Hamilton et al v. Silven, Schmeits and Vaughan P.C. et al
Filing
164
Opinion and Order - Defendants fail to show that there is no disputed issue of material fact relating to their alleged legal malpractice in representing the Hamiltons in a previous lawsuit. Defendants' motion for summary judgment and alternative motion for partial summary judgment 120 are DENIED. Signed on 5/28/2013 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
ALLEN HAMILTON and LOIS
HAMILTON,
Case No. 2:09-cv-1094-SI
Plaintiffs,
OPINION AND ORDER
v.
SILVEN, SCHMEITS & VAUGHAN and
ALAN J. SCHMEITS,
Defendants.
Thomas C. Patton, 8 North State Street, Suite 301, Lake Oswego, Oregon 97034.
John A. Sterbick and F. Hunter MacDonald, 1010 South I Street, Tacoma, Washington 98405.
Attorneys for Plaintiffs.
Bruno J. Jagelski and Carl Burnham, Jr., Yturri Rose LLP, 89 Southwest Third Avenue, P.O.
Box S, Onario, Oregon 97914. Attorneys for Defendants.
Michael H. Simon, District Judge.
Allen and Lois Hamilton (“the Hamiltons” or “Plaintiffs”) filed an action alleging legal
malpractice by Alan J. Schmeits, Esq. and the law firm Silven, Schmeits & Vaughan, P.C.
(collectively, “Defendants”) based on Defendants’ legal representation of Plaintiffs in an
PAGE 1 – OPINION AND ORDER
underlying property dispute lawsuit brought against Plaintiffs by their then-neighbors. In the
underlying case, Plaintiffs filed counterclaims. This Court previously granted partial summary
judgment in favor of Defendants and dismissed the claims of Plaintiffs alleging malpractice
relating to all of the claims and counterclaims in the underlying lawsuit, with the exception of the
counterclaims asserted by Plaintiffs for trespass causing damage to property (“property
trespass”) and trespass causing personal injury (“personal injury trespass”). Defendants now
move for summary judgment against all claims of legal malpractice relating to their prior
representation of Plaintiffs in those two trespass counterclaims. Dkt. 120. Defendants also move,
in the alternative, for partial summary judgment with regard to a portion of Plaintiffs’ alleged
damages. For the reasons discussed below, Defendants’ motions are denied.
STANDARDS
A party is entitled to 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). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.
2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a
motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the
plaintiff’s position [is] insufficient. . . . ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quotations and citation omitted).
PAGE 2 – OPINION AND ORDER
BACKGROUND
Defendants represented the Hamiltons in their defense of a quiet title action brought in
August 2006 by their then-neighbors, Edward and Patricia Elms, as Trustees of the Elms Family
Trust (“Elms”), and in prosecuting various counterclaims. Relevant to this matter are the
property trespass and personal injury trespass counterclaims. The trespass counterclaims alleged
that Mr. Elms sprayed the chemical pesticide 2,4-D onto both a disputed strip of land on which
the Hamiltons and Elms both claimed title and onto property that undisputedly belonged to the
Hamiltons. The trespass counterclaims alleged that the chemical intrusion caused the Hamiltons
to become ill and suffer personal injury. The trespass counterclaims further alleged that the
chemical intrusion damaged the Hamiltons’ property and garden and rendered the property
uninhabitable.
The Hamiltons assert that at the time of the chemical intrusion, the pesticide exposure
caused them to suffer from nausea, dizziness, rashes, watering and burning eyes, and hot flashes.
The Hamiltons’ relatives and neighbors also allegedly suffered immediate symptoms as a result
of the chemical spraying. Mr. Hamilton was particularly sensitive to chemical exposure because
of his history of prior chemical exposure and resulting illness.
The Hamiltons twice contacted the police to report the chemical intrusion, on June 30,
2006 and July 3, 2006. The first police report indicates that the officer herself smelled chemicals
and that the chemicals caused the officer’s eyes to water. Declaration of John A. Sterbick, Ex. 7.
Dkt. 141-1. It further describes that Mrs. Hamilton was crying and that she told the police officer
that Mr. Hamilton was sensitive to chemicals because of a previous chemical exposure “that
nearly killed him” and that Mrs. Hamilton was “concerned [Mr. Hamilton] would become ill
again.” Id. The second police report documented that the chemical incursion extended beyond
the disputed strip of land and onto the Hamiltons’ property. Id., Ex. 8. Dkt. 141-2.
PAGE 3 – OPINION AND ORDER
On July 16, 2006, Mrs. Hamilton contacted Oregon’s poison control center. Sterbick
Decl., Ex. 10. Dkt. 142-2. She reported dizziness, nausea, and headache as a result of the
pesticide spraying of her garden area by Mr. Elms. Mrs. Hamilton inquired whether she should
see a doctor. The poison control center recommended that the Hamiltons vacate the property,
change clothes, and see a doctor if the symptoms persist. On July 17, 2006, Mrs. Hamilton
reported to the poison control center that she visited a medical clinic but was denied treatment
due to an unpaid medical bill. Id. On July 21, 2006, the Hamiltons had soil samples collected and
tested, which showed abnormally high levels of 2,4-D. Sterbick Decl., Ex. 11. Dkt. 143-1.
In August 2006, the Elms filed suit to quiet title to the disputed strip of land. The
Hamiltons filed counterclaims. The Elms filed dispositive motions against the Hamiltons’
counterclaims. To assist in responding to the motions, Defendants requested the Hamiltons seek
medical treatment, gather medical reports, and locate medical and other experts. The Hamiltons,
however, did not seek medical treatment (other than the previously unsuccessful visit to a clinic),
provide medical reports, or locate medical or other experts. In opposition to the summary
judgment motion, Defendants filed the affidavit of Allen Schmeits and attached exhibits. The
affidavit and exhibits of Mr. Schmeits were not accepted by the court, with the exception of three
exhibits, because they were legally deficient. Approximately 16 days after the summary
judgment response deadline, Defendants filed an affidavit of the Hamiltons. The affidavit of the
Hamiltons, however, was not accepted by the court because it was not timely filed. Defendants
did not file any other affidavits on behalf of the Hamiltons.
The state court heard argument on the summary judgment motions on August 22, 2007.
Jagelski Decl. Ex. 3. Dkt. 121-3. At the summary judgment hearing, the judge noted that the
untimely affidavit of the Hamiltons, even if admissible, did not state anything about suffering
PAGE 4 – OPINION AND ORDER
injury or explain the history of the property and the boundary dispute. Sterbick Decl. Ex. 25.
Dkt. 150-1. From the bench, the court granted summary judgment against the trespass
counterclaims because there was no evidence of injury in the record. Id.; Jagelski Decl. Ex. 3.
Dkt. 121-3. Ultimately, the court dismissed all of the Hamiltons’ counterclaims.
In approximately June 2010, Mrs. Hamilton discovered lumps, which were excised.
Those lumps were diagnosed as Non-Hodgkin’s lymphoma in February 2011.
In response to the current motion, the Hamiltons submit expert medical testimony linking
their emotional and psychological injuries to the chemical intrusion and linking exposure to
2,4-D with increased risk of lymphohematopoietic cancers. Sterbick Decl. Exs. 12-15. Dkts. 14345. The Hamiltons also submit expert legal testimony opining that Defendants’ breached the
standard of care in representing the Hamiltons in the prosecution of the trespass counterclaims.
Declaration and Report of Bennett J. Wasserman. Dkt. 153.
DISCUSSION
A. Motion for Summary Judgment on all Claims
Defendants move for summary judgment against Plaintiffs’ legal malpractice claims
relating to Defendants’ prior representation of the Hamiltons with respect to the property trespass
and personal injury trespass counterclaims. Defendants argue that the Hamiltons fail to present a
genuine issue for the jury on the issue of legal malpractice because the Hamiltons did not offer
any admissible evidence that Defendants breached the standard of care in representing the
Hamiltons with respect to the underlying trespass counterclaims. Defendants also argue that
there are no material issues of fact in dispute relating to the trespass counterclaims, and that
judgment should be entered for Defendants as a matter of law.
PAGE 5 – OPINION AND ORDER
1. Admissibility of Plaintiff’s expert report
Defendants argue that the declaration and report of Plaintiffs’ legal expert, Bennett J.
Wasserman, does not meet the standards of Federal Rule of Civil Procedure 56(c)(4) because he
is not licensed in Oregon, he is not familiar with the standard of care in Eastern Oregon, and his
declaration is not based on personal knowledge because of a sentence in the report that states:
“The opinions expressed in this report do not constitute my personal opinions.” Defendants’
arguments are not persuasive.
a. Out-of-state license and familiarity with Oregon standard of care
Defendants cite no legal authority for the proposition that because Mr. Wasserman is not
licensed in Oregon his expert opinion is inadmissible for purposes of summary judgment.
Indeed, the law is to the contrary. Both federal and state courts allow out-of-state attorneys to
testify as experts as long as they familiarize themselves with the relevant state law. As explained
by the District of Wyoming:
The court finds that Mr. Barton and Ms. Dubofsky are well
qualified and have familiarized themselves sufficiently with
Wyoming law to testify regarding the legal standard of care in
similar cases in Wyoming. In general, the courts have allowed
experts in malpractice cases to become familiar with the applicable
standard of care through research. See, e.g., Harvey v. U.S., 2006
WL 1980623, *4 (D.Colo. 2006) (holding that a medical expert
may become familiar with the applicable standard of care through
knowledge, skill, experience, training, or education); Brett v.
Berkowitz, 706 A.2d 509, 517–18 (Del.Supr.1998) (holding that an
out-of-state expert must demonstrate that he has familiarized
himself with the local standard of care); Jeffers, Mangels & Butler
v. Glickman, 234 Cal.App.3d 1432, 1443 (Cal.App.2d.1991)
(holding that private study and contact with other professionals in a
field may qualify an attorney as an expert). Although Plaintiff's
experts' limited experience in Wyoming courts may be fertile
ground for cross-examination, it is not a deficiency that prevents
them from serving as expert witnesses in this case.
PAGE 6 – OPINION AND ORDER
Hjelle v. Ross, Ross & Santini, Civil Action No. 2:07-cv-00006-WDM-KLM, 2007
WL 5328994, *1 (D. Wyo. Dec. 19, 2007).
Here, Mr. Wasserman states that:
I have studied various source materials relating to the substantive
and procedural law of the State of Oregon as they relate to
attorneys who represent clients with personal injury claims in
general and specifically where such claims arise from chemical
poisoning. . . . At the time of the representation at question in this
case, the standards of care applicable to attorneys who handle
plaintiff’s toxic tort claims in the Oregon community where the
defendant practiced are substantively and substantially the same
throughout the nation.
Wasserman Report at 4. Dkt. 153-1; see also id. at 26 (citing to the Oregon standard of care from
the Oregon Professional Rules of Conduct, Rules 1.1, 1.16, and 1.3). Because Mr. Wasserman
familiarized himself with Oregon law, his report should not be excluded merely because he is no
located in Oregon.
Defendants also incorrectly assert in their brief that “Plaintiffs’ New York lawyer makes
no pretense that he knows anything about the practice of law in eastern Oregon.” (Defs. Reply
Br. at 3). To the contrary, Mr. Wasserman states, as quoted above, that he familiarized himself
with the standard of care in the Oregon community where Defendants practiced at the time of
their representation of the Hamiltons and he applied the Oregon rules and standards of
professional conduct. Wasserman Report at 4-5; 26. Dkt. 153-1. This is sufficient to permit
consideration of his expert report at summary judgment.
b. Personal knowledge
Defendants further argue that Mr. Wasserman’s expert report is insufficient under Federal
Rule of Civil Procedure 56(c)(4), which states that, as relevant here, “[a]n affidavit or declaration
used to support or oppose a motion must be made on personal knowledge . . . .” The Federal
Rules of Evidence, however, allow an expert to base his opinion on “facts or data . . . that the
PAGE 7 – OPINION AND ORDER
expert has been made aware of or personally observed.” Fed. R. Evid. 703 (emphasis added).
Further, the Federal Rule of Evidence requiring that a witness must have personal knowledge to
testify expressly states that this requirement of personal knowledge “does not apply to a
witness’s expert testimony under rule 703.” Fed. R. Evid. 602.
A court deciding a summary judgment motion may rely on an expert opinion based on
the facts of the case and not on personal knowledge. See Cabrales v. County of Los Angeles, 864
F.2d 1454, 1460 (9th Cir.1988), vacated, 490 U.S.1987 (1989), reinstated on remand by 886
F.2d 235 (1989) (finding that because Rule 703 permits expert testimony to be based upon facts
or data made known to an expert, which need not be admissible if it is of the type reasonably
relied upon by experts in the field, expert witnesses are likewise permitted to base affidavits, for
purposes of summary judgment, upon the same sources rather than upon personal knowledge);
Bieghler v. Kleppe, 633 F.2d 531, 533 (9th Cir. 1980) (rejecting the defendants’ argument that
the expert affidavit was conclusory, based on hearsay and not personal knowledge, and otherwise
inadmissible opinion evidence because Rules 702, 703, 704, and 705 of the Federal Rules of
Evidence govern expert testimony and experts may base opinions or inferences on facts or data
not admissible in evidence if they are of a type reasonably relied upon by experts in the field);
Gasaway v. Northwestern Mut. Life Ins. Co., 820 F.Supp. 1241, 1246 n.2 (D.Haw.1993) (finding
that under then-Rule 56(e)1 “[e] xpert testimony is admissible even if it is not based on first hand
knowledge of the facts”). The expert report in this case relies on facts and data that are of a type
reasonably relied upon by experts in the field, and is, therefore admissible.
Additionally, Mr. Wasserman submitted a declaration stating that his statements are true
and correct to the best of his information, knowledge, and belief. Dkt. 153. His declaration
1
In 2010 Rule 56 was amended, and the provisions of Rule 56(e) relating to personal
knowledge were carried forward into the current Rule 56(c)(4).
PAGE 8 – OPINION AND ORDER
incorporated by reference all of the statements and opinions contained in his legal report. He also
summarized his opinion in his declaration. He repeatedly references “my opinion” in both his
declaration and his expert report. Although the one sentence in Mr. Wasserman’s report that
states the opinions in the report “do not constitute my personal opinions” may be fodder for cross
examination, it does not override the numerous other textual and contextual statements in the
report and declaration that the opinions expressed are Mr. Wasserman’s.
2. Issues of fact
Defendants also argue that summary judgment should be granted because Plaintiffs’
claims are based on two inaccurate assumptions: (1) that Mr. Schmeits should have been
“clairvoyant” and foresaw that Mrs. Hamilton would be diagnosed with cancer; and (2) that the
underlying case was a major toxic tort litigation. Defs. Reply Br. at 4. Defendants do not
articulate exactly how these allegedly erroneous assumptions result in there being no genuine
dispute as to a material fact, and even if Defendants are correct in their contentions, they do not
support judgment as a matter of law.
First, Defendants do not present any argument relating to the legal malpractice claim
alleging that Defendants breached the standard of care in their representation of the Hamiltons in
the property trespass counterclaim. Defendants’ arguments relate only to the personal injury
trespass counterclaim. Thus, Defendants’ motion fails as to the legal malpractice claim relating
to the property trespass counterclaim.
Second, Defendants’ argument about the foreseeability of Mrs. Hamilton’s cancer relates
to the alternative motion limiting damages and does not support dismissal of the legal
malpractice claim based on Defendants’ representation of the Hamiltons in their personal injury
trespass counterclaim. The counterclaim in the underlying case alleged physical injury, and even
if the Hamiltons were limited only to those injuries specifically alleged in the personal injury
PAGE 9 – OPINION AND ORDER
trespass counterclaim (e.g., rashes, nausea, dizziness) (which this Court does not believe is
accurate under Oregon law), those allegations are sufficient to defeat summary judgment.
Defendants appear to be arguing that Mrs. Hamilton’s cancer was not foreseeable at the
time of the personal injury trespass counterclaim, and thus the current lawsuit should be
dismissed. Regardless of Mrs. Hamilton’s cancer, the harm of rashes and other illness alleged at
the time Defendants were prosecuting the personal injury trespass counterclaim on behalf of the
Hamiltons is sufficient injury to allege a colorable cause of action. Because there was a colorable
personal injury trespass counterclaim in the underlying action, Defendants have not met their
burden to show that there is no disputed issue of fact as to whether they negligently represented
the Hamiltons in prosecuting that counterclaim.
Third, the argument that Plaintiffs refer to their underlying case as a “major toxic tort
litigation” does not support dismissal of the legal malpractice claim relating to the personal
injury trespass counterclaim. The Hamiltons’ legal expert discusses the law relating to “attorneys
who represent clients with personal injury claims in general and specifically where such claims
arise from chemical poisoning,” and he notes that such claims are commonly referred to as “toxic
tort claims.” Wasserman Report at 4. It is undisputed that the underlying case included a
counterclaim (the Sixth Claim for Trespass and Personal Injury) by the Hamiltons alleging that
Mr. Elms sprayed a chemical on the property of the Hamiltons that caused the Hamiltons to
become ill. This alleges a personal injury trespass counterclaim arising from chemical poisoning.
Whether that counterclaim is labeled by the Hamiltons or their expert as a “toxic tort” or
“personal injury” counterclaim is irrelevant for purposes of summary judgment. The Hamiltons
have provided evidence that the representation by Defendants relating to the underlying trespass
PAGE 10 – OPINION AND ORDER
counterclaims was below the applicable standard of care. That creates an issue of fact for the
jury.
Fourth, Defendants’ argument that there is no disputed issue of fact as to the Hamiltons’
“toxic exposure” is unpersuasive. Defendants argue that they have “submitted ample evidence
that there was no toxic exposure whatsoever.” Defs. Reply Br. at 6. Defendants do not define
“toxic exposure.” In this context, “toxic exposure” is generally defined as contact with a
substance or agent that can lead to illness, increased risk of cancer or other disease, or death. See,
e.g., Note, Toxic Torts and Emotional Distress: The Case For an Independent Cause of Action
for Fear of Future Harm, 40 Az. L. Rev. 681, 681 n.3 (Summer 1998) (defining “toxic
exposure” as “generally any physical contact with a toxic agent that puts the individual at a
higher risk of developing cancer or other disease related to the toxin.”); Encyclopedia of Clinical
Neuropsychology, available at
http://www.springerreference.com/docs/html/chapterdbid/183101.html (defining “toxic
exposure” as “a direct or an indirect contact with any natural or man-made substances or agents
that can lead to deleterious changes in body structure or function, including illness or death”).
Relating to the issue of whether there was “toxic exposure” in the underlying personal
injury trespass counterclaim, Plaintiffs submit evidence that the Elms sprayed 2,4-D, Plaintiffs
were exposed to that chemical, and that exposure caused immediate injury and increased risk of
cancer. Defendants fail to show that their evidence resolves as a matter of law the issue of “toxic
exposure” in the personal injury trespass counterclaim in light of the evidence submitted by
Plaintiffs. The conflicting evidence of whether there was “toxic exposure” in the underlying
action is precisely the type of issue that a jury should decide in this legal malpractice action. See
Chocktoot v. Smith, 571 P.2d 1255, 1257, 1259 (Or. 1977) (holding that “factual link of cause
PAGE 11 – OPINION AND ORDER
and effect” and the question of what outcome should have followed if defendant attorneys “had
conducted a proper investigation, presentation (or exclusion) of evidence, or other steps bearing
on a decision based on facts” are for the jury unless “the evidence places it beyond rational
dispute”).
B. Alternative Motion for Summary Judgment Limiting Damages
Defendants state in the caption of their memorandum in support of their alternative
motion for partial summary judgment that “[e]ven if Plaintiffs could prove liability, they would
only be entitled to damages they could have recovered in the underlying action.” Defs. Br. at 8.
Dkt. 123. As a general statement of the law, Defendants may be correct. From this proposition,
however, Defendants jump to the conclusion: “Under Oregon law, damages for Plaintiff Lois
Hamilton’s condition are not available because she was not diagnosed with Non-Hodgkin’s
lymphoma until long after the conclusion of the underlying case.” Id. at 9. For the reasons that
follow, Defendants’ conclusion glosses over significant nuances.
Defendants argue that the proper measure of damages for a legal malpractice claim under
Oregon law is the damages that would have been recoverable in the underlying case. Defs. Br.
at 8. Oregon courts have not expressly defined the measure of damages in an attorney
malpractice case. The two cases cited by Defendants as defining the measure of damages do not
make such a conclusion as their holding. In Carter-Holmes v. Sousa, the court stated that “[t]he
parties agree that the measure of damages in a malpractice action arising from the loss of a
viable claim is generally the value of the putative ‘lost judgment.’” 901 P.2d 932, 934 (Or. App.
1995) (emphasis added). The court cited to some treatises and an Oregon case, Ridenour v.
Lewis, but did not conduct an analysis into the proper measure of damages and reach an
independent conclusion.
PAGE 12 – OPINION AND ORDER
The Ridenour case similarly states without specific analysis that one of the elements of a
legal malpractice claim the plaintiff must prove is damages and that when the plaintiff’s theory is
that the “defendant’s negligence caused her to lose a good cause of action against a third party,
the plaintiff has suffered no damage unless the lost judgment would have had some value.” 854
P.2d 1005, 1006 (Or. App. 1993). This case does not address the measure of damages, but
involves an allegation that the underlying judgment that would have been obtained but for the
attorney’s negligence would not have been collectible and thus, there was no damage to the
plaintiff. The court held that the face value of the underlying judgment was some evidence of its
value. Id.
These two cases do not directly answer the question of how Oregon law measures legal
malpractice damages, but they do provide support for the notion that Oregon follows the general
rule, which is explained as:
There is no single measure of damages in a legal malpractice case
and, generally, appropriate measure must be determined by the
facts and circumstances of each case. Generally, however, the
measure of damages in a legal malpractice action is the amount the
client would have recovered but for the attorney's negligence.
7A C.J.S. Attorney & Client § 335 (internal footnotes omitted).
Additionally, Oregon cases define causation for legal malpractice actions in a manner
consistent with this general measure of available damages. To establish causation in a legal
malpractice case under Oregon law, a “plaintiff must show that, but for the defendant's
negligence, the plaintiff would not have suffered the claimed harm.” Woods v. Hill, 273 P.3d
354, 360 (Or. App. 2012) (citation omitted). A plaintiff may do this “by showing that he or she
would have obtained a more favorable result had the defendant not been negligent.” Id.
The case at bar alleges that Defendants breached their contract with the Hamiltons and
failed to satisfy the professional standard of care in representing the Hamiltons, causing the
PAGE 13 – OPINION AND ORDER
Hamiltons damage. Compl. at ¶¶ 11-15. There are no facts or circumstances in this case that
would appear to justify deviating from the general rule on legal malpractice damages. Thus, the
appropriate measure of damages is the amount that the Hamiltons would have recovered on the
underlying trespass claims if they had a non-negligent attorney (i.e., the “lost judgment”).
Defendants argue that “damages are limited to the injuries claimed at the time of the
underlying action.” Defs. Br. at 10 (emphasis added). The injuries claimed, however, are not the
same as the “lost judgment.” The Hamiltons are entitled to show how the underlying case would
have progressed but for the alleged negligence of Defendants—they can present evidence that
the case would have gone to trial, the harms for which they would have sought compensation at
trial, and how much in damages they likely would have recovered at trial. With a non-negligent
attorney, by the time of trial the Hamiltons might have presented evidence of greater medical
harm than just the specific injuries Defendants’ actually pleaded on behalf of the Hamiltons in
their personal injury trespass counterclaim.
For example, under Oregon law, personal injury damages are recoverable for future
medical harm, fear of developing cancer, and for the increased risk of cancer. See, e.g., Lowe v.
Philip Morris USA, 183 P.3d 181, 183 (Or. 2008) (noting that when a plaintiff has alleged “any
present physical harm as a result of defendants’ negligence” she can recover damages for “fear
of developing cancer, for the increased risk of developing cancer that she faces, or for the costs
of medical care to determine the extent of her harm”); Zehr v. Haugen, 871 P.2d 1006, 1012 (Or.
1994) (damages may be obtained for past and present harms and “harms that may occur in the
future”); Feist v. Sears, Roebuck & Co., 517 P.2d 675, 679 (Or. 1973) (holding that testimony
relating to the susceptibility of future medical harm was properly admitted, even though that
harm was not probable and was no more than a possibility). Thus, the Hamiltons may present
PAGE 14 – OPINION AND ORDER
evidence in the current case that a non-negligent attorney would have offered evidence at trial in
the underlying personal injury trespass counterclaim of Plaintiffs’ future medical harm, medical
monitoring, and fear of increased risk of cancer.
Defendants argue that damages for future medical harm are too speculative because they
were not reasonably certain. Under Oregon law relating to future medical harm, however, “[t]he
general rule against possible but not probable future damages was modified in the case of
Feist . . . .” Pelcha v. United Amusement Co., 606 P.2d 1168, 1168 (Or. App. 1980) (rejecting the
defendant’s argument based “on the general rule at common law against recovery for future
consequences that are not reasonably certain”); see also Zehr, 871 P.2d at 1012 (rejecting
argument that as a matter of law alleged future medical harm was too speculative); Feist, 517
P.2d at 679-80 (trial court instruction to jury that it could consider susceptibility to meningitis in
its award of damages was not erroneous). Under Oregon law, future medical harm that is “more
than merely conceivable” is admissible for a jury to consider. Pelcha, 606 P.2d at 1169 (holding
that evidence that there was a 30 to 45 percent chance that future surgery might be needed was
admissible and its “degree of likelihood was the subject of evidence and was properly a subject
for the jury to consider”); see also Feist, 517 P.2d at 680 (holding that an injury that creates a
“predisposition to the contracting of some disease, i.e., a possibility” is evidence a jury may
consider because, as a matter of “common sense,” a jury can award larger damages for an injury
that creates the susceptibility of future medical harm than an injury that does not have that risk);
Henderson v. Hercules, Inc., 646 P.2d 658, 661-62 (Or. App. 1982) (holding that evidence that
there was a possibility that plaintiff would need future knee surgery was permissible for the jury
to consider in awarding damages) (relying on Feist and Pelcha).
PAGE 15 – OPINION AND ORDER
Here, the Hamiltons present expert testimony that at least several studies show that
exposure to 2,4-D results in an increased likelihood of lymphohematopoietic cancers of 50 to 60
percent and greater. Report of Richard A. Parent, PhD, at 3-4. Dkt. 133. This is evidence that
such future medical harm is more than “merely conceivable.” Under Feist and Pelcha, this
presents a factual issue that could have been presented to the jury in the underlying case. See also
Zehr, 871 P.2d at 1012 (“Generally, however, when a plaintiff asserts a claim for damages for
future harm, the question whether those damages are recoverable is a question of fact for the
jury, the answer to which will depend on the evidence adduced at trial.”). Thus, it is also a
factual issue to be decided by the jury in the pending case. See Chocktoot, 571 P.2d at 1259
(dividing the role of the judge and the jury in a legal malpractice action between issues of law
and issues of fact in the underlying case and noting that it is for a jury to determine what should
have been the outcome in the underlying case had the attorney not been negligent). Based on the
expert evidence submitted to this Court, Defendants have not provided evidence “plac[ing] it
beyond rational dispute” that the Hamiltons could not have made a showing in the underlying
case that future medical harm was recoverable and, thus, summary judgment is inappropriate.
Chocktoot, 571 P.2d at 1257.
Additionally, because they alleged some immediate physical harm as a result of the
chemical exposure, the Hamiltons may also have potentially recovered damages for medical
monitoring in the underlying personal injury trespass counterclaim. See, e.g., Lowe, 183 P.3d at
187 (“In Oregon, a plaintiff in a negligence action may recover the costs of diagnostic testing,
and there is no reason that such a plaintiff could not also recover medical monitoring costs.”)
(internal citation omitted, citing Zehr, 871 P.2d at1011) (Walters, J., concurring); Recovery of
Damages for Expenses of Medial Monitoring to Detect or Prevent Future Disease or Condition,
PAGE 16 – OPINION AND ORDER
17 A.L.R. 5th 327 (1994) (compiling cases). Medical monitoring damages are not recoverable in
Oregon without some present symptoms, but the Hamiltons alleged present symptoms in their
personal injury trespass counterclaim. See Lowe, 183 P.3d at 186 (finding that allegations that
smoking created a future risk of cancer, without any allegation of present harm or symptoms,
insufficient to state a claim for negligence and recovery of medical monitoring costs).
Additionally, the Hamiltons might have sought damages in the personal injury trespass
counterclaim for their fear of developing cancer. Lowe, 183 P.3d at 183. It is a factual issue
whether the Hamiltons would have recovered medical monitoring or fear of cancer damages in
the underlying action, but that is a question for the jury.
Defendants further argue (and emphasized at oral argument) that there is no evidence in
the record that Defendants knew about the Hamiltons’ potential future medical harm, fear of
cancer, psychological injury, and emotional injury. Defendants advised the Hamiltons to seek
medical treatment, and they did not. Defendants argue that these facts foreclose as a matter of
law the Hamiltons’ ability to seek damages for future medical harm, fear of cancer, and
psychological and emotional harm. Defendants’ argument misses the nuance of a legal
malpractice claim. The question is not what Defendants knew, but what a non-negligent attorney
representing the Hamiltons would have known.
The Hamiltons submitted evidence to this Court that Mrs. Hamilton was crying when she
met with the police, told the police that she was afraid Mr. Hamilton would get ill again after
previously “nearly being killed” by a chemical exposure, and told the poison control center
personnel that she attempted to get medical treatment but was unable to do so because of earlier
unpaid medical bills. Thus, the Court can infer that had an attorney representing the Hamiltons
inquired as to their fears and emotional and psychological injuries, the Hamiltons would have
PAGE 17 – OPINION AND ORDER
provided similar information. Whether a non-negligent attorney should have made such inquires,
what a non-negligent attorney would have done with the information learned, what evidence
would have been gathered and presented in defense of the summary judgment motion and in
support of the claims at trial, and whether such evidence would have supported a damages award
for injuries in addition to those injuries specifically alleged in the personal injury trespass
counterclaim are questions of fact for the jury. See Chocktoot, 571 P.2d at 1257, 1259.
In summary, the Hamiltons may seek recovery in the pending action for all damages that
they could have recovered in the underlying action with a non-negligent attorney. Such damages
may include future medical harm, fear of cancer, and medical monitoring. Defendants have not
provided evidence to place the possibility of the Hamiltons recovering such damages in the
underlying action beyond rational dispute. Thus, whether such damages are recoverable in the
current action is an issue of fact for the jury.
CONCLUSION
Defendants fail to show that there is no disputed issue of material fact relating to their
alleged legal malpractice in representing the Hamiltons in a previous lawsuit. Defendants’
motion for summary judgment and alternative motion for partial summary judgment (Dkt. 120)
are DENIED.
IT IS SO ORDERED.
DATED this 28th day of May, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 18 – OPINION AND ORDER
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