679 Fed.Appx. 60 (2nd Cir. 2017), 16-963-cv, Long v. Parry
|Citation:||679 Fed.Appx. 60|
|Party Name:||RAYMOND A. LONG, M.D., Plaintiff-Appellant, v. LLOYD GEORGE PARRY, DAVIS, PARRY & TYLER, P.C., Defendants-Appellees|
|Attorney:||FOR APPELLANT: MAX FOLKENFLIK, Folkenflik & McGerity LLP, New York, New York. FOR APPELLEES: JUSTIN B. BARNARD (Sandra A. Strempel, on the brief), Dinse, Knapp & McAndrew, P.C., Burlington, Vermont.|
|Judge Panel:||PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges.|
|Case Date:||February 15, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Appeal from a judgment of the United States District Court for the District of Vermont (William K. Sessions III, Judge).
FOR APPELLANT: MAX FOLKENFLIK, Folkenflik & McGerity LLP, New York, New York.
FOR APPELLEES: JUSTIN B. BARNARD (Sandra A. Strempel, on the brief), Dinse, Knapp & McAndrew, P.C., Burlington, Vermont.
PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on February 29, 2016, is AFFIRMED.
Plaintiff Raymond Long appeals from an award of summary judgment in favor of Lloyd George Parry (" Parry" ) and Davis, Parry & Tyler, P.C. (collectively, " defendants" ) on claims arising from Parry's representation of Long in a lawsuit against his former employer, Northwestern Medical Center (" NMC" ). The complaint against NMC asserted state law claims and federal antitrust claims, and alleged damages of $40 million. After settling that lawsuit for $4 million, Long filed the instant action, claiming, inter alia, that he would have received a larger settlement had Parry sought the testimony of infectious disease and antitrust experts. On appeal, Long challenges (1) the legal standards the district court employed in awarding summary judgment, particularly with regard to damages; (2) the district court's conclusion that (a) the majority of his underlying claims were meritless in light of his voluntary resignation and defendants' immunity under the Health Care Quality Improvement Act of 1986 (" HCQIA" ), 42 U.S.C. § 11101 et seq. ; and (b) the remaining underlying
claims could not result in a damages award greater than $4 million; (3) the denial of leave to amend his complaint to add a fraud claim; and (4) a sealing order instructing him to destroy confidential documents.
We review an award of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences and resolving all ambiguities in that party's favor. See Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 47 (2d Cir. 2012). We generally review the denial of leave to amend a complaint for abuse of discretion. See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 169 (2d Cir. 2015). Nevertheless, when such a denial " is based on a legal interpretation, such as a determination that amendment would be futile," our review is de novo. See
Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). In applying these standards here, we assume the parties' familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision to affirm for substantially the reasons stated by the district court in its February 29, 2016 memorandum opinion and order. See Long v. Parry, 304 F.R.D. 463, 2016 WL 814861 (D. Vt. 2016).
1. Standard for Negligent Settlement and Case-Within-a-Case Analysis
The district court did not apply the wrong legal standard in ruling on the motion for summary judgment. To make out a legal malpractice claim under Vermont law, " a plaintiff must prove that the attorney was in fact negligent and that this negligence was the proximate cause of the plaintiff's injury." Estate of Fleming v. Nicholson, 168 Vt. 495, 497, 724 A.2d 1026, 1028 (1998). " [W]hen [a] lawyer's negligence forces [a] client into disadvantageous settlement, 'damages are calculated based on the difference between the actual settlement amount and the proper settlement amount, or what the result should have been through judicial resolution, absent malpractice.'" Vincent v. DeVries, 193 Vt. 574, 589-90, 72 A.3d 886, 898 (2013) (quoting 4 R. Mallen & J. Smith, Legal Malpractice § 33:33 (2013 ed.)). Accordingly, despite Long's contentions to the contrary, the district court correctly identified the failure of proof regarding the very existence of damages--as opposed to uncertainty in the measure of...
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