Legal fee arbitration upheld.

Byline: Barbara L. Jones

Minnesota attorneys may enforce a retainer agreement that requires their client to arbitrate a malpractice claim and give up her right to a jury trial pursuant to a retainer agreement that a federal judge found unconscionable.

The 8th Circuit found the circumstances that led to the lawsuit "troubling" but decided to enforce the agreement, reversing the District Court in the eastern district of Arkansas, where the defendant McSweeney Langevin offered to pay for the plaintiff's arbitration costs. That offer came during the appeal, after the District Court had set aside the arbitration agreement, according to the 8th Circuit.

So only one side of the arbitration process will pay all the arbitrator's fees.

The case derives from a MDL proceeding against Boston Scientific and others about transvaginal mesh, one of the largest mass tort cases in history. Manufacturers have paid nearly $8 billion in to resolve the claims to date, but the average settlement is less than $60,000, the New York Times reported. It also reported that claims against plaintiffs' lawyers are on the rise.

Case details

The singular facts of the case were set forth by Judge Morris Arnold for the circuit:

"Arkansas resident Jerri Plummer received a wholly unexpected phone call one day in October 2014 from someone named Yolanda. Yolanda knew that Plummer had had a transvaginal mesh implanted about six years earlier, and Yolanda asserted that the mesh was defective and that Plummer could die if she did not have it removed. Yolanda informed Plummer that she could arrange for Plummer to undergo surgery in Florida to have the mesh removed and could connect her with an attorney who could help her obtain compensation for the surgery and for her travel to Florida. Since Yolanda knew some of her medical history and since Plummer had recently experienced minor pain she attributed to the mesh, she agreed to Yolanda's arrangement. Plummer explains that, after the call, she felt as if she 'had a ticking time bomb inside of' her. Plummer traveled to Florida and had the mesh removed about two months later."

Plummer experienced a worsening medical condition after the surgery. The opinion relates that she sued a "horde" of defendants for fraud, constructive fraud, breach of fiduciary duty, civil conspiracy, unjust enrichment, violations of the Arkansas Deceptive Trade Practice Act, and malpractice. Among those sued were Minnesota attorneys Rhett McSweeney and David...