Cahn v. Word et al

Filing 47

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting Defendants' 31 MOTION for Summary Judgment . (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

SARA CAHN,
Plaintiff,

v.

No. 18-CV-396-JAP/SCY

TERRY M. WORD and
TERRY M. WORD, P.C.,
Defendants.
MEMORANDUM OPINION AND ORDER
On April 27, 2018, Plaintiff Sara Cahn (Plaintiff) brought claims against her former legal
counsel, Defendants Terry M. Word and Terry M. Word, P.C. (collectively, Defendants), for
professional negligence and breach of contract.1 Both claims are based on allegations of legal
malpractice. Defendants filed Defendants’ Motion for Summary Judgment (Motion), which is
fully briefed, in which they contend that Plaintiff’s claims are time-barred.2 The Court agrees and
will grant the Motion.
I.

BACKGROUND

On May 19, 2006, Plaintiff underwent a pelvic ultrasound at Lovelace Women’s Hospital
in Albuquerque, New Mexico, after she sought treatment there for pelvic pain. Compl. ¶¶ 6–7.
The ultrasound revealed a potentially cancerous mass on her ovary. Id. ¶ 7. However, Plaintiff
was not informed of this report. Id. On August 8, 2006, Plaintiff went to a follow-up consultation
1
See COMPLAINT FOR DAMAGES ARISING FROM PROFESSIONAL NEGLIGENCE AND BREACH OF
CONTRACT (Doc. 1).
2
See DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. No. 31); PLAINTIFF’S RESPONSE TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. No. 38) (Response); DEFENDANTS’, TERRY
M. WORD AND TERRY M. WORD, P.C.’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
(Doc. No. 45) (Reply).

with Dr. John D. Berryman, who was employed by Sandia OB/GYN Associates, P.C., and had
an office located inside Lovelace Women’s Hospital. Id. ¶ 8. Dr. Berryman informed Plaintiff
that she had ovarian cysts that were “nothing to worry about.” Id. ¶ 9. He diagnosed Plaintiff
with endometriosis and did not schedule a biopsy. Id.
On September 22, 2008, Plaintiff sought further treatment in Jackson, Wyoming, for the
same pelvic pain. Id. ¶ 10. A CT scan revealed an “extensive abnormality in the pelvis with what
appears to be a large, multilobulated complex cystic mass.” Id. Soon after this, Plaintiff was
diagnosed with ovarian cancer. Id. ¶ 11. She underwent a total hysterectomy, an
omentumectomy, removal of both ovaries, removal of fifty-four lymph nodes, and extensive
scraping of her diaphragm and colon to remove the cancer. Id.
On December 1, 2008, Plaintiff retained Defendants to pursue a medical malpractice suit
against Lovelace Health Systems and the doctors who failed to notify Plaintiff of the ovarian
mass shown on her May 19, 2006 ultrasound. Id. ¶ 12. However, Plaintiff could not recall Dr.
Berryman’s name or the exact date of her consultation. Id. ¶ 13. On April 10, 2009, Defendants
filed a complaint for medical malpractice in Bernalillo County District Court on Plaintiff’s
behalf, naming as defendants Lovelace Health Systems, four doctors, and one physician
assistant. Id. ¶ 15; Mot. Undisputed Material Facts (UMF) ¶ 1. Defendants also named a “John
Doe” physician as a placeholder for Dr. Berryman, explaining that his “identity cannot be
ascertained at this time.” Id. Defendants identified Dr. Berryman on July 1, 2010, through
discovery produced by Lovelace. UMF ¶ 4. Plaintiff knew at this time that the statute of

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limitations might be an issue.3 UMF ¶¶ 5–6, Resp. ¶¶ 5–6. On July 9, 2010, Defendants amended
the medical malpractice complaint and named Dr. Berryman as an individual defendant. UMF ¶
7.
On January 13, 2011, Dr. Berryman moved for summary judgment, arguing that
Plaintiff’s claims against him were barred by the three-year statute of repose contained in the
New Mexico Medical Malpractice Act (MMA), NMSA 1978 § 41-5-13. UMF ¶ 10. The district
court denied Dr. Berryman’s motion. UMF ¶ 10. Although the repose period specified in the
MMA had expired on August 8, 2009, the district court applied a due process exception to allow
Plaintiff’s claim to proceed, “concluding that application of the statutory bar would violate
[Plaintiff’s] right to due process as guaranteed by the United States and New Mexico
Constitutions.” Cahn v. Berryman, 2018-NMSC-002, ¶ 9, 408 P.3d 1012, 1014 (2017). The
district court then denied Dr. Berryman’s motion to reconsider this decision, but it certified its
order for interlocutory appeal. Plaintiff’s Statement of Material Facts (PMF) ¶ 26; Doc. 38-3, Ex.
C. In September 2012, Dr. Berryman filed an Application for Interlocutory Appeal contesting the
district court’s denial of his motion for summary judgment. UMF ¶ 12. The Application, which
Plaintiff reviewed, alleged that Plaintiff and Defendants could have identified Dr. Berryman

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Defendants state in UMF ¶ 5 that “Plaintiff was ‘sick’ to her stomach and knew that the statute of limitations was
going to be an issue.” Plaintiff denies that she ever said she was sick to her stomach, and the deposition testimony
clarifies that it was Defendants’ counsel who used that phrase. However, Plaintiff did testify in deposition that she
knew the statute of limitations would be an issue if Dr. Berryman was not identified in time. See Doc. 38-1, Cahn
Depo. 90:5-91:8. Plaintiff does not appear to dispute this fact in UMF ¶ 5. However, in UMF ¶ 6, Defendants state
that “in July 2010, Plaintiff knew that under the law of New Mexico the identity of Dr. Berryman ‘technically’ came
after the statute of limitations.” In her response to UMF ¶ 6 Plaintiff denies knowing this and points to her
deposition testimony, in which she stated that she “sort of” knew that Dr. Berryman was named after the statute of
limitations because she “knew that one law in New Mexico held that technically it was after the statute of
limitations, but [she believed that] there was some question about that statute of limitations because that law had
recently been changed from an old law that gave you a little bit longer.” Doc. 38-1, Cahn Depo. 50:16-51:10.

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sooner through available discovery procedures but failed to do so.4 UMF ¶¶ 13–15. The New
Mexico Court of Appeals declined to consider the interlocutory appeal. PMF ¶ 27.
Consequently, in June 2013 Dr. Berryman and Plaintiff stipulated to a conditional
directed verdict and final judgment. UMF ¶ 17. In the stipulated judgment Dr. Berryman
admitted his liability to Plaintiff in the amount of $700,000 for malpractice but reserved his right
to appeal the judgment on the ground that Plaintiff’s claims against him were time-barred. UMF
¶ 17. When Plaintiff agreed to the conditional stipulated judgment, she understood that Dr.
Berryman would appeal the statute of repose issue, and she would not receive any of the
judgment amount if the appellate court determined that her claims against Dr. Berryman were
time-barred. UMF ¶¶ 18–19. Around the time the stipulated verdict was entered, Plaintiff
understood that another attorney had taken over her case from Defendants. UMF ¶ 20.5 Also at
about this time, Plaintiff learned that Defendants had previously sued the clinic that employed
Dr. Berryman in an unrelated lawsuit, and she believed Defendants had made a mistake in failing
to identify Dr. Berryman sooner. UMF ¶ 21.6

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Plaintiff contends that she did not always thoroughly review documents because she trusted her attorneys. See
PMF ¶ 25. However, Plaintiff does not dispute that the Application was given to her for review.
5
Plaintiff disputes UMF ¶ 20 based on her deposition testimony that she believed Defendants had handed off her
case to other counsel “right before or right after the appeal.” See Doc. 38-1, Cahn Depo. 32:14-20. She argues that
this testimony does not specify to which appeal it refers and that Defendants remained counsel of record during the
Court of Appeals proceedings. See PMF ¶ 30. However, the other deposition testimony cited by both Plaintiff and
Defendants clarifies that Plaintiff is referring to the time period immediately after entry of the stipulated verdict. See
Doc. 38-1, Cahn Depo. 80:5-24. Plaintiff does not dispute that she communicated at least primarily with a different
attorney regarding the Court of Appeals proceedings. See id.
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Plaintiff disputes UMF ¶ 21 by arguing that she did not remember when she found out that Defendants had
previously sued Dr. Berryman’s clinic in an unrelated lawsuit. Plaintiff’s deposition testimony states that she
believed Defendants made a mistake when she found out that they had previously sued the same clinic. See Doc. 381, Cahn Depo. 85:2-9. She did at first testify that she does not recall when this was, but she later said that it was
around the same time that Defendants stepped away from her case. See Doc. 38-1, Cahn Depo. 85:10-23. She had
previously stated that Defendants were no longer her primary counsel after the stipulated verdict was entered. See
Doc. 38-1, Cahn Depo. 80:5-24. Plaintiff asserts that she first realized Defendants had made a mistake after the
Court of Appeals reversed the district court. See PMF ¶ 28. The deposition testimony Plaintiff cites in support of this
does state that Plaintiff believed Defendants made a mistake at that point, but uncited portions go on to say that she
first realized the mistake when she learned that Defendants had previously sued the same clinic, which she said was
around the time Dr. Berryman appealed the denial of his motion for summary judgment.

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Dr. Berryman appealed the judgment based on the statute of repose, and on April 30,
2015, the New Mexico Court of Appeals overturned the district court and held that the due
process exception did not apply and Plaintiff’s malpractice claims against Dr. Berryman were
untimely. Compl. ¶¶ 24–25; see Cahn v. Berryman, 2015-NMCA-078, 355 P.3d 58. On
November 30, 2017, the New Mexico Supreme Court upheld the decision. Compl. ¶ 26; see
Cahn, 2018-NMSC-002. Plaintiff filed this suit for legal malpractice on April 27, 2018, asserting
that Defendants committed malpractice by failing to timely identify Dr. Berryman. UMF ¶ 22;
Compl. ¶ 31. Defendants have moved for summary judgment, arguing that like the underlying
medical malpractice claims, Plaintiff’s claims for legal malpractice are time-barred.
II.

DISCUSSION

The Court has subject matter jurisdiction over this case under 28 U.S.C. § 1332(a)(1)
because the parties are of diverse citizenship and the amount in controversy is over $75,000.
Since the harm alleged occurred in New Mexico, the substantive law of New Mexico will apply.
See Horizon AG–Prods. v. Precision Sys. Eng’g, Inc., No. CIV 09-1109 JB/DJS, 2010 WL
4054131, *4–5 (D.N.M. Sept. 28, 2010).
The Court will grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). When applying this standard, the Court “‘view[s] all evidence and any reasonable
inferences that might be drawn therefrom in the light most favorable to the non-moving party.’”
Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015) (quoting Croy v. Cobe Labs. Inc.,
345 F.3d 1199, 1201 (10th Cir. 2003). A “material” fact is one that “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A
dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving

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party on the evidence presented.” E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,
1190 (10th Cir. 2000). The party opposing a motion for summary judgment must “set forth
specific facts showing that there is a genuine issue for trial[.]” Applied Genetics Int'l, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).
In New Mexico, a legal malpractice claim must be filed within four years from the date
of accrual. Sharts v. Natelson, 1994-NMSC-114, ¶ 1, 118 N.M. 721, 885 P.2d 642 (citing NMSA
1978, § 37-1-4). Accordingly, Plaintiff’s claim is untimely if it accrued before April 27, 2014. A
malpractice claim accrues, and the four-year period begins to run, “when (1) the client sustains
actual injury and (2) the client discovers, or through reasonable diligence should discover, the
facts essential to the cause of action.” Id. ¶ 11.
Actual injury does not require a specific degree of harm, nor must the damage be
ascertainable at the time. Id. ¶ 12 “[W]hen malpractice results in the loss of a right, remedy, or
interest, or in the imposition of a liability, there has been actual injury regardless of whether
future events may affect the permanency of the injury or the amount of monetary damages
eventually incurred.” Id. (internal citation and quotation marks omitted). Consequently, Plaintiff
was injured when Defendants failed to identify Dr. Berryman and name him as a defendant
before the expiration of the statute of repose, and Plaintiff therefore lost her legal right to sue Dr.
Berryman under the MMA. See Potter v. Pierce, 2015-NMSC-002, ¶ 20, 342 P.3d 54 (loss of a
legal right to have debts discharged was an actual injury, even though discharge had not yet been
denied). Plaintiff does not seem to dispute this definition of her actual injury, but she argues that
she did not discover her loss until April 30, 2015, when the Court of Appeals held that her claim
against Dr. Berryman was untimely.

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A client is deemed to have discovered the facts essential to a malpractice claim when the
client knows, or should know, that the attorney’s errors have caused harm. Sharts, 1994-NMSC114, ¶ 15. This “is generally a question of fact, but where the undisputed facts show that the
client knew, or should have been aware of the negligent conduct on or before a specified date,
the issue may be decided as a matter of law.” Id. (internal brackets and quotation marks omitted).
Defendants contend that Plaintiff’s claim accrued in July 2010, when she was aware that
Defendants had identified Dr. Berryman and named him as a defendant after the expiration of the
statute of repose, or at the latest by June 2013, when Plaintiff knew that Dr. Berryman was
appealing the limitations issue and thought that Defendants had made a mistake in failing to
identify Dr. Berryman earlier. Plaintiff maintains that she “was unaware that Defendants’ failure
to timely sue Dr. Berryman caused her an injury” until the New Mexico Court of Appeals
overturned the district court’s decision in her favor, because she did not know that she had
suffered any loss as a result of the untimeliness. Resp. at 8.
In Sharts, the New Mexico Supreme Court held that a legal malpractice claim was timebarred when the undisputed facts demonstrated that the plaintiff knew his attorney’s error had
caused him injury more than four years before he sued for malpractice. Sharts, 1994-NMSC-114,
¶¶ 9, 17, 19. The plaintiff owned two tracts of land. Id. ¶¶ 3–4. In 1978 his attorney negligently
drafted restrictive covenants that applied to both parcels, rather than to only one parcel as the
plaintiff had intended. Id. When the plaintiff began to develop the second tract in the early
1980s, he was notified by owners in the first tract and by a title company that the restrictive
covenants applied to both parcels. Id. ¶ 4. The plaintiff filed a declaratory judgment action in
December 1984 seeking to establish that the covenants did not apply to the second tract. Id. ¶ 5.
In April 1985, while the action was still pending, he wrote a letter to his attorney threatening to

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sue for damages if the court entered judgment in his favor, or for malpractice if it did not. Id. ¶ 6.
The declaratory judgment was decided against the plaintiff in September 1986, and the decision
was affirmed on appeal in June 1988. Id. ¶ 8. However, the plaintiff did not file his malpractice
suit until July 1989. Id. ¶ 9. The New Mexico Supreme Court reasoned that the plaintiff must
have known that he had been injured by his attorney’s negligence by the time he filed the
declaratory judgment action, because he was incurring legal costs in attempting to resist the
imposition of the covenants, or, at the latest, by the time he wrote the letter to his attorney
complaining of the alleged errors. Id. ¶¶ 13, 17. The Court disagreed with the plaintiff’s theory
that his claim could not accrue until his rights were judicially determined by entry of the adverse
declaratory judgment. Id. ¶ 14.
Similarly to the plaintiff in Sharts, Plaintiff confuses final judicial determination of the
extent of her financial loss with her undisputed awareness of the fact that she had been injured by
Defendants’ failure to timely identify Dr. Berryman. The MMA limits the right to sue for
medical malpractice to three years from the date of occurrence. See § 41-5-13. Plaintiff lost her
right to bring her medical malpractice claim when Defendants failed to file suit against Dr.
Berryman within the prescribed time period. The district court allowed Plaintiff’s claim to
proceed under the due-process exception to the statute of repose. Plaintiff’s claim against Dr.
Berryman would not have been barred if the New Mexico Court of Appeals had upheld the
district court’s decision, and Plaintiff would have received the $700,000 stipulated judgment.
Plaintiff did not suffer the monetary loss caused by reversal of the district court’s judgment in
her favor until the Court of Appeals issued its decision reversing the district court. However,
Sharts rejected the proposition that the client is not injured until the final judicial determination
of rights. See Sharts, 1994-NMSC-114, ¶ 14.

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Plaintiff was injured when the three-year period specified in the MMA statute of repose
expired before Dr. Berryman was named as a defendant because she was exposed to the
possibility of losing her cause of action. See Potter, 2015-NMSC-002, ¶ 20 (when the discharge
of debt had previously been a guarantee, exposure to the possibility of denial of discharge was an
actual injury). Plaintiff did not know whether she would receive payment of the stipulated
judgment from Dr. Berryman until his appeal was decided. Even if the Court of Appeals had not
reversed the district court, Plaintiff would still have been injured by Defendants’ negligence
because she faced the prospect of a statutory bar and she was forced to litigate the timeliness of
her claim. Plaintiff was aware of this loss; she knew that Dr. Berryman had been named as a
defendant after the expiration of the statutory period, and by January 2011 she knew that he had
asserted his right to avoid her claim in his motion for summary judgment. New Mexico does not
require that Plaintiff be aware of the extent or permanence of her injury to trigger the start of the
limitations period. See Sharts, 1994-NMSC-114, ¶ 12.
Plaintiff was given a copy of Dr. Berryman’s Application for interlocutory appeal after
the district court denied Dr. Berryman’s motion. The Application alleged that Defendants had
made mistakes that caused the untimeliness, and it outlined several ways Defendants could have
identified Dr. Berryman earlier to name him as a defendant in a timely manner. Accordingly, the
Court finds as a matter of law that by the time of the September 2012 Application, Plaintiff was
aware, or should have been aware, that Defendants had erred in failing to identify Dr. Berryman
earlier and that Defendants’ actions had caused her actual injury. Further, by June 2013 Plaintiff
knew that Dr. Berryman was appealing the timeliness issue, and Plaintiff testified in deposition
that around this time she believed Defendants had made a mistake in not identifying Dr.

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Berryman sooner. The Court therefore concludes that Plaintiff’s legal malpractice claim accrued
by June 2013 at the latest.
Plaintiff asks the Court to toll the statute of limitations based on the continuous
representation doctrine, arguing that Defendants were still representing her through at least the
end of 2014. “Under the continuous representation doctrine, running of the statute of limitations
is tolled until the representation terminates with respect to the matters that underlie the
malpractice action.” Sharts, 1994-NMSC-114, ¶ 19. “The purpose of the doctrine is to avoid
unnecessarily disrupting the attorney-client relationship.” Id. (internal quotation marks omitted).
It is not clear that application of the continuous representation doctrine would toll the
statute of limitations here. Even if Defendants remained counsel of record during the Court of
Appeals proceedings, it is undisputed that another attorney was Plaintiff’s primary counsel after
June 2013. See Sharts, 1994-NMSC-114, ¶ 19 (“The inquiry is not whether an attorney-client
relationship still exists but when the representation of the specific matter terminated.” (internal
quotation marks omitted)). Especially under these circumstances, the Court is reluctant to adopt
the continuous representation doctrine when New Mexico courts have declined to do so. See
Spencer v. Sommer, 91 F. App’x 48, 52 (10th Cir. 2004) (declining to adopt the continuous
representation doctrine due to federalism concerns). Accordingly, the Court will not toll the
limitations period. Plaintiff’s claims are therefore time-barred.
IT IS ORDERED that DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc.
No. 31) is GRANTED. Plaintiff’s claims will be dismissed with prejudice by separate order.

SENIOR UNITED STATES DISTRICT JUDGE
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