The Appeal

The Appeal Page 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.

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.

It 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.

The coaches met behind home plate to get organized. There was the usual nervous chatter and cheap shots and lighthearted insults. Most of them had coached in the same league the year before. Ron, back then, had been a popular coach, just another young father who would spend hours on the field from April to July. Now, though, he felt a bit elevated. He had put together a brilliant campaign and won an important political race with a record vote. That made him unique among his peers. There was, after all, only one supreme court justice in the town of Brookhaven. There was a certain detachment that he did not particularly like, though he wasn't sure if he disliked it, either.

There were already calling him "Judge."

judge Fisk pulled a name out of the hat. His team was the Rockies.

The apartment was so cramped during the week they had to escape on Saturdays.

The Paytons coaxed Mack and Liza out of bed with the suggestion of breakfast at a nearby pancake house. Afterward, they left Hattiesburg and arrived in Bowmore before 10:00 a.m. Mrs. Shelby, Mary Grace's mother, had promised a long lunch under an oak tree-catfish followed by homemade ice cream. Mr. Shelby had the boat ready. He and Wes took the kids to a small lake where the crappie were biting.

Mary Grace and her mother sat on the porch for an hour, covering the usual topics, avoiding anything remotely related to the law. Family news, church gossip, weddings, and funerals, but they stayed away from cancer, which for years had dominated the chatter in Cary County.

Long before lunch, Mary Grace drove to town, to Pine Grove, where she met with Denny Ott. She passed along her latest thoughts on the new supreme court, a rather sad summary. Not for the first time she warned Denny that they would probably lose. He was preparing his people. He knew they would survive. They had lost everything else.

She drove two blocks and parked in the gravel driveway of Jeannette's trailer. They sat outside, under a shade tree, sipping bottled water and talking about men. Jeannette's current boyfriend was a fifty-five-year-old widower with a nice job and a nice home and little interest in her lawsuit-not that the lawsuit was attracting the attention it once commanded. The verdict was now seventeen months old. Not a dime had changed hands, and none was anticipated.

"We expect a ruling this month," Mary Grace said. "And it will be a miracle if we win."

"I'm praying for a miracle," Jeannette said, "but I'm ready for whatever happens.

I just want it to be over."

After a long chat and a quick hug, Mary Grace left. She drove the streets of her hometown, past the high school and the homes of childhood friends, past the stores on Main Street, then into the countryside. She stopped at Treadway's Grocery, where she bought a soda and said hello to a lady she had known her entire life.

Driving back to her parents' home, she passed the Barrysville Volunteer Fire Department, a small metal building with an old pumper that the boys rolled out and washed on election days. The station also served as a precinct, where, five months earlier, 74 percent of the fine folks of Barrysville voted for God and guns and against gays and liberals. Barely five miles from the Bowmore town limits, Ron Fisk had convinced these people that he was their protector.

Perhaps he was. Perhaps his mere presence on the court was too intimidating for some.

The Meyerchec and Spano appeal was dismissed by the clerk for a lack of prosecution.

They failed to file the required briefs, and after the usual warnings from the clerk their lawyer said they had no desire to go forward. They were not available for comment, and their lawyer did not return phone calls from reporters.

On the day of the dismissal, the supreme court reached a new low in its movement to drastically limit corporate exposure. A privately held pharmaceutical company called Bosk had made and widely marketed a strong painkiller called Rybadell. It proved to be horribly addictive, and within a few years Bosk was getting hammered with lawsuits. During one of the first trials, Bosk executives were caught lying.

A U.S. attorney in Pennsylvania opened an investigation, and there were allegations that the company had known about Rybadell's addictive propensities but had tried to bury this information. The drug was extremely profitable.

A former Jackson cop named Dillman was injured in a motorcycle accident, and in the course of his recovery became addicted to Rybadell. He battled the addiction for two years, during which time his health and the rest of his life disintegrated. He was arrested twice for shoplifting. He eventually sued Bosk in the Circuit Court of Rankin County. The jury found the company liable and awarded Dillman $275,000, the lowest Rybadell verdict in the country.

On appeal, the supreme court reversed, 5-4. The principal reason, set forth in the majority opinion by Justice Romano, was that Dillman should not be awarded damages because he was a drug addict.

In a rancorous dissent, Justice Albritton begged the majority to step forward and produce any scintilla of proof that the plaintiff was a drug addict "before his introduction to Rybadell."

Three days after the decision, four Bosk executives pled guilty to withholding information from the Food and Drug Administration, and to lying to federal investigators.