Lee v. Thompson, 167 So. 3d 170

Background

Thompson and Dixon (plus 11 others) settled their Fen/Phen claims in 2001 for a $32 million global settlement handled by attorney Herbert Lee Jr.
Lee had agreed with the MDL Plaintiffs’ Management Committee to deposit 6% of the gross recovery (state-coordinated cases) into the MDL Fee and Cost Account for common-benefit work.
Settlement disbursement documents deducted the MDL assessment from the global amount, but individual settlement sheets allocated shares of the reduced pot and did not separately reflect the 6% assessment; Lee then billed the MDL fee to plaintiffs.
The MDL court later ordered a partial refund (2% of the global) returned to contributors; Lee kept 45% of that refund as his fee and allocated the remainder pro rata to clients, prompting Thompson and Dixon to sue over (a) whether Lee charged a higher contingency fee than their retainer and (b) whether the MDL refund was distributed properly.
On first appeal (Lee I), this Court held MDL Pre-Trial Orders applied and required the MDL assessment to be calculated pro rata from each client’s recovery and deducted from counsel’s fee (not billed to clients), and remanded to determine correct distribution. On remand the trial court awarded Thompson $420,000 and Dixon $180,000 as their MDL-refund damages; that judgment is affirmed in this appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether MDL Pre-Trial Orders required Lee to pay the 6% MDL assessment from his attorney fee (rather than billing clients)	Plaintiffs argued PTOs required the assessment be calculated pro rata from each client and deducted from counsel’s fee	Lee argued PTOs did not require counsel to pay the 6% assessment in state-coordinated cases and thus he could bill clients	Court applied law-of-the-case: Lee I already decided PTOs applied and required deduction from attorney fee; Lee’s new argument barred and rejected
Whether plaintiffs’ counsel’s post-judgment letter specifying lower damages bound Thompson and Dixon to those amounts	Plaintiffs maintained damages should be determined per Court’s remand and trial record	Lee argued the letter brief amounted to a binding admission limiting recovery to lower amounts	Court held the letter brief was not a binding admission and was irrelevant to remand’s ordered inquiry
Whether plaintiffs’ alleged misconduct (fraud/perjury) should bar recovery	Plaintiffs argued their claims were legally cognizable; jury found in plaintiffs’ favor on fee-contract factual issue and found no coercion on settlement	Lee argued plaintiffs fabricated fee-contract claims and committed misconduct warranting dismissal	Court found sanctions argument procedurally barred (not raised below), and record (including prior opinion and verdict) undermined Lee’s misconduct claim
Whether dismissal or other sanction is appropriate for counsel’s misleading appellate assertions	Plaintiffs noted Lee’s brief misrepresented jury verdict; requested admonition/sanction	Lee’s counsel apologized and attributed misstatement to misunderstanding of record	Court admonished counsel, warned against record-contradicted arguments, but affirmed judgment and noted potential for sanctions on frivolous appeals

Key Cases Cited

Lee v. Thompson, 43 So.3d 1104 (Miss. 2010) (prior appellate decision addressing MDL pretrial orders and remanding for distribution determination)
Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374 (Miss. 1990) (law-of-the-case doctrine and exceptions)
Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss. 1997) (dismissal as sanction for discovery deception/perjury)
Brewer v. Browning, 76 So. 267 (Miss. 1917) (exception to law-of-the-case where prior decision is manifestly erroneous)