The Appeal (40 page)

Maybe it was out of respect for the lady, or maybe it was their reluctance to interrupt such an impassioned plea, but, whatever the reason, the three judges said nothing.

Mary Grace finished with a quick lecture on the law. The law did not require them to prove that the BCL found in the tissue cells of Pete Baker came directly from the Krane facility. To do so would elevate the standard of proof to clear and convincing evidence. The law only required proof by a preponderance of the evidence, a lower standard.

When her time was up, she sat down next to her husband. The judges thanked the lawyers, then called the next case.

__________

T
he midwinter meeting of the MTA was a somber affair. Attendance was up sharply. The trial lawyers were anxious, deeply concerned, even frightened. The new court had reversed the first two plaintiffs’ verdicts on its docket for the year. Could this be the beginning of some horrible streak? Was it time to panic, or was it already too late?

A lawyer from Georgia helped darken the mood with a summary of the sorry state of things in his state. The Supreme Court of Georgia also had nine members, eight of whom were loyal to big business and consistently rejected verdicts for injured or dead plaintiffs. Twenty-two of the last twenty-five verdicts had been reversed. As a result, insurance companies were no longer willing to settle, and why should they? They were not afraid of juries anymore, because they owned the supreme court. Once upon a time, most cases were settled before trial. For a trial lawyer, this meant a caseload that was manageable. Now nothing got settled, and the plaintiff’s lawyer had to take every case to trial. And even if he got a verdict, it wouldn’t stand on appeal. The fallout is that lawyers are taking fewer cases and fewer injured folks with legitimate claims are being compensated. “The courthouse doors are closing rapidly,” he said as he finished.

Though it was only 10:00 a.m., many in the crowd were looking for a bar.

The next speaker lightened the mood, if only a little. Former Justice Sheila McCarthy was introduced and greeted warmly. She thanked the trial lawyers for their unwavering support and hinted that she might not be finished with politics. She railed against those who had conspired to defeat her. And as she was winding down, she brought them to their feet when she announced that since she was now in private practice, she had paid her dues and was a proud member of the Mississippi Trial Advocates.

__________

T
he Mississippi Supreme Court decides, on average, about 250 cases each year. Most are uncomplicated, fairly routine disputes. Some involve novel issues the court has never seen before. Virtually all are disposed of in an orderly, almost genteel fashion. Occasionally, though, one starts a war.

The case involved a large commercial grass cutter commonly known as a bush hog. The one in question was being pulled behind a John Deere tractor when it struck an abandoned manhole cover hidden in the weeds of a vacant lot. A four-inch piece of jagged steel was launched from the swirling blades of the bush hog. Once airborne, it traveled 238 feet before striking a six-year-old boy in the left temple. The boy’s name was Aaron, and he was holding his mother’s hand as they walked into a branch bank office in the town of Horn Lake. Aaron was grievously injured, almost died on several occasions, and in the four years since the accident had undergone eleven operations. His medical bills were well over the cap of $500,000 on the family’s health insurance policy. Expenses for his future care were estimated at $750,000.

Aaron’s lawyers had determined that the bush hog was fifteen years old and not equipped with side rail guards, debris chains, or any other safety feature used by most of the industry for at least thirty years. They sued. A jury in DeSoto County awarded Aaron $750,000. Afterward, the trial judge increased the
award to include the medical expenses. He reasoned that if the jury found liability, then Aaron should be entitled to more damages.

The supreme court was faced with several options: (1) affirm the jury’s award of $750,000; (2) affirm the judge’s increased award of $1.3 million; (3) reverse on either liability or damages and send it back for a new trial; or (4) reverse and render and kill the lawsuit. Liability appeared to be clear, so the question was more about the money.

The case was assigned to Judge McElwayne. His preliminary memo agreed with the trial judge and pushed for the higher award. If given the chance, he would have advocated for even more money. There was nothing in either amount to compensate the child for the excruciating pain he had endured and would continue to face in the future. Nor was there any award for the loss of future earning capacity. The child, while actually holding hands with his mother, had been crippled for life by an inherently dangerous product that was carelessly manufactured.

Justice Romano from the central district saw it differently. He rarely saw a big verdict he couldn’t attack, but this one proved to be a challenge. He decided that the bush hog was, in fact, reasonably designed and properly assembled at the factory, but in the intervening years its safety features and devices had been removed by its various owners. Indeed, the chain of ownership was not clear. Such is the nature of products like bush hogs. They are not clean, neat, safe products. Instead,
they are designed to do one thing—cut down thick grass and brush through the use of a series of sharp blades rotating at high speeds. They are extremely dangerous products, but they are nonetheless efficient and necessary.

Justice McElwayne eventually picked up three votes. Justice Romano worked on his brethren for several weeks before getting his three. Once again, it would be decided by the new guy.

Justice Fisk wrestled with the case. He read the briefs shortly after being sworn in, and changed his mind from day to day. He found it easy to believe that the manufacturer could reasonably expect its product to be modified over time, especially in light of the violent nature of a bush hog. But the record wasn’t entirely clear as to whether the manufacturer had complied with all federal regulations at the factory. Ron had great sympathy for the child, but would not allow his emotions to become a factor.

On the other hand, he had been elected on a platform of limiting liability. He had been attacked by trial lawyers and supported by the people they loved to sue.

The court was waiting; a decision was needed. Ron flip-flopped so many times he became hopelessly confused. When he finally cast his vote with Romano, he had no appetite and left the office early.

Justice McElwayne revised his opinion, and in a scathing dissent accused the majority of rewriting facts, changing legal standards, and circumventing the jury process, all in an effort to impose its own brand of tort
reform. Several in the majority fired back (Ron did not), and when the opinion was finally published, it spoke more to the internal upheaval in the supreme court than to the plight of little Aaron.

Such nastiness among civilized jurists was extremely rare, but the bruised egos and hurt feelings only deepened the rift between the two sides. There was no middle ground, no room for compromise.

When a case involved a substantial verdict, the insurance companies could now relax.

J
ustice McElwayne’s bitter dissents continued into the spring. But after the sixth loss in a row, another 5–4 split, he lost some of his spunk. The case involved gross negligence on the part of an incompetent doctor, and when the court took away the verdict, McElwayne knew that his brethren had shifted so far to the right that they would never return.

An orthopedic surgeon in Jackson botched a routine surgery to repair a herniated disk. His patient was rendered a paraplegic, and eventually filed suit. The doctor had been sued five times previously, had lost his medical license in two other states, and had been treated on at least three occasions for addiction to painkillers. The jury awarded the paraplegic $1.8 million for actual damages, then slapped the doctor and the hospital with $5 million in punitive damages.

Justice Fisk, in his first written opinion for the majority,
declared the actual damages to be excessive and the punitive award unconscionable. The decision sent the case back for a new trial on actual damages only. Forget punitive.

Justice McElwayne was apoplectic. His dissent bristled with vague allegations that special interests of the state now had more influence on the supreme court than did four of its own members. The final sentence of his initial draft was almost libelous: “The author of the majority opinion feigns shock at the amount of the punitive award. However, he should be rather comfortable with the sum of $5 million. That was the price of the seat he now occupies.” To get a laugh, he e-mailed a copy of the draft to Sheila McCarthy. She indeed laughed, then begged him to remove the last sentence. Eventually, he did.

McElwayne’s dissent raged for four pages. Albritton concurred with another three. They wondered privately if they could find happiness in writing useless dissents for the rest of their careers.

__________

T
heir useless dissents were beautiful music to Barry Rinehart. He was carefully reading every decision out of Mississippi. His staff was analyzing the opinions, the pending cases, and the recent jury trials that might one day send a verdict to the high court. As always, Barry was watching closely.

Electing a friendly judge was indeed a victory, but it wasn’t complete until the payoff. So far, Justice Fisk had
a perfect voting record.
Baker v. Krane Chemical
was ripe for a decision.

On a flight to New York to see Mr. Trudeau, Barry decided that their boy needed some reassurance.

__________

T
he dinner was at the University Club, on the top floor of Jackson’s tallest building. It was a quiet event, almost secret, by invitation only and the invitations were not printed. A phone network had rounded up the eighty or so guests. The evening was in honor of Justice Ron Fisk. Doreen was there and had the high honor of sitting next to Senator Myers Rudd, who’d just flown in from Washington. Steak and lobster were served. The first speaker was the president of the state medical association, a dignified surgeon from Natchez who at times seemed near tears as he talked about the enormous sense of relief in the medical community. For years, the doctors had labored under the fear of litigation. They had paid enormous insurance premiums. They had been subjected to frivolous lawsuits. They had been abused in depositions and during trials. But now everything had changed. Because of the new direction of the supreme court, they could properly treat their patients without looking over their shoulders. He thanked Ron Fisk for his courage, his wisdom, and his commitment to protecting the doctors and nurses and hospitals of the state of Mississippi.

Senator Rudd was on his third scotch, and the host knew from experience that the fourth one meant trouble.
He called on The Senator to say a few words. Thirty minutes later, after fighting battles around the world and settling everything but the conflict in the Middle East, Rudd finally remembered why he was there. He never used notes, never planned a speech, never wasted time on forethought. His presence alone was enough to thrill everyone. Oh yes, Ron Fisk. He recounted their first meeting in Washington a year earlier. He called him “Ronny” at least three times. When he saw the host point at his watch, he finally sat down and demanded scotch number four.

The next speaker was the executive director of the Commerce Council, a veteran of many bruising battles with the trial lawyers. He spoke eloquently about the drastic change in the state’s economic development environment. Companies young and old were suddenly making bold plans, no longer afraid to take risks that might lead to litigation. Foreign firms were now interested in locating facilities in the state. Thank you, Ron Fisk.

Mississippi’s reputation as a judicial hellhole, as a dumping ground for thousands of frivolous lawsuits, as a haven for reckless trial lawyers, had changed almost overnight. Thank you, Ron Fisk.

Many firms were beginning to see the first signs of stabilized rates for liability insurance protection. Nothing definite yet, but things looked promising. Thank you, Ron Fisk.

After Justice Fisk had been showered with praise, almost to the point of embarrassment, he was asked to
say a few words himself. He thanked everyone for their support during his campaign. He was pleased with his first three months on the court, and he was certain that the majority there would hold together on the issues of liability and damages. (Heavy applause.) His colleagues were bright and hardworking, and he claimed to be enamored with the intellectual challenge of the cases. He did not feel the least bit disadvantaged because of his inexperience.

On behalf of Doreen, he thanked them for a wonderful evening.

__________

I
t was a Friday night, and they drove home to Brookhaven still floating on the accolades and admiration. The kids were asleep when they arrived at midnight.

Ron slept six hours and awoke in a panic over where to find a catcher. Baseball season was beginning. Tryouts were at 9:00 a.m. for the eleven-and twelve-year-olds. Josh, eleven, was moving up and would be one of the highest-ranked newcomers to the league. Because of his demanding job, Ron could not commit to a head coaching position. He could not make all the practices, but he was determined not to miss a single game. He would handle the pitchers and catchers. One of his former law partners would handle the rest and call himself the head coach. Another father would organize the practices.

It was the first Saturday in April, a chilly morning throughout the state. A nervous bunch of players and
parents and especially coaches gathered at the city park for the beginning of the season. The nine-and ten-year-olds were sent to one field, the elevens and twelves to another. All players would be evaluated, then ranked, then placed in the draft.