Rocha v. Brown & Gould, LLP

• Decision Date: 30 April 2015
• Docket Number: Civil Action No.: 14–1136 RC
• Citation: 101 F.Supp.3d 52
• Parties: Nieves Rocha, Individually and as the Personal Representative of the Estate of Oscar Rocha, Deceased, Plaintiff, v. Brown & Gould, LLP, Daniel A. Brown, and David M. Lipman, P.A., Defendants.
• Court: U.S. District Court — District of Columbia

101 F.Supp.3d 52

Nieves Rocha, Individually and as the Personal Representative of the Estate of Oscar Rocha, Deceased, Plaintiff,

v.Brown & Gould, LLP, Daniel A. Brown, and David M. Lipman, P.A., Defendants.

Civil Action No.: 14–1136 RC

United States District Court, District of Columbia.

Signed April 30, 2015

Peter Tyler Enslein, Law Offices of Peter T. Enslein, P.C., Catherine D. Bertram, Washington, DC, for Plaintiff.

Michael T. Marr, J. Jonathan Schraub, Sands Anderson PC, McLean, VA, Aaron L. Handleman, Laura M.K. Hassler, Eccleston & Wolf, P.C., Washington, DC, for Defendants.

Re Document Nos.: 36, 37, 38, 43, 49

MEMORANDUM OPINION

Granting B & G Defendants' Motion for Summary Judgment; Granting Defendant Lipman's Motion for Summary Judgment; Denying Plaintiff's Motion for Partial Summary Judgment; Denying as Moot B & G Defendants' Motion To Dismiss; and Denying as Moot B & G Defendants' Motion To Strike Expert Opinions

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Nieves Rocha (“Mrs.Rocha”), individually and as the personal representative of the estate of her deceased husband, Oscar Rocha (“Mr.Rocha”), has commenced this action against attorney Daniel Brown, his law firm, Brown & Gould, LLP, and David Lipman, P.A. (collectively, “Defendants”) alleging legal malpractice (Count I), breach of fiduciary duty (Count II), and breach of contract (Count III). Mrs. Rocha alleges that Defendants committed malpractice by failing to file her asbestos-related claims, which arose out of her husband's death from complications caused by mesothelioma

, in Maryland state court. Defendants instead filed a lawsuit on Mrs. Rocha's behalf in D.C. Superior Court, and the D.C. court ultimately ruled that the claims were time-barred under D.C.Code § 12–311. Relatedly, Mrs. Rocha alleges that Brown, through his work with the Trial Lawyers Association of Metro Washington, D.C. (“DC–TLA”), erred by failing to get D.C.Code § 12–311amended in a way that would have made Mrs. Rocha's asbestos-related lawsuit retroactively timely.

Now before the Court is a motion for summary judgment filed by Brown & Gould, LLP and Daniel Brown (collectively, the “B & G Defendants”), as well as a motion for summary judgment filed by Lipman that incorporates the B & G Defendants' motion and adds arguments specific to Lipman's role in the representation. Together, Defendants seek judgment on Mrs. Rocha's legal malpractice claim in Count I by arguing that the claim is barred by both the statute of limitations and the “judgmental immunity” doctrine. Defendants also request judgment in their favor as to the breach of fiduciary duty claim in Count II on the basis that the claim is not separate and distinct from the legal malpractice claim in Count I. Finally, Defendants seek judgment on Count III, which is premised on Brown's legislative activity, on the basis that Mrs. Rocha fails to state any cognizable legal theory entitling her to relief. In response, Mrs. Rocha has filed a cross-motion asking the Court to enter judgment for her on the issue of whether the legal malpractice claim in Count I was timely filed. For the reasons explained below, the Court will grant the B & G Defendants' and Lipman's motions for summary judgment, and the Court will deny Mrs. Rocha's motion.

II. FACTUAL BACKGROUND

Upon consideration of the evidentiary record submitted by the parties, the Court finds that the following facts are not in dispute. SeeFed.R.Civ.P. 56(a).

A. Oscar Rocha's History

Oscar Rocha, a Virginia resident, was employed as a carpenter and painter in the Virginia and D.C. area from approximately 1971 through 1984. SeeOmnibus Order, Civ. Act. No. 0838–9, Jan. 10, 2011 (D.C.Sup.Ct.) (“Omnibus Order”), ECF No. 37–5, Ex. 9 at 21.¹During that time, Mr. Rocha used and came into contact with asbestos and asbestos-containing products. See id.at 21–22. On February 22, 2006, Mr. Rocha was diagnosed with mesothelioma

, which is a cancercommonly associated with exposure to asbestos, seeSurgical Report, ECF No. 37–8, Ex. 25, and Mr. Rocha was informed of this diagnosis on February 28, 2006, seePathology Report, ECF No. 37–8, Ex. 26. Mr. Rocha died from complications related to his illness on February 10, 2008. SeeDeath Certificate, ECF No. 37–9, Ex. 27; Omnibus Order, Ex. 9 at 22.

B. Brown & Gould's Initial Conversations With Mrs. Rocha

Mrs. Rocha first spoke to Brown and his associates by telephone on February 9, 2009. SeeN. Rocha Dep., ECF No. 37–1, Ex. 1 at 26:20–27:17; Lawson–Hue Dep., ECF No. 37–3, Ex. 5 at 16:1–10. Because Mr. Rocha was diagnosed with mesothelioma

on February 22, 2006, and died on February 10, 2008, Brown initially determined that the one-year limitations period in D.C.Code § 12–311likely would expire on February 10, 2009, and the limitations period for a survival action in Maryland likely would expire twelve days later. SeeBrown Aff., ECF No. 37–9, at ¶¶ 8–10. Medical records later indicated that Mr. Rocha was not informed of his diagnosis until February 28, 2006, which may have extended the Maryland limitations period by six days, but Brown did not have this information in February 2009. Seeid.¶ 10.

During the initial telephone call on February 9, 2009, Mrs. Rocha provided Brown with information regarding Mr. Rocha's work history. In particular, she informed Brown that Mr. Rocha had worked for many years as a carpenter, drywall worker, and independent painter; that he had worked at the Skyline Towers apartment complex in Virginia when it collapsed in 1973; and that he had performed painting work at the D.C. Greyhound Bus terminal, where he may have been exposed to asbestos or asbestos-containing insulation. SeeClient Intake Form, ECF No. 37–9, Ex. 28; N. Rocha Dep. at 29:1–33:15; see alsoBrown Dep., ECF No. 37–2, Ex. 3 at 60:10–17, 98:22–99:10.

Mrs. Rocha and her son, Michael, met with Brown in-person the next day, February 10, 2009. Given the imminent potential limitations deadlines, Brown informed the Rochas that it was imperative to locate any witnesses or evidence that might provide information regarding where Mr. Rocha was exposed to asbestos. SeeBrown Aff. ¶ 11. At this meeting, the Rochas did not advise Brown that Mr. Rocha had performed work in Maryland that might have exposed him to asbestos. Seeid.; Interview Notes, ECF No. 37–9, Ex. 29. Also at this meeting, Brown gave Mrs. Rocha a client intake questionnaire to fill out. SeeN. Rocha Dep. at 34:5–35:12; Client Questionnaire, ECF No. 37–9, Ex. 31. Mrs. Rocha's responses to the questionnaire did not indicate any potential connection between Mr. Rocha and asbestos exposure in Maryland, nor did Mrs. Rocha indicate that she had knowledge of a witness who might possess such information about Mr. Rocha's potential exposure in Maryland. SeeClient Questionnaire, Ex. 31; see alsoN. Rocha Dep. at 33:18–36:12, 39:6–40:17, 43:16–44:5; Brown Dep. at 50:3–51:18; Brown Aff. ¶ 11.

In her answers to the questionnaire, Mrs. Rocha provided the contact information for her eldest son, John, but neither Mrs. Rocha nor Michael Rocha told Brown in 2009 that John might possess information regarding Mr. Rocha's work history, including whether Mr. Rocha may have been exposed to asbestos in Maryland. SeeClient Questionnaire, Ex. 31; Brown Dep. at 106:8–107:22; Brown Aff. ¶ 11.²Brown attempted to contact John Rocha by telephone in February 2009, and Brown left a message when John did not answer.SeeBrown Dep. at 78:91–1. When John Rocha called back, he did not indicate in his message for Brown that he had information regarding Mr. Rocha's work history, and Brown and John ultimately did not talk directly in February 2009. SeeJ. Rocha Dep., ECF No. 37–3, Ex. 4 at 26:12–27:16. As of February 28, 2009, Brown had no evidence that Mr. Rocha was exposed to asbestos while working in Maryland.³SeeBrown Dep. at 115:2–9; Brown Aff. ¶ 17. Brown did, however, have evidence that Mr. Rocha likely was exposed to asbestos while working in Virginia and D.C. SeeBrown Dep. at 60:10–17, 98:22–99:10; Brown Aff. ¶ 18.

During his deposition on October 6, 2014, as part of this litigation, John Rocha testified as to certain recollections about his father's potential work history in Maryland. In particular, John recalled that around five- or six-years of age (i.e.,between October 1975 and October 1976), he had accompanied his father on one occasion from Virginia across the Woodrow Wilson Bridge, and he thought they may have gone to a jobsite in Prince George's County, Maryland, where Mr. Rocha may have performed mudding, drywall work, and painting. SeeJ. Rocha Dep. at 47:16–49:23, 59:17–62:18, 77:6–14; Brown Aff. ¶ 13. This deposition testimony remains the only direct evidence that Mr. Rocha may have been exposed to asbestos in Maryland. SeeEnslein Email, Sept. 15, 2014, ECF No. 37–9, Ex. 32.

C. The First Retainer Agreement

On February 10, 2009, Mrs. Rocha signed a written retainer agreement with Brown & Gould and the Lipman Law Firm (the “First Retainer”). SeeFirst Retainer, ECF No. 37–5, Ex. 7. The First Retainer provided, in relevant part:

I, Nieves R. Rocha, hereby employ the Law Offices of Brown & Gould, LLP and The Lipman Law Firm ... as legal counsel to represent me, individually and as Executrix/Personal Representative of the Estate of Oscar Rocha, in connection with all claims which I may have for damages which were sustained as a result of injuries due to Oscar Rocha's exposure to asbestos. I understand that by this Agreement you do not agree to appeal this case should it be necessary. Such representation, if necessary, may be agreed upon at a later date.

Id.The First Retainer further stated that Mrs. Rocha “agree[d] that [the] Law Offices of Brown & Gould, LLP and The Lipman Law Firm have made no promises or guarantees regarding the outcome of this claim[,]” and that Mrs. Rocha had “read the above provisions and agree[d] that they constitute the entire agreement between the parties.” Id.

At her deposition, Mrs. Rocha testified as...