Wilkes & McHugh test new practice area in Arkansas: Florida firm known for suing nursing homes wades into class-action.
ANDY ANDY Andrew
ANDY US Popular Abbreviation for Andrews AFB MCCUMBER OF TAMPA, FLA FLA Florida (old style)
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FLA Front Line Assembly ., HAS FACED the Wilkes & McHugh law firm as much as any lawyer in the firm's home state, and he thought he knew the founder Jim Wilkes' business plan pretty well.
But when he learned that the firm's Little Rock office had filed a class-action suit Noun 1. class-action suit - a lawsuit brought by a representative member of a large group of people on behalf of all members of the group
class action against computer-maker Hewlett Packard over the functionality of a Microsoft Windows See Windows.
(operating system) Microsoft Windows - Microsoft's proprietary window system and user interface software released in 1985 to run on top of MS-DOS. Widely criticised for being too slow (hence "Windoze", "Microsloth Windows") on the machines available then. operating system operating system (OS)
Software that controls the operation of a computer, directs the input and output of data, keeps track of files, and controls the processing of computer programs. , McCumber started to chuckle.
"That is a complete shock," he said.
John Maxey of Jackson, Miss., defends nursing homes against the negligence and abuse litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. that has traditionally been Wilkes & McHugh's bread and butter. He was similarly surprised to hear that the Little Rock office has filed three class-action suits questioning the roaming fees charged by cell phone companies.
"That's a total departure from what I've seen in Mississippi," Maxey said.
But Roger Glasgow, who defends nursing homes for the Wright Lindsey & Jennings law firm in Little Rock, isn't surprised. Early this year, when momentum for tort reform was clearly building in the Arkansas Legislature, Glasgow said he asked a Wilkes & McHugh attorney what the firm would do if caps on punitive damages Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer. disrupted its highly successful model for nursing home litigation.
"This lawyer said, 'Well, we're already working on that. We're going to get into class-action civil litigation, Glasgow said.
Wilkes & McHugh attorneys declined numerous requests for comment on this article. McCumber, Maxey and Glasgow all said the firm's expansion into class-action law makes sense, especially after the passage of tort reform legislation in Florida in May 2001, Mississippi in October 2002 and Arkansas in March.
"The money's drying up in the nursing home business, so you've got to move on to something else," Glasgow said. Plus, he said, representing consumers against large corporations "matches their theme -- 'profits over people' -- that they use in the nursing home cases already."
"Jim Wilkes James L. Wilkes, II, a native of Tampa, Florida, founded Wilkes & McHugh, P.A. with Tim McHugh in 1985. Mr. Wilkes received his undergraduate degree from the University of South Florida and his Juris Doctor degree from Stetson University College of Law in 1983.
Mr. is all business, for all this talk of reforming nursing homes," McCumber said.
"There's no reason (Wilkes & McHugh) wouldn't be able to diversify because they've built up quite a reserve of fees," Maxey said.
Ironically, it was Wilkes & McHugh's stunning $78.4 million verdict against a Mena nursing home -- $63 million of which was punitive damages -- that supercharged su·per·charge
tr.v. su·per·charged, su·per·charg·ing, su·per·charg·es
1. To increase the power of (an engine, for example), as by fitting with a supercharger.
2. the tort reform movement in Arkansas. Even after being reduced to $26 million ($21 million in punitive damages) by the state Supreme Court, the case stands as the largest tort verdict in Arkansas history.
Class-action cases would not be affected by Arkansas' Civil Justice Reform Act of 2003, which, among other things, placed a $1 million cap on punitive damages in tort cases such as personal injury, wrongful death The taking of the life of an individual resulting from the willful or negligent act of another person or persons.
If a person is killed because of the wrongful conduct of a person or persons, the decedent's heirs and other beneficiaries may file a wrongful death action , medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. or nursing home negligence.
Wilkes & McHugh's Web site (www.wilkes-mchugh.com) lists six areas of practice: nursing home abuse and neglect, medical malpractice, "serious" auto accidents, wrongful death, toxic torts and insurance fraud. (In this case, insurance fraud refers to fraud by insurance carriers who refuse to pay benefits, not fraudulent claims against insurers.)
Although it attracted little attention, Wilkes & McHugh apparently started testing the waters of class-action litigation as early as last August. That's when founding partner James B. McHugh and a lawyer from the Little Rock office, Susan Nichols, filed suit against Hewlett Packard in Phillips County Phillips County is the name of several counties in the United States:
Late last year, Wilkes & McHugh hired lawyer Brian G. Brooks away from the consumer protection division of the Arkansas Attorney General's office. He has been added to the plaintiff's team in the Hewlett Packard case and is the only attorney common to all of the cell phone cases.
"I think that's kind of his role over there, to take these kind of cases and run with them," said Kevin Crass, a partner at Friday Eldredge & Clark in Little Rock. He is defending both HP and Alltel Communications Inc. of Little Rock, the wireless subsidiary of Alltel Corp. that is the subject of one of Wilkes & McHugh's class-action suits challenging roaming fees.
While tort reform may have encouraged Wilkes & McHugh to branch out in a new direction, Crass thinks there's a particular reason the firm began its experimentation with class-action in Arkansas: state Supreme Court decisions that have made Arkansas an attractive jurisdiction for class-action complaints filed in state court.
"I suspect they are doing it here for the same reason attorneys from other states are coming here to do this," Crass said.
Last year, a study by the U.S. Chamber of Commerce The U.S. Chamber of Commerce is the world's largest not-for-profit federation of businesses, representing more than 3 million businesses and organizations in the United States. As of 2003, the chamber was comprised of 3000 state and local chambers and 830 business associations. ranked Arkansas as the sixth-easiest state in which to have a case certified as a class-action lawsuit.
All four of the known consumer class-action complaints that Wilkes & McHugh has filed in Arkansas were originally filed in state courts. The cases against HP and Alltel as well as one against Cingular Wireless LLC (Logical Link Control) See "LANs" under data link protocol.
LLC - Logical Link Control were filed in Phillips County Circuit Court, while AT&T Wireless was sued in Pulaski County Pulaski County is the name of several counties in the United States:
All three cell phone companies have been successful in having their cases transferred out of state courts and into U.S. District Court in Little Rock. But Crass' similar attempt to transfer the Hewlett Packard case to federal court failed.
"They want to stay in state court as much as they possibly can because they can get more provincial juries and the judges may be a little bit more lenient," Glasgow said.
Negligence claims filed against nursing homes have generally been successful in generating either an attractive settlement or a favorable jury award, usually within a year. But class-action law, Glasgow said, requires a large, long-term investment with much less certainty of a payoff. But class-action cases that do pay can generate enormous fees for the plaintiff's attorneys.
Crass said he hadn't noticed any Wilkes & McHugh advertisements in search of HP computer owners to join the class of plaintiffs in that case. But after the cell phone suits were filed -- two on March 20 in Helena and one on March 23 in Little Rock -- Wilkes & McHugh took out half-page ads in the Arkansas Democrat-Gazette The Arkansas Democrat-Gazette, commonly abbreviated locally as the Dem-Gaz or Demgaz, is a daily newspaper published in Little Rock, Arkansas.
By virtue of one of its predecessors, the Arkansas Gazette seeking cell phone users who think they may have been charged improper roaming fees.
The firm also continues to advertise for potential clients with claims of nursing home abuse or neglect.
"Their advertising has continued and has actually picked up with the ticking clock," Glasgow said, referring to a Wilkes & McHugh television ad that actually featured a metronome metronome (mĕ`trənōm'), in music, originally pyramid-shaped clockwork mechanism to indicate the exact tempo in which a work is to be performed. It has a double pendulum whose pace can be altered by sliding the upper weight up or down. , a weighted pendulum used to help musicians play at a constant tempo.
Under Arkansas' version of tort reform, incidents of harm that happened after the act was adopted on March 25 are subject to a $1 million cap in punitive damages. The wording of the television ad suggests that Wilkes & McHugh is primarily interested in cases that would not be subject to that cap, but those would also have to fall under the two-year statute of GLOUCESTER, STATUTE OF. An English statute, passed 6 Edw. I., A. D., 1278; so called, because it was passed at Gloucester. There were other statutes made at Gloucester, which do not bear this name. See stat. 2 Rich. II.
MARLEBRIDGE, STATUTE OF. limitation on medical malpractice claims or three-year statute of limitation on negligence claims.
"That's a salvage operation 1. The recovery, evacuation, and reclamation of damaged, discarded, condemned, or abandoned allied or enemy materiel, ships, craft, and floating equipment for reuse, repair, refabrication, or scrapping.
2. ," Glasgow said. "They have squeezed almost all of the blood out the turnip turnip, garden vegetable of the same genus of the family Cruciferae (mustard family) as the cabbage; native to Europe, where it has been long cultivated. The two principal kinds are the white (Brassica rapa) and the yellow (B. , but there may be a few drops left. And this is their strategy for getting those last few drops."
Wilkes & McHugh used a similar strategy in Mississippi, where tort reform adopted in October took effect on Jan. 1, according to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. John Maxey.
"There was a flurry of suits filed in December, but after the first of the year the advertising by Wilkes & McHugh went virtually dark," he said.
"They are not advertising here on TV, and they don't have any billboards," said Vanessa Henderson, executive director of the Mississippi Health Care Association, a nursing home industry lobbying group.
Glasgow said Wilkes & McHugh also has stepped up efforts to get nursing home cases filed and set for trial as soon as possible -- a strategy that he said was designed to pressure nursing home liability insurance carriers and their overburdened defense lawyers to make settlement offers.
"I don't know Don't know (DK, DKed)
"Don't know the trade." A Street expression used whenever one party lacks knowledge of a trade or receives conflicting instructions from the other party. how many letters we've gotten here in the past few days asking judges to set cases for trial even on top of cases that are already set," Glasgow said.
Stuart Miller, a nursing home defense lawyer with the Mitchell Williams Selig Gates & Woodyard firm in Little Rock, said he hadn't seen any particular increase in trial requests from Wilkes & McHugh.
"That's always been their strategy. They file them and try to get them set," Miller said.
RELATED ARTICLE: Roaming Fees Challenged
THREE OF THE FOUR KNOWN class-action lawsuits filed in Arkansas by the Wilkes & McHugh law firm challenge billing and marketing for long-distance phone service by wireless phone companies.
On March 20, Wilkes & McHugh filed a complaint against Alltel Communications Inc the wireless subsidiary of Alltel Corp, of Little Rock, in Phillips County Circuit Court on behalf of four Phillips County residents and "all others similarly situated similarly situated adj. with the same problems and circumstances, referring to the people represented by a plaintiff in a "class action," brought for the benefit of the party filing the suit as well as all those "similarly situated. ."
On the same day, the firm field a similar class-action case in the same court against Cingular Wireless LLC, the cell phone joint venture of SBC (1) (SBC Communications Inc., San Antonio, TX, www.sbc.com) A large, national telecommunications company that grew from a multitude of local and regional companies, including Southwestern Bell, Pacific Bell and Nevada Bell, into a single, unified brand by 2002. Communications Inc. of San Antonio San Antonio (săn ăntō`nēō, əntōn`), city (1990 pop. 935,933), seat of Bexar co., S central Tex., at the source of the San Antonio River; inc. 1837. and BellSouth Corp. of Atlanta. The plaintiff is a Phillips County woman "and all others similarly situated."
On March 23, a complaint was filed in Pulaski County Circuit Court against AT&T Wireless of Redmond, Wash. The only named plaintiff in the AT&T suit is a Pulaski County woman.
The lawsuits all accuse the phone companies of misleading advertising that led customers to believe incorrectly that virtually all of their long-distance calls would be included in a flat monthly fee and that their service areas are, broader than they really are.
While similar, the lawsuits complain of specific problems with the "fine print" of the companies' service agreements, which the plaintiffs charge are written to the complete advantage of the company and leave the customer with an unfair burden of objecting to unilateral changes in the contracts.
The three phone companies, all represented by different lawyers, have attempted to have the cases moved to U.S. District Court in Little Rock. All three support the move by citing the Federal Communications Act, which states that no state or local government has authority to regulate telephone or mobile service.