Opinion
J-A16002-15 No. 2577 EDA 2014 No. 2596 EDA 2014
08-17-2015
REBECCA H. ALI, AS ADMINISTRATOR AND PERSONAL REPRESENTATIVE OF THE ESTATE OF HASSAN S. ALI, AND REBECCA H. ALI, INDIVIDUALLY, Appellant v. GARRETT V. WILLIAMS, ESQUIRE, INDIVIDUALLY, AND THE LAW OFFICES OF GARRETT V. WILLIAMS AND CHARLES DASHIELDS, ESQUIRE, INDIVIDUALLY AND THE LAW OFFICES OF CHARLES DASHIELDS, Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated August 4, 2014 in the Court of Common Pleas of Philadelphia County
Civil Division at No.: August Term, 2011, No. 00899
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
In these consolidated legal malpractice cases, Appellant, Rebecca H. Ali, individually and as administratrix of the estate of her decedent husband, Hassan S. Ali, appeals from the orders, after a bench trial, entering judgment in favor of all defendants., The trial court concluded chiefly that Appellant could not meet her burden of proof for legal malpractice because she would not have prevailed in the underlying medical malpractice case. We agree, albeit for somewhat different reasons. Accordingly, we affirm.
This Court consolidated the appeals at the request of Appellant, on September 29, 2014.
We note that the trial court's orders of August 4, 2014 in favor of all defendants, entered after denial of post-trial motions, grant the same relief as the orders entered on April 15, 2014. We observe for clarity and to avoid confusion that while Appellant is inconsistently referred to in the plural in the brief, reflecting her dual capacity as an individual and as personal representative, there is in reality only one Appellant in this appeal.
This is a voluminous, complicated and convoluted case. To the extent possible, we limit our review of the facts to those directly relevant to the claims alleged and the dispositions by the trial court challenged on appeal.
We derive the facts of the case from the trial court's Memorandum in Support of Orders Finding in Favor of All Defendants, dated and filed April 15, 2014, and the trial court's Rule 1925(a) opinion, filed September 16, 2014, as well as our independent review of the record. The trial court did not make formal findings of fact. Instead, the court included in both of its decisions a brief (one-page) selected narrative summary of factual background and procedural history. ( See Memorandum in Support of Orders, 4/15/14, at 1; Trial Court Opinion, 9/16/14, at 2).
On March 10, 2005, Hassan Ali, age 67, was admitted to Pennsylvania Hospital, in Philadelphia, after a fall, with complaints of weight loss and worsening back pains. On or about March 16, 2005, he received a confirmed diagnosis of multiple myeloma.
Multiple myeloma is a cancer of plasma cells in the bone marrow, also known as bone marrow cancer. See the National Cancer Institute's cancer.gov. Multiple myeloma means tumors are present in more than one area of bone marrow, commonly in the spine, skull, ribs, and hips. Normally, plasma cells produce antibodies and play a key role in immune function. However, uncontrolled growth of these cells can lead to bone pain, fractures, anemia, infections, inability to eat, kidney failure, and other complications. The disease is treatable but incurable. Individual survival rates depend on multiple factors including the stage of the cancer at diagnosis, age of the patient, treatment, etc.
Mr. Ali was discharged from Pennsylvania Hospital on March 18, 2005. Shortly after receiving the diagnosis and one round of chemotherapy, Mr. Ali rejected all further conventional medical care.
Instead, he chose alternative treatment by a holistic medicine practitioner, Dr. Olaitan Abyenanji, who prescribed a regimen of drinking an herbal solution, not otherwise described. ( See Memorandum in Support of Orders, at 6-7).
In Plaintiff's Reply to Defendant Garrett Williams' Proposed Findings of Fact and Conclusions of Law, Appellant represents that Dr. Abyenanji is an Atlanta-based physician who was board certified in internal medicine and gastroenterology. ( See Plaintiff's Reply, 4/04/14, at 5 n.5). However, counsel for Appellant offers no evidence in support of these claims. We find no reference to the record, independent citation or other support in the record for the allegations. At trial, Appellant testified that Dr. Abyenanji told her he is a medical doctor from Nigeria who is now located in Atlanta. ( See N.T. Trial, 2/03/14, at 187). There is no indication where he went to medical school. Dr. Abyenanji's name is spelled in several different ways throughout the record.
By any objective standard, the alternative treatment program did not go well. The trial court notes that Mr. Ali lost his ability to swallow, and stopped eating. ( See id .). He became weak and lethargic. ( See id .). Over three months, Mr. Ali lost fifty pounds, from a previous weight of one hundred forty-seven pounds to ninety-seven pounds.
By June he had become so debilitated that the family had to have him transported back to Pennsylvania Hospital by ambulance. Nevertheless, Appellant refused the recommendation of the attending physicians for neurosurgical intervention to stabilize Mr. Ali's neck with steel rods. ( See N.T. Trial, 2/03/14, at 190-91).
During this June re-hospitalization, the actions alleged to be medical malpractice occurred. Specifically, a feeding tube became clogged, and efforts to reinsert a replacement occasioned complications and infection. Appellant rejected a tracheotomy recommended by the attending Pennsylvania Hospital physicians ( See id. at 176).
After two weeks, recognizing that Mr. Ali was in great pain, that he was "never coming off this machine," and with the apparent, if tacit, agreement of Mr. Ali, Appellant authorized the withdrawal of medical life support. ( Id .). Mr. Ali passed away the next day, on June 30, 2005.
A "couple of weeks" after Mr. Ali's death, Appellant, in consultation with her daughter, Khadijah R. Ali, Esq., decided to pursue a medical malpractice claim. ( Id. at 210). Ms. Ali is a Washington, DC-based attorney who is also admitted in Pennsylvania. Sometime in 2005, Appellant, through her daughter, retained Veronice Holt, Esq., (another Washington attorney), to bring that medical malpractice suit. ( See id. at 108-111). However, the professional engagement did not work out satisfactorily, and the association ended. ( See id. at 110).
Ms. Ali represents her mother in this appeal.
The trial court's mention of "Miss Hart" representing Appellant appears to refer to Ms. Holt. ( See N.T. Trial, 2/03/14, at 213).
Later, at a time not specified, Ms. Ali reached out to Mark Dixon, a disbarred Washington attorney she knew. At some indeterminate point after that, Mr. Dixon in turn brought Appellee Garrett Williams into the case. ( See id. at 149). Mr. Williams was not admitted in Pennsylvania.
Ms. Ali conceded at trial that Mr. Dixon was disbarred but testified that she did not know this at the time of the contact. ( See N.T. Trial, 2/03/14, at 149-50). Ms. Ali also testified that she accepted Appellee Williams in the expectation that Williams would be working with Dixon, because she "knew [Dixon] well" and trusted him. ( Id. at 149). The timing and other circumstances of Mr. Dixon's disbarment are not readily evident from our review of the record.
It appears from the trial testimony that Appellee Williams entered into a fee agreement with Appellant on February 4, 2007. ( See id. at 43). Sometime in May, 2007, Appellee Williams received a report on Mr. Ali by Health Care Auditors, Inc., dated May 16, 2007. ( See id. at 44).
Although Appellant's trial counsel, David C. Brooks, Esq., examined Appellee Williams at trial about the retainer agreement, it was not included as an exhibit to the malpractice complaint, and is apparently not included in the certified record before us. In any event, it is not the role of this court to scour the record to find evidence to support an argument. See J.J. DeLuca Co. v. Toll Naval Associates , 56 A.3d 402, 411 (Pa. Super. 2012). Furthermore, counsel for Appellant also failed to arrange for the trial transcript or the transcript of the hearing on the post-trial motions to be included in the certified record. We emphasize that we could have found waiver of all of Appellant's claims on this basis alone. See Commonwealth v. Preston , 904 A.2d 1, 7 (Pa. Super. 2006) (en banc), appeal denied, 916 A.2d 632 (Pa. 2007) ("In the absence of an adequate certified record, there is no support for an appellant's arguments and, thus, there is no basis on which relief could be granted."). However, this Court has obtained those transcripts independently through the cooperation of the trial court, and in the interest of judicial economy, we will review Appellant's claims.
Prior to retaining Mr. Williams, Ms. Ali had hired Health Care Auditors, Incorporated, for a preliminary review of the case and to facilitate the engagement of expert medical witnesses. ( See N.T. Trial, 2/03/14, at 116).
In a June 10, 2007 email to Mr. Williams, Ms. Ali forwarded information on Appellee, Charles DaShields, Esq., a Philadelphia practitioner who was admitted in Pennsylvania, and a long time Ali family friend. In that email, Ms. Ali directed Mr. Williams to contact Mr. DaShields, who Ms. Ali envisioned would be Williams' sponsoring Pennsylvania-admitted attorney. ( See id. at 114; see also id. at 113-115). She also advised Appellee Williams "that the complaints needed to be filed as soon as possible." ( Id. at 115).
Mr. Williams maintained, but Ms. Ali denied, that he told her that the medical reviewers had told him that some of the medical records were missing. ( See id. at 123). In fact, several of the written expert reports provided by Appellant are expressly qualified by the reference to missing medical records, as well as the reliance on a medical narrative written by Appellant herself. ( See Letter of Gabor Kovacs, M.D. to Garrett V. Williams, Esq., 9/4/07, at 1) (noting opinion is based on facts of case including medical records and narrative summary of events as written by Mrs. Hassan Ali); ( see also Letter of Williams S. Maxfield, M.D. to Garrett V. Williams, Esq., 8/21/07, at 2) ("I do not have the full operative report. . . . The introduction by Mrs. Ali states that tube was not flushed on a regular schedule. . . . The full dictated report of the operation of 6/14/05 is needed for full confirmation.").
Appellant is a registered nurse. We recognize that under our caselaw in appropriate circumstances a trial court may permit an otherwise competent and properly qualified nurse to give expert opinion testimony regarding medical causation. See Freed v. Geisinger Med. Ctr., 971 A.2d 1202, 1208 (Pa. 2009), reaffirmed on reargument, 5 A.3d 212 (Pa. 2010). However, in this case Appellant was neither offered nor accepted as an expert witness. ( See N.T. Trial, 2/03/14, at 40).
In any event, on the issue of admission of Appellee Williams pro hac vice, at some point in a related hearing before then-Judge William J. Manfredi, Mr. DaShields made an oral motion to admit Mr. Williams pro hac vice. ( See N.T. Trial, 2/03/14, at 78). Judge Manfredi advised Appellee DaShields that a motion to admit Appellee Williams pro hac vice had to be made in writing. ( See id. at 78-79). There is no dispute that the written motion was never filed. ( See id. at 79).
On June 29, 2007, in a last minute effort to avoid the two-year statute of limitations, Attorney Williams filed a medical malpractice complaint. He apparently did so using the name and related professional information of Attorney DaShields. ( See Memorandum in Support of Orders, at 1, Note; id. at 16; see also N.T. Trial, 2/03/14, at 54, 230).
However, the purported complaint sued a separate, distinct legal entity, the Hospital of the University of Pennsylvania (HUP), instead of Pennsylvania Hospital, where Mr. Ali actually went for diagnosis and initial treatment.
The trial court characterizes the complaint as "a legal fiction." (Memorandum in Support of Orders, at 1, Note).
Curiously, Appellant did not sue the alternative medicine practitioner, Dr. Abyenanji, even though at the legal malpractice trial she stated her firm belief that his care was insufficient. ( See N.T. Trial, 2/03/14, at 168) ("And so, and he [Mr. Ali] trusted this man, and he just didn't take care of him.").
Also, although naming some twenty-three HUP staff physicians as co-defendants, the complaint named none of the Pennsylvania Hospital physicians who actually treated Mr. Ali. To the contrary, it apparently named no Pennsylvania Hospital physicians at all. ( See N.T. Trial, 2/03/14, at 76).
By the time these errors and omissions were discovered, the statute of limitations period had expired. There is no dispute that the claims against all but one of the defendants, including all of the twenty-three named HUP physicians, were nolle prossed for failure to file certificates of merit. There is no dispute that the trial court granted summary judgment in favor of the sole remaining defendant, the Hospital of the University of Pennsylvania. Appellee Williams filed numerous motions for reconsideration and appeals. All were quashed or dismissed. ( See id. at 252).
On August 3, 2011, Appellant, now represented by Attorney David C. Brooks, Esq., commenced the instant legal malpractice suit against Williams and DaShields by praecipe for writ of summons. The complaint was filed on December 2, 2012.
Accordingly, even assuming a four year statute of limitations on the malpractice claims (under contract) rather than a two-year limit (for negligence), the limitations period had expired by the time the praecipe was filed. However, it appears that neither Appellee raised the defense of the statute of limitations.
On August 14, 2013, according to Attorney Brooks, Attorney DaShields agreed orally at a pre-trial settlement conference to "a $1 million judgment related to punitive damages." (N.T. Trial, 2/03/14, at 36; see also N.T. Hearing, 6/26/14, at 5). There is no signed written agreement supporting this claim. ( See N.T. Trial, 2/03/14, at 36-37).
On January 23, 2014, ten months after the March 4, 2013 scheduled discovery deadline, and eleven days before trial was set to begin, Attorney Brooks noticed the videotaping of Appellant's medical experts. He set the date for the evening of February 3, by which time trial would have already begun. ( See Appellant's Brief, at 8). The trial court granted Appellee Williams' emergency motion in limine to preclude the videotaping for presentation at trial.
In fact, by the evening of February 3 the trial was already over.
Neither Appellee has filed a brief in this appeal.
The bench trial occurred on Monday, February 3, 2014. Appellee Williams appeared pro se. Appellee DaShields did not appear at all. Immediately before trial, the court considered outstanding motions. In particular, the court denied Appellant's motion for reconsideration of the order precluding the videotaping of her medical experts for use at trial. ( See N.T. Trial, 2/03/14, at 35).
Additionally, the trial judge, recognizing that the videotaped testimony of the medical experts had been precluded, offered counsel the option of having her review the written reports of the experts for both sides. ( See id. at 38-39). Mr. Brooks, Appellant's trial counsel, accepted. ( See id. at 39).
Appellee Williams objected that the written medical reports were hearsay.
The trial judge also noted the absence of co-defendant DaShields. ( See id. at 35). Attorney Brooks stated that Mr. DaShields had "agreed to [accept] a $1 million judgment related to punitive damages only." ( Id. at 36). The judge stated her intention to follow up with DaShields directly. ( See id. at 36-37). Neither party objected.
After telephoning Appellee DaShields during a recess, the judge announced in open court that he had confirmed his conversation with Mr. Brooks. ( See id. at 37). The judge noted on the record her reservations about the validity of a purported settlement where nothing had been reduced to writing almost six months after the fact. ( See id.). Nevertheless, she decided to accept Mr. DaShields' oral representation. ( See id. at 38). Based on the information available to her at that time, and without objection from either party, the judge elected to proceed with the trial of Appellant against Appellee Williams. ( See id.).
At trial, Mr. Brooks called Appellee Williams to testify as of cross. Appellant and her daughter also testified. There were no other witnesses. As previously noted, the trial court found in favor of all defendants. Appellant filed post-trial motions and memoranda in support. The trial judge held a post-trial hearing at which the parties presented oral argument. ( See N.T. Hearing, 6/26/14). After argument, the court denied the motions, by orders dated August 4, 2014, and entered judgment in favor of all defendants. This appeal followed.
The trial court did not order Appellant to file a Rule 1925(b) statement of errors. See Pa.R.A.P. 1925(b). As already noted, the court filed its Rule 1925(a) opinion on September 16, 2014, referencing its Memorandum in Support of Orders Finding in Favor of All Defendants, filed April 15, 2014. See Pa.R.A.P. 1925(a).
Appellant raises four questions for our review on appeal:
I. Whether the trial court committed an error of law and/or abused its discretion when it refused to enter judgment against [Appellee] DaShields pursuant to an oral settlement agreement it confirmed was reached prior to the trial, concluding that there was no meeting of the minds?(Appellant's Brief, at 5).
II. Whether the trial court committed reversible error when it concluded and held that [Appellant] did not have an attorney/client relationship with [Appellee] DaShields?
III. Whether the trial court committed an error of law and/or abused its discretion when it granted [Appellee's] motion in limine and precluded [Appellant] from videotaping the trial testimony of the medical experts?
IV. Whether the trial court committed an error of law and/or abused its discretion when it used the medical expert reports offered by [Appellee] Williams after having granted [Appellant's] motion in limine to preclude expert testimony offered by [Appellee]?
Our standard of review is well-settled.
Our review of the trial court's decision after a non-jury trial is limited to determining whether the findings of the trial court are supported by the competent evidence and whether the trial court committed error in the application of law. It is not our role to pass on the credibility of witnesses, as the trial court clearly is in the superior position to do so.Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa. Super. 2004), appeal denied, 871 A.2d 192 (Pa. 2005) (citation and internal quotation marks omitted).
In order to establish a claim of legal malpractice, a plaintiff/aggrieved client must demonstrate three basic elements:
Kituskie v. Corbman , 714 A.2d 1027, 1029-30 (Pa. 1998) (footnote omitted).1) employment of the attorney or other basis for a duty;Rizzo v. Haines , 520 Pa. 484, 499, 555 A.2d 58, 65 (1989). An essential element to this cause of action is proof of actual loss rather than a breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm. Id. at 504-05, 555 A.2d at 68. Damages are considered remote or speculative only if there is uncertainty concerning the identification of the existence of damages rather than the ability to precisely calculate the amount or value of damages. Id. In essence, a legal malpractice action in Pennsylvania requires the plaintiff to prove that he had a viable cause of action against the party he wished to sue in the underlying case and that the attorney he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a "case within a case").
2) the failure of the attorney to exercise ordinary skill and knowledge; and
3) that such negligence was the proximate cause of damage to the plaintiff.
* * *
[In a] legal malpractice action . . . a plaintiff must prove a case within a case since he must initially establish by a preponderance of the evidence that he would have recovered a judgment in the underlying action . . . . It is only after the plaintiff proves he would have recovered a judgment in the underlying action that the plaintiff can then proceed with proof that the attorney he engaged to prosecute or defend the underlying action was negligent in the handling of the underlying action and that negligence was the proximate cause of the plaintiff's loss since it prevented the plaintiff from being properly compensated for his loss.
A claim of medical malpractice can be defined "as the unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services." Toogood v. Owen J. Rogal , D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (2003). In order to prevail in a medical malpractice action, a plaintiff must establish (1) a duty owed by the physician to the patient, (2) a breach of that duty by the physician, (3) that the breach was the proximate cause of the harm suffered, (4) and the damages suffered were a direct result of the harm. See Hightower-Pomroy v. Hosp. of Univ. of Pa., 105 A.3d 740, 744-45 (Pa. Super. 2014), appeal denied, 2015 WL 3937361, (Pa. filed June 16, 2015) (quotation marks omitted) (emphasis added).
Warren v. Silk , 548 Pa. 459, 698 A.2d 52, 54 (1997). Because the nature of this cause of action encompasses knowledge and experience not commonly within the ordinary experience and knowledge of laypersons, the plaintiff must present expert testimony in order to establish the physician's applicable standard of care and the causation of the injury. See Toogood , 824 A.2d at 1145. . . . In a negligence action, the plaintiff's burden of causation has two components (1) cause-in-fact and (2) legal or proximate cause. See First v. Zem Zem Temple , 454 Pa. Super. 548, 686 A.2d 18, 21 n.2 (1996). In a medical malpractice action, expert testimony is required to establish causation. See Toogood , 824 A.2d at 1145. To establish cause-in-fact causation, a plaintiff must prove, through expert testimony, that "but for" the defendant's alleged negligent conduct, the harm suffered by the plaintiff would not have occurred. See Whitner v. Von Hintz , 437 Pa. 448, 263 A.2d 889, 894 (1970).
Because the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.Toogood , supra at 1145 (emphases added).
The expert testimony requirement in a medical malpractice action means that a plaintiff must present medical expert testimony to establish that the care and treatment of the plaintiff by the defendant fell short of the required standard of care and that the breach proximately caused the plaintiff's injury. Hence, causation is also a matter generally requiring expert testimony. A very narrow exception to the requirement of expert testimony in medical malpractice actions applies "where the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even non-professional persons," Hightower-Warren , 698 A.2d at 54 n.1, also conceptualized as the doctrine of res ipsa loquitur.
Here, the trial court decided that Appellant was unable to demonstrate that she would have prevailed in the underlying suit. ( See Trial Ct. Op., 9/16/14, at 2). We agree.
On independent review of the record, we find that counsel for Appellant failed to provide, in a timely fashion, expert witnesses to testify—subject to cross-examination—about the purported underlying medical malpractice. In a medical malpractice action, expert testimony is required to establish causation. See Pomroy , supra at 745 (citing Toogood , supra at 1145). Accordingly, we conclude that the trial court correctly concluded that Appellant failed to establish by a preponderance of the evidence that she would have recovered a judgment in the underlying action.
Because Appellant failed to prove her "case within a case" for medical malpractice by a preponderance of the evidence, the trial court properly rejected her claim of legal malpractice. Kituskie , supra at 1030.
Furthermore, none of the particular claims raised by Appellant require a different result.
We consider Appellant's first two issues, both pertaining to Appellee DaShields, together. In the second of the two questions, Appellant challenges the trial court's finding that no attorney-client relationship existed between her and Appellee DaShields. ( See Appellant's Brief, at 5). Appellant argues that "[t]he [trial] court was incorrect when it ruled that [Appellant] did not have an attorney/client relationship with [Appellee] Da[S]hields." ( Id. at 23). We disagree.
First and foremost, this issue is moot. The trial court correctly notes that Appellant herself confirmed at trial not only that there was no attorney client relationship between her and family friend DaShields, but also, for reasons she essentially refused to disclose, she did not want one. ( See Memorandum in Support of Orders, at 3, (citing N.T. Trial, at 211) ("I didn't want him handling the case. He was a friend of ours, but he —but I know his history as a lawyer, so I didn't want him to handle the case."); ( see also id. at 214) (Appellant confirming on cross-examination that she did not want DaShields to handle the case). Furthermore, trial counsel, separately, took the same position:
The Court: Okay. Did Mrs. Ali have an attorney/client relationship with Mr. DaShields?(N.T. Trial, 2/03/14, at 24).
Mr. Brooks: No, Your Honor.
Appellant's second question on appeal flatly contradicts the legal and factual position taken at trial. Appellant may not deny this position on appeal. See DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 590 (Pa. Super. 2013) ("A judicial admission is an express waiver made in court or preparatory to trial by a party to gain an advantage, conceding for the purposes of trial the truth of the admission."). Appellant's second issue is waived and does not merit relief.
In Appellant's first question, she maintains that the trial court erred in not enforcing the oral settlement agreement, after confirming in open court her telephone conversation with DaShields. ( See Appellant's Brief, at 21-22). Appellant argues generally that oral agreements are enforceable even if not reduced to writing, if the parties agree on essential terms. ( See id. at 17-23). We agree. However, on this basis, she argues further that the trial court's decision is reversible error. ( See id. at 23). We disagree.
The enforceability of settlement agreements is determined according to principles of contract law. Because contract interpretation is a question of law, this Court is not bound by the trial court's interpretation. Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as [the appellate] court may review the entire record in making its decision.
Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 517-18 (Pa. Super. 2009), appeal denied, 991 A.2d 313 (Pa. 2010) (citations and quotation marks omitted).
With respect to factual conclusions, we may reverse the trial court only if its findings of fact are predicated on an error of law or are unsupported by competent evidence in the record.
The law of this Commonwealth establishes that an agreement to settle legal disputes between parties is favored. There is a strong judicial policy in favor of voluntarily settling lawsuits because it reduces the burden on the courts and expedites the transfer of money into the hands of a complainant. If courts were called on to re-evaluate settlement agreements, the judicial policies favoring settlements would be deemed useless. Settlement agreements are enforced according to principles of contract law. There is an offer (the settlement figure), acceptance, and consideration (in exchange for the plaintiff terminating his lawsuit, the defendant will pay the plaintiff the agreed upon sum).
Where a settlement agreement contains all of the requisites for a valid contract, a court must enforce the terms of the agreement. This is true even if the terms of the agreement are not yet formalized in writing. Pursuant to well-settled Pennsylvania law, oral agreements to settle are enforceable without a writing. An offeree's power to accept is terminated by (1) a counter-offer by the offeree; (2) a lapse of time; (3) a revocation by the offeror; or (4) death or incapacity of either party. However, [o]nce the offeree has exercised his power to create a contract by accepting the offer, a purported revocation is ineffective as such.
Appellant cites Mastroni-Mucker and Wolf v. Consol. Rail Corp., 840 A.2d 1004 (Pa. Super. 2003), in support of her contention that the Brooks-DaShields conversation constituted an enforceable oral settlement agreement. ( See Appellant's Brief, at 18). In those cases, an oral settlement agreement was made between the parties, but the terms of release were not specified. However, those cases are factually distinguishable from this case. In both Mastroni-Mucker and Wolf , the oral settlement agreements at issue were made on the record before a trial judge. That did not occur here.
To the contrary, in this case, at the post-trial hearing, Appellee DaShields categorically denied any settlement agreement on punitive damages. ( See N.T. Hearing, 6/26/14, at 16). As noted by Appellant, on review of the enforceability of a settlement, we may review the entire record to make our decision. ( See Appellant's Brief, at 18 (quoting Mastroni-Mucker , at 510)).
Here, the trial court decided after the trial and the hearing on the post-trial motions that there was no "meeting of the minds" such as to form a legally binding contract requiring enforcement of the purported settlement agreement. (Trial Ct. Op., at 7). On independent review, we agree.
We note that Appellee DaShields, who was absent from the trial, appeared at the oral argument on post-trial motions, and categorically denied "any type of punitive damages settlement discussion with Mr. Brooks." (N.T. Hearing, 6/26/14, at 16). DaShields' denial is all the more significant, because the purported agreement on payment of "punitive damages" is the only material term of settlement mentioned in the record.
Considering the denial of an attorney-client relationship by both Appellant and her trial counsel, the only basis for a claim of legal malpractice is the existence of an "other basis" to impose a duty. ( Kituskie , supra at 1030 (quoting Rizzo v. Haines , supra at 65)).
However, as noted by the trial court, counsel for Appellant, Mr. Brooks, never offered a legal expert to opine about any "other basis for a duty" owed to Appellant by Mr. DaShields, outside of the consistently denied attorney-client relationship. (Trial Ct. Op., at 7 ¶ 3(c)); see also Rizzo , supra at 65.
Additionally, we note that the apparent inducement for the purported agreement to settle was Attorney Brooks' threat to pursue DaShields' disbarment, unless he agreed to a million dollar settlement. ( See N.T. Hearing, 6/26/14, at 49.). This raises the issue of coercion, not addressed by the parties or the trial court.
Attorney Brooks' threat to report DaShields unless he settled, on its face, appears to be at variance with Pennsylvania Rule of Professional Conduct 8.3(a) which mandates, not suggests, the reporting of known violations. The rules do not condone the discretionary reporting of misconduct for tactical advantage. See Explanatory Comment [4]; see also Pa.R.P.C. 8.4, Misconduct.
Attorney Brooks' efforts to put a benign face on these threats met with scant approval from the trial court, which responded: "I read it in the depositions. It's already transcribed about threats of disbarment or disciplinary action. It's in the depositions. It's in the transcript, so be careful what you say, Mr. Brooks." (N.T. Hearing, 6/26/14, at 53).
We conclude that there is more than ample support in the record for the trial court's conclusion that viewing the evidence in its totality, there was no meeting of the minds between Brooks and DaShields about a million dollar settlement for punitive damages. ( See N.T. Hearing, 6/26/14, at 16).
Furthermore, the fundamental premise that parties, or counsel for parties, could (or should be permitted to) short-circuit the judicial process by the simple expedient of labeling a settlement amount as punitive damages betrays a deep misunderstanding, at the most elementary level, of the legal process for awarding punitive damages.
There is nothing in the record here to indicate that Appellant was contemporaneously advised of the pendency of a million dollar settlement on the recited terms, or that her approval was sought or obtained.
Punitive damages will lie only in cases of outrageous behavior, where defendant's egregious conduct shows either an evil motive or reckless indifference to the rights of others. Punitive damages are appropriate when an individual's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.J.J. DeLuca Co. v. Toll Naval Associates , 56 A.3d 402, 415-16 (Pa. Super. 2012) (citation omitted) (emphasis added).
The determination of whether a person's actions arise to outrageous conduct lies within the sound discretion of the fact-finder and will not be disturbed by an appellate court so long as that discretion has not been abused.
In this Commonwealth "[T]he right to punitive damages is a mere incident to a cause of action-an element which the jury may consider in making its determination-and not the subject of an action in itself." Unlike compensatory damages, which have as their purpose the desire to make the plaintiff whole, the purpose of imposing punitive damages is to punish the wrongdoers and to deter future conduct.Feingold v. SEPTA , 517 A.2d 1270, 1276 (Pa. 1986) (citations omitted) (emphases added). Accordingly, Attorney Brooks' announced motive for attempting to designate the settlement as punitive damages (to prevent discharge in bankruptcy), ( see N.T. Hearing, 6/26/14, at 5), is counter to the controlling authority governing punitive damages, and totally inappropriate.
To summarize regarding Appellee DaShields, the trial court's finding that there was no attorney-client relationship is supported by the record and Appellant is judicially estopped from denying the positions she and counsel took at trial. The parties disagreed categorically on the only material term of the purported settlement. The trial court's conclusion that there was no meeting of the minds is supported by competent evidence in the record, and proper. We discern no error of law in the trial court's conclusion that there is no enforceable settlement. Appellant's first and second claims do not merit relief.
In Appellant's third claim she asserts that the court erred in precluding the videotaping of her medical experts scheduled for the evening of the first day of trial. ( See Appellant's Brief, at 5). We disagree.
"We review [questions of the admissibility of evidence] for abuse of discretion." Schaaf v. Kaufman , 850 A.2d 655, 666 n.11 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (citation omitted).
Notably, in this appeal, Appellant concedes that the notice of the intent to videotape was late, arguing instead that the sanction of preclusion was too harsh. ( See Appellant's Brief, at 31). Appellant argues that videotaping scheduled on the evening of the first day of trial "would have not disrupted the orderly progression of the trial." ( Id. at 32). This claim is utterly unsupported by pertinent authority and indefensible on its face.
Moreover, broad general exhortations to this Court to construe rules liberally in the interest of justice, when the notice to videotape occurred ten months late and eleven days before trial, ring rather hollow. ( See id. at 31-32). More substantively, they ignore our standard of review, which defers to the trial court on evidentiary matters. See Schaaf , supra at 666 n.11.
Here, we discern no abuse of discretion. The trial court properly precluded the late-noticed videotaping of Appellant's expert testimony. The third claim does not merit relief.
In Appellant's fourth and final issue, she challenges the trial court's use of written medical reports. ( See Appellant's Brief, at 5). She argues, inter alia, that use of the reports resulted in "trial by ambush." ( Id. at 39). We disagree.
Inexplicably, Appellant purports to argue that her trial counsel objected to the trial court's suggestion to review the written reports, while quoting verbatim the portion of the pre-trial transcript where Attorney Brooks explicitly agreed to the trial court's proposal. ( See Appellant's Brief, at 41 (quoting, without attribution, from the pre-trial transcript)):
The Court: My question is, are you willing to go to trial with only expert reports of plaintiff, and I guess there are two on the defense side. It's a yes or a no[.](N.T. Trial, 2/03/14, at 38-39).
Mr. Brooks. Yes, Your Honor.
Accordingly, any objection to the trial court's review of the written expert reports is waived. Moreover, Appellant's argument of non-waiver is belied by the record, and frivolous. The fourth claim does not merit relief.
We conclude that the trial court correctly decided that there was no enforceable settlement because there was no meeting of the minds on the essential terms of the purported settlement. Further, Attorney Brooks' use of the threat to report Appellee DaShields as a sword of Damocles over DaShields' head is a distortion of the public policy of the Rules of Professional Conduct, which we expressly refuse to accept or endorse. Appellant's legal malpractice claim fails because she failed to prove the underlying medical malpractice claim by a preponderance of the evidence, chiefly by failing to present expert medical testimony. The trial court properly decided the evidentiary issues.
See Rules of Professional Conduct:
A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.
The trial court further postulates that Appellant would not have prevailed in the underlying case because, for various proffered reasons, a jury would have rendered a defense verdict. ( See Memorandum, at 6). It is unnecessary for us to review the trial court's reasoning. Our standard of review requires us to determine whether Appellant presented her "case within a case" by a preponderance of the evidence. She did not. We need not speculate further whether a hypothetical jury would have reached a similar conclusion. --------
Finally, in the interest of clarity and completeness, we observe that over-arching the issues of admissible evidence and enforcement of a purported settlement in this case, is the commonsensical issue of causation.
As noted by the trial court in another context, Mr. Ali was a non-compliant patient with an undisputed diagnosis of multiple myeloma who rejected the diagnostic and therapeutic measures proposed by his physicians at Pennsylvania Hospital. ( See Memorandum in Support of Orders, at 8). Once he rejected conventional treatment in favor of an herbal remedy regimen, Mr. Ali assumed the foreseeable risk of complications caused or exacerbated by the total abandonment of traditional medicine.
As Appellant candidly conceded at trial:
I realized there were problems sometime probably around April when he—because he was eating initially, then he stopped eating. And I mean this is just my belief, but I believe that when he stopped taking the chemotherapy that that was the end of—you know, that was the beginning of the downfall of his illness, that's what I think.(N.T. Trial, 2/03/14, at 199). We agree.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2015
Pa.R.C.P., Preamble and Scope [5].