves rejected Canton's contention that the agreement was unconscionable. Here is the line of the opinion:

It may be that the City of Canton, as it is constituted in 2012, wishes that its predecessors had made a better deal, but that is not the question at hand. The question is whether [~~a deal is a deal]~~ the agreement is so one-sided as to be illegally oppressive, and that question can be answered only in the negative.

Barbara and Ed Blackmon of Blackmon and Blackmon in Canton represented the City of Canton. Mitchell Cowan and Kaytie Pickett of Jones Walker in Jackson, Laura Gibbes and Samuel Jones represented Nissan.

My Take:

Not surprising. Canton probably knew it would likely lose, but decided to roll the dice with taxpayer's money.

It would have been a disaster for other major economic developments if Canton's deal was set aside.

Credit to Attorney General Jim Hood and his attorneys Justin Matheny and Harold Pizzetta for intervening and opposing the suit on behalf of the State.

Mississippi Native Presides in Oracle v. Google Trial

Philip Thomas — Thu, 03 May 2012 05:02:09 -0600

The jury is deliberating in the Oracle v. Google trial involving software patents. The case is pending in Federal Court in Northern California. Although not a Mississippi case, the trial has a Mississippi connection.

Here is an article on the judge in the case, District Judge William Alsup. Judge Alsup grew up in South Jackson and attended Mississippi State and Harvard Law School.

The article mentions Mississippi several times:

During an early morning interview last week in his chambers, Alsup discussed everything from his reputation for running a tough courtroom to his days as a student fighting for civil rights causes on the Mississippi State campus during the 1960s.

Alsup would not discuss the Oracle-Google clash, in which a jury will consider Oracle's claims that the search giant's Android mobile phone technology infringes on its patents. But he downplayed the suggestion that overseeing such a big case may change his courtroom style.

"It probably affects me some," said Alsup, his Mississippi upbringing still flavoring his words. "But, really, in most ways, no."

Interesting stuff.

Take Home for Litigants from City of Jackson v. Rhaly: Object to All Discovery Requests

Philip Thomas — Tue, 01 May 2012 05:00:41 -0600

We have a discovery problem in civil litigation in Mississippi. And Thursday's Mississippi Supreme Court decision in City of Jackson v. Rhaly will do nothing to curb the problem. The Court affirmed the entry of a default judgment against the City of Jackson for discovery abuses.

I previously wrote about Rhaly here and here.

This was the case where Hinds County Circuit Judge Swan Yerger entered a default judgment against the City for not producing a policy and procedures manual that the plaintiff found anyway before trial. The Court of Appeals affirmed.

Here are the key discovery requests and responses:

Request No. 2: Any standard operating procedure (SOP's) which govern the site of the subject incident.

Response No. 2: None. Will supplement upon receipt of any information.

Interrogatory No. 20: Please describe any claims or lawsuits that have heretofore been brought against this Defendant by reason on an incident or injury at the same or similar location, or a similar type of incident at some other location for five years prior to the subject incident and at any time subsequent thereto.

Response No. 20: The City of Jackson is not aware of any lawsuits filed five years prior to the subject incident.

There turned out to be a policy and procedure manual and another lawsuit. The majority states: “[t]he existence, vel non, of 'water quantity control' policies and procedures, as well as similar incidents in the past five years, was clearly relevant to the issue raised in the complaints.” The Court did not explain how it was relevant.

Justice Randolph wrote the Court's 6–2 opinion. Chief Justice Waller and Justice Dickinson dissented.

Joe Kerley of Jackson represented the plaintiff. Pieter Teeuwissen and Claire Barker represented the City. The actual discovery screw ups were committed years ago by other city lawyers who have long since been gone from the City Attorney's office.

My Take:

I am biased in favor of the City. I am one of the innocent taxpayers who are the real parties in interest, as referenced in Justice Dickinson's dissent. I hate to see the City losing lawsuits costing it City money that it doesn't have.

With my bias disclosed, here are a few random comments on the decision and discovery practice in Mississippi:

Ironically, this decision will create more discovery disputes. Rather than say you don't have any documents, it's safer to just object to everything. Courts don't do anything about boilerplate objections and parties can always hide behind them if the other side finds the evidence on their own. When I first started practicing, litigants didn't object to every request. Not anymore. It sucks.
The City of Jackson is the only defendant who Judge Yerger would have defaulted under these facts. Judge Yerger was a defense leaning judge, except where the City was concerned. Check his record in bench trial cases against the City compared to his routine grant of summary judgments in other civil cases.
The strongest argument for affirming was the applicable abuse of discretion standard of review. While I think Judge Yerger got it wrong, I could probably be convinced that the Court got it right finding that Yerger's ruling was not an abuse of discretion. Judge Yerger probably gets affirmed here either way he rules.
Neither the Supreme Court's opinion nor the Court of Appeal's opinion articulated why the discovery at issue was relevant—something I want to know. It's my understanding that the relevance of the evidence was not articulated at any level of the proceedings. That makes this seem like a "Gotcha!" ruling.
It's hard to reconcile this decision with the Court's opinion in Ford v. Tennin, 960 So. 2d 379 (Miss. 2007). In that case, Judge Kidd ordered a new trial for Ford's alleged discovery abuse. The Supreme Court reversed, finding Judge Kidd's ruling was an abuse of discretion.
If the Supreme Court wants to stop discovery abuse, then it needs to do something about parties objecting to every discovery request. In Tennin, the Court said take up each specific request with the trial judge. But trial judges don't want to (or have time to) hear it, so that's not much of a solution. The Court could at least identify some discovery requests that are per se valid, such as expert information, witnesses and trial exhibits.
In retrospect, the City should have imitated other parties who don't produce evidence they have and assert boilerplate objections. It worked for Ford in Tennin and it is utilized by litigants everyday in Mississippi civil practice.

A.G. Agents Foil Hit on Greenwood Attorney Lee Abraham

Philip Thomas — Mon, 30 Apr 2012 07:35:23 -0600

NMC has the details on the bizarre attempt to murder Greenwood attorney Lee Abraham Saturday night at his office.

Abraham got wind of the planned hit and was waiting for the bad guys in his office with armed agents from the Mississippi Attorney General's office. A shoot-out ensued. The agents killed one bad guy and wounded the other. One agent was also wounded.

The person who ordered the hit is—allegedly—Greenwood oncologist Dr. Arnold Smith, age 70. Abraham apparently represented Smith's ex-wife in their divorce case years ago.

It sounds like Smith has gone severely cuckoo. he claims to have been stabbed Thursday by someone claiming to have compromising photos of Abraham.

Looks like I need to pay more attention when someone calls my office and says they think their doctor is trying to kill them. I thought stuff like that only happened in Greg Iles novels.

Miss. Supreme Court Splits 5-4 on Venue Decision

Philip Thomas — Fri, 27 Apr 2012 05:00:30 -0600

Anderson had a good post earlier this week about the Miss. Supreme Court's decision last week in Autozone v. Craft. The case was an interlocutory appeal from the Smith County Circuit Court's denial of a motion to transfer venue.

From Anderson's post:

Buddy Craft allegedly bought a part for his car from AutoZone in Scott County, which he claimed malfunctioned and damaged his car in Smith County, where he filed suit. AutoZone moved to change venue and appealed the denial.

The order (Lamar, J.) quotes MCA 11-11-3:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

The Court held that the “act or omission” was in Scott, and summarily stated that “Craft failed to allege in his Complaint that a substantial event that caused the injury occurred in Smith County.”

In the majority were Justices Lamar, Waller, Carlson, Dickinson and Pierce.

Four Justices dissented: Chandler, Randolph, Kitchens and King. The dissent's point was that plaintiff's use of the part and injury in Smith County was a substantial event that caused injury.

My Take:

I'm fascinated by how I read and analyzed this decision. Rather than focus on the statutory language, I thought about whether I felt it was fair for AutoZone to get sued in Smith County under those facts. Having a bit of experience defending cases in Smith County, it didn't see that fair to me, so I decided I agreed with the majority. Before really focusing on the venue statute. My analysis is probably a small example of how people—including jurors—marshal the facts to support a decision they made under the influence of a bias.

Defense Verdict in Re-trial of $322 Million Asbestos Drilling Mud Case

Philip Thomas — Wed, 25 Apr 2012 14:10:09 -0600

There are reports from Jones County that there was a defense verdict today in the re-trial of the case last year that resulted in a $322 million verdict in Smith County. This was the case where the Supreme Court removed Judge Eddie Bowen after the trial and retired Judge William Coleman took over and moved the second trial to Jones County.

Here are my previous posts on the case.

My favorite part of the story surrounding the first trial was this:

There is also a rumor that plaintiff's counsel went in Char in Jackson last night, had the band play Queen's “We are the Champions” and ran around the place "taking a victory lap" giving everyone high fives.

I guess they have now been stripped of the title. Someone alert the band at Char that Forman Perry lawyers are headed back to Jackson and will take their victory lap tonight at 9:00 p.m. A victory lap after wiping out a $322 million verdict would be absolutely ~~in poor taste~~ justified.

I'm sure there will be more to discuss on this case later.

$100,000 Verdict in Jackson Federal Court Sexual Harassment Trial

Philip Thomas — Wed, 25 Apr 2012 05:00:13 -0600

On April 19 a federal court jury in Jackson rendered a $100,000 verdict for the plaintiff in Jackson-Hall v. Moss Point School District. Here is the verdict form.

Here is a Sun-Herald article on the verdict. According to the Sun-Herald report:

The Moss Point School District must pay a former principal $100,000 wages she lost after she was fired for refusing to have sex with her former school superintendent, an attorney said.

A Jackson federal jury on Thursday found the Moss Point School District was liable for sexual harassment against Tonya Jackson-Hill, who was principal of Kreole Elementary, said Nick Morris with the Louis H. Watson Jr. law firm.

During the trial, the district claimed Jackson-Hall was terminated for lying in an investigation regarding banking transactions, Morris said.

However, Jackson-Hall said former Superintendent Kim Staley made numerous sexual advances toward her and when she didn’t comply, he yelled, gave her bad evaluations and falsely accused her of lying during the investigation, Morris said.

It's unclear why the case was in the Jackson division with Moss Point being in the Southern Division. From PACER, it looks like Plaintiff filed the Complaint in Hinds County Circuit Court and Defendant removed the case to federal court. The Complaint does not identify a specific reason that venue was proper in Hinds County.

Louis Watson, Jr. and Nick Norris of Jackson represented the plaintiff. Defense attorneys were Richard Garner, James Keith, John Hooks, Laura Rose and Lindsey Oswalt of Adams and Reese in Jackson.

Judge Dan Jordan presided in the case.

$0 Verdict in Jones County Admitted Liability Car Wreck Case Against Miss. Power Co.

Philip Thomas — Tue, 24 Apr 2012 05:00:54 -0600

On April 11 a Jones County jury awarded $0 in damages in an admitted liability case in Livingston v. Miss. Power Co. Here is the verdict form. The trial lasted 3 days.

The case involved a 2004 auto accident in Jones County. Tina Livingston had multiple back and neck surgeries that she claimed were related to the accident. However, Ms. Livingston did not complain to a doctor until 2 1/2 years after the accident.

Miss. Power admitted liability before trial and argued that Livingston suffered no damages related to the accident. The jury agreed.

Plaintiffs' counsel were Gene Tullos of Raleigh and Wayne Easterling of Hattiesburg.

Defense counsel were Dick Yoder and Lew Yoder from Gilchrist Sumrall Yoder & Boone in Laurel and Mark Alexander from Balch & Bingham's Gulfport office.

Judge Billy Joe Landrum presided in the case.

Coahoma County Circuit Court: Mississippi Tort Reform Caps Unconstitutional

Philip Thomas — Sun, 22 Apr 2012 19:55:57 -0600

Last week Circuit Judge Charles Webster of Coahoma County ruled that Mississippi's limit on non-economic damages is unconstitutional. The decision arose from a $7.5 million verdict in a premises liability fire case in September 2011. I don't know what the non-economic damages were, but will look it up Monday and update this post.

Here is the Order.

Paragraph 9 of the Order states:

In considering the statute in question, it should be kept in mind that the issue is not whether the limits imposed under the statute are reasonable. Rather. the issue is whether the legislature has the authority to impose any limits, reasonable or not. For if the legislature has the authority to impose reasonable limits, than [sic] it has the authority to impose unreasonable limits. If the legislature has the authority to cap non-economic damages at $1,000,000, then it has the authority to cap damages, non-economic or otherwise, at any amount- $10 or even at $1. As such, the legislature then has the authority to effectively end the civil justice system in the state of Mississippi.

Paragraph 10:

It takes no genius of jurisprudence to view our Constitution and conclude that the framers did not envision one department of government having the power to effectively do away with or significantly usurp the constitutional power of another.

In finding the caps unconstitutional:

This court shall not surrender the keys to the courtroom - nor any power delegated to the judicial department of government - to the legislative branch through legislative enactment.

My Take:

Judge Webster focuses on a key issue with the caps that is often overlooked: if the legislature can enact these caps, then it can also lower the caps to $0. And this legislative session has shown us that some Republican legislators (Gary Chism of Columbus chief among them), would do just that.

The second sentence of the Order recognizes that the caps issue is currently pending before the Mississippi Supreme Court and the Court's decision could render this decision null and void. Of course, the Court may not even decide the caps issue in Sears v. Learmonth.

Sears v. Learmonth has been pending for so long that it's hard to imagine this decision having any impact on the Court's decision in Sears. That decision has probably been made and the opinions are being drafted.

Judges Kidd and Weill to Preside Over Most Civil Cases in Hinds County Circuit Court

Philip Thomas — Thu, 19 Apr 2012 09:45:25 -0600

As reported earlier this week on Jackson Jambalaya, Hinds County Senior Judge Tomie Green entered an Order Establishing Criminal and Civil Divisions in Hinds County. You can read the Order at the JJ link above.

The Order tabs Judges Kidd and Weill to primarily preside over civil cases. Judges Green and Gowan will primarily preside over criminal cases. However, Judge Gowan will still be assigned all Second Judicial District cases—criminal and civil.

All four judges will continue to be randomly assigned capital murder and death penalty cases.

The effective date of the Order is August 1, 2012. On that date, civil cases previously assigned to Judge Green will be reassigned to Judge Kidd. Civil cases previously assigned to Judge Gowan will be reassigned to Judge Weill.

Judge Green states in the Order that she believes that the split division will lead to more efficient resolution of cases.

My Take:

We will have to see how this plays out, but my initial reaction to this is positive. I think most civil trial attorneys believe that cases would get to trial quicker if the Circuit Court judge assigned to the case did not also preside over criminal matters.

Plaintiffs win 4 - Defendants Win 6 in April Mississippi Jury Verdict Reporter

Philip Thomas — Wed, 18 Apr 2012 05:00:26 -0600

The April issue of the Mississippi Jury Verdict Reporter has been released. The April issue details 11 verdicts.

Plaintiffs won 4 of the trials with the largest verdict a $250,000 verdict in a Lauderdale County medical malpractice trial. The three other plaintiff verdicts were for $150,000 (truck negligence), $100,000 (sexual harassment) and $10,000 (gender discrimination). One verdict was mixed with the plaintiff obtaining a $2,000 verdict on a sewer easement.

The covered defense verdicts include a detailed report on the defense verdict in the Jackson federal court Ford rollover trial that I discussed here.

Subscriptions to the MJVR are available here.

Welcome to McDonald's!!!! Video Shows Wackenhut Guard Assaulting Plaintiff in McDonald's Premises Case

Philip Thomas — Mon, 16 Apr 2012 11:35:35 -0600

The post last week about the Court of Appeals decision in the Hinds County Wackenhut-McDonald's premises liability case generated a lot of discussion. Posted below are the two videos from inside the McDonald's. The first video shows the Wackenhut security guard shoving the plaintiff with a lot of force. The second video from the back of the store better shows what plaintiff was doing and that the restaurant was empty. Matt Eichelberger's comment to the original post indicates that the security guard got caught lying about what happened.

Having reviewed the videos, I vote not a frivolous case. My definition for "frivolous" is a case that has no arguable merit. The merits of this case are debatable. A jury reviewed the facts and determined that the case had merits. It could have gone the other way. This video is probably the main reason the Court remanded the case for a new trial instead of rendering.

North Miss. Federal Court Jury Renders $82,000 Verdict for White Hospital Board Attorney in Racial Discrimination Case

Philip Thomas — Mon, 16 Apr 2012 05:00:43 -0600

On Thursday a federal court jury in Aberdeen rendered a plaintiff verdict of $82,000 in Dulin v. Board of Commissioners of the Greenwood Leflore Hospital. Here is the verdict.

The plaintiff, age 80, was the board attorney for Greenwood Leflore Hospital. Plaintiff alleged that the Board fired him because he is white. Evidence showed that over a year before the firing, the Greenwood Voters' League called for the Board to replace Dulin with a black lawyer. Dulin had served as Board attorney for 24 years.

The jury awarded $12,000 for back pay and wrote in “+ court and attorney fees.” The jury also awarded $70,000 for compensatory damages including emotional pain and suffering.

The case was a Greenville Division case, but the trial was in Abderdeen.

Jim Waide and Rachel Pierce of Waide & Associates in Tupelo represented the plaintiff. Susan Desmond and Daisy Gurdian of the Jackson Lewis firm in New Orleans represented the defendant. Judge Sharion Aycock presided in the case.

Miss. Court of Appeals Reverses $1 Million Verdict in Hinds County Premises Liability Trial

Philip Thomas — Wed, 11 Apr 2012 13:34:35 -0600

On Tuesday a unanimous Mississippi Court of Appeals reversed and remanded a 2009 $1 million Hinds County premises liability verdict in Wackenhut v. Fortune. Here is my December 2009 post on the verdict.

This was the case where the plaintiff was a homeless man who got into it with the manager and security guard at the McDonald's on Highway 80 in Jackson. The plaintiff was attempting to get a free re-fill at the fountain drink machine with a cup he “acquired” ~~outside in the trash~~ hours earlier that day. The manager refused. Plaintiff left and then returned with a dollar causing a scene. Plaintiff's blood alcohol level turned out to be an impressive .276.

Plaintiff and the security guard then scuffled outside. Plaintiff fell and claimed injury.

The jury found Wackenhut and the security guard 75% responsible for plaintiff's injuries and awarded a total of $1 million in the following categories: $600,000 for pain and suffering, $194,000 for lost future earnings, $106,000 for past future medical expenses and $100,000 for “physical impairment and/or functional limitations.”

Wackenhut raised 10 issues on appeal. The plaintiff agreed that Wackenhut was entitled to reversal and remand on 2 of the issues: (1) expert's calculation of future lost wages; and (2) trial court's refusal of contributory negligence instruction.

The Court of appeals found that the trial court erred:

by not allowing evidence of plaintiff's alcohol use to show likely decrease in life expectancy;
allowing an expert to testify about damages for future surgery when there was no evidence plaintiff would stop drinking to have the surgery; and
by refusing to grant Wackenhut's contributory negligent instruction.

Fortune's economist expert (Dr. Glenda Glover) used the same future lost wages technique as the Court ruled improper in the Rebelwood Apartments decision in 2010.

On the evidence of alcohol issue, plaintiff was treated in Jackson area hospitals for intoxication 40 times between 1999 and 2009. He suffered from cirrhosis of the liver and cerebral atrophy. Wackenhut argued that the evidence was relevant to plaintiff's life expectancy and lost wages claim. The Court agreed, as do I.

On the contributory negligence instruction issue, the Court found that there was evidence to support the instruction and that it should have been given.

There were some other issues the Court discussed, but did not decide.

Judge Larry Roberts wrote the Court's unanimous decision. Ashley Ogden and Rocky Wilkins represented the plaintiff. Defendant's counsel on appeal were Matthew Taylor, David Gladden and Jamie Heard. Judge Winston Kidd was the trial judge.

My Take:

As long as I'm not on the losing end of them, I like unanimous decisions. The fact they are unanimous almost always means that the issues were clear and correctly decided. In light of Rebelwood, the lost wages claim was clearly improper. Overall, the amount of the verdict was too high for a questionable plaintiff.

I believe in everyone having access to the court system to resolve their disputes. However, I'm not sure I can agree that this case should have been filed based on the recitation of facts in the Court's opinion. It's a touchy subject, but a raving alcoholic who was disrupting business (probably not for the first time) is eventually going to get some push-back from the business. People aren't going to want to bring their families in the McDonald's if a drunk homeless looking man is making a scene over drink re-fills. Here, the business's push-back was literal and plaintiff's fall was not surprising given his blood alcohol level.

Another problem is that a case like this gives ammunition to people who would like to see premises liability actions eliminated. The fact pattern in this case is a lot different from the hypothetical fact pattern I discussed in this post earlier this year when there was a proposal in the legislature to end the right to sue in premises case.

We have tort reform in Mississippi primarily because back in the day, lawyers were filing cases that shouldn't be filed and/ or filing them in the wrong venues and then asking juries for too much money. This case might fit in that category of cases.