The Appeal

The Appeal Page 33

PART THREE. THE OPINION

Chapter 33

Ron Fisk was sworn in as associate justice of the Supreme Court of Mississippi during the first week of January. It was a short, quiet ceremony attended by Doreen and the three children, a few friends from Brookhaven, Tony Zachary, and the other eight members of the court and some of the staff. The chief justice, the most senior member, gave a short welcoming speech, then everybody had punch and cookies. Justice Jimmy McElwayne skipped the refreshments and returned to his office. He had not expected to like Ron Fisk, and so far he had not been disappointed. Fisk stumbled badly when he summarily fired Sheila's law clerks and secretary without the courtesy of first meeting them. He stumbled again when he showed up in early December and began pestering the chief justice to see the docket and have a look at some of the upcoming cases.

At forty years of age, Fisk was by far the youngest member of the court, and his eager-beaver enthusiasm had already rankled some of his brethren.

Once sworn in, Fisk had the right to participate in every case not yet decided, regardless of how long the matter had been before the court. He plunged into the work and was soon putting in long hours. Ten days after arriving, he voted with a seven-member majority (including McEl-wayne^ to reverse a zoning case out of DeSoto County, and he dissented with three others in a wetlands dispute in Pearl River County. He just voted, without comment.

In each case, every judge can write his own opinion, either concurring with the majority or dissenting from it. Ron was itching to write something, but he wisely kept quiet.

It was best not to rush things.

The people of Mississippi got their first glimpse of the new, post-McCarthy court in late January. The case involved an eighty-year-old woman with Alzheimer's who was found under her nursing home bed, naked and filthy. She was found there by her son, who went ballistic and eventually sued the nursing home on her behalf. Though accounts varied and records were incomplete, testimony at trial proved that the woman had been completely neglected for at least six hours. She had not been fed for nine.

The nursing home was a low-end facility, one of many owned by a company from Florida, and its history of safety and sanitation violations was long and pathetic. The jury, in the rural county of Covington, awarded actual damages of $250,000, though it was difficult to gauge the extent of the physical injuries. There were bruises on her forehead, but the poor lady had lost her mind a decade earlier. The interesting part of the case was the punitive award of $2 million, a record for Covington County Justice Calligan had been assigned the case. He rounded up his other three votes and wrote an opinion that reversed the $250,000 and sent it back for another trial.

More proof was needed on the issue of damages. As for the punitive award, it "shocked the conscience of the court" and was reversed and rendered-thrown out once and for all. Judge McElwayne wrote an opinion in which he upheld the entire verdict. He went to great lengths to spell out the wretched history of the nursing home-lack of staff,untrained staff, unsanitary rooms and bed linens and towels, poisonous food, inadequate air-conditioning, overcrowded rooms, and so on. His opinion was joined by three others, so the old court was equally divided. The new man would be the swing vote.

Justice Fisk did not hesitate. He, too, found the medical proof inadequate, and claimed to be shocked by the punitive award. As an insurance defense lawyer, he had spent fourteen years fighting off the wild claims of punitive damages so carelessly thrown about by the plaintiffs' bar. At least half the lawsuits he defended had included a bogus plea for an exorbitant sum of money because of the defendant's "outrageous and reckless conduct."

By a vote of 5-4, the court announced its new course and sent the case back to Covington County in much worse shape than when it left.

The elderly victim's son was a fifty-six-year-old cattle farmer. He was also a deaconin a country church a few miles outside the town of Mount Olive. He and his wife had been strong supporters of Ron Fisk because they viewed him as a godly man who shared their values and would protect their grandchildren.

Why would Mr. Fisk now rule in favor of some outlaw corporation from another state?

Each case accepted for review by the supreme court is assigned by the clerk to one of the nine judges, who have no control over the process. Each one knows that every ninth case will land on his or her desk. They work on three-judge panels for six weeks, then the little teams are reshuffled.

In almost all cases before the supreme court, the lawyers request an oral argument, but these are rarely granted. The panels listen to the lawyers in less than 5 percent of the appeals.

Because of the size of the verdict, the case of Jeannette Baker v. Krone Chemical Corporation was deemed important enough to allow the attorneys an audience with its three-judge panel. On February 7, they gathered- Jared Kurtin and his mob, and the entire firm of Payton amp; Payton.

The case had been assigned to Justice Albritton months earlier. Ron Fisk had no business in the courtroom that day and was not there. Tony Zachary stopped by out of curiosity, but sat in the back row and did not speak to anyone. He took notes and would call Barry Rinehart as soon as the hearing ended. A vice president for Krane also sat in the back row and took notes.

Each side was allowed twenty minutes, and a digital timer clicked off the seconds.

Warnings were given by a clerk. Long-winded lawyers were not tolerated. Jared Kurtin went first and quickly cut to the heart of his client's appeal. Krane had always argued that there was no credible, reasonable medical link between the BCL and cartolyxfound on its property and the cancers that afflicted so many of Bowmore's residents.

Krane would never concede that illegal dumping had occurred, but, hypothetically speaking, even if you assumed toxic wastes were emitted into the soil and found their way into the water, there was "no medically causal connection" between the chemicals and the cancers.

Oh, there was lots of speculation all right. Look at the rate of cancer in Bowmore. Look at the cancer clusters. But cancer rates vary widely from region to region. And, most important, there are thousands of carcinogens in the air, food, beverages, household products, the list goes on and on. Who can say that the cancer that killed little Chad Baker came from the water, and not the air? How do you rule out the carcinogens found in the highly processed foods Ms. Baker admitted they had eaten for years? It's impossible.

Kurtin was on his game, and the three judges left him alone for ten minutes. Two were already with him. Justice Albritton was not, and he finally asked, "Mr. Kurtin, excuse me, but were there any other factories or plants in this general area that manufactured pesticides or insecticides?"

"Not to my knowledge, Your Honor."

"Does that mean something other than "No"?"

"The answer is no, Your Honor. There were no other manufacturers in Cary County."

"Thank you. And with all of your experts did you find any other factory or plant where bichloronylene, cartolyx, or aklar was processed and/or disposed of?"

"No, Your Honor."

"Thank you. And when you argue that other areas of the country have seen very high rates of cancer, you're not suggesting that any of these other places are fifteen times above the national average, are you?"

"No, I'm not suggesting that, but we do dispute the ratio of fifteen."

"Fine, then will you stipulate to a rate of cancer twelve times the national average?"

"I'm not sure-"

"That was what your expert said at trial, Mr. Kurtin. Bowmore's rate is twelve times the national average."

"Yes, I believe you are correct, Your Honor."

"Thank you."

There were no more interruptions, and Kurtin finished a few seconds after his buzzer.

Mary Grace looked spectacular. The boys might be limited by their black and navy suits, white shirts, dull ties, and black wing tips, the usual boring everyday getup, but the girls had no rules. Mary Grace wore a bright dress that fell just above the knees and a matching jacket with sleeves that stopped at the elbows. Black stiletto heels. Plenty of leg, though none visible to the three justices once she assumed the podium.

Picking up where Justice Albritton left off, she launched into an attack on Krane's defense. For at least twenty years the company had illegally dumped tons of class-1 carcinogens into the ground. As a direct cause of this dumping, Bowmore's drinking water was polluted with these same carcinogens, none of which were produced or dumped or even found in significant quantities anywhere else in the county. The people of Bowmore drank the water, the same way that each member of the panel had drunk water that very morning. "You shaved, brushed your teeth, showered, used the city's water in your coffee or tea. You drank it at home and you drank it here at work. Did you question the water? Where did it come from? Is it safe? Did you for one second this morning ask yourself if your water contained carcinogens? Probably not. The people of Bowmore were no different."

As a direct result of drinking the water, the people got sick. The town was hit with a wave of cancer never before seen in this country.

And, as always, this fine, upstanding New York corporation-and here she turned and waved a hand at Jared Kurtin-denied everything. denied the dumping, the cover-up, denied the lying, even denied its own denials. And, most important, denied any causation between its carcinogens and the cancer. Instead, as we've heard here today, Krane Chemical blames it on the air, the sun, the environment, even the peanut butter and sliced turkey Jeannette Baker used to feed her family. "The jury really loved that part of the trial," she said to a hushed crowd. "Krane dumped tons of toxic chemicals into our ground and our water, but, hey, let's blame it on Jif peanut butter."

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 convincingevidence. 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.

The 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.

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.