ANCHORAGE, Alaska (Legal Newsline) - An Alaska woman whose local attorney farmed out her medical malpractice lawsuit to a Michigan law firm lost her bid to revive the case after the Alaska Supreme Court said it should be dismissed because of missed deadlines.
Lauren Bridges gave birth to an infant at Fairbanks Memorial Hospital in July 2010. The baby was diagnosed with a hypoxic brain syndrome due to oxygen starvation and later developed microcephaly, or an abnormally small head.
In January 2017 she sued the hospital, the nurse-midwife who helped deliver the baby and others for malpractice. Six months later the court gave Michigan attorneys with McKeen Associates permission to appear pro hac vice - or to appear in court even though they weren’t licensed to practice in Alaska.
A year later, the nurse-midwife and his medical group moved for summary judgment after they filed an affidavit from an expert stating he didn’t deviate from the standard of care. Bridges’ lawyers missed the deadline for filing an opposition and in June 2018 the court granted them summary judgment.
Meanwhile, other defendants complained that Bridges had failed to meet a March deadline to provide responses to their requests for evidence and even when they did, the discovery was “severely deficient.” They also sought summary judgment, which the court granted in July. A final judgment was entered in October 2018. The court noted that Bridges had repeated violated procedural rules requiring her local lawyer to sign pleadings with the court.
Bridges asked for reconsideration under Alaska’s Rule 60(b), which allows courts to reverse judgments due to “mistake, inadvertence, surprise or excusable neglect.” Her lawyers blamed clerical errors and said they should be excused because they were also waiting for notarized copies of their expert reports.
If that argument failed, Bridges said she was entitled to relief under Rule 60(b)(6), which allows judges to reverse rulings “for any other reason justifying relief.”
At a hearing in January 2019, attorney Brian McKeen told the judge, without being sworn in, that he wasn’t familiar with Alaska’s procedural rules and the local counsel hadn’t alerted the Michigan lawyers about deadlines. He described his colleague Richard Counsman as “essentially a single parent” who was responsible for his daughter’s wedding preparations the previous August and said he’d gone through three different legal assistants because “it is extremely difficult to hire good paralegal talent” in Detroit.
Finally, he said it was a “considerable, you know, logistical challenge” in getting plaintiff experts’ reports and defense lawyers refused an expected “courtesy extension.” The slogan on McKeen's website reads "It's about justice."
A couple of months later, the judge granted Bridges’ motion under Rule 60(b)(6) “because of the injustice that will result if this case is not allowed to proceed on the merits.” The judge also ordered a hearing for sanctions against Bridges’ attorneys.
The defendants appealed, and in a Jan. 21 decision, the Alaska Supreme Court restored the summary judgment against Bridges. The mistakes by Bridges’ lawyers were inexcusable, the court ruled, and because the provisions of Rule 60(b)(1) and 60(b)(6) are mutually exclusive, the court couldn’t give relief under the second clause because the plaintiff lawyers hadn’t completely abandoned their client.
Bridges argued that the mistakes by her lawyers were excusable, and if not, she was entitled to relief under an “injustice exception” in Rule 60(b).
“Neither argument is persuasive,” the appeals court said. McCool’s comments at the hearing were not under oath and therefore not admissible as evidence, the court began. Even if they were accepted as evidence, the court said, there is no excuse for Bridges’ local counsel failing to notify the Michigan lawyers of an impending deadline. If her lawyers had intentionally violated the deadline to buy time for obtaining expert reports, the court went on, that “is simply no excuse at all.”
Citing Alaska decisions as well as how a majority of federal appeals courts have interpreted the equivalent federal rules of procedure, the state Supreme Court said that for relief under the catch-all Rule 60(b)(6), “gross attorney neglect must rise to the level of abandoning the client.” To allow it simply because the attorney made mistakes or missed deadlines, the court ruled, would run afoul of Rule 60(b)(1) allowing relief only for “excusable” neglect.