Merkel & Cocke, P.A.

Three of the seven partners of Merkel & Cocke were chosen by their peers as Mid-South Super Lawyers for 2007. The selective and prestigious Mid-South Super Lawyers 2007 magazine lists Charles M. Merkel, Jr., John H. Cocke and William B. Raiford, III, as part of this year’s Super Lawyers in the Mid-South. Charles Merkel, Jr. was selected as a Super Lawyer in the area of “Personal Injury Plaintiff: Products Liability”, while John Cocke and William Raiford, III were deemed super in the area of “Personal Injury Practice: Medical Malpractice”.

This year's super lawyers were selected from balloting sent by Law & Politics to more than 24,000 lawyers in the tri-state area of Arkansas, Mississippi and Tennessee. The attorneys who received the ballots in the tri-state area were asked to nominate the best attorneys they've personally observed in action. Researchers of Law & Politics also searched for outstanding Mid-South lawyers, and examined the background and experience of each candidate nominated.

Another step in the selection process was peer evaluation of the candidates by practice area, before the final selections were made. Only 5 percent of the total lawyers in Arkansas, Mississippi and Tennessee are listed in Mid-South Super Lawyers 2007, according to the magazine.

According to the magazine, this is “not a popularity contest” but instead is backed up by the magazine’s “considerable polling and peer evaluation efforts with a detailed research process that evaluates each candidate based on 12 indicators of peer recognition and professional achievement.” Also, "there’s nothing pay to play about the list," states the magazine. "Nobody pays to be included.”

From the publishes of Law & Politics, the magazine is published by attorneys for attorneys and is distributed only to attorneys.

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Merkel & Cocke recently received two favorable verdicts in five days. The first verdict was in favor of homeowners against USAA Casualty Insurance Co. in a bad faith denial of insurance case. The second verdict was in favor of an Air Force veteran in a medical malpractice lawsuit.

On Friday, September 28, 2007, in a case tried by attorneys Charles Merkel, Jr. and Cynthia Mitchell, a federal jury in the United States District Court for the Southern District of Mississippi found in favor of Kevin and Sherrye Webster, a couple who sued their insurance company after Hurricane Katrina for refusing to cover more than $1.7 million in damage to their beachfront home and property in Bay St. Louis, Mississippi.At trial, USAA's expert witnesses argued that nearly all of the damage to the two-story home was caused by Katrina's flood waters, which the Websters' USAA insurance policy would not have covered. The jury concluded however that 100% of the damage to the Websters' home was caused by Katrina's wind, wind-blown debris or wind-driven rain, all of which were covered by the Websters' insurance policy with USAA. This was the first Hurricane Katrina wind vs. water case to be decided by a jury wholly in favor of a plaintiff, and the Websters, as well as the Merkel & Cocke team, were extremely gratified by this watershed jury verdict.

Shortly after the jury's verdict, the parties settled all of the Websters' claims against USAA for a confidential sum. Charles Merkel Jr. said the jury's dismissal of certain expert witness testimony could cause other insurance companies to re-evaluate their positions in future litigation. Merkel said "typically insurance industry experts and particularly those associated with Texas Tech have disingenuously downplayed the speed of the winds and the role that wind played in the damages." The plaintiffs' experts persuaded the jury that wind collapsed the whole house before water eventually eroded the lawn and the area where the 6-foot-high piers supporting the house had previously collapsed. "I think it's a big victory for all the homeowners on the Gulf Coast," said attorney John Cocke.

$475,000.00 VERDICT IN FEDERAL TORT CLAIM ACT CASE

Five days after the verdict in the Webster case, Merkel and Cocke attorney John Cocke won a $475,000.00 verdict in a Federal Torts Claim Act case on behalf of a veteran.

The plaintiff Thomas Clark, a 58 year old veteran of the Air Force, was a patient of the Veteran's Administration Clinic in Jackson, MS, when his blood sugars began to rise dramatically. However no treatment was begun and he eventually went into diabetic ketoacidosis (DKA). He was hospitalized and treatment was begun for his DKA with IV fluids and glucose but he suffered a heart attack as a result of the DKA. When his blood sugar lab results were finally relayed to his doctor, Mr. Clark was called by his VA doctor and told of his very dangerous glucose levels. However, his doctor did not tell him he might die from his condition, and he told the doctor he would return in 5 days. On cross examination, the defendant's expert admitted that his doctor should have known that Mr. Clark could die within 36 hours and that it was below the standard of care to fail to inform Mr. Clark of the imminent danger.

A Federal Judge found that the VA doctor was negligent and further that Mr. Clark had a number of unrelated illnesses that would have disabled him within 3 years in any event. Therefore he awarded $125,000.00 in lost earnings and $350,000.00 in pain and suffering, which was then reduced by 50% for Mr. Clark's own negligence in failing to come to the hospital when called.

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Chris has developed a national practice representing consumers injured by violations of the Fair Credit Reporting Act committed by credit bureaus such as Experian, Trans Union and Equifax as well as various credit card companies. The firm that Chris worked for in college was one of the first law firms in the nation to represent credit reporting victims. As a result, Chris learned the inner workings of the FCRA long before entering law school. Chris drafted his first FCRA complaint when he was only twenty in a lawsuit against TRW (now Experian), Trans Union and Equifax which resulted from the theft of the identity of a NASA scientist from Houston, Texas, whose credit was ruined when the accounts fraudulently opened by the identity thief began appearing on his credit reports. Despite repeated disputes, the credit bureaus and creditors refused to remove the fraudulent credit information from the client's credit reports. Litigation was required. I guess you could say even a rocket scientist could not correct the damage done by the theft of his identity. The case settled for a substantial sum, but not before Chris had the opportunity to attend depositions of all three national credit bureaus, further adding to his experience regarding FCRA litigation.

Before graduating from the University of Mississippi School of Law in 1999, Chris had already witnessed at least fifteen jury trials, including a $3,000,000.00 verdict in a wrongful termination case and a $4,520,000.00 verdict against Trans Union, at the time the largest verdict ever against a credit bureau. Since being licensed to practice law, Chris has successfully represented over fifty victims of credit reporting errors in FCRA lawsuits all over the nation. Many of his cases involve the representation of identity theft victims who, after their repeated attempts to remove the fraudulent collections and charged off accounts from their credit reports fail, turn to Chris to sue the credit bureaus who refuse to remove the fraudulent accounts and, in some instances, the credit grantors who negligently allowed the identity thief to obtain credit using the client's identity.

Chris also represents consumers in "mixed file" cases, where a credit bureau merges together the credit files of two consumers who have similar names and/or social security numbers. If one of the consumers has bad credit, the resulting "mixed file" causes derogatory items to appear on the other consumer's credit report. The bad credit of the person with the similar name or similar social security number causes the client to be denied credit, insurance and even employment. Chris also represents consumers in actions against collection agencies and debt collectors who violate the Fair Debt Collection Practices Act.

Chris is also experienced in personal injury and wrongful death cases. He recently obtained a $2,273,000.00 verdict in a slip and fall case, which is believed to be the largest verdict to date in DeSoto County, Mississippi. Chris has lectured to both current and future lawyers, including speaking at local seminars in Mississippi, lecturing for consumer law school classes, and lecturing each year at the National Association of Consumer Advocates FCRA Conferences since 2001. Chris has written articles regarding his FCRA practice, which have been published in The Consumer Advocate, the publication of the National Association of Consumer Advocates.

We believe that Chris will make a great addition to the Merkel & Cocke team and his consumer litigation experience will be an excellent resource for our clients.

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Thinking "Outside The Box" - How Merkel & Cocke Sought Help For The Irwin Family

Merkel & Cocke is currently involved in a wrongful death case, representing the family of Mr. Irwin, a construction worker who was killed while working as an employee of a sub-contractor on a U.S. Army Corps of Engineers construction project. While performing work in the "clearing and grubbing" phase of the project, Mr. Irwin was killed when a large tree fell on the cab of the track hoe he was operating. Not only did Mr. Irwin lose his life, but as with many wrongful death cases, the accident had a devastating impact on Mr. Irwin's family. Unfortunately, worker's compensation provides only limited benefits for people like the Irwin family members who have forever lost a loved one. Although it seemed that the limited worker's compensation benefits were the sole recourse available to the Irwin family, Merkel & Cocke decided to explore other avenues by which to obtain adequate compensation.

Merkel & Cocke's investigation revealed that the Corps of Engineers had knowledge of a dangerous method being used on the project for felling large timber by using machinery which was not adequately equipped with falling objects protective systems ("FOPS") or rollover protective systems ("ROPS") on the cabs to protect the operators from falling objects such as large trees. Merkel & Cocke's investigation further revealed that the Corps of Engineers had a "Quality Assurance Representative" at the project site on a daily basis. This person's job was to observe the work of the contractor to ensure that work was being performed in accordance with contract specifications. He was also obligated to approve daily machinery safety equipment inspections. This Corps of Engineers representative had authority to stop operations that were deemed to "place an employee in eminent danger of serious injury or loss of life" or which would "unreasonably endanger personnel or property." On this particular project, the Quality Assurance Representative ignored safety issues in violation of the Corps' own Safety Manual and in violation of state and federal standards governing protective equipment on heavy machinery used for felling timber.

This case is an example of the determination and diligence Merkel & Cocke's lawyers and staff use in protecting the rights and interests of their clients. On its face, this case seemed to be one covered by worker's compensation law, but Merkel & Cocke's "thinking outside the box" has taken the case much farther. Merkel & Cocke has had much experience and success in handling not only worker's compensation cases but other types of more complicated litigation throughout Mississippi, Tennessee and many other states involving defective products, oversights in supervision, breach of contract, professional malpractice, catastrophic personal injury and wrongful death.

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Charles M. Merkel Jr. and John H. Cocke, of Merkel & Cocke, P.A. have been listed as “super lawyers” in the prestigious and selective Mid-South Super Lawyers 2006 magazine, from the publishers of Law & Politics. Charles Merkel was listed in the “Personal Injury Plaintiff Products” category, and Cocke in “Personal Injury Plaintiff: Medical Malpractice.”

Merkel

"I had always wanted to become a baseball player," said Charles M. Merkel Jr., who originally studied engineering at Ole Miss during the Vietnam War buildup. "When that dream didn't become a reality, I looked for something to do other than engineering. Three more years of education seemed like a good idea at the time."

Merkel found he had an aptitude and a love for the law.

"Litigation was much like sports," he said. "Sort of a poor substitute for being a baseball player."

"The ability to think on your feet and to respond to the unexpected effectively and quickly is a great asset," Merkel said, when asked what qualities help make a super lawyer. "That, coupled with a short-term photographic memory that I was blessed with."

Merkel, born Nov. 2, 1941, in Nashville, Tenn., graduated magna cum laude and second in his class from the University of Mississippi School of Law in June 1966.

After graduation, he accepted an appointment through the U.S. Department of Justice honors program and served four years in the Tax Division of the Department of Justice, in a refund trial section, trying tax-refund cases in U.S. district courts in a five-state area.

In October 1970, Merkel returned to his native Mississippi, accepting a position with the firm of Sullivan, Dunbar & Smith.

In 1973, he was involved in forming the firm of Holcomb, Dunbar, Connell & Merkel, where he was involved primarily in litigation until spring 1982, when he and Cocke formed Merkel & Cocke. The new firm's purpose was handling complex plaintiff's litigation with emphasis in medical malpractice, product liability, toxic torts, drug reactions, brain-damage cases, and generally all catastrophic personal-injury cases.

Merkel has received multiple jury awards ranging from $1 million to $20 million, as well as numerous million-dollar settlements.

He is active in trial lawyers' activities and is a frequent lecturer on trial technique and advocacy, appearing at seminars sponsored by the Mississippi State Bar, Mississippi Trial Lawyers Association, American Board of Trial Advocates and others.

Merkel also received a master's degree in law in 1969 from the Georgetown University Law Center in Washington, D.C.

Cocke

"We've always had really good lawyers in this town - there used to be a federal court here," said John H. Cocke.

"I thought I wanted to work in the (family) bank as a lawyer," he said, "then I fell in love with the law."

"Being able to spot the issues makes you a good lawyer," said Cocke. "If you get sidetracked on the wrong issue, you blow it all."

Born in 1947, Cocke graduated from the University of Virginia Law School in 1975 and moved to Clarksdale to begin practicing in a general-litigation firm.

Since he and Merkel established Merkel & Cocke, P.A., in 1982, the emphasis of Cocke's practice has progressed more and more toward medical malpractice.

His practice now is exclusively devoted to handling medical-negligence cases for the plaintiff, either as a result of direct contact by the client or, more commonly, on referral from other attorneys unfamiliar with handling medical-negligence cases.

Although Cocke handles all types of medical-negligence cases, a uniform requirement is that serious injury or death have occurred as a result of the medical mistake.

Cocke has handled many brain-damaged baby cases, as well as deaths resulting from failure to treat in the emergency-room setting and the premature discharge of patients after surgery, as well as failure to promptly diagnose cancer.

Cocke has developed a particular interest in using modern technology in medical-negligence cases and has spoken at seminars on this subject.

Selection Process

This year's super lawyers were selected from balloting sent by Law & Politics to more than 23,000 lawyers in the tri-state area of Arkansas, Mississippi and Tennessee.

The attorneys who received the ballots in the tri-state area were asked to nominate the best attorneys they've personally observed in action.

Researchers of Law & Politics also searched for outstanding Mid-South lawyers, and examined the background and experience of each candidate nominated.

Another step in the selection process was peer evaluation of the candidates by practice area, before the final selections were made.

Only 5 percent of the total lawyers in Arkansas, Mississippi and Tennessee are listed in Mid-South Super Lawyers 2006, according to the magazine.

"You can't pay to be selected as a cover or editorial subject," states the magazine. "Nor will advertising help you to get on, or stay on the Mid-South Super Lawyers list."

The magazine is published by attorneys for attorneys and is distributed only to attorneys.

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Merkel & Cocke recently had the pleasure of helping a family gain some small amount of justice for the injuries they suffered due to a propane explosion at their home. The path to justice was not an easy one, and we salute the family for persevering through a very difficult and lengthy process. It has taken three years, but in the end they have obtained the compensation they deserved for the injuries they suffered.

Their story begins on an ordinary day when the three children, ages 11, 7 and 6, board the bus for school. Their father, who was a farm employee, had already departed for work. As his wife was leaving the house with their infant child, she noticed the smell of propane gas coming from the rear of the house. She called her husband, who advised her that she needed to turn the valve off at the propane tank, which was located in the back yard. She followed his instructions and then left for work.

The father, wanting to make sure the gas was turned off came by later that day to check that the gas valve was off. At approximately 4:00 p.m. that day, the three older children returned from school. The oldest daughter began preparing an afternoon snack on the electric stovetop for herself and the other children. None of the children detected the odor of gas in the house. Suddenly, without warning, the house exploded.

All three children were severely burned in the explosion, but were able to escape the house. Merkel & Cocke was contacted by the family to help them out in this very trying time. On behalf of the family Merkel and Cocke sued the gas distributor, the gas wholesaler, the company that made the odorant and the tank valve manufacturer.

As might be expected, all four companies denied responsibility. Their first line of defense was that the explosion had not been caused by propane. This opinion, however, was totally contrary to the opinion of every fireman and fire expert who had been to the scene and evaluated the physical evidence, as well as the eyewitness testimony. In fact the companies’ own experts essentially backed off from this position during pretrial information gathering.

Investigation of the house revealed that the source of the leak was from an open valve located in the wall between the wash room and the kitchen. This valve was a second valve and one that the family did utilize.

During pretrial investigation, Merkel and Cocke was able to show that the gas distributor failed to conduct a gas check inspection which would have revealed the existence of the uncapped line. They further showed that the distributor’s records indicated one line into the house, when a casual inspection of the property definitively showed the existence of two lines which would be a red flag that an inspection should have been performed. A gas inspector testified that he was told by an employee of the gas distributor that he had installed the second line into the washroom. In addition, the distributor was in violation of several laws regarding the safe use of propane gas and further, was in violation of the Mississippi Propane Gas Association regarding inspecting a house when there is a change of occupants.

In order to prove their claims, Merkel & Cocke employed experts in the areas of propane gas; human factors engineering; propane odorant chemistry; economics; psychology; and various medical fields.

After three long years, the case was ultimately settled with three of the defendants for $5,335,000.00. Merkel & Cocke now intends to go to trial against the propane gas wholesaler unless those claims can be settled to the satisfaction of all parties. For more information about this case, contact Steve Cox with Merkel & Cocke.

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We previously reported on a case in which three children were burned as a result of a propane gas explosion. This case was settled for five million three hundred thirty-five thousand dollars with the local propane distributor. The plaintiffs and the local propane distributor had mediated and agreed upon a settlement. The national company, which had provided the propane to the local distributor, although being a defendant, had not been asked to join in the mediation process. The local distributor, as part of the original settlement, had insisted that the national distributor be released due to an indemnity agreement between those two parties.

The plaintiffs had agreed to such a settlement; however, when the national distributor was advised that they would be dismissed with prejudice and would not have to pay toward any of the settlement, they objected and stated that they would not consent to the settlement unless their attorney’s fees, which they had previously incurred, were paid. As a result of their refusal to go along with the settlement, the plaintiffs and the local distributor re-negotiated their settlement with the understanding that the local distributor would pay the $5.335 million and the plaintiffs would proceed to trial against the national distributor and that the plaintiffs would indemnify the local distributor in the event a verdict was rendered which triggered the indemnity provision.

This, however, was not the end of the story. As part of the settlement with the national defendant, we had made it very explicit and clear that the money was to be received by a date certain in a form which would enable us to immediately negotiate those proceeds and distribute them. The defendant, however, missed the deadline which resulted in the funds not being able to be negotiated for approximately ten days after the agreed-upon date.

Over the years, we have seen where insurance companies will intentionally pay settlement funds at the last minute and/or late so as to keep those funds in their account for as long as possible. This is a tactic which our firm will no longer tolerate and hence we filed a separate claim against the insurance company and their insured for this late payment. Within a short period of time after having filed this lawsuit, the defendant paid an additional $10,000.00 for their breach of the settlement agreement.