United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
April 27, 2018, Plaintiff Sara Cahn (Plaintiff) brought
claims against her former legal counsel, Defendants Terry M.
Word and Terry M. Word, P.C. (collectively, Defendants), for
professional negligence and breach of contract. Both claims are
based on allegations of legal malpractice. Defendants filed
Defendants' Motion for Summary Judgment (Motion), which
is fully briefed, in which they contend that Plaintiff's
claims are time-barred. The Court agrees and will grant the
19, 2006, Plaintiff underwent a pelvic ultrasound at Lovelace
Women's Hospital in Albuquerque, New Mexico, after she
sought treatment there for pelvic pain. Compl. ¶¶
6-7. The ultrasound revealed a potentially cancerous mass on
her ovary. Id. ¶ 7. However, Plaintiff was not
informed of this report. Id. On August 8, 2006,
Plaintiff went to a follow-up consultation with Dr. John D.
Berryman, who was employed by Sandia OB/GYN Associates, P.C.,
and had an office located inside Lovelace Women's
Hospital. Id. ¶ 8. Dr. Berryman informed
Plaintiff that she had ovarian cysts that were “nothing
to worry about.” Id. ¶ 9. He diagnosed
Plaintiff with endometriosis and did not schedule a biopsy.
September 22, 2008, Plaintiff sought further treatment in
Jackson, Wyoming, for the same pelvic pain. Id.
¶ 10. A CT scan revealed an “extensive abnormality
in the pelvis with what appears to be a large, multilobulated
complex cystic mass.” Id. Soon after this,
Plaintiff was diagnosed with ovarian cancer. Id.
¶ 11. She underwent a total hysterectomy, an
omentumectomy, removal of both ovaries, removal of fifty-four
lymph nodes, and extensive scraping of her diaphragm and
colon to remove the cancer. Id.
December 1, 2008, Plaintiff retained Defendants to pursue a
medical malpractice suit against Lovelace Health Systems and
the doctors who failed to notify Plaintiff of the ovarian
mass shown on her May 19, 2006 ultrasound. Id.
¶ 12. However, Plaintiff could not recall Dr.
Berryman's name or the exact date of her consultation.
Id. ¶ 13. On April 10, 2009, Defendants filed a
complaint for medical malpractice in Bernalillo County
District Court on Plaintiff's behalf, naming as
defendants Lovelace Health Systems, four doctors, and one
physician assistant. Id. ¶ 15; Mot. Undisputed
Material Facts (UMF) ¶ 1. Defendants also named a
“John Doe” physician as a placeholder for Dr.
Berryman, explaining that his “identity cannot be
ascertained at this time.” Id. Defendants
identified Dr. Berryman on July 1, 2010, through discovery
produced by Lovelace. UMF ¶ 4. Plaintiff knew at this
time that the statute of limitations might be an
issue. UMF ¶¶ 5-6, Resp. ¶¶
5-6. On July 9, 2010, Defendants amended the medical
malpractice complaint and named Dr. Berryman as an individual
defendant. UMF ¶ 7.
January 13, 2011, Dr. Berryman moved for summary judgment,
arguing that Plaintiff's claims against him were barred
by the three-year statute of repose contained in the New
Mexico Medical Malpractice Act (MMA), NMSA 1978 §
41-5-13. UMF ¶ 10. The district court denied Dr.
Berryman's motion. UMF ¶ 10. Although the repose
period specified in the MMA had expired on August 8, 2009,
the district court applied a due process exception to allow
Plaintiff's claim to proceed, “concluding that
application of the statutory bar would violate
[Plaintiff's] right to due process as guaranteed by the
United States and New Mexico Constitutions.” Cahn
v. Berryman, 2018-NMSC-002, ¶ 9, 408 P.3d 1012,
1014 (2017). The district court then denied Dr.
Berryman's motion to reconsider this decision, but it
certified its order for interlocutory appeal. Plaintiff's
Statement of Material Facts (PMF) ¶ 26; Doc. 38-3, Ex.
C. In September 2012, Dr. Berryman filed an Application for
Interlocutory Appeal contesting the district court's
denial of his motion for summary judgment. UMF ¶ 12. The
Application, which Plaintiff reviewed, alleged that Plaintiff
and Defendants could have identified Dr. Berryman sooner
through available discovery procedures but failed to do
UMF ¶¶ 13-15. The New Mexico Court of Appeals
declined to consider the interlocutory appeal. PMF ¶ 27.
in June 2013 Dr. Berryman and Plaintiff stipulated to a
conditional directed verdict and final judgment. UMF ¶
17. In the stipulated judgment Dr. Berryman admitted his
liability to Plaintiff in the amount of $700, 000 for
malpractice but reserved his right to appeal the judgment on
the ground that Plaintiff's claims against him were
time-barred. UMF ¶ 17. When Plaintiff agreed to the
conditional stipulated judgment, she understood that Dr.
Berryman would appeal the statute of repose issue, and she
would not receive any of the judgment amount if the appellate
court determined that her claims against Dr. Berryman were
time-barred. UMF ¶¶ 18-19. Around the time the
stipulated verdict was entered, Plaintiff understood that
another attorney had taken over her case from Defendants. UMF
¶ 20. Also at about this time, Plaintiff learned
that Defendants had previously sued the clinic that employed
Dr. Berryman in an unrelated lawsuit, and she believed
Defendants had made a mistake in failing to identify Dr.
Berryman sooner. UMF ¶ 21.
Berryman appealed the judgment based on the statute of
repose, and on April 30, 2015, the New Mexico Court of
Appeals overturned the district court and held that the due
process exception did not apply and Plaintiff's
malpractice claims against Dr. Berryman were untimely. Compl.
¶¶ 24-25; see Cahn v. Berryman,
2015-NMCA-078, 355 P.3d 58. On November 30, 2017, the New
Mexico Supreme Court upheld the decision. Compl. ¶ 26;
see Cahn, 2018-NMSC-002. Plaintiff filed this suit
for legal malpractice on April 27, 2018, asserting that
Defendants committed malpractice by failing to timely
identify Dr. Berryman. UMF ¶ 22; Compl. ¶ 31.
Defendants have moved for summary judgment, arguing that like
the underlying medical malpractice claims, Plaintiff's
claims for legal malpractice are time-barred.
Court has subject matter jurisdiction over this case under 28
U.S.C. § 1332(a)(1) because the parties are of diverse
citizenship and the amount in controversy is over $75, 000.
Since the harm alleged occurred in New Mexico, the
substantive law of New Mexico will apply. See Horizon
AG-Prods. v. Precision Sys. Eng'g, Inc., No. CIV
09-1109 JB/DJS, 2010 WL 4054131, *4-5 (D.N.M. Sept. 28,
Court will grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When applying this standard, the Court
“‘view[s] all evidence and any reasonable
inferences that might be drawn therefrom in the light most
favorable to the non-moving party.'” Riser v.
QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015)
(quoting Croy v. Cobe Labs. Inc., 345 F.3d 1199,
1201 (10th Cir. 2003). A “material” fact is one
that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “A dispute over a
material fact is ‘genuine' if a rational jury could
find in favor of the nonmoving party on the evidence
presented.” E.E.O.C. v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). The party
opposing a motion for summary judgment must “set forth
specific facts showing that there is a genuine issue for
trial[.]” Applied Genetics Int'l, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
Mexico, a legal malpractice claim must be filed within four
years from the date of accrual. Sharts v. Natelson,
1994-NMSC-114, ¶ 1, 118 N.M. 721, 885 P.2d 642 (citing
NMSA 1978, § 37-1-4). Accordingly, Plaintiff's claim
is untimely if it accrued before April 27, 2014. A
malpractice claim accrues, and the four-year period begins to
run, “when (1) the client sustains actual injury and
(2) the client discovers, or through reasonable diligence
should discover, the facts essential to the cause of
action.” Id. ¶ 11.
injury does not require a specific degree of harm, nor must
the damage be ascertainable at the time. Id. ¶
12 “[W]hen malpractice results in the loss of a right,
remedy, or interest, or in the imposition of a liability,
there has been actual injury regardless of whether future
events may affect the permanency of the injury or the amount
of monetary damages eventually incurred.” Id.
(internal citation and quotation marks omitted).
Consequently, Plaintiff was injured when Defendants failed to
identify Dr. Berryman and name him as a defendant before the
expiration of the statute of repose, and Plaintiff therefore
lost her legal right to sue Dr. Berryman under the MMA.
See Potter v. Pierce, 2015-NMSC-002, ¶ 20, 342
P.3d 54 (loss of a legal right to have debts discharged was
an actual injury, even though discharge had not yet been
denied). Plaintiff does not seem to dispute this definition
of her actual injury, but she argues that she did not
discover her loss until April 30, 2015, when the Court of
Appeals held that her claim against Dr. Berryman was
client is deemed to have discovered the facts essential to a
malpractice claim when the client knows, or should know, that
the attorney's errors have caused harm. Sharts,
1994-NMSC-114, ¶ 15. This “is generally a question
of fact, but where the undisputed facts show that the client
knew, or should have been aware of the negligent conduct on
or before a specified date, the issue may be decided as a
matter of law.” Id. (internal brackets and
quotation marks omitted). Defendants contend that
Plaintiff's claim accrued in July 2010, when she was
aware that Defendants had identified Dr. Berryman and named
him as a defendant after the expiration of the statute of
repose, or at the latest by June 2013, when Plaintiff knew
that Dr. Berryman was appealing the limitations issue and
thought that Defendants had made a mistake in failing to
identify Dr. Berryman earlier. Plaintiff maintains that she
“was unaware that Defendants' ...