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Pickett v. Gallagher

Court of Appeals of Mississippi

August 19, 2014

CLAUDE E. PICKETT, APPELLANT
v.
MICHAEL T. GALLAGHER, GALLAGHER YOUNG LEWIS HAMPTON AND DOWNEY, L.L.P., SCHWARTZ & ASSOCIATES, P.A., RICHARD B. SCHWARTZ AND ROBERT C. ARLEDGE, APPELLEES

COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/26/2012. TRIAL JUDGE: HON. LAMAR PICKARD. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF DEFENDANTS/APPELLEES.

FOR APPELLANT: CLAUDE E. PICKETT (PRO SE).

FOR APPELLEES: FRANK W. TRAPP, SHEILA M. BOSSIER, ROBERT C. ARLEDGE (PRO SE), ROBERT GREGG MAYER.

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 588

NATURE OF THE CASE: CIVIL - LEGAL MALPRACTICE

BARNES, J.

¶1. Claude Pickett received a settlement from the makers of the diet drug Fen-Phen in February 2000. In March 2010, he sued his attorneys, claiming he

Page 589

was not paid the agreed-to settlement amount. The circuit court found the statute of limitations had run and granted summary judgment in favor of the attorneys. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. After the United States Food and Drug Administration warned of dangers associated with the diet drug Fen-Phen, Pickett hired Michael T. Gallagher of Gallagher, Young, Lewis, Hampton, & Downey L.L.P. (Gallagher) to represent him in a lawsuit against the maker of the drug, American Home Products. Robert C. Arledge and Richard Schwartz of Schwartz & Associates P.A. (Schwartz) also retained clients for the litigation, but all clients retained by Arledge and Schwartz were referred to Gallagher. A suit styled Trina Washington v. American Home Products, Cause No. 99-0035, was filed in Jefferson County in 1999. Pickett was one of the five trial plaintiffs. The jury awarded the plaintiffs $30,000,000 each in compensatory damages. The trial court deemed the case appropriate for consideration of punitive damages. But on December 21, 1999, before the punitive-damages issue was submitted to the jury, a settlement was reached, whereby each plaintiff would receive $5,000,000. Pickett signed a settlement release on January 21, 2000. After attorneys' fees and expenses were deducted, the plaintiffs each received approximately $2,900,000 in February 2000.

¶3. Aggrieved with the amount of their settlement checks, on March 22, 2010, three of the five plaintiffs--Pickett, Brenda Hamm, and Kenya Gaines Thompson--filed suit against Gallagher, Schwartz, and Arledge. The plaintiffs alleged they settled for $5,000,000 each, net of attorneys' fees and expenses; thus, their $2,900,000 checks shorted them $2,100,000. The plaintiffs admit signing a settlement agreement/release prior to receiving their checks. But they argue they were not given an opportunity to review the documents, and their attorneys were not present for them to ask questions. Based on these facts, the plaintiffs' complaint alleged claims for breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, misrepresentation, fraud, civil conspiracy, conversion, unjust enrichment, estoppel and detrimental reliance, fraudulent inducement, and fraudulent concealment.

¶4. In response to the complaint, Schwartz filed a motion to dismiss, citing the running of the applicable three-year statute of limitations. Schwartz argued that the limitations period had clearly run, as the plaintiffs' claims were filed more than ten years after the settlement. The trial court denied the motion, however, finding that fact questions existed regarding fraudulent concealment. The trial court went on to state that " after discovery, if the [p]laintiff has not put forth sufficient evidence ...


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