CHARLESTON – A Georgia law firm involved in pelvic mesh litigation is asking for a federal court to dismiss a legal malpractice case against it.
Danna Morrison originally had filed the malpractice lawsuit in May against the law firm of Blasingame, Burch, Garrard & Ashley PC in Marion County, Tennessee. It later was transferred to federal court in Tennessee before being moved to the Southern District of West Virginia in October because the parties are involved in Multi-District Litigation involving pelvic mesh lawsuits that are being heard in Charleston.
In her original complaint, Morrison says she was experienced multiple health problems after receiving a pelvic mesh implant several years ago. She says she saw a television advertisement for the law firm and called the firm to discuss representation. Morrison says she did sign a contract for representation in October 2011.
In 2015, Morrison says the firm advised her to accept a settlement offer of $325,000. She declined to accept the offer, and told the firm she wanted to have a trial because “she felt her case was worth substantially more than the offer.”
Subsequent to hiring the Athens-based firm, Morrison says she had to file a personal bankruptcy primarily because of medical bills from the multiple surgeries she had to have. The firm contacted Morrison’s bankruptcy trustee and notified them of the settlement offer that had been made.
Meanwhile, Morrison says the firm continued to “pressure her” to accept the $325,000 settlement offer. She still declined, believing she could get a verdict or settlement in excess of seven figures.
Morrison claims the firm then made misrepresentations to her that she relied on to eventually accept the settlement offer. Among those misrepresentations, she claims the firm told her that if she didn’t take the offer, the bankruptcy trustee would decide to take the offer and accept the settlement for her. She says the firm also told her if she didn’t accept the offer, it would get the trustee to settle the case and she would “lose everything,” not receive any money from the settlement and would not be eligible to have a trial.
“The plaintiff was extremely upset when she was told all this, but based upon the representations being made to her by the defendant law firm, she felt she had no choice but to follow their directions and agreed to settle for an amount far less than she wanted to,” the complaint states.
When she did settle, she says she was told by the firm that she had received an award from a Special Master in the approximate amount of $300,000, “which was still substantially less than she ever would have voluntarily have settled for.”
In May 2016, Morrison says she hired a personal bankruptcy lawyer. It was then she says she learned of the “false and misleading statements” made to her by the law firm.
Morrison accused the firm of professional negligence and professional fault, of making negligent misrepresentations of fact and had a substantial financial interest in settling because of a 40 percent contingent fee arrangement. She says the firm breached its contractual duties to her, breached the common law duty of good faith and fair dealing and breached its fiduciary duties to her.
She claims she never would have settled the case for the amount the firm told her “she had to settle for” and lost the opportunity to have a trial because of the firm’s misconduct.
Morrison seeks compensatory damages, attorney fees, court costs and other relief. She is being represented by Michael E. Richardson of Tidwell, Izell and Richardson of Chattanooga, Tennessee.
In an Oct. 30 motion to dismiss, the law firm asks for the case to be dismissed, claiming there is lack of standing and failure to state a claim upon which relief can be granted.
“Plaintiff … agreed to the settlement,” the motion states. “So too did the U.S. Bankruptcy Trustee in plaintiff’s Chapter 7 bankruptcy case. The U.S. Bankruptcy Court approved the settlement. The settlement funds have now been distributed. …
“In addition, based upon plaintiff’s agreement to settlement in her bankruptcy case and the bankruptcy court’s independent determination that the settlement was fair and equitable, plaintiff’s claims are barred by the doctrines of judicial estoppel and collateral attack.”
The firm is being represented by Andrew J. Godbold and William E. Godbold III of the Chattanooga firm of Leitner, Williams, Dooley & Napolitan as well as John P. Konvalinka of the Chattanooga firm of Grant, Konvalinka & Harrison and local counsel Shawn P. George of the Charleston firm of George & Lorensen PLLC.
U.S. District Court for the Southern District of West Virginia case number 2:17-cv-04133