Friday, March 12, 2010

Missing deadline results in malpractice verdict

The Legal Profession Blog is reporting today on an interesting case that illustrates a problem that has bothered me for a long time.

The story starts with a high school teacher sitting in her living room when a small plane hit the roof of the second story of her home. She suffered no direct physical injury but went into a state of shock, which led to health problems. She retained an attorney to file suit against the pilot. The attorney missed the one-year statute of limitations despite reminders and also failed to comply with discovery obligations and court orders. The suit was dismissed. The teacher then sued her attorney for malpractice. A jury returned a verdict in her favor of over $5 million. The lawyer appealed. The Kentucky Court of Appeals affirmed the jury verdict of malpractice and punitive damages against the attorney but vacated some aspects of the damage award. In particular, the teacher's "case-within-a-case" proving negligence on the part of the pilot could not sustain a claim for punitive damages because of Kentucky's "impact" rule. The decision is available here.

I am very sympathetic to the plaintiff and I literally yell at my students that losing a case for a client by missing the statute of limitations deadline is one of the worst things they can do, but I have to say the court's conclusion here is not very convincing.

The court essentially contradicts itself. While saying that, to satisfy cause in fact, the plaintiff has to show that she "would have prevailed in the underlying case," it finds that the plaintiff meets the burden by showing that she "had a viable claim" and that she "lost the opportunity to maintain" it.

I am sorry but you can't have it both ways. If the law is that you have to show you would have WON the case, you don't meet that burden by showing that you "lost the chance to try to win it."

It is clear that the lawyer was negligent, but all that shows is that the plaintiff can show breach of duty. The court essentially found the evidence of breach so compelling that it felt it also showed causation. That, simply, makes no sense.

I have always thought that the standard should be that the plaintiff show he or she lost the chance to win (and that the injury should be an amount equivalent to the value of that lost chance), but, as far as I know, that is not the law in any state.

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