Excessive Attorney Fee Class Action

Howard v. Wilkes & McHugh, P.A. et al., Case No. 2:06-cv-2833-JMP-tmp (W.D. Tenn. 2006)

This action involved allegations that a well known plaintiff law firm, Wilkes & McHugh, P.A., had charged its clients an excessive legal fee in violation of Tennessee’s Medical Malpractice Act (“TMMA”).  Specifically, Wilkes & McHugh represented hundreds of families in personal injury and wrongful death actions against nursing homes located in Tennessee, routinely charging them contingency fees of between 40% to 45%.  Plaintiffs alleged that these cases were controlled by the TMMA, which caps a plaintiff attorney’s fee at one-third of all damages awarded. See, First Amended Class Action Complaint.

In response to the suit, Wilkes & McHugh took on a “scorched earth” defense approach, attacking Watson Burns with the claim that we were merely agents advocating for large nursing homes and seeking to disqualify our firm from representing the class. Howard v. Wilkes & McHugh, P.A., Case No. 06-cv-2833 JPM-tmp,  (W.D. Tenn. Nov. 8, 2007)(Magistrate’s Report and Recommendation denying Wilkes & McHugh, P.A.’s motion to disqualify Watson Burns), fully adopted by district court at 2007 U.S. Dist. LEXIS 90365 (W.D. Tenn. Dec. 3, 2007). 

After the district court denied Wilkes & McHugh’s request to throw Watson Burns off the case, it sought to thwart plaintiff’s discovery effort by refusing to produce critical documents, including confidential settlement statements that demonstrated the amounts charged to the class, under the guise of the attorney-client privilege.  Watson Burns successfully showed that these documents were not privileged, and that Wilkes & McHugh should be sanctioned for refusing to produce same.  Howard v. Wilkes & McHugh, P.A., Case No. 06-cv-2833 JPM-tmp, 2008 U.S. Dist. LEXIS 73663 (W.D. Tenn., Sept. 24, 2008).

In opposition to class certification, Wilkes & McHugh argued that each of its former client’s cases turned on unique factual circumstances and, as such, individual trials would be necessary in order to determine whether the TMMA applied, thus defeating class certification. It also argued that given the fact that the class members individually stood to gain thousands of dollars individually, class certification was not superior under Rule 23. Despite these contentions, we were able to obtain class certification.  See, Howard v. Wilkes & McHugh, P.A., Case No. 06-cv-2833 JPM-tmp (W.D. Tenn. Mar. 15, 2009). Wilkes & McHugh sought permission to appeal the district court’s certification decision with the Sixth Circuit Court of Appeals, which was denied. In re Wilkes & McHugh, P.A., Nos. 09-502/503/504 (6th Cir. Jun. 19, 2009).

Following extensive negotiations, we were able to obtain a $4 million cash settlement on behalf of approximately 200 class members. See, Class Notice and Claim Form.