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The dismissal of a malpractice claim against lawyers who represented awoman in a Dalkon Shield case has been reversed by the 2nd U.S. CircuitCourt of Appeals. The circuit court found that a Southern District of New York judge erred in grantingsummary judgment to a lawyer and his firm based on an affidavitsubmitted by an arbitrator. As a result, the court reinstated the claimof plaintiff Barbara Rubens, who alleged the attorney’s malpractice costher a $3.5 million recovery. Rubens made several claims against attorney Roy L. Mason of the Marylandfirm Mason, Ketterman & Cawood, among them that Mason’s failure todisclose the names of expert witnesses resulted in the preclusion oftestimony that was critical to her attempt to prove a link between theuse of a Dalkon Shield intrauterine device and her injuries. After Rubens was hospitalized in 1987 with pelvic inflammatory disease,her Dalkon Shield was removed and she brought a claim against the DalkonShield Claimants’ Trust alleging that the intrauterine device causedinfertility, depression, loss of income and pain and suffering. Forgoing litigation, Rubens retained Mason to represent her inarbitration. The arbitrator, Blair C. Fensterstock of the Wall Streetfirm Fensterstock & Partners, ruled against her and in favor of thetrust in 1998. In 2001, Rubens filed a malpractice action against Mason and his firm inthe Southern District. Among her allegations, in addition to the bar onexpert testimony, she charged that Mason and the firm agreed to theadmission of the trust’s medical results, which contradicted independenttests she had performed. Southern District Judge Denny Chin relied on an affidavit fromFensterstock, who had reviewed each of Rubens’ claims of malpractice andsaid his adjudication of those claims would not have been different hadthe alleged malpractice not occurred. SUMMARY JUDGMENT Based almost entirely on that affidavit, Judge Chin granted summaryjudgment for Mason and his firm. “In light of Fensterstock’s affidavit,no reasonable jury could conclude that Rubens would have prevailed atarbitration,” Chin said. 2nd Circuit Judge Chester J. Straub and fellow panelists Jose A.Cabranes and Richard Wesley agreed the dismissal of Rubens’ claim wasbased on inadmissible evidence. “The questions to be resolved by the fact-finder in the legalmalpractice action … are whether the lawyer fell below the applicablestandard of care, and if so, whether a reasonable fact-finder in theunderlying suit would have arrived at a different result but for theattorney’s negligence,” Judge Straub wrote in Rubens v. Mason,03-9184. “The malpractice judge or jury must decide a ‘case within a case’ anddetermine what the result would have been absent the allegedmalpractice,” he said. Therefore, the “dispositive issue on summaryjudgment,” he concluded, becomes whether the defendants “coulddemonstrate through admissible evidence that Rubens was unable to provecausation.” The problem, Straub said, was that Fensterstock’s affidavit”addressed the subjective question of what Fensterstock himself wouldhave decided if Mason had performed exactly as Rubens now alleges heshould have performed.” For example, on Mason’s alleged failure to timely disclose expertwitnesses, Fensterstock said in his affidavit that he had reviewed theexpert reports and stated they “would not have changed my opinion.” “Fensterstock’s pronouncements in the subsequent malpractice suit aboutwhat he would have decided absent the allegedly negligent acts carryundue weight because he was the sole decision-maker, in essence, the’judge’ in the underlying arbitration,” Straub wrote. INADMISSABLE Moreover, he said, the admission of the affidavit “also violatedwell-settled law that testimony revealing the deliberative thoughtprocesses of judges, juries or arbitrators is inadmissible.” All told, Judge Straub said, the admission of the affidavit was in errorbecause “its limited probative value was substantially outweighed by itsprejudicial effect in that it had the potential to usurp thefact-finder’s responsibilities in the trial within the malpracticetrial.”

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