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.
The 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.
Chapter 34
Justice 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.
Their 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. Krone Chemical was ripe for a decision.
On a flight to New York to see Mr. Trudeau, Barry decided that their boy needed some reassurance.
The 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.
