IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIFFANY HERNANDEZ and )

JOSE HERNANDEZ-ALVAREZ, )

Individually and as guardian ad litem )

for their child L.H., )

Plaintiff, )

) C.A. No.: N23C-11-112 FJJ

v. )

)

BAIRD MANDALAS BROCKSTEDT & )

FEDERICO, LLC; CHASES T. )

BROCKSTEDT; PHILIP C. FEDERICO; )

BRENT CERYES; STEPHEN A. SPENCE; )

SCHOCHOR, STATON, GOLDBERG, )

AND CARDEA, P.A., )

Defendants. )

Submitted: April 24, 2024

Decided: May 13, 2024

OPINION AND ORDER

ON DEFENDANTS’ MOTION TO DISMISS

GRANTED

Thomas Crumplar, Esquire, Jacobs & Crumplar, Wilmington, DE; Jonathan 

Nace, Esquire, Rockville, MD, Attorneys for Plaintiffs.

M. Claire McCudden, Esquire, Marshall Dennehey, P.C., Wilmington, DE; Josh

J.T. Byrne, Esquire, Philadelphia, PA, Attorneys for Defendants Baird Mandalas

Brockstedt & Federico, LLC, Stephen A. Spence, and Chases T. Brockstedt.

Marc Sposato, Esquire and Emmanuel-De Luna, Esquire, Marks, O’Neill, 

O’Brien, Doherty & Kelly, P.C., Wilmington, DE, Attorneys for Defendants Philip 

C. Federico, Brent Ceryes, and Schochor, Staton, Goldberg, and Cardea, P.A.

Jones, J.
2

This is a legal malpractice claim against the Defendants arising out of their 

representation of Plaintiffs who were a part of a class action involving claims 

against Mountaire Corporation and its affiliates (“Mountaire”). The claims against 

Mountaire involved allegations that Mountaire caused groundwater contamination 

and air pollution within the Millsboro, Delaware community. The class action 

against Mountaire was settled and a fund and process was established to deal with 

claims arising from Mountaire’s actions. Plaintiffs are the parents of L.H., a minor. 

Defendants are attorneys and their law firms (and successor law firms) who 

prosecuted the class action against Mountaire. Defendants represented Plaintiffs 

in the underlying action. Plaintiffs have filed a 5 count complaint based on: (1) 

legal malpractice; (2) reckless conduct; (3) promissory estoppel; (4) breach of 

contract; and (5) breach of the implied covenant of good faith and fair dealing. 

Defendants have moved, pursuant to Superior Court Civil Rule 12(b)(6), to 

dismiss Plaintiffs’ Complaint. Briefing has been completed. The matter is now 

ripe for decision. This is the Court’s decision on Plaintiffs’ Motion to Dismiss.

STANDARD OF REVIEW

On a Rule 12(b)(6) motion to dismiss Delaware law requires courts to accept 

all well-pled allegations as true.1 Then, the Court must apply a broad sufficiency 

test to determine whether a Plaintiff may recover under any “reasonably 

1 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011). 
3

conceivable set of circumstances susceptible of proof under the complaint.”2 If 

the complaint “gives general notice as to the nature of the claim asserted against 

the Defendant,” Delaware law disallows dismissal.3 A complaint is not dismissed 

“unless it is clearly without merit, which may be either a matter of law or fact.”4 

Further, a complaint’s “[v]agueness or lack of detail,” alone, is insufficient to grant 

dismissal.5 Thus, if there is a basis upon which the Plaintiff may recover, the 

motion must be denied.6

Generally matters outside of the complaint may not be reviewed on a motion 

to dismiss.7 There are exceptions to this rule and one of those exceptions arises 

“where the complainant refers to other proceedings or judgments, and specifically 

bases his right of action, in whole or in part, on something which appears in the 

record of the prior cause.”

8

 Delaware courts routinely consider collateral estoppel 

arguments on motions to dismiss and grant those motions where it is plain from 

the pleadings and the matters of which the court may take judicial notice that the 

pending claims are barred by collateral estoppel.9

The central issue in this Motion is the collateral estoppel effect of a Claims 

2 See Id. at 535.

3 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).

4

Id.

5

Id.

6 See Id.

7 Doe 30’s Mother v. Bradley, 58A 3.d 429 (Del. Super. 2012). 

8 Frank v. Wilson & Co., 32 A.2d 277 (Del. 1943); Hardy v. Jacobs & Crumplar et. al., 2015 WL 1598091 (Del. 

Super., 2015

9 PVP Ashton, OOC et. al. v. Financial Structures Limited, et. al., 2023 WL 2728775 (Del Super. 2023).
4

Administrator’s decision which arguably set the minor Plaintiff’s damages. As 

such for purposes of the factual record necessary to deal with the instant motion,

the Court will take judicial notice of the record in the underlying class action suit 

against Mountaire.

ANALYSIS

Plaintiffs’ first cause of action is based on a claim of legal malpractice. The 

essence of Plaintiffs’ claim is that the Defendants were negligent in failing to 

advise Plaintiffs to affirmatively opt out of the class in order to pursue an 

individual claim given the nature and extent of the minor’s injuries. 

Under Delaware law, for a Plaintiff to maintain a legal malpractice action 

she must meet each prong of a three element test which includes proving (1) the 

employment of an attorney; (2) the attorney’s neglect of a professional obligation; 

and (3) resultant loss.10 To prove the third element, the damages element, the 

Plaintiff in a legal malpractice action must demonstrate that “but for his lawyers’ 

negligence, Plaintiff would have been successful in the underlying action.”

11

“Thus, in order to sustain a claim of professional negligence against a Delaware 

attorney, Plaintiff must establish the applicable standard of care through the 

presentation of expert testimony, a breach of that standard of care, and a causal 

10 Healthrio, Inc. v. Margules et. al. 2007 WL 544156 (Del. Super. 2007). 

11 Id.
5

link between the breach and the injury.12 The instant motion to dismiss focuses on 

the third element, proximate cause.

Defendants maintain that the Claims Administrator’s decision establishes 

that Plaintiffs cannot meet their burden of proving that L.H.’s injuries were 

proximately caused by the actions of Mountaire. Therefore, Defendants maintain 

that Plaintiffs cannot succeed in a legal malpractice action. Plaintiffs contend that 

the Claims Administrator’s decision has no collateral estoppel affect.

Collateral estoppel, also known as issue preclusion, refers to the preclusive 

effect of a judgment on the merits of an issue that was previously litigated or that 

could have been litigated.13 Under the collateral estoppel doctrine, “once an issue 

is actually and necessarily determined by a court of competent jurisdiction, that 

determination is conclusive in a subsequent suit based on a different cause of 

action involving a party to the prior litigation.”

14 For collateral estoppel to bar 

consideration of an issue of fact:

1. The prior action must be a final adjudication on the merits by a court 

of competent jurisdiction;

2. The issue of fact decided must be the same as the one presented in the 

subsequent case;

3. The party against whom the doctrine is invoked was the same party in 

the prior action; and

12 Id; Middlebrook v. Ayers, 2004 1284207 (Del. Super. 2004).

13 PVP Aston, PPC et. v. Financial Structures Limited et. al., 2023 WL 2728775 (Del. Super. 2023).

14 Id; Hercules v. AIU Ins. Co., 783 A.2d 1275 (Del. 2000).
6

4. The party against whom the doctrine is invoked “had a full and fair 

opportunity to litigate” said issue of fact in the previous action.15

Collateral estoppel extends not only to issues decided by courts, but also to 

issues decided by administrative agencies acting in a judicial capacity where the 

parties had a full and fair opportunity to litigate.16 The question in the instant case 

is whether the decision of a claims administrator has a binding effect for purpose 

of collateral estoppel. This Court concludes that it does.

On December 23, 2020, a Motion for Preliminary Approval of the class 

action suit was filed. On this same day, the instant Plaintiffs were notified of the 

proposed settlement.17 Preliminary approval of the settlement by the Court 

occurred on January 7, 2021.18 The Order of Preliminary Approval ordered a 

Notice and Claims procedure that demanded any claimant seeking to “opt-out” 

must do so no later than 40 days after the entry of this Order.19 Plaintiffs received 

a letter from Defendants advising them to register their claim. Plaintiffs registered 

their claim and did not opt out.

On April 12, 2021, a fairness hearing was held. Shortly thereafter the Court 

issued a decision approving the Mountaire settlement. The following relevant 

portions of the Court’s decision approving the settlement provided:

15 Oakes v. Clark, 2012 WL 5392139 (Del. Super. 2012).

16 United Parcels v. Hawkins, 2024 WL 666726 (Del. 2024); Betts v. Townsend, Inc., 765 A.2d 531, 534 (Del. 

2000); Messick v. Star Enterprise, 655 A.2d 1209 (Del. 1995).

17 Complaint, ¶75.

18 Complaint, ¶75.

19 Complaint, ¶76.
7

Allocation of Settlement Proceeds

Plaintiffs have proposed that a Claims Adjudicator be retained 

for the allocation of the proceeds of the Settlement Agreement. 

Specifically, Plaintiffs have proposed, and Defendants have consented 

to, the Hon. Irma Raker (Ret.) serving as Claims Adjuster.

Judge Raker has extensive class action allocation experience, 

having recently led the distribution of settlement proceeds from a $190 

million settlement to approximately 9,000 claimants in Jane Doe No. 

1, et al. v. Johns Hopkins Hospital, et al., No. 24-C-13-001041 (Md. 

Cir. Ct. 2014). Judge Raker has also served as an Associate Judge of 

the District Court of Maryland, Montgomery County from 1980 to 

1982, Associate Judge of the Circuit Court for Montgomery County, 

Maryland from 1982 to 1992, and on the Maryland Court of Appeals 

from 1994 until her retirement in 2008.

The Claims Adjudicator will evaluate each claim and categorize 

each claimant to determine fair, reasonable, and equitable 

compensation based upon the established categories of damage and the 

Allocation Plan, attached as Exhibit C to the Motion. In doing so, the 

Claims Adjudicator will utilize the injury categories and additional 

factors noted in the Allocation Plan. Following notification to each 

claimant of their allocation, a period will be provided during which 

each claimant may appeal to the Claims Adjudicator before the 

allocation becomes final. An estimate of Judge Raker’s fee in 

connection with this service is provided as Exhibit 1 to the Motion.

* * * *

The Court approved Plaintiffs’ propped Notice Plan, finding it 

was consistent with Rule 23(c)(2), represented the best practicable 

notice under the circumstances, and was reasonably calculated to 

apprise Class Members of the facts of this litigation and their rights 

with respect to the Settlement Agreement.20

Class Counsel complied with this Court Order by directly 

mailing notice of the proposed Settlement to over 6,720 current and 

former residents within the Class Area.21 Similarly, Class Counsel 

20 D.I. 610.

21 Declaration of Melissa Baldwin, attached as Exhibit B to Motion.
8

provided publication Notice through newsprint advertisements and an 

internet site in a manner consistent with the Notice Plan.22 Having 

provided Notice to the Class Members in the manner directed by the 

Court, Plaintiffs have satisfied Rule 23(c)(2) and 23(e). I find that Class 

Counsel provided sufficient notice of the Settlement Agreement to 

Class Members.

* * * *

In Jane Doe 30’s Mother v. Bradley23 the Court applied a twostep process to its fairness analysis. The Court first conducts a 

preliminary review to determine any patent grounds to question the 

fairness. I have done that here and found none.

Second, the Court is required to conduct a fairness hearing to 

receive evidence in support or in opposition to the settlement. We have 

done that today, and I find that under all relevant factors the settlement 

is fair. I reviewed the following:

(1) The advantages of the settlement as opposed to the 

outcome at trial;

(2) Duration and costs of trial;

(3) Extent of participation in settlement negotiations by class 

representatives and by special master;

(4) Number and force of objections by class members;

(5) Effect on other actions;

(6) Fairness of the claims administration process;

(7) Intrinsic fairness of the settlement terms; and,

(8) Extent class representatives only get monetary relief.24

Here all the facts are met, but several deserve comment. The 

settlement amount is substantial. Liability is significant at issue, and 

success at trial is subject to doubt. The length and expense of trial and 

potential appeals are enormous. No class members are objecting to the 

settlement. Finally, the monetary relief will be administered through a 

comprehensive claims process to share the fruits of the efforts with all 

class members after evaluating each class members’ damages.

22 Id.

23 64 A.3d 379 (Del. Super., Nov. 19, 2012).

24 Crowhorn, supra.
9

* * * *

One other claim is worth comment. The “commenters” contend 

that class counsel never intended to see the case through, and were 

seeking a quick settlement which was in the Class Counsel’s interest. I 

need only point to Class Counsel’s substantial effort in time, and 

expenditure of money in costs to refute this claim. I saw the vigorous 

and determined work of Class Counsel expended to prove the case, in 

the face of an equally determined defense. Class Counsel’s work was 

the opposite of a sellout.

* * * *

Class Counsel worked diligently and professionally to bring 

about what to me is a remarkable result. They faced formidable 

opposition who contested everything, at least one time in a way that, 

for me, was beyond reasonable boundaries. This Court wrote no less 

than ten (10) full opinions on important and potentially case dispositive 

issues. I point that out not as a pat on the back to the Court – the work 

is our job and responsibility. But preceding each opinion is counsel’s 

efforts to create the record to allow the decision, and to brief and legally 

argue the merits. All of this work was done in a timely fashion, and 

often under significant time constraints. In addition, the work was done 

in the midst of a world-wide pandemic.

The April 12, 2021 Order approving the settlement made reference to the 

Allocation Plan. A provision of that allocation plan provides in part:

Claimant shall be barred from bringing any action against the 

Releasees (as defined in and to the extent set forth in the Settlement 

Agreement), Plaintiffs’ Counsel, the Claims Adjudicators, or the 

Claims Administrators, concerning the allocation received.

At some point after the opt out period expired, L.H. and her family retained 

Thomas Crumplar. Mr. Crumplar wrote a letter to Class Counsel on March 22, 

2022 making a number of complaints against class counsel. The letter concluded 

with “In candor, the Hernandez family may also seek leave to opt out of the class 

and proceed directly against Mountaire for their child’s case, as well as anyone 
10

else in their family who is part of the class.”

25 Mr. Crumplar filed a significant 

claim package with the Claims Administrator on behalf of L.H. which was 

complete with economic losses totaling “between $8.6 and $21.7 million.”

26 The 

demand package submitted included an expert report from a toxicologist which 

identified that “pre-term birth”, “spontaneous abortions,” and “developmental 

effects” due to the known effects of hypoxia on normal development were causally 

linked to ingestion of nitrates by pregnant women.

27 The submission included 

authoritative sources which supported the premise that nitrate exposure had 

positive associations between increasing textiles of nitrate levels and prevalence 

of term premature rupture of membranes. After a review of Plaintiffs’ claim the 

Claims Administrator issued a Tier 1 award of $2,500. Counsel filed an appeal of 

that award per the plan. After further evaluation, which included the Claims 

Administrator’s consultation with an independent physician in the field of 

maternal/fetal medical obstetrics/GYN and Public Health, the Claims 

Administrator denied the appeal.

28

Following the second denial of the claim, Plaintiffs filed a “Motion to 

Amend Orders Granting Preliminary and Final Approval to Class Settlement” in 

the Mountaire action. As described by Judge Karsnitz, the motion was far reaching 

25 D.I. 662.

26 Complaint, ¶85.

27 Complaint, ¶86.

28 May 9, 2023 decision page 8 citing Letter of Special Master/Claims administrator April 26, 2023; D.I 666.
11

and would have disrupted the entire class. Judge Karsnitz denied most of 

Plaintiffs’ request for relief. In doing so he wrote:

Time does not allow me to devote to a full analysis of the 

Rule 60(b) argument. In my view, the compelling 

response is that the delay between the time counsel for 

L.H. became aware of the issue (at least as early as March 

2022), and the filing of the motion a year later precludes 

Rule 60(b) relief.29 In addition and despite the 

misgivings, counsel for L.H. decided to move forward 

within the confines of the class process. Counsel candidly 

admitted at the hearing he thought L.H.’s claims could be 

appropriately processed under designed methodology. 

Any challenge to it has, for me, been waived.

Notwithstanding his conclusion, Judge Karsnitz ordered the Claims 

Administrator to take a “third look”.

What happened next is set forth in Plaintiffs’ Complaint in this case at 

paragraphs 101-107.

101. L.H. submitted additional supplemental materials 

including expert reports from a board certified 

Environmental and Occupational Exposure physician, 

and a separate physician board certified in Obstetrics and 

Gynecology.

102. It was discovered in this “third look” that the Claims 

Adjudicator had accepted an undisclosed OBGYN 

medical physician’s report that preterm labor was the 

result of an unexplained placental abruption.

103. However, this OBGYN was interviewed by L.H.’s 

counsel as part of the “third look” and agreed that “Yes. 

29 Sens Mechanical, Inc. v. Dewey Beach Enterprises, Inc. et al., 2015 WL 5157210, at *3-4 (Del. Super. June 19, 

2015).
12

There’s an association between nitrites [sic] and preterm 

birth.”

104. Plaintiffs two new physicians eliminated the 

possibility that unexplained placental abruption caused 

the preterm labor, as the labor preceded without any 

evidence of bleeding from an abruption, and the delivery 

was not consistent with induction of labor by placental 

abruption.

105. Additionally, a hydrogeologist’s report was 

provided.

106. The hydrogeologist provided to the Claims 

Adjudicator that during the time period October 2016-

March 2017 [the pregnancy of L.H.] more likely than not 

exceeded 10 ppm. The nitrate level would have fluctuated 

over time, but more likely than not it was higher than 10 

ppm during the time period of interest.

107. Nevertheless, whether due to economic interest, 

professional pride, or some other unknown factor, the 

Claims Adjudicator refused to increased her absurdly low 

award of $2,500.00 confirming that the Class Action 

Settlement was an inappropriate, inadequate, negligent 

and reckless strategy for Defendants to advise these 

Plaintiffs participate in.

When the instant factual record is viewed through the eyes of the collateral 

estoppel test the following is clear:

1. The Claims Administrator’s decision was a final adjudication on 

the merits by a court of competent jurisdiction as the claims 

process was an approved process set up by Judge Karsnitz. 
13

2. The issue of fact determined by the Claims Administrator is the 

same issue of fact that must be determined in the instant action. 

Namely whether L.H.’s injuries are related to the Mountaire 

contamination;

3. The party against whom the doctrine is invoked (the Plaintiffs in 

this case) was the same party to the prior action.

The parties do not seriously contest that the first three elements of issue 

preclusion are met. Where they differ is whether the claims process afforded the 

Plaintiff a “full and fair opportunity” to litigate the causation issue. According to 

Plaintiffs, they did not have a full and fair opportunity to litigate the causation 

issue. Plaintiffs’ view is that full and fair opportunity to litigate means that they 

must have had all of the tools available to them in the claims process that they 

would have had available to them in civil litigation, including the right to cross 

examination any expert relied upon by the Court. Defendants maintain that the 

process provided to the Plaintiffs under the plan gave them a full and fair 

opportunity to present their claims. 

Having considered the entirety of the record, this Court is satisfied that the 

Plaintiff had a full and fair opportunity to present their claims to the Claims 

Administrator. Plaintiffs’ counsel conceded at the argument on Motion to Amend 

Orders Granting Preliminary and Final Approval to Class Settlement that counsel 
14

believed L.H.’s claims could be appropriately processed under the designed 

methodology.30 This concession was made shortly after Plaintiffs learned at the 

hearing that $17,000,000 remained in the settlement fund when they thought not 

enough remained for their claim, which they valued between $7,000,000 to 

$22,000,000. When Judge Karsnitz gave Plaintiffs a third chance to go before the 

Claims Administration, Plaintiffs supplemented the record. As adequately 

described in their Complaint, the Plaintiffs took the following actions:

101. L.H. submitted additional supplemental materials 

including expert reports from a board certified 

Environmental and Occupational Exposure physician, 

and a separate physician board certified in Obstetrics and 

Gynecology.

102. It was discovered in this “third look” that the Claims 

Adjudicator had accepted an undisclosed OBGYN 

medical physician’s report that preterm labor was the 

result of an unexplained placental abruption.

103. However, this OBGYN was interviewed by L.H.’s 

counsel as part of the “third look” and agreed that “Yes. 

There’s an association between nitrites [sic] and preterm 

birth.”

104. Plaintiffs two new physicians eliminated the 

possibility that unexplained placental abruption caused 

the preterm labor, as the labor preceded without any 

evidence of bleeding from an abruption, and the delivery 

was not consistent with induction of labor by placental 

abruption.

30 May 9, 2023 decision page 8 citing Letter of Special Master/Claims administrator April 26, 2023; D.I 666.
15

105. Additionally, a hydrogeologist’s report was 

provided.

106. The hydrogeologist provided to the Claims 

Adjudicator that during the time period October 2016-

March 2017 [the pregnancy of L.H.] more likely than not 

exceeded 10 ppm. The nitrate level would have fluctuated 

over time, but more likely than not it was higher than 10 

ppm during the time period of interest.

These actions reveal that the Plaintiffs took full advantage of their 

opportunity to supplement the record. Not only did Plaintiffs submit expert 

materials but they had an opportunity to have a discussion with the OBGYN 

expert that the Court had consulted and had that doctor agree that there’s an 

association between nitrites and preterm birth.31 It is obvious that this discussion 

was not sufficient enough for the Claims Administrator to change her decision. 

But the point is that the Plaintiffs had the opportunity to question the doctor. On 

this record, this Court concludes that Plaintiffs were afforded a full and fair 

opportunity to litigate the issue of the causation of Plaintiff’s injuries to 

Mountaire’s actions.

It is well settled that decisions of Administrative Agencies are given 

collateral estoppel effect.32 L.H. had a full and fair opportunity to litigate the 

causation issue. Not only was the claims process followed, but after an application 

31 Plaintiffs maintain that the Claims Administrator served as a finder of fact because she retained an independent 

expert. Retention of an expert of the Court is permitted under Delaware law. D.R.E. 706.

32 United Parcels v. Hawkins, 2024 WL 666726 (Del. 2024); Betts v. Townsend, Inc., 765 A.2d 531, 534 (Del. 

2000); Messick v. Star Enterprise, 655 A.2d 1209 (Del. 1995).
16

to Judge Karsnitz, he amended the claims process and allowed L.H. to file a third 

claim with the Claims Administrator. L.H. was the only complainant given a third 

bite at the apple. L.H. presented extensive evidence on behalf of L.H.’s claim. 

Notwithstanding this evidence the Claims Administrator found a lack of causation.

Citing the Court to Sherman v. Ellis,

33 Plaintiffs maintain that where the 

malpractice involves a “transactional claim” rather than a “litigation claim,” 

collateral estoppel cannot bar a claim. First, the instant claim is a litigation claim 

not a transactional claim. Second, the premise of Plaintiff’s argument is that the 

Court accepted a relaxed standard of proof. In reversing the Superior Court in 

Sherman the Delaware Supreme Court agreed that the traditional ‘but for” test 

remained in both litigation and transactional malpractice claims. Finally, even if 

the allegations against Defendants somehow fall into the transactional world, the 

allegations relied upon by the Plaintiffs to support this ‘transactional” claim are 

based on not excluding the minor from the class and not negotiating terms that 

encompass minors with catastrophic injuries. As the record makes clear there was 

sufficient funds remaining in the trust at the time of the Motion to Amend Orders 

Granting Preliminary and Final Approval to Class Settlement and Plaintiff at that 

33 2020 WL 30393 (Del. Super., 2020, rev’d 246 A.3d 1126 (Del. 2021).
17

time advised the Court that the claims process was adequate to deal with the 

minor’s claims.34

In addition to the Claims Administrator’s decision, the fairness decision of 

Judge Karsnitz also acts as a preclusion to Plaintiff’s claims. In all class actions, 

the class counsel must establish that the settlement was fair to the class members.35

For this reason, courts have been very hesitant to allow individual class members 

to maintain legal malpractice actions against class counsel.36

In Thomas, the Court specifically noted: “The Court’s finding that the 

settlement was fair, and that class counsel did in fact adequately represent that the 

settlement was fair, and that class counsel did in fact adequately represent the class 

was essential to its judgment. Rule 23(e) required the Court’s finding of fairness 

as a condition to approval of the settlement. Thus, what I clear is that the settlement 

... rest[s] on the essential finding that class counsel adequately represented the 

Plaintiffs.”37

In Wyly v. Weiss, the Court determined class members could not establish a 

breach of duty as a matter of law because the underlying court had to determine 

34 Additionally, there is no allegation in the Complaint that Mountaire would have accepted additional terms.

35 See Superior Court Civil Rule 23. 

36 See e.g. Thomas v. Albright, 77 F.Supp.2d 114, 123 (D.D.C 1999); Med. & Chiropractic Clinic, Inc. v. 

Oppenheim, No. 8:16-CV-1477-T-36CPT; 2018 WL 3707836, AT *11 (M.D. Fla. Aug. 3, 2018), aff’d, 981 F.3d 

983 (11th Cir. 2020); Mendel v. Randolph, No. 19-CV-03244-JST, 2021 WL 2123578, at *8 (N.D. Cal. 2021), 

aff’d, No. 21-15910, 2022 WL 2526965 (9th Cir. 2022) citing to Laskey v. Int’l Union, United Auto., Aerospace & 

Agric. Implement Workers of Am. (UAW), 638 F. 2d 954, 967 (6th Cir. 1981).

37 Thomas, 77 F.Supp.2d at 121.
18

that class counsel’s fees were “fair and reasonable” based upon the performance 

of class counsel.38 The Court in Wyly stated:

These allegations, which are designed to state a claim that 

the Appellees “failed to exercise the ordinary reasonable 

skill and knowledge commonly possessed by a member 

of the legal profession, constitute a collateral attack on the 

District Court’s findings that he Settlement was ‘fair, 

reasonable, and adequate,’” that class counsel was entitled 

to an award of attorneys’ fees, and that those fees were 

“fair and reasonable.” Those findings were possible only 

if counsel’s performance met or exceeded the minimal 

standards of professional competence otherwise an award 

of fees would not have been fair and reasonable in the 

circumstances. We therefore conclude that the state court 

action seeks to relitigate the same issue that the District 

Court already resolved.39

A finding that the class has been adequately represented is implicit in an approval 

of a class settlement because in order to find that a settlement was fair and 

reasonable, the class has to be adequately represented.40

In the underlying action, Judge Karsnitz evaluated the Defendants 

representation as Class counsel and held that notice was proper, the settlement was 

fair and he approved the award of attorneys’ fees and costs and found that the Class 

Counsel worked diligently and professionally in order to arrive at a “remarkable 

result.” The underlying court’s findings that representation of the class was 

adequate to approve the settlement serves as an independent basis, beyond the 

38 Wyly v. Weiss, 697 F.3d 131, 141-42 (2d Cir. 2012).

39 Id. at 142.

40 Laskey v. UAW, 638 F.2d 954, 957 (6th Cir. 1981); Thomas v. Powell, 247 F.3d 260, 264 (D.C. Cir. 2001).
19

Claims Administrator’s decision, to give preclusive effect to Plaintiffs’ assertion 

that Defendants committed malpractice. 

L.H.’s injuries are tragic and the effect on the Hernandez family is 

significant and lifelong. This cannot be understated. But in the Court 

Administrator’s view these injuries were not caused by the actions of Mountaire. 

This finding, came only after L.H. had a full and fair opportunity to present her 

case. On this record, Plaintiff is collaterally estopped from relitigating the 

causation issue. Since it has been determined that the causation issue is averse to 

L.H., and the causation issue is a necessary element of the legal malpractice claim 

against his attorneys, Defendants’ Motion to Dismiss count I, which is based on 

proof a legal malpractice claim, is GRANTED. 

Plaintiffs have asserted four additional counts based on: (1) reckless 

conduct; (2) promissory estoppel; (3) breach of contract; and (4) breach of the 

implied covenant of good faith and fair dealing. Each of these causes of action 

requires as an element of damage that the Plaintiff prove that the proximate cause 

of her injuries are as a result of the actions of Mountaire. As set forth herein, this 

issue has been determined by the Claims Administrator and the decision is that 

there is no relationship between the injuries and Mountaire’s actions. As with the 

legal malpractice claim, the decision of the Claims Administrator acts as collateral 

estoppel. Since all of Plaintiff’s claims depend on proof that the Plaintiff’s injuries 
20

are related to Mountaire’s actions, a determination has been made that there is no 

relationship between the two, and that determination is binding on the Plaintiffs in 

this action, Defendants are entitled to a complete dismissal of this action.

IT IS SO ORDERED. 

 /s/ Francis J. Jones, Jr.

Francis J. Jones, Jr., Judge

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