463 N.W.2d 787 (Minn.App. 1990), CX-90-1187, Cohen v. Appert

Docket Nº:CX-90-1187.
Citation:463 N.W.2d 787
Opinion Judge:The opinion of the court was delivered by: Lansing
Party Name:Janice COHEN, Respondent, v. Robert J. APPERT, Appellant.
Attorney:Martha L. Neese, Thomas J. Lyons, Lyons Sawicki & Assoc., P.a., St. Paul, Minnesota, for Respondent.
Case Date:December 11, 1990
Court:Court of Appeals of Minnesota

Page 787

463 N.W.2d 787 (Minn.App. 1990)

Janice COHEN, Respondent,


Robert J. APPERT, Appellant.

No. CX-90-1187.

Court of Appeals of Minnesota.

December 11, 1990

Review Denied Jan. 24, 1991.

Page 788

Syllabus by the Court

1. Genuine issues of material fact exist on whether attorney defrauded client in representation of claims against IUD manufacturer, and when, for purposes of tolling the statute of limitations, client discovered the alleged fraud.

2. Genuine issues of material fact also exist on whether attorney fraudulently concealed the facts underlying the client's claims of legal malpractice and breach of fiduciary duty.

Martha L. Neese, Thomas J. Lyons, Lyons Sawicki & Assoc., P.A., St. Paul, for respondent.

Gary J. Haugen, Mallory K. Mullins, Maslon Edelman Borman & Brand, Minneapolis, for appellant.

Considered and decided by DAVIES, P.J., PARKER and LANSING, JJ.



Janice Cohen brought this fraud, legal malpractice, and breach of fiduciary duty action against Robert J. Appert, an attorney who represented Cohen in the settlement of her claims against A.H. Robins Co. The trial court denied Appert's motion for summary judgment and we affirm.


Janice Cohen had a Dalkon Shield, an intrauterine contraceptive device manufactured and sold by A.H. Robins Company, inserted by Dr. Arthur Horowitz in February of 1972. While wearing the Dalkon Shield, she experienced pain in walking, physical exertion, and sexual intercourse. The device was removed, approximately five months after it was inserted, while Cohen was in Garberville, California. According to Cohen, the doctor who removed the Dalkon Shield told her that she had an infection and that the Dalkon Shield was the irritant.

Following the removal of the Dalkon Shield, Cohen was treated for pelvic inflammatory disease (PID) by several physicians including Dr. Horowitz. In September 1974, Dr. John Mathers performed a laparoscopy and found that Cohen had extensive scarring in her pelvic area due to PID. On his recommendation, Cohen underwent a hysterectomy.

In January 1976, Cohen met with attorney Robert J. Appert to discuss possible claims against A.H. Robins. He agreed to represent her, and she signed a retainer agreement and a medical records release form.

Appert wrote to three of Cohen's doctors, Dr. Mathers, Dr. MacCafferty and Dr. Horowitz, asking them to give an opinion on whether the Dalkon Shield caused Cohen's injuries. Drs. MacCafferty and Horowitz declined to give an opinion. Dr. Mathers responded that he did not have enough information to give an opinion. Cohen alleges that Dr. Mathers was willing to give an opinion, but Appert failed to provide him with the needed information.

In October 1976, Appert wrote Cohen a letter stating:

The doctor that I indicated to you that I would be discussing this case with has expressed the opinion that we are on pretty shaky ground here and he does not feel inclined to go out on a limb in this particular case.

Page 789

The identity of the doctor referred to in this letter is disputed by the parties. Cohen claims the letter refers to Dr. Mathers; Appert contends that it refers to Dr. Harry Foreman, a physician who had never treated Cohen, but whose expert opinion Appert sought.

In the same letter, Appert stated that Aetna, A.H. Robins' insurer, had offered $16,000 to settle Cohen's claims. Appert advised that, "due to the lack of concrete probative medical evidence in your case, this is probably a reasonable figure."

In November, Cohen and Appert met to discuss the settlement offer. According to Cohen, Appert told her that he could not locate her California records, although he had those records in his file at the time. He also told her that Aetna had lowered its settlement offer from $16,000 to $14,000, and he advised her to accept the $14,000 offer. However, Cohen contends that Appert had already accepted the $14,000 offer and received a settlement check for that amount before he told her the settlement figure had been lowered. After Cohen executed the settlement and release forms on December 1, 1976, she had no further contact with Appert or his law firm.

Cohen claims that she first learned in 1986 that Appert had been disciplined for professional misconduct, and in 1989, she discovered Appert had a close, personal friendship with the Aetna claims adjuster who authorized the settlement figure for her case. From this relationship, she alleges, Appert and the adjuster developed a scheme to induce Dalkon Shield plaintiffs to settle their cases quickly for an amount within the adjuster's personal settlement authority of $15,000. This scheme allowed Appert to "short-circuit" the adversarial system and obtain quick profits by processing a large volume of claims without undertaking investigation or trial preparation.

In May 1989, Cohen sued Appert, alleging fraud, legal malpractice, and breach of fiduciary duty. Appert moved for summary judgment, arguing that Cohen's claims have no factual basis and, in any event, are time-barred. The trial court denied summary judgment, finding that there were factual questions relating to the tolling of the limitation period and to Cohen's underlying claims. This...

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