Suit disputes Ohio firm's take of fees in Boggs wrongful death suit

By Lawrence Smith | May 15, 2009

Camden-Clark Memorial Hospital

PARKERSBURG -- An Ohio attorney is alleging that his former law firm has unfairly gained from the nearly 5,000 hours he put into a successful wrongful death suit against a Wood County hospital and physician.

Christopher A. Rinehart, along with Bernard R. Boggs, filed suit in Wood Circuit Court on Feb. 27 against the Columbus, Ohio, law firm of Carlile Patchen and Murphy.

In the compliant, Rinehart, 37, a resident of Kilbourne, Ohio, and Boggs, 58, of Mineral Wells, are seeking declaratory judgment against CPM for the $700,000 in attorneys fees awarded to the firm following a $6 million judgment Boggs won in a wrongful death suit against Camden-Clark Memorial Hospital in 2006.

According to court records, Boggs retained Rinehart, who is licensed in both Ohio and West Virginia, on Oct. 1, 2001, to investigate a medical malpractice claim against Dr. Manish I. Koyawala. Two days earlier, Koyawala administered a lethal overdose of anesthesia on Boggs' wife, Hilda, a first grade teacher, who was admitted to Camden-Clark Memorial Hospital to undergo surgery for a broken ankle she sustained earlier at Mineral Wells Elementary School.

Five months later, Rinehart along with Alan Simms filed what would be the first of five lawsuits associated with Hilda's death. In Boggs I, Koyawala, Evelyn R. Melvin, a certified registered nurse anesthetist, United Anesthesia Inc. and C-CMH were all named as co-defendants.

However, Boggs I was dismissed later that year for failure of the defendants to receive notice of the suit. Shortly thereafter, Simms was released as co-counsel.

On March 17, 2003, Rinehart joined CPM as an associate member of the firm. Though records show Rinehart's offer of employment was not contingent on keeping the Boggs case , CPM did not object to his continued involvement.

By this time, Rinehart had devoted 1,893 hours into the case.

About a month or two later, Boggs retained the Wheeling law firm of Bordas and Bordas "to conduct primary litigation activity." However, Boggs made clear that Rinehart was to remain a part of his legal team.

Later, on June 30, 2003, Boggs II was filed. Records show, the defendants were the same from Boggs I except Melvin.

However, it would be dismissed as well. According to court records, Judge Robert A. Waters dismissed Boggs II on Oct. 20, 2003, for failure of the defendants to be served with a 30-day pre-suit notice as required by the Medical Professional Liability Act.

Though the state Supreme Court would reverse Waters' dismissal on Dec. 8, 2004, Boggs III was filed in late-December 2003 with the proper pre-suit notice. Boggs III, records show, contained the same defendants and allegations as Boggs II.

Hammering out details

In the interim, Bordas submitted a formal contingent fee agreement to Rinehart on March 4, 2004, to submit to CPM and Boggs for their approval. Though Bordas signed the initial agreement, CPM objected it due to a split in fees between the firm and Rinehart, and Boggs refused to sign the agreement unless the fees were split.

Eventually, on Jan. 20, 2005, a contingent fee agreement was reached. Though they reserved the right to amend it later, Rinehart and CPM agreed to a fee split.

Among other things, the agreement called for the attorneys to receive 40 percent of any award if the case was settled after the suit was filed, and 50 percent if it was brought to a close after an appeal. In either instance, Bordas would get 60 percent of the award, and CPM 40 percent, of which half would go to Rinehart.

Also, "[a]ll fees were to be paid at the final disposition of the case."

No sooner than the agreement was signed that records show, H. Ritchey Hollenbaugh, head of CPM's litigation department, with the knowledge of the firm's managing partner, Robert B. Barnett,
sent a memo to Rinehart saying CPM "would not abide by the terms of the First Fee Agreement with respect to the stated fee split" between them. Though the memo was communicated to Rinehart, the suit alleges it wasn't to Boggs.

Continuing to hammer

In the midst of negotiating the first fee agreement, C-CMH, via its attorney Richard A. Hayhurst, filed counterclaims in Boggs III and II on May 4, 2004, and May 23, 2005. In them, C-CMH asserted that the claims Boggs raised in both lawsuit were completely without merit, and sought reimbursement for defending themselves as well as punitive damages.

However, C-CMH voluntarily dismissed its counterclaim in Boggs III on Aug. 3, 2005, with the other counterclaim terminated on May 22, 2006, when Boggs II and III were merged.

Nevertheless, Boggs later filed separate lawsuits against C-CMH and Hayhurst for malicious prosecution in bringing the counterclaims. According to court records, the first suit was filed on Sept. 28, 2005, against C-CMH with the other filed on July 27, 2006, against Hayhurst thus becoming Boggs IV and V.

Due to Hayhurst being now being named as an individual defendant, Bordas forwarded a new contingent fee agreement to Rinehart for Boggs and CPM to sign for Boggs IV and V. "The Second and Third Fee Agreements," the suit alleges, " were substantively identical to the First Fee Agreement."

Once again, CPM objected to a fee split with Rinehart, and Boggs refused to sign the agreement unless it contained a fee-split cause. Eventually, on Nov. 7, 2007, Barnett signed-off on the second and third agreements, and gave it to Rinehart to remit to Bordas and Boggs.

After doing so on Nov. 11, CPM terminated Rinehart from the firm the next day. Court records show, Rinehart was not notified of his termination until Nov. 15 which he was notified he had until Nov. 21 to clear out his office.

Though CPM never conferred with Boggs about Rinehart's termination until after-the-fact, they did honor his Nov. 17 request to release all files on Boggs IV and V to Rinehart so he could continue litigating the case. It was at this time that CPM's involvement in all of Boggs cases ceased, the suit alleges.

Getting rid of a rainmaker

During his time with CPM, Rinehart alleges he invested an additional 3,016 into Boggs II and III. By comparison, CPM, aside from Rinehart's time, devoted 135 hours to litigating the cases, and advanced $31,577.04 in expenses.

Two years prior to Rinehart's termination, Boggs settled his claims against Koyawala and United Anesthesia. As a result of the Nov. 22, 2005 settlement, records show CPM received $160,000 plus $10,915.84 in expense reimbursement.

Four months later on March 10, 2006, a jury awarded Boggs $6.5 million dollars in the remaining claims against C-CMH in Boggs II. Records show a month later Waters formalized the judgment in Boggs' favor at $4,834,380 plus interest.

After the Supreme Court denied its first appeal in Boggs II and III on Sept. 20, 2007, and before also denying its second appeal on Nov. 7, C-CMH on Oct. 5, 2007, paid Boggs $5,528,781.76. Pursuant to the first fee agreement, Boggs tendered payment to CPM in the amount of $552,878.16 in attorney fees and $20,661.20 in expenses.

By this time, records show, CPM had earned $712,878.16 in attorney fees, and recouped all its expenses. Boggs II and III officially came to end on April 28, 2008 when the U.S. Supreme Court declined to hear C-CMH's appeal.

Both Boggs IV and V are still pending in Wood Circuit Court. According to court records, between Nov.12, 2007, and Feb. 27, Rinehart has put 2,026 hours into those cases.

Getting what's theirs

In their suit, Boggs and Rinehart seek judgment against CPM on three counts -- two for discontinuance of representation without good cause or abandonment in the first and second/third fee agreements and for breach of contract of employment. Despite Rinehart's termination, CPM neither made an effort to assign new counsel to all the Boggs cases, nor "has sought an appropriate withdrawal from Mr. Boggs' matters in accordance with the First, Second, or Third Fee agreements, and under applicable rules."

Because it breached its contractual obligations, Boggs and Rinehart maintain CPM has not earned any of the contingent fees in any of the three agreements. Therefore, they are asking the circuit court to award them judgment in the amount of the fees CPM earned prior to Rinehart's dismissal - $712.878.16 plus court costs and attorneys fees.

As of presstime, records show that CPM had yet to be served with notice of Boggs and Rinehart's suit. A telephone call left with Barnett was not immediately returned.

Currently, Rinehart is of counsel at the Columbus law firm of Rinehart and Rishel. According to its Web site, one of the firm's partners, Dana G. "Buck" Rinehart is a former two-term mayor of Columbus and two-term treasurer of Franklin County.

It is not immediately clear if the two Rineharts are related.

The suit was filed with the assistance of Jeffrey Wakefield with the Charleston law firm of Flaherty, Sensabaugh and Bonasso.

The case has been assigned to Judge J.D. Beane.

Wood Circuit Court case number 09-C-92

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