In September 2016, Melissa Trent had surgery on her left knee to install a “Sigma” knee replacement device, which was manufactured and sold by “DePuy Orthopaedics, Inc.” In addition to Sigma, DePuy also sells a different knee replacement called “Attune” that had not been used for Trent’s surgery. Her surgeon used a DePuy “affixing cement” to secure the device. After the surgery, the cement extruded from the sides of the joint and failed to hold the Sigma device in place. As a result, Trent experienced swelling and pain. She had difficulty walking, sleeping, and maintaining her home. She also missed work. Despite additional surgery to correct the damage, the Sigma device detached from Trent’s knee. She lost support in the knee joint, experienced loss of balance and repeated falls, and developed “severe hip and back pain.”
In October 2017, Trent had a third and final surgery to install a device called “Genesis II,” which was manufactured by a different company, Smith & Nephew, and entirely replaced her knee. Trent’s pain decreased but some effects of the earlier surgeries never subsided. She continued to experience “a limp, . . . hip pain, and constant general discomfort.”
On August 6, 2018, Trent executed a one-page retainer agreement with OnderLaw. Although Trent’s surgeries had involved the Sigma system, the agreement provided that OnderLaw would represent Trent “in all claims for damages arising out of the use of a [DePuy] Attune knee replacement system.” Accordingly, the parties’ retainer agreement contained a condition precedent to the parties’ relationship moving forward in that OnderLaw would not represent Trent to any degree if the device at issue was not an Attune device. OnderLaw informed Trent that OnderLaw
would evaluate her case and then contact her to advise her about the viability of her claim.
Trent provided OnderLaw with all the records she possessed relating to her claim by September 2018.
On February 2, 2021, nearly two years and six months after signing the retainer agreement, Trent received a letter from OnderLaw informing her that the Smith & Nephew device used in her third surgery “was not a covered device” and that “OnderLaw was not interested in pursuing her claim.” By that time, however, the statutory deadline for Trent to bring her claims against DePuy had passed. Trent then filed a claim for legal malpractice. After a hearing, the circuit court ruled that the parties had “a written agreement that limit[ed] the scope of representation” to “claims against the manufacturers and promoters of DePuy Attune Knee Replacement Systems.” The circuit court acknowledged that attorneys owe a duty of care to their clients but ruled that the terms of the retainer agreement “foreclose[d] claims as to the general duty to advise” Trent. The circuit court thus sustained OnderLaw’s demurrer. Trent appealed.
In its Opinion dated June 25, 2024, the Court of Appeals of Virginia held: “Attorneys have a duty to “reasonably infor[m a client] about the status of a matter” and “of facts pertinent to the matter.” Va. Rules of Pro. Conduct, Rule 1.4. As such, while OnderLaw is not obligated to file suits against tortfeasors not contemplated in the parties’ agreement, OnderLaw is obligated to inform Trent in a timely manner of pertinent facts that become known to OnderLaw that affect the viability of the claims being investigated by OnderLaw (such as the device being Sigma rather than Attune, thereby effectively ending their relationship) … Accordingly, these alleged facts are clear, and this Court finds, as a matter of law, they are sufficient to survive the demurrer. The circuit court erred when it sustained the demurrer to the second amended complaint, because Trent adequately pleaded that OnderLaw breached a duty arising from their
attorney‑client relationship by failing to timely disclose pertinent facts about her claim.”
Source Trent v. OnderLaw, LLC, Record No. 0810-23-4.
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