The Appeal

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."