Wagner v. Sellinger

• Decision Date: 29 April 2004
• Docket Number: No. 99-CV-788.,99-CV-788.
• Citation: 847 A.2d 1151
• Parties: Irene WAGNER and Estate of Francis Wagner, Appellants, v. John J. SELLINGER, et al., Appellees.
• Court: D.C. Court of Appeals

847 A.2d 1151

Irene WAGNER and Estate of Francis Wagner, Appellants, v. John J. SELLINGER, et al., Appellees.

No. 99-CV-788.

District of Columbia Court of Appeals.

Argued January 22, 2004.

Decided April 29, 2004.

Christian Camenisch for appellants.

Pamela A. Bresnahan, with whom Steven R. Becker, Washington, was on the brief for appellees.

Before GLICKMAN and WASHINGTON, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

Appellant Irene Wagner (and her late husband)¹ brought this case charging legal malpractice by the appellees, John J. Sellinger and the law firm of Paulson, Nace, Norwind & Sellinger, in handling her medical malpractice claim against a hospital and its operating physicians that resulted in her paralysis. The grounds for appeal are the trial court's alleged errors in (1) granting summary judgment for the defendant-appellees on the ground that the statute of limitations had run, and in (2) disqualifying the Wagners' lawyer despite an alleged hardship. Appellees dispute these contentions and argue that Mrs. Wagner must lose in any event because she failed to proffer the expert testimony required to sustain a prima facie case of professional negligence. We rule for Mrs. Wagner on the limitations issue and reverse and remand for further proceedings.

I.

On October 3, 1990, Mrs. Wagner underwent a six-hour bilateral laminectomy and fusion operation at Georgetown University Medical Center ("Georgetown") performed by Dr. Arthur Kobrine and another physician. As a result, she was paralyzed from the waist down. On June 3, 1992, the Wagners retained attorney John J. Sellinger and his law firm, Paulson, Nace, Norwind & Sellinger, to file suit against Georgetown and Dr. Kobrine.² Sellinger did so on March 24, 1993, demanding ten million dollars. He then deposed each doctor for approximately one hour. Later, in the summer of 1994, Sellinger advised the Wagners to settle for $175,000. On July 21, 1994, the Wagners terminated their representation by Sellinger and his firm although Sellinger never formally withdrew his appearance.

On July 31, 1994, the Wagners retained attorney Christian Camenisch. After reviewing the files in August, he opined that Sellinger's discovery efforts had been inadequate. On September 9, in the hope of uncovering more details of the operation, Camenisch filed a motion requesting an opportunity to depose the surgeons a second time. The court denied the motion on October 28, 1994.

On January 4, 1996, the trial court—relying on the statute of limitations— granted defendants' motions to dismiss the Wagners' claim that they had not given the required informed consent to the operation.³ Seven months later, on August 14, while the defense was presenting its case-in-chief to the jury on the other counts of the complaint, the Wagners learned for the first time that the doctors had used an instrument called a bovie. The Wagners had been proceeding on a theory that Dr. Kobrine had been negligent because he used a three-millimeter rongeur.⁴ On August 27, 1996, the jury found no liability and, as a result, awarded the Wagners no damages. On August 8, 1997, the Wagners, through Mr. Camenisch, filed a complaint for legal malpractice against Sellinger, and against what by then had become his former law firm, alleging failure to conduct adequate discovery. First and second amended complaints were filed, respectively, on August 15 and September 15, 1997. In the second amended complaint, the Wagners alleged that they had terminated the representation because the defendant attorneys had "not only failed to properly prosecute their claims, they vastly compromised and damaged their causes of action, and thereafter demanded plaintiffs settle for $175,000 of which less than $95,000 would have been received by plaintiffs." In her supporting affidavit, Mrs. Wagner stated that "because [she] was so disappointed and disgusted with the efforts of Mr. Sellinger and his law firm in pursuing [her] case, [she] terminated their legal representation."

On February 9, 1998, defendants filed a motion to disqualify Camenisch from further representing the Wagners on the ground that he was a material witness. The trial court granted the motion on March 19, 1998,⁵ extended discovery deadlines for sixty days, and stayed the litigation for thirty days or until entry of an appearance by new counsel.⁶

Over a year later, on April 7, 1999, defendants filed a motion for summary judgment alleging that the Wagners' claims were barred by the three-year statute of limitations and that in any event they could not prove professional negligence because they lacked expert testimony. The trial court granted the motion on the first ground on May 13, 1999, ruling that the cause of action had begun to run the day Mrs. Wagner terminated her relationship with her former counsel, July 21, 1994.

II.

We review de novo the trial court's grant of summary judgment. Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983). In the District of Columbia, the statute of limitations governing a legal malpractice claim is three years. D.C.Code § 12-301(8) (2001); Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 994 (D.C.1978). In such cases, the discovery rule provides that a claim does not accrue until a plaintiff knows, or by the exercise of reasonable diligence should know, of (1) an injury, (2) its cause, and (3) some evidence of wrongdoing. Bussineau v. President and Dirs. of Georgetown Coll., 518 A.2d 423, 435 (D.C.1986). The statute of limitations will not begin to run until the plaintiff either has actual notice of the cause of action or—given the obligation to discover the discoverable—has "inquiry notice" as of the time a reasonable investigation would have led to actual notice. Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996) (opinion of Ruiz, J.). Thus, the plaintiff need not be fully informed about the injury for the statute to begin running; she need only have some knowledge of some injury. Colbert v. Georgetown Univ., 641 A.2d 469, 473 (D.C.1994) (en banc) (citing Knight v. Furlow, 553 A.2d 1232, 1235 (D.C.1989)). In short, knowledge is deemed sufficient if the plaintiff has reason to suspect that the defendant did something wrong, even if the full extent of the wrongdoing is not yet known. Morton v. National Med. Enters., Inc., 725 A.2d 462, 468-69 (D.C.1999). As a modification of the discovery rule this court, for policy reasons, has adopted the "continuous representation rule" under which a legal malpractice claim will not accrue until the representation is terminated, even though the client's knowledge might otherwise have triggered the statute earlier. R.D.H. Communications, Ltd. v. Winston, 700 A.2d 766, 768 (D.C.1997). Thus, the earliest date the statute of limitations could have begun to run here was July 21, 1994, when Sellinger and his firm were fired.⁷ And this is the date that appellees contend the statute of limitations began to run—three years, two weeks, and four days before the Wagners filed their lawsuit.

As the case law requires, appellees' contention is premised on Mrs. Wagner's having "inquiry notice" based at least on a "reasonable suspicion" that the appellees had done "something wrong" by July 21, 1994. That said, all of the case-law formulations that allow the statute of limitations to commence running based on an attenuated idea of notice, rather than on actual knowledge, presuppose notice of an actual injury—an injury that has occurred—not merely a speculative wrong. If there is no injury, even the strongest belief that the defendant has caused the plaintiff real harm will not transmute that belief into a reality for limitations purposes.

This proposition becomes self-evident when one takes time to recognize that a statute of limitations cannot begin to run until the first day on which discovery will show that the plaintiff had a bona fide lawsuit based on injury, meaning a legally cognizable claim that would survive a motion to dismiss. Absent injury, there is no lawsuit. See Fort Myers Seafood Packers, Inc. v. Steptoe & Johnson, 381 F.2d 261, 262 (D.C.Cir.1967)

(adopting rule that malpractice claim accrues when actual injury occurs, not when acts causing injury occur); accord Weisberg, 390 A.2d at 994-95. With this understanding, Mrs. Wagner contends that she was not injured until she lost her medical malpractice trial on August 27, 1996. Accordingly, she says, the statute of limitations did not begin to run until that time, well within the three-year limitations period for her legal malpractice suit filed less than a year later on August 8, 1997.

So when was Mrs. Wagner injured? Appellees reference her second amended complaint, in which she said that she had terminated all representation by Sellinger and his firm on July 21, 1994 because they had "not only failed to properly prosecute" the Wagners' claims but also had "vastly compromised and damaged their causes of action," and thereafter had demanded that plaintiffs "settle for $175,000." Mrs. Wagner's affidavit dated March 30, 1998 added that she had "terminated their legal representation" on July 21, 1994 because she and her husband had been "disappointed and disgusted" with their lawyers' efforts. And in a pro se "motion for immediate hearing for continuance of discovery" filed on July 25, 1994, four days after firing their lawyers, the Wagners represented that "prospective counsel" had "cited inadequacy of legal representation thus far in behalf of Plaintiffs...."⁸ Finally, Mrs. Wagner's counsel at oral argument on appeal acknowledged that, once Sellinger had tried to force a settlement, "a red flag went up."

Appellees rely on these pleadings, if not as hard evidence, at least as admissions of injury as of July 21, 1994—in legal effect an estoppel to claim otherwise. We cannot agree. The statements in the second amended complaint and affidavit, filed respectively in 1997 and 1998, that appellees had "vastly...