MIAMI (Legal Newsline) - A Florida man who was paralyzed from the neck down after spinal surgery sued his surgeon, the nursing home where he was treated after surgery and the company that made the device that injured his spinal cord. But his attempt to sue his lawyers for botching this final case ran afoul of the arbitration agreement he signed before hiring them.
Florida’s Third District Court of Appeal ordered Winston Ramkelawan and his wife to arbitrate their dispute with lawyers at Morgan & Morgan, a large Miami plaintiffs’ firm. Taking a strict line on agreements that are frequently criticized as being coercive or unfair to legally unsophisticated consumers, the appeals court said the Ramkelawans were given adequate notice to hire an independent lawyer for advice before agreeing to arbitrate any disputes with Morgan & Morgan.
“Given the plain and unambiguous language of the instant arbitration provision, the parties manifestly agreed to arbitrate appellants’ malpractice claim against their former counsel,” the court ruled in an Oct. 20 decision.
The Ramklawans sued their attorneys in state court on Oct. 5, accusing them of legal malpractice for failing to properly advise them about the risk of rejecting settlement offers from Globus Medical, which made the artificial cervical disk involved in Ramkelawan’s injury. A federal judge dismissed his lawsuit after striking the only expert opinion that a defective implant caused his injury.
Morgan & Morgan didn’t respond to a request for comment. The legal malpractice lawsuit against the firm represents at least the fourth time Ramkelawan has sued over his catastrophic injury, which occurred after he underwent surgery for neck pain in 2015. Shortly after he emerged from surgery, he felt a pop and was paralyzed from the neck down. Later diagnosis found the disk had ejected into his spinal cord.
The Ramkelawans first sued Dr. Barry Kaplan in 2017, claiming he shouldn’t have implanted the device because Ramkelawan was an unsuitable candidate. They settled that case on undisclosed terms in October 2017, then two months later sued the nursing home where he received care after the injury, claiming it improperly treated pressure sores and infections that racked up nearly $3 million in medical expenses.
They settled that lawsuit in July 2018. Meanwhile they sued Globus, blaming the company for the same injuries. Globus unsuccessfully sought depositions taken in those earlier cases to support its argument others were responsible for Ramkelawan’s injuries. The court rejected that request, determining the depositions were protected attorney work product.
In pretrial motions, Globus’s experts offered opinions that mirrored Ramkelawan’s previous claim that his surgeon had committed medical malpractice by implanting the disk in an inappropriate patient.
The Ramkelawans offered their own experts to testify that the Globus device was defectively designed and manufactured. But the trial judge struck the causation opinion of plaintiff expert Dr. John Jarrell, eliminating an essential element of the case. In a deposition, Jarrell admitted that while he considered the device defective, he hadn’t tested it to determine if it could have caused Ramkelawan’s injuries.
In his lawsuit against attorneys at Morgan & Morgan, Ramkelawan said he declined “multi-million dollar settlements” based on their advice. He said they failed to tell him there was “a case-dispositive motion” pending and that it would be unacceptably risky to proceed to trial. He also accused his lawyers of hiring the wrong expert witnesses and failing to protect him against losing the case through a final judgment.
Unfortunately for the plaintiffs, Morgan & Morgan’s arbitration agreement states Ramkelawan agreed to resolve “any and all disputes” through binding arbitration. Ramkelawan argued the agreement violated Florida Bar rules requiring lawyers to advise their clients to seek independent legal advice before signing. But the Morgan & Morgan agreement states in bold type: “I am aware I should consult with another lawyer about the advisability of making an agreement with mandatory arbitration requirements” and by signing, “I give up (waive) my right to go to court.”