2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

2006). In this case, Plaintiffs brought a legal malpractice action against their former lawyers, thelaw firm of Hourigan, Kluger & Quinn, P.C. (“HK&Q”), who had been unsuccessful in litigatinga medical malpractice claim for them. Plaintiffs claimed that while HK&Q was working on theirmalpractice case, HK&Q had allowed the statute of limitations on their related products liabilityclaim to expire.Plaintiffs served requests for admissions, in which they asked HK&Q to admit the natureand extent of Plaintiffs’ injuries and the resulting damages based on the assertions made in themedical malpractice case filings and other submissions. HK&Q did not respond with theadmissions Plaintiffs sought. Plaintiffs then filed a motion seeking to compel HK&Q to makethese admissions without qualifications. HK&Q argued that they were not precluded fromadvocating a different position in the legal malpractice case than they had advocated onPlaintiffs’ behalf in the medical malpractice case, when both positions could be supported bycompeting evidence. Furthermore, HK&Q argued that in order to recover in the legalmalpractice case, Plaintiffs must prove that they would have prevailed in a products liability suitand were trying to circumvent this burden to establish the “case within the case” by trying tobind HK&Q to positions it had asserted on Plaintiffs’ behalf in the medical malpractice case.In denying the motion to compel, the court focused on the “case within a case”requirement and found that Plaintiff’s burden to prove this could not be fulfilled by statementsand submissions made by HK&Q in the medical malpractice case. He noted that although alawyer must, under the applicable ethical rules, make a reasonable pre-filing inquiry beforesigning a court document and may not knowingly make a false representation to the court, thisdoes not mean that a lawyer guarantees the veracity of assertions made on behalf of a client.Also, he noted that in proving the “case within the case,” Plaintiffs were limited to introducingonly evidence that HK&Q could have offered in a products liability action and would have beenrequired to present expert testimony establishing that Plaintiffs’ claimed injuries were caused bythe product at issue. In the medical malpractice case, the expert reports submitted had opined thatPlaintiffs’ injuries were caused by malpractice, and so could not fulfill this requirement. Seealso Watson v. Cmty. Legal Servs., No. 3947, 2011 WL 2138505 (C.P. Phila. May 18, 2011)(granting a motion to dismiss a legal malpractice cause of action filed by a pro se plaintiffwhere complaint failed to allege the basis of the underlying cause of action or that theplaintiff would have been successful in underlying cause of action).In Kuniskas v. Walsh, No. 09-CV-120, 2011 WL 841436 (M.D. Pa. Mar. 8, 2011), theplaintiff suffered injuries after the police engaged him in a chase. The plaintiff later pledguilty to various offenses. The plaintiff filed a lawsuit against numerous defendants,including his attorney in a civil suit he commenced, arising from the incident. The plaintiffalleged he asked his attorney to secure a video recording of the accident, which the attorneyfailed to do. The recording subsequently was destroyed. The Court granted thedefendant’s motion to dismiss because the complaint failed to explain how the attorneyfailed to exercise ordinary skill and knowledge. In addition, the court took judicial noticeof the underlying civil suit filed by the plaintiff against the state police for negligence, inwhich the court granted the state police’s motion for summary judgment, not for failure tomeet an evidentiary burden, but because the officers owed no duty of care to a fleeingdriver. The court therefore found that the plaintiff failed to establish the defendantattorney’s alleged negligence was the proximate cause of damage to the plaintiff.146