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Legal Malpractice Dismissed Claim Set For Appeal Argument

By Michael Frisch

An interesting appeal of a dismissed legal malpractice claim will be heard by the District of Columbia Court of Appeals on March 21.

Plaintiff claims damages as a result of an alleged failure to seek compensation for future medical expenses.

From the former client’s opening brief

This is a classic case of a trial court’s improvident rush to judgment in granting a motion to dismiss that necessitates summary reversal. In April 2012, Plaintiff/Appellant/Cross-Appellee Roger Tovar (“Tovar” or “Plaintiff”) was injured in an automobile accident when a fast-moving vehicle driven by an employee of McKesson Corporation negligently rear-ended Tovar’s vehicle in the District of Columbia. (Appx. 13.) Tovar’s injuries were devastating and permanent, including but not limited to a traumatic brain injury (“TBI”) which will continue to worsen over time. Because of his TBI-related ailments, Tovar never will be able to work again and will require a lifetime of future medical care. (Appx. 13-14.)

In 2014, Tovar hired Defendants/Appellees/Cross-Appellants Regan Zambri Long, PLLC and two of its attorneys, Patrick M. Regan and Paul J. Cornoni (collectively, the “Lawyers” or “Defendants”), to bring a lawsuit against McKesson and its driver based on the auto accident, which was tried in June 2018 (“Underlying Matter”). (Appx. 15.) The jury awarded Tovar damages consisting of $500,000 for bodily harm and $3,297,573 in lost future earnings. (Appx. 130.) The McKesson defendants filed an appeal. In the interim, Tovar and the McKesson defendants settled the Underlying Matter for the full amount of the jury’s award of $3,797,573 (Appx. 131), and the appeal was dismissed on May 28, 2019. (Appx. 16.)

Afterwards, Tovar learned for the first time that the Lawyers could have sought additional damages for him at trial in the form of future medical expenses to cover the essential costs of his future medical care. The Lawyers, however, never informed or advised Tovar that he could seek future medical damages. (Appx. 1088, ¶¶ 6-7.) As a result, on May 9, 2022, Tovar filed this action against Defendants for professional negligence/legal malpractice. (Appx. 11-18.)

From the law firm’s opening brief

RZL’s extensive trial preparation, trial tactics, and strategy convinced the jury to award Tovar $3,297,573 for lost wages and $500,000 for bodily injury. Tovar was ecstatic with the verdict. He stated in an email to Mr. Cornoni shortly after the trial the following: “You do realize that you’re the winning attorney behind the largest DC Superior Court verdict for auto collisions since available court records show, going back to 2007.” He also stated that he wanted the firm to get “every penny” of the $1.2 million it was owed, assuming his math was correct. As expected, the McKesson Defendants appealed. Through this Court’s mediation program, on April 25, 2019, the matter settled on appeal for the exact amount of the verdict. With postjudgment interest, the amount due when Tovar settled the case on appeal was slightly less than $4 million – the amount he wanted prior to trial.

On November 26, 2018, in an email discussing the potential for McKesson filing an appeal following post-trial motions, Tovar engaged in a bizarre four-page rant identifying himself as a “Shaman”. Tovar suggested in this email that many of his post-accident troubles were related to his other-worldly struggles as a Shaman. Equally disturbing to RZL, prior to trial, Tovar had expressed concerns that the McKesson Defendants had hired “warlocks” for $43,000 to kill him.

Further

This legal malpractice claim is atypical in two respects. First, there is a complete record that Tovar and the Court had, including discovery in the underlying matter and a trial record. Second, Tovar argues he got an outstanding result at trial. He is only saying it may have been better if a different strategy had been implemented. RZL is entitled to judgmental immunity, a clearly recognized legal principle in the District of Columbia that bars a hindsight attack from a disgruntled client. The principle equally applies to clients who recognize that the result obtained was outstanding – the best ever reported for an auto tort recovery in the District of Columbia up to that point. Now, more than ten years after his auto accident, more than four years after his verdict, and more than three years after settlement on appeal, Tovar returns to Court in a money-grab attempt to extract even more money from the lawyers who produced what he believed was a phenomenal result.

Reply

The Lawyers weave several false themes throughout their Opposition Brief. First, without the slightest embarrassment, Defendants trivialize the severity of Tovar’s auto accident and resulting injuries in an effort to paint him as a “moneygrab[bing]” scoundrel (Opp. 4) who is pursuing a baseless malpractice claim. (E.g., Opp. 2 (“Tovar was involved in a modest [] automobile accident”); id. at 5 (“[Tovar] was discharged from the hospital that same day after less than 2 hours”).)

In the Underlying Matter, however, Defendants sang a very different tune. At trial, they argued “how violent this collision was” (Appx. 801:1-2), lauded Tovar’s “integrity” (Appx. 797:7), and stressed “how severe his injuries were.” (Appx. 785:3; 785:19-788:20.) The Lawyers also emphasized that Tovar’s TBI was the “biggest harm” (Appx. 787:4-5) which “left him with permanent deficits.” (Appx. 787:12-13.) To be clear, Tovar is the victim (not the villain) whom Defendants failed to advise could have claimed significantly more recovery that he will need for his lifelong medical care. Despite the Lawyers’ tactless attempt to denigrate him, Tovar has every right to perfect his malpractice claim in discovery and present it to a jury.

Sporting chance

At bottom, Defendants endeavored to hit a game-winning homerun before Tovar got a fair turn at bat. The law does not countenance such gamesmanship; neither should this Court.

Briefs

Associate Judges Howard and Shanker and Senior Judge Thompson will hear the appeal. (Mike Frisch)