Wrongful Imprisonment

The Mississippi Supreme Court decided Tipton v. State located here.  This is an interesting case dealing with compensation for wrongfully convicted individuals under Mississippi Code Annotated 11-44-7.  The Supreme Court actually reversed a decision it had made earlier in the case and on rehearing determines that house arrest is imprisonment within the meaning of the statute allowing the individual to recover for time spent on house arrest also.  This is an interesting statute section to read through.  The statute does not seem to require proof of fault by the state and allows for a set amount of compensation for an individual along with the payment of attorney's fees by the state for bringing the claim. 

Meeting Deadlines

There are a number of litigation deadlines in cases.  The deadline to file a post trial motion is ten (10) days after entry of the judgment.  The deadline to file an appeal is thirty (30) days after entry of a judgment or thirty (30) days after entry of an order denying the motion for a new trial.  I am working on a case now where an opposing counsel keeps filing motions after missing both of these deadlines.  What many people do not realize is that those deadlines are actually jurisdictional.  Once the ten (10) days lapse, the trial court is deprived of jurisdiction to change the opinion absent a motion for Rule 60 relief which has very narrow applications.  Once the thirty (30) day deadline passes, the appellate court has no jurisdiction to modify the trial court judgment. 

Rules of the Road

Rules of the Road by Rick Friedman is a popular book among Plaintiff lawyers on proving liability in a case.  There are a lot of sources of rules in automobile accident cases including states statutes and local ordinances.  One easy source that is often overlooked is the Mississippi driver's handbook located here.  Using this, you can establish many of the rules that a defendant has broken with little effort.   

Termination of Alimony

Certain types of alimony may be terminated upon the payee cohabiting combined with the party they are living with providing support.  The case of McMinn v. McMinn  located here which was decided today illustrates the problems with proof in this area.  The key issue was that a relationship combined with sexual activity does not rise to the level of support to terminate alimony.  Absent some proof of the party they are living with providing monetary support, the alimony modification will be denied. 

Bystander Recovery

One interesting issue is whether a party can recover when they witness an accident and have emotional distress resulting from it.  This was the issue last week in Entergy v. Ace decided by the Mississippi Supreme Court located here.  The issue in the case concerned a bystander whose child  had been shocked by an Entergy power line but was not at the scene of the accident when it happened.  The mother claimed and apparently had expert testimony of emotional distress.  The trial court denied summary judgment but the Mississippi Supreme Court granted interlocutory appeal.  The Mississippi Supreme Court found that because the mother was not present when the accident happened and did not observe the accident, she could not recover as a matter of law.  There is a strong dissent by Justice Lamar joined by three other justices noting that with the mother arriving so quickly after the accident, she should be able to recover.  The language in the opinion appears to show that the matter was hotly debated among the justices with both the majority and the dissent taking shots at each other in the opinion. 

Insurance Coverage Exclusion

Many times insurance policies have various exclusions from liability.  Many times the theory of liability has to get around the exclusions.  However, the Mississippi Supreme Court had a case yesterday that considerably affirmed how narrow these theories can be in Gray v. Arch Specialty Insurance Co. located here.  The issue in the case was an individual's coverage for death resulting from medical malpractice.  There was a specific exclusion in the insurance coverage providing no coverage for losses resulting from medical malpractice.  The Plaintiff went on a theory of negligent training, negligent hiring, etc. related to the doctor.  The Mississippi Supreme Court affirmed the granting of summary judgment.  The Court stated that "Arch maintains that a plaintiff’s legal theory does not determine the applicability of exclusions; if an exclusion applies, then it applies to all theories of liability. We agree. The Court has held that, if the injury would not have resulted “but for” the excluded service, then the exclusion applies to all theories of liability.”. The English version of this is that if you have any theory of loss that was caused by medical malpractice, any theory of liability in that policy is covered by the exclusion. 

Accident Appeal of Interest

There is currently an interesting issue being considered on interlocutory appeal in the Mississippi Appellate Court's located here.  The question presented is whether it was proper for a trial court to consolidate two separate and distant car accidents the same plaintiff was in four (4) months apart where there is no way to tell which accident caused the Plaintiff's injuries?  Best I can tell each Defendant is pointing the finger at the other.  The Defendants have filed the petition for interlocutory appeal which is still pending.  From the Plaintiff's perspective, this prevents a verdict where a jury could find the unjoined defendant in each case liable.  There is a little bit of a gamble here by the Defendant to me.  What happens if the claims are severed and the jury in each case finds the named defendant in each case 100% liable?  Plaintiff could recover twice literally.  Arguably, any verdict from another case would be inadmissible too.  Sometimes, you have to be careful what you ask for on appeal because you might actually get it and end up in a worse position.     

Cohabitation Agreements

A few days ago I was working on a cohabitation agreement.  I am really surprised these are not more common.  This is essentially a contractual arrangement between two individuals who plan on living together who are not married.  This can be used in the context of those who are involved in a romantic relationship or simply in the case of roommates.  It defines who is to pay what bills and what is to happen when the parties no longer wish to reside together.  I was thinking that these kind of contracts could be popular in a college town.  The only issue is that the individual would have to be twenty-one in Mississippi in order to be contractually bound to the agreement. 

Fair Labor Standards Act

Recently, I have been dealing with a lot of Fair Labor Standards Act issues on cases.  With the economy like it is, many employers try to get around paying their covered employees time and a half for every hour worked over forty (40) in a week.  This is often done blatantly in some instances and negligently in others by not properly classifying workers.  This is a regular speech I have to give to my small business clients.  I have started asking questions about this in my personal injury cases and family law cases too.  I have noticed that many times people have no clue they are due this additional money and believe because they are on salary this automatically exempts this.  It does not and is often an area to be explored since part of the FLSA is a mandatory award of attorney's fees if successful. 

Merger of Ideas

Medical records are expensive to get.   Under the HITECH Act, you are able to get copies of them in electronic format.  Many times doctors try to give the runaround on this.  However, one way around it is to merge language for the HITECH Act with a subpoena.  I see nothing under Rule 45 that prohibits how something is to be copied.  As such, I don't see why you cannot request the copy only be made in electronic format.  Pursuant to the HITECH Act, 42 U.S.C.A. §17935(e)(1), and its implementing regulations, 45 CFR 164.524(c)(4)(i), an electronic copy can be requested.  The HITECH Act applies to requests by third-parties, such as law firms, just the same as it applies to requests by patients: “if requested by an individual, a covered entity must transmit the copy of protected health information directly to another person designated by the individual.” Federal Register January 25, 2013 Vol 78 No. 17, Page 5634.  Just some food for thought. 

Minimum Limits Insurance

I have started telling most all of my clients to bump their liability and uninsured/underinsured policy limits on their vehicles.  Currently, individuals are only required to have $25,000 in liability insurance.  From a practical standpoint, any major accident results in the policy limit being paid.   This is all many people have.  For a few hundred dollars extra a year, an individual can get several hundred thousand in coverage.  Unfortunately, I have been dealing recently with several cases with several hundred thousand in medical bills on clients with no additional coverage to receive.  Even with health insurance, the uncovered medicals alone will put many close to bankruptcy.   This is why having uninsured/underinsured coverage is so important. 

Medical Privilege and Divorce

The medical privilege normally prevents a party from having to disclose conditions regarding their health.  However, pursuant to Rule 503 of the rules of evidence, when a party places their condition in issue, the privilege is waived.  This gets into a complex area.  Arguably, any time a divorce or custody case is filed, the party is waiving privilege.  Health of a party is a factor in both custody cases and divorce cases for the court to consider.  The law in Mississippi has not developed too much in this area.  For some analysis on the issue in the custody context, take a look at Culbertson v. Culbertson from Tennessee located here.  This deals with the psychologist privilege under Tennessee law but can give you some ideas on how to argue both sides of the case. 

Entry of Orders

Fellow blogger Larry Primeaux had a good article yesterday located here dealing with the failure to enter an order.  In the case he posted about, it amounted to a $58,000 error.  I have actually noticed that as an ongoing problem in cases.  Many times I get hired on cases to come in as damage control as I call it to try and fix cases that have gotten off track.  Lots of times there are numerous motions that there were hearings on but with no orders entered.  For legal purposes, until there is an order entered nothing has actually happened.  This is why it is best to make orders nunc pro tunc ("now for then") when entered.  That way it goes back to the original time of ruling and covers the time period between then and entry of the order.  This is part of the reasons I bought a Microsoft Surface originally was to try to enter orders the same day of the hearing due to some attorneys who never return phone calls. 

Locating Medical Providers in Medical Malpractice

In medical malpractice cases, one of the big issues is locating and identifying all the possible liable parties in providing the required notices.  I have found that a call to the risk management of the primary medical provider can be helpful.  They are often willing to assist in making sure that the potential defendant nurses and doctors are given the required notices.  The purpose of the notice statute when it was written was to give attorneys and medical providers the opportunity to attempt to resolve cases with merit without the need for filing suit.  Obviously, some cases will have to be litigated but other cases not so much.  In the past I have been able to resolve a medical malpractice case prior to suit which was ultimately in both parties' best interest. 

Subpoenas

I am surprised subpoenas are not used more than they are.  I guess practicing law has made more skeptical of people.  However, it has also reaffirmed my belief that a lot of people just plain lie.  In the past I have had several cases where a party grossly misstates their income.  Through subpoenas I have been able to get documentation to show their income is a lot more than they are stating.  In at least one case, $100.00 a month turned into closer to $10,000.00.  I am getting to the point I just about subpoena anything I can get from a third party to a case because I have come to the conclusion that I can never get the exact items or a least a full copy of what all I need from the opposing party. 

Notice in Medical Malpractice Cases

Mississippi Code Annotated 15-1-36 provides that prior to filing a claim for medical malpractice, a sixty (60) day notice letter must be sent to the provider.  I am always looking at what other people do on cases to develop new ideas and litigation strategies.  Recently, I got two (2) new ideas from a prominent attorney that assist in foreclosing challenges to the adequacy of the notice letter.  In the letters I do now, I make a specific reference that I believe this letter complies will all notice requirements and that the provider notify me if they believe it is inadequate in any way.  Along with that I add a statement that I presume the letter is adequate unless they notify me otherwise.  This results in a waiver to most any argument they could have on it.  The second thing I have started doing is adding a provision that states for the provider to notify any other group they are affiliated with which could be construed as their employer, agent, etc.  I almost always have some Doe Defendants named to give some wiggle room if the doctor fails to notify someone we could not identify.  I believe adding the second provision advising the provider to notify anyone additional they are affiliated with can be construed as notice to that provider as their agent. 

Arbitration Video

I posted a few days ago about arbitration.  There is a very good YouTube video located here which discusses the issues in detail.  It is about twenty (20) minutes long but very interesting.  Once you start watching it, you really do not notice the time as it kind of pulls you in.  Once you see a few of the stories in the video of what has happened to ordinary people with arbitration, you will never see it the same again. 

Experts and Alimony

The Mississippi Court of Appeals decided Russell v. Russell located here yesterday.  The case had two interesting issues.  The first was that the chancellor found and the Court of Appeals affirmed a modification of alimony based on the wife receiving social security based on her former husband's earnings.  The husband who appealed wanted the alimony terminated which was denied based largely on the fact that his obligation was reduced by social security.  This is an area that lots of money can be saved for a client potentially.  In the second part of the case, the chancellor excluded an expert who was not designated sixty (60) days prior to trial.  This was also affirmed.  It appears the expert was designated in the middle of trial from some of the language in the opinion.  The relevant language stating the law in the area is below. 

"Rule 1.10(A) of the Uniform Chancery Court Rules provides that, “[a]bsent special
circumstances[,] the court will not allow testimony at trial of an expert witness who was not
designated as an expert witness to all attorneys of record at least sixty days before trial.”  In
addition, our caselaw recognizes that “[t]he purpose of the strict discovery rules is . . . to
avoid trial by ambush and to ensure that all parties involved have a reasonable time for trial
preparation.”  Poole ex rel. Poole v. Avara, 908 So. 2d 716, 725 (¶19) (Miss. 2005) (citation
omitted)."

The language of preventing trial by ambush has backfired on a defense attorney in one case I am aware of.  They tried to argue to exclude an expert who was not fully designated as an expert with all of his opinions in the designation.  This was after they stipulated he was an expert, participated in his deposition, got full disclosure of his opinions in the deposition, had his opinion for months, and then tried to exclude him the week before trial.  Trial judge said no way and allowed the opinion in.  The reasoning was, how can there be ambush under those circumstances?  This gives you an idea how to argue both sides of this. 

Same-Sex Marriage and the U.S. Supreme Court

The United States Supreme Court threw a major curve ball yesterday and summarily declined to hear seven (7) cases where the federal courts had found that a ban on same-sex marriage to be unconstitutional.  Even with this being a summary disposition, the fact they declined to hear the cases is now binding precedent.  In the same-sex divorce case I have, the state at trial and on appeal had been arguing that the summary disposition of the old Baker v. Nelson case where the United States Supreme Court declined to hear a case dealing with same sex marriage back in the 1970s precluded the state having to recognize a same-sex marriage.  With these seven (7) cases now being granted summary disposition, the argument now is that the summary disposition precludes them from arguing that the bans are constitutional.  The supplemental authority letter I filed yesterday is located here.  Everyone, including myself, thought that the United States Supreme Court would hear the cases.  I appears that the next case that may look at the issue will be coming from the 6th Circuit. 

Promissory Estoppel

Promissory estoppel works where one party has made certain representations and as such, the party making the representations is estopped from taking advantage of it when the other party acts in accordance with those representations.   Myself along with co-counsel are testing the waters in federal court on an employment case with this issue where a business does not act in accordance with their handbook policies.  I think this doctrine has some potential applications in other areas of law and will expand in the next few years. 

Arbitration

Arbitration is getting to be almost the default provision in many business contracts.  By signing an arbitration agreement, a party gives up their rights to have the court address their grievance and the same is submitted to an arbitrator often chosen and paid for by the opposing party.   Unfortunately, these provisions are almost always enforceable.  There is some legislation in Congress looking to limit arbitration.  The Mississippi Supreme Court decided Smith v. Express Check located here yesterday.  This case has the most one-sided arbitration contract I am aware of.  Smith was fired for reporting illegal conduct.  She had signed an arbitration agreement prior to being employed with Express Check.  The trial court and the Mississippi Supreme Court found the agreement enforceable and that all claims had to be submitted to arbitration.  There was a three judge dissent in the case who believed this contract was so one-sided that it should not be enforced.  A relevant portion of the dissent is below which shows how one-sided the contract was. 

"¶34.  The contract at issue is unquestionably a contract of adhesion.  It was a preprinted
form drafted by a business, or presumably, by its lawyers, and was presented to Smith on a
take-it-or-leave-it basis to sign if she wanted a job.   Furthermore, unemployment rates were
high, Smith’s testimony was that the highest level of education she completed was high
school, and the evidence indicates that she is not a worker with any specialized skills.  It is
certainly reasonable to assume that a disparity in bargaining power exists between the parties,
with Express Check holding the advantage.  It is also reasonable to assume that market
factors, i.e., difficulty finding another job, prevented Smith from contracting with another
party or employer.  See Entergy Miss., 726 So. 2d at 1207 (where no evidence was put forth
regarding the comparative business savvy of the contracting parties, “it is reasonable to
assume that a large company such as Entergy holds the advantage in that respect”).  While
the trial court found that Smith “was not obligated to sign the contract as she could have
refused and sought employment elsewhere,” this finding has utterly no basis in the record.
While she could have ostensibly “sought employment elsewhere,” there is no evidence as to
how difficult obtaining such employment might have been or how much such employment
might have paid, as compared to Express Check.  Such considerations are certainly relevant
to a determination of unconscionability, and the trial court clearly did not consider them, but
rather made an unsupported finding. 

¶35. In addition to being a contract of adhesion, the contract at issue allows Express Check
to pursue judicial remedies in the form of injunctive relief for Smith’s breach of the contract
and further mandates that she pay attorneys’ fees and costs if Express Check has to enforce
any of the provisions of the agreement.  Smith is entirely relegated to arbitration for any and
all breaches of the contract, and nothing provides that she may recover attorneys’ fees and
costs for her attempts to enforce the contract.  A similar provision was deemed substantively
unconscionable in Pitts v. Watkins, 905 So. 2d 553, 555-56 (Miss. 2005).  In that case, an
inspection agreement allowed the inspector to go to court, but only to recover fee payment,
while other claims were relegated to arbitration.  Pitts, 905 So. 2d at 556.  It also allowed him
to recover administration costs, attorneys’ fees, and costs of litigation, while the other party
was relegated solely to arbitration for any breach of the contract.  Id.  The Court found that,
because the arbitration provision allowed the inspector limited judicial remedies while
relegating the other party entirely to arbitration, the arbitration clause was “clearly one-sided,
oppressive, and therefore, substantively unconscionable.”  Id."

This is why arbitration needs to be limited.

Causation in Medical Malpractice

Causation in medical malpractice seems to be where most litigation is occurring.  This was illustrated in Williams v. Manhattan Nursing and Rehabilitation which was decided by the Mississippi Court of Appeals on Tuesday.  A copy of the opinion is located here.  The trial court granted a directed verdict to the Defendant and the Court of Appeals affirmed it.  The issue was whether the patient died as a result of the alleged malpractice.  While there was lots of testimony on malpractice that warranted sending it to a jury, there was not sufficient testimony that linked the malpractice with the death of the patient. 

The relevant section of the law in the area is below. 

"The Mississippi Supreme has found:
 In order to establish a prima facie case of medical malpractice, a plaintiff must prove (1) the    
 existence of a duty by the defendant to conform to a specific standard of conduct for the   
 protection of others against an unreasonable risk of injury; (2) a failure to conform to the         
 required standard; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.

Cleveland v. Hamil, 119 So. 3d 1020, 1023 (¶10) (Miss. 2013) (citations omitted).  In a case
for medical negligence, expert testimony must be provided to establish the second and third
prongs.  Id. at (¶11).  “Nurses cannot testify as to medical causation.”  Vaughn v. Miss.
Baptist Med. Ctr., 20 So. 3d 645, 652 (¶20) (Miss. 2009). (emphasis added).".  (emphasis added).

The issue was that the doctor who established causation specifically stated that he did not use the breach of the standard of care testified by the nurse with regard to nursing care.  As such, there was no link between the two. 

Expungement Law Change

Effective today, Mississippi Code Annotated 63-11-39 overhauls Mississippi DUI law and provides for the possibility of an expungement.  A quick summary of the changes is that when a person is convicted of their first offense DUI, the court will order them to complete an alcohol safety education program within a year and the Department of Public Safety must suspend their license if they have not already done so.  To become eligible to continue driving, the offender must get an interlock restricted license and must have an ignition interlock device installed in all vehicles to be driven.

Other changes in the law include the possibility of having the first DUI expunged or having it non-adjudicated, which means that after the case is resolved through a trial or through a guilty plea, the judge can withhold a judgment of guilt.  This is a one-time opportunity, as is the possibility of having a driver’s record cleared by expungement. In order to expunge, the driver must have a clear record of DUIs for at least five years after he completes all conditions of his sentence.

The ability to get an expungement should help a lot of people who have a DUI on their record.