Verdicts & Settlements

March 21, 2013

Fifth Circuit Upholds Mississippi Limit On Noneconomic Damages

The Fifth Circuit Court of Appeals held late last month that Mississippi’s $1 million limit on noneconomic damages in personal injury and product liability cases is constitutional.

The case, Learmonth v. Sears, Roebuck & Co., revolved around an incident where a Mississippi woman was seriously injured after being hit by a Sears delivery truck. The jury in that case sided with Learmonth, awarding her $4 million in damages. Unfortunately, the jury never broke down the award, failing to itemize how much of the total was for economic versus noneconomic damages. When the case made its way to a U.S. district court, the judge interpreted the award as having awarded $2.2 million for noneconomic damages. Given the state’s cap on such awards, Learmonth had her $2.2 million reduced down to $1 million.

Understandably unhappy with the turn of events, especially given the jury’s clear belief that Sears was in the wrong and owed Learmonth considerable money to compensate her for the harm she suffered, Learmonth appealed. Her attorneys argued that the cap violated the state’s constitutional guarantee to a jury trial as well as presenting a problem with the issue of separation of powers. Learmonth argued that the cap on damages denied the jury its rightful power to decide a case, including the damages associated with that case. Furthermore, because the legislature passed the law which serves to circumvent the judicial process, Learmonth claimed the legislation violated the constitutionally required separation of powers.

January 3, 2013

More Developments in Mississippi Tort Reform Case

by Kilpatrick & Philley

Post #1 image. 2013-01-03.jpg Mississippi’s Governor Phil Bryant has been trumpeting the state’s tort reform laws as a major economic development according to papers filed in federal court. The governor made the claims in a filing before the court that will decide the constitutionality of the state’s $1 million cap on non-economic damages.

The case, which began in 2006, will decide whether the state’s cap on damages is unjust. The cap was put into place years ago after legislators complained that verdicts in the state had gotten too large, too fast and led to unfairly large awards for plaintiffs. The updated brief on the part of Governor Bryant filed in support of the measure was meant to inject life into the case after the 5th Circuit told attorneys for both sides that briefs needed to be updated.

The case is not expected to be resolved until sometime later this year. Attorneys have said the complexity of the case and possible further oral arguments may drag the matter out well into the New Year. It’s also possible that the 5th Circuit will ask for additional briefs on certain specific legal issues.

August 27, 2012

Mississippi Supreme Court Dodges Question Over Tort Reform

by Kilpatrick & Philley

Post #1 image. 2012-08-24.jpg Though the decision was highly anticipated, the Mississippi Supreme Court decided earlier this week to avoid the hotly contested issue of tort reform. Many hoped the Court would take a stand regarding the constitutionality of the state’s current $1 million cap on noneconomic damages in civil injury cases.

The state Supreme Court heard arguments last year dealing in response to a request from a three-judge panel of the 5th U.S. Circuit Court of Appeals regarding the constitutionality of the cap on damage awards in a federal case. The Fifth Circuit panel said at the time that the issue was an important one regarding state law about which there is no current controlling precedent.

Rather than settle the matter, the Supreme Court refused to answer the question, saying that there was no case before the Court on the subject. Justice Michael Randolph wrote that the Court was not willing to “answer a certified constitutional question outside the clear context of its application.” Justice Randolph continued, saying that “…The constitutionality of a statute is not to be addressed abstractly, speculatively, or in the manner of an academic discussion, but rather in the context of its clear application.”

August 6, 2012

Millions Awarded to Patient in Vaginal-Mesh Lawsuit

by Kilpatrick & Philley

Post #3 image. 2012-07-31.jpg Just this week a jury in California handed down a multimillion-dollar verdict against C.R. Bard Inc. and a doctor over a vaginal mesh implant that left a woman permanently injured. The case, initiated by Christine Scott, was the first vaginal-mesh case to go to trial and indicated good news for other patients who have suffered injuries due to the devices.

Jurors awarded Scott $5 million and her husband an additional $500,000 for being left incontinent and suffering from chronic pain. Scott received the implant in 2008 and then went on to have nine surgical procedures to help fix the problems the device caused. In her case, the damage was caused by Bard’s Avaulta Plus vaginal implant which is used to treat pelvic organs that bulge.

The company was found to be negligent given its handling of the devices, with jurors saying the company either knew or should have known that surgeons performing pelvic-floor repair would not realize the potential risks posed by the implant. The jury ultimately placed 60% of the fault on Bard and the remaining 40% on the doctor who implanted the device.

June 4, 2012

Georgia threesome leads to multi-million-dollar verdict

by Kilpatrick & Philley

Post #3 image. 2012-06-04.jpg The family of a man in Georgia who died after engaging in a threesome with a woman and a male friend has been awarded $3 million from his cardiologist because the doc failed to warn the amorous man to avoid physical exertion.

In 2009, 31-year-old William Martinez, a police officer from outside Atlanta, went to cardiologist Dr. Sreenivasulu Gangasani complaining of chest pain that radiated into his arm. Dr. Gangasani correctly determined that Martinez was at “high risk” of having clogged heart arteries and ordered a stress test to be done eight days later. Sadly for Martinez’ family he died the day before his scheduled test while having a threesome with a friend and a woman who was not his wife.

The young cop and a male friend met late on the evening of March 12, 2009 to have a threesome with a woman at a motel on Virginia Avenue near the Atlanta airport. Around 3 a.m. he fell off the bed and became unresponsive. When EMT’s were not able to revive him, they took him to nearby South Fulton Medical Center where he was pronounced dead less than an hour later.

May 24, 2012

Recent Mississippi court case raises doubts about damage caps

by Kilpatrick & Philley

Post #2 image. 2012-05-18.jpg A recent ruling by a state court could make big waves regarding personal injury damage caps in Mississippi. The mother of a young boy who died from smoke inhalation after a fire in an apartment building that did not have proper fire protection might soon be able to collect $6 million in damages from the building’s owners. The court decision contradicts current law in the state which puts damage caps in place to prevent such high judgments. As a result the opinion is guaranteed to receive significant scrutiny from higher courts.

Coahoma County Circuit Judge Charles Webster said that Mississippi’s cap on noneconomic damages violates that state’s constitution. Since 2004, the state has limited the amount a person could collect for pain, suffering and the loss of a loved one to $1 million.

Judge Webster declared such a limit to amount to legislative overreach. Judge Webster believes that any change to Mississippi trial law must be made to the state’s constitution and cannot simply be the result of legislative action. Judge Webster wrote 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.”

April 26, 2012

Kobs & Philley Named in Newsweek Magazine’s “Leaders in Medical Malpractice” Law!

by Kilpatrick & Philley

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Kobs & Philley, PLLC is pleased to announce that the firm has been recognized by Newsweek magazine as a prominent leader in the representation of medical malpractice victims in the United States. With years of legal experience in Mississippi, Kobs & Philley, PLLC represents victims who have been injured by the negligent acts of doctors / physicians and/or those employees, agents and staff of hospitals and clinics in Mississippi.

Each firm contacted for Newsweek’s “Leaders in Medical Malpractice” is in good standing with well-known law associations and/or has been recognized for excellence by respective local media outlets, have up to date verdicts and settlements of important cases.

“Our group of attorneys and staff work hard to achieve the best possible results for our clients, and I am proud of the firm’s work. I am also honored and grateful to Newsweek for recognizing this firm and its accomplishments,” said Benjamin N. Philley, co-founding partner of Kobs & Philley, PLLC. “It has been a privilege to represent families across Mississippi who have regrettably suffered debilitation injuries, and in some cases, the wrongful death of a loved one, whether that be from a car crash, 18-wheeler wreck or med mal” said Jared A. Kobs, co-founding partner of Kobs & Philley, PLLC.

March 12, 2012

Multi-Million Dollar Settlement Due to Mississippi Wreck

by Kilpatrick & Philley

Post #1 image. 3-12-2012.jpg According to a recent report by the Sun Herald, a Jones County, Mississippi boy has been awarded nearly $6.9 million because of an accident he had in a Toyota 4Runner. The accident caused the boy, Will Graves, to be paralyzed from the chest down. A federal jury returned a verdict on Friday, February 24, 2012, saying that the Toyota 4Runnner’s design was defective. At the time of the accident, Graves was 16, so his parents sued Toyota on his behalf.

Graves was on his way to work out with friends on New Year’s Eve the day of the accident. Graves has no memory of the accident, but according to experts, Graves weaved onto the shoulder of the road and then tried to over-correct which caused the SUV to tip over. The 4-Runner flipped more than three times.

At trial, Graves’ attorney, Joe Sam Owen, was able to prove that the design of the 4Runner made it heavy on top, making it dangerously likely to flip over. He also demonstrated at trial that 4Runners made between 1990 and 1995 contained the design problem, which has led to several lawsuits. The jury award is intended to cover Graves’ present and future medical expenses, in addition to the pain and suffering that he has suffered. Now, Graves needs continuous care. He is confined to a wheelchair, and he is not able to use his hands.

October 12, 2010

SUCCESSFUL RESOLUTION TO LOW SPEED IMPACT CAR WRECK

by Kilpatrick & Philley

The law firm of Kilpatrick & Philley is happy to announce another successful resolution for the Plaintiffs in a case filed in Harrison County Circuit Court. In this case, Plaintiff, who was a passenger in the vehicle that was struck, was traveling Westbound on U.S. Highway 90 in Gulfport, Mississippi. Defendant, who was driving an 18-wheeler loaded with logs, was traveling behind the vehicle in which Plaintiff was a passenger and in the same direction. Abruptly, and without warning, as Plaintiff was sitting in the passenger seat of the vehicle and was stopped at the traffic signal at the intersection of U.S. Highway 90 and U.S. Highway 49, Defendant negligently slammed into the rear of the utility trailer pulled by the vehicle in which Plaintiff was a passenger. At the time of the collision, Defendant was in the course and scope of his employment with a logging company and in furtherance of its business. The force of the impact generated by the log truck striking the vehicle from the rear slammed Plaintiff’s head into the dashboard rendering him unconscious and forced a briefcase into his abdomen. When Plaintiff regained consciousness, he was in pain and vomited at the scene of the collision. Defendant stated to the investigating officer that he could not stop in time. The investigating officer noted as a contributing cause of the accident, that Defendant was “Following Too Closely.”

Because Defendant basically admitted liability for the car wreck, the issue in the case was the extent of Plaintiff’s damages. This was a “Low Speed Impact v. High Damages” type of case. Plaintiff did not dispute that the impact was not high speed. However, in anticipation of Defendant’s position that there is no way that he could have such extensive damages from such a low impact, counsel at Kilpatrick & Philley, PLLC retained an epidemiologist, who opined:

There is no valid scientific basis from which to conclude that the types of injuries assessed in Plaintiff cannot or will not result from an up to 10 mph delta V rear impact collision. . . . There is no valid scientific basis from which to conclude that the types of injuries assessed in Plaintiff cannot or will not result from an up to 10 mph delta V rear impact collision. . . . As a result of the foregoing analysis, I find it more likely than not, from an epidemiologic and injury causation perspective, that Plaintiff’s post-collision injuries and subsequent need for treatment were causally related to the subject collision.
Because Plaintiff’s experts, along with his treating physicians, were able to demonstrate to a reasonable degree of medical certainty that Plaintiff’s injuries were the result of the low speed car wreck, Kilpatrick and Philley was able to successfully negotiate an attractive settlement for Plaintiff.

August 31, 2010

FAILURE TO DISCLOSE HOME’S FOUNDATION DEFECTS COST SELLERS

by Kilpatrick & Philley

The law firm of Kilpatrick & Philley, PLLC is happy to announce another successful resolution for the Plaintiffs in a case filed in Madison County. In this case, Plaintiffs purchased a home in Madison County after inspecting the property on multiple occasions prior to entering into a purchase agreement. The homeowners also exercised due diligence in having a home inspector inspect the property. In relying on the seller’s disclosure statement and other representations made by sellers that there were no previous foundation repairs nor known foundation problems or defects with the home, the Plaintiffs agreed to purchase the property.

After moving into the home, the homeowners started noticing shifting in the foundation and cracks manifested inside the home. After having a licensed foundation repair company inspect the property, it was determined that the home needed multiple pilings installed underneath the home. During installation of the pilings, the foundation repairmen found pilings already existing under the home. The pilings clearly evidenced the pre-existing foundation repairs made to the home prior to the homeowners purchasing the property.

After learning of the foundation repairs and after finding additional repairs evidencing concealment of cracks and realignment of doors on the interior of the home, Plaintiffs filed a lawsuit seeking rescission and monetary damages for the expenses they incurred as a result of the previous owners’ failure to disclose the foundation defects. After extensive litigation, Plaintiffs prevailed on Defendants’ Motions to Dismiss the homeowners’ claims. As a result, the homeowners were able to negotiate a settlement to recoup damages for their loss.