Blackwell v. Potts

• Decision Date: 17 February 2004
• Docket Number: No. A03A2400, No. A03A2401.
• Citation: 266 Ga. App. 702,598 S.E.2d 1
• Parties: BLACKWELL et al. v. POTTS et al.; Potts, et al. v. Blackwell et al.
• Court: Georgia Court of Appeals

266 Ga. App. 702

598 S.E.2d 1

266 Ga.App. 702

BLACKWELL et al. v. POTTS et al.;

Potts, et al. v. Blackwell et al.

Nos. A03A2400, A03A2401.

Court of Appeals of Georgia.

February 17, 2004.

Reconsideration Denied April 1, 2004.

Certiorari Denied September 7, 2004.

Jones, Jensen & Harris, Taylor W. Jones, Jenny E. Jensen, Richard E. Harris, Bird & Mabrey, William Q. Bird, Atlanta, for appellants.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., John S. Berry, Atlanta, for appellees.

SMITH, Chief Judge.

These appeals arise out of the trial court's order denying summary judgment to the defendants in a legal malpractice case but granting the defendants' motion in limine. The effect of the trial court's order was to prohibit the plaintiffs from introducing expert testimony related to the issue of whether, but for the defendants' negligence, the plaintiffs would have prevailed in their underlying medical malpractice action. Although we conclude that the trial court correctly denied summary judgment to the defendant-attorneys, we also conclude that the trial court abused its discretion in granting the defendants' motion in limine.

Rita and James Blackwell filed a medical malpractice action against Shirley Goodwin, a nurse, and others alleging that Goodwin improperly administered an injection to Rita Blackwell. The alleged injury occurred on April 15, 1991. Thomas C. Blaska filed the action in March 1993 and represented the Blackwells for more than four years. Upon mutual agreement between the Blackwells and Blaska in August 1996, Blaska withdrew from representation.¹ The Blackwells subsequently retained defendants James Hugh Potts II and Shandor S. Badaruddin and their law firm, who entered an appearance in the medical malpractice case in November 1996. The case was stipulated to the next available trial calendar, which was scheduled for January 6, 1997. On January 2, 1997, on behalf of the Blackwells, Potts and Badaruddin filed a motion for continuance and to specially set the case for trial, on the ground that they needed more time to secure the attendance of certain named expert witnesses. They also moved "to extend or reopen the period during which the court's compulsory process may be invoked to compel discovery."

The trial court held a pretrial conference on January 8, at which Potts announced not ready for trial and again requested a continuance and leave to reopen discovery. The trial court denied the motions. The court instructed Potts that he could try the case, settle it, or agree to have the case placed on the inactive docket for 90 days. According to Potts's affidavit later submitted in support of a motion to set aside, the trial court "further advised that she understood new counsel had been recently retained, but that if the case was not ready for trial they should `dismiss and refile so that you can get your ducks in a row.'" The parties did not settle the case, and defense counsel objected to placing the case on the inactive docket. Potts and Badaruddin followed the trial court's suggestion. They dismissed the case and refiled it March 5, 1997.

Upon refiling the action, however, Potts and Badaruddin met a circumstance the Blackwells correctly characterize as "an insurmountable hurdle." Rita Blackwell's alleged injury occurred April 15, 1991, and the five-year statute of repose barred any filing or refiling of a complaint attempting to assert her claims after April 15, 1996. OCGA § 9-3-71(b). The trial court dismissed the renewed action.² Potts and Badaruddin filed a motion under OCGA § 9-11-60(d)(2) to set aside their voluntary dismissal, arguing that they "were denied a continuance and dismissed as a result of the trial court's erroneous theory that the medical malpractice claim could be dismissed and refiled."

The trial court denied the motion, stating that at the time Potts sought a continuance in order to secure more evidence, Potts "did not adequately explain or establish a legal basis for requesting the continuance." The court's order further recites in relevant part:

It is the common practice of this Court not to advise, instruct or direct counsel on how to handle their cases. Once a case has been stipulated to the trial calendar, however, it is the practice of this Court to inquire as to whether counsel are ready for trial, as it is presumed that once a case is stipulated to the trial calendar, it is, in fact, ready for trial. If it appears that counsel are not ready for trial, the Court will entertain a motion for continuance if there is a justifiable reason that is adequately explained to the Court as to why the case should not, in the interest of justice, go forward.... At the time of the pre-trial conference on January 8, 1997, Plaintiffs' counsel did not verbally inform the Court of the date when this cause of action arose, and Plaintiffs' counsel failed to make the Court aware of any "special problems" relating to the statute of repose being a bar to Plaintiffs' claims. The Court finds that Plaintiffs' counsel had the duty to inform the Court concerning all relevant facts in the case.

The court concluded that OCGA § 9-11-60(d)(2) was inapplicable because no judgment had been issued. Instead, the court found that ` Plaintiffs' counsel, acting of his own volition, dismissed this action irrespective of the fact that the statute of repose had expired. Therefore, Plaintiffs' attempt to reinstate the action nearly two (2) months after [they] dismissed it without prejudice is of no consequence because the statute of repose provides the suit must be brought within five (5) years.

The Blackwells filed this legal malpractice action against Potts and Badaruddin, alleging that they deviated from the applicable standard of care "by filing a voluntary dismissal based upon the erroneous and negligent assumption the case could be re-filed, thereby causing the permanent and irretrievable loss of Plaintiffs' case." They similarly alleged that Potts and Badaruddin committed legal malpractice "by voluntarily dismissing a case without first conducting the research necessary to confirm that the case could be re-filed and that the statute of repose ... would not be violated."

During the course of discovery in this action, the Blackwells obtained the expert services of Dr. James R. Merikangas, who testified during his deposition that Goodwin breached the standard of care by injecting Rita Blackwell "in the wrong area of the buttock" and that this resulted in "Ms. Blackwell's chronic pain, the stress, depression, loss of consortium, employment, and other damages that flow from that."³ Potts and Badaruddin also utilized an expert, Dr. Arlan Avrom Cohen. Although Dr. Cohen testified that the injection probably was not given in the wrong place, he also stated that it "started the cascade of events that has left her where she is now." In addition to being a physician, Dr. Cohen is a practicing plaintiffs' medical malpractice attorney. He testified that Potts and Badaruddin made a "major error" in "taking on a case this complex so close to the pretrial conference, but, having taken it on, they had an obligation to do an appropriate review and understand the defects in the case." He further testified that they should have "found better experts," as this "would be required by the standard of care."

Potts and Badaruddin filed a motion for summary judgment and a motion in limine seeking to exclude the testimony of Dr. Merikangas and Dr. Cohen. In the latter motion, they argued that

it is imperative no new medical evidence be admitted because any such evidence is irrelevant to the only issue material to this case, namely the sufficiency of the file as it was inherited by Potts & Badaruddin six weeks before trial. OCGA § 24-2-1. It is that case the plaintiff must win. Other evidence was unavailable during the only time period relevant to this trial about the standard of care followed by Potts. [Cit.]

They similarly argued in their motion for summary judgment that "[t]here was insufficient evidence to win the case for Plaintiff when Potts dismissed."⁴ They argued that they did not commit malpractice, because "Potts tried to salvage this case while constrained both by time pressure imposed by the court and by the weakness of the evidentiary file he inherited. In this case, acting upon the judge's suggestion to arrange more time and evidence was not malpractice."

Although the trial court denied the motion for summary judgment, it granted the motion in limine, stating that the "case must be judged on the circumstances of the case as it existed at the time the defendants represented the plaintiffs." The court's order further recites that "[t]he trial court's order dated July 17, 1997, indicates that at a pre-trial conference on January 8, 1997, the Court denied defense counsel's motion to take another doctor's deposition. Therefore the defendants had no opportunity to add additional experts to the case they inherited." We granted the application for interlocutory appeal filed by the Blackwells. In Case No. A03A2400, the Blackwells appeal from the order granting the motion in limine. In Case No. A03A2401, Potts and Badaruddin appeal from the denial of their motion for summary judgment.

Case No. A03A2400

1. We first address the Blackwells' contention that the trial court erroneously excluded the testimony of Dr. Merikangas and Dr. Cohen. We review this ruling under an abuse of discretion standard. C & F Svcs., Inc. v. First Southern Bank, 258 Ga.App. 71, 75(1), 573 S.E.2d 102 (2002). To prevail in a legal malpractice action, a plaintiff must show that "the attorney he employed was negligent" and "that this negligence was the proximate cause of the claimed harm. [Cit.]" Ross v. Edwards, 253 Ga.App. 773(1), 560 S.E.2d 343 (2002). The plaintiff must show that but for the attorney's negligence in the underlying case, the plaintiff would have prevailed. Id. The Blackwells seek to...