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Cahn v. Word

United States District Court, D. New Mexico

February 13, 2019

SARA CAHN, Plaintiff,
TERRY M. WORD and TERRY M. WORD, P.C., Defendants.


         On 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.[1] 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.[2] The Court agrees and will grant the Motion.

         I. BACKGROUND

         On May 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. Id.

         On 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.

         On 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.[3] 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.

         On 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 so.[4] UMF ¶¶ 13-15. The New Mexico Court of Appeals declined to consider the interlocutory appeal. PMF ¶ 27.

         Consequently, 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.[5] 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.[6]

         Dr. 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.


         The 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, 2010).

         The 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. 1990).

         In New 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.

         Actual 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 untimely.

         A 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' ...

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