Thomas C. Patton, Lake Oswego, Oregon. John A. Sterbick and F. Hunter MacDonald, Tacoma, Washington, Attorneys for Plaintiffs.
Bruno J. Jagelski and Carl Burnham, Jr., Yturri Rose LLP, Box S, Onario, Oregon, Attorneys for Defendants.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Allen and Lois Hamilton ("the Hamiltons" or "Plaintiffs") filed an action alleging legal malpractice by Alan J. Schmeits, Esq. and the law firm Silven, Schmeits & Vaughan, P.C. (collectively, "Defendants") based on Defendants' legal representation of Plaintiffs in an underlying property dispute lawsuit brought against Plaintiffs by their then-neighbors. In the underlying case, Plaintiffs filed counterclaims. This Court previously granted partial summary judgment in favor of Defendants and dismissed the claims of Plaintiffs alleging malpractice relating to all of the claims and counterclaims in the underlying lawsuit, with the exception of the counterclaims asserted by Plaintiffs for trespass causing damage to property ("property trespass") and trespass causing personal injury ("personal injury trespass"). Defendants now move for summary judgment against all claims of legal malpractice relating to their prior representation of Plaintiffs in those two trespass counterclaims. Dkt. 120. Defendants also move, in the alternative, for partial summary judgment with regard to a portion of Plaintiffs' alleged damages. For the reasons discussed below, Defendants' motions are denied.
A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge... ruling on a motion for summary judgment, " the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations and citation omitted).
Defendants represented the Hamiltons in their defense of a quiet title action brought in August 2006 by their then-neighbors, Edward and Patricia Elms, as Trustees of the Elms Family Trust ("Elms"), and in prosecuting various counterclaims. Relevant to this matter are the property trespass and personal injury trespass counterclaims. The trespass counterclaims alleged that Mr. Elms sprayed the chemical pesticide 2, 4-D onto both a disputed strip of land on which the Hamiltons and Elms both claimed title and onto property that undisputedly belonged to the Hamiltons. The trespass counterclaims alleged that the chemical intrusion caused the Hamiltons to become ill and suffer personal injury. The trespass counterclaims further alleged that the chemical intrusion damaged the Hamiltons' property and garden and rendered the property uninhabitable.
The Hamiltons assert that at the time of the chemical intrusion, the pesticide exposure caused them to suffer from nausea, dizziness, rashes, watering and burning eyes, and hot flashes. The Hamiltons' relatives and neighbors also allegedly suffered immediate symptoms as a result of the chemical spraying. Mr. Hamilton was particularly sensitive to chemical exposure because of his history of prior chemical exposure and resulting illness.
The Hamiltons twice contacted the police to report the chemical intrusion, on June 30, 2006 and July 3, 2006. The first police report indicates that the officer herself smelled chemicals and that the chemicals caused the officer's eyes to water. Declaration of John A. Sterbick, Ex. 7. Dkt. 141-1. It further describes that Mrs. Hamilton was crying and that she told the police officer that Mr. Hamilton was sensitive to chemicals because of a previous chemical exposure "that nearly killed him" and that Mrs. Hamilton was "concerned [Mr. Hamilton] would become ill again." Id. The second police report documented that the chemical incursion extended beyond the disputed strip of land and onto the Hamiltons' property. Id., Ex. 8. Dkt. 141-2.
On July 16, 2006, Mrs. Hamilton contacted Oregon's poison control center. Sterbick Decl., Ex. 10. Dkt. 142-2. She reported dizziness, nausea, and headache as a result of the pesticide spraying of her garden area by Mr. Elms. Mrs. Hamilton inquired whether she should see a doctor. The poison control center recommended that the Hamiltons vacate the property, change clothes, and see a doctor if the symptoms persist. On July 17, 2006, Mrs. Hamilton reported to the poison control center that she visited a medical clinic but was denied treatment due to an unpaid medical bill. Id. On July 21, 2006, the Hamiltons had soil samples collected and tested, which showed abnormally high levels of 2, 4-D. Sterbick Decl., Ex. 11. Dkt. 143-1.
In August 2006, the Elms filed suit to quiet title to the disputed strip of land. The Hamiltons filed counterclaims. The Elms filed dispositive motions against the Hamiltons' counterclaims. To assist in responding to the motions, Defendants requested the Hamiltons seek medical treatment, gather medical reports, and locate medical and other experts. The Hamiltons, however, did not seek medical treatment (other than the previously unsuccessful visit to a clinic), provide medical reports, or locate medical or other experts. In opposition to the summary judgment motion, Defendants filed the affidavit of Allen Schmeits and attached exhibits. The affidavit and exhibits of Mr. Schmeits were not accepted by the court, with the exception of three exhibits, because they were legally deficient. Approximately 16 days after the summary judgment response deadline, Defendants filed an affidavit of the Hamiltons. The affidavit of the Hamiltons, however, was not accepted by the court because it was not timely filed. Defendants did not file any other affidavits on behalf of the Hamiltons.
The state court heard argument on the summary judgment motions on August 22, 2007. Jagelski Decl. Ex. 3. Dkt. 121-3. At the summary judgment hearing, the judge noted that the untimely affidavit of the Hamiltons, even if admissible, did not state anything about suffering injury or explain the history of the property and the boundary dispute. Sterbick Decl. Ex. 25. Dkt. 150-1. From the bench, the court granted summary judgment against the trespass counterclaims because there was no evidence of injury in the record. Id.; Jagelski Decl. Ex. 3. Dkt. 121-3. Ultimately, the court dismissed all of the Hamiltons' counterclaims.
In approximately June 2010, Mrs. Hamilton discovered lumps, which were excised. Those lumps were diagnosed as Non-Hodgkin's lymphoma in February 2011.
In response to the current motion, the Hamiltons submit expert medical testimony linking their emotional and psychological injuries to the chemical intrusion and linking exposure to 2, 4-D with increased risk of lymphohematopoietic cancers. Sterbick Decl. Exs. 12-15. Dkts. 143-45. The Hamiltons also submit expert legal testimony opining that Defendants' breached the standard of care in representing the Hamiltons in the prosecution of the trespass counterclaims. Declaration and Report of Bennett J. Wasserman. Dkt. 153.
A. Motion for Summary Judgment ...