Firm Loses Hospital Bed But Wins Legal Malpractice Claim: In September 2013, Louis Nicassio was injured when the hospital bed he rented to recover from back surgery collapsed under him, and he hired Gregory Hopper of the law firm Bekman, Marder & Adkins, LLC (“BMA”) to represent him in a products liability claim against the bed rental company. BMA took custody of the bed but, at some point later on, lost it.
On October 13, 2016, Mr. Hopper and Mr. Nicassio exchanged emails in which Mr. Hopper explained that the bed was lost. He also explained that he didn’t believe that BMA’s negligence was the cause of the bed’s disappearance, but that Mr. Nicassio might have a malpractice claim against BMA and might wish to speak with another attorney. Mr. Nicassio did not seek the advice of another attorney at that time, but instead moved forward with his products liability case with BMA as his counsel.
In January 2019, BMA withdrew from the case and Mr. Nicassio retained new counsel who determined that the case had been compromised severely by the loss of the bed. Mr. Nicassio then entered into an agreement with the bed rental company to undertake a high-low arbitration, after which the arbitrator found that the only appropriate remedy for the spoliation of the bed was dismissal of Mr. Nicassio’s claim against the bed rental company.
Several days before the arbitration decision was issued, Mr. Nicassio, through his new counsel, filed a malpractice claim against BMA in the Circuit Court for Baltimore. He sought damages for the loss of the bed and the dismissal of his products liability case. BMA moved to dismiss the claim as barred both by the three-year statute of limitations and by the doctrine of collateral estoppel. The circuit court granted the motion on limitations grounds and dismissed Mr. Nicassio’s malpractice suit. Mr. Nicassio filed an appeal.
In its unreported opinion dated March 28, 2023, the Appellate Court of Maryland stated: “First of all, there does not actually appear to be a dispute as to the operative facts. Mr. Nicassio cannot deny that he knew that the bed was lost as of October 13, 2016 at the latest. He can, and does, claim that he did not yet understand at that time that he had suffered some harm as a result. But his October 12 email suggests otherwise—in that email, he asked not whether the loss of the bed would harm he case but rather “[h]ow much of a detriment” it would be “on the case.” (Emphasis added.) Second, and more importantly, even if there were some dispute about what Mr. Nicassio understood as of October 13, 2016, there was no material dispute because the trial court was not required to find that Mr. Nicassio was on actual notice of his injury to determine the accrual date for his cause of action. The court needed only to find that Mr. Nicassio was on inquiry notice of his injury, an objective standard. In other words, it doesn’t matter what Mr. Nicassio understood and when he understood it. What matters is whether the information in the October 13, 2016 email would have made a reasonable person “suspicious” enough “to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge” of their injury. Frederick Rd., 360 Md. at 98–99 (citation omitted). And there can be no dispute on this record that it would … we agree with the circuit court that, viewed together, BMA’s disclosure of both the loss of the bed and the potential malpractice claim would make a reasonable person suspicious enough to seek the advice of another attorney.”
“So we agree with the circuit court that as of October 13, 2016, Mr. Nicassio was on inquiry notice of his claim and had a duty “to make inquiries about the quality or bona fides of the services received,” even under the continuation of events doctrine. Id. at 98. And because seeking such advice would have revealed to Mr. Nicassio at that time that he had a malpractice claim against BMA, his accrual date wasn’t tolled, and his cause of action accrued on October 13, 2016.”
“In this case, though, nobody, least of all Mr. Nicassio, had any doubt on October 13, 2016 about whether the loss of the bed—the piece of evidence on which Mr. Nicassio’s entire products liability case rested—would affect the ultimate outcome of the Underlying Litigation. Once the bed was lost, the only outstanding question was how much harm the loss would do to Mr. Nicassio’s products liability claim. And although it’s true that the precise answer wasn’t known until December 6, 2021, the damage had been done, and his claim accrued, long before.”
Source Nicassio v. Bekman, Marder & Adkins, LLC, No. 449 September Term, 2022.
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