Case Style: Donnis Lawson, Estate of Jimmy David Lawson and Shawn Lawson v. Frank W. Frasier, Frank W. Frasier, P.C., Frasier Frasier & Hickman, L.L.P., Henry A. Meyers, III, Meyers & Leonard, P.L.L.C. and Charles J. Watts
Case Number: CJ-2014-4413
Judge: Caroline Wall
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: Spencer Bryan and Steve Terrill
Defendant's Attorney: Tim Martin
Description: Tulsa, OK - Donnis Lawson, Estate of Jimmy David Lawson and Shawn Lawson sued Frank W. Frasier, Frank W. Frasier, P.C., Frasier Frasier & Hickman, L.L.P., Henry A. Meyers, III, Meyers & Leonard, P.L.L.C. and Charles J. Watts on professional negligence theories claiming:
This Court has jurisdiction of this case because it involves claims by citizens of Oklahoma against natural and corporate citizens of Oklahoma, and amounts m controversy that are in excess of the minimum jurisdictional limits of this Court.
Venue is proper in Tulsa County, Oklahoma, because portions of the cause of action arose in Tulsa County, Oklahoma and because Defendants Frank W. Frasier, Frank
W. Frasier, P.C. and Frasier, Frasier & Hickman, LLC were and still are residents of Tulsa County, Oklahoma. Venue is proper as to the remaining Defendants because venue is proper as to the Frasier Defendants.
3.1. Plaintiff Donnis Lawson is the widow of her marriage with Jimmy David Lawson, Deceased, and is also the duly appointed Personal Representative of the Estate of Jimmy David Lawson, Deceased. She is the proper party and representative of the Estate of Jimmy David Lawson, Deceased, to bring a wrongful death and estate action for the death of Jimmy David Lawson. Shawn Lawson is the son of Jimmy David Lawson, Deceased, and Donnis Lawson, and is a wrongful death beneficiary and heir of the Estate of Jimmy David Lawson, Deceased. Plaintiffs are both citizens of Oklahoma, and domiciliaries of Osage County, Oklahoma.
3.2. Defendant Frank W. Frasier is a citizen of Oklahoma and at all times relevant to this case was a licensed attorney in Oklahoma. Defendant Frank W. Frasier,
P.C. is an Oklahoma professional corporation. Defendant Frasier, Frasier & Hickman, LLP is a domestic limited liability partnership organized under the laws of Oklahoma. Frank W. Frasier, individually and Frank W. Frasier, P.C. at all times were partners in the law firm of Frasier, Frasier & Hickman, L.L.P. The agent for service of Frasier, Frasier & Hickman, LLP is the chief executive officer. These three Defendants may be served with citation and legal process at their office, which is located at 1700 Southwest Boulevard, Tulsa, OK 74107-1730, or wherever they may be found.
3.3. Defendant Henry A. Meyer, Ill is a citizen of Oklahoma and at all times relevant to this case was a licensed attorney in Oklahoma. At all relevant times, he was a partner in Meyer & Leonard, PLLC, an Oklahoma domestic professional limited liability company. Henry A. Meyer, III is the registered agent for Meyer & Leonard, PLLC. These two Defendant may be served with citation and legal process at their office, which is located at 116 East Sheridan, Suite 207, Oklahoma City, OK 73104, or wherever they may be found.
3.4. Defendant Charles J. Watts is a citizen of Oklahoma and at all time relevant
to this case was a licensed attorney in Oklahoma. Charles J. Watts may be served with
citation and legal process at his office, which is located at 600 North Walker, Suite 101, Oklahoma City, OK 73102.
4.1. Donnis Lawson and Jimmy D. Lawson, Deceased, lived all of their adult lives as husband and wife. Donnis worked as a hair dresser and beautician and Jimmy worked for the Atchison, Topeka & Santa Fe Railroad, which later became the Burlington Northern Santa Fe Railway Company. Donnis and Jimmy lived in Ponca City, Oklahoma and Jimmy worked as a telegrapher for the Santa Fe in many different locations over the years, but primarily at the depot in Ponca City for the last years of his career. After serving the railroad for over forty years, Jimmy retired from the Santa Fe in 1995. During his years of service with the Santa Fe, Jimmy David Lawson suffered occupational exposure to asbestos fibers.
4.2. In October 2006, Jimmy David Lawson's physicians suspected that Jimmy had a mass in his lung that might be cancer. A biopsy was performed in November 2006 and the pathology studies confirmed that Jimmy was suffering from mesothelioma, a type of cancer caused by exposure to asbestos fibers. Jimmy was followed by his doctors and given palliative care inan effort to ease the pain during the many months he suffered with mesothelioma. After a year of suffering, Jimmy finally succumbed to the mesothelioma, and Jimmy David Lawson died on October 24, 2007. Jimmy was survived by his wife, Donnis Lawson, and his son, Shawn Lawson.
4.3. Prior to his death, Jimmy and Donnis Lawson had been in contact with Frank Frasier, a Tulsa attorney who practiced with the finn of Frasier, Frasier & Hickman, LLP in Tulsa, concerning Jimmy's mesothelioma. After Jimmy died, Donnis Lawson entered into a written contingency fee contract with Frasier, Frasier & Hickman, LLP, to represent Donnis Lawson in all claims arising out of Jimmy's death. Frank Frasier detennined that a wrongful death and estate case should be brought against Jimmy's past employer, the Burlington Northern & Santa Fe Railway Company.
4.4. In April 2008, Frank Frasier notified Donnis Lawson that he believed that the case required the association of another attorney, who had expertise in the field of railroad law and asbestos. As a result, Frank Frasier on behalf of the Frasier Defendants, associated Henry A. (Hank) Meyer, III, as counsel on the Lawson case.
4.5. Sometime later in 2008, Frasier and Meyer further associated as counsel Charles J. Watts as one of the attorneys representing Donnis Lawson in the case against the railroad. By September, 2008, the Frasier Defendants, the Meyer Defendants and Charles J. Watts all had an attorney-client relationship with Donnis Lawson to represent her, the estate and any lawful wrongful death and/or estate beneficiaries against the railroad.
4.6. In September 2008, Meyer appeared in probate court in Osage County to confirm the appointment of Donnis Lawson as Personal Representative of the Estate of Jimmy David Lawson.
4.7. On or about October 3, 2008, Meyer and Watts filed an original complaint in the United States District Court for the Northern District of Oklahoma against the Burlington Northern & Santa Fe Railway Company, Cause Number 4:08-cv-00590-jtg. Henry A. Meyer, III and Charles J. Watts were listed as counsel for Donnis Lawson on the complaint. Both Meyer and Watts filed a notice of appearance on behalf of Donnis Lawson with the Clerk of the Court for the Northern District of Oklahoma.
4.8. Attorneys for the Burlington Northern answered the case in early December 2008 and moved to have the case transferred to the asbestos Multi-District Litigation in the United States District Court for the Eastern District of Pennsylvania (MDL Court).
4.9. On December 29, 2008, Meyer, Watts and the attorney for the BNSF Railway Company filed a joint motion with the US District Court for the Northern District of Oklahoma in which they requested that any discovery be stayed in the case because of the impending transfer of the case to the MDL Court in Philadelphia.
4.10. In May 2009, Kenneth Weltz, national counsel for the BNSF, communicated with Charles Watts and provided an asbestos disclosure document that the BNSF used for evaluation of asbestos cases.
4.11. On or about June 1, 2009, the Lawson case was formally transferred from the United States District Court for the Northern District of Oklahoma to the MDL Court. The case was docketed under cause number 02:09-cv-69336-ER.
4.12. On or about October 26, 2009, the MDL Court issued a status and scheduling conference order for many, if not all, of the Northern District of Oklahoma asbestos cases, including the Lawson case. This order required counsel for the Plaintiff
(Meyer and/or Watts or their designated counsel) to appear before the MDL Court in Philadelphia for the conference on November 18, 2009. The order further stated that the case would be dismissed without prejudice if counsel failed to appear at the scheduling conference.
4.13. No attorney representing Donnis Lawson appeared at the scheduling conference in Philadelphia on November 18, 2009.
4.14. On or about November 19, 2009, the MDL Court dismissed the Lawson case against the BNSF Railway Company, without prejudice. On or about November 30, 2009, the Clerk of the Court entered the order of dismissal.
4.15. The records of the MDL Court indicate that the contact information for Meyer was:
Henry A. Meyer, III
Abowitz, Timberlake & Dahnke, P.C.
P.O. Box 1937
Oklahoma City, OK 73101 405-236-4645 (fax)
This contact information was incorrect at the time and has not been updated since
4.16. The records of the MDL Court indicate that the contact information for Watts was:
Charles J. Watts,
1001 NW 63rd Street, Suite 101, Oklahoma City, OK 73116
And the fax number was undeliverable
This contact information was incorrect at the time and has not been updated since
4.17. In September 2010, Meyer advised Frasier, Watts and Donnis Lawson by letter that the case was still pending in the MDL Court, which was factually incorrect.
4.18. No motion to reinstate the case was filed in the MDL Court or otherwise by December 1, 2010, or since then.
4.19. In February 2011, Frasier communicated by mail to Donnis Lawson that Frasier had recently spoken to Meyer, who reassured Frasier that the case was in the midst of multi-district litigation and that there was not much that could be done until the MDL Court had reached a decision about the Lawson case.
4.20. In April 2012, Watts communicated with Donnis Lawson about the need to provide confirmation of Jimmy David Lawson's asbestos exposure while Jimmy had been working for the Santa Fe railroad. Donnis Lawson contacted Jerry Keeton, a former co-worker of Jimmy David Lawson at the Santa Fe, who had known Jimmy David Lawson for many years. In April 2012, Donnis Lawson met with Jerry Keeton and Charles Watts in Ponca City, Oklahoma, during which Mr. Keeton provided information to Charles Watts to verify Jimmy David Lawson's occupation exposure to asbestos while Jimmy had been working for the Santa Fe.
4.21. Donnis Lawson had further communication by phone with Charles Watts in August 2013 and December 2013 concerning the status of her case.
4.22. At no time have the Frasier Defendants, the Meyer Defendants or Watts, or any member of their respective law firms, ever advised Donnis Lawson that her case had been dismissed.
4.23. As a result of the dismissal by the MDL Court and the failure to reinstate the case, Mrs. Lawson and Shawn Lawson have forever lost the right to pursue their cause of action for the suffering and death of Jimmy D. Lawson.
Breach of Contract
5.1. Plaintiffs hereby incorporate by reference the factual background set forth in paragraphs 4.1 through 4.23, as set forth above.
5.2. Defendants entered into and shared responsibility for the written contract whereby they agreed to represent and prosecute Plaintiffs' wrongful death and estate claims arising from the asbestos exposure and death of Jimmy D. Lawson.
5.3. Defendants breached that contract of representation by failing to appear for the Court-ordered scheduling conference of the MDL Court and permitting the case to be dismissed on November 19, 2009.
5.4. Plaintiffs' cause of action for breach of contract accrued on or about December 1, 2010, when the time for filing a motion for reinstatement of the claim expired under Rule 60 of the Federal Rules of Civil Procedure.
5.5. Plaintiffs had a meritorious underlying claim against the Burlington Northern - Santa Fe Railway Company, as more fully described below.
5.6. Plaintiffs' claims against the Burlington Northern - Santa Fe Railway Company expired as a matter of law as a result of the statute of limitations on Plaintiffs' claims against the railroad.
5.7. As a direct and proximate result of the Defendants' breach of the contract to represent the Plaintiffs, Plaintiffs have suffered damages for the loss of their causes of action against the Burlington Northern - Santa Fe Railway Company.
Breach of Fiduciary Duty
6.1. Plaintiffs hereby incorporate by reference the factual background set forth in paragraphs 4.1 through 4.23, as set forth above.
6.2. As a result of the special nature of the attorney-client relationship, Defendants owed a fiduciary duty to Plaintiffs to competently, zealously and diligently represent them. A duty was imposed by law upon the Defendant attorneys pursuant to the Oklahoma Rules of Professional Conduct. Defendants violated sections 1.1 (competence), 1.3 (diligence) and 1.4 (communication) of the Oklahoma Rules of Professional Conduct during their representation of Plaintiffs. Specifically, they failed to exercise the skill, thoroughness, and preparation necessary for the representation of Plaintiffs, in violation of section 1.1. Defendants failed to act with reasonable diligence and promptness, in violation of section 1.3. Defendants failed to keep the Plaintiffs reasonable informed about the status of the matter, in violation of section 1.4.
6.3. Because of these breaches of the fiduciary duty that a lawyer owes to his/her client, Plaintiffs are entitled to cancellation of the contingency fee obligation and forfeiture of any fees or expenses by Defendants in connection with this case.
Negligence and Gross Negligence
7.1. Plaintiffs incorporate by reference all the allegations in the preceding paragraphs and subparagraphs set forth above.
7.2. Defendants were negligent, both generally, and in the following particulars:
a. All Defendants were negligent in failing to reasonably and diligently check the status of the Lawson case in the MDL Court;
b. All Defendants were negligent in failing to file a motion to reinstate the case in the MDL Court on or before December 1, 2010;
c. All Defendants were negligent in failing to promptly and reasonably obtain evidence of the asbestos exposure that Jimmy D. Lawson had encountered while he was an employee of the BNSF Railway Company, or its predecessor, the Atchison, Topeka & Santa Fe Railway Company;
d. All Defendants were negligent in failing to timely provide defense counsel for the BNSF Railway Company with documentation of Jimmy David Lawson's BNSF asbestos disclosure statement;
e. Defendants Meyer, Meyer & Leonard, PLLC and Watts were negligent in failing to provide the Clerk of the MDL Court with current and accurate contact information on a timely basis in 2009 and 2010;
f. All Defendants were negligent in failing to assign responsibility for who would be appearing before the MDL Court, either in person, or through association of local counsel in Philadelphia;
g. Defendants Meyer, Meyer & Leonard, PLLC and Watts were negligent in failing to appear for the scheduling conference of November 18, 2009 before the MDL Court.
7.3. All of the Defendants were grossly negligent in failing to check on the status of the Lawson case for the period from November 30, 2009 through October 2014, during which they would have learned that the case had been dismissed, a period of five years.
7.4. Each such act of omission or ordinary or gross negligence was a proximate cause of the Joss of Plaintiffs' causes of action and their resulting damages.
Vicarious and Joint and Several Liability
8.1. Defendants were representing Plaintiffs based on a contingency fee agreement between Plaintiff Donnis Lawson and Frasier, Frasier & Hickman, LLP.
8.2. Defendants entered into an agreement to associate and collaborate in the development and prosecution of the Lawson case, and to share the profits and losses that
may be associated with the Lawson case by agreeing to contribute legal services. case development expenses and divide the contingency fee among themselves.
8.3. Each Defendant acted in furtherance of the agreement by accumulating information and/or evidence, filing pleadings, requesting and receiving medical records and information, and/or communicating with Dannis Lawson.
8.4. Defendant are therefore vicariously liable for the acts or omissions of one another under the doctrine of joint venture, joint enterprise, and/or agency. Each
Defendant is jointly and severally liable for all damages sustained by Plaintiffs.
9.1. At all times relevant to this case, Frank W. Frasier and/or Frank W. Frasier,
P.C. was a partner in the firm of Frasier, Frasier & Hickman, LLP.
9.2. Frasier, Frasier & Hickman, LLP is therefore liable for the acts or omissions, negligence, breaches of fiduciary duty and gross negligence of Frank W. Frasier.
9.3 At all times relevant to this case, Henry A. Meyer, III was a partner and/or member of Meyer & Leonard, PLLC.
9.4. Meyer & Leonard, PLLC, is therefore liable to the acts, omissions, negligence, breaches of fiduciary duty and gross negligence of Henry A. Meyer, III.
Meritorious Underlying Claim
10.l. For each of the causes of action set forth above, Plaintiffs incorporate by reference the factual allegations in paragraph 4 and its subparts.
10.2. Plaintiffs' underlying cause of action against the Burlington Northern - Santa Fe Railway Company was meritorious, and Plaintiffs would have made a substantial recovery of damages, either by way of settlement or as a result of trial and judgment, but for the conduct of Defendants, as set forth above.
10.3. Plaintiffs' claims were based on the Federal Employers Liability Act, a special statute enacted for claims by railroad workers against interstate railroad companies, such as the Burlington Northern - Santa Fe Railway Company. This statute provides a lower standard of proof of causation of damages for claims by railroad workers than for traditional negligence claims under the common law or other statutes. Plaintiffs' claims for asbestos exposure on the job causing the death by mesothelioma of Jimmy D. Lawson, would certainly have met that lower standard of proof.
10.4. In addition, Plaintiffs claims were supported by substantial evidence that the railroad companies, including the Santa Fe, knew of the hazards of asbestos exposure for many years, but failed to remediate the exposure or to adequately warn the employees of the dangers associated with asbestos exposure.
10.5. Plaintiffs had substantial evidence in the pathology evidence that Mr.
Lawson indeed was suffering from mesothelioma, which was the cause of his death.
10.6. Plaintiffs had available to them information of actual exposure history for Jimmy David Lawson, based on the testimony of his co-worker Jerry Keeton, who held the same job as Mr. Lawson with the railroad, and worked in the same locations for many years.
11.1. Jimmy D. Lawson survived for approximately a year after his diagnosis with mesothelioma. During that time he continued to live at home with his wife Donnis, who observed Jimmy 's suffering, pain and mental anguish, and suffered herself from observing the deterioration and ultimate death of her life-long companion and husband.
11.2. Jimmy D. Lawson suffered long and substantial pain and suffering from the mesothelioma and mental anguish for knowing that his condition was terminal. Those damages would have survived to the Estate of Jimmy David Lawson.
11.3. Substantial medical and hospital expenses were incurred in the care and treatment of Jimmy D. Lawson during his lifetime.
11.4. Donnis Lawson has suffered from the mental anguish that she suffered, both before and after Jimmy 's death. Donnis Lawson also suffered the wrongful death damages provided by Oklahoma law, including, but not limited to loss of society, consortium, companionship, care, counsel, guidance, love and affection, that Jimmy David Lawson would have provided to her had he lived.
11.5. Shawn Lawson suffered mental anguish the wrongful death damages provided by Oklahoma Jaw, including, but not limited to loss of society, parent-child consortium, companionship, care, counsel, guidance, love and affection, that Jimmy David Lawson would have provided to him had he lived.
11.6. Donnis Lawson has suffered from mental anguish and distress upon learning after many years that her case against the railroad had been dismissed because of the negligence and gross negligence of the Defendants, in whom she had placed her trust.
11.7. By reason of all of the above and foregoing, Plaintiffs have been damaged m an amount to be determined by the jury for actual damages in the sum of
$2,500,000.00 dollars, of such lesser amounts as the jury may find.
11.8. By reason of the gross neglect of Defendants in the handling of this lawsuit, Plaintiffs are entitled to an award of punitive damages, to be assessed by the jury, as punishment for the gross neglect of the Defendants.
12.1. Plaintiff Donnis Lawson was unaware that her case against the BNSF had been dismissed by the MDL Court until late July 2014.
12.2. Plaintiff Donnis Lawson pleads the discovery rule, in anticipation of an alleged defense asserting the statute oflimitations by Defendants.
12.3. Plaintiff Donnis Lawson has been a hairdresser and beautician throughout her lifetime, and is unsophisticated and ignorant of legal matters and litigation.
12.4. Donnis Lawson exerted the reasonable diligence of a similar, unsophisticated client, in the same or similar situation, in dealing with her lawyers and the lawsuit against the BNSF Railway Company.
12.5. Shawn Lawson was not aware of the litigation, as it was being handled exclusively for him by his mother, because Shawn is deaf.
Professional Negligence Affidavit
13.1 Attached hereto is the affidavit of Plaintiffs' counsel stating that Plaintiffs have complied with the requirements of 12 Okla. Stat. § 19.1 concerning obtaining an expert opinion consultation and report.
13.1. Plaintiffs hereby demand trial by jury.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to appear and answer herein, and that upon trial of this case, they recover their damages, as set forth above, from Defendants, jointly and severally, plus punitive damages, costs of court, pre-judgment interest, post-judgment interest, and that they have such other and further relief, both general and special, at law and in equity, to which they may be justly entitled under the facts and circumstances of this case.
Outcome: Settled and dismissed with prejudice.