Virginia Lawyers Weekly VA Lawyers Weekly
Plaintiff was born in 1977 and was a part-time worker for XYZ Corporation in Washington, D.C. On Jan. 31, 1997, plaintiff was seriously injured allegedly because of a defectively designed bridge plate between a side-loading trailer and the XYZ loading dock. Plaintiff stepped into a void that was not covered by the bridge plate and injured his groin, causing disruption of blood flow. Plaintiff suffered permanent sexual dysfunction and developed a massive psychiatric overlay that required extensive medication with deep side effects. Plaintiff was unable to work again. Roe Law Firm was hired by the plaintiff in 1998 to represent him in his workers’ compensation claim against XYZ and its workers’ comp carrier.
The Roe Law Firm represented the plaintiff in a protracted workers’ comp claim that resulted in two appeals over calculation of the correct permanent partial disability wage loss for a part-time employee, and the circumstances of claimant’s termination from XYZ. The Roe lawyers also told plaintiff that they would file a third-party lawsuit against the designer or manufacturer of the defective bridge plate. Roe did little to investigate the identity of the third-party defendant and did not visit the injury sites.
In the final week of the three-year statute of limitations in Washington, D.C., Roe filed a lawsuit against the general contractor of the large XYZ building where the injury occurred and against the subcontractor who installed a conveyor system on the loading dock. Both defendants proved they did not manufacture or design the bridge plate that allegedly caused the injury. The Roe firm dismissed the third-party lawsuit.
The original Roe lawyers died in 2003 and 2015. The workers’ compensation case was still pending without settlement into April 2017, when a new Roe lawyer ended the firm’s attorney-client relationship with the plaintiff.
In April 2018, plaintiff sued the Roe law firm and the estates of the deceased Roe lawyers for legal malpractice over the third-party case. The defendants removed the case to federal court and moved to dismiss on limitations grounds. In June 2019, U.S. District Judge Christopher Cooper determined the continuous representation of plaintiff by the Roe law firm in the workers’ compensation case into 2017 was sufficiently related to the failed third-party action that Doe could proceed against the Roe firm in the legal malpractice action.
The defective bridge plate was installed between 1989 and 1991. The injury occurred in 1997. These time spans created massive barriers to prosecute and defend the “case-within-the-case” in 2020 as to negligence of the party that designed or manufactured the unsafe bridge plate.
The Roe lawyer’s carrier defended the legal malpractice claim by blaming the 1997 injury on negligence of XYZ employees and invoking the exclusive remedy bar of workers’ comp. This defense made the “case-within-case” worth zero. Plaintiff identified the professional engineers, who were not employed by XYZ, that designed the bridge plate.
A complicating factor was the assertion of a workers’ comp lien against a legal malpractice settlement. From Jan. 1997 through May 2020, the workers’ comp carrier had paid the plaintiff nearly $200,000 in medical expenses and wage indemnity. Because the Roe law firm had not caused the injury, the plaintiff argued against any lien recovery.
However, the Washington, D.C., lien statute refers to third parties “liable for damages.” Retired Judge Nan Shuker therefore mediated a side settlement by which the plaintiff relinquished his ongoing $49 weekly indemnity payments, and the workers’ comp carrier accepted $35,000 from the Roe legal malpractice carrier to resolve the lien and close the case.
Mediation sessions before Shuker were held in Aug. 2019 and by video in May 2020. A $500,000 settlement was reached in late May.
[020-T-079]Name of Case: Doe v. Roe Law Firm
Court: U.S. District Court
Verdict or Settlement: Settlement
Amount: $500,000
Mediator: Judge Nan Shuker (Retired)
Attorney(s) for plaintiff: John S. Lopatto III, Alexandria and Washington, D.C.
Plaintiff’s experts: Forensic economist, Eugenia Lee; vocational rehabilitation expert, Joseph Rose
Defendants’ experts: Mechanical engineer, Jonathan Nelson; vocational rehabilitation expert, Steven D. Shedlin
