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Rocha v. Brown & Gould, LLP

United States District Court, D. Columbia.

April 30, 2015

NIEVES ROCHA, Individually and as the Personal Representative of the Estate of OSCAR ROCHA, Deceased, Plaintiff,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For NIEVES ROCHA, As the Personal Representative of the Estate of OSCAR ROCHA, Deceased, Plaintiff: Catherine D. Bertram, LEAD ATTORNEY, Washington, DC; Peter Tyler Enslein, LEAD ATTORNEY, LAW OFFICES OF PETER T. ENSLEIN, P.C., Washington, DC.

For BROWN & GOULD LLP, Defendant: Michael T. Marr, PRO HAC VICE, SANDS ANDERSON, PC, McLean, VA; J. Jonathan Schraub, SANDS ANDERSON PC, McLean, VA.

For DANIEL A. BROWN, Defendant: J. Jonathan Schraub, SANDS ANDERSON PC, McLean, VA.

For LIPMAN LAW FIRM, Defendant: Aaron L. Handleman, Laura M.K. Hassler, LEAD ATTORNEYS, ECCLESTON & WOLF, P.C., Washington, DC.

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


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.


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 § 12-311 amended 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.


Upon consideration of the evidentiary record submitted by the parties, the Court finds that the following facts are not in dispute. See Fed.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. See Omnibus Order, Civ. Act. No. 0838-09, Jan. 10, 2011 (D.C. Sup.Ct.) (" Omnibus Order" ), ECF No. 37-5, Ex. 9 at 21.[1] During that time,

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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 cancer commonly associated with exposure to asbestos, see Surgical Report, ECF No. 37-8, Ex. 25, and Mr. Rocha was informed of this diagnosis on February 28, 2006, see Pathology Report, ECF No. 37-8, Ex. 26. Mr. Rocha died from complications related to his illness on February 10, 2008. See Death 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. See N. 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 § 12-311 likely would expire on February 10, 2009, and the limitations period for a survival action in Maryland likely would expire twelve days later. See Brown Aff., ECF No. 37-10, 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. See id. ¶ 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. See Client Intake Form, ECF No. 37-9, Ex. 28; N. Rocha Dep. at 29:1-33:15; see also Brown 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. See Brown 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. See id. ; Interview Notes, ECF No. 37-9, Ex. 29. Also at this meeting, Brown gave Mrs. Rocha a client intake questionnaire to fill out. See N. 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. See Client Questionnaire, Ex. 31; see also N. 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

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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. See Client Questionnaire, Ex. 31; Brown Dep. at 106:8-107:22; Brown Aff. ¶ 11.[2] Brown attempted to contact John Rocha by telephone in February 2009, and Brown left a message when John did not answer. See Brown Dep. at 78:9-11. 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. See J. 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.[3] See Brown 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. See Brown 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. See J. 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. See Enslein 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" ). See First 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.

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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 to the following regarding her understanding of the First Retainer:

Q. Did you understand [when you signed the First Retainer] that you were not hiring Mr. Brown to handle any appeal at that time?
A. Because we don't know if we're going to have an appeal.
Q. Right. And so again to answer my question, you were not hiring him at that time to handle an appeal; is that right?
A. No. No. We just handled to get the case, the asbestos case.
Q. Okay. The trial?
A. The trial.

N. Rocha Dep. at 78:18-79:10. The First Retainer does not provide that Brown & Gould or the Lipman Law Firm would undertake any legislative services on Mrs. Rocha's behalf. See First Retainer, Ex. 7.

D. Brown's Legislative Activity With The DC-TLA

On February 16, 2009, Brown wrote a letter to the DC-TLA in regard to the group potentially seeking a legislative clarification about the application of the statute of limitations in D.C. Code § 12-311, which deals with asbestos-related claims.[4] See Brown Letter, Feb. 16, 2009, ECF No. 37-9, Ex. 37; Brown Dep. at 108:7-110:7. Brown did not receive a response to his letter. See Brown Dep. at 110:4-7. On June 8, 2010, after learning that another DC-TLA legislative committee meeting was convening, Brown wrote to the DC-TLA for a second time, and he included with his letter a memorandum discussing what he viewed as ambiguity in § 12-311. See id. at 144:15-145:3, 147:4-6; Brown Letter, June 8, 2010, ECF No. 37-9, Ex. 38. Brown also proposed new language for amending the statute, and Brown hoped this language would clarify that the legislative intent of D.C. Code § 12-311 was to expand the time within which asbestos claims could be brought, not to shorten the time otherwise available under the District's three-year limitations period in D.C. Code § 12-301(8). See Brown Dep. at 149:3-10. Specifically, Brown proposed a new " subsection (d)" for § 12-311 that provided: " This section shall not be applied to shorten the time period otherwise available to an asbestos-injured plaintiff under D.C. Code [§ ] 12-301(8) or D.C. Code [§ ] 16-2702." Brown Letter, June 8, 2010, Ex. 38. Brown's proposal did not include a provision stating that the amended statute would apply retroactively. See id.

The DC-TLA took up the limitations issue as a legislative priority, and the D.C. Council took two interim clarifying steps before ultimately passing a final amended statute. First, the D.C. Council adopted an emergency resolution intended to clarify the original legislative intent of the statute. Specifically, Resolution 18-642, which was dated October 5, 2010, and entitled " Asbestos Statute of Limitations Clarification Emergency Declaration Resolution of 2010," provided that the intent of

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D.C. Code § 12-311 was to " expand the period of time in which plaintiffs may sue to recover for asbestos injuries." Resolution 18-642, ECF No. 37-9, Ex. 39. Second, on October 20, 2010, the D.C. Council passed an emergency act, D.C. Act 18-585, which was entitled " Asbestos Statute of Limitations Clarification Emergency Act of 2010." D.C. Act 18-585, ECF No. 37-9, Ex. 40. The emergency act's stated purpose was to clarify, on an emergency basis, that § 12-311 was " not intended to shorten pre-existing statutes of limitations available in any civil action for injury or illness based upon exposure to asbestos." Id. To achieve this, the emergency act added a " subsection (d)" to § 12-311 that provided: " A plaintiff in an asbestos-injury action shall have the longer of the [one-year] limitation period prescribed by subsection (a)... or the [three-year] limitation period prescribed by § 12-301(8)." Id. The language in the emergency resolution and the emergency act differed slightly from the language proposed by Brown. See Amato Dep., ECF No. 37-4, Ex. 6 at 104:15-105:21; Brown Letter, June 8, 2010, Ex. 38.

Following this emergency legislative activity in October 2010, the final legislative process occurred, and an amended statute was codified in June 2011 with language slightly different from the emergency act. The amended version of D.C. Code § 12-311 provides:

(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following:
(1) Within one year after the date the plaintiff first suffered disability;
(2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that the disability was caused or contributed to by the exposure; or
(3) Three years from the time the right to maintain the action accrues.

D.C. Code § 12-311 (June 3, 2011).

E. The Virginia State Court Litigation

With evidence of Mr. Rocha's likely asbestos exposure in Virginia, Brown decided to pursue a " back-up" case in Virginia state court on Mrs. Rocha's behalf. See Brown Dep. at 67:3-18, 112:9-13; Brown Aff. ¶ 33. In making the decision to file in Virginia, Brown considered the fact that Virginia procedural rules allowed for " sleeper suits" and nonsuits, which were unavailable in D.C. See Brown Dep. at 112:9-13; Brown Aff. ¶ ¶ 33-34. Thus, on February 10, 2010, Brown, through Virginia lawyer Erin Jewell, filed a wrongful death lawsuit in the Circuit Court for Newport News. See Compl. Civ. Act. No. 10-00316TF (Cir. Ct. Newport News, Va. Feb. 10, 2010), ECF No. 43-9, Ex. 7. On January 12, 2011, Brown instructed Jewell to nonsuit the Virginia action, see Brown Email, Jan. 12, 2011, ECF No. 44-8, Ex. 18, and on January 31, 2011, the Virginia court entered the order of nonsuit dismissing the case, see Order of Nonsuit, Civ. Act. No. 10-00316TF (Cir. Ct. Newport News, Va. Jan. 31, 2011), ECF No. 45-7, Ex. 27.

F. The D.C. Superior Court Litigation

On February 10, 2009, the same day that Mrs. Rocha signed the First Retainer, Brown & Gould filed a wrongful death and survival complaint on her behalf in the D.C. Superior Court against Bondex International, Inc., Georgia-Pacific Corporation, Union Carbide Corporation, and seven other companies. See Compl., Civ. Act. No. 0838-09 (D.C. Super. Ct. Feb. 10, 2009), ECF No. 37-5, Ex. 8. As of December 2010,

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only Bondex, Georgia-Pacific, and Union Carbide remained as defendants in the case because the other defendants had been dismissed through unopposed summary judgment motions. See Dkt., Civ. Act. No. 0838-09 (D.C. Sup.Ct.), ECF No. 46-5, Ex. 35. At a pre-trial hearing on December 21, 2010, the Superior Court granted summary judgment for Georgia-Pacific and Union Carbide based on the court's interpretation of D.C. Code § 12-311. See N. Rocha Dep. at 80:19-81:15; Brown Dep. at 175:12-22. Bondex had not filed a dispositive motion, and it therefore remained as the sole defendant in the case.

On January 10, 2011, the Superior Court issued an Omnibus Order explaining the summary judgment decision. See generally Omnibus Order, Ex. 9. In particular, the court found that the language in the pre-June 3, 2011, version of D.C. Code § 12-311 was " clear and unambiguous" such that the statute's one-year limitations period applied to Mrs. Rocha's mesothelioma claims and did not give her the option of relying on the three-year limitations period in § 12-301(8). See id. at 29. The court therefore determined that because " the disability and discovery dates ... [were] on or before February 28, 2006, when Mr. Rocha was diagnosed with mesothelioma and no longer able to work," Mrs. Rocha " had one year from that date in which to sue" under § 12-311; accordingly, her February 10, 2009, complaint in D.C. Superior Court was time-barred. See id. at 32. Finally, looking to the recent emergency legislative activity, the court found no language in Resolution 18-642 or D.C. Act 18-585 indicating that the legislature intended for § 12-311 to apply retroactively to a complaint that was filed prior to the amendment and that had expired by the time of filing, which was the status of Mrs. Rocha's D.C. lawsuit. See id. at 32-34.

On February 4, 2011, Brown & Gould filed a notice of appeal in the D.C. Court of Appeals. See Notice of Appeal, ECF No. 37-5, Ex. 10. On March 24, 2011, the D.C. Court of Appeals dismissed Mrs. Rocha's appeal without prejudice because the trial court had not yet entered a final judgment as to all defendants. See Dismissal Notice, ECF No. 37-5, Ex. 11. On April 22, 2011, Brown & Gould filed a consent motion to reinstate the Superior Court action and for the entry of a final order dismissing the last defendant, Bondex. See Consent Mot., ECF No. 37-5, Ex. 12. The Superior Court entered a corrected final order effecting the full dismissal of the lawsuit on April 26, 2011. See Final Order, ECF No. 37-5, Ex. 13.

G. The Relationship Between Mrs. Rocha and Defendants Following The Omnibus Order

Following the Omnibus Order, Mrs. Rocha, Michael Rocha, and Brown engaged in numerous conversations regarding potential terms and conditions by which Defendants might represent Mrs. Rocha during an appeal to the D.C. Court of Appeals.[5] See, e.g., M. Rocha Dep. at 135:19-136:3.

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For example, in a letter dated March 4, 2011, Brown explained to Mrs. Rocha that the First Retainer " does not contemplate that we will appeal the case," and Brown therefore proposed a new retainer based on a contingency fee arrangement and with the option of " retaining an appellate specialist" from another law firm at a flat rate of $45,000 to assist Defendants. See Brown Letter, Mar. 4, 2011, ECF No. 37-5, Ex. 14. Mrs. Rocha declined Brown's offer to sign a new retainer for the appeal at this time, in part due to the expected costs under Brown's proposal. See N. Rocha Dep. at 84:12-85:13, 87:6-10; M. Rocha Dep. at 128:20-130:18.

After the March 4 letter, Brown attempted to communicate with Mrs. Rocha and her son throughout April and May regarding whether Mrs. Rocha would sign a new retainer for the appeal, but the Rochas mostly ignored Brown's many phone messages, emails, and letters:

Letter dated April 12, 2011: " David [Lipman] and I find ourselves hamstrung by our inability to communicate with our client, Nieves. Numerous phone messages have gone unreturned on the home machine and to each of your cell phones over the last few weeks. We have tried to schedule conversations and have been unsuccessful." Brown Letter, Apr. 12, 2011, ECF No. 37-5, Ex. 15.
Letter dated April 29, 2011: " I have left, this week, additional phone messages for you and Michael. I also sent an email to Michael on Tuesday asking to speak with you on Wednesday or Thursday. None of my messages were returned.... [T]his gives us pause in continuing in our representation." Brown Letter, Apr. 29, 2011, ECF No. 37-5, Ex. 16.
Letter dated May 6, 2011: " It is extremely important that we speak.... Again, the deadline to file the appeal is approaching." Brown Letter, May 6, 2011, ECF No. 37-6, Ex. 17.
Letter dated May 12, 2011: " I am not sure what more I can do in order to try and have a conversation with you about the need for you to decide how you wish to proceed with the appeal of your case -- if at all. Despite my hand-delivered letter to you, dated April 29, 2011, my telephone call to you on May 5, 2011, and my letter to you dated May 6, 2011 delivered via FedEx, I cannot get you to call me or communicate in any way, and I have concerns about the upcoming deadline." Brown Letter, May 12, 2011, ECF No. 37-8, Ex. 18.
Letter dated May 20, 2011: " Based upon our telephone conversation earlier today, it appears that we have reached an impasse in our ability to communicate with you regarding what direction, if any, you wish us to take relative to the impending deadline.... However, you indicated in our telephone conversation today that you are presently unwilling to enter into the Retainer Agreement." Brown Letter, May 20, 2011, ECF No. 37-8, Ex. 19.

Consistent with Mrs. Rocha's rejection of Brown's March 4 proposal, one issue delaying the signing of a new retainer was concern by Mrs. Rocha and her son about the fees and costs incurred under the First Retainer, as well as the potential costs of Defendants' representation during the appeal. See M. Rocha Dep. at 128:20-130:18. Mrs. Rocha therefore would not sign a new retainer until these concerns about past and future costs were resolved. See id. at 133:10-134:6. In addition, Mrs. Rocha demanded that any new retainer must grant her the right to pre-approve expenses going forward, see id. at 136:4-137:15, and the Rochas also expressed concerns about Defendants' substantive handling of the D.C. and Virginia actions, see id. 146:14-147:22.

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During this period after the dismissal of the Superior Court litigation, Mrs. Rocha and her son considered alternatives to signing a new retainer with Defendants, including whether they should obtain new counsel for the appeal or proceed pro se. See id. at 139:5-140:22, 142:18-144:22. Mrs. Rocha's actions between March and early May 2011 left ...

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