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we have little difficulty agreeing with the CRB's conclusion. It is consistent with the language of the Act, specifically, D.C. Code ? 32-1501 (9) (2001), which excepts certain specified categories of workers from the definition of "employee," but otherwise sets out a broad definition that neither excludes undocumented aliens nor makes a worker's immigration status relevant. See Report on Bill 3-106 at 10 (referring to the legislation's "all[-]inclusive delineation of coverage"). As the CRB recognized, the Council has made repeated amendments to the definitional section of the Act, including amendments to the provision defining the term "employee."

declining to treat contracts of employment with undocumented aliens as "contracts" within the meaning of the workers' compensation statute would provide unscrupulous employers with a financial incentive to hire undocumented workers, while "including employment agreements between illegal aliens and their employers within the purview of `contracts of service' . . . would accord with, rather than contravene, the public policy Congress espoused when [IRCA] was enacted."

Larson's Workers' Compensation Law, supra, ? 66.03[3][c] ("Given that illegal aliens are entitled to access to the courts and have the ability to file both contract and tort claims, it would seem illogical to bar illegal alien workers from seeking compensation benefits long considered a substitute for damages").

Because the doctrine of collateral estoppel bars relitigation of the adequacy of Blitzer's representation, the plaintiff cannot show that Blitzer breached a duty owed to him or that the outcome of his post-conviction proceedings would have been favorable. And where, as here, the plaintiff's breach of fiduciary duty, fraud and breach of contract claims are indistinguishable from his legal malpractice claim, his inability to prove the malpractice claim renders these other claims unsustainable. See Hinton, 2010 WL 2710603, at *1 ("[A]ppellant cannot recast his malpractice claim as a breach of fiduciary duty claim . . . and he has not shown that his claims of negligence, breach of care, breach of trust, and bad faith are distinguishable from his malpractice claim."); Macktal v. Garde, 111 F. Supp. 2d 18, 23 (D.D.C. 2000) ("f plaintiff is unable to prove his professional negligence claim, contract and tort claims which are essentially restatements of the failed malpractice claim must also fail."); Biomet, 967 A.2d at 670 n.4 (rejecting appellant's "attempt to recast its malpractice argument as also breach of contract and breach of fiduciary duty"). The Court will therefore grant Blitzer's motion to dismiss.

John Tremain May, Esq., of Jordan Coyne & Savits, LLP, represented one of the defendants in this matter.

Posted by David B. Stratton on 01/06/2011 at 02:59 PM
District of Columbia • Legal Malpractice • Permalink

Racial Discrimination and Hostile Work Environment Claims in D.C. in in summary judgment

In Akridge v. Gallaudet University, No. 06-0346 (D.D.C. Aug. 3, 2010), Judge Urbina granted summary judgment to defendant Gallaudet University. The plaintiff, a hearing-impaired African-American male employed at the university, had aplied for the position of Career Center Director. Although the plaintiff was among 13 out of 52 applicants who were interviewed by the screening committee, the committee selected a non-disabled, white male for the position. The screening committee had ranked plaintiff the lowest of the 13 interviewed candidates.

Plaintiff filed an EEOC complaint, alleging that defendant had discriminated against him on the basis of his race and disability. Plaintiff also alleged retaliation, because of an internal race discrimination complaint he filed in 1998. The EEOC issued a dismissal and a "right-to-sue" letter.

Plaintiff then filed suit, alleging defendant intentionally discriminated against him on the basis of his race and disability, and retaliated against him in violation of Title VII and the ADA. The allegedly discriminatory actions include delaying plaintiff's employment advancement, failing to award plaintiff the Director position, and condoning retaliatory and hostile behavior directed toward plaintiff after he sought employment advancement.

Defendant moved for summary judgment, on the grounds that plaintiff did not commence his lawsuit in a timely manner, failed to exhaust his administrative remedies with respect to his hostile work environment claim, failed to allege any hostile conduct as a matter of law, and failed to allege any facts in support of his claim of retaliation. The Court granted the university complete summary judgment.

Among other things, the Court's opinion included an interesting discussion of plaintiff's hostile work environment claim. Plaintiff's EEOC charge did not specifically make this claim. The Court acknowledged that the exhaustion of administrative remedies is less stringent for hostile work environment claims, and that a plaintiff may adequately exhaust administrative remedies without specifically alleging a hostile work environment claim in his EEO charge, so long as the hostile work environment claim is like or reasonably related to the allegations in the formal EEOC complaint and grows out of such allegations.

Here, however, the plaintiff did not rely on the one discrete act of discrimination alleged in the EEOC charge -- failure to hire him for the Director position -- in support of his hostile work environment claim. Therefore, plaintiff failed to demonstrate that his hostile work environment claim is "like or reasonably related to" the allegations in his EEOC charge.

Posted by David B. Stratton on 08/31/2010 at 05:24 PM
District of Columbia • Permalink

Trial Court’s Refusal to Allow Plaintiff To Name Substitute Expert Affirmed by D.C. Court of Appeals

In French v. Levitt, No. 09-CV-94 (D.C. July 8, 2010), the D.C. Court of Appeals affirmed the trial court's denial of plaintiff's motion to designate a new liability expert and for a continuance. However, this result was based on an unusual combination of factors that is unlikely to recur often.

The plaintiff had sued the defendant physicians for failure to diagnose a bone infection on her left foot following an ankle fusion. The plaintiff alleged that the failure to make this diagnosis resulted in a below-the-knee amputation in January, 2005. In her medical malpractice action, the plaintiff identified a medical expert early in the case, but about five weeks before trial, the plaintiff filed an emergency motion to allow for additional limited discovery, in which she asked the trial court to allow her to designate a replacement expert.

The plaintiff's expert had relocated, first to Guam, then to Israel, and had legal problems. Plaintiff's motion was initially denied due to a procedural defect, but then was refiled the day before the pretrial conference. At the pretrial conference, the trial court denied the motion. Subsequently, plaintiff's counsel conceded that his client was unable to meet her burden of proof with a liability expert, and based on that, the trial court dismissed the case.

On appeal, the issue was whether the trial court abused its discretion by denying the motion to, in effect, designate a new expert and for a continuance. The Court of Appeals affirmed the trial court's discretionary decision, and considered the following factors.

The trial court had weighed the five factors required by D.C. precedent. The Court of Appeals also noted that the defendants had already deposed the plaintiff's expert, and had done a de bene esse deposition of their own expert. The plaintiff was unable to proffer a new expert five weeks before trial, much less make a proffer of the opinions of the substitute expert. Therefore, granting the motion would have required the defendants to depose again their own experts, would have required the defendant physicians to schedule additional time and expense for a delayed trial, and would potentially subject them to different allegations of negligence at a late stage of the litigation. Further, the plaintiff had known of issues relating to her expert for months before she filed the motions before the trial court. If the trial court were to grant a continuance, and allow the plaintiff to find a new expert, the case probably would have gone on for almost another year.

Posted by David B. Stratton on 08/30/2010 at 02:02 PM
District of Columbia • Permalink

Abuse of process claim in District of Columbia ends with summary judgment for defense

In Houlahan v. World wide Associationof Specialty Programs and Schools, 677 F.Supp. 2d 195 (D.D.C. Jan. 5, 2010), the Court awarded summary judgment to the defendants on the plaintiff's claim of abuse of process. The abuse of process claim was grounded on a defamation lawsuit that the defendants had filed against the plaintiff in Utah, allegedly to deter the plaintiff, a journalist, from further investigation of the defendants and from publishing his work.

The Court determined that there was no substantive difference between D.C. law and Utah law concerning abuse of process claims, and therefore applied D.C. law. However, the opinion contains a useful summary of the D.C. choice of law analysis in tort cases.

A federal court exercising diversity jurisdiction applies the choice of law rules of the forum state, Liberty Mut. Ins. Co. v. Travelers Indem. Co., 78 F.3d 639, 642 (D.C.Cir.1996) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941)), here the District of Columbia. Under District of Columbia law, the first step in the choice of law analysis requires the court to determine whether there is any conflict among the potentially applicable legal standards. Young Women's Christian Ass'n of the Nat'l Capital Area v. Allstate Ins. Co. of Canada, 275 F.3d 1145, 1150 (D.C.Cir.2002) (citing Eli Lilly & Co. v. Home Ins. Co., 764 F.2d 876, 882 (D.C.Cir. 1985)). "Only if such a conflict exists must the court then determine, pursuant to District of Columbia choice of law rules, which jurisdiction has the `more substantial interest' in the resolution of the issues." Id. In tort cases, the substantial interest inquiry requires consideration of (1) "the place where the injury occurred," (2) "the place where the conduct causing the injury occurred," (3) "the domicile, residence, nationality, place of incorporation and place of business of the parties," and (4) "the place where the relationship" was centered. Herbert v. Dist. of Columbia, 808 A.2d 776, 779 (D.C.2002) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS (1971), ? 145(2)).

Continuing on, the Court defined abuse of process under D.C. law:

Under District of Columbia law, abuse of process occurs when "process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do." Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.1980) (quoting Jacobson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C.1967)). There are two essential elements to an abuse of process claim: "(1) the existence of an ulterior motive; and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge." Hall v. Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C.1959) (emphasis in original).

In a footnote, the Court observed that the standards for abuse of process actions in D.C. were established by Brown v. Hamilton, 601 A.2d 1074, 1080 n. 14 (1992).

The Court agreed with the defendants' arguments, reasoning that there is no action for abuse of process when the process is used for the purpose for which it is intended, even though there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.

By design, however, defamation claims, one of the claims in the Utah suit, are meant to silence individuals from making defamatory or otherwise harmful statements. Therefore, the Utah suit was used "for the purpose for which it is intended." See Rusakiewicz v. Lowe, 556 F.3d 1095, 1104 (10th Cir.2009)

The Court also noted that the plaintiff had failed ot make a colorable shoing that defendants committed a willful act in the use of the process other than such as would be proper in the regular prosecution of the charge.

John Treman May, Esq., of Jordan Coyne & Savits LLP, represents one of the defendants in this matter.

Posted by David B. Stratton on 01/06/2010 at 01:55 PM
District of Columbia • Permalink

Legal Malpractice opinion in D.C. declines to follow exhaustion of appeals rule

In Bleck v. Power, 955 A.2d 712 (D.C. Sept. 4, 2008), the D.C. Court of Appeals affirmed the trial court's ruling that the plaintiff's malpractice suit was barred by the three-year statute of limitations. The issue was when the cause of action for legal malpractice accrued.

The legal malpractice suit arose out of a claim under a long-term disability policy. The plaintiff's claim for LTD benefits was denied, and she then retained an attorney to represent her in seeking reconsideration. On May 14, 1999, the insurer rendered a final decision denying the claim. The attorney agreed to bring a lawsuit on the plaintiff's behalf. However, the lawsuit was not filed until May 10, 2002, almost three years later.

The insurer moved to dismiss the suit as time-barred by a policy provision specifying that any action to recover benefits had to be brought within two years from the end of the time within which proof of total disability was required. The trial court granted the motion to dismiss.

The plaintiff discharged the attorney and hired new counsel, who filed a motion for reconsideration. This motion was denied on Jan. 7, 2004, and there was no appeal.

Nearly three years later, on Jan. 5, 2007, the plaintiff filed a legal malpractice action against the defendant in D.C. Superior Court. The defendant attorney moved to dismiss the complaint as barred by the three year statute of limitations. The defendant argued that the limitations period began to run on July 29, 2003, when the court dismissed the plaintiff's suit against the insurer. The plaintiff argued that the statute of limitations did not begin to run until her motion for reconsideration was denied on Jan. 7, 2004.

The trial court granted the defendant's motion to dismiss.

On appeal, the D.C. Court of Appeals affirmed.

The Court reasoned that the plaintiff could have initiated a malpractice actioin against the attorney immediately after the contractual deadline was missed for commencing an action against the disability insurer. In cases where an attorney has missed a deadline for filing suit, the injury occurred when the client's action was legally subject to dismissal, rather than the actual, but fortuitous, date of dismissal.

D.C. does follow the continous representation rule, under which a client's legal malpractice claim does not accrue until the attorney's representation concerning the particular matter in inssue is terminated, even if the client knows before then that her attorney has made an injurious error. However, in this case, the plaintiff by August 2003 knew that the attorney had missed the contractual filing deadline, and she had replaced him with new counsel. This was more than three years before she filed suit.

The plaintiff argued that the statute of limitations on her legal malpractice claim was tolled while her timely Rule 59(e) motion was pending, because there was no final, appealable judgment until the court denied that motion. The D.C. Court of Appeals rejected that argument. In situations where an attorney's error results in a loss at trial, the Court has specifically declined to adopt an "exhaustion of appeals rule", pursuant to which the cause of action for malpractice would accrue only when the adverse judgment is affirmed on appeal.

Posted by David B. Stratton on 04/21/2009 at 01:07 PM
District of Columbia • Legal Malpractice • Permalink

Legal Malpractice Suit in D.C. Dismissed For Plaintiff’s Lack of Expert Testimony

In Footbridge Limited Trust v. Zhang, 584 F.Supp. 2d 150 (D.D.C. Nov. 5, 2008), Judge Kollar-Kotelly dismissed a legal malpractice suit due to plaintiff's lack of expert testimony to support the claim. The suit arose out of a real estate closing in which the plaintiff had loaned certain non-party borrowers $1.5 million, through Cambridge Holdings Group. Cambridge Holdings at the time employed the defendant attorney. Plaintiff alleged that the defendant attorney's negligence was responsible for a seven month delay in the recordation of its security interests on the property that was purchased. During the seven month period, a bank recorded a mortgage as to which a security interest in the same property was pledged. Subsequently, the borrowers defaulted on their loan and filed for bankruptcy. The plaintiff attempted to foreclose on its security interests, but alleged that because of the intervening security interest of the bank, it received only $467,959 from the sale instead of $2.25 million.

The defendant attorney denied any responsibility for the delay in the recordation, and denied having attended the loan closing or having any knowledge of the loan transaction.

The defendant moved for summary judgment after the close of discovery, on the grounds that the plaintiff had not presented any expert testimony in support of its claims. The plaintiff argued that an attorney's failure to file a lien instrument for over one-half year following a real estate closing demonstrates a lack of skill and care so obvious that the trier of fact can find negligence as a matter of common knowledge.

The Court acknowledged that under D.C. law, there is a "common knowledge" exception to the requirement that a legal malpractice claim must be supported by expert testimony. The following examples are under the "common knowledge" exception: allowing the statute of limitations to run on a client's claim; permitting entry of default judgment against the client; failing to instruct the client to answer interrogatories; failing to allege affirmative defenses; failing to file tax returns; failing to follow the client's explicit instructions; and billing a client for time not spent providing services. Beyond that, the "common knowledge" exception is narrowly applied.

Here, the Court noted that the defendant attorney was not employed by the plaintiff, and that there is no allegation that the attorney received instructions from his own client which he failed to follow. The Court stated that "lt is entirely unclear what duties an attorney owes not only to his client, but to ta third-party, by merely attending a loan closing (even assuming that there was evidence that [defendant] attended the closing, which tere is not)." The Court also pointed out that on the issue of proximate cause of plaintiff's damages, to evaluate the parties conflicting evidence, the jury would need to know the effect that priority security interests have on properties subject to multiple unrelated liens, and particularly how those liens are paid when they are subject to a bankruptcy proceeding.

Accordingly, because the plaintiff did not produce a timely expert report, the Court granted the defendant's motion for summary judgment.


Dwight D. Murray, Esq. of Jordan Coyne & Savits, LLP participated in the defense of this matter.

Posted by David B. Stratton on 04/08/2009 at 02:12 PM
District of Columbia • Legal Malpractice • Permalink

Legal Malpractice Suit Dismissed Following Daubert Challenge to Mold Expert

In Young v. Burton, 567 F.Supp.2d 121 (D.D.C. July 22, 2008), the plaintiffs filed a legal malpractice claim based on the defendants' alleged failure to file a timely personal injury lawsuit. The underlying suit was a claim for damages suffered by plaintiffs as a result of exposure to toxic mold while residing at an apartment building. In order to succeed on their legal malpractice claim, plaintiffs were required to show that they could have recovered in the underlying tort suit. To make this showing, the plaintiffs relied on the expert testimony of Dr. Ritchie Shoemaker as to the cause, nature, and extent of their injuries from exposure to toxic mold.

At the close of discovery, the defendants moved to exclude Dr. Shoemaker's testimony, on the grounds that his opinions were not based on a reliable methodology, and that regardless, Dr. Shoemaker did not follow his own methodology with respect to plaintiffs.

In a lengthy and well-reasoned opinion, Judge Huvelle concluded that Dr. Shoemaker's diagnosis of plaintiffs, as well as his opinions relating to general and specific causation, were not sufficiently grounded in scientifically valid principles and methods to satisfy Daubert. The defendants' motions were granted.

In a subsequent ruling, Judge Huvelle granted the defendants' motions for summary judgment on the grounds that the plaintiffs had no expert testimony to support their underlying claims.

Deborah Murrell Whelihan, Esq. was lead counsel for one of the defendants in this matter, and further inquiries regarding this matter may be directed to her.

Posted by David B. Stratton on 04/07/2009 at 02:19 PM
District of Columbia • Legal Malpractice • Permalink

Legal malpractice: Defense of Judgmental Immunity Recognized in D.C.

In Biomet, Inc. v. Finnegan Henderson LLP, No. 07-CV-813 (D.C. March 19, 2009), the Court formally recognized the defense of judgmental immunity in legal malpractice actions. Concerning this defense, the Court stated the following:

Essentially, the judgmental immunity doctrine provides that an informed professional judgment made with reasonable care and skill cannot be the basis of a legal malpractice claim. Central to the doctrine is the understanding that an attorney's judgmental immunity and an attorney's obligation to exercise reasonable care coexist such that an attorney's non-liability for strategic decisions 'is conditioned upon the attorney acting in good faith and upon an informed judgment after undertaking reasonable research of the relevant legal principals and facts of the given case.'

Id. The Court also observed that if judgmental immunity were not recognized as a defense, that would

"mean that 'every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second
guess the decisions of the first attorney with the advantage of hindsight.'

The Court also pointed out that "no claim of legal malpractice will be actionable for an attorney's reasoned exercise of informed judgment on an unsettled proposition of law." Id., at p. 10. This unsettled law exception to malpractice liabiity is a specific application of the judgmental immunity doctrine.

Posted by David B. Stratton on 04/05/2009 at 12:42 PM
District of Columbia • Legal Malpractice • Permalink

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