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Wille v. Davis

United States District Court, D. Kansas

June 19, 2015

VIRGIL WILLE, Plaintiff,
GRANT DAVIS, Defendant.


RICHARD D. ROGERS, District Judge.

This is an action alleging legal malpractice. Plaintiff alleges that because of defendant's negligence, fraud and breach of fiduciary duty during the settlement of a case, plaintiff's legal interests in claims brought by his now deceased wife lost settlement value. The claims which were settled asserted that two major drug companies failed to take measures to prevent chemotherapy drugs from being diluted by a pharmacist. Hundreds of cases were brought by other plaintiffs with similar claims and were settled according to a "Global Settlement Agreement."

Currently, there are six other cases assigned to this court with similar claims against defendant. These cases have not always been assigned to the undersigned judge. This case is now before the court upon defendant's summary judgment motion. The predominant argument in defendant's motion is that plaintiff's claims are barred by the statute of limitations. For the reasons outlined below, the court finds that plaintiff's case is untimely filed.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.) cert. denied, 537 U.S. 816 (2002). Such a showing may be made with citation "to particular parts of materials in the record, including depositions, documents, ... affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials." FED.R.CIV.P. 56(c)(1)(A). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The moving party may demonstrate an absence of a genuine issue of material fact by pointing out a lack of evidence for the other party on an essential element of that party's claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)(quoting Adler, 144 F.3d at 671).


The following facts are considered uncontroverted for the purposes of defendant's summary judgment motion.

A. The suit against Eli Lilly and Bristol-Myers and its settlement

On April 23, 2002, defendant's law firm filed an action in state court in Jackson County, Missouri on behalf of Evelyn Wille against the pharmacist Robert Courtney, Eli Lilly and Company and Bristol-Myers Squibb Company. The lawsuit alleged that Ms. Wille was harmed because she received diluted chemotherapy medication. Plaintiff is the surviving widower of Evelyn Wille. Ms. Wille died from cancer on February 17, 2007. On November 5, 2002, Ms. Wille signed a disclosure of global settlement with Eli Lilly and Bristol-Myers. The disclosure document stated that there were over 300 separate lawsuits and that defendant's law firm represented the majority of the plaintiffs in those lawsuits. It further stated that Eli Lilly and Bristol-Myers were making a joint settlement offer to resolve all of the cases and set aside money for future cases filed against the companies. The disclosure makes reference to the settlement agreement. By signing the disclosure, Ms. Wille represented that she understood she had the right to "opt out" of the settlement agreement and to pursue her claims separately. She also represented that she understood that her right to receive funds would be determined by a Special Master according to the terms of the settlement agreement. Under those terms, a settlement fund of not less than a specified amount or more than a specified amount would be established, with the exact amount to be determined through binding arbitration. Tilzer v. Davis, Bethune & Jones, LLC, 204 P.3d 617, 620 (Kan. 2009). She further acknowledged that Eli Lilly and Bristol-Myers each offered Georgia Hayes (one of the plaintiffs bringing a similar claim) a separate settlement of approximately $1.45 million to resolve her case and Georgia Hayes would not be participating in the distribution of funds by the Special Master. Trial had started in Georgia Hayes' case when the global settlement was reached.

Also on November 5, 2002, Ms. Wille signed a release and settlement agreement which stated that she understood the process by which settlement amounts would be determined by the Special Master and acknowledged that she had agreed to accept the settlement amount determined by the Special Master as a full and complete compromise of her claims.

On May 20, 2003, the Special Master Committee awarded Ms. Wille $176, 415.92. On June 24, 2003, Ms. Wille signed a settlement sheet acknowledging receipt of the settlement amount minus attorney's fees.

B. The Tilzer case

Rita Tilzer was another client of defendant with a case which was settled as part of the global settlement with Eli Lilly and Bristol-Myers. She died prior to the settlement and her husband and children were substituted as plaintiffs. The Tilzer plaintiffs opted into the settlement agreement, but objected to the award recommended by the Special Master. A motion to enforce the settlement and a motion to enforce defendant's attorney's lien were filed in Missouri state court in late 2003. Also in late 2003, the Tilzer plaintiffs filed a legal malpractice counterclaim (later withdrawn) against defendant in Missouri state court. They also filed a separate malpractice lawsuit against defendant in Kansas state court in April 2004. The malpractice action alleged that the global settlement was an aggregate settlement and that defendant had failed to comply with the disclosure requirements of the Missouri Rules of Professional Conduct, specifically Rule 4-1.8(g).[1]

The Tilzer plaintiffs lost at the district court level in Kansas, but prevailed before the Kansas Supreme Court in a decision dated April 3, 2009. The court decided that "the terms of the Global Settlement contained all the important features of an aggregate settlement" and that "[r]ather than establishing a non-aggregate settlement, the unavailability of the information required to be disclosed by Rule 4-1.8(g) simply corroborated that it was an aggregate settlement and rendered it impossible for [defendant Davis] to obtain an informed consent under the rule." Tilzer, 204 P.3d at 629. The mandate was issued on ...

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