NO TS OMAR L. NELSON, ET AL. APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

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1 E-Filed Document Feb :09: CA Pages: 42 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO TS ANITA WHITE, ET AL. APPELLANTS v. OMAR L. NELSON, ET AL. APPELLEES APPEAL FROM THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI BRIEF OF APPELLEES OMAR L. NELSON AND OMAR L. NELSON, PLLC ORAL ARGUMENT NOT REQUESTED J. WILLIAM MANUEL (MBN 9891) MARY CLAY MORGAN (MBN ) KATHLEEN SHIELDS O BEIRNE (MBN ) BRADLEY ARANT BOULT CUMMINGS LLP One Jackson Place 188 East Capitol Street, Suite 400 Post Office Box 1789 Jackson, MS Telephone: (601) Facsimile: (601) Attorneys for Appellees Omar L. Nelson and Omar L. Nelson, PLLC 4/

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court may evaluate possible disqualification or recusal: 1. Anita White, Taurean Gardner and Rashaun Gardner, Plaintiffs/Appellants. 2. Gregory M. Johnston, Gregory M. Johnston Attorney at Law, P.C., counsel for Plaintiffs/Appellants. 3. Omar L. Nelson and Omar L. Nelson, PLLC, Defendants/Appellees. 4. James W. Manuel, Kathleen S. O Beirne, and Mary Clay W. Morgan, Bradley Arant Boult Cummings LLP, counsel for Defendants/Appellees. 5. Honorable John Emfinger, Circuit Court Judge. Respectfully submitted, this the 26th day of February, s/ Mary Clay W. Morgan Mary Clay W. Morgan (MS Bar No ) i

3 STATEMENT REGARDING ORAL ARGUMENT Appellees Omar L. Nelson and Omar L. Nelson, PLLC (collectively, the Nelson Defendants ) do not request oral argument, as this appeal involves no difficult or novel issues of fact or law, and oral argument would not assist the Court in its review of the trial court s decision. ii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i STATEMENT REGARDING ORAL ARGUMENT... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... v STATEMENT OF THE ISSUES... 1 INTRODUCTION... 2 STATEMENT OF THE CASE... 3 I. Nature of the Case and Course of Proceedings Below... 3 II. Statement of Relevant Facts... 6 A. Death of Zelda Gardner... 6 B. Anita White Consults with Omar Nelson at Sweet & Freese, but Sweet & Freese Rejects the Underlying Case... 6 C. Thompson & Associates Representation of Plaintiffs... 8 D. Nelson s Involvement in Underlying Case After Leaving Sweet & Freese E. Mediation and Settlement of Underlying Case F. Approval of Settlement of Underlying Case in Hinds County Chancery Court G. Evidence Regarding Reasonableness of the Underlying Settlement STANDARD OF REVIEW SUMMARY OF THE ARGUMENT ARGUMENT I. The Trial Court Correctly Denied Plaintiff s Motion for Judgment Notwithstanding the Verdict II. Plaintiffs Claims are Barred by Judicial Estoppel iii

5 III. The Trial Court Committed No Error in Denying Plaintiff s Motion for New Trial A. The Trial Court Properly Granted Summary Judgment to Nelson on All Legal Malpractice Claims Arising out of the Underlying Medical Malpractice Action B. The trial court properly excluded evidence of the medical malpractice case C. Because the Plaintiffs voluntarily dismissed their negligence-based claims, it was proper that the gross negligence and reckless disregard claims did not go to the jury CONCLUSION CERTIFICATE OF SERVICE iv

6 TABLE OF AUTHORITIES Cases Baker & McKenzie, LLP v. Evans, 123 So. 3d 387 (Miss. 2013) Bass v. Montgomery, 515 So.2d 1172 (Miss. 1987) BC s Heating & Air & Sheet Metal Works, Inc. v. Vermeer Mfg. Co., 892 F. Supp. 2d 779 (S.D. Miss. 2012) Brocato v. Mississippi Publishers Corp., 503 So. 2d 241 (Miss. 1987) Bruner v. Univ. of S.Miss., 501 So. 2d 1113 (Miss. 1987) Bush v. State, 895. So. 2d 836 (Miss. 2005) Channel v. Loyacono, 954 So. 2d 415 (Miss. 2007) Crist v. Loyacono, 65 So. 3d 837 (Miss. 2011)... 22, 23, 28, 29 Dockins v. Allred, 849 So. 2d 151 (Miss. 2003) Estate of St. Martin v. Hixson, 145 So. 3d 1124 (Miss. 2014) Fred s Stores of Tenn. Inc. v. Pratt, 67 So. 3d 820 (Miss. Ct. App. 2011) Goodwin v. Derryberry Co., 553 So. 2d 40 (Miss. 1989) Harris v. Payne, 254 Fed. App x, 410 (5th Cir. 2007) Hickox v. Holleman, 502 So.2d 626 (Miss.1987) Huynh v. Phillips, 95 So. 3d 1259 (Miss. 2012) v

7 Indemnity Ins. Co. of North America v. Guidant Mut. Ins. Co., 99 So. 3d 142 (Miss. 2012) Johnson v. St. Dominics-Jackson Mem l Hospital, 967 So. 2d 20 (Miss. 2007) Kirk v. Pope, 973 So. 2d 981 (Miss. 2007) Lascola v. Barden Miss. Gaming, LLC, 349 Fed. App x 878(5th Cir ) McCord v. Healthcare Recoveries, Inc., 960 So. 2d 399 (Miss. 2007) McKay v. Owens, 937 P.2d 1222 (Idaho 1997) McManus v. Howard, 569 So. 2d 1213 (Miss. 1990) Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So. 2d 358 (Miss. 2007)... 15, 16 New Hampshire v. Maine, 532 U.S. 742 (2001) Newell v. Hudson, 868 A.2d 1149 (N.J. Superior Ct. 2005)... 24, 25 Singleton v. Stegall, 580 So. 2d 1242 (Miss. 1991) Smith ex rel. Smith v. Gilmore Mem'l Hosp., Inc., 952 So.2d 177 (Miss. 2007) Sneed v. Ford Motor Co., 735 So. 2d 306 (Miss 1999) Tamburelli Props. v. Cresskill, 705 A.2d 1270 (N.J. Superior Ct. 1998) Vogel v. Touhey 828 A.2d 288 (Md. Ct. Special App. 2003) Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205 (Miss. 1996)... 22, 29, 30 vi

8 Wilson v. City of Biloxi, No. 1:11cv126, 2013 WL (S.D. Miss. May 21, 2013) vii

9 STATEMENT OF THE ISSUES The following issues are presented in this appeal: 1. Whether the jury s verdict in the Nelson Defendants favor should be disturbed, when the Plaintiffs claim the Nelson Defendants committed fraud and legal malpractice in the settlement of the underlying products liability case because another lawyer could have obtained a higher settlement, but the Nelson Defendants presented substantial evidence that (a) the Plaintiffs knew who their lawyers were, (b) the Plaintiffs were informed of the risks of pursuing the underlying case to trial, (c) the Plaintiffs accepted a fair and reasonable settlement in exchange for dismissing the underlying case, and (d) Plaintiff Anita White testified under oath that the settlement of the underlying case was fair and reasonable in order to obtain the approval of the Hinds County Chancery Court. 2. Whether the judgment in the Nelson Defendants favor is supported by the alternate sustaining ground of judicial estoppel, when Plaintiff Anita White testified under oath that the settlement was fair and reasonable and her lawyers had represented her well in order to obtain chancery court approval of the settlement, even though she claims she did not believe her own testimony at the time of the chancery court hearing. 3. Whether the trial court erred in granting partial summary judgment to the Nelson Defendants on Plaintiffs legal malpractice claims arising out of an underlying medical malpractice claim and excluding evidence of those claims at trial, where Plaintiffs failed to present expert testimony proving that the underlying medical malpractice case would have been successful but for any alleged actions of the Nelson Defendants. 4. Whether the trial court erred in denying Plaintiffs proposed jury instructions regarding gross negligence and reckless disregard, when Plaintiffs had voluntarily dismissed all negligence-based claims prior to trial. 1

10 INTRODUCTION In this legal malpractice case, Plaintiffs sought to recover against their former attorneys after becoming dissatisfied with the settlement they accepted in the underlying case. Although they voluntarily accepted a sizeable settlement, they claim that they could have gotten an even higher settlement if they had been represented by attorney Dennis Sweet instead of the Nelson Defendants. Plaintiffs claims suffer from significant legal deficiencies. Their claims at trial were wholly inconsistent with the representations they made, under oath, to the Hinds County Chancery Court in order to obtain court approval of the settlement. Thus, their claims should be barred by judicial estoppel. Further, Plaintiffs presented no proof that they would have prevailed in the underlying case, or even that they would have received a higher settlement if they had been represented by a different attorney. Despite these issues, the trial court allowed Plaintiffs to present their case to a jury. The jury heard evidence that Plaintiffs were well aware that Dennis Sweet had rejected their case and that they were represented by other lawyers. The evidence at trial showed that the underlying case was weak, and that the defendant in that case likely could have won a motion for summary judgment. The evidence showed that Plaintiffs knew the risks associated with pursuing the underlying case, and chose to settle the case for a fair amount to avoid those risks. Further, the evidence showed that the Chancery Court of Hinds County approved the settlement based on testimony from Plaintiff Anita White that the settlement was fair and reasonable, and that her attorneys had represented her well in negotiating the settlement. 2

11 After hearing the evidence at trial, the jury rejected Plaintiffs claims and returned a verdict for the Nelson Defendants on all claims. The jury s verdict is supported by more than sufficient evidence, and the trial court committed no reversible error. STATEMENT OF THE CASE I. Nature of the Case and Course of Proceedings Below Plaintiffs are the wrongful death beneficiaries of Zelda Gardner, who died in May 2003 after being administered the drug Plavix. Plaintiffs filed this legal malpractice action on April 14, 2008, against Defendants Omar L. Nelson, Omar L. Nelson, PLLC, Winston J. Thompson, III, Thompson & Associates, PLLC, Law Office of Winston J. Thompson, III, Thompson, Smith & Nelson, T. Murry Whalen, and Nichon Shannon. R Plaintiffs claimed that the defendants committed fraud and legal malpractice relating to Plaintiffs wrongful death case against the manufacturers of the drug Plavix. R. 23. They alleged the defendants diverted the products liability case away from the law firm of Sweet & Freese, then settled the case for an unreasonable amount. R Plaintiffs original complaint asserted claims of tortious interference with a business and contractual relationship, fraudulent misrepresentation, legal malpractice based on breach of the duty of care, and gross negligence, reckless disregard, intentional conduct. R On August 14, 2009, the Nelson Defendants filed a motion to dismiss the complaint, or in the alternative for summary judgment. R The trial court granted the Nelson Defendants 1 The Clerk s papers are cited R., and the supplement to the Clerk s papers is cited Supp. R.. The trial transcript is cited T.. The parties agreed trial exhibits are cited Ex.. 3

12 motion in part on November 30, 2009, dismissing with prejudice Plaintiffs claim for tortious interference with business or contractual relations. R On April 7, 2011, Plaintiffs filed an amended complaint against only Omar L. Nelson, Omar L. Nelson, PLLC, Winston J. Thompson, III, Thompson & Associates, PLLC, and the Law Office of Winston J. Thompson, III. R In their amended complaint, Plaintiffs again asserted claims for fraudulent misrepresentation, legal malpractice based on a negligent breach of the duty of care, and gross negligence, reckless disregard, intentional conduct. R Plaintiffs claimed that the defendants negligently handled both the underlying products liability case against the manufacturers of Plavix and a separate medical malpractice claim against Ms. Gardner s treating physicians. R On February 13, 2012, the Nelson Defendants again moved for summary judgment on the claims in Plaintiffs amended complaint. R The Nelson Defendants argued, in part, that Plaintiffs legal malpractice claims based on the underlying medical malpractice claim must be dismissed because Plaintiffs had presented no expert testimony that Ms. Gardner s treating physicians had breached the standard of care. Supp. R ; R Absent this evidence, the Nelson Defendants argued, Plaintiffs could not prove that they would have prevailed in the underlying medical malpractice claim, and therefore they could not prove they had suffered damages in their legal malpractice claim. Id. On April 13, 2012, the trial court granted the Nelson defendants motion as to Plaintiffs underlying medical malpractice claim. R The trial court stated: [F]or the plaintiffs to recover for negligence-based legal malpractice or for legal malpractice based upon an allegation of breach of fiduciary duty, the Plaintiff must show that such action was the proximate cause of Plaintiffs injury. In this case, the Plaintiffs have not alleged any special damages that they may have suffered. Instead, they allege that the damage they suffered was the failure to successfully prosecute their claims against these state court [medical malpractice] 4

13 R defendants. That is the essence of the negligence-based legal malpractice claim. Accordingly, this Court must apply the trial-within-a-trial test to determine whether the Plaintiffs can survive summary judgment as to the issue of proximate cause. No affidavit from a medical expert has been presented to the Court on the issue of medical malpractice for the breach of a standard of care as required to establish this claim. On July 31, 2013, Plaintiffs filed a motion to voluntarily dismiss their legal malpractice claims based on allegations that the Nelson Defendants negligently breached the standard of care. R In their motion, Plaintiffs acknowledged that, in order to prevail on a negligencebased legal malpractice claim, they must establish proximate cause by the trial-within-a-trial test, by proving that but for the Nelson Defendants actions, they would have won the underlying case at trial. R In order to avoid this burden, Plaintiffs voluntarily dismissed their negligence-based legal malpractice claims. R Instead, Plaintiffs chose to pursue only their claims that the Nelson Defendants had committed legal malpractice by breaching a fiduciary duty to Plaintiffs. R On September 4, 2013, the trial court granted Plaintiffs motion and dismissed all negligence-based legal malpractice claims. R On September 10, 2013, the case proceeded to trial against the Nelson Defendants 2 on Plaintiffs remaining claims: fraudulent misrepresentation and legal malpractice based on breach of a fiduciary duty. Tr After a four-day trial, the jury returned a verdict for the Nelson Defendants on all counts. Tr. 1128, R Prior to trial, Plaintiffs took a default judgment against Winston J. Thompson, III, Thompson & Associates, PLLC, and the Law Office of Winston J. Thompson, III. R Thus, the Nelson Defendants were the only defendants remaining at the time of trial. 5

14 Plaintiffs filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. R The trial court denied Plaintiffs motion, and Plaintiffs filed this appeal. R. 3144, II. Statement of Relevant Facts A. Death of Zelda Gardner Zelda Gardner died at Central Mississippi Medical Center in May Ex. 39. Ms. Gardner died of thrombotic thrombocytopenic purpura ( TTP ), a rare but well-known side effect of the drug Plavix. Tr. 352; Ex. 39 (autopsy report stating that Ms. Gardner s manner of death was [c]onsistent with Accident secondary to Plavix administration producing [TTP] ). The warning label for Plavix specifically states that TTP is a potential adverse side effect of the drug. The drug information provided by the manufacturer states: Ex. 45. WARNINGS Thrombotic thrombocytopenic purpura (TTP): TTP has been reported rarely following use of PLAVIX, sometimes after short exposure (<2 weeks). TTP is a serious condition requiring prompt treatment.... TTP was not seen during clopidogrel s clinical trials, which included over 17,500 clopidogrel-treated patients. In world-wide postmarketing experience, however, TTP has been reported at a rate of about four cases per million patients exposed, or about 11 cases per million patient-years. The background rate is thought to be about four cases per million person-years. B. Anita White Consults with Omar Nelson at Sweet & Freese, but Sweet & Freese Rejects the Underlying Case After Ms. Gardner s death, her sister Plaintiff Anita White went to the offices of Sweet & Freese seeking legal representation for any claims she might have arising out of her sister s death. Tr There she met Omar Nelson, an associate at Sweet & Freese, and discussed with him the circumstances surrounding her sister s death. Tr

15 Mr. Nelson reviewed Ms. Gardner s medical records, researched FDA consumer and physician complaints regarding Plavix, and researched the Plavix warning label. Tr He then consulted an expert, Dr. Charles Bennett, who had published an article regarding Plavix in the New England Journal of Medicine, to determine the possible merits of any claims Plaintiffs may have. Tr. 351, Ex. 27. Dr. Bennett concluded that he could not testify against the treating physician but would testify against the drug makers. Tr Dr. Bennett informed Nelson that he could not give an opinion that Ms. Gardner s treating physicians had been negligent, because the doctors had given Ms. Gardner the appropriate dose of Plavix and had acted in accordance with the standard of care. Tr Nelson then discussed the case with Rich Freese, the managing partner of Sweet & Freese, and the partner who was assigned to Plaintiffs file. Tr , 360. At that time, Dennis Sweet was out of the office frequently because he was involved in an FBI investigation due to his involvement with a Fen-Phen settlement. Tr. 357, 392, Nelson informed Freese that Dr. Bennett was willing to offer expert testimony against the drug manufacturer, but not the treating physicians. Tr Without expert testimony to support a claim against the treating physicians, Plaintiffs could not pursue a medical malpractice claim against the physicians. Tr Because the Mississippi-resident treating physicians would not be a party to any lawsuit, and the case would likely be removed to federal court, Rich Freese instructed Nelson to reject the case. Tr. 357, Freese told Nelson that he didn t want to litigate the case in federal court due to the costs associated with pursuing the case and the significant risk of losing the case based on the content of the drug s warning label. Tr. 357, 396. Nelson informed White by phone that Sweet & Freese was rejecting her case because of the costs that would be associated with bringing the case in federal court. Tr , 361; 395-7

16 96, On October 6, 2004, Nelson also sent White a letter, via certified mail, informing her that Sweet & Freese could not take her case. Tr , 397; Ex. 28. When Nelson called White to inform her that Sweet & Freese was rejecting her case, he advised her that she may want to get a second opinion from another lawyer. Tr Nelson gave White the names of several lawyers, including Winston Thompson. Tr Nelson did not tell White to hire Winston Thompson or any other lawyer. Tr He had no professional connection to Thompson & Associates at that time and had no plans to remain involved in Plaintiffs case if Thompson & Associates took the case. Tr After rejecting Plaintiffs case, Nelson continued to work as an associate at Sweet & Freese for another nine months. Tr In July 2005, Nelson resigned from Sweet & Freese to start his own law practice. Tr From October 2004, when Sweet & Freese rejected Plaintiffs case, until July 2005, when he started his own law practice, Nelson had no conversations with either Anita White or Winston Thompson regarding Plaintiffs case, saw no documents concerning Plaintiffs case, and did no work on Plaintiffs case. 3 Tr. 398, 401. C. Thompson & Associates Representation of Plaintiffs On April 27, 2005, White signed a retainer agreement with Thompson & Associates to represent her sister s heirs in bringing any claims arising from her sister s death. Tr. 863, Ex. 15. The retainer agreement clearly states: I, Anita D. White, Client, do hereby retain and employ 3 After filing the pharmaceutical litigation and the medical malpractice action, Thompson & Associates filed a Petition to Determine Wrongful Death Beneficiaries of Zelda Gardner in July Ex. 38, Tr Thompson & Associates s office mistakenly listed Omar Nelson of Sweet & Freese as Of Counsel on the Petition; however, at the time the petition was filed, Omar Nelson was no longer employed at Sweet & Freese. Tr The same also mistakenly appeared on the Decree Granting Petition for Appointment of Administratrix and Letters of Administration, which Thompson s office drafted. Tr Nelson did not draft these documents. Thompson & Associates listed Nelson as counsel in error, and without Nelson s knowledge. Tr

17 Thompson & Associates, PLLC, to render legal advice and services, and to prosecute all claims for all injuries and damages sustained by me... Ex. 15. The retainer agreement contains no mention of Nelson or of Sweet & Freese, and White never signed a retainer agreement with Nelson or Sweet & Freese. Ex. 15; Tr. 388, 404. In April 2005, Thompson & Associates, through associate T. Murry Whalen, filed suit against the makers of Plavix in a complaint styled, Anita White, individually, on behalf of Rashaun D. Gardner (minor) Wrongful Death Beneficiary of Zelda Gardner and Taurean J. Gardner, individually, a Wrongful Death Beneficiary of Zelda Gardner v. Bristol-Myers Squibb Company, Sanofi-Synthelabo, and John Does 1-5, civil action number 3:05-cv-267TSL-HGN, in the United States District Court for the Southern District of Mississippi. Ex. 40. The complaint alleged that the makers of Plavix failed to warn of the dangers associated with the drug. Ex. 40 at 66 (alleging that Plavix was defective and unreasonably dangerous because Defendant Manufacturers Bristol-Myers and Sanofi failed to warn either Ms. Gardner or the medical community of its propensity to induce TTP, leading to death. ). The complaint lists only Thompson & Associates as Plaintiffs attorneys; neither Dennis Sweet nor Omar Nelson is listed as attorney for Plaintiffs. Ex 40; Tr. 405, 866. Nelson was not involved in drafting or filing the complaint. Tr Whalen, on behalf of Thompson & Associates, had numerous phone conversations and meetings with Anita White to gather necessary information to prosecute the underlying case. Ex. 12, 13, 14, 18, 19, 20, 21. All of Thompson & Associates correspondence with Plaintiffs clearly discloses that Thompson & Associates is the firm representing Plaintiffs, not Sweet & Freese. Ex. 22, 23, 24. 9

18 D. Nelson s Involvement in Underlying Case After Leaving Sweet & Freese After Nelson started his own law practice in July 2005, Winston Thompson of Thompson & Associates asked Nelson to assist him with several cases, including Plaintiffs case. Tr Thompson brought Nelson a binder of information regarding Plaintiffs case. Tr Nelson was surprised to see Plaintiffs case again, as it had been over nine months since he had rejected the case on behalf of Sweet & Freese. Tr Nelson attended a hearing in Hinds County Chancery Court on Plaintiffs behalf in August Tr. 407, Ex. 37. Anita White was present for the chancery court hearing. Tr At the hearing, Nelson informed White that he was no longer practicing with Sweet & Freese, and that he had started his own law practice. Tr White did not ask Nelson whether Dennis Sweet was involved in her case. Tr. 406, 408. In December 2005, Nelson and Winston Thompson participated in the telephonic case management conference before the federal magistrate in the case. Tr Then, in January 2006, counsel for Bristol-Myers requested that Nelson and Thompson participate in a meeting regarding potential early settlement of the case. Tr. 411, Ex. 4. E. Mediation and Settlement of Underlying Case In preparation for the mediation, Thompson discussed the upcoming meeting with Anita White; Nelson did not talk to White prior to the mediation. Tr Because White had a conflict, she participated in the mediation by phone instead of attending in person. Tr On February 22, 2006, Nelson traveled to Atlanta with Winston Thompson to participate in mediation with representatives of Bristol-Myers. Tr. 375, 411. At the beginning of the meeting, both sides made opening statements regarding their respective positions on the case. Tr At the time of the mediation, Nelson believed that the strengths of Plaintiffs case 10

19 were that Ms. Gardner was deceased and that her medical records clearly stated that the cause of her death was TTP due to the administration of Plavix. Tr However, he recognized that the biggest weakness in the case was that the manufacturer s warning label specifically stated that death caused by TTP was a possible adverse side effect of the drug, making it difficult to argue that the manufacturer had failed to warn Ms. Gardner and her physicians of harmful side effects. Tr After opening statements, the parties went into separate conference rooms and began exchanging settlement numbers. Tr The mediation lasted a full day. Tr. 376, 413, 417. Throughout the day, both Nelson and Thompson made numerous phone calls to White regarding the settlement offers from Bristol-Myers. Tr. 376, Each time Bristol-Myers made a settlement offer, Nelson and Thompson called White to inform her of the offer and discussed with her whether or not she should accept it. Tr During the mediation, Nelson specifically informed White of the danger that they could lose the case based on the drug s warning label. Tr White turned down numerous settlement offers from Bristol Myers throughout the day. Tr The settlement discussions concluded when White accepted a settlement offer of $280, Tr Nelson recommended that White accept the offer of $280, because of the risk that a judge would grant summary judgment to Bristol-Myers. Tr. 376, 418. In light of the weaknesses in their failure to warn claim, Nelson did not want Plaintiffs to turn down the offer of $280, and risk Ms. Gardner s children getting nothing. Tr. 376, White admitted it was her decision whether to accept the settlement offer, and that she had turned down numerous lower offers. Tr In fact, White testified that it was her aunt not Thompson or Nelson who convinced her to take the $280, offer. Tr

20 White admitted that no one ever told her that Dennis Sweet had approved the settlement. Tr F. Approval of Settlement of Underlying Case in Hinds County Chancery Court Because Ms. Gardner s wrongful death heirs were her two minor children, the settlement White agreed to at the mediation could not be finalized without the approval of the Hinds County Chancery Court. Tr On March 29, 2006, White executed a sworn petition to settle the case on behalf of her nephews for $280, Ex. 41. In the petition, White stated under oath that the proposed settlement was a fair and reasonable settlement and that acceptance of this settlement is in the best interest of the minors. Ex. 41 at 6. White testified that, before the hearing in chancery court to approve the settlement, she felt that her attorneys had not litigated the case properly. Tr White requested an opportunity to discuss the settlement with the chancellor, Judge Patricia Wise; Judge Wise agreed to meet with White and her attorneys in chambers prior to the hearing. Tr White told Judge Wise that she wasn t feeling comfortable with her attorneys. In response, Judge Wise gave White the opportunity to get other lawyers, but White chose not to do so. Tr White testified that she was uncomfortable with her attorneys because she thought that she could have gotten a better result if Dennis Sweet had worked on her case instead of Omar Nelson and Winston Thompson: Q. But you felt at that time that your lawyers had not represented you adequately? A. Correct. That would be correct. Q. And you thought that if Mr. Nelson and Mr. Thompson had done more work on your case, more investigation in your case, you could have gotten a better result? 12

21 Tr A. I thought that if Dennis Sweet worked on my case that I would have gotten a better result. Q. And you thought that at the time of the hearing? A. Yes, ma am. I thought that at the time of the hearing. Despite her alleged misgivings, White testified under oath at the chancery court hearing that the settlement amount of $280, was fair and reasonable in light of the uncertainties of litigation. Ex. 11 at 7: She further testified that she felt her attorneys had done a good job in representing her and should be compensated reasonably. Ex 11 at 7: Based on White s sworn petition and her testimony at the hearing, the chancellor found the settlement to be fair and reasonable and entered an order approving it. Ex. 42. Following the chancery court s approval, White signed a notarized release and settlement agreement memorializing the settlement of the underlying case for $280, on behalf of her nephews. Ex. 8. Bristol-Myers sent a check for $280,000.00, made payable to White and Winston Thompson, which was cashed and ultimately placed into a trust for White s nephews. Ex. 9. Nelson received no compensation for his role in representing Plaintiffs in the underlying litigation. Tr , 427. The chancellor approved a payment of $112, in attorney s fees to Thompson & Associates. Tr Thompson & Associates did not share its fees with Nelson. Tr After the hearing to approve the settlement, Nelson heard nothing further from White until he was served with the complaint in this case. Tr G. Evidence Regarding Reasonableness of the Underlying Settlement At trial, Nelson offered the expert testimony of Walter Morrison regarding the reasonableness of the settlement Plaintiffs accepted in the underlying case. Tr Mr. Morrison testified that, because the warning label of Plavix specifically warned that Plavix could 13

22 cause TTP, and Ms. Gardner died of TTP, there was a good chance the judge in the underlying case would have granted summary judgment to the defendant. Tr , , He testified that, given the high risk that Plaintiffs could have received nothing in the underlying pharmaceutical case, the settlement of $280, was a very favorable settlement for the Plaintiffs. Tr Plaintiffs, on the other hand, offered no proof that, if they had not agreed to settle the underlying case for $280,000.00, they would have prevailed at the trial of the case. Moreover, Plaintiffs presented no proof of a different settlement amount that Dennis Sweet or any other lawyer could have negotiated on their behalf. Instead, Plaintiffs presented the expert deposition testimony of Rich Freese, the former managing partner of Sweet & Freese who instructed Omar Nelson to turn down Plaintiffs case. Tr , Mr. Freese testified to a reasonable degree of legal certainty that if he and Dennis Sweet had handled the case instead of Omar Nelson and Winston Thompson, he feel[s] certain that Dennis and [he] could have achieved a substantially better result than what was achieved here. Pl. Ex. 3 (ID) at 166: He calculated the possible damages that he believes Plaintiffs could have ultimately recovered in a jury verdict at trial as $3,000, to $4,000,000.00, and then testified that the same amount was also probably a pretty fair number for settlement. Pl. Ex. 3 (ID) at 106:21-107:3. Plaintiffs offered no other evidence at trial regarding the amount that another lawyer could have obtained to settle the underlying case. 4 Mr. Freese did not testify live at trial. Instead, Plaintiffs read his deposition testimony into the record. The transcript of Mr. Freese s deposition, marked with redactions that were not read at trial, is marked for identification as Plaintiffs Exhibit 3. Citations to Mr. Freese s testimony are cited herein as Pl. Ex. 3 (ID) at 14

23 Despite his expert opinion that he and Dennis Sweet could have gotten Plaintiffs a higher settlement, Mr. Freese testified that he would never guarantee a client that he could get a verdict or a settlement in any certain amount. Pl. Ex. 3 (ID) at 18:4-14. And he testified that, in his own practice, he has settled cases for less than they were worth: because we always tend to think our cases are more valuable than they may necessarily be. There s so many factors that go into that decision. A settlement by definition is one where both the defendant and the plaintiff walk out of the room equally unhappy. Pl. Ex 3 (ID) at 22: Further, Freese stated that when his clients are considering a defendant s settlement offer, he always tells them that we could either win a significantly larger amount than they are offering, or we could win zero and the case could end up being worth nothing. So that s why you have settlements, because there is uncertainty in what the result would be. Pl. Ex. 3 (ID) at 26:25-27:5. STANDARD OF REVIEW Plaintiff s appeal seeks a judgment notwithstanding the verdict or a new trial based on the weight of the evidence and the trial court s evidentiary rulings. A motion for JNOV tests the legal sufficiency of the evidence supporting the verdict. Goodwin v. Derryberry Co., 553 So. 2d 40, 42 (Miss. 1989). When reviewing a trial court s denial of a motion for JNOV, the Court considers the evidence in the light most favorable to the party against whom the motion has been made, disregarding any evidence on the part of the movant which is conflicting. Fred s Stores of Tenn. Inc. v. Pratt, 67 So. 3d 820, 824 (Miss. Ct. App. 2011). A JNOV is not proper if there is credible evidence from which to draw reasonable inferences supporting the jury s verdict. Id. (quoting Bruner v. Univ. of S.Miss., 501 So. 2d 1113, 1116 (Miss. 1987)). If, after giving all favorable inferences to the nonmoving party, the facts point so overwhelmingly in favor of the party requesting the JNOV that reasonable persons could not have arrived at a 15

24 contrary verdict, the Court will reverse and render. Baker & McKenzie, LLP v. Evans, 123 So. 3d 387 (Miss. 2013) (quoting Natchez Elec. & Supply Co., Inc. v. Johnson, 968 So. 2d 358, 361 (Miss. 2007). But if there is substantial evidence supporting the verdict, the Court must affirm the denial of the JNOV. Id. Substantial evidence is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. Id. In reviewing the trial court s denial of Plaintiffs JNOV motion, the Court is not limited to the grounds on which the trial court based its decision. Brocato v. Mississippi Publishers Corp., 503 So. 2d 241, 244 (Miss. 1987) ( Defendants on appeal are, however, entitled to raise any alternative ground based on the pleadings in the court below which would support the judgment here. ). Rather, [a]n appellee is entitled to argue and rely upon any ground sufficient to sustain the judgment below." Hickox v. Holleman, 502 So.2d 626, 635 (Miss.1987). A motion for a new trial challenges the weight of the evidence. Bush v. State, 895. So. 2d 836, 844 (Miss. 2005). The standard of review on a motion for a new trial is abuse of discretion. Johnson v. St. Dominics-Jackson Mem l Hospital, 967 So. 2d 20, 23 (Miss. 2007). A jury s verdict is given great deference and conflicts of evidence presented at trial are to be resolved by the jury. Id. When reviewing a trial court s denial of a motion for new trial based on the weight of the evidence, this Court will disturb a jury s verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id. To amount to an unconscionable injustice, a verdict must shock the conscience or rest on a complete lack of evidence. Id. In making this determination, the Court weighs the evidence in the light most favorable to the verdict. Bush, 895 So. 2d at

25 SUMMARY OF THE ARGUMENT The jury s verdict in the Nelson Defendants favor was supported by abundant evidence. The Nelson Defendants presented proof that they committed no fraud and breached no fiduciary duty to Plaintiffs. The evidence at trial proved that Omar Nelson informed Anita White, as guardian of the minor children, that neither Dennis Sweet nor the firm of Sweet and Freese would be representing her. The evidence proved that White was fully aware that the firm of Thompson and Associates was representing Plaintiffs instead. And above all else, the Nelson Defendants presented abundant proof that the settlement Plaintiffs received was fair and reasonable, in light of the risk that Plaintiffs could have lost the underlying case on summary judgment. Plaintiffs, on the other hand, presented no evidence beyond rank speculation that, if they had been represented by Dennis Sweet instead of the Nelson Defendants, they could have received a higher settlement. The Nelson Defendants presented substantial evidence at trial that supports the jury s verdict in their favor, and the trial court properly denied Plaintiffs motion for judgment notwithstanding the verdict and motion for new trial. Further, the lower court s judgment in the Nelson Defendants favor is supported by alternate sustaining grounds. In order to obtain chancery court approval of the underlying settlement, White testified, under oath, that the settlement amount was fair and reasonable and that her attorneys had represented her well. She offered this testimony in support of the settlement, even though she says that at the time of the chancery court hearing, she was not happy with her lawyers and she believed that Dennis Sweet could have done a better job if he had represented her. In this legal malpractice case, Plaintiffs claim the exact opposite. Plaintiffs now claim that the settlement was not fair and reasonable, and that White only accepted it 17

26 because the Nelson Defendants fraudulently led her to believe that Dennis Sweet was involved in the case. Plaintiffs position in this case directly contradicts the position they took at the chancery court hearing in order to obtain approval of the settlement funds. Moreover, allowing Plaintiffs to benefit from the fairly negotiated settlement, then later sue their attorney based on speculation that another lawyer could have gotten them a higher settlement, would severely undermine this state s public policy favoring the settlement of disputes. Therefore, Plaintiffs claims should be barred by the doctrine of judicial estoppel, even if the Court finds the jury s verdict should be reversed on other grounds. Plaintiffs remaining arguments in support of their motion for new trial are without merit. They claim the trial court erred in granting summary judgment to the Nelson Defendants on their claim of legal malpractice arising out of the underlying medical malpractice claim against Ms. Gardner s treating physicians. However, Plaintiffs offered no expert testimony to prove that, but for any alleged actions by the Nelson Defendants, they would have prevailed in the medical malpractice claim. Without this essential proof, they could not prove they suffered any damages as a result of the Nelson Defendants involvement in the medical malpractice case. The trial court properly granted summary judgment on this claim and excluded any evidence regarding the medical malpractice claim at trial. Finally, the trial court properly rejected Plaintiffs proposed jury instructions regarding gross negligence and reckless disregard. Prior to trial, Plaintiffs voluntarily dismissed all negligence-based malpractice claims, acknowledging that they were unable to present proof that Plaintiffs would have prevailed at trial in the underlying case against the manufacturers of Plavix. When Plaintiffs voluntarily dismissed their negligence claims, they necessarily dismissed their claims of gross negligence and reckless disregard. 18

27 For these reasons, the trial court committed no error in denying Plaintiffs motion for judgment notwithstanding the verdict or, in the alternative, for new trial. ARGUMENT I. The Trial Court Correctly Denied Plaintiff s Motion for Judgment Notwithstanding the Verdict. In support of their argument that the trial court erred in denying their JNOV motion, Plaintiffs present a list of facts in support of their claims. Plaintiffs fail to explain how the facts they cite are legally sufficient to support a claim for fraud or breach of fiduciary duty. To recover for fraud, Plaintiffs were required to prove the following: a representation, its falsity, its materiality, the speaker s knowledge of its falsity or ignorance of its truth, his intent that it should be acted on by the hearer and in the manner reasonably contemplated, the hearer s ignorance of its falsity, his reliance on its truth, his right to rely thereon, and his consequent and proximate injury. McCord v. Healthcare Recoveries, Inc., 960 So. 2d 399 (Miss. 2007). And to establish a legal malpractice claim based on breach of a fiduciary duty, Plaintiffs had to present proof of (1) the existence of an attorney-client relationship; (2) the acts constituting a violation of the attorney s fiduciary duty; (3) that the breach proximately caused the injury; and (4) the fact and the extent of the injury. Estate of St. Martin v. Hixson, 145 So. 3d 1124, 1129 (Miss. 2014). Plaintiffs list of facts fails to establish these elements. They point to no proof that they reasonably relied on any representation by the Nelson Defendants to their detriment, and no proof that any alleged breach of the duty of loyalty proximately caused them any injury. But in any event, in reviewing Plaintiffs motion, the Court must view all of the facts in the light most favorable to the Nelson Defendants. Viewing the evidence as a whole, ample proof supports the jury s verdict. The facts show the following: 19

28 1. After White met with Nelson at Sweet & Freese, Nelson reviewed Ms. Gardner s medical records, researched the drug Plavix, and consulted Dr. Bennett, an expert who had published articles regarding Plavix. Tr. 351, After performing this research, Nelson met with Rich Freese, the partner at Sweet & Freese assigned to the case. Freese instructed Nelson to reject the case. Tr , 360, Nelson called White to tell her Sweet & Freese was rejecting the case, and then sent her a letter by certified mail informing her that Sweet & Freese was rejecting the case. Tr. 361, , ; Ex. 28. Thus, to the extent White claims she believed Dennis Sweet was still involved in Plaintiffs case, that belief was unreasonable. 4. When Nelson gave Winston Thompson s name to White as a potential lawyer who may take her case, Nelson had no professional connection with Thompson & Associates and had no plans to remain involved in the case. Tr White signed a retainer agreement with Thompson & Associates, which clearly informed her that only Thompson & Associates, and not Sweet & Freese or Dennis Sweet, were representing her. Tr. 863; Ex Nelson had no involvement with Plaintiffs case until after he left Sweet & Freese to start his own practice. Tr. 398, The underlying failure to warn case against the manufacturer of Plavix was weak. Tr , The drug s warning label specifically warned of the risk of TTP, the condition that caused the decedent s death. Ex During the mediation, both Nelson and Thompson informed White of the risk that the defendant could win summary judgment on the failure to warn claim, and her nephews would receive nothing. Tr White was fully informed of the risks of proceeding with the case, and she made the decision to accept the settlement offer of $280,000.00, after rejecting several lower settlement offers. Tr. 418, White testified that the settlement was fair and reasonable, and that her attorneys had represented her well, in order to obtain chancery court approval of the settlement. Ex At the time White testified in chancery court that the settlement was fair and reasonable, she knew that Dennis Sweet was not involved in the case, and she already believed that if Sweet had been involved, he could have obtained a higher settlement for her. Tr

29 These facts prove that the Nelson Defendants made no fraudulent misrepresentations to Plaintiffs on which Plaintiffs relied to their detriment, and breached no fiduciary duties in handling Plaintiffs case. This evidence is more than sufficient to support the jury s verdict in the Nelson Defendants favor. The most glaring omission in Plaintiffs litany of facts they claim supports a JNOV is any proof that the Nelson Defendants actions proximately caused them a defined injury. To prevail against the Nelson Defendants under any legal theory, the Plaintiffs were required to prove they suffered damages. Here, there simply was no proof, beyond unsubstantiated speculation, of what amount the Plaintiffs would have obtained in settlement of their claims against Bristol-Myers in the absence of the Nelson defendants alleged malpractice and fraud. The Plaintiffs only proof regarding damages came from Richard Freese, who testified generally that he believes the Plaintiffs could have recovered $3 million to 4 million dollars in a jury verdict at trial, and that the same amount is probably a pretty fair number for settlement. Pl. Ex. 3 (ID) at 106:21-107:3. Freese explained the basis for his opinion as follows: Q: I think what I m trying to get you to explain to me is how you reached the three to four million number. A: 26 years of experience and trying a lot of cases in Mississippi and trying cases in Hinds County and seeing what kinds of damage awards were awarded pre tort reform in Mississippi in this type of case. Pl. Ex. 3 (ID) at 108: Freese s speculative testimony the case s value was based on a possible jury verdict. Obviously, given the risks of litigation, settlement values are generally much lower than the highest number a plaintiff could potentially receive at trial. Freese offered no testimony of what a reasonable settlement would have been, taking into account the costs associated with litigation, the risk of losing the case at summary judgment, and the uncertainty of pursuing a case to trial. 21

30 Further, Freese was able to point to no other verdicts or settlements in Plavix cases to lend credence to his proposed valuation of the case. With no other legitimate basis for his opinion on the settlement the Plaintiffs would have received in the absence of Nelson s alleged misdeeds, Freese s testimony was nothing more than speculation. Thus, Plaintiffs provided no proof for a reasonable jury to find in their favor on the elements of causation and damages under any legal theory. In Bass v. Montgomery, 515 So.2d 1172, 1174 (Miss. 1987), the court looked at the requirement of proximate cause in legal malpractice actions and stressed that there is no liability unless it appears that if the action had been properly prosecuted or defended, the client would have been successful. In Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1217 (Miss. 1996), the court held that there must be proof of a causal connection between a lawyer s conduct and any claimed damages. Specifically, with regard to a claim for a breach of fiduciary duty, the court noted that a Plaintiff must show that the breach was a proximate cause of the injury. Id. Plaintiffs contend that, because their malpractice claims at trial were based on fraud and breach of fiduciary duty, not negligence, they were not required to prove they would have prevailed in the underlying case to prove causation and damages. See Brief of Appellants at 23. Plaintiffs base this contention on the case of Crist v. Loyacono, 65 So. 3d 837 (Miss. 2011). In Crist, the court held that the plaintiffs breach of fiduciary duty claims against their lawyers survived summary judgment, even in the absence of proof that they would have won the underlying Fen-Phen lawsuit at trial. Significantly, the Crist plaintiffs alleged that, but for the breach of fiduciary duty of the defendant lawyers, the plaintiffs would have been a part of a much larger settlement arranged by their other lawyer, Morgan, and therefore would have obtained settlements higher than that negotiated by the defendants. Id. at 840 n.1 (citing facts 22

31 from Channel v. Loyacono, 954 So. 2d 415 (Miss. 2007)). Illustrating the reason proof of success in the trial of the underlying case was not necessary to support the Crist plaintiffs breach of fiduciary duty legal malpractice claim, the court gave the example of an attorney who fails to timely negotiate the settlement check on a doubtful claim. Id. at 843. In keeping with the court s admonition in both Crist and Singleton v. Stegall that proof of proximate cause is to be tailored to the injury the client claims and the remedy he elects, the court explained that under such circumstances, proof of success in the underlying trial was unnecessary. Id. at 842 (citing Singleton v. Stegall, 580 So. 2d 1242 (Miss. 1991)). Indeed, under the facts of Crist as well as the illustrative example the court gave, the clients claimed their injury was the difference between the settlement they would have obtained but for their attorney s breach, and the amount they actually obtained. That amount was easily quantifiable and did not require proof of success at trial. For the Crist plaintiffs, they needed only to demonstrate the amount they would have obtained under the Morgan settlement, which Morgan was able to demonstrate through his own testimony concerning how he distributed the $39 million among his clients based on their injury level classifications. Id. at 845. For the court s hypothetical client, he or she would only need show the amount of the check that the lawyer failed to negotiate (and perhaps any agreement with the attorney demonstrating what percentage of settlement the attorney was to obtain as a fee), in order to demonstrate the extent of his or her damages. The only way the Crist plaintiffs ultimately survived summary judgment on this very issue was by pointing to specific, quantifiable evidence testimony from Morgan regarding the terms of an actual settlement of what the plaintiffs would have received as part of Morgan s verifiable $39 million settlement. 23