Gans, Curtis, G. v. Mundy, James F. And the Law Firm of Raynes, McCarty Binder & Mundy
762 F.2d 338
3rd Cir.
1985
Check Treatment

*1 Curtis, G., GANS, Appellant,

MUNDY, Firm The Law F. and James Mundy. McCarty, Raynes, Binder

No. 84-1541. Appeals, Court States

United

Third Circuit.

Argued March May

Decided *2 Ryan (argued), Drinker,

Patrick T. Biddle Reath, Philadelphia, Pa., appellant. (argued), Stephen H. Robert Fiebach Ritt, Jr., Wolf, Block, Solis-Cohen, Schorr & Pa., Philadelphia, appellee. ALDISERT, Judge, Before Chief MANSMANN,* SLOVITER and Circuit Judges.

* Mansmann, formerly Honorable Carol Los the United States District Court for the Western legal on the mal- James F. THE COURT

OPINION OF practice. The district court entered sum- ALDISERT, Judge. Chief mary judgment in favor of the law firm. summary appeal from an award of This appeals. firm and one of judgment in favor of a law partners on a claim of the firm’s II. *3 whether, malpractice requires us to decide appeal raises four issues: that Gans moving summary judgment, by appellees malpractice committed expert evi- obligated to offer lees were (1) failing party in the to make SEPTA a professional standard of care dence on the (2) original litigation; failing keep appel- properly ad- the district court and whether case; progress of his lant advised about the case as a matter of law. We judicated against advising him that his claim that the district court committed conclude more than Amtrak’s settle- trak was worth and we therefore affirm. no error reject caused him to ment offer which offer; (4) failing bring a second I. against sec- action Amtrak based on Gans’s diversity tried in This alleged injury. Throughout ar- ond Gans’s un- Pennsylvania law stems from an under genuine gument runs the theme that issues by derlying personal injuries made claim of fact existed that should have of material G. Gans as the result of an accident Curtis by jury. resolved been 20, then an on October 1977. Gans was Our standard of review of the dis employee of the National Railroad Passen- trict court’s award (Amtrak). ger Corporation He and others is well settled: commuting personal injuries suffered while operated on a work bus owned appellate court re- On review the is that bus struck the rear of a Amtrak when quired apply the same test the district operated by bus owned and the South East- In- initially. court should have utilized Pennsylvania Transportation Authority ern underly- ferences to be drawn from (SEPTA). appellees Gans retained ing facts contained in the evidential —James Mundy Raynes. firm F. and the law sources submitted to the trial court must McCarty, Mundy represent Binder & light in the most favorable to be viewed —to him in his claim. party opposing the motion. The non- allegations movant’s must be taken as against filed a law suit and, true these assertions conflict when against Amtrak but not SEPTA. There- movant, with those of the the former after, Gans returned to work and sustained must receive the benefit of the doubt. 2, injury another on November 1978. Set- Co., pertaining tlement conferences to the bus v. Mead Johnson & Goodman omitted), followed, 566, (3d Cir.1976) (footnote time accident at which Gans was F.2d $12,500. 1038, denied, offered He was not satisfied with 97 S.Ct. rt. U.S. ce 732, (1977). And, course, expressed this offer. Later he dissatisfac- 50 L.Ed.2d 748 firm, tion terminated his with the we review the record to determine whether it, relationship properly successor obtained the district court concluded that amend- genuine counsel. Gans’s successor counsel “no issue as to a material fact trial, complaint by adding original ed the a sec- and that the remain[ed] party ond count of Amtrak as a mat entitled [was] injury appellant’s second sus- ter of law.” Id. 2, case tained on November 1978. The III. proceeded trial that result- into a two-week 56, in a defense verdict on counts. Under Rule Federal Rules Civil ed both Procedure, moving party original then sued his law firm and has “bur- court, Pennsylvania, sitting by designation. District of now a member of this showing genuine ured generally possessed den of the absence the skill fact____” Adickes any material employed by practitioners issue as to profes 157, Cameral, v. Kress & 398 U.S. Denardo See v. sion. 297 Pa. (1969). 26 L.Ed.2d Rule (1982). Super. 444 A.2d 135 “[A]n 56(e) requires party may that “an adverse attorney presumed discharged to have allegations or not rest the mere deni- representation the duties of his until the pleadings, response als of his but ... opposite appear.” has been made to Mazer specific showing forth facts must set Security Group, Insurance for trial. If he there is issue mem., (E.D.Pa.1973), aff'd respond, summary judgment, so if does not Mazer, (3d Cir.1975). F.2d 1338 Under appropriate, shall entered be him.” attorney’s decision involving considered 56(e). F.R.Civ.P. requisite a minimum the exercise of “ordi nary capacity,” skill and and which is an party This court has held that “a judgment,” “informed does not constitute *4 resisting expect motion cannot [Rule 56] malpractice. An attorney’s conscious exer assertions, rely merely upon bare conclu judgment, cise of such if subsequent “even Ness v. sory allegations suspicions.” or ly proven erroneous, to be negli is not Marshall, 517, (3d Cir.1981). F.2d gence____ presumption There is no that emphasized “summary We also have attorney an guilty has been of a want of judgment has been characterized as a care, arising merely from a bad result.” remedy’ ‘drastic ... and that courts are to Id. genu resolve as to existence of doubts against moving par ine issues of fact ____” (citations omitted). Id. ties In those IY. negligence actions where the evidence is in Initially, we must address an issue dispute, questions duty of breach of and argument raised at oral appellees, appropriately causation are resolved parties moving summary judgment, for However, trier of “although ques- fact. required were to include in the negligence usually tions of are reserved for papers expert evidence as to factfinder, summary judgment prop- is primarily care. This issue arises be undisputed er where the facts are and decision Lentino v. Fringe cause of our in may reasonably one conclusion be drawn Plans, Inc., Employee Flying Corp. Diamond from v. Cir.1979), where we affirmed a district them.” Pennaluna & (9th 586 F.2d involuntary legal court’s dismissal of a mal Cir.1978). instance, In such an determina- practice action. The action was dismissed tion of becomes matter of law. plaintiff’s defendant’s motion after Id. represented counsel expert that no testimo ny on the standard of care was forthcom parties agree Pennsylva ing. appeal we stated: governs nia law the substan aspects tive panel of this case and the [Although judge is may competent be unanimous the statement of relevant light evaluate defendant’s conduct in controlling precepts care, of substantive law. of the relevant standard of the ac- Pennsylvania Elements of this tort under tual question standard of care itself is a “(1) employment law are of the attor presenta- of fact that is best left to the ney (2) duty; or other the failure opportunity tion of evidence with the rebuttal____ attorney of the ordinary exercise skill cross-examination and (3) knowledge; negli that such conclude that testimony ... [W]e gence proximate was the damage required cause of legal in bench trials of mal- Monheit, Schenkel v. plaintiff.” practice except claims where the matter 396, 399, Pa.Super. 405 A.2d investigation simple, under is so and the omitted). (quotation obvious, The standard of care lack of skill so as to be within attorney range to which an must adhere is ordinary experience meas- against teachings non-professional ceeding of Zimmer comprehension of even Products, Paper Inc. and Lentino. persons. post-argument letter to the at 481. In a Id. B. court, characterizes a movant’s appellant Here the averred light under Rule 56 Lentino: burden affidavit their motion for a movant must establish ab- because summary judgment that: fact, issues of material sence affirmatively Defendants decided Adickes, U.S. at 90 S.Ct. at bring any not to SEPTA the standard of care because because, to the best of defendants’ question malpractice suit is a of fact to be information, belief, knowledge, Lentino, by expert testimony, established upon the facts related to defend- follows, appellant 611 F.2d at it rea- injured employees, ants there was sons, under Rule must that a movant good ground support any no such ac- reject expert evidence. We this introduce tion SEPTA. characterization. Despite diligent ef- defendants’ forts and the exercise of skill and knowl- holding simply cannot Our edge by defendant and defendant applying fairly be characterized as to a behalf, firm on Gans’ to de- Gans wrote motion under Rule 56. defendant’s 10, 1979, Mundy on fendant November *5 respect, writing are not on a clean slate. we requesting the of defendants withdrawal Products, Paper Berger In Inc. v. Zimmer representation from further of Gans. P.C., (3d F.2d 86 Cir. Montague, 758 1985), ex we confirmed originally 29. Defendants had chosen pert requirement devolves evidence bring not to a second claim plaintiff, In the not the defendant. Zim November, upon the ac- trak based 1978 summary affirmed the of mer we award judg- It was then defendants’ cident. judgment attorneys in of favor defendant ment, analysis oper- from of the an of all legal malpractice a action. independently pre- ative facts and two summary judgment, the defendants did pared reports, medical had that Gans present expert not on the stan evidence merely re-aggravated original injury care, dard of nor did the offer November, at work in It while opposing such evidence the motion. We was also defendants’ determination that stated: liability, respect Amtrak’s with to the negligence, In order to establish [the November, incident, was tenuous at plaintiff] proving of bears burden injured best. Gans at while work (1) duty elements: a or standard of three job, performing his was one that which care; (2) duty; a of that breach Thus, require lifting. did some from all causation____ grant The district court’s facts, of the above to the best of defend- summary judgment of to defendants knowledge, ants’ information and belief negli- must be affirmed if the evidence of good ground there was no gence speculative any is too to establish second action Amtrak. of fact. material issue 45-46, 55, App. at 57-58. alleging By that their decisions relative plain- view the evidence Wemust [the litigation judgments, were informed presented light has ab- tiff] of on “the exercise of skill and knowl- proffer any

sence of of of edge,” appellees necessarily alleged that profession. care in the negligent arriving at their were States, (emphasis supplied). judgments. Id. at 93-94 We now See Kubrick v. United (E.D.Pa.1977) (error summary judgment pro- measure must this judgment of not medical if Y. judgment product is the of skill We now appellant’s consider re knowledge required by the standard of maining light contentions seriatim of care). We, therefore, cannot conclude that the other material of Noting facts record. appellees failed to that their grant aver conduct “the district summary court’s of comported with to defendants must be applicable standard of affirmed if the specula evidence of is care, too a standard of care defined at mini- any tive to establish material issue of congruent mum their with own conduct. fact,” Zimmer, Cir.) 758 F.2d at Undeniably, this characterization (citations omitted), persuaded arewe tautological standard of care is and not court properly adjudicated district appellees’ useful in particularly assessing Furthermore, case as matter of law. However, appel- actions and inactions. of expert absence establishing evidence lant decided—for whatever reason—not to care, a standard of against which we can controvert evidence the appellees’ assess conduct and find that con regarding lees’ averments the standard of duct lacking, apply to be we the strict care. exception reaffirmed in Lentino and will negligence only find if “the lack skill of is obvious, so as to be within the range C. ordinary experience comprehension above, party As stated mov non-professional persons.” 611 at F.2d ing has ulti (citing Yoke, Smith 412 Pa. 194 A.2d showing mate burden the absence of a (1970)). Our review the record con any as to issue material fact. Ad appellees’ vinces us that negli evidence ickes, 398 U.S. at S.Ct. gence speculative too to establish But once the averred facts and material appellees’ fact and that actions did alleged negli that their conduct was not not—at time—reveal obvious lack of gent, production a burden of shifted skill. appellant proffer evidence that would *6 create a of issue material fact as to the standard of care. burden “[T]he First, the record demonstrates that shifts opposing party to the when the [Rule decision not did the to sue SEPTA presents movant evidence which would 56] constitute as a matter of law. require a directed verdict in his favor at Amtrak sued the was under Federal Em Forms, trial.” Inc. v. American Stan ployers Liability (FELA). Act FELA cases dard, Inc., 314, (E.D.Pa.), 546 321 rarely present ques single more than the mem., (3d Cir.1983); see aff'd also 6 J. employer tion of whether Moore, Taggart Wicker, W. & J. “played part, small, however the Moore’s Federal Practice at 56- 1156.13[3] injury subject or death which the of the (2d 1983). ed. Because re Rogers suit.” v. Missouri Rail Pacific quires the to establish the stan road, 508, 500, 443, 352 U.S. S.Ct. expert dard of care with testimony order (1957)(citing L.Ed.2d 493 Tiller v. Atlantic involuntary avoid an or dismissal a di Co., 54, Coast Line Railroad U.S. verdict, rected the burden devolved Liability on (1943)). S.Ct. 87 L.Ed. 610 oppose appellees’ Gans to factual aver part the of a carrier common tortfeasor ments demonstrating evidence found, Act, will be under long the so as the appellees’ that the conduct failed to meet employer’s negligence played part, “any appropriate the of care. Plaintiff slightest the in producing injury even the discharge failed to this critical burden. Ac damages sought.” for which are 352 U.S. cordingly, he did not create factual dis (citing Coray at 77 S.Ct. at 448 pute applicable standard of care. Southern 335 U.S. Pacific does “It complaint, (1949)). case Amtrak. his the

S.Ct. 93 L.Ed. originally charged that af- evidence, jury Gans that, from the not matter to settle Gans’s firmatively had refused reason, proba- grounds on of may also with $12,500. In against Amtrak for case to other caus- bility, the result attribute 448; first affidavit these at es....” 352 U.S. position proceedings, Gans reversed Erie Lackawanna

see also Pehowic v. he Cir.1970). that it was who had turned and admitted Railroad, 430 F.2d 697 offer, but contends down the settlement factors reveals numerous The record Mundy’s this decision was based Amtrak liability. The pointing to Amtrak’s more. that Gans’s claim was worth advice attorney for Amtrak agent and an claims an issue do not that this creates We believe liability during the admitted to Amtrak’s question alter the of fact that would negotiations, and it of settlement course indicates legal malpractice. The record discovery pro- subsequent appears that the $12,- Mundy urged accept these ceedings and corroborated confirmed origi- Magistrate Naythons 500 offer that Moreover, theory negli- admissions. pretrial conference. nally suggested at a to SEPTA was that gence attributed greater than the offer This amount was lights were not func- bus’s brake SEPTA by previously communicated Gans Yet, undisputed tioning. evidence only slightly less than the demand trak and of the Amtrak bus shows that the driver requested of Amtrak Mun- previously lights were not knew both that the brake dy’s office. functioning the collision and that before express roadway was wet. Given Employer’s language of the Federal Liabili- D. it, Act, interpreting ty the case law Finally, that he was Gans contends above, here other factors discussed by Mundy’s decision not to sue harmed informed, strategic decision lees made an subsequent to the Amtrak a second time bring any against SEPTA on not to injury. examined alleged second We have persuaded as a of Gans. We are behalf inasmuch as a reasonable the record and appellees did not matter law lawyer made ordinary skill and violate the standard aggravation of incident second practitioner knowledge legal to which accident, injuries in the first sustained must adhere. not constitute mal failure to sue does proximate cau practice. The elements B. requisite stan and violation of the sation reject appellant’s We also second Additionally, the dard of care are absent. keep ap contention that failed to of limitations had not run on this statute *7 pellant progress of his advised about could have been issue and a second suit by Mundy original case. The affidavit filed event, obtaining any filed. In after succes Mundy the letters sent contains nine of counsel, press note that Gans did sor we keeping at him to Gans that were directed claim and lost. this second important developments appraised of all relating to his case. Absent and matters YI. there is

additional evidence of record—and as a none—it was not error to conclude circumstances, conclude Under these we appellees adequately matter of law that not err in deter- that the district court did aspects of apprised appellant of the various (1) appellees committed no le- mining that his case. during they repre- time gal malpractice Gans, that cannot be sented C. charged any liability for events occur- with hiring ring subsequent to the of successor also contends that Gans settling responsible for not counsel. were somehow will district court be SEPTA were operating properly, prior bus respects.

affirmed in all to the accident.” Since SEPTA had not defendant, been named as a the jury was SLOVITER, Judge, dissenting. Circuit not liability against able to assess it on that basis, we will never know whether the My disagreement majority with the con- permitted district court would have a ver- cerns whether was dict to that stand found neither Amtrak nor proper lawyers on Gans’ claim that his SEPTA liable. (collectively Mundy) referred to as were failing negligent join to SEPTA as a us, The issue before and that was before defendant in suit. Gans’ court, the district was whether Gans’ claim Mundy negligent that was failing for to Gans’ claim the on merits was not com- permitted sue SEPTA should have been to plex. passenger He was a of an Amtrak go jury. I submit that it should bus that collided a SEPTA on bus have. 20,1977. October Since Gans patently responsible any part injuries, for of his of his for summary motion either Amtrak or SEPTA or both re- were judgment, Mundy filed his own self- sponsible. time, Mundy, lawyer at the serving alleged affidavit which he proceeded theory on the that Amtrak was “[djefendants affirmatively decided not to liable, ample and indeed there was for bring any against action because, SEPTA However, during discovery that belief. on knowledge, to the best of defendant’s infor- August 27, 1979, the Amtrak bus driver mation, belief, facts testified that the bus SEPTA had no brake injured related to defendants em- lights all, that the SEPTA driver had ployees, ground good there was no sup- indicated to him that he port knew his brake against such action SEPTA.” In work, lights turning did not and that the opposition. Gans’ affidavit signal lights averred, SEPTA bus were not “I am without information as to functioning prior to the why chain of events bring reason did not defendants testimony, led to the accident. This At point SEPTA. some according Gans, should proceedings, have alerted his in the it was learned that the lawyers potential that there was a claim operating SEPTA vehicle was without against SEPTA, and, therefore, proper and should have them lights led there would join SEPTA an additional defendant be a basis a claim that SEPTA was at least, while an opportunity there was still to do part, responsible accident.” Thereafter, so. Mundy, an associate of Alan M. Feldman, setting filed an affidavit forth know, experienced As all trial lawyers join SEPTA, why reasons he did not proceeding against basis for possible all primarily liability the clear of Amtrak and prevent defendants is to a situation where complications delay trial that liability the factfinder attributes de- would have ensued had SEPTA been ap- fendant that is not before it. That joined. might While Feldman parently happened what case. jury have their convinced actions When the case Amtrak was tried negligent, were not it error for the successor, by Mundy’s jury found district court draw this conclusion on against plaintiff and for Amtrak liabili- summary judgment. ty. Gans filed a motion for a trial new *8 contending jury clearly place, that verdict In the was the first defendants’ affidavits weight factually the In evidence. are deficient that fail even motion, denying the allege join that district court re- to that their decision not to ferred to a of facts would number that SEPTA conformed to the of standard care permitted jury community. have the to find that the In v. Fringe negligent, Plans, Inc., (3d trak was not including “more F.2d Employee importantly, lights Cir.1979), whether the rear the we stated that the determination level, professional and on this of relevant legal malpractice,

of like determinations requires was. malpractice professions, record we do not know what that level in other professional Underlying majority's skill decision is its not an evaluation of the judgment, allegedly also of a standard of “informed deci- but inference that the profession- sion”, lawyers to common care which is related self-characterized the ordinarily themselves, that practice. al stated the standard We satisfied relevant “necessary to establish unsupport- witness is inference is of care. Such an specific of care and to assist record, particularly the on this the con- able of defendants’ jury See, the in its determination summary judgment. e.g., text of Con- standard.” Id. conformity to the relevant Bodie, 682 F.2d tinental Insurance Co. at 480. (3d Cir.1982). Ordinarily there- fore, the issue is one for trial. the majority

The concludes that because prove the burden to would have place, nothing I in this In the second see trial, plaintiff had the bur- Paper court’s recent decision Zimmer producing expert evidence to coun- den of Products, Berger Montague, Inc. v. & summary judgment. ter the motion for Cir., 1985), P.C., (3d on which follow, simply not This conclusion does relies, grant majority support to the of the proprie- as to the confuses the relevant law summary Zimmer, here. the judgment plain- ty summary judgment with the of allegation negligence by a class made prove his case at trial. tiff’s burden to counsel was that member class give adequate counsel failed to notice of a 56(c), moving Fed.R.Civ.P. Under discovery, After settlement. substantial no party must demonstrate that there are granted summary judg- the district court and that genuine issues of material fact appeal, ment. noted that “Zimmer we s/he is entitled to as a matter any suggest Here, has not adduced evidence to Mundy since was the law. hiring profes- that class counsel’s of three party, he bore the burden to establish print, prepare mail the sional firms to judgment. opposing he entitled to legal profes- notice was itself below the party only bring need forth sufficient evi regard to class sion’s standard care with dence to create a issue of material Thus, affirmed, agree- notice.” At 94. respect any fact defendant’s we ing too that “the evidence of allegations crucial in order to defeat the speculative to establish material issue moving party motion. does not Where however, Significantly, allege of fact.” Id. facts sufficient to entitle case, apparent it from the record judgment, ment to the motion cannot be employed by procedure for notice granted opposing party if offers even customary court-ap- response counsel “was no at all. Adickes v. Kress See 144, 153-60, 1598, proved.” Id. at 93. 398 U.S. 1606-09, (1970); 26 L.Ed.2d 142 Maldona The facts in the case before us are far Ramirez, (3d do v. 757 F.2d Cir. Here, different from those Zimmer. 1985); Prescription Drexel v. Union Cen join potential a decision not to SEPTA as ters, Inc., Cir.1978). 582 F.2d notwithstanding a defendant was made finding in-

Although majority gives lip plausible SEPTA was service “specula- proper placed negligent. simply It is not burdens to be on the deed join parties summary judg- to think that the failure to when a motion for tive” filed, negligent majority party may permit be and to ment has been fails who party apply properly in this The ma- the statute of limitations as to them case. finding jority alleg- might affidavits run for a relies on defendants’ be basis malpractice. ing not to sue Since the record is devoid of decision SEPTA was such attorneys’ tactical decision on the evidence to show whether a deci- However, of care in informed even “in- sion conforms to the standard decision. community, pro- may up decisions” failed formed be *9 evidence, ORDER duce such he entitled summary judgment. HALL, Judge. K.K. Circuit majority Finally, I am distressed Appellee Phyllis A. Anderson has filed a context, include, out of has chosen to appel- motion to award of costs to vacate Security Insurance statement Mazer v. appellee, lant and award costs (E.D.Pa.1973), F.Supp. Group, 368 City responded oppo- has lant Bessemer (3d Cir.1975),that “an 507 F.2d 1338 aff'd sition to the motion. presumed discharged attorney is to have 19, 1983, September this Court re- representation of his until the the duties judgment versed the of the district court opposite appear.” made to has been City and thereafter awarded Bessemer Mazer, legal malpractice the issue of $1,009.40 (4th Cir.) costs. factfinder, judge as tried before reversing 412. On March immediately after the statement was made Supreme Court of the United found that had failed to the court States reversed of this Court proof. There was ex meet his burden of $7,167.50 and awarded Anderson in costs. introduced pert evidence at the trial — -, U.S. L.Ed.2d judgment for de supporting a defendants 518. Anderson now seeks vacate this apply “pre The court did not fendant. previous Court’s award of costs to Bessem- sumption” a motion for summa City er and to in her award costs favor. ry judgment on the of defendant’s IT IS HEREBY ORDERED that Ander- Attorneys are no different own affidavits. granted, previous son’s motion is award professionals and have a than other City of costs in of Bessemer is vacat- favor duty accepted to conform to ed, Anderson is awarded professional practice. $312.00 I know of no ba prevailing party. costs establishing presumption sis for have done so. majority’s I result believe Entered with the concurrences of Circuit Lentino, contrary distinguishable from Judges RUSSELL WIDENER.

Zimmer, prin- violation basic governing summary judgment mo- ciples reasons, I foregoing For the re-

tions.

spectfully dissent. ANDERSON,

Phyllis Appellee, A. ANDERSON, Phyllis Appellee, v. CITY, NORTH CITY OF BESSEMER CITY,

CITY OF NORTH BESSEMER CAROLINA, Appellant. CAROLINA, Appellant. No. 83-1278. No. 83-1278. Appeals, Court of United States Appeals,

United States Court Fourth Circuit. Fourth Circuit. May 8,May RUSSELL, WIDENER and Before

HALL, Judges. Circuit