Monday, February 11, 2008

Berry v. Aetna: Rankin County Cesspool

There is nothing quite like hometown justice as Aetna and some other defendants discovered when the Rankin County Chancery Court gave them a nasty dose of it in Aetna, et al v. Berry et al (669 So. 2d 56) (case available at This bit of Rankin refuse saw Aetna slapped with a verdict of nearly $5 million by the Chancellor in a case in which the plaintiff's attorney was the Chancellor's divorce attorney and campaign manager while the defendant's lawyer swore under oath the Chancellor called him during the trial and asked him if he cared how the case was decided. It should be noted there was no jury in this trial and all decisions were made by the Chancellor in question, Billy Bridges.

In 1981, Jack and Cherry Berry were driving home when their car was hit by a drunk driver, killing Mr. Berry. The other driver was uninsured. Mrs. Berry sued Aetna, her husband's insurance company and other parties she claimed were responsible in federal court sixteen days after the accident, seeking $10.1 million in damages. The Court awarded Ms. Berry $10,000. Ms. Berry then appealed the judgement to the U.S. Fifth Circuit Court of Appeals and the U.S. Supreme Court, losing at each level.

Six years after the accident, she filed a lawsuit in Rankin County Chancery Court, alleging she suffered “[a]s a proximate consequence of conspiracies, conversions, frauds, negligence, breach of implied warranty of merchantability, breach of implied warranty of fitness, breach of express warranties, and under the doctrine of strict liability...". Ms. Berry requested $10 million in actual damages and $18 million in punitive damages as well as attorneys fees and other costs associated with the case (For the rest of her complaint, see pps. 5-6).

The cesspool began to simmer at this point, as it became obvious the fix was in for these poor dopes. Cases such as these belong in Circuit Court, not Chancery Court, as the Mississippi Supreme Court later confirmed on appeal. Contrary to this fundamental principle of Mississippi law, the Chancellor denied all motions to transfer the case to the Circuit Court. The defendants filed motions asserting the legal doctrines of res judicata (a case or claim that has already been decided can't be relitigated) and collateral estoppel (an issue that has been adjudicated can not be relitigated either) claiming the case had already been litigated in federal court. These efforts were a futile stab for justice as the Chancellor denied these motions.

Mrs. Berry was represented by Fred Harrell, who was more than just an attorney representing a client in Judge Bridge's courtroom. Mr. Harrell had represented Judge Bridges in his divorce in 1985 and was both the campaign manager and public spokesman in the judge's re-election campaign. In a stunnning moment of candor, John McLaurin, one of the attorneys for the defendants, signed an affidavit stating during the trial Judge Bridges had called him at home one night asking "John, you don't care how this trail turns out, do you?" (p.19)

It should come as no surprise what happened next to the defendants who must have thought this was Hang 'Em High meets The Twilight Zone as Judge Bridges, who decided the case without a jury, awarded $4,856,252 in various damages to Mrs. Berry.

The defendants appealed to the Mississippi Supreme Court, which finally issued a ruling in 1996 that reversed in part and remanded the rest of the case not consistent with its opinion back to Rankin County Circuit Court. The case was settled before it went to trial.

One of the issues raised by Aetna and its fellow parties was "Whether the Chancellor should have recused himself in this case". (p.19) The Court discussed at length Mr. Harrell's heavy involvement in Judge Bridge's campaign, his representation of the Chancellor in his divorce, and the testimony by opposing counsel that the Chancellor contacted him ex parte to ask what he thought about the Chancellor ruling for the plaintiffs. The Court ruled "We conclude that an objective observer would harbor doubts in this situation about Judge Bridges' impartiality.....
Judge Bridges should have recused himself under the circumstances in this case." (p.20)
This questionable and inappropriate conduct by Chancellor Bridges apparently troubled the Court so much that Justice Banks wrote a concurring opinion on this issue even though he dissented from the majority on the rest of the case. Banks points out "Here, Harrell's alleged involvement as a spokesman for the campaign occurred during the decisional period of the matter under consideration...
Not only was there the past representation but a current ongoing relationship with a campaign...
Where, as here, a campaign spokesman is involved in litigation promising a substantial contingent fee, where the same lawyer has represented the judge in the not too distant past, and where the judge is the sole finder of fact as well as the initial arbiter of the law vested with considerable discretion in evidentiary matters, we are compelled to draw the line on recusal..." (p.23)

In other words, the Chancellor who would be king (and ironically was later elected to the Mississippi Court of Appeals) was publicly slapped down by the Mississippi Supreme Court for rigging a case in favor of campaign manager in a textbook case of jackpot justice. Unfortunately and predictably, no action was taken against Judge Bridges by the Commission on Judicial Performance.

There is one part of the Supreme Court ruling which is very intriguing. The majority opinion was supported by Justices Prather, Mills, and Roberts. Justice Banks concurred in part and dissented in part. Justices Lee and McRae did not participate in the case. However, there is one justice who completely dissented in the case: Current Chief Justice, then-Justice and Rankin County Resident Jim Smith.

Justice Smith wrote a dissenting opinion which held the nearly $5 million verdict was proper as he stated Aetna was trying to avoid its reponsibility to the Berrys. He even went so far as to write "This case reeks of injustice by Aetna towards Ms. Berry." (p.26) As the Chief Justice is considered to be one of the most pro-business members of the Court and most likely to strike down a huge award against an insurance company, it is rather surprising to read this opinion. His opinion is even more striking in light of the fact that he was the ONLY justice who dissented from the majority opinion and completely ignored the issue of whether Judge Bridges should have recused himself! Apparently the hometown justice extended to the Mississippi Supreme Court, as Justice Smith vigorously defended a verdict decided by his fellow member of the Rankin County Bar while completely ignoring a very serious question raised as to the Chancellor's conduct on the bench. It should also be noted the Chief Justice recently appointed Judge Bridges (retired from the Court of Appeals) to be a temporary Special Circuit Judge for Hinds County.

It should also be noted that when the issue of whether the Mississippi legal system was corrupt after the guilty pleas by Joey Langston and Steve Patterson arose, it was the Chief Justice who told The Clarion-Ledger, "I don't believe (the corruption) is widespread." Irony.

Be that as it may, what is undeniable is a Chancellor and his buddies sought to fleece Aetna out of several million dollars in their swamp, hoping no one else would bother to notice what took place in the Rankin County Chancery cesspool. Thankfully, justice was eventually served as more virtous heads prevailed at the Mississippi Supreme Court even though the Rankin County mouthpiece did his best to keep the stench of the Gold Coast from drifting over to High Street.


Anonymous said...

isn't judge bridges one of the new special hinds county circuit judges that justice smith appointed?

Kingfish said...

reread the post.

Anonymous said...

I do not in any way defend this case, or the actions of Judge Bridges or Justice Smith (both of whom I know personally), but this problem of conflicts and recusal has been fixed by the tort reform legislation of 2003. Following that legislation, judges can be required to recuse themselves from cases where an attorney involved has donated money to the judge's reelection campaign (I think its a sliding scale: $1K for Circuit/Chancery; $2500 for Appellate Judges). This "forced recusal" has been upheld by the Miss. Supreme Court with Justice Smith leading the charge. Although the Berry case was undefendable, times have changed -- albeit slowly.

Kingfish said...


you mean the tort reform act was actually about justice and not just enriching insurance companies?

Anonymous said...

Mississippi Code section 23-15-1021 sets limitations on contributions to candidates for judicial office. It has been part of the Election Code since 1999. I have never heard of, and cannot find in the Mississippi Code, any mandatory recusal provision like that Catfish refers to. Could you cite me a section number?

Anonymous said...

Soms, I'm not sure what the legislation was (and I'm not going to dig through my old research to try and find it), but I remember doing numerous Motions to Recuse judges when counsel opposite was a large donor to the judge's campaign. I recall there being a dollar figure attached, but I don't remember if it was a statute or a case that imposed these "limits." We were successful a number of time because the Supremes had spoken on the issue several time. Remember that the Barbour tort reform legislation went through right about the time Dickinson replaced McRae on the Court, so some of the details are blurred to me. All of the recusal stuff happened right about the time the Supremes made that huge jump to the right with Rule 20 joinders, etc. I don't believe this practice is still in vogue, but it is a useful arrow to keep in the quiver if you ever need it.

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