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Forti v. Ashcraft12/30/2004
Argued December 16, 2004
In this action for legal malpractice, the trial court granted summary judgment to the defendants after the plaintiff-appellant, herself an attorney, failed to meet repeated deadlines within which to name an expert witness and file a corresponding statement pursuant to Super. Ct. Civ. R. 26 (b)(4). On appeal, the plaintiff does not dispute that expert testimony was necessary to prove legal malpractice by the defendants in conducting her underlying (and unsuccessful) suit for medical malpractice. See O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982). She argues instead that the trial court abused its discretion by not granting her still more time in which to name an expert witness, because her inability to meet the deadlines the court had set resulted entirely - in her view - from the failure of the Court Reporting and Recording Division of the Superior Court to provide a complete and accurate transcript of the testimony in the underlying case.
The trial court, after a hearing, rejected this excuse in a thorough and carefully explained written decision, concluding inter alia that the plaintiff's failure to meet the discovery deadlines was willful. We adopt that opinion and append it hereto. To the trial court's analysis we add only that Super. Ct. Civ. R. 56 (f) provides a means by which the plaintiff could have shown, through an affidavit of any legal expert she had consulted, why specific transcript portions then unavailable to the expert were necessary to the rendering of an opinion. That the plaintiff made no such showing lends additional support to the trial court's conclusion that she had not named an expert because, in fact, she had none "willing to agree that legal malpractice was committed here."
The trial court's order granting summary judgment is, therefore,
Affirmed.
APPENDIX
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION
Judge Boasberg
Calendar 10
ORDER (1) DENYING PLAINTIFF'S MOTION TO VACATE ORAL "FINAL" ORDER GIVEN APRIL 18, 2003, AND (2) GRANTING DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT
The Court has reviewed Defendants' Renewed Motion for Summary Judgment, Plaintiff's Status Report to the Court Regarding Transcripts and Motion for Enlargement of Time to File Proponent's 26(b)(4) Statement, Plaintiff's Motion to Vacate Oral "Final" Order Given April 18, 2003, Defendants' Opposition, and Plaintiff's Response.
I. Background
As the procedural history of this matter plays a significant role in the Court's decision, it is necessary to set forth that history in some detail.
Plaintiff filed her Complaint in this matter on March 20, 2002, asserting that Defendants committed legal malpractice while representing her in an unsuccessful medical malpractice case against her podiatrist. At the initial scheduling conference in this matter, held on June 21, 2002, Judge Mize placed the case on Track 3, the slowest track, which permitted Plaintiff extra time to conduct discovery and fulfill her other responsibilities under the rules. According to the Scheduling Order, Plaintiff's deadline to file her Rule 26(b)(4) statement was October 5, 2002.
Defendants filed their initial motion for summary judgment on July 15, 2002. After Plaintiff was given additional time to respond, this Court inherited the calendar and denied the motion on October 25, 2002. Defendants then moved for reconsideration, noting that Plaintiff had failed to name an expert witness within the deadline set by the Court at the scheduling conference. In responding, Plaintiff conceded that she had not named an expert, bu
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