United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
Jerome Want ("plaintiff' or "Want"), pro
se, has filed a six-count complaint alleging
malpractice and fraud by his former attorney Steven
Mark Frei ("Frei"), and Frei's law firm
Sickles, Frei & Mims, P.C., (collectively with
Frei, "defendants"), arising out of Frei's
representation of Want in a personal injury action filed in
the Arlington County Circuit Court. Plaintiff seeks damages
of at least $2.59 million plus prejudgment interest at a rate
of 12%. Compl. ¶¶ 16-23. Defendants have filed a
Motion for Summary Judgment ("Motion"), to which
plaintiff has filed a response. The Court finds that oral
argument would not aid the decisional process. For the
reasons that follow, defendants' motion will be granted.
complaint, Want alleges that on January 28, 2009, he visited
a 7-Eleven in Virginia, where he slipped and fell on snow and
ice that had accumulated outside the store's entrance.
Def. Memo. Ex. 1 ¶ 3. Want hired two lawyers, Jeffrey
Downey ("Downey") and John Wilson
("Wilson"), who filed a complaint against 7-Eleven,
Inc., and 7-Eleven Virginia, Inc., on March 5, 2010, in the
Arlington County Circuit Court alleging that the store had
negligently maintained its property by failing to keep it
clear of snow and ice. Def. Memo. Ex. 2. The complaint sought
$389, 000 in damages, plus costs and interest. Id.
at 4. Two months later, Downey and Wilson withdrew from their
representation of Want. Def. Memo. Ex. 1 ¶ 4.
2010, Want hired defendants to represent him in the slip and
fall action, with Frei taking the lead. Def. Memo. Ex. 1
¶ 5. Want informed Frei that his treating physician, Dr.
John K. Starr ("Dr. Starr"), diagnosed him with
significant lower back injuries, requiring spinal surgery and
long-term therapy. Id. at ¶ 6. Want told both
Dr. Starr and Frei that he had no history of back pain before
the slip and fall. Id. at ¶¶ 6, 11, 12.
According to Want, Dr. Starr was therefore prepared to
testify that the accident caused his back problems.
Id. at ¶ 6. Based on this representation, Frei
successfully moved the court for an increase in the damages
to $ 1.25 million. Id. at ¶¶ 7-8.
discovery, 7-Eleven obtained medical records from the
Virginia Hospital Center ("VHC") that Want had not
disclosed to 7-Eleven, Frei, and Dr. Starr. Def. Memo. Ex. 1
¶¶ 10-12. These records showed that in January
2008, Want visited the VHC multiple times complaining of
lower back pain. [Dkt. 62-3] at 7-12. He rated his pain at
that time to be a 3 on a scale of 1-10. Id. at 7.
Those records show that Want told VHC doctors that he had
back pain "flare ups every 2-3 [years]."
Id. at 10. For at least four to five years before
that visit, he reported pain on an "almost daily
basis." Id. The records showed that his back
problems first began almost 30 years earlier, after Want was
involved in a car accident. [Dkt. 62-6] at 1.
March 23, 2011, 7-Eleven presented those records to Want and
Frei during Want's deposition. Def. Memo. Ex. 1 ¶
10. The next day, Frei passed them along to Dr. Starr to
determine whether they would alter his conclusion that the
slip and fall was the source of Want's injuries.
Id. at ¶ 11. The day after that, Dr. Starr
replied that he would no longer be able to offer an opinion
on causation. Id. at ¶ 12. By then, the window
for identifying expert witnesses in the circuit court action
had closed, meaning that it was too late to find a new expert
witness to support Want's negligence claim. Id.
at ¶ 13. Frei counseled Want that rather than proceeding
to trial without an expert witness, it would be in his
interest to voluntarily dismiss the action and then refile it
if he could locate another expert. Id. at ¶ 14.
Although the original statute of limitations had run by March
2011, under Virginia rules Want would have six months to
refile the lawsuit. See Va. Code § 8.01-229(E)(3).
receiving this advice, Want agreed to voluntarily dismiss the
personal injury action. Def. Memo. Ex. 10. Frei filed the
dismissal motion only as to 7-Eleven, Inc., inadvertently
omitting 7-Eleven Virginia, Inc. Def. Memo. Ex. 1 ¶ 7.
Frei eventually caught the mistake, and by orders entered on
April 27, 2011, and June 24, 2011, the cases against both
defendants were voluntarily dismissed. Id.
20, 2011, at 1:56 p.m., Want sent Frei an email that read,
"Be advised, that I have filed a complaint against you
and your firm with the State Bar[.] I will not stop
there." Def. Memo. Ex. 13. At 4:30 p.m., Frei replied,
"I am sorry to read this but it seems consistent with
the way you have elected to treat virtually everyone
associated with your case, including doctors. Since you have
complained to the Bar Association regarding my conduct I can
obviously no longer represent you. Please advise me ASAP
where you would like your file sent." Def. Memo. Ex. 14.
did not reply until Monday, August 15, 2011, when he wrote,
"Kindly forward my entire file... to Attorney Michael
Epstein... so that he can determine if he will take the case.
Please do immediately [sic]. I strongly recommend that you do
nothing to dissuade him." Def. Memo. Ex. 15. On August
23, 2011, Frei complied by sending Want's file to
Epstein. Def. Memo. Ex. 16. In the cover letter, Frei
specifically highlighted the dates by which Want would have
to refile his personal injury action to avoid the action
becoming time barred. Id. As of August 23, Want
still had about two months to refile against 7-Eleven, Inc.,
and nearly four months to refile against 7-Eleven Virginia,
Inc. See id.
is no evidence in the record of any further interaction
between Want and Frei until Want filed this federal civil
action on June 2, 2016, which was transferred to this
district from the District of Maryland on June 14, 2016. On
August 8, 2016, this Court issued a scheduling order setting
the Final Pretrial Conference for December 15, 2016. That
Order required the parties to "file on or before the
final pretrial conference the Rule 26(a)(3) disclosures and a
list of the exhibits to be used at trial, a list of the
witnesses to be called at trial, and a written stipulation of
uncontested facts." [Dkt. 16] (emphasis omitted). The
Order explicitly warned the parties, in underlined text, that
"[e]xhibits not so disclosed and listed will not be
permitted at trial except for impeachment or rebuttal, and no
person may testify whose identity, being subject to
disclosure or timely requested in discovery, was not
disclosed in time to be deposed or to permit the substance of
his knowledge and opinions to be ascertained."
Id. (emphasis omitted). Despite these warnings, Want
failed to appear for the final pretrial conference and to
date has not filed either a witness list or exhibit list.
have moved for summary judgment, arguing that Want's
fraud claim is time barred and that his legal malpractice
claims fail because he has not produced any admissible
evidence to prove that defendants fell short of the duty of
care or that any breach of that duty prevented Want from
successfully pressing his claim.