Rubens v. Mason
| Decision Date | 03 June 2008 |
| Docket Number | No. 06-1213-cv.,06-1213-cv. |
| Citation | 527 F.3d 252 |
| Parties | Barbara RUBENS, Plaintiff-Appellant, v. Roy L. MASON, Morgan, Shelsby, Carlo, Downs & Everton, formerly known as Mason, Ketterman & Morgan, P.A., Defendants-Appellees, Mason, Ketterman & Cawood, formerly known as Mason, Ketterman & Morgan, P.A., and Heather R. McCabe, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard E. Lerner, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (Michael A. Carrasco, on the brief), for Defendants-Appellees.
Before: CALABRESI, RAGGI and HALL, Circuit Judges.
Plaintiff-Appellant Barbara Rubens appeals from an award of summary judgment granted to Defendants-Appellees Roy Mason, and his firm Morgan, Shelsby, Carlo, Downs & Everton, formerly known as Mason, Ketterman & Morgan (hereinafter "Appellees"), on an attorney malpractice claim. See Rubens v. Mason, 417 F.Supp.2d 262 (S.D.N.Y.2006) (Chin, J.).
Barbara Rubens was fitted with a Dalkon Shield Intrauterine Device in 1973 and was later hospitalized for pelvic inflammatory disease (PID), at which time the Shield was removed. She brought a claim against the Dalkon Shield Claimant's Trust (the "Trust") claiming that the Shield had caused her PID, and that she had suffered infertility, depression, loss of income, and pain and suffering as a result. Her husband brought a derivative claim. Under the options for redress provided by the Dalkon Shield Claims Resolution Facility, she and her husband each chose "Option 3," which allowed for a greater amount of compensatory damages. Rubens and her husband proceeded, separately, to arbitrate their claims, and Rubens's husband was awarded the maximum allowable compensatory damages in his arbitration proceeding. Rubens lost at arbitration, and her appeal to vacate the Arbitrator's decision was rejected by the reviewing court. Rubens v. Dalkon Shield Claimants Trust, 232 B.R. 855 (E.D.Va.1999).
Rubens then brought this diversity action for attorney malpractice. The Appellees' first motion for summary judgment, granted by the district court in their favor, was reviewed by this Court in 2004. We determined that the summary judgment award was improperly based on testimony that sought to reveal the deliberative thought processes of the Arbitrator. We, therefore, remanded the case for further proceedings. Rubens v. Mason [Rubens I], 387 F.3d 183, 191 (2d Cir.2004). In doing so, we also said that "[d]etermining whether Mason's alleged failures were negligent or merely reasonable tactical decisions presented a question of fact that could not be resolved on summary judgment." Id. at 190.
This Court reviews a grant of summary judgment de novo. Barry v. Liddle, O'Connor, Finkelstein & Robinson, 98 F.3d 36, 39 (2d Cir.1996). Summary judgment may be granted only if the court concludes that the case presents "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," Fed. R.Civ.P. 56(e), and this Court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998).
In a diversity action based on attorney malpractice, state substantive law, here that of New York, applies. Barry, 98 F.3d at 39; see also Rubens I, 387 F.3d at 186 n. 6. To prevail on such a claim, Rubens must demonstrate "that the attorney was negligent, that the negligence was a proximate cause of the injury and that she suffered actual and ascertainable damages." Rubens I, 387 F.3d at 189 (citing McCoy v. Feinman, 99 N.Y.2d 295, 301-02, 755 N.Y.S.2d 693, 697, 785 N.E.2d 714 (2002)). In order for a defendant to succeed on summary judgment, it must establish "that the plaintiff is unable to prove at least one of the essential elements." Crawford v. McBride, 303 A.D.2d 442, 442, 755 N.Y.S.2d 892, 892 (2d Dep't 2003).
In granting summary judgment in favor of defendants on remand, the district court appears to have focused on the issue of negligence. It held, as a matter of law, that Mason made only tactical and strategic decisions which cannot constitute malpractice. That conclusion, however, was effectively foreclosed by this court's prior decision. Rubens I — as noted earlier — held that "[d]etermining whether Mason's alleged failures were negligent or merely reasonable tactical decisions presented a question of fact that could not be resolved on summary judgment." Rubens I, 387 F.3d at 190. The only issue we deemed still possible to be decided on summary judgment was that of causation, that is, assuming Mason was negligent for the purposes of deciding the defendant's summary judgment motion, whether Mason's acts of alleged negligence were the proximate cause of Rubens's injuries.1 By starkly juxtaposing these two aspects of the Rubens I decision, we perhaps bring its remand into sharper focus than it appeared in context to the district court. Otherwise, we would not expect the able district judge in this case to have focused unnecessarily on negligence while failing to address causation. Whatever the reason for any misunderstanding, we are obliged to identify error in the application of our mandate on remand. We therefore once again remand this case to the district court to assess whether the alleged acts of negligence were the proximate cause of Rubens's injuries.
To establish proximate cause, "the client must meet a requirement," Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 780 N.Y.S.2d 593, 596 (1st Dep't 2004), and must demonstrate that a reasonable fact-finder could conclude that a "reasonable fact-finder in the underlying suit would have arrived at a different result but for the attorney's negligence." Rubens I, 387 F.3d at 189.
Rubens alleges a number of different individual acts of negligence on the part of Mason: (1) his failure to introduce the Reichel presumption; (2) his decision (a) to enter into a stipulation to admit the Trust's chlamydia test, thus failing to prevent the Trust's test from being introduced, and (b) to introduce without stipulation Rubens's own (the Corio) chlamydia test; (3) his failure to realize that the Trust's test was actually negative; and (4) his failure to bring the proper expert witnesses to the arbitration.2 To survive summary judgment on the element of causation, Rubens must show that but for at least one of these alleged acts of negligence, a reasonable fact-finder could conclude that she would have won in the underlying action. It is the final allegation that presents Rubens's strongest case for causation, and we direct the district court on remand to focus on the role of the expert witnesses.
When an individual who used a Dalkon Shield can show one of a number of various injuries, including PID, a presumption of causation in favor of the claimant is created. Reichel v. Dalkon Shield Claimants Trust, 109 F.3d 965, 967 (4th Cir.1997). This presumption can be rebutted upon the introduction of evidence which would support a finding of the "non-existence of the presumed fact," at which point "the case is left in the same situation as if no presumption had ever been applicable." Id. at 968. Defendants contend that Mason's failure to introduce the Reichel presumption is of no significance given that the Trust (1) submitted evidence of chlamydia, another cause of PID, and (2) provided a discussion of "biofilm", the scientific theory which contradicts the evidence that the Dalkon Shield causes PID. The Trust having introduced evidence supporting two lines of reasoning by which the arbitrator could "find[ ] ... the non-existence of cause of injury by use of the Dalkon Shield," id. at 968, the Reichel presumption could no longer operate. The fact that Mason did not introduce the presumption, therefore, made no difference to the manner in which the arbitrator evaluated the evidence of causation and cannot be a but for cause of plaintiff's damages in this case.3
Rubens had two chlamydia tests — one taken by the Trust, allegedly positive, and one taken by her personal doctor, Dr. Corio, which was...
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