The Appeal

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.