Justia Professional Malpractice & Ethics Opinion Summaries

This appeal stemmed from plaintiff Lucia Serico’s motion for attorney’s fees and other litigation expenses pursuant to Rule 4:58 after a jury trial on medical malpractice claims against Robert Rothberg, M.D. At issue was whether Serico could collect attorney’s fees from Rothberg despite entering into a “high-low agreement” that limited the amount she could recover at trial to $1,000,000. Based on the expressed intent of the parties and the context of the agreement, the New Jersey Supreme Court found the agreement set $1,000,000 as the maximum recovery. Therefore, Serico could not seek additional litigation expenses allowed by Rule 4:58. View "Serico v. Rothberg" on Justia Law

Bradley and Karol Johnson appealed a judgment granting the law firm Barna, Guzy, & Steffen, Ltd. ("BGS") foreclosure of a real estate mortgage for payment of a $258,769.97 debt, and an order denying their N.D.R.Civ.P. 60(b) motion for relief from judgment. In 2013 the Johnsons retained BGS to represent them in a lawsuit in connection with the probate of the estate of Bradley Johnson's father in Minnesota. The Johnsons resided in, and BGS was located in, the Minneapolis, Minnesota area. BGS extended credit to the Johnsons for costs, fees, and expenses that would be incurred in representing them in the lawsuit through a revolving line of credit agreement and a revolving promissory note. To secure payment, the Johnsons executed a mortgage on land they owned in North Dakota. The mortgage required the Johnsons to pay all of the principal and interest on the indebtedness when due to BGS. The Johnsons failed to make the payments to BGS as required under the loan agreements. In 2015 BGS brought this action against the Johnsons and others in North Dakota to foreclose the mortgage. The Johnsons counterclaimed, alleging its attorneys committed legal malpractice and other torts during the Minnesota legal proceedings. The district court ultimately dismissed the Johnsons' counterclaim without prejudice for lack of subject matter jurisdiction under N.D.R.Civ.P. 12(h)(3). The court granted summary judgment for foreclosure on the North Dakota property in favor of BGS, concluding the Johnsons were indebted to BGS in the amount of $258,769.97 under the loan agreements with interest continuing to accrue. Because the Johnsons did not establish the district court erred in any of its rulings, the North Dakota Supreme Court affirmed the judgment, and the order denying the motion for relief from judgment. View "Barna, Guzy & Steffen, Ltd. v. Johnson" on Justia Law

Plaintiff Kimberli Ransom, the relator and petitioner in this mandamus proceeding, filed a medical negligence action alleging that two radiologists employed by Radiology Specialists of the Northwest (defendant) were negligent in reading her imaging studies when they examined them in 2013. In 2016, during discovery in that underlying action, plaintiff took the depositions of the radiologists. The radiologists testified to the findings that they had made after examining plaintiff’s imaging studies, but, when plaintiff showed the radiologists the studies, they testified that they had no independent memory of reviewing them. When plaintiff then asked the radiologists to tell her what they could now see in those studies, defense counsel instructed the radiologists not to answer. Defense counsel took the position that those questions called for “expert testimony” that was not discoverable under ORCP 36 B. Defense counsel also argued that those questions impermissibly invaded the attorney client privilege set out in OEC 503. Plaintiff filed a motion to compel discovery and sought an order allowing her to ask the radiologists about their current “knowledge and ability to read and interpret” the imaging studies. The trial court denied plaintiff’s motion, and she petitioned the Oregon Supreme Court for a writ of mandamus requiring the trial court to grant her motion, or, in the alternative, show cause why it had not done so. The Supreme Court issued the writ; the trial court declined to change its ruling. The Supreme Court concluded the questions that plaintiff asked the radiologists about what they saw in plaintiff’s imaging studies in 2016 were relevant under ORCP 36 B; they were reasonably calculated to lead to admissible evidence about the radiologists’ treatment of plaintiff in 2013 and what they perceived and knew at that time. The Court also concluded those questions did not call for impermissible “expert testimony” and did not invade the attorney client privilege. View "Ransom v. Radiology Specialists of the Northwest" on Justia Law

Richard Joyce appealed the decision of an appellate officer within the Office of Professional Regulation dismissing his appeal for failure to file a statement of questions for consideration on appeal and complete the record for appellate review by ordering a transcript. Joyce has been a licensed surveyor since 1969. In 2014, Joyce completed a survey of the boundary between two adjoining properties. One of the property owners filed a complaint with the Office of Professional Regulation, Board of Land Surveyors (OPR) regarding Joyce's compliance with professional surveying standards. OPR opened an investigation into the complaint and, after review ultimately dismissed the complaint. Months later, OPR sent Joyce a letter stating that "[n]ew evidence ha[d] been brought to [its] attention . . . that warrant[ed] further investigation and reconsideration." OPR did not disclose the nature or origin of the new evidence. OPR sent Joyce a letter notifying him that "[t]he State Prosecuting Attorney ha[d] filed the enclosed charges and ha[d] asked the Office of Professional Regulation to take disciplinary action against [his surveying] license." A hearing on the charges was held in June 2017; OPR fined Joyce $750 and placed a two-year condition on his surveying license, requiring that he complete additional surveying training within 180 days of the entry of the order. The order noted Joyce's right to file an appeal with an OPR appellate officer within thirty days of the entry of the order. The order also contained instructions on how to request forms for proceeding in forma pauperis, including a statement that in forma pauperis status would make Joyce eligible to receive a transcript of the June hearing without cost. In his filing, Joyce's attorney reiterated that the appeal presented two legal issues, both raised in the attorney's notice of appeal, and that a transcript was unnecessary for resolution of the appeal. Neither Joyce nor his attorney filed a statement of questions, ordered a transcript of the June 2017 hearing, or filed a brief. The Vermont Supreme Court found that because Joyce provided the appellate officer with neither a statement of questions nor a transcript, per OPR rules, the record was not complete, and the appellate officer was effectively unable to conduct a review of the proceedings below. The appellate officer correctly considered the factors relevant to the decision not to review Joyce's filings in a summary manner and to dismiss Joyce's appeal, specifically, the procedural irregularities in the appeal that essentially foreclosed appellate review. View "In re Richard H. Joyce" on Justia Law

The Fifth Circuit affirmed the district court's dismissal of plaintiffs' claims against defendant as premature. Plaintiffs alleged that Eisner, seeking to maintain its relationship with Leveraged and some related funds, participated in a scheme to trick plaintiffs into waiving their redemption rights. Louisiana has established a public accountant review panel to review claims against certified public accountants and accounting firms, and plaintiffs conceded that they did not seek panel review before filing suit. The court held that the district court dismissed plaintiffs' suit as premature because they failed to seek pre-suit review by the Louisiana public accountant review panel pursuant to Louisiana Revised Statutes 37:105. Accordingly, the court remanded for the district court to decide in the first instance whether defendants were entitled to dismissal with prejudice. View "Firefighters' Retirement System v. EisnerAmper, LLP" on Justia Law

The law firm of Crowell & Moring (Crowell) was vicariously disqualified from this insurance coverage action based on a newly-hired, but disqualified discovery associate in a geographically distant office. Then, while the disqualification appeal was pending with the California Court of Appeal, the associate left Crowell. At that point, Kirk v. First American Title Ins. Co., 183 Cal.App.4th 776 (2010) became the controlling authority. "Kirk" also involved a disqualified attorney who left a vicariously disqualified law firm during the pendency of an appeal, and the result was that the order of disqualification had to be reversed and remanded back for reconsideration by the trial court. In the process Kirk outlined a number of factors that controlled the case on remand with regard to the efficacy of what is called an ethical screen in retroactively deciding whether any of a former client’s confidential communications had been actually disclosed. Following Kirk, the Court of Appeal reversed the disqualification order and returned the case to the trial court with directions to reevaluate its disqualification decision in light of Kirk – specifically the Kirk factors as to whether any confidential information has actually been disclosed. View "Fluidmaster v. Fireman's Fund Ins. Co." on Justia Law

At issue was the claim and issue preclusive significance in future litigation of a conclusion relied on by the trial court and challenged on appeal but not addressed by the appellate court. The Supreme Court overruled People v. Skidmore, 27 Cal. 287 (1865), holding that Skidmore reflects a flawed view of preclusion and that stare decisis does not compel continued adherence to Skidmore.Plaintiff sued both Dr. Haitham Matar and Dr. Stephen Nahigian for professional negligence and alleged that Matar was vicariously liable for Nahigian’s alleged tort. The trial court granted summary judgment for both defendants in two successive judgments. In the first judgment with respect to Nahigian, the trial court concluded that the suit was untimely and that there was no genuine issue regarding causation. In the second judgment, the trial court concluded that the court’s earlier no-causation determination precluded holding Matar liable for Nahigian’s conduct. The court of appeals affirmed the first judgment on statute of limitations grounds without reaching the no-causation ground. As to Matar, the court of appeal reversed, concluding that claim preclusion was unavailable because Plaintiff sued both defendants in a single lawsuit and that Skidmore was inapplicable to issue preclusion. The Supreme Court held that Skidmore must be overruled and that Matar was not entitled to summary judgment on preclusion grounds. View "Samara v. Matar" on Justia Law

Dr. Solman performed arthroscopic surgery on Grussing’s knee in June 2014. At her July 9 appointment, Grussing reported swelling in her knee to a physician's assistant, who recommended physical therapy. Dr. Solman did not examine Grussing. Grussing returned to Dr. Solman’s office on July 18, again reporting pain and swelling. Dr. Solman aspirated Grussing’s knee, observed that the synovial fluid looked normal, and did not test the fluid for infection. Grussing continued to experience pain and swelling. In October, a different physician aspirated Grussing’s knee and sent the fluid for analysis. The knee was chronically infected. Grussing underwent a total knee replacement. The primary issue in Grussing’s malpractice suit was whether Dr. Solman breached the standard of care when he decided not to test the synovial fluid aspirated during her July 18, appointment. Grussing opened her case with Dr. Solman’s deposition testimony; he acknowledged that fluid that does not appear cloudy can test positive for bacterial infection. The defense’s expert, Dr. Matava testified that there was no way to confirm that Grussing’s knee was infected on July 18. The Eighth Circuit affirmed a defense verdict, rejecting arguments that the district court erroneously limited Grussing’s cross-examination of Matava during an attempt to elicit testimony that fluid that is not cloudy can test positive for bacterial infection and that it failed to correct defense counsel’s misstatement of law during closing argument. The correct burden of proof was properly emphasized throughout trial. View "Grussing v. Orthopedic and Sports Medicine, Inc." on Justia Law

In consolidated appeals, an executor of an estate sued the clinic and physician's assistant who treated the decedent for wrongful death. The trial court dismissed the case because plaintiff failed to file a certificate of merit, as was required by statute. The refiled case was dismissed as untimely. The executor appealed to the Vermont Supreme Court, which reviewed the trial court's dismissals and found that dismissal was proper in both cases. View "Quinlan v. Five-Town Health Alliance, Inc., dba Mountain Health Center" on Justia Law

Defendants Peter Holt, Holt Law Firm, and Bethany Holt (collectively Holt) appealed the denial of their special motion to strike (also known as an anti-SLAPP--Strategic Lawsuit Against Public Participation--motion). Peter Holt and his law firm briefly represented Charles and Victoria Yeager and successfully sued Victoria Yeager to obtain his fees in an action known as Holt v. Yeager (Super. Ct. Nevada County, No. L76533). Yeager then sued Holt, alleging professional negligence, misappropriation of name, and other claims. Holt moved to declare Yeager’s suit to be a SLAPP suit. The trial court found this suit did not chill protected expressive conduct or free speech on an issue of public interest. The Court of Appeal agreed and affirmed. View "Yeager v. Holt" on Justia Law