Merkel & Cocke, P.A.

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Charles M. Merkel, Jr. as the “Jackson, MS Best Lawyers Personal Injury Litigator of the Year” for 2010.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

The law firm of Merkel & Cocke is proud to announce that Charles M. Merkel, Jr., has received the prestigious Lifetime Achievement Award from the Mississippi Association for Justice.

Charles M. (Charlie) Merkel, Jr. has been a trial lawyer since 1966 when he graduated magna cum laude from the University of Mississippi School of Law. He was born and raised in Mississippi and attended the University of Mississippi for both his undergraduate and law degrees. After law school, he worked for four years with the U.S. Department of Justice Tax Division, trying tax cases in a five state area.

In 1970, Charlie returned to Mississippi, beginning private practice with the firm of Sullivan Dunbar & Smith in Clarksdale, Mississippi. In 1972 he was a founding member of the law firm of Holcomb Dunbar Connell Merkel & Tollison and continued his litigation practice there until 1982 when he formed the Clarksdale firm Merkel & Cocke. While his practice involves primarily civil litigation, he has tried a number of criminal cases as well. He has tried cases in numerous state and federal courts throughout the country, specializing in complex civil litigation and medical malpractice. Charlie's trials have resulted in multiple jury awards from $1 million to $20 million dollars.

Charlie is a long-time member of the Mississippi Association for Justice and a long-time opponent of tort reform. His partners remember his returning to Mississippi from a firm ski trip to testify against tort reform in the 1980s. He regularly speaks to civic and business groups about the civil justice system and tort reform. He is also a frequent lecturer at seminars for trial attorneys. He is a member of the American Board of Trial Advocates, currently serving as the president of the Mississippi Chapter and the American College of Trial Lawyers. Charlie has been repeatedly selected for inclusion in peer review elite litigator lists of legal publications including Best Lawyers in America, Mid South Super Lawyers, and Law Dragons.

From a small town Mississippi practice, Charlie Merkel has earned a reputation as an excellent advocate for his clients, but not only for the large or lucrative case. Sometimes to the consternation of his partners, he is known to take on the cause of anyone needing help, no matter how helpless the case. And once he takes on a case, he is fiercely loyal to his clients and does not seem to have it in him to give up on a client, even if a case goes south, as they sometimes do. Throughout his 44 year career, Charlie has been an untiring representative of the injured or wronged and a true asset to the plaintiffs' bar.

Hide Full Article

John Cocke Receives The ‘Beyond The Call Of Duty’ Award
From The Mississippi Volunteer Lawyers Project

John Cocke, a founding partner of Merkel & Cocke, received the ‘Beyond The Call Of Duty’ award from the Mississippi Volunteer Lawyers Project (MVLP).

The MVLP is a joint venture of The Mississippi Bar Association and Mississippi Legal Services Programs. More than 1,600 Mississippi attorneys volunteer their time and expertise to participate in the Project, and as a result, more than 5,000 low income citizens are assisted by the Project each year.

Five partners of Merkel & Cocke were chosen by their peers for inclusion in the 2008 edition of Mid-South Super Lawyers & Rising Stars. The selective and prestigious Mid-South Super Lawyers & Rising Stars magazine lists Charles M. Merkel, Jr., John H. Cocke and William B. Raiford, III, as part of this year´s list of "Super Lawyers" in the Mid-South. Charles M. Merkel, Jr. is one of only eight lawyers in the tri-state area listed under the heading: "Personal Injury Plaintiff: Products Liability," and he is also included in the "Top 50 Mississippi" list, which is comprised of the lawyers receiving the most points in the selection criteria. John H. Cocke and William B. Raiford, III are two of only seventeen lawyers from the tri-state area listed under the heading: "Personal Injury Plaintiff: Medical Malpractice."

Attorneys in Mississippi, Tennessee and Arkansas were also asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less. Merkel & Cocke is pleased to announce that two of its attorneys, Edward (Ted) Connell, Jr. and Charles M. Merkel, III, were selected for inclusion on the list of "Rising Stars" for 2008. Ted Connell is one of seven lawyers from the tri-state area listed under the heading "Personal Injury Plaintiff: General" in the "Rising Stars" list, and Charles M. Merkel, III is one of only three lawyers from the tri-state area and the only lawyer from Mississippi listed under the heading "Personal Injury Plaintiff: Medical Malpractice" in the "Rising Stars" list.

Those included on this year's lists of "Super Lawyers" and "Rising Stars" were selected from balloting sent by Law & Politics to attorneys in the tri-state area of Arkansas, Mississippi and Tennessee. The attorneys who receive the ballots in the tri-state area are asked to nominate the best attorneys they've personally observed in action, whether as opposing counsel or co-counsel, or through other firsthand courtroom observation. Researchers of Law & Politics also searches for outstanding Mid-South lawyers, and examines the background and experience of each candidate nominated.

Another step in the selection process is peer evaluation of the candidates by practice area, before the final selections are made. Only 5 percent of the total lawyers in Arkansas, Mississippi and Tennessee make the "Super Lawyers" list, and only 2.5 percent of the total lawyers in those states make the "Rising Stars" list.

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."

For more information about Merkel & Cocke´s Super Lawyers and Rising Stars, visit http://www.superlawyers.com/pdf/platinum/TASLRS08_Merkel.pdf or http://superlawyers.com/.

Hide Full Article

Merkel & Cocke's clients receive a $23.6 million verdict in medical malpractice case.

The lawsuit involved a claim of medical malpractice against Dr. Claudia Moise, and her clinic, OB-Gyn Specialists P.C. of Memphis, Tennessee, for failing to timely diagnose a complained of lump which later proved to be breast cancer.

On July 15, 2003, Courtney, then only 23 years old, called her Ob/Gyn’s office and reported to the receptionist that she had found a lump in her breast which had persisted for two months with "possible dimpling" and asked whether she should come in immediately. The nurse relayed the message in writing to Dr. Moise with a question to the doctor of whether the patient should have a mammogram. Dr. Moise informed her nurse to tell Courtney "no", that she did not need to come in immediately and to tell Courtney to wait until Courtney’s next scheduled appointment two weeks away. Dr. Moise also advised the nurse that no mammogram was necessary.

At Courtney’s next appointment, Dr. Moise performed a scheduled gyn procedure. Despite the documented phone message, Dr. Moise had to be reminded to examine the complained of lump before the patient left. Based on the patient’s testimony, which Dr. Moise did not refute, Dr. Moise did an exam and advised Mrs. Hill that the lump she complained of was a cyst or fatty deposit, and that it was "nothing to worry about". Dr. Moise’s decision not to perform further testing was based solely on palpation alone, despite her later admission under oath that she could not distinguish cancer from benign masses by palpation alone. Dr. Moise did not order an ultrasound or other testing, and did not arrange for any type of followup. Dr. Moise further did not document her findings in the medical record, and did not document any reminders to herself to further evaluate the complained of lump at a later date.

Mrs. Hill subsequently became pregnant. Ms. Hill was seen in the Defendants’ offices on 16 subsequent occasions without further evaluation or testing. Dr,. Moise admitted the patient kept every visit and complied with every recommendation made by Dr. Moise during the many years she was Courtney’s physician. Dr. Moise admitted she never ordered followup testing.

After her pregnancy, the lump was noticed by Courtney to be now larger and painful. Courtney called the Defendants’ offices but was unable to be seen by Defendant Moise because her schedule was already full. On February 14, 2005 (Valentine’s Day), Courtney was able to be seen by the Defendant’s partner, Dr. Paula Pilgrm. Dr. Pilgrim examined the breasts, found a suspicious mass and immediately ordered a mamogram and ultrasound, which confirmed a 4 cm mass. A biopsy the next day proved breast cancer. PET and CT scans the same week, and further biopsy, proved the breast cancer had mestatasized to Courtney’s liver, with no chance of cure despite the heroic efforts of Courtney’s treating oncologist, Dr. Lee Schwartzberg of Memphis’ The West Clinic. Courtney’s treatment included nine to ten separate rounds of chemotherapy, a lumpectomy, a complete hysterectomy and radiation treatment. Dr. Schwatzberg is considered by many to be one of the country’s leading experts on breast cancer and was highly praised by Mr. and Mrs. Hill. Even experts paid by Dr. Moise to testify of her behalf at trial (some being paid up to $5000 a day) acknowledged Dr. Schwartberg to be Memphis’ leading expert on breast cancer.

Courtney was unable to be present at trial because of her health and testified by way of video deposition.

The Rev. Greg Davis of Desoto County testified of the Hills’ unwaivering faith in the face of adversity and as to the Hills’ constant positive attitude. Rev. Davis recalled that on the day of Courtney’s diagnosis the Hills had met privately with him and placed their hands in the Lord, with no fear. He further recalled that when Courtney initially lost her hair due to chemotherapy, the majority of the congregation, without being prompted by him, wore pink hats to church as a sign of their love and support of the Hills.

Robert and Courtney began dating in high school and were married one week after Courtney graduated from Ole Miss with a degree in biology. Courtney had gone on to teach fifth and sixth grade. Robert, at age 32, is the general manager of the local office of a major electronics firm which has over 1300 employees in the Memphis area. The proof at trial showed that Mr. Hill was an extremely loving husband and had been present for nearly every single time Courtney had been to the doctor dozens and dozens of times in their battle with cancer.

The Hills have one daughter, now age 4.

Dr. Moise made no offer of settlement before or during trial. Instead Dr. Moise argued that she complied with acceptable standard of medical care through her evaluation of the lump by palpation alone, and/or that whatever lump Courtney complained of in July 2003 was not the same lump found by Dr. Moise’s partner in 2005, and/or in the further alternative that, despite the 18 month delay in diagnosis, even if the lump Courtney had complained of in 2003 was in fact cancer it had already metastasized to Courtney’s liver in July 2003 making Dr. Moise not responsible for the Hills’ tragic situation. Dr. Moise’ was represented by attorney, William Domico of the Memphis law firm of Domico Kyle, which includes state senator Jim Kyle.

After a two week trial presided over by the Hon. Kay S. Robilio of Division 5 of the Circuit Court of Shelby County, Tennessee, the jury unanimously found that Dr. Moise, as an employee of her medical corporation, Ob/Gyn Specialists P.C., had violated the standard of acceptable medical care required in Memphis and that Dr. Moise’s actions did in fact cause injuries to Mr. and Mrs. Hill which would not have otherwise occurred.

The jury awarded the Plaintiffs a total of $23.6 million in damages for their tragic losses. The award included an award to $11,850,000 to Courtney Hill and an additional $11,750,000 to husband Robert Hill.

The Hills hope this award will help deter this type of medical negligence, and to prevent others from being harmed by such medical neglect in the future.

Hide Full Article

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.

Hide Full Article

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.

Hide Full Article

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.

Hide Full Article

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.

Hide Full Article

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.

Hide Full Article

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.