Comment bump | SRHS Retirees meet your new State Judge: “One need only briefly peruse the state court record to recognize the manifest dereliction of judicial function”

And best of all new Singing River Hospital Trustee Scott Taylor could likely give us all manner of background since he was there. If I were in your shoes I’d be preparing for the worst because that is very likely what is coming. The following is via Nunn Yabidnez on “What is Singing River Health System and the Jackson County Board of Supervisors Hiding? A comment bump“:

Well, this is going from “interesting” to downright weird. L. Breland Hilburn is now (at least until someone files a motion that gets granted) the special judge over the SRHS mess. For those who don’t know, which is likely most folks, Judge Hilburn was involved in the Scruggs-Wilson-Luckey love triangle. He gave Scruggs and Co. an “interesting” midnight-hour order that attempted to keep the tobacco money out of the reach of Luckey and Wilson, who had attempted an end run by going to federal court in Texas. The Texas court punted the whole thing back to MS fed court, which basically laughed at Hilburn’s order. Why does this matter? Who knows, but new SRHS Trustee Scott Taylor was the guy advising Scruggs that Luckey and Wilson owed Scruggs money, etc., and Hilburn seemed to be awfully sympathetic to Scruggs’ positions. And perhaps even more interesting, after his retirement from the bench, Judge Hilburn has been associated with the Eaves firm in Jackson, a _plaintiff’s_- with-a-capital-P firm (John Arthur Eaves Sr. and Jr., the latter also having all sorts of interesting facets, including a stepson who recently bit the head off of a live mouse, hamster or gerbil). And Pope Mallette and Cal Mayo, of Oxford and Scruggs’ attorneys in the Wilson v. Scruggs litigation, are repping at some of the Plaintiffs in the SRHS mess. Plus, Mike Moore was looking to get into the SRHS mess, too. Sure, MS is a fairly small legal pond, so there will be overlap, but this is getting a bit ridiculous. What remains to be seen is just what these plaintiffs/mass tort guys (and Mayo-Mallette) see as the payday in suing SRHS and the pension plan for being, basically, broke.

A post from the old “folo.us” site (long defunct, and Tom Freeland of FOLO-turned-NorthMSCommentator died earlier this year) talked about Hilburn’s role in Wilson v. Scruggs. I am not saying the content is correct or incorrect, but am simply quoting it in its entirety. The links to the various opinions/orders cited are dead, but if anyone is interested in them, I’m sure they are available elsewhere. Here it is:

“Sic ‘em
March 22nd, 2008

Well dang, boys and girls, NMC’s balky scanner is still holding up my next addition to our Bobby DeLaughter file, but never fear, I’ve got another yarn to share with you, and before it’s over, that name will briefly appear.

Lately I’ve been corresponding with a national reporter who, for both papers and magazines, has covered Dickie Scruggs for some years now. Yesterday as we were speculating about where all this goes next, he told me a story going back to the days before Luckey and Wilson became separate cases. With his permission, I’ll share it (now augmented with some further research of my own), since he rather expects the FBI may — or at least should – be looking into the questions it raises about Dickie Scruggs’s influence over yet another judge . . .

Once upon a time — say, around summer 1997, three years or so into Alwyn Luckey’s and William Roberts Wilson’s fee-dispute lawsuits against Dickie in Mississippi circuit court — Wilson’s lawyer Vicki Slater hit upon the “constructive trust” theory upon which Plaintiffs asserted a claim to the asbestos-settlement fees that, they argued, should have gone to them instead funding the tobacco litigation. Wilson also argued he was entitled to a part of the tobacco fees as result of Dickie’s commandeering his asbestos fees to fund the tobacco litigation.

But every time Team Wilson-Luckey asked anything about tobacco in discovery, Team Scruggs instructed the witnesses to say nothing, alleging that the case was about asbestos fees and had nothing to do with tobacco. When Wilson-Luckey tried to get rulings on Scruggs’s discovery objections, just getting a hearing-date set would usually take four to six months.

And when they did finally get a hearing, Judge Breland Hilburn would state his opinion but not write an order, leaving it up to the lawyers to agree on what it should contain. But Team Scruggs would never agree to anything. So then they’d end up needing another dang hearing to argue what the order was supposed to say.

Finally, in 2000 Judge Hilburn sua sponte (“all on his own,” without anyone’s asking him to) sent out a letter opinion disallowing any discovery whatsoever about tobacco. (Opinions in letter form are quite unusual; one lawyer I asked about them has never encountered one in 25 years of practice.)

So Wilson-Luckey took the matter to federal court in Texarkana (with Wilson as plaintiff, Luckey as intervening co-plaintiff), helped through the door there in part because Dickie got tobacco money in Texas’s settlement, too.

Well, plaintiffs’ making this move to the Texarkana court (David Folsom, J.) sent Dickie howling back to Judge Hilburn, who immediately — in the middle of an October 2001 night, with no secretarial help — banged out an order granting summary judgment to disallow the tobacco issues. But the thing had so many misspellings and convoluted sentences (in triple-spaced lines), it looked downright silly (three-page pdf).

And it met with a blistering opinion (26-page pdf) from Texarkana’s Judge Folsom about Dickie’s trying to have his cake and eat it, which opinion sported many a sic (Latin’s “thus,”Legal’s “Yo, I’m not the doofus who wrote it this way”) that essentially made fun of and excoriated Hilburn. (I know you’ll enjoy the famous passage at the top of page 6.) Bottom line: Folsom was determined that the case not go back to the state court that had mucked it up so badly, including by refusing to let Wilson-Luckey make the constructive-trust case.

But eventually, there being no other nexus in Texas, Judge Folsom ordered the case moved over to the Southern District of Mississippi for the convenience of the parties. There, in September 2003, Judge Tom Lee resolutely kept it out of Hilburn’s paws (24-page pdf), overruling Scruggs’s jurisdictional motions and motions to dismiss. Note footnote 4 on page 9: “There can be no doubt that the equities here favor Wilson and Luckey. One need only briefly peruse the state court record to recognize the manifest dereliction of judicial function ” (emph. mine).

As soon as the case went to Judge Lee, Dickie brought in John Griffin Jones, who years earlier had clerked for Lee. “Interestingly, and I don’t have time to go back to my notes,” writes my reporter pal, “I think this came from the mouth of young Zach someplace in the record. I think the Scruggs team had its first fling with John Griffin Jones when the case moved from Texarkana to S.D. Miss.”

Although Mr. Reporter surmises that “Scruggs et al figured he’d be of maybe some earwig help, or whatever,” NMC doubts this was the case. “First,” he tells me, “I don’t think they were trying to directly contact Judge Lee but influence him either through a law clerk who knew how to talk to him or through the fact that he would listen more to a former law clerk. I’ve been told that by various lawyers involved. The suggestion they had earwigging in mind is way too speculative.”

Another source agrees: “You just don’t earwig federal judges (or state judges either!), and I think that Jones knows Judge Lee well enough to know that such would be looked upon very poorly. Not to say that Zach and Scruggs may have thought Jones could earwig or that they would gain credibility with Judge Lee just by having Jones on the case. I am sure that they thought Jones’ relationship with Judge Lee would help them somehow.”

Well, whatever hiring Jones was about in Dickie’s mind, let us wend onward: After the parties had spent a year or 18 months fully litigating and completing discovery in federal court, Team Scruggs filed for summary judgment, claiming that the constructive trust claim was invalid for lack of a res (that is, a “matter,” in this case an adjudicated amount of asbestos fees). Judge Lee’s ruling maintained Folsom’s line that the constructive-trust claim should stay in federal court, though he also found that further action on it had to await a ruling on whether there was any asbestos money for Scruggs to (mis)use in the tobacco case. So he’d sit tight and await that word from state court.

Along about then, in 2005, in a move opposed by Team Wilson, Team Luckey decided to pull their case out of Hinds County and S.D. Miss. and take it on up the road to the Northern District of Mississippi for Judge Jerry Davis to handle. Judge Davis informed the parties that if he took the case, it was going to be finally resolved in a formal trial, and that’s just what happened. Said trial produced the $17 million-plus win for Luckey, which check was cut within 30 days. (I believe NMC has more information on this phase of the action too, which I hope he’ll have time to share in the comments.)

Anyhow, at that point, Team Wilson’s Vicki Slater asked Merkel & Cocke partner Cynthia Mitchell, who’d been representing Luckey, to join forces and go-for-it on Wilson’s behalf too — and you know as much of the rest as I do.

Now here on folo, we’ve wondered about just how far back the federal investigation may go — all the way to the tobacco cases and P.L. Blake? We know that, according to Jerry Mitchell, in 2000 while the Wilson case was in slow-mo, a “high ranking public official” (note “public,” not “state”: there may be a Lott of difference there) asked Peters to prosecute Wilson as a favor to Scruggs — a conversation that we know (again from Mitchell) interests the federal prosecutors.

And while Ed Peters was still a district attorney (as well as Breland Hilburn’s best friend, partying with him on weekends at Eagle Lake), for reasons no one really understands, Hilburn was both slow-footing Wilson and rendering decisions so peculiar that two federal judges would not trust him enough to send him parts of the case. Just what inspired Judge Hilburn’s strange rulings? We don’t know.

But we do know that, in the same period, beginning in 1999, Bobby DeLaughter rose from being one of Peters’ assistants until, in 2002, he took Hillburn’s place on the circuit bench . . . where he continued to preside over Wilson until just this week, finally recusing himself just ahead of a motion from the Judicial Performance Commission to suspend him from the bench entirely.

So: will the Feds turn over all these various rocks to see what’s under them? Let’s wait and see.

Meanwhile, sic, if not exactly the spelling, sure is the sound that fits . . .”