Juries can't understand complex cases, right? And juries make ridiculously large punitive awards in civil cases that are invariably reduced on appeal, right?
Both of these platitudes were put in doubt this week when Medtronic, the parent company of Memphis-based Sofamor-Danek, settled a lawsuit over patents on back-surgery products by paying a California doctor $1.35 billion.
Last summer and fall, the case of Dr. Gary Michelson against Medtronic was tried in U.S. District Court in Memphis. During the three-month trial, jurors sifted through scores of complex technical drawings and documents. After long deliberations, they awarded Michelson $110 million in compensatory awards and, following two more weeks of deliberations, another $400 million in punitive damages.
If you only read simplistic editorials and listened to talking-head rants about tort reform, you'd have thought this was yet another outrageous jury award. On Monday, however, it was reported that Medtronic settled for an amount more than double the jury award. As described in The Wall Street Journal this week, Michelson is a 56-year-old triathlete and weight lifter who holds more than 600 patents. The agreement gives Medtronic exclusive rights to those patents and any future spinal inventions by Michelson for the next 15 years. Medtronic acquired Sofamor-Danek in 1999.
• Things I never thought I would read in our daily newspaper: a front-page story on Viagra and erectile dysfunction including this quote from advertising and public relations expert John Malmo:
"In all of history there's probably never been a four-hour erection. It's the most incredible product claim without actually making a claim I've ever seen."
The reference, of course, was to Pfizer's cute, family-friendly television advertising disclaimer.
John Malmo, meet Bill Boner, former mayor of Nashville. In 1990, Boner dumped his third wife to marry country singer Traci Peel. As reported in newspapers from Los Angeles to Washington, D.C., Peel told a reporter that Boner could perform nonstop for seven hours. The claim was later put in doubt by, among others, Peel herself, but who really knows? Does Malmo have any more evidence to back up his claim than Pfizer has to back up its claim? An amplification, if not an outright correction, would seem to be warranted.
Or at least investigative reporting and more front-page stories on this important issue.
• Speaking of incredible product claims: Albert Means wasn't drafted when the National Football League held its annual player draft last weekend. Means played for the University of Memphis after graduating from Trezevant High School and knocking the Southern college football scene into a tizzy.
According to local sportswriters, boosters, and high school football coach Lynn Lang, Means was the greatest defensive lineman since Mean Joe Green and Big Daddy Lipscomb. He was "slave auctioned" to the University of Alabama at the direction of Lang and booster Logan Young. Or so the story went. In a period of insanity, state and federal prosecutors were swayed by this nonsense and filed criminal charges against Lang and Young instead of letting the NCAA administer justice.
The rest was farce. Means was no better than average; if he makes the pros, it will be as a long-shot free agent. Lang was the federal government's star witness in Young's trial earlier this year. Lang got a no-prison sentence based partly on erroneous information about his job status in his probation report. Young was convicted and is to be sentenced in June. He should also get probation and a refund of the $120,000 he paid for Means.
• A Commercial Appeal story about potential Memphis mayoral candidates in 2007 (!) was a puzzler. It included former MLGW president Herman Morris, who has a political tin ear, avoids interviews, and lost his only political race when he ran for City Council against Tom Marshall several years ago. Marshall, on the other hand (who was not mentioned), is an often-quoted councilman, a political veteran, and a compromiser on the council.
It's probably too early, but consideration should be given to the Memphian who holds the same job that propelled Willie Herenton to the mayor's office: city schools superintendent Carol Johnson.
• Pay package of the year? Regions Financial CEO-to-be Jackson Moore received more than $27 million in tax reimbursement payments last year. Moore, a Memphian, was a top executive at Union Planters Bank which merged with Regions last year. The deal to pay his taxes was part of his employment agreement with UP between 1989 and 2004. A Regions spokesman was quoted as saying, "It's a large number, there's no doubt about it." •
In spite of its name, Karaoke Kafe offers a lot more than singing. "We're like Sun Studios meets American Bandstand," says co-owner Brian Leviticus. Leviticus, who only uses his stage name, has a black goatee braided into two inverted horns on either side of his chin and looks more like the lead singer of a death-metal band than the owner of a karaoke club.
Karaoke Kafe, which opened a couple weeks ago at 26 South Main, is a recording studio with full CD and DVD capabilities, a restaurant offering lunch and finger foods, a coffee shop, a wireless Internet cafe, a late-night music store, an art gallery, and, obviously, a karaoke bar. You can even bring items to post on eBay, and Leviticus and co-owner Dan Graves will do the selling.
But the cafe's specialty remains karaoke. Patrons can get onstage and sing their favorite tunes from 10 a.m. to 2 a.m. from a list offering about 134,000 songs.
"You name it, we've got it," says Graves, a Vietnam veteran-turned-rocker with long, gray hair and a beard. "I'd say we probably have the largest selection in the nation. It would take 3,000 pages to print our catalog."
Many other Memphis bars offer regular karaoke nights , but what sets Karaoke Kafe apart is its ability to record and produce CDs of faithful karaoke fans singing their hearts out. Anyone can come in, choose ABBA's "Dancing Queen," and walk out with a CD of themselves doing their best Anni-Frid Lyngstad.
Graves says they'll also record original songs performed by individuals, bands, or choirs, or if you'd rather see yourself sing, he can record the performance onto a high-definition DVD.
"You can have the audience watch you as you're recorded, or we do have an isolation booth if you'd rather not be watched," Graves says.
Graves also hopes to produce television shows of the venue's Friday- and Saturday-night performances. The shows would feature mostly live music performed by people who audition to be included.
A live band plays every day during lunch, and although the cafe offers pub grub, such as chicken wings, mini-pizzas, jalapeno poppers, and cheesesticks, patrons are welcome to brown-bag it.
"We're not just here to make a buck," Graves says. "We're here because we love music, and we want people to come in and see bands play."
Karaoke Kafe also sells artwork by local artists, along with guitar strings and drum sticks. In addition, there are several computers, where customers can use the wireless In-ternet service for an hourly fee. Patrons with laptops can log on for free. As for the eBay service, all Graves and Leviticus ask for is a little commission when the items are sold.
"Everybody has junk they want to get rid of, but many people don't do it correctly," Graves says. "It's a hassle to take the pictures, post them on eBay, and then try to squeeze the money out of the buyer. But you can come in here with an item, tell us a minimum price, and we'll put it on eBay for you."
Graves says he and Leviticus spent two years developing the concept for the cafe, "where the audience could participate" rather than just sit back and watch bands play. The Memphis location is the first of 10 Karaoke Kafes planned nationwide within the next two years. •
Karaoke is featured at the Karaoke Kafe (26 South Main) from 10 a.m. to 2 a.m. daily. Bands play lunch from 11:30 a.m. to 1:30 p.m. daily.
Terry Harris, a cardiologist's son who grew up in Frayser and rose through the ranks as a state prosecutor, appears to be hitting his stride as United States attorney for the Western District of Tennessee.
With a court docket that, this year alone, has included the Logan Young trial, the O.C. Smith trial, a steady flow of gun cases, the sentencing in the Madison day-care case, and a potential terrorism case (see this week's cover story, page 16), the federal building sometimes seems like a cross between ESPN SportsCenter, CSI, Law and Order, and Days of Our Lives, with Harris and his assistants in the director's role.
The Young, Smith, and Madison cases had been stalled until this year. Prosecutors got a conviction in Young's case, a hung jury in the Smith trial (which was tried by a special prosecutor from Little Rock, with Harris testifying as a witness for the government), and a sentence against the Madisons deemed so light that Harris & Co. filed an objection.
"Terry Harris is probably the most aggressive and hands-on U.S. attorney that I have worked with in my 17 years in law enforcement," said Bill Woerner, the FBI agent-in-charge of the Las Vegas field office. Woerner, who formerly worked in Memphis, added, "He is the first U.S. attorney I have known that actually shows up and participates at the command post during takedowns. It's inspiring to people like me."
Harris, who became United States attorney in 2001, also gets good reviews from his colleagues, judges, and opposing lawyers.
"He is the consumate professional," said U.S. district judge Jon McCalla. "The prosecutor is the most powerful position in the land. They can go to a grand jury and get an indictment. No one else can."
John Pierotti, the former Shelby County district attorney general now in private practice as a defense attorney representing, among others, Logan Young, said Harris is "fair, dedicated, and doesn't back off anything."
Harris, 45, attended Skyview Academy, Rhodes College, and the University of Mississippi Law School. After a year in private practice, he joined the Shelby County district attorney general's office in 1987, earning promotions to major violators cases, the gang unit, and chief prosecutor over the criminal courts under current District Attorney Bill Gibbons. In 1998, he ran unsuccessfully for a criminal court judgeship, losing handily to television celebrity Judge Joe Brown. After George W. Bush won the presidency in 2000, Harris was recommended for the federal prosecutor's job by Tennessee senators Bill Frist and Fred Thompson.
"There is no political aspect to prosecutorial decisions made by me or anyone in this office," said Harris. "I'm a career prosecutor. I didn't come into this office with a political agenda. And crime doesn't have party labels attached to it."
Harris tries cases himself and leads a staff of 37 attorneys in Memphis and Jackson, Tennessee. Six attorneys work on civil cases, while six more specialize in gun cases, which are the top priority of the office, along with counter-terrorism. Harris promoted Larry Laurenzi to top assistant and has hired several people from Gibbons' staff.
"He is a very hands-on-type boss with an interest in everything that happens here," said Vivian Donelson, a federal prosecutor in Memphis since 1983 and currently head of the criminal division. "He is always accessible and exemplifies the mission of this office."
The soft-spoken prosecutor tends to see the glass as half-full, citing a decline in the number of homicides involving guns in Shelby County from 120 in 2002 to 88 in 2004. Although the property-room scandal stained the reputation of the Memphis Police Department, Harris praised the department's response after the problem was discovered.
"To their credit, the police participated fully in the investigation with no leaks," he said.
Harris gave important testimony in the O.C. Smith case, describing a personally painful process as the investigation shifted to Smith, his professional colleague.
"Our citizens are entitled to honest government," he said in an interview. "Any time our prosecutors can further that goal it is an appropriate use of our resources. But we can't solve all governmental problems." n
We know that God speaks to and through certain Memphis newspaper and television reporters and columnists. We know because they tell us. What some of us didn't know, until The Commercial Appeal told us in a front-page headline, was that Pope John Paul II was "Father to some, leader to all."
The death of the pope, obviously, is a big story. The pope was a leader in a way that, say, Ronald Reagan or Bill Clinton were not. But the leader of the Roman Catholic Church is not "leader to all," if a leader is someone who moves followers to a mutual goal.
In Memphis, there are churches, temples, and mosques of many different religions and denominations, and there are Jewish, Southern Baptist, Episcopal, and Evangelical Christian schools, as well as Catholic schools. What distinguishes Memphis and Shelby County from other parts of Tennessee, however, is the number of children who attend public schools. With a combined enrollment of nearly 160,000 students, Memphis and Shelby County have more than twice as many public school students as consolidated Nashville and Davidson County, which has approximately the same population.
Calling the pope leader to all or, as some newspaper and television commentators did, a "rock star," is a symptom of the modern media's cloyingly familiar treatment of "newsmakers" as stars, whether they be Pope John Paul, Terri, Jacko, J-Lo, Charles and Camilla, Pau, or some contestant on American Idol.
The CA's star treatment of the pope was magnified by its redesigned front page emphasizing white space and a single story and color picture. A large photograph and one story about the pope, along with a column by David Waters, filled almost the entire front page of the newspaper on Saturday and Sunday. Not until Monday did the CA run a story giving the barest outline of the controversies in the Catholic Church over sexual abuse scandals, abortion, celibacy, the declining number of priests, and the role of laymen.
Compare that with the one-column headline and subheads on Pope John Paul's death in Monday's Wall Street Journal: "In Changing World, Church Faces Choice Over Pope's Role" and "John Paul's Charisma Made Up For His Hands-Off Style; Insider or Non-European?" and "Leading 1.08 Billion Faithful."
All of that in exactly four square inches.
The almost-all Pope John Paul front pages of the CA were inevitable. In the previous two weeks, the paper had already given star treatment to UT women's basketball coach Pat Summitt ("880!") and the Memphis Grizzlies' injured forward Pau Gasol ("Gasol's Back"). But sports, at least in the minds of some people, is still less serious than death. Therefore, the death of Terri Schiavo on March 31st got an even bigger color picture under the biggest headline ("1963-2005") since the 9/11 terror attacks. The death of the pope two days later demanded nothing less.
The other trend at work in the print and broadcast media is a variant on the old television news adage, "If it bleeds, it leads." A little tweaking, and that becomes "If it believes, it leads."
Face it. Disturbing pictures of crime and war and stories by nasty naysayers are not a good way to bond with readers and viewers in a competitive business. Some of us were too slow, stubborn, and thick-skulled to recognize the role that churches and faith play in daily life. In January, a page-one story in the CA about a woman who died at her husband's funeral was headlined, "Prayers answered: God grants wish to reunited husband and wife -- in death." It was a sweet story, despite the headline, and it took fresh eyes to do it that way.
There is a line, however, between compassion and pandering, and nowhere is it more apparent than on the sports pages, which is an anachronism because sports often winds up on the front page. It is well known that God and Jesus Christ favor certain athletes and teams. On Saturday, television viewers of the NCAA men's Final Four saw a player for the University of Illinois pointing skyward at the end of the Illini's win over Louisville. The Commercial Appeal explained that the player was not proclaiming that his team is number-one. He was "pointing to Jesus" who apparently favored the Fighting Illini to the godforsaken Cardinals. Pointing to Jesus is as commonplace in sports as slapping hands. What would really be worth a story would be a player who walked off the court smiling and pointing to the sky after losing.
That didn't happen. On Monday, Illinois lost to North Carolina, whose players made do with hugs and handshakes. The headline in the CA: "Tar Heel Heaven. May powers UNC to the promised land that coach pursued for so long." n
It's springtime, and the Memphis Grizzlies are entering the really tough part of the schedule.
Not just those games against other playoff contenders and All-Stars such as LeBron James and Allen Iverson. Off the court, the lineup of formidable competitors includes Shelby County commissioners John "J-Will" Willingham and Walter "Big Dog" Bailey, the upcoming Beale Street Music Festival in April and May, promoter Beaver Productions, and the ever-dangerous duo of Motley Crue and the DeSoto Civic Center.
The issue is not basketball but the non-compete contract clause that gives the Grizzlies and their operating arm, Hoops Inc., first dibs on the dwindling number of bands and artists who want to perform in Memphis in a big arena. While Congress and the U.S. Supreme Court were preoccupied last week with Terri Schiavo's feeding tube, Willingham and others were casting the non-compete clause as a right-to-life issue for The Pyramid and Mid-South Coliseum. As Pyramid general manager Alan Freeman told commissioners, if his employer, SMG, gets a call from a promoter wanting to play The Pyramid, he must by contract immediately refer them to the Grizzlies. He can only book a show with their blessing.
"That's not happening," said Freeman, who estimated that six to eight events have bypassed Memphis due to the non-compete clause since FedExForum opened last September.
Questioned by Bailey, the commission's watchdog over the Grizzlies and FedExForum, Freeman gave a grim report. The Pyramid lost $200,000 to $300,000 in potential revenue. Two bands, Rascal Flats and aging rockers Motley Crue, booked the 9,000-seat DeSoto Civic Center instead. FedExForum has only two concerts booked for the next 90 days, and both previously played The Pyramid, so they are not new business.
As facilities managers and promoters, SMG and Beaver Productions are understandably concerned. Willingham and the four commissioners voted to keep the heat on the Grizzlies and "lawyer extraordinaire" Stan Meadows, as Willingham called him in an open letter that was alternately sassy, silly, and sensible. But there is no need for a pity party for The Pyramid or the concert drought. Concerts and shows that need an arena as big as The Pyramid or FedExForum are only a small part of the Memphis entertainment scene. Tunica casinos, the Grizzlies, the Memphis Redbirds, AutoZone Park and the Memphis Botanic Garden's "Live at the Garden" concert series weren't around when The Pyramid opened. There are more venues in the Memphis area than there are bands, teams, singers, and entertainers to fill them (see sidebar). Within walking distance of each other downtown, there are two arenas, one outdoor amphitheater, one music museum, one ballpark, and two auditoriums with a total of 60,000 seats. Plus Beale Street. On nights when three or four venues are booked, Memphis seems like a genuine big city. On slow nights, visitors must wonder what in the world we were thinking.
The focus on the non-compete clause misses the point. FedExForum wasn't built to bring more concerts and truck shows to Memphis any more than Tunica casinos were built to revive the careers of geriatric singers or increase the consumption of shrimp cocktails. Those are extras. FedExForum is about professional basketball and a big-league image. Memphis made its choice and should make the best of it. There was always going to be some collateral damage. But $300,000 in revenue, which is offset by the expenses of keeping The Pyramid open, doesn't make much of a dent in the $30 million of debt left on the building. The Grizzlies are responsible for operating deficits at FedExForum. They -- and the city and county -- need a competing arena at the other end of downtown like Senator John Ford needs another ex-wife.
If there are six or eight fewer concerts in Memphis because of the Grizzlies, there are also 50 more NBA games per year. The Grizzlies give Memphis an answer to Tunica's casinos and Nashville's Tennessee Titans. Motley Crue playing The Pyramid can't do that. The Grizzlies help keep FedEx and AutoZone happy. The headquarters of Fortune 500 companies are worth some perks. Would anyone trade them for HealthSouth and Worldcom, the corporate fallen angels of Birmingham, Alabama, and Jackson, Mississippi?
Closing The Pyramid won't turn off the music in Memphis. According to Freeman, the Beale Street Music Festival dries up the concert business for at least a month before and after the three-day event. Beale Street, the Cannon Center, the Memphis Botanic Garden, suburban concert halls, and scores of bars and clubs listed in this newspaper offer live music. The Mud Island Amphitheater, which is not bound by the non-compete clause, will soon announce a revived summer series of at least 10 concerts. Benny Lendermon, head of the Riverfront Development Corporation, said Mud Island's 2005 bill "will far exceed the number of concerts it has had in the past." The Orpheum plans to offer more music concerts in 2005, according to director Pat Halloran.
The Pyramid is simply an expensive skyline ornament. It was doomed as a basketball arena when the University of Memphis Tigers moved away. Its usefulness as an adjunct to the Memphis Cook Convention Center is limited to a handful of conventions such as the Church of God in Christ that require a large assembly hall.
Pierre Landaiche, general manager of the convention center, said "people will walk a mile indoors" if buildings are connected by interior walkways and people-movers but are reluctant to go outside to a separate building.
No one has come forward with a viable alternate use for The Pyramid that would shift the debt to a private developer without additional public investment. A casino, which is Willingham's choice, would require enabling legislation from Nashville and face opposition (and competition, if it ever came to pass) from the Tennessee Lottery and Tunica casinos.
"There is a difference between a dreamer and a visionary," said Beale Street developer John Elkington, who has seen his share of both in the last 25 years. "A visionary has the wherewithal to make it happen. With The Pyramid, we have a bunch of dreamers."
But Halloran, president of the Memphis Development Foundation which runs The Orpheum, isn't ready to quit on The Pyramid.
"They need to let them book shows," he said. "I understand the Grizzlies' position, but I think the city made a bad deal. It hurts the economy not to have multiple events."
Howard Stovall of Resource Entertainment Group, which represents some 50 bands and other clients, isn't so sure.
Given the competition from Tunica and the inherently "tricky" Memphis market, the non-compete clause in exchange for the Grizzlies picking up operating deficits at FedExForum is "a decent deal" for Memphis, he said.
"Four or five years ago, people were talking about the fact that concerts weren't coming to Memphis," he said. "Memphis is finicky. The sweet spot in this market is the 5,000- to 7,000-ticket concert. Things that seem to be layups turn out to be a lot more difficult. The only way to succeed is to be cautious." n