Out-of-state attorneys, tort reform and Lauderdale County
By By Suzanne Monk / managing editor
June 23, 2002
Even as state legislative committees held hearings last week about tort reform, a pretrial hearing was taking place in Lauderdale County Circuit Court in a wrongful death lawsuit filed by Wilkes &McHugh of Tampa, Fla., against a Lauderdale County nursing home.
In this suit, the family of a man who died at Benchmark Health Care in Marion is seeking compensatory and punitive damages against owner Guy Howard. The man was a resident of the nursing home from 1992 until his death in 1999.
The complaint claims he received poor care, leading to pneumonia, multiple falls, unexplained injuries, lacerations, bone fractures, hygiene problems, contracture and multiple pressure sores. The lawsuit asserts that the conditions at the home ultimately caused his death.
Understand something before I go on, if the family is right, they deserve to win the lawsuit. But, nothing happens in isolation.
The larger picture
Wilkes &McHugh is typical of the kind of out-of-state law firm that supporters of tort reform say must be controlled with filing restrictions and caps on punitive damages. The firm specializes in nursing home litigation and wins record-breaking, multi-million-dollar awards for its clients throughout the Southeast.
Founding partner Jim Wilkes has targeted Mississippi as his next expansion area. He likes being called the "most hated man in the nursing home industry" and makes no apologies for his actions.
The decisions of attorneys like Jim Wilkes have large and long-term ramifications for the state of Mississippi slammed by the U.S. Chamber of Commerce last month for its failure to pass tort reform legislation.
Another Chamber analyst estimated that Mississippi is losing more than 7,500 jobs a year as a direct result of the state's "love affair with lawsuits."
Meanwhile, in Meridian
Hattiesburg attorney Mary Perry is affiliated with Wilkes &McHugh and represented the former resident's family in a hearing Wednesday before Circuit Judge Larry Roberts. The purpose of the hearing was to iron out conflicts between the two sides about records and information requested by Wilkes &McHugh.
Perry had asked for, among other things, a list of Benchmark employees involved in the man's care.
Benny Carter, of the Meridian law firm Bourdeaux &Jones, represents Benchmark. He sent Perry a list of 43 current and former employees. In the meantime, Perry reviewed Benchmark's organizational charts and came up with a list of 58 people she said met the criteria and asked for copies of the personnel files for all of them. A comparison of the two lists showed they had only 13 names in common.
Carter told the judge Perry's request was over-broad and burdensome and said Wilkes &McHugh was simply going on a "fishing expedition" to see what it could find.
Perry expressed concern about the difference in the two lists and suggested that she has her doubts about how honestly Benchmark is complying with discovery requests. She argued that she needs to review all the personnel files in question to get an overall picture of Benchmark's hiring, training, supervisory and disciplinary practices.
The judge split the difference telling Perry she can review the personnel files of any 30 employees she chooses. The ruling, Roberts said, was designed to address Carter's concern about "burdensome and oppressive" demands for information while requiring Perry to "do her homework."
The two attorneys also clashed over remarks Perry made about an informational letter Carter wrote to former Benchmark employees. Perry characterized the letter as "intimidating" and claimed it leads former employees to believe they could be named in the lawsuit.
Carter took exception.
Likely outcomes
Roberts explained the scheduling process in Lauderdale County Circuit Court to Perry. The trial is set to begin Dec. 9.
It is very possible, however, that this case will end before then. Wilkes &McHugh has deep pockets, and its attorneys don't go this far down the road with a lawsuit unless they're pretty sure they can win, or at least force a settlement.
Howard says he's been told to expect $50,000 in legal fees in this case even if he wins and that doesn't include any judgment against him or negotiated settlement.
Benchmark is privately owned. Nursing homes that are part of a chain can hold out longer but just as with an earlier, unrelated Wilkes &McHugh lawsuit filed in Lauderdale County, Howard may be forced to bail out and settle at some point as his legal fees mount.
More bad news for Howard: this lawsuit is only one of three filed against him by Wilkes &McHugh.
I don't mean to be flit, but we can all only hope that Guy Howard deserves to be put out of business because, win or lose, that's probably going to happen.
It's impossible to keep up with what every out-of-town law firm is doing, but I have chosen Wilkes &McHugh as a test case and I'll continue to follow its lawsuits in Lauderdale County as they play out against the backdrop of Mississippi's tort reform debate.
