WINFIELD – A circuit judge has sided with James F. Humphreys & Associates in a dispute over attorney fees stemming from Monsanto litigation that began nearly 20 years ago.
Putnam Circuit Judge Joseph K. Reeder filed his order May 2 awarding judgment to Humphreys’ firm against The Calwell Practice, which is now known as Calwell Luce diTrapano, for $375,000. He also awarded $90,575 in pre-judgment interest.
“We are pleased that Judge Reeder saw this for what it is: a simple failure of a law firm to pay an agreed upon fee,” Mike Hissam, Humphreys’ lead counsel, told The West Virginia Record.
Monsanto was the defendant in about 55 lawsuits starting in 2004 seeking damages for toxic exposure from its plant in Nitro. Stuart Calwell and Humphreys were co-counsel in the case, and they had an arrangement for equal sharing of costs and potential attorney fees awards.
In January 2012, Calwell and Humphreys agreed to end Humphreys’ involvement in the case with an agreement that Humphreys would receive 12.5 percent of any settlement or verdict of to $110 million. When the litigation settled, Monsanto agreed to pay up to $84 million for medical monitoring claims and $9 million for property cleanup.
Circuit Judge Derek Swope, who was overseeing the case in Putnam County after former Circuit Judge O.C. “Hobby” Spaulding retired, awarded Calwell $20 million in attorney fees and expenses. Humphreys received the 12.5 percent of that fee award.
Swope also approved $9.5 million for future attorney fees, called incentive payments, to be paid if certain milestones were met. Those included various class members qualifying for certain benefits under the class settlement agreement.
The medical monitoring class settlement agreement contained a “triggering event” that if 100 class members registered to participate in serum dioxin screening and 25 percent of those had a defined level in their system, additional benefits would be provided to the class. It also stipulated that Calwell would receive an additional $6.5 million in attorney fees if that happened, and Humphreys would get his share of that money as well.
“However, at some point during the screening period, it became evident that the triggering event would not occur,” Reeder wrote in his order. “Calwell questioned the reliability of the screening tests.”
That’s when Monsanto and Calwell agreed to amend the settlement agreement to say the class would be afforded additional screening. They also agreed that Calwell would instead be awarded $3 million in attorney fees. Swope awarded that amount to Calwell on September 8, 2017.
Humphreys said he was entitled to 12.5 percent of that $3 million, but Calwell disagreed.
Humphreys’ firm then sued Calwell’s firm in Kanawha Circuit Court in 2020, alleging breach of contract and unjust enrichment regarding the 12.5 percent of that final $3 million. The case was transferred to Putnam Circuit Court and Swope under the original Monsanto litigation.
Calwell claimed the triggering event was a prerequisite to any claim of attorney fees. Calwell also says Humphreys can’t assert a breach of contract claim because Humphreys failed to disclose the fee sharing agreement in his firm’s 2016 bankruptcy.
In one court filing, Calwell’s firm argues that a 2014 order entered by Swope defines specifically the fees to which Humphreys was entitled and is “the controlling document” regarding Humphreys’ fee entitlements. Calwell says that order provides payments to Humphreys only if the “triggering event” is met.
“This is logical and fair and makes sense,” Booth Goodwin, Calwell’s attorney in the matter, wrote in a proposed order filed April 21. “If the triggering event occurred, then those fees would be tied in some way to Humphrey’s original contributions to this case and the development of the claims against Monsanto.
“But neither the 2014 order nor the 2012 agreement contained any language evidencing an intent to give Humphreys a share of fees flowing from separate claims and separate litigation giving rise to a new fee award.”
Goodwin also notes that Calwell handled separate litigation against Thomas Memorial Hospital and other third parties regarding medical monitoring issues with the Monsanto case. He says those separate claims promoted the settlement modification at issue.
Goodwin writes that affidavits from Charleston attorneys Thomas V. Flaherty and Thomas J. Hurney Jr. support this notion.
Reeder sided with Humphreys, also noting the issues with the Humphreys firm’s bankruptcy.
“Even if the disclosures were wanting of more detail, the court declines to step into the shoes of the bankruptcy court and second guess the sufficiency of that disclosure,” Reeder wrote. “Humphreys is not judicially estopped from prosecuting a claim for breach of contract.”
Goodwin said Calwell plans to take the issue to the West Virginia Intermediate Court of Appeals.
“As is further explained in the proposed order we submitted to the court, we obviously disagree with the court’s decision and intend to appeal,” Goodwin told The Record.
Calwell is being represented by Goodwin, Benjamin Ware and Stephanie Daly of Goodwin & Goodwin in Charleston. Humphreys is being represented by Hissam and Andrew Robey of Hissam Forman Donovan Ritchie in Charleston.
Putnam Circuit Court case number 04-C-465
