NEW YORK (CN) – The 2nd Circuit allowed a woman to proceed with her legal malpractice case on the ground that the lower court had decided the wrong issue for the second time.
Barbara Rubens sued the law firm of Mason, Ketterman & Morgan after losing an arbitration hearing over her claim that the Dalkon Shield birth-control device caused her to contract pelvic inflammatory disease in the 1970s.
Judge Calabrisi ruled that the lower court improperly granted summary judgment to the law firm for the second time. In the original case, the lower court’s decision was based on testimony that sought to reveal the arbitrator’s thought processes.
This time, Calabrisi ruled that the lower court judge “focused unnecessarily on negligence while failing to address causation” of Rubens’ loss.
Rubens alleged four individual acts of negligence against the law firm, including the failure to call the proper expert witnesses. Calabrisi ruled that to survive summary judgment, Rubens must prove that one of those acts of negligence caused her to lose the case.