Labair ex rel. Labair v. Carey
| Decision Date | 25 October 2016 |
| Docket Number | DA 15-0621 |
| Citation | 385 Mont. 233,2016 MT 272,383 P.3d 226 |
| Parties | Holly Labair and Robert Labair, Individually and on behalf of Dawson R. Labair, deceased minor child, Plaintiffs and Appellants, v. Steve Carey, Esq., and Carey Law Firm, and Jane Does 1–4, Defendants and Appellees. |
| Court | Montana Supreme Court |
For Appellants: Tina L. Morin, Morin Law Firm, PLLC, Butte, Montana, Paul Warren, Paul Warren Law, PLLC, Billings, Montana.
For Appellees: Mikel L. Moore, Katherine A. Matic, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana.
¶ 1 Holly and Robert Labair (the Labairs) appeal from final judgment on their legal malpractice claim entered for defendants Steve Carey and Carey Law Firm (collectively “Carey”) in the Montana Fourth Judicial District Court, Missoula County. We vacate and remand for a new trial.
¶ 2 The issue on appeal is whether the District Court erred in instructing the jury to decide whether the plaintiffs would have settled the claim underlying their legal malpractice suit.
¶ 3 The factual background of this case was detailed in Labair v. Carey , 2012 MT 312, 367 Mont. 453, 291 P.3d 1160 (Labair I ), and will not be repeated here at great length. In short, this case stems from the October 2003 death of Dawson Labair, the Labairs' newborn child, following an early delivery by C-section. The Labairs signed a retainer agreement with Carey in January 2004 to pursue a potential medical malpractice claim against Dr. Thomas Baumgartner, their obstetrician. In September 2006, Carey filed a complaint in District Court against Dr. Baumgartner and Community Medical Center alleging negligence and negligent infliction of emotional distress. Carey did not file an application with the Montana Medical Legal Panel (MMLP) before filing the complaint, as required by §§ 27–6–301 and –701, MCA (2005). Carey also failed to file an application with the MMLP before the expiration of the three-year statute of limitations for medical malpractice claims. See § 27–2–205, MCA (2005). Carey later admitted to an error in calculating the statute of limitations.
¶ 4 In March 2010, the Labairs filed a legal malpractice complaint against Carey alleging negligence and several other causes of action stemming from the lapsed statute of limitations. In November 2011, the District Court granted summary judgment to Carey on the grounds that the Labairs had failed to establish a prima facie legal malpractice case because they failed to provide expert evidence on causation and damages in the underlying medical malpractice claim. The Labairs appealed, and we reversed and remanded in Labair I.
¶ 5 We concluded in Labair I that the Labairs were entitled to summary judgment on the duty, breach, and causation elements of their legal malpractice claim against Carey. We remanded the case to the District Court for a trial to establish two required components of the damages element of the Labairs' claim: first, “that it is more probable than not that they would have recovered a settlement or a judgment against Dr. Baumgartner but for Carey's negligence,” and second, “the value of the lost settlement and/or judgment.” Labair I , ¶ 41.
¶ 6 On remand, the District Court conducted a six-day jury trial in which both sides presented expert testimony on the likelihood of a settlement or a judgment in the underlying case and the estimated value of that settlement or judgment. Charles Burdell, the Labairs' expert witness on settlements, testified that the case could have settled for $500,000 to $750,000. He also testified that over 90% of medical negligence cases settle. Carey's settlement expert testified that 95% of medical negligence cases settle, and that the Labairs' claim likely would have settled for $100,000 to $300,000.
¶ 7 Both Holly and Robert Labair testified at trial, but neither explicitly said whether or not they would have settled with Dr. Baumgartner.
Holly Labair said she believed Steve Carey could help her “[o]btain justice” and “hold [Dr. Baumgartner] accountable.” Steve Carey testified that Robert Labair was angry at Dr. Baumgartner, but neither the Labairs' attorney nor Carey actually established the Labairs' desires regarding settlement. The defense played a videotaped deposition of Dr. Baumgartner, in which Dr. Baumgartner said he would have settled with the Labairs for a nominal amount. No other evidence on the Labairs' or Dr. Baumgartner's willingness to settle the underlying medical malpractice claim was presented at trial.
¶ 8 The jury issued its verdict on a special verdict form, which posed yes or no questions to the jury regarding key elements of the Labairs' claim. Relevant portions of the verdict form, including the jury's responses, read as follows:
The jury then skipped to Question No. 6, which is not at issue on appeal.
¶ 9 During deliberations, the jury asked the District Court for clarification of Question No. 4: “In regards to question 4 on the questionare [sic ] are we to consider whether the Labairs would have settled or did they just lose the opportunity?”
¶ 10 The District Court discussed the jury's question with counsel for both parties and suggested that the jury be given a new instruction, which read as follows:
¶ 11 In accord with M. R. Civ. P. 51(c), the Labairs made a timely and specific objection to the District Court's proposal, arguing that “all we have to prove is that we could have secured a settlement, and the moment Dr. Baumgartner said he would have settled, we proved that.” The District Court disagreed, explaining:
¶ 12 The District Court then gave the jury the new instruction, which was identified as Instruction No. 36. With this additional instruction, the jury answered “No” to Question No. 4, apparently indicating that the Labairs would not have settled the underlying medical malpractice claim. After the jury was discharged, the Labairs orally renewed their objection to Instruction No. 36:
The Montana Supreme Court did not lay the burden on the plaintiffs of whether they would have settled. There was no way for the plaintiffs to give that testimony if they would have settled without knowing the amount.... We believe that this instruction to the jury is a reversible error, your Honor.
Carey countered that the Labairs' willingness to settle was an element of proof implied by our holding in Labair I :
[T]he Labairs bore the burden from the beginning, at least since the Supreme Court's decision to prove both that there could have been a settlement and the value of that settlement. It's a failure of proof on the part of the plaintiffs' case, and they had all the opportunity in the world to provide that proof to this court and to this jury, and they failed to do it.
¶ 13 The District Court decided to let the jury's verdict stand, but noted “Dr. Baumgartner's testimony is that he would have only agreed for a minimal settlement on his part,” implying the Labairs also failed to show a potential settlement value that would have been agreeable to both sides. The District Court formally entered judgment on September 22, 2015, from which the Labairs appeal.
¶ 14 We review a district court's selection of jury instructions for abuse of discretion. Cechovic v. Hardin & Assocs. , 273 Mont. 104, 116, 902 P.2d 520, 527 (1995). Taken in their entirety, “jury instructions must fully and fairly instruct the jury regarding the applicable law.” Goles v. Neumann , 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089. When a jury instruction is based on a district court's conclusion of law, we apply a plenary review standard. W. Sec. Bank v. Eide Bailly LLP , 2010 MT 291, ¶ 18, 359 Mont. 34, 249 P.3d 35.
¶ 15 Did the District Court err in instructing the jury to decide whether the...
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