Jessica Baptiste v. Lee Rohn

Filing

NOT PRECEDENTIAL OPINION Coram: GREENAWAY, JR., SHWARTZ and FUENTES, Circuit Judges. Total Pages: 10. Judge: FUENTES Authoring. We deny Baptiste's request to certify the question to the Virgin Islands Supreme Court.

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Document: 003112642213

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Date Filed: 06/05/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 16-2005
_______________
JESSICA BAPTISTE,
Appellant
v.
LEE J. ROHN
___
On Appeal from the District Court
of the Virgin Islands
(D.V.I. No. 1-13-cv-00104)
District Judge: The Honorable Wilma Lewis
_______________
Argued: May 4, 2017
Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges
(Opinion Filed: June 5, 2017)
_______________
Andrew C. Simpson [Argued]
Andrew C. Simpson Law Offices
2191 Church Street, Suite 5
Christiansted, VI 00820
Counsel for Appellant
Rhea R. Lawrence [Argued]
Lee J. Rohn
Lee J. Rohn & Associates
1101 King Street
Christiansted, VI 00820
Counsel for Appellee

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_____________
OPINION
_____________
FUENTES, Circuit Judge.
The plaintiff-appellant, Jessica Baptiste, brought a civil legal malpractice lawsuit
against her former lawyer, defendant-appellee Lee Rohn, claiming that Rohn was
negligent when she failed to file Baptiste’s personal injury case within the statutory time
period. Her case went to trial before a jury, where Baptiste carried the burden of
demonstrating that she would have prevailed in the underlying personal injury case had
Rohn filed it in time. The jury found that Baptiste would not have succeeded in the
underlying case, and that Rohn, therefore, was not liable for malpractice.
On appeal, Baptiste argues that the District Court erred in requiring her to bear the
burden of proof on success in the underlying case. Instead, Baptiste proposes that
liability should be proven in one of two ways. The court could shift the burden to the
defendant-attorney to prove that the underlying case would not have succeeded even if
she had not been negligent. Or, in the alternative, the court could permit the plaintiff to
prove her case by showing that the defendant-attorney’s negligence caused a loss in the
value of the case. Because Baptiste could not have succeeded on her malpractice claim
even if the District Court had adopted either of her proposed methods of establishing civil
malpractice liability, we will affirm.
I.



This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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In August 2000, while Baptiste was working as an employee for a contractor,
Jacobs IMC, at the Hovensa refinery in St. Croix, she slipped on the last step of a bus
ferrying her to work and injured herself. She alleges that she suffered long-term injuries
as a result of the fall but continued to work for Jacobs at Hovensa. She waited a year and
a half before she retained attorney Rohn in February 2002 to represent her in her tort case
against Hovensa. At the time of her consultation, five months remained on the statute of
limitation.
Instead of filing a complaint immediately, however, Rohn filed the complaint in
the Superior Court of the Virgin Islands on August 8, 2002, one day after the statute of
limitation ran. As a result, Baptiste’s case was dismissed before any discovery could take
place. Rohn appealed the dismissal to the Appellate Division, and, while the appeal was
pending, she sent Hovensa a settlement demand letter seeking $1.5 million. Hovensa did
not respond to that demand. The appeal was eventually denied, but Rohn did not inform
Baptiste of this denial until 2012, at which point Baptiste brought her legal malpractice
suit against Rohn in the District Court.
Baptiste’s malpractice suit against Rohn went to trial in 2016. The District Court
adopted the “trial-within-a-trial” approach to prove liability in the malpractice case.
Under this approach, in order to establish that Rohn’s negligence caused her damages,
Baptiste would have to “try” her underlying case before the jury and bear the burden to
prove that she would have succeeded in the underlying case had it not been dismissed for
untimeliness. During the pre-trial conference, Baptiste argued to the District Court that
the trial-within-a-trial approach was inappropriate and urged it to adopt instead one of
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two alternative approaches. Baptiste argued that she should be permitted to either
establish liability by showing that Rohn’s negligence impaired the value of her case, or
be permitted to shift the burden of proof to Rohn to prove that Baptiste’s case would not
have succeeded. The District Court rejected both of these approaches. The District Court
also rejected Baptiste’s attempt to introduce Rohn’s $1.5 million settlement demand letter
into evidence. Ultimately, Baptiste lost the jury verdict because she could not meet her
burden of showing that she would have succeeded in the underlying case. The
malpractice question never reached the jury.
Pending before the Court is the plaintiff’s appeal of the District Court’s exclusion
of the settlement demand letter and its adoption of the trial-within-a-trial approach to
prove legal malpractice.1
II.
On appeal, Baptiste is seeking reconsideration of two rulings made by the District
Court during the pre-trial conference. First, Baptiste argues that the District Court erred
in excluding the settlement demand letter Rohn sent to Hovensa refinery under Federal
Rules of Evidence 403 and 408. Second, Baptiste challenges the District Court’s
decision to utilize the trial-within-a-trial method to demonstrate liability in this case.

1

The District Court had jurisdiction over this case under 28 U.S.C. § 1332. We have
jurisdiction to hear this appeal under 28 U.S.C. § 1291. We exercise de novo review of
the District Court’s interpretation of Virgin Islands law on legal civil malpractice.
Koppers Co. v. Aetna Casualty & Surety Co., 98 F.3d 1440, 1445 (3d Cir. 1996). We
review the exclusion of evidence for abuse of discretion, but where that ruling is based on
an interpretation of the Federal Rules of Evidence, our review becomes plenary. United
States v. Georgiou, 777 F.3d 125, 143 (3d Cir. 2015).
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Instead, Baptiste requests that we either adopt one of the two approaches she outlines or
certify the question to the Virgin Islands Supreme Court.
We will first consider the exclusion of the settlement demand letter. Baptiste
sought to introduce this demand letter in her suit to demonstrate “the loss in value of her
claim due to Rohn’s negligence” because it shows that “even after the case was dismissed
(e.g. at a time when the validity of the claim was not at issue), Rohn felt that the case had
significant value.”2 Rohn, during the pre-trial stage, filed a motion in limine to exclude
the letter under Rules 403 and 408. The District Court granted the motion, finding that
the letter was excludable under either rule. We will affirm the exclusion under Rule
403.3
Under the Federal Rule of Evidence 403, a “court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” The District Court here
found that “any probative value of the letter is substantially outweighed by the potential
prejudice to Defendant and the danger of misleading the jury as to the value and

Appellant’s Br. at 30.
Rule 408 prohibits the use of settlement demand letters “on behalf of any party either to
prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction.” Fed. R. Evid. 408. Rule 408 is typically
applied to exclude statements made in the efforts to settle a claim in the trial involving
that same claim. Whether Rule 408 may be applied in cases like this—to exclude
settlement evidence between Baptiste and Hovensa in Baptiste’s legal malpractice suit
against Baptiste’s own lawyer—is an issue of first impression in this circuit. We do not
need to address that issue today, however, because we may affirm the exclusion under
Rule 403.
2
3

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legitimacy of Plaintiff’s claim against Hovensa.”4 Baptiste’s challenge to this ruling is
procedural in nature. She argues that the District Court erred in failing to “identify the
nature of the ‘potential prejudice’ to Rohn or conclude that such prejudice was ‘unfair’; .
. . [or] consider the use of a limiting instruction that would have made it clear that the
letter was admitted to show that Baptiste’s malpractice claim had value or to show bias.” 5
As we have previously held, we will not disturb a district court’s Rule 403
explicit balancing analysis unless “it is irrational or arbitrary.”6 Though it would be
edifying for the parties, we have held that district courts need not elaborate on their
analysis to be entitled to our deferential review.7 Here, the District Court clearly
performed an explicit balancing analysis, which is neither irrational nor arbitrary. We
agree that the unanswered settlement demand letter has little probative value. We also
agree that what little probative value exists was substantially outweighed by both the
potential prejudice and confusion it may cause jurors, who would have been presented
with a number “valuing” Baptiste’s tort claim against Hovensa, but which number did not

4

Appx 27.
Appellant’s Br. at 33.
6
Ansell v. Green Acres Contr. Co., 347 F.3d 515, 525 (3d Cir. 2003) (quotation marks
omitted).
7
See, e.g., id. (even where the district court “fails to explicitly articulate the Rule 403
balancing,” we could still decide that it “implicitly performed the required balance” and
review that decision for abuse of discretion); Glass v. Phila. Elec. Co., 34 F.3d 188, 192
(3d Cir. 1994) (noting that “the trial court’s failure to expressly articulate a Rule 403
balance when faced with a Rule 403 objection, would not be reversible error per se,” and
that the district court in that case would be entitled to abuse of discretion review even
where the district court did not explain its balancing analysis at all and merely said “Let’s
not relitigate the Eddystone matter. . . . I’ll sustain the objection”).
5

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appear to be based on any real damages calculation. Consequently, we will affirm the
District Court’s decision to exclude the letter.
Second, we turn to Baptiste’s argument that the District Court erred in adopting
the so-called trial-within-a-trial method, which requires Baptiste to prove that she would
have succeeded in her underlying case against Hovensa in order to demonstrate liability
in the malpractice case. Baptiste advocates for two alternative approaches: (1) the burden
should have been shifted to Rohn to prove that the underlying tort case against Hovensa
would have failed; or (2) Baptiste should have been permitted to prove her case by
demonstrating merely a loss in the value of a case. Without determining how the Virgin
Islands should require plaintiffs to prove liability in civil legal malpractice tort cases
based in tort, we will affirm the jury’s verdict in favor of Rohn because Baptiste would
have failed to prove her case as a matter of law even if her alternative approaches were
adopted.8
Even if the District Court had adopted the first approach and shifted the burden to
Rohn to prove lack of success in the underlying case, Baptiste would still have lost.
Testimony at trial revealed that though Hovensa was the legal owner of the bus on which
Baptiste slipped in August 2000, Hovensa did not have control over it.9 Hovensa had

8

Baptiste also requested that we certify this question to the Virgin Islands Supreme
Court. Both under our own Local Appellate Rule 110.1 and the Virgin Islands Supreme
Court Rule 38(a), we may certify a question to the Virgin Islands Supreme Court only if
the question is outcome determinative. Because we find, for the reasons below, that
Baptiste could not prevail regardless of which liability approach the District Court
adopted, we will also deny her request to certify the question.
9
See Appx 654-59 (testimony by bus driver that he worked for Jacobs IMC, not
Hovensa, and that Jacobs maintained the bus, and made the decision to change the last
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leased the bus to Jacobs IMC, Baptiste’s employer at the time, and transferred all
maintenance duties to Jacobs. In other words, Hovensa could not have “negligently
maintained the bus which caused Plaintiff Baptiste’s injury and her resulting damages,”
as she alleged.10
Baptiste’s second suggested approach likewise fails for lack of evidence. Baptiste
argues that she should have been permitted to demonstrate liability by proving a loss of
value in the case, divorced from underlying success on the merits. Baptiste, however,
had no evidence tending to show what the “value” of the case might have been had Rohn
filed the complaint in time, and, thus, no way of proving to the jury any reduction in
value. Baptiste was barred from using the settlement demand letter as proof of value, and
she did not have an expert who could have testified to the same. The only damages
evidence she presented was her own testimony regarding the pain she suffered and the
handful of days she was out of work due to her injury. But even this kernel of damages
evidence is insufficient by itself. The main assumption of a loss-of-value theory is that
there is some value to Baptiste’s claim against Hovensa even if it might not have
succeeded on the merits. In other words, the “value” of the case is something related to
but different from Baptiste’s actual damages. Therefore, Baptiste would need to present
some additional evidence showing the relationship between her actual losses and the
potential settlement value of her claim, which she has not done.
step of the bus to plywood after discovering that the original metal step had rotted); Appx
684-85 (testimony by Hovensa’s former counsel that Hovensa owned the buses but leased
them to contractors, such as Jacobs, and that the contractors were responsible for the
maintenance of the buses during the pendency of the leases).
10
Appx 978.
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During argument, Baptiste pivoted slightly to argue that she need not present
evidence of actual damages because the loss of the right to sue itself is an injury for
which she should have received nominal damages. This argument is equally meritless.
Nominal damages are typically reserved to “vindicate[] deprivations of certain ‘absolute’
rights that are not shown to have caused actual injury,” 11 such as the right to procedural
due process and the right to be free from unlawful arrests, searches, and seizures, and
from racial discrimination.12 In the context of legal malpractice suits, “[t]he prevailing,
and more reasonable view, is that an actual, measurable injury is essential to a cause of
action, and that a plaintiff is not entitled to nominal damages.”13 In fact, only one state
appears to permit the recovery of nominal damages.14
Baptiste supports her assertion that nominal damages are available by relying
solely on an inapposite Virgin Islands Supreme Court case, Arlington Funding Services,
Inc. v. Geigel, which explained, in the context of standing doctrine, that “[it] is a long
standing principle of tort law that loss of the right to sue represents an injury in and of

11

Carey v. Piphus, 435 U.S. 247, 266 (1978) (holding that students who have
demonstrated that their procedural due process rights were violated may recover nominal
damages not to exceed $1 because “the right to procedural due process is ‘absolute’ in the
sense that it does not depend upon the merits of a claimant’s substantive assertions, and
because of the importance to organized society that procedural due process be
observed”).
12
Id. at 264 n.22.
13
3 Ronald E. Mallen, Legal Malpractice § 21:5, Westlaw (database updated January
2017); see also 7A C.J.S. Attorney & Client § 366; Christopher C. Haug, The Law of
Damages in a Legal Malpractice Action, 24 J. Legal Prof. 433, 433-34 (2000).
14
Spence v. Hilliard, 353 S.E.2d 634, 634 (Ga. 1987).
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itself.”15 But the mere fact that a plaintiff has suffered an injury such that she has
standing to bring suit does not mean that she has suffered an injury for which she must be
compensated, regardless of actual loss. Consequently, we find that Baptiste has not
demonstrated that she could have prevailed under the loss-of-value theory
III.
For the foregoing reasons, we will affirm the jury verdict in favor of Rohn.

15

51 V.I. 118, 126 (2009), overruled in part on other grounds by Benjamin v. AIG Ins.
Co. of P.R., 56 V.I. 558 (2012).
10