Compelling tale turns into two top cases

Two of this year’s largest judgments began with a heartfelt conversation between attorney Randall Rhodes and a then-30-year-old man over a case that few other attorneys wanted to take.

The man detailed his abuse as a child by his former Kansas City-area Boy Scouts leader, as well as the difficulties he’d faced in trying to bring a lawsuit.

“I couldn’t let him leave the office,” Rhodes said. “It was just so compelling.”

Each year, Missouri Lawyers Weekly ranks the top verdicts, judgments, settlements, arbitration awards and defense wins it reported in the previous year. As our 2017 list demonstrates, significant cases come in many forms. Some are class actions comprising hundreds or even millions of plaintiffs. Some are suits over significant injuries. And sometimes they are long-shot cases that could have ended in disaster, or at least dismissal.

Despite the uphill battle he knew he’d face, Rhodes and his team at Rouse Frets Gentile Rhodes filed a suit to recover damages for the pain, humiliation, mental anguish and trauma the unnamed plaintiff alleged to have suffered as a result of being molested. Last February, that suit resulted in a $100 million bench judgment in Jackson County against the former Boy Scouts official, Scott Bradshaw. The judgment was the third highest of 2017.

The victory came after the Missouri Supreme Court in 2016 had allowed the case to proceed. Rhodes said the high court’s ruling allowed other similar cases to go forward as well. As a result, in October the same Rouse Frets team won a $120 million judgment against another Boy Scouts official, Joseph Mackey, a former Blue Springs physician. The judgment was the largest plaintiffs’ win in Missouri last year.

Both judgments were issued after bench trials in Jackson County Circuit Court, and while the defendants themselves are in prison and unable to pay the judgments, Rhodes said he intends to try to collect from insurance policies held by the Boy Scouts of America and its Kansas City-area Heart of America Council. Those organizations had been dismissed from the litigation.

Rhodes said his case shares a theme with the revelations of sexual abuse by high-profile media, entertainment and political figures in recent months. Though the allegations and circumstances are different, he said the common thread is that victims finally reached a point where they had the courage to come forward and tell their stories — a process that often is emotionally grueling and can bring up feelings of embarrassment.

“I wouldn’t lose sleep if I never had to try another of these cases again,” Rhodes said.

Rouse Frets has fielded a flood of phone calls in the wake of its court victories, but Rhodes said many cases have exceeded the statute of limitations and otherwise would be hard to prove. While he has called the damages awarded in his cases “pretty conservative” given their facts, he says he also doubts there will be many more of them. The combined $220 million in damages, he said, were due to a good amount of corroborating evidence, as well as the actions of “two really, really, really bad actors.”

Continuing lawsuits

Some of this year’s top plaintiffs’ wins involved the latest editions in long-running litigation rather than stand-alone achievements.

The second-highest plaintiffs’ win of the year revisits the top verdicts of 2016. The $110 million verdict in Lois Slemp v. Johnson & Johnson in May was the highest single result yet in a case asserting that Johnson & Johnson’s talc-related products caused ovarian cancer.

In 2016, the team of Jim Onder, Stephanie Rados and Wylie Blair of Onder Law in St. Louis also obtained verdicts of $72 million, $70 million and $55 million. A similar case brought to trial in 2017 resulted in a defense win, however, though no requested dollar amount was recorded.

Although other talc cases are proceeding, the issue remain embroiled in the appeals courts. The Court of Appeals Eastern District vacated the earlier $72 million verdict in October, and the Missouri Supreme Court is scheduled to hear cases later this month that challenge the propriety of trying such lawsuits in St. Louis, which the defendants say is an improper venue for claims that largely occurred in other states.

Another blast from the past was the $10.3 million resolution in City of Maryland Heights et al. v. TracFone Wireless also. A prepaid cell phone company settled with 365 municipalities and St. Louis County after the company went for years without paying local business license taxes the municipalities said it owed.

The legal team behind the settlement consisted of solo practitioners John Mulligan Jr. and Howard Paperner in St. Louis, and John Hoffman of Korein Tillery. The agreement they finalized last January was the 10th such settlement they’ve reached with phone companies on similar claims. While it was the fifth largest settlement of 2017, previous settlements over unpaid taxes by other providers have been even larger, including a $65 million class action settlement between 270 municipalities and AT&T in 2009.

According to Mulligan, Paperner and Hoffman, the cases have resulted in an estimated $1 billion in back taxes and ongoing tax payments to Missouri municipalities to date by wireless and landline companies.

“It’s a significant deal,” Mulligan, one of the attorneys, said in an interview. “It’s important to the cities. It’s a big source of revenue.”

The TracFone settlement is hardly the last in this years-long series of suits. Last month, the same team of attorneys finalized a $20.6 million settlement in St. Louis County Circuit Court with Ameren, which 254 municipalities alleged had been underpaying business license taxes. They also have been appointed class counsel in a suit against Charter Communications over alleged underpayment of municipal telecommunications license taxes. Summary judgment on liability was entered in favor of the class in November. Damages haven’t been determined, but Mulligan said tens of millions of dollars are at issue in that case.

Med mal

Several medical malpractice cases and wrongful death lawsuits asserting medical negligence also were present in 2017’s top wins, with cases among both top plaintiffs and defense verdicts.

Steve Garner, who was the lead counsel on the year’s top med mal plaintiff’s win, says that he has not observed a trend toward clients seeking trials. In his case, Emilee Williams won nearly $29 million after alleging that Mercy Clinic Springfield Communities failed to diagnose a neurological condition that led to permanent brain damage. A trial was inevitable in a no-offer case, said Garner, of Strong-Garner-Bauer in Springfield.

“I don’t know any plaintiffs who say ‘I’m not going to settle this case. I’m going to take it to trial,’” Garner said. “If there’s a reasonable settlement offer, I think most plaintiffs prefer settling a med mal case than trying it.”

Ryan Gavin, of Kamykowski, Gavin & Smith in St. Louis, defended several major medical malpractice lawsuits in 2017, among them a $3 million defense win in Nobles v. Mercy Hospital Jefferson, and a $1.25 million defense verdict in Schneiderheinze v. Bailey. His observation is that several factors may account for plaintiffs seeking large damage awards in medical malpractice cases.

In 2012, the Missouri Supreme Court ruled that noneconomic damage caps related to injury claims were unconstitutional but left in place caps in wrongful death cases. In 2015, the state legislature imposed caps on noneconomic damages, but those limits apply only to injuries that occur after Aug. 28, 2015. Most cases in the legal system involve injuries sustained prior to that date, Ryan said.

Plaintiffs’ attorneys also are more likely today to exclude from evidence their client’s medical bills, focusing instead on the impact of an injury on a client’s life, Ryan said. For example, a client might have suffered a foot injury that wasn’t catastrophic, but attorneys might emphasize that the injury keeps her from engaging in hobbies such as running.

“They know some jurors will use that figure for past medical, especially if it’s low, to suggest that maybe the injury just isn’t that bad,” Gavin said. “So in order to keep jury focused on how it impacts plaintiff’s life, they will keep that number out.”

Attorneys who work in medical malpractice today also tend to be specialists who are skilled at taking cases to trial, Gavin said.

“They’re doing a good job with it,” Gavin said. “The last couple of times I’ve been on the losing side of a plaintiff’s verdict, they’re getting significant damages and probably more than I expected.”

But Garner said he hasn’t noticed a trend in medical malpractice plaintiffs seeking trials for matters that could be settled out of court.

“There were just a couple of cases with really bad injuries that went to trial and got verdicts and that’s going to happen,” Garner said. “There were a number of cases that went to trial with really bad injuries and didn’t end up in [plaintiffs’] verdicts and that’s also going to happen.”