Cultivated Compendium

I'm blogging several times a day about products liability for Law.com. Occasionally I cross-post an excerpt of a blog I find interesting:

The Mississippi Supreme Court has ruled against a plaintiffs' attorney for the second time in a dispute with two former clients over who owes money for discovery undertaken on the behalf of all plaintiffs in the massive federal diet-drug litigation.

Herbert Lee Jr. represented 13 plaintiffs who settled their claims that they were injured by taking diet drugs for around $32 million, according a recent opinion by Justice David Chandler. Lee agreed that six percent of the “gross amount of recovery” of each of his clients would be paid for the discovery materials generated in the diet-drug multidistrict litigation in the Eastern District of Pennsylvania.

Lee, however, billed the $1.92 million MDL fee to the plaintiffs. The federal court ordered one-third of all “common benefit fees” refunded.

Plaintiffs Gloria Thompson, who was paid $7.4 million in her settlement, and Deborah Dixon, who was paid $3.1 million, sued Lee, arguing that he had failed to refund their portion of the MDL fee and that his attorney fee exceeded their contingency agreements by 5 percent. Lee retained 45 percent of the MDL refund and refunded each of his 13 clients 1/13th of the remaining 55 percent.

When the case got to the Mississippi Supreme Court for the first time, the court upheld the plaintiff's victory in the trial court on the MDL fee. The Supreme Court said that the federal court required the MDL fee to be paid by attorneys and that Lee “erroneously had billed the MDL fee to his clients.”

During trial on remand, the jury found that Lee breached his 40 percent contingency fee contracts with his clients by charging them 45 percent. Still, the panel returned a verdict for Lee, finding that the plaintiffs had ratified a 45-percent fee by signing their settlements free from intimidation, coercion or fraud. Still, the trial judge determined that Lee owed plaintiff Thompson $420,000 and plaintiff Dixon $180,000 for the MDL fee.

During Lee's second appeal to the Mississippi Supreme Court, the court rejected Lee's arguments that the plaintiffs “fabricated that the original contingency-fee agreements provided for a 40-percent fee,” not a 45-percent fee as he claims. The plaintiffs contended at trial that Lee forged retainer agreements providing for a 45 percent fee.

An excerpted version of a piece I wrote for the Connecticut Law Tribune:

One of David Rosen's personal injury cases resolved for a confidential amount last fall. When he got the case, his offices were in New Haven, about 10 miles away from where plaintiff Brenda Adelson was living in Hamden.

But Adelson hadn't been hurt in Connecticut or even the continental United States. Her leg was severely crushed by a failing water tower in Mali, a landlocked Western country and a former French colony. Adelson's companion was killed.

Adelson was airlifted from Mali to Paris, then taken from Paris to Hartford, and then by helicopter to New Haven. Even though Adelson lost her left leg near the hip, doctors at Yale-New Haven Hospital saved her life, Rosen says.

In pursuing a lawsuit against the owners of the water tower, her lawyers traveled even further. Discovery was conducted in four countries on three continents, including Mali's capital of Bamako and Quebec City. Meanwhile, Rosen's associate, Hunter Smith, flew to Paris in just his third week on the job to participate in a deposition being taken in French. Smith grew up in Europe, and he learned French in school.

Adelson was in Mali as a volunteer for MBA Enterprise Corps, an organization that deploys recently graduated MBAs from U.S. business schools for long-term volunteer assignments in developing nations.

She went to a tiny village in Mali to view the newly constructed water tower at the invitation of Cristina Nardone, the local employee of a nonprofit group that supports sustainable tourism projects in developing countries and is funded by the U.S. Agency for International Development.

According to court papers, Nardone was the one who issued the purchase order for the construction of the water tower. She was also the one killed when the tower collapsed while it was being filled with water for the first time during Adelson's and her visit to the village. The builders of the tower were ultimately convicted in a Malian court of involuntary homicide, involuntary battery and violating Mali's construction law.

Rosen and Smith, along with their cocounsel and opposing counsel, traveled to Mali to take depositions for the civil lawsuit. The capital was in the last section of Mali that was still held by the government, which was trying to put down an Islamist rebellion with the help of the French.

The attorneys stayed in a nice hotel in Bamako, where there was a "very, very high level of security," Rosen said. Armed guards screened vehicles in the parking lot and guests in the hotel lobby.

When the lawyers asked a witness why he was willing to travel eight hours to the capital to give a deposition, Rosen said the witness explained that it was the Malian way to try to help someone if asked for assistance.

At one point, the plaintiffs team looked for a piece of rebar—concrete reinforced with steel rods—because the issue arose whether rebar had been used in the water tower. During a break, taken so the witnesses and the interpreters could go to Islamic Friday prayers, Smith said he went out onto the street and asked a complete stranger if he could help acquire rebar. Just like that he got assistance.