Collins on Behalf of Collins v. Perrine

Decision Date01 June 1989
Docket NumberNo. 9775,9775
Citation108 N.M. 714,1989 NMCA 46,778 P.2d 912
PartiesCurtis COLLINS and Annie Collins, on behalf of their son, Curtis M. COLLINS, Jr., and Sunwest Bank of Albuquerque, Conservator for Curtis M. Collins, Jr., Plaintiffs-Appellees, v. John PERRINE, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

APODACA, Judge.

Defendant John Perrine (Perrine) appeals an adverse jury verdict of $2,958,789 entered against him in a legal malpractice case. This appeal was originally consolidated with Cause No. 9768, in which the same jury verdict was entered against defendant Ray Tabet (Tabet). Because the panel was unable to agree on disposition of the quasi-judicial immunity issue involving Tabet, an order severing the two appeals has been entered and Cause No. 9768, with respect to the quasi-judicial immunity issue, has been certified to the supreme court as a case involving an issue of substantial public interest.

The jury held defendant Tabet liable as guardian ad litem (guardian) for the negligent approval of the settlement in a medical malpractice case. Perrine was held liable as plaintiffs' attorney for negligently preparing the medical malpractice case and recommending settlement.

In their effort to overturn the judgment, both defendants, either individually or collectively, raised the following issues:

(1) As guardian, was Tabet acting as an arm of the court, cloaked with quasi-judicial immunity?

(2) As guardian, was Tabet a public employee within the meaning of the Tort Claims Act, NMSA 1978, Sections 41-4-1 to 41-4-29 (Repl.1986) (the Act)?

(3) Did defendants breach their respective duties as guardian and attorney, thus supporting the jury's determination of negligence?

(4) Was the respective negligence of defendants a proximate cause of plaintiffs' damages?

(5) Does the doctrine of finality of settlement preclude recovery against defendants?

(6) Did the trial court err in its rulings regarding several evidentiary matters?

(7) Did the trial court err in denying a remittitur of the jury award?

Cause No. 9768 having been certified to the supreme court for decision on Issue (1), we do not address that issue in this opinion. Because the remaining issues, as they affect Tabet, need not be addressed until the threshold question of immunity under Issue (1) is resolved, our discussion of those issues will involve only Perrine. Having given these important and significant questions due consideration, we resolve the issues raised by Perrine against his arguments, as discussed in this opinion, and affirm the verdict and judgment as to him.

FACTS

In December 1977, plaintiffs Curtis and Annie Collins (the Collinses) took their son, Mikey, to the emergency room of Presbyterian Hospital (Presbyterian). Mikey was examined by Dr. Sollins and Nurse Ironsides and sent home. The next morning Mikey was still ill and the Collinses took him to the Indian Health Service Hospital (IHS) in Albuquerque. Mikey was examined at that hospital and sent to a pediatrician Dr. Saland. Dr. Saland correctly diagnosed Mikey as suffering from spinal meningitis and began treatment immediately. Unfortunately, the disease had already progressed significantly. Mikey was left permanently mentally and physically handicapped; incapable of speaking, walking, feeding himself, bathing himself, or moving any limb except his right arm.

The Collinses retained defendant Perrine in April 1978 in order to pursue a medical malpractice claim against Presbyterian and Dr. Sollins, for misdiagnosis of Mikey's disease. Perrine took the claim before the Medical-Legal Panel in September 1978. The Panel voted 4-2 against finding any negligence on the part of Presbyterian or Dr. Sollins. Later, Perrine filed suit on behalf of the Collinses and Mikey (Presbyterian case). In April 1979, Perrine and opposing counsel arrived at a settlement of $46,000. That settlement was approved by Curtis Collins.

To effectuate the settlement, Perrine asked Tabet to become Mikey's guardian for the limited purpose of reviewing the settlement. Tabet met with Perrine and Curtis Collins on April 17 to discuss the settlement. On May 4, Tabet was appointed guardian, and on May 7 the trial court held a hearing on the settlement that had been reached. The trial court asked the Collinses if they approved of the settlement, asked Tabet if the settlement was fair, and, having received affirmative answers, approved the settlement.

After the Presbyterian case was settled, Perrine filed suit in federal district court (federal court) against IHS on behalf of the Collinses and Mikey. The federal court dismissed the lawsuit, holding that the general release signed to settle the Presbyterian case released all potential defendants from liability, not just Presbyterian and Dr. Sollins. At that point, the Collinses retained new counsel, who appealed the dismissal on their behalf. The Tenth Circuit reversed the federal court's decision. Collins v. United States, 708 F.2d 499 (10th Cir.1983). On remand, the case went to trial and plaintiffs obtained a judgment in the amount of $3.9 million. The United States, through IHS, was held liable for forty percent of that amount and Dr. Sollins and Presbyterian for sixty percent. Because of the prior settlement with the latter parties and the fact that New Mexico had abolished the concept of joint and several liability, plaintiffs were unable to collect or make a claim for any part of Dr. Sollins' and Presbyterian's liability except the $46,000 that had already been paid.

The Collinses and Mikey then brought the suit giving rise to this appeal, seeking damages from Tabet and Perrine for wrongfully advising settlement of the Presbyterian case. The Collinses' personal claims were dismissed, leaving only Mikey's claims to be adjudicated. Following a jury trial in August 1986, the jury returned a verdict in favor of plaintiffs in the amount of $2,958,789. The jury assigned negligence in the following percentages: Perrine, fifty-four percent; Tabet, thirty-nine percent; and Curtis Collins, seven percent. In order to reach its verdict, the jury had to find that Presbyterian and Dr. Sollins committed malpractice, and that both defendants were also guilty of malpractice or negligence. On appeal, Perrine does not challenge the jury determination that medical malpractice was committed. He does, however, raise numerous other challenges to the jury's verdict and award of damages. We address each contention separately.

PERRINE'S PERFORMANCE AS MIKEY'S ATTORNEY

Perrine contends there was no evidence supporting the jury's determination that he had committed malpractice. He argues that the evidence showed he made a good-faith decision to settle the case, based upon the following: the fact that plaintiffs had no resources with which to pursue discovery; the lack of an expert witness; the weakness of the claim against Presbyterian and Sollins; the strategy to settle this weaker case in order to obtain seed money for the stronger case against IHS; the quality of opposing counsel; and the "no negligence" vote of the Medical-Legal panel.

Perrine did testify concerning these factors at trial. However, Mikey presented expert testimony that contradicted Perrine's claim that he had handled the case in a competent manner. Mikey's experts testified that a case as complicated as the Presbyterian case should not have been handled without sufficient resources to conduct discovery. Perrine admitted that he took no depositions, filed no requests for production or for admission, and submitted no interrogatories to defendants. Plaintiffs' experts strongly criticized this lack of discovery prior to settlement. Perrine failed to contact Dr. Saland, the physician who treated Mikey after the visits to Presbyterian and IHS; both of plaintiff's experts testified that this omission deprived Perrine of crucial information and a possible expert witness. In fact, in the trial of this case, Dr. Saland testified as a medical expert for plaintiffs.

Plaintiffs' experts also stated that Perrine had not made sufficient efforts to locate potential expert witnesses, and had not performed sufficient medical or legal research into the issues raised by the case. In Perrine's deposition and in his testimony under oath in a prior disciplinary board proceeding, he contradicted his claim (that the settlement was a strategic decision) by stating that the case against IHS was much weaker than the case against Presbyterian and Sollins and that no decision had been made to pursue the case against IHS at the time the first case was settled. In his earlier testimony, he also claimed that he settled the Presbyterian case reluctantly and thought it was a good case, contradicting his assertion at trial and on appeal that he thought the case was weak.

Given the testimony we have noted, we cannot hold as a matter of law that Perrine was not negligent in handling the Presbyterian case. A plaintiff in a legal malpractice case must establish, through expert testimony, that the attorney failed to use the skill, prudence, and diligence of an attorney of ordinary skill and capacity. First Nat'l Bank of Clovis v. Diane, Inc., 102 N.M. 548, 698 P.2d 5 (Ct.App.1985). From the testimony, the jury could have readily found that Perrine settled the case without performing even the minimum level of discovery necessary in such a complex case. The jury could also have found that, in general, Perrine did not have sufficient information about the facts and law involved in this case when he decided to recommend settlement. Mikey's experts testified specifically that Perrine's performance did not meet the standard of an attorney practicing in Albuquerque in 1978 and 1979. We reiterate that on appeal we examine only the evidence supporting the jury's verdict, and ignore contrary evidence. S...

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