Dolan Media Newswire Story
Subject: U.S. Supreme Court refuses malpractice case
Pub: Missouri Lawyers Media
Author: Scott Lauck
Category:
Sub-Category:
Issue Date: 11/03/2009 Word Count: 33
U.S. Supreme Court refuses malpractice case
by Scott Lauck
Dolan Media Newswires
© Dolan Media Newswires 2009.ST. LOUIS, MO -- The U.S. Supreme Court has declined to hear an appeal of a legal malpractice case that raised questions about a series of confidential settlements with two drug companies.
The order from the nation's highest court was issued Monday without comment. It leaves in place a ruling by the Kansas Supreme Court, which reversed a summary judgment in favor of the firm Davis, Bethune & Jones in Kansas City. As a result, the malpractice case will continue in Kansas state court.
In 2003, attorney Grant L. Davis negotiated a confidential settlement on behalf of the Tilzer family in a lawsuit against drug manufacturers Eli Lilly and Co. and Bristol-Meyers Squibb Co. The suit was one of approximately 300 filed in Missouri courts stemming from pharmacist Robert Courtney's dilution of cancer drugs.
The cases were never joined as a class action suit, although Davis represented many of the plaintiffs. The drug companies offered a "Global Settlement" on an opt-in basis to all of those who had filed suit.
Under the terms of the offered settlement, the companies created a settlement fund, with plaintiffs' specific awards to be determined through arbitration. Jackson County Circuit Judge Lee Wells appointed two special masters to help determine the individual awards.
Although the Tilzers opted into the settlement, they ultimately disagreed with its terms and filed a counterclaim against Davis when he sought attorney fees in the case.
The Tilzers argued the settlement was essentially an "aggregate settlement" to which they hadn't consented. Under Missouri's Rules of Professional Conduct, an attorney representing two or more separate parties on a related matter can't settle all the claims at once without informing each of the parties.
However, Wells ruled that he found no credible evidence of misconduct by Davis. Wells also ruled that the drug companies' offer wasn't an aggregate settlement. He approved the attorney fee award, although he had earlier said that a ruling on the award wouldn't preclude a future malpractice case.
The Tilzers filed a separate malpractice case in Johnson County, Kan., District Court in 2004. That court granted summary judgment in favor of Davis, saying the Tilzers claims should have been litigated as part of the attorney-award argument.
In a ruling in April, the Kansas Supreme Court agreed with the Tilzers' arguments and sent the case back to the district court for further proceedings. That court concluded that the settlement in the case was indeed an aggregate settlement, "notwithstanding the concerted effort of Judge Wells and the special masters to devise a mechanism to avoid labeling" it that way.
"The terms of the Global Settlement contained all of the important features of an aggregate settlement," the Kansas high court wrote. The court noted that neither Kansas nor Missouri defines the term "aggregate settlement," and that there was little caselaw from other states on the subject.
However, the court cited a report from the American Law Institute that came out at the same time of its opinion. That report said a settlement was aggregate if "the defendant's acceptance of the settlement is contingent upon the acceptance by a number or specified percentage of the claimants" or if "the value of each claim is not based solely on individual case-by-case facts and negotiations." The Kansas court said that under that definition, the Tilzers were part of an aggregate settlement.
The court also concluded that Wells' earlier rulings on the matter prevented the malpractice suit from going forward. The case was remanded to the Johnson County District Court.
Davis was in trial on Monday and could not be reached for comment. His attorney, Daniel Hamann, of Deacy & Deacy in Kansas City, did not return a call seeking comment. William J. Skepnek, of Skepnek Fagan Meyer & Davis in Lawrence, Kan., who represented the Tilzers, also couldn't be reached.
The district court had also ordered that some of the Tilzers' filings in the malpractice case be sealed because they revealed aspects of the confidential settlement. On that point the Kansas Supreme Court agreed with the district court. The high court said the legal malpractice case was the wrong venue in which to oppose the settlement itself, since there would be nothing the judge could do to change it.
"In short, Tilzers should have attempted to shine the light of public scrutiny upon the Missouri proceedings, rather than attempt to circumvent the Missouri court's protective orders in this Kansas proceeding," the court wrote.
The case is Grant L. Davis et al. v. Jerome S. Tilzer et al., 09-282.
Reproduction in whole or in part without written permission is expressly forbidden.