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“You Did Not Get Me Enough Money!” Says Plaintiff, But Court Rejects Malpractice Claim

This is a legal malpractice case from Mississippi where the plaintiff hired an attorney, Omar Nelson, to bring a wrongful death action against the makers of Plavix. The plaintiff alleged that she asked Nelson to handle the case when he was an associate with the law firm, Sweet and Freese. Nelson declined and recommended other counsel. Later, when Nelson left Sweet and Freese, he began working on the case again. Eventually, Nelson obtained a settlement of $280,000 for the plaintiff. The settlement was approved by the court.

Plaintiff’s legal malpractice theory was that Nelson had not obtained a sufficient settlement for the case and that other lawyers would have obtained more. This theory, without further evidence of negligence such as a failure to take discovery or obtain evidence, is very weak. It is almost entirely speculative. How are we to know why a different attorney would have obtained more money than the attorney who actually handled the case?

Plaintiff’s expert was Freese who testified that had he handled the case he would have obtained more money for the plaintiff.

The trial court allowed the case to reach the jury and the jury decided in favor of the defendant, Omar Nelson.

The Court of Appeals of Mississippi affirmed the judgment. It discussed the testimony as follows:

We find there was substantial evidence to support the jury’s verdict. White’s only proof at trial of proximate cause of injury or damages was provided through a deposition by Freese, who merely opined “that had this case been venued in Hinds County with competent lawyers, the settlement value would have dwarfed what this case settled for” and a three to four million dollar settlement “would have been a reasonable amount to expect to recover.”[3] But Freese admitted he had never worked on a Plavix case; nor was he knowledgeable of any verdicts concerning Plavix. Furthermore, Freese acknowledged that in settlement negotiations, he informs a client 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.” (Emphasis added). He offered no testimony of what a reasonable settlement would have been, taking into account the costs and uncertainty of the case. Moreover, Nelson’s legal expert, Walter Morrison, testified that the warning label of Plavix specifically warned that the drug could cause TTP, which led him to believe that summary judgment in favor of Bristol-Myers was “highly likely” had White not settled the case. Accordingly, the jury verdict, finding no liability for Nelson’s recommending the settlement, was based on substantial evidence.

Conclusion: I am surprised that this case was allowed to go to the jury as the plaintiff did not appear to introduce any evidence of an error or omission by Omar Nelson. Instead, plaintiff was allowed to proceed to trial based on pure speculation that another lawyer would have obtained a larger settlement. To be successful, plaintiff needed more proof of an error or an omission by Nelson, such as a failure to obtain evidence from the drug maker. Although I have filed plaintiff malpractice cases in my career, I am unimpressed with this one and I believe that the jury returned a just verdict.

Edward X. Clinton, Jr.

Source: White v. Nelson, Miss: Court of Appeals 2016 – Google Scholar