Patric J. LeHouillier and LeHouillier & Associates, P.C., Petitioners/Cross-Respondents
Della Gallegos, Respondent/Cross-Petitioner
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 15CA724
Attorneys for Petitioners/Cross-Respondents: Hall &
Evans, L.L.C. Malcolm S. Mead John E. Bolmer, II Andrew P.
Reitman Denver, Colorado
Attorneys for Respondent/Cross-Petitioner: Anderson Hemmat,
LLC Chad P. Hemmat Jason G. Alleman Cameron O. Hunter
Greenwood Village, Colorado
Attorneys for Amicus Curiae Colorado Bar Association:
Montgomery, Little & Soran, P.C. Christopher B. Little
Michael R. McCormick Christopher T. Carry Greenwood Village,
Attorneys for Amicus Curiae Colorado Trial Lawyers
Association: Ogborn Mihm, LLP Michael T. Mihm Thomas D.
Neville Denver, Colorado Saliman Law, LLC Mark E. Saliman
In 2009, Della Gallegos had to undergo three cranial
surgeries after her radiologist, Dr. Steven Hughes, failed to
detect an obvious brain tumor on an MRI scan three years
earlier. Had Dr. Hughes discovered the tumor in 2006,
Gallegos could have treated it with cheaper, and less
invasive, radiosurgery. The highly invasive cranial surgeries
damaged Gallegos's vision, hearing, and memory.
Gallegos retained an attorney, Patric LeHouillier, to sue Dr.
Hughes for medical malpractice. But LeHouillier later decided
not to proceed with the suit, concluding it did not make
economic sense. He and Gallegos disagree over whether he
actually informed her of this decision. In any event, the
statute of limitations lapsed on the claims Gallegos could
have brought against Dr. Hughes.
Gallegos then brought this attorney malpractice case against
LeHouillier and his firm, claiming that LeHouillier's
negligence prevented her from successfully suing Dr. Hughes
for medical malpractice. The question before us is who bears
the burden to prove that any judgment that could have been
obtained against Dr. Hughes would have been collectible? In
other words, must a client who alleges her attorney was
negligent prove that any lost judgment was collectible? Or
must the attorney raise collectability as an affirmative
defense and prove that the lost judgment was not collectible?
Because the collectibility of the underlying judgment is
essential to the causation and damages elements of a
client's negligence claim against an attorney, we hold
that the client-plaintiff bears the burden of proving that
the lost judgment in the underlying case was collectible.
Here, the record reflects that Gallegos failed to present
sufficient evidence of collectibility. However, given the
absence of a clear statement from this court regarding the
plaintiff's burden to prove collectibility at the time of
trial, and given that the issue was not raised in this case
until after Gallegos had presented her case-in-chief, we
reverse the judgment of the court of appeals and remand the
case for a new trial.
Facts and Procedural History
In 2006, Dr. Steven Hughes performed a magnetic image
resonance (MRI) on Gallegos's brain. Dr. Hughes failed to
detect a clearly visible meningioma (a type of tumor). Three
years later, a different doctor noticed the tumor during
another MRI. By this time, the tumor had grown substantially
and was exerting pressure on Gallegos's optic nerves,
brain stem, and other vital structures.
Had Dr. Hughes diagnosed the tumor in 2006, Gallegos could
have undergone noninvasive radiosurgery to treat it. By 2009,
however, noninvasive radiosurgery was no longer a viable
option. Instead, surgeons had to perform three craniotomies,
or surgical openings of the skull, to remove much of the
tumor. Gallegos alleges that the surgeries cost her over
$661, 000, and resulted in permanent damage to her vision,
hearing, and memory.
After her first craniotomy surgery in 2009, Gallegos retained
an attorney, LeHouillier, to sue Dr. Hughes for medical
malpractice. In early 2010, LeHouillier wrote a letter
notifying Dr. Hughes that LeHouillier's law firm was
investigating a medical malpractice case against him. The
letter encouraged Dr. Hughes to "contact [his]
professional liability insurer." Dr. Hughes never
responded to the letter. Later that same year, LeHouillier
decided not to proceed with the case because it did not make
"dollar and cents sense."
LeHouillier claims that he met with Gallegos and informed her
of his decision to end his representation of her, but he kept
no written records memorializing the meeting or his decision.
Gallegos contends that the alleged conversation never took
place and that she was not aware that LeHouillier had dropped
her case. The statute of limitations then lapsed on the
medical malpractice claims that Gallegos could have brought
against Dr. Hughes.
Gallegos then brought this legal malpractice action against
LeHouillier and his firm, LeHouillier & Associates, P.C.
(collectively, "LeHouillier"). Gallegos alleged
that LeHouillier negligently failed to pursue her medical
malpractice claim against Dr. Hughes. At trial, after
Gallegos rested her case-in-chief, LeHouillier moved for a
directed verdict, arguing that Gallegos bore the burden of
proving the collectability of any judgment she could have
obtained against Dr. Hughes, and that she had not carried
Gallegos's counsel initially disputed that Gallegos had
the burden of proving collectibility, but nevertheless argued
that she had met that burden. Counsel first pointed to
LeHouillier's 2010 letter to Dr. Hughes urging him to
contact his professional liability insurance. Counsel argued
that, because Dr. Hughes never responded that he lacked
insurance, it could be reasonably inferred from his silence
that he did carry professional liability insurance.
Gallegos's counsel also argued that Dr. Hughes must have
carried insurance because section 13-64-301(1)(a.5)(I),
C.R.S. (2018), requires all practicing doctors in Colorado to
maintain professional liability insurance.
The trial court agreed with LeHouillier that Gallegos bore
the burden of proving collectibility. But it ruled that
Gallegos had provided sufficient evidence to permit the jury
to decide whether the judgment against Dr. Hughes was
collectible. The letter to Dr. Hughes was admitted into
evidence, but the jury was not instructed or otherwise
informed about the requirements of section
The jury ultimately found that Dr. Hughes had committed
medical malpractice by failing to diagnose Gallegos's
brain tumor in 2006. It also found that LeHouillier and his
firm had breached their professional duty of care by not
pursuing the case against Dr. Hughes. Finally, the jury found
that Gallegos suffered over $1.6 million in present and
After trial, LeHouillier moved for judgment notwithstanding
the verdict, emphasizing that "without any evidence on
[collectibility], the elements of causation and damages were
left to speculation." The trial court denied the motion,
again concluding that Gallegos had provided sufficient
evidence for the jury to decide whether the judgment against
Dr. Hughes was collectible.
In a 2-1 decision, the court of appeals reversed and remanded
for a new trial. Gallegos v. LeHouillier, 2017 COA
35, __ P.3d__. The division unanimously agreed that there was
no evidence at trial to show that the underlying judgment was
collectible Id. at ¶¶ 3, 71 (Webb, J,
concurring in part and dissenting in part). Correctly noting
that this court had never expressly addressed which party
carries the burden of proving collectibility in an attorney
malpractice case, the division majority held that the burden
should not fall on the client-plaintiff. Instead, it
concluded that collectibility should be an affirmative
defense for the attorney-defendant to raise and prove.
Id. at ¶¶ 66, 68.
The division majority's holding rested on several policy
rationales. Id. At ¶¶ 58-64. Chief among
them was the majority's view that requiring
client-plaintiffs to prove the collectibility of an
underlying judgment allocates the burden of proof unfairly
because any need to prove collectibility arises only as
"the result of an attorney's established
malpractice." Id. at ¶ 57 (quoting
Schmidt v. Coogan, 335 P.3d 424, 428 (Wash. 2014)).
The majority also reasoned that the attorney-defendant is
better positioned to prove uncollectibility because the
attorney should have investigated the solvency of the
defendant in the underlying case at the beginning of the