Judge Mills, in granting a new trial verdict in a million-dollar slip and fall case against a Fred’s store in Southaven (reported by Phillip Thomas in the fall), calls out the defense lawyers from coming close to misleading him in their summary judgment filing, and plaintiffs lawyers for a tactical decision to not prove the plaintiff’s medical bills, in apparent hopes of avoiding lien claims from providers. On the damages issue, the court concluded that the issue confused the jury, both because of the peculiar way damages were presented in closing, and because the jury asked a question about medical bills during deliberations. The court therefore ordered a new trial on damages.
In addition to the damages issue, Fred’s moved for a defense judgment, saying that the plaintiffs hadn’t proved their case. Judge Mills comes down fairly hard on them for that.
In seeking judgment as a matter of law, Fred’s argues there is no legal basis for the jury’s finding that it acted negligently in this case. This court is of the view, however, that Vicki presented a very strong case at trial, and it candidly advised counsel of this view even before the jury rendered its verdict. Indeed, this court was surprised by how little resemblance the proof at trial bore to the facts represented in Fred’s summary judgment motion, which likely should not have been filed at all.
The opinion then goes on to describe how the summary judgment portrayal differed from the proof at trial. There’s a quote of a nice bit of cross-examine ation of the store manager:
Q Did you block the fire lane by building this?
A Yes, sir. I guess I did.
Q Yeah, so you blocked every ambulance, every fire truck, anybody that would need acess to the fire lane, didn’t you?
A. Yeah.
Q. Okay, is this a very good plan, Mr. Whittington?
A. No, sir.
…After hearing this testimony, the court was interested to hear exactly what sort of proof of due care Fred’s might attempt to produce in its own case, but it elected to not even call a single witness.
The opinion goes on to state that “there was much more ‘sizzle than steak’ in defendant’s case” and that “[t]he court is quite surprised that” Fred’s filed a post-trial motion on this issue.
Here’s the opinion.
Interesting. If there really was such a complete failure to support the SJ avowals, the court would’ve done better to issue a show-cause order why Rule 11 sanctions were not proper.
The verdict was much too high if meds were excluded. I would think the parties would settle rather than retry, but who knows.
It’s an “Order to Settle” alright. Not sure I agree with Mills on this one. Fred’s was aware of Plaintiff’s strategy, and had opportunity to object at the charge conference and on closing. Seems like both sides gambled, and the Plaintiff placed the better wager. Were there no special interrogatories itemizing the jury’s verdict on damages?
Hambone, I must say I’m struck by Mills’s evident attitude that he was merely a spectator at the trial, which he criticizes the parties for not conducting very well. If they dared to speak candidly, they might suggest a 50% broader apportionment of fault.
I think special interrogatories should be the rule, not the exception, but I know some plaintiffs like to muddle it up: it’s easier to defend a verdict, perhaps, when you can exploit ambiguity as to which damages were (non)economic.
Anderson, I will bet plaintiff’s counsel are glad you were not on the jury! As far as your speculation as to an appropriate apportionment of fault, the jury evidently thought that the melancholy fact that the make-shift baracade was much more offensive than the momentary inattention of the plaintiff, which carried the day, as well they should. Judge Mills was not a “spectator judge” he was not being a “activist judge”. He simply let the attorneys try their case. What, pray tell, is wrong with that? Who were the attorneys?
I think Anderson was suggesting that “fault” for the manner in which the case was tried lay with Judge Mills as much as the attorneys involved. Does the deliberate decision not to put on proof as to medical expenses really extinguish a medical provider’s lien for treatment rendered to the Plaintiff?
Yes, I conveyed my point better to Hambone than to Bayrat, evidently. The obstacle course outside the door was pretty much a tort suit waiting to happen; I think that had the manager bothered to ask “upstairs” first, they would’ve quashed the idea.
But Judge Mills’s opinion gives the impression he was reading a magazine during the trial and couldn’t really be expected to get too involved. “Hm, lotsa proof of meds here; what are they doing with that, I wonder? Guess we’ll find out sometime … let’s see, ‘continued on page 58’ ….”
He is by most accounts a good judge, but his indignation here seems a bit misplaced.
I think if these civil lawyers really understood how detested summary judgment motions are WHEN accompanied by hundreds of pages of exhibits, affidavits, and depositions, they wouldn’t file them.
Oh. Wait. I forgot they have to churn those billable hours rather than follow the rules and really and truly represent their clients.
A lot of quibbling in this thread, but it sounds like the right result was reached. It was obviously a very strong case on liability, but even a die hard plaintiffs lawyer like me would have a hard time defending well over a million dollars for just pain and suffering in a broken bones case. It will probably now settle in the 500k or so range which seems like a just result to me.
I don’t understand the criticism of the judge’s conduct of the trial– I think he acknowledges he should not have let the parties agree to semi-mangle the instruction, but how is he supposed to step in and tell them what their proof is supposed to be? Or how to make or object to arguments? Yes, he’s a bystander as to what the parties pick to prove and argue within the sort of limits described in this opinion.
Surely he couldve instructed the jury to disregard the meds evidence re costs? Or, given Plaintiff’s stipulation it wouldn’t seek them, disallowed proof on them as a waste of the court’s time? He comes across as being a hands-off judge — many are — but then he shouldn’t be an ass about his failure to supervise the trial!
He largely lets lawyers try their case– as most good judges do. I think he all but acknowledges that he shouldn’t have let the lawyers have their way with the instructions.
I just don’t see this as justifying the last clause in your comment…
I was wondering about the attorneys as well, although I was pretty sure I knew who one of them was from recent conversations. Quoting from the blog referenced above: “The trial lasted two days with Judge Michael Mills presiding. Philip Stroud of Southaven and James Lees of Charleston, West Virginia represented the plaintiff. Robert Jolly and Scott Hollis of Watkins Ludlam’s Olive Branch office represented Fred’s.”
Well, I may not be justified! Let me look at it tomorrow when I have a computer not a phone, and I will recant if proper.
In the litigation world I live in judges almost never interject themselves into closing arguments- they are pretty sacrosanct. But the fact that a new trial was granted with promises to do certain things differently the next time seems pretty clear that Judge Mills didn’t regard his handling of the case as being perfect. I actually thought the judge’s resolution of the case was very good and certainly nothing to get in a tizzy about as Anderson seems to have done! :)
This was a stupid ruling. If it is too high, say so and rule accordingly. Judge mills says it’s high, but not too high.
Mills was hung up on the idea the plaintiff was seeking to avoid a lien. Not gonna happen. Plan
Always covers recovery no matter what it is called, and of course this is completely unrelated to the motion decided. The idea he will require the plaintiffs to prove meds in next trial is idiotic.
I agree with Judge Mills, he let the lawyers make their respective decisions regarding their trial strategy, but now faced with a “jury question” and a large verdict which brought the strategy into question, he felt obligated to address such. Letting the Jury decide it on damages was the better course. I like a Judge that believes in the Jury system.
Okay, here’s what I didn’t like in the opinion.
“If it is plaintiffs’ intention to once again follow this unusual and arguably misleading trial strategy, then they will need to present this court with authority supporting their right to do so.”
– So why wasn’t this authority required the 1st time around? Why did the court sit on its hands while the plaintiffs “arguably misled” the jury?
The court “will take steps to ensure that the jurors harbor no doubt whatsoever” etc.
– Again, who was stopping the court the first time?
The court “will ensure that this trial is shorter on clever litigation tactics and longer on fundamentally sound trial practice than the first one.”
– Gratuitous snark. The trial court does not have authority to grant a new trial because one side or the other made a mistake. It grants a new trial because the COURT erred. It would be nice if Judge Mills exhibited a touch of humility, rather than mocking the parties.
FWIW, I don’t think there was anything wrong with the plaintiffs’ not seeking medical expenses (and I am very skeptical of Mills’s implication that he can force them to do so) if they had some reason for not doing so. But then they shouldn’t have been allowed to put on proof, and if they changed their minds at the jury-instruction conference, then the court should have issued an express instruction to the jury to disregard that proof, given the unusual circumstance. Simply redacting the instruction was not enough.
I didn’t have a problem with the judge’s approach- the plaintiffs used a semi-dishonest strategy and deserved to be called on it. My reading of the opinion was Judge Mills didn’t realize the jury was confused until they wrote the note to the court. Sure, the judge could have done a better job of picking up on this potential for confusion earlier, but that’s more a sin of omission while the plantiffs seem to have planned to mislead the jury which is much worse.
Fred’s is pretty tacky when it comes to litigation. First of all they operate under several names. Fred’s Inc. and Fred’s Stores of Tennessee, Inc. both operate out of a principal office located at 4300 New Getwell Rd., Memphis Tennessee. And courts have repeatedly allowed Fred’s Stores of Tennessee to be substituted for Fred’s Inc., due, no doubt, to the Fred’s entities’ repeated refusal to reveal which corporate entity owns which store. See, e.g., Cockrell, et al., v. Fred’s Stores of Tennessee, Inc., Northern District of Mississippi No. 1:95-cv-00178-GHD; McLemore v. Fred’s Inc., et al., Southern District of Mississippi, No. 3:03-cv-0100-WHB; Lyon v. Fred’s, Inc., et al., Northern District of Mississippi, No. 2:96-cv-00141-NBB; and Lamb v. Fred’s, Inc., Northern District of Mississippi, no. 1:00-cv-00259-GHD.
I know there’s at least one case out there where the defense attorneys were forced to sue Fred’s to collect their fee.
Well, I seem to be in a minority of one here, but the opinion appears to say that the plaintiffs were somehow at fault for not expressly telling the jury during closing arguments “hey, don’t award damages for medical expenses.” I don’t see in the op where they referred to them at all in closing.
It is not the task of the parties to instruct the jury in closing arguments. It is the task of the court.
And I don’t impute dishonest conduct to the plaintiffs, as Mills very nearly implies. It seems to me they were genuinely of two minds about how to handle the lien issue, a tricky subject that is only getting trickier with Medicare and Medicaid aggressively pursuing recovery.
Does anyone know offhand the statute about preservation of medicaid’s lien? I recall its a crime not to notify medicaid and preserve its lien when medical damages are recovered, what I don’t know is whether there’s a duty to seek medical reimbursement.
I would think at a minimum, if one was not going to seek meds, that DHS would be a necessary party so that they could assert their claim since otherwise it would be barred. Clearly the Defendants wouldn’t want DHS in the suit, but the Judge could order it sua sponte, indeed Rule 19(a)(2) would seem to require it.
I dunno about a crime, but 43-13-125 provides for Medicaid to recover:
“If Medicaid is provided to a recipient under this article for injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against any person, firm or corporation, then the division shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery that the recipient may have against any such person, firm or corporation to the extent of the Division of Medicaid’s interest on behalf of the recipient. The recipient shall execute and deliver instruments and papers to do whatever is necessary to secure those rights and shall do nothing after Medicaid is provided to prejudice the subrogation rights of the division.”
The usual understanding, with which Medicaid may not agree, is that this applies only to recovery for medical expenses, not pain and suffering.
Absurd decision.
There was no proof of medical bills. Plaintiff did not ask for award of medical expenses. Defendant could have offered up either one but elected not to do so. Subrogation interests were not affected in any way whatsoever. Judge said liability clear and damages significant and award not too high.
So how in the world is the verdict set aside?
We do not offer to prove medical bills in most cases because they tend to diminish the value of the suit. Defendant can always prove them. Both sides made strategic decisions, so the plaintiff gets punished for the defendant’s decision?
Idiotic.