LeHouillier v. Gallegos

          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, Colorado

          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 Denver, Colorado

          OPINION

          JUSTICE MÁRQUEZ

         ¶1 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.

         ¶2 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.

         ¶3 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?

         ¶4 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.

         I. Facts and Procedural History

         ¶5 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.

         ¶6 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.

         ¶7 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."

         ¶8 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.

         ¶9 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 this burden.

         ¶10 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.

         ¶11 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 13-64-301(1)(a.5)(I).

         ¶12 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 future damages.

         ¶13 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.

         ¶14 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.

         ¶15 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 client's ...