“The Mississippi Supreme Court on Thursday threw out a $48.5 million damage award imposed on the makers of the heartburn drug Propulsid and ordered that separate trials be held for each of the 10 plaintiffs.” The jury in the case had originally rendered a verdict of $100 million parceled equally among the ten complainants; the defendants, Johnson & Johnson, denied that the drug was responsible for any of the complainants’ health problems (see “Robbery on Highway 61”, Oct. 1-2, 2001). With the acquiescence of the plaintiffs, Judge Lamar Pickard later cut the award by a bit more than half before its appeal. (Jackson Clarion-Ledger, May 14).
Posts Tagged ‘Mississippi’
Miss. governor: legal climate helped cost us auto plant
Mississippi Gov. Haley Barbour says the Magnolia State’s famously pro-plaintiff litigation climate may have played a role in Toyota’s decision last year to locate a new plant in Texas rather than northern Mississippi. Barbour “gave reporters and legislators copies of a letter written to him last week by Dennis C. Cuneo, a New York-based senior vice president of Toyota Motor North America Inc. …Cuneo said he led the site selection for the Japanese auto maker’s newest plants and was impressed by Texas Gov. Rick Perry’s commitment to changing that state’s civil justice system. Cuneo wrote Mississippi is ‘desirable’ for its infrastructure, pool of skilled labor, quality of life and proximity to other Toyota plants and suppliers. But he said ‘the litigation climate in Mississippi is unfavorable, and negatively impacts the state’s business climate.'” (Emily Wagster Pettus, “Barbour: Legal climate hurt state in push to get Toyota plant”, AP/Biloxi Sun-Herald, Apr. 26). Barbour was promptly assailed by lawmaker Ed Blackmon, himself a successful plaintiff’s lawyer, who heads a judiciary committee in the lower house of the Mississippi legislature where he has helped to bottle up liability reform. Blackmun said he “doesn’t believe tort reform played a role in Toyota’s decision and said he guesses ‘Maybe someone at Toyota owed (Barbour) a favor’ and wrote the letter.” (Geoff Pender, “House, Senate show little tort progress”, AP/Biloxi Sun-Herald, Apr. 27; Shelia Hardwell Byrd, “Barbour says House needs chance to vote on tort reform”, AP/Biloxi Sun-Herald, Apr. 29; “Letter shows state needs tort reform” (editorial), Natchez Democrat, Apr. 27; Julie Goodman, “Lawmaker accuses gov. of exploiting tort myth”, Jackson Clarion-Ledger, Apr. 29).
Update: Ness Motley and James Down
A feature from the Chicago Tribune on the Ness Motley sellout of its clients in the James Blair Down case (see Jul. 7 and follow-ups Aug. 24 and Jan. 17) is revealing about forum-shopping:
[Blair] Hahn told his clients he knew exactly where to find the class-action judgment they needed: in Madison County, across the Mississippi River from St. Louis.
In testimony later, [former Secret Service agent James] McGunn said Hahn assured them he could “manipulate” the court, and that “his wishes would be granted.”
“The reason that they selected Madison County was because the judge there looked very kindly on Ness Motley and would be very favorably impressed with whatever they said,” McGunn recalled Hahn telling him. “They would have no problem in Madison County.”
On February 18, Madison County Judge Phillip Kardis (Oct. 7) held a twenty-minute hearing and preliminarily approved a class action settlement that provided millions for the lawyers and little for the class. (Greg Burns, “The lawsuit capital”, Chicago Tribune, Mar. 8).
Mississippi changes venue and joinder rules
The Mississippi Supreme Court has reformed its joinder and venue rules to make both forum shopping and unfair mass tort litigation more difficult. The changes stem from a recent case where 56 plaintiffs sued 42 doctors and a drug manufacturer in Jones County, where only one of the plaintiffs resided. Mississippi state law has no provision for class actions, and judges had attempted to get around this by broad application of joinder rules. (AP, Feb. 21; Davis Brister, “Ruling Could Have Major Impact on Tort Reform”, WLBT, Feb. 20; Janssen Pharmaceutica v. Armond; rule and comment changes).
Aside from the forum shopping, such overly permissive joinder is often fundamentally unfair to defendants, who may be forced to try cases where their issues are entirely different from the central issues in the case. Pending before the Mississippi Supreme Court now is the case of 3M Company v. Johnson, where six plaintiffs with a minor lung impairment that did not restrict their activities won a $150 million judgment in rural Holmes County against 3M for allegedly defective face masks in the middle of a much larger proceeding involving many other defendants and asbestos manufacturing–even though 3M’s masks were never designed for asbestos protection, and some of the plaintiffs had no evidence that they had ever used a 3M mask. The plaintiffs did not work together; the defendants were being sued under different theories and different sets of facts, permitting the plaintiffs to introduce large amounts of evidence about manufacturers’ supposed careless marketing of asbestos-containing products that had nothing to do with 3M. (Washington Legal Foundation press release and amicus brief). Update Jan. 22, 2005: Mississippi high court throws out verdict against 3M.
Update: “Diaz, Minor face additional counts”
Mississippi Supreme Court scandal, cont’d: “A federal grand jury added extortion and attempted bribery charges Friday against Justice Oliver Diaz Jr. and trial lawyer Paul Minor, postponing their March 1 trial. … The new charges allege Minor in 2001 tried to extort $20,000 for Diaz from trial lawyers representing Dawn Bradshaw, who was awarded $9 million after poor hospital care led to pneumonia and brain damage.
“The high court upheld the $9 million verdict Oct. 11, 2001. According to the indictment, 14 days later, Minor told two unnamed lawyers that Diaz ‘helped swing the vote … in favor of their client, Dawn Bradshaw, and that the vote could have gone either way but for … Diaz’s influence,’ pointing out the justice would soon be voting on the motion for rehearing their case. Minor asked the pair for at least $20,000, which would pay for a function at the bed and breakfast operated by Jennifer Diaz [ex-wife of the justice], the indictment says. The lawyers refused, the indictment says.” Minor called the new charges “false” while his attorney, Abbe Lowell of Washington, D.C., called them “outrageous” and said his client would plead not guilty to them. An attorney for Diaz said his client neither spoke to the lawyers from whom the indictment says he attempted to extort money nor “authorized anyone to speak to them on his behalf.” (Jerry Mitchell, Jackson Clarion-Ledger, Feb. 21). See Dec. 19, Aug. 19, Jul. 27 and links from there. Update Apr. 30, 2005: Diaz’s ex-wife reaches plea agreement with prosecutors.
Brawl escalates into $1.3 M legal malpractice verdict
A Hinds County, Mississippi, jury has ordered the well-known law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz to pay $595,000 in compensatory and $750,000 in punitive damages to 34-year-old Jack Muirhead, Jr. The case began when Muirhead, who had been attending an employee meeting, got into a brawl in a hotel parking lot which resulted in a $2,900 jury verdict against him. An insurer for Muirhead’s employer denied coverage on the advice of the Baker, Donelson firm that the altercation was not employment-related, and Muirhead sued, first winning a $500,000 bad faith settlement against the insurer and then cooperating with it to sue the law firm. After the latest verdict, the attorney for Baker Donelson noted that the plaintiff “has gotten $1.845 million for a parking lot brawl. The guy who lost the fight got $2,900.” (Jimmie E. Gates, “‘Wrong’ advice nets damages”, Jackson Clarion-Ledger, Feb. 12; “Law firm hit with $595,000 judgment”, Feb. 11). Says an editorial in the Greenwood Commonwealth: “Pundits have argued that real tort reform will only come when the lawyers start suing the other lawyers…. that time has arrived.” (“Lawyers feel sting of absurd verdict”, Feb. 15)
Edwards’ persuasive powers
Having long taken an interest in the career of North Carolina Sen. John Edwards (see Sept. 16, Aug. 27 (talk about bad predictions!), Aug. 5, earlier posts), we are not entirely surprised that the silver-tongued trial lawyer/politician did so well among Iowa Democrats, not to mention charming such commentators as Mickey Kaus (scroll to second “P.P.S.” item) and Andrew Sullivan (second item). As we’ve had occasion to note, before entering politics Sen. Edwards had some of his greatest success representing families of kids with cerebral palsy against the doctors who’d allegedly botched their deliveries — this despite a steadily mounting pile of research (see Feb. 27, 2003) tending to refute the popular theory that cerebral palsy is commonly caused by obstetricians’ conduct during labor and delivery. Last March, in a letter to the editor printed at this site, Mississippi physician S.W. Bondurant wondered whether the press would look into the question of whether Edwards’s trial wins were based on sound science. Now reporter Marc Morano of the conservative CNSNews.com takes on that assignment (“Did ‘Junk Science’ Make John Edwards Rich?”, CNSNews.com, Jan. 20). Just to clarify my own views, which are quoted at some length: I don’t assert that every lawsuit blaming obstetricians for infant brain damage is unfounded. The problem is that our system gives wide leeway for cases of debatable scientific merit to be filed and then, after a battle of the hired experts, decided by appeals to jury emotion. (& welcome visitors from sites including Kaus (Jan. 20), Sullivan, MedPundit, Rangel M.D., Blog 702, MedRants, and many others)
Update: Mississippi Supreme Court
Mississippi Supreme Court Justice Oliver Diaz, who was indicted in July for an alleged judicial bribery scheme (see Aug. 19), has been suspended with pay by a tribunal–a formality, says his lawyer, since Diaz was already on a voluntary leave of absence. (Jerry Mitchell, “Special tribunal suspends justice”, The Clarion-Ledger, Dec. 17; AP, “Panel orders Mississippi justice suspended”, Dec. 16). The Mississippi Supreme Court has had other troubles recently (see Oct. 1); the judicial misconduct case against lame duck Justice Chuck McRae remains pending, and probably will not be decided before he leaves the bench January 5. (Beth Musgrave, “Justice describes ‘hateful’ court full of ‘yes men'”, The Sun Herald, Oct. 31).
One doc’s memoir: litigation crisis as morality crisis
Last year it was reported that Dr. Kirk Kooyer, who had come to Mississippi to serve the poor, was leaving the state after being sued by a patient who later said she didn’t want to file charges against him but was talked into doing so by her lawyers (see Aug. 1, 2002; Dorothy L. Pennachio, “Why Dr. Kooyer Had To Move”, Medical Economics, Dec. 23, 2002). Now Kooyer has published a memoir/essay on the tort mess which really shouldn’t be missed, at this link. Brief excerpts follow:
“I watched as a litigation mentality crept into the Mississippi Delta, fueled by a favorable judicial environment. I have had to personally deal with the harassment of unmerited litigation along with its consequences to my family, my practice and, ultimately, my idealism. …
“[A] jury in Sharkey County, where I lived and practiced for eight years, awarded $10 million to the family of a man who had electrocuted himself by touching a pipe to a power line. As the treating physician in that case, as well as a resident of the county, I was interested in knowing what culpability the jury felt the defendant electric company had in the electrocution. One of the jurors told me, ‘Oh, we didn?t think the electrical company did anything wrong, but this way the children will be taken care of.’ …
“Perhaps no individual has suffered more [from the state’s medical liability crisis] than Dr. John Lucas III from Greenwood, Miss. Dr. Lucas, a fourth-generation Mississippi physician, is a trauma surgeon who was instrumental in setting up Mississippi?s statewide trauma network to speed victims of trauma from rural areas to appropriate medical care. In the past year, Lucas has been forced to witness the dismantling of the trauma network because of declining numbers of trauma surgeons in Mississippi. Additionally, he has had to personally deal with three distracting medical malpractice lawsuits, which he considers frivolous. And this past spring, his oldest son sustained a critical head injury in an automobile accident near Greenville, Miss. Last year, Greenville had well-established neurosurgical services. This year the last neurosurgeon providing emergency services in Greenville left the state. After his accident, vital neurosurgical care was delayed while Dr. Lucas’ son was transported 100 miles to the University Medical Center in Jackson. Dr. Lucas, a well-respected surgeon who worked diligently to improve trauma care in his state, who was personally dragged into Mississippi?s lawsuit frenzy, helplessly watched his precious son linger in a coma for several weeks and die for lack of expedient medical care. …
“I don?t think we should be distracted from what is at the heart of our nation?s tort crisis: a crisis in personal morality. We were taught from an early age not to accuse falsely and not to take something that doesn?t belong to us. When litigation is pursued in cases where there has been no negligence and where there has been no injury, not only is tort law not fulfilled, but an important moral teaching is also forgotten.” (Kurt Kooyer, “New Crisis in the Mississippi Delta”, The Spark (Calvin College), Fall). In its next issue, the Calvin College magazine runs a response from an Emory law prof who finds it just fine and completely understandable that people should file lawsuits demanding large sums as a way of “seek[ing] answers” after sudden and unexplained medical catastrophes — which tends to confirm Kooyer’s last point, so far as we can see. (Paul J. Zwier II, “Another Look at a ‘New Crisis in the Mississippi Delta'”, Winter) (& see Dec. 17).
Mississippi YMCA drowning case settles
A televised lawsuit against a Mississippi YMCA and a host of other defendants completed settlement late last week. (Terms of the settlement, no doubt motivated in part by the threat of a request for punitive damages, were not disclosed, but the lead plaintiffs’ lawyer, Dennis Sweet (see May 7 and Oct. 25, 2000), implied the total was almost $10 million.) The plaintiffs did not just sue the YMCA over their son’s drowning, but also sued a local television station’s charitable foundation because it had provided funding for the YMCA’s swimming program–which no doubt explains why the press coverage was more skeptical than it usually is when plaintiffs go after deep pockets.
Monte Barton, who represents the Y.M.C.A., says, “The Y.M.C.A. relies on [its] donors and volunteers. If they get scared away, because of the threat of lawsuits, it will definitely [affect] not only the Y.M.C.A., but other organizations like that.”
Charlene Priester, who represents the TV-3 Foundation, says, “That may indeed be something that is discussed in board rooms of charities throughout Jackson, the state and the nation since it was broadcast all over the country.”
Priester represents the TV-3 Foundation, the separate non-profit organization that helps the community. It is also out of the lawsuit now. But Priester says she’s still troubled by it.
Priester says, “Once someone has been sued in this type of lawsuit, it will always make you wonder before you do something to help. Do you subject yourself to this type of litigation?”
That’s why Priester says there needs to be some self-examination in the legal system.
Priester says, “This case might have been the poster child for tort reform…when you start suing charitable organizations when you know all they did is donate money and volunteers.”
(Dawn Russell, “Drowning Suit Draws Community Concern”, WLBT, Nov. 13; “Final defendant settles lawsuit over Jackson YMCA drowning”, AP, Nov. 15; Jimmie E. Gates, “Lawsuit over drowning settled”, Mississippi Clarion-Ledger, Nov. 15; “Three defendants agree to settle lawsuit over Jackson YMCA drowning”, AP, Nov. 14; Joanna Gaitanoglou, “All but One Defendant Dropped from Drowning Suit”, WLBT, Nov. 13; Rochelle Steinhaus, “Most parties in drowning suit settle, but trial goes on”, CourtTV, Nov. 13; complaint).