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Smiley v. Blasingame, Burch, Garrard & Ashley, P. C.

Court of Appeals of Georgia, Fifth Division

October 30, 2019




         Terri White and her husband[1] filed this action against Athens law firm Blagingame, Burch, Garrard & Ashley, P. C., and it managing shareholder, Henry Garrard, III, as well as the Savannah law firm Oliver Maner, LLP, and its partner Gregory Hodges (collectively, "Appellees"), seeking damages for legal malpractice, breach of fiduciary duty, and misrepresentation arising from the settlement of a product-liability case involving an implanted OBTape device manufactured by Mentor Worldwide, LLC ("Mentor"). The Whites appeal from the trial court's grant of summary judgment in favor of the Appellees. For the following reasons, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. In this case, to satisfy the burden of proof on summary judgment, defendants were required to point out by reference to the record that there was an absence of proof adduced by [the Whites] on the issue of proximate cause.

(Citation and punctuation omitted.) Szurovy v. Olderman, 243 Ga.App. 449, 452 (530 S.E.2d 783) (2000).

         After suffering injury from an implanted OBTape device manufactured by Mentor, Terri White and her husband engaged the law firm of Oliver Maner and its partner, Hodges, to represent her against Mentor. After signing the fee agreement, Oliver Maner then contacted the law firm of Blasingame, Burch, Garrard & Ashley ("Blasingame firm"), which was handling Mentor ObTape cases, and the two firms agreed to jointly represent the Whites. The new engagement agreement stipulated that the Blasingame firm would receive a 40% contingency fee, and Oliver Maner would receive one-third of that amount.

         Two days after the Whites' case was filed in Georgia federal court, the U.S. Multi-District Litigation ("MDL") panel ordered that all ObTape cases be sent to the Middle District of Georgia for coordinated pre-trial proceedings. See In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 588 F.Supp.2d 1374 (J.P.M.L. 2008). The Blasingame firm had the majority of the ObTape cases in the MDL. During the MDL process, the Whites received regular status reports, understood what was happening in the litigation and were updated about what their attorneys were doing to prosecute the case.

         When a group of cases selected by the MDL judge was ready for trial, the judge ordered four cases consolidated for a single "bellwether" trial in June 2010.[2] The Blasingame firm represented the bellwether plaintiffs. After five days of the bellwether trial, Mentor's counsel approached the Blasingame firm regarding settlement. An amount was agreed upon, and Garrard negotiated a resolution model with Mentor's counsel that included funds to evaluate each case individually and to come up with a settlement value for each of his firm's 101 individual cases within the parameters of the total settlement amount. The proposed resolution involved an initial payment and a potential additional payment contingent on whether an additional group of 39 cases could be "qualified." The proposed resolution model did not specify a particular number or a percentage of Blasingame firm's clients that had to agree with the settlement to make the agreement binding. However, the parties discussed an amount to be returned to Mentor if any Blasingame firm clients declined settlement. Garrard and Mentor's counsel reported the potential settlement to the MDL judge, explaining that only the bellwether clients had agreed to settle so far and that no agreements had been sought yet from any of the other plaintiffs in the MDL case.

         On August 17, 2010, the Blasingame firm sent a letter to the Whites explaining the agreement with Mentor, and proposing an individual settlement. The letter explained that Mentor had offered to settle all of the Blasingame firm's cases, how the individual settlement proposals were allocated, and the criteria considered. The letter set forth the "total amount of settlement proceeds that we can distribute as of now," and further stated that the total settlement amount was dependent on whether certain conditions relating to additional claimants were met, and that while no individual client's settlement would decrease, some claimants may receive an additional payment. The letter explained that "[a] settlement of your claim, if accepted by you, terminates your case and awards you money damages now," and that the client's signed release was necessary to consummate a settlement. The letter also described the procedure for allocating funds. It stated that the Blasingame firm and Garrard had reviewed each case and considered various objective factors. It stated that the firm "used a point system to help us get an objective look at each case, but we also considered matters that, based on our professional judgment, would affect valuation."

         When Terri White received the August 17, 2010, letter, she contacted Garrard's paralegal and rejected the proposed settlement. The next day, Terri White spoke to Garrard and explained to him that she was "completely unwilling to accept the proposed settlement." Terri White then contacted another attorney, William Bell, to discuss whether to accept the settlement. Bell contacted Hodges to discuss the proposed settlement, and Hodges told Bell about the Mentor litigation and proposed settlement, which Hodges characterized as "fairly substantial." Bell also spoke to Garrard, who invited Bell to meet with Garrard, Hodges and the Whites at their home to discuss an increased settlement. Bell declined.

         On September 3 and 10, 2010, Garrard, Hodges and Garrard's paralegal traveled to Statesboro to meet with Terri White to convey an increased settlement offer. At that time, the attorneys explained the allocation method and the criteria used to calculate the increased settlement offer with the Whites. Garrard told the Whites what the lawyers had done to allocate more money to her case and explained that 19 additional cases had qualified, making an additional amount available. Terri White testified that she read the letter explaining the criteria used to allocate individual proposed settlements before accepting her proposed settlement. Terri White also testified that during this discussion, she asked the lawyers, "What's the top dollar here? How much is Mentor going to pay? How much is everybody else going to get?" Gerrard told the Whites the total settlement amount they had available to allocate at that time, and that she would be getting the "second highest amount of anybody."

         The Whites accepted the increased settlement proposal during the September 10, 2010, meeting, signed a release, and were given a check for roughly half their settlement amount, representing their net at the time. Terri White never testified that she relied upon any of the Appellees' alleged misrepresentations in deciding to settle. Paul White testified that he had no input in the decision-making process about whether to accept the settlement.

         For about two years after the Whites' lawsuit was settled, the Blasingame firm and Oliver Maner continued to represent the Whites with respect to various medical liens and collection actions arising from medical bills and insurance subrogation claims.

         After all of the MDL plaintiffs had signed releases, there was a remaining settlement amount to be allocated because more plaintiffs were qualified into the multi-district litigation. Garrard averred that "we went back and we made disbursements to some people who we thought had significant cases and gave them a little bit more money. We did that on a purely subjective basis." The Whites now argue that the extra funds remaining in the settlement after all the MDL plaintiffs signed releases were not allocated objectively by the ...

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