UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEFFREY A. BRIGGS, M.D.,
Plaintiff-Appellant,

v.

GILL COCHRAN, Esquire,
                                                                    No. 98-2439
Defendant-Appellee,

BOARD OF PHYSICIAN QUALITY
ASSURANCE,
Movant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-95-3499-L)

Argued: September 23, 1999

Decided: December 7, 1999

Before MURNAGHAN and MOTZ, Circuit Judges, and
GOODWIN, United States District Judge for the Southern District
of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Goodwin wrote the opinion,
in which Judge Murnaghan and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: John G. Gill, Jr., GILL & SIPPEL, Rockville, Maryland,
for Appellant. Shirlie Norris Lake, ECCLESTON & WOLF, Balti-
more, Maryland, for Appellee. ON BRIEF: Hamilton F. Tyler,
ECCLESTON & WOLF, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

GOODWIN, District Judge:

This legal malpractice action arises from the allegedly negligent
legal services provided by Gill Cochran to Dr. Jeffrey A. Briggs,
M.D., with respect to disciplinary complaints filed against Dr. Briggs.
The district court granted Cochran's motion for summary judgment.
We find that Briggs has failed to produce any evidence to establish
a causal connection between Cochran's conduct and the harm suf-
fered by Briggs. Accordingly, we affirm.

I.

Dr. Jeffrey A. Briggs, M.D., was a member of a successful
OB/GYN practice in Annapolis, Maryland. In 1992, two of his former
patients filed complaints against him with the Maryland Board of
Physician Quality Assurance (Board).1 The patients alleged that
Briggs had engaged in sexual and ethical misconduct.

The first patient, Patient A, claimed that she was sexually involved
with Briggs and that he attempted to impregnate her at least twice.
When Patient A became pregnant, Briggs performed diagnostic preg-
nancy tests on her without documenting the tests and referred her,
under a false name, to another physician for an abortion. Patient A
alleged that Briggs then prescribed post-operative medication for her
_________________________________________________________________
1 The Board investigates and disciplines physicians who violate the
Maryland Medical Practice Act, Md. Code Ann., Health Occ. § 14-101
et seq.

                    2
and inserted an Intra-Uterine Device (IUD) without documenting the
procedure. Finally, Patient A claimed that Briggs impregnated her a
second time and performed an after-hours, undocumented aspiration
of the fetus without her written consent.

The second patient, Patient B, alleged that Briggs used his position
as a gynecologist to manipulate her into a sexual relationship and then
abandoned her after impregnating her. Patient B further claimed that
Briggs failed to document his medical treatment of her and improp-
erly prescribed drugs for her use.

As the district court indicated, Briggs admitted that he engaged in
a sexual relationship with Patient A, who had been a patient of his
medical practice. He conceded that he impregnated Patient A and
referred her, under a false name, to another physician for an abortion.
He further stated that he performed after-hours procedures on Patient
A without documenting them. Finally, Briggs also admitted that he
aspirated a second fetus that Patient A claimed he fathered.

Briggs retained Gill Cochran to represent him before the Board.
After consulting other attorneys with prior experience before the
Board, Cochran advised Briggs to surrender his medical license vol-
untarily. Cochran believed that voluntary surrender of Briggs's
license would forestall the filing of formal charges by the Board and
would place Briggs in a stronger negotiating position. Following
Cochran's advice, Briggs voluntarily surrendered his medical license
on November 19, 1992.

One week later, Briggs discharged Cochran and retained new coun-
sel. His new counsel pursued a more aggressive defense strategy that
included requesting the Board to appoint an administrative prosecutor
and to file formal charges against Briggs. After several draft charges,
the Board formally charged Briggs with violating the Maryland Medi-
cal Practice Act (Act). The Act provides that the Board may repri-
mand a licensee, place a licensee on probation, or suspend or revoke
a license if the licensee "[i]s guilty of immoral or unprofessional con-
duct in the practice of medicine." Md. Code Ann., Health Occ. § 14-
404(a)(3).

Briggs attended several Case Resolution Conferences before a
committee of the Board in order to resolve the charges against him.

                    3
Briggs's counsel proposed that the Board suspend Briggs's license for
one year, with the last three months stayed as a result of Briggs's
cooperation with the Board. The Board rejected the proposal and sus-
pended Briggs's license for one year with no stay for cooperation.

II.

Briggs filed a legal malpractice action against Cochran, alleging,
inter alia, that Cochran's investigation of the charges and legal advice
that Briggs surrender his license constituted professional negligence.
Briggs argues that by surrendering his license, he lost the opportunity
to defend the charges adequately and vigorously and that based on his
surrender, the Board assumed that his patients' allegations were accu-
rate. Briggs maintains that the Board would not have suspended his
license, or would have imposed a lesser sanction, had Cochran pre-
sented a proper defense.

During discovery, Briggs's expert stated that Cochran's investiga-
tion and advice to Briggs were in fact inadequate. The expert, how-
ever, was unwilling to testify as to whether the Board would have
suspended Briggs's license had Cochran defended the case differ-
ently. Cochran moved for summary judgment, arguing that as a matter
of law, Briggs is unable to establish causation without expert testi-
mony. Briggs responded that causation in this case can only be
resolved by the "trial within a trial" method, which he argues does not
require expert testimony or any evidence of causation. The district
court determined that expert testimony was necessary for Briggs to
establish causation and therefore entered summary judgment for the
defendant. We agree that summary judgment was appropriate for a
more basic reason. Briggs failed to produce any evidence that Coch-
ran's negligence was a proximate cause of the one-year suspension of
Briggs's license.

III.

The standard of review on appeal from an order granting a motion
for summary judgment is de novo. Halperin v. Abacus Tech. Corp.,
128 F.3d 191, 196 (4th Cir. 1997). Summary judgment is appropriate
only "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there

                     4
is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding
whether there is a genuine issue of material fact, the evidence of the
non-moving party is taken as true and all justifiable inferences must
be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Halperin, 128 F.3d at 196.

IV.

A.

To establish a legal malpractice claim against Cochran, Briggs
must prove the following: (1) that he employed Cochran; (2) that
Cochran neglected a reasonable duty; and (3) that Cochran's neglect
proximately caused a loss to Briggs. Maryland Cas. Co. v. Price, 231
F. 397, 401 (4th Cir. 1916); Flaherty v. Weinberg, 492 A.2d 618, 624
(Md. 1985); Kendall v. Rogers, 31 A.2d 312, 315 (Md. 1943). In
Maryland, as in other states, an expert is generally required to testify
about an attorney's standard of care and its breach in an individual
case. Hooper v. Gill, 557 A.2d 1349, 1351 (Md. Ct. Spec. App. 1989).
Briggs's employment of Cochran is undisputed, and Briggs provided
expert testimony concerning Cochran's standard of care and its
breach. The issue on appeal concerns causation.

B.

Briggs's legal malpractice action cannot survive summary judg-
ment if he is unable to present evidence of a causal connection
between Cochran's breach of duty and the damages suffered by
Briggs. See Stone v. Chicago Title Ins. Co. of Maryland, 624 A.2d
496, 500-02 (Md. 1993); Fairfax Sav., F.S.B. v. Weinberg & Green,
685 A.2d 1189, 1196 (Md. Ct. Spec. App. 1996). Legal malpractice
actions are governed by the same principles that apply in other negli-
gence actions. Maryland Cas., 231 F. at 402-03. Therefore, Briggs
"must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of [Cochran]
was a cause in fact of the result. A mere possibility is not enough."
W. Page Keeton et al., Prosser & Keeton on Torts 269 (5th ed. 1984).

                     5
1.

Cochran argues that Briggs cannot establish causation in the
absence of an expert willing to testify that the Board would have left
Briggs's license intact, or would have imposed a lesser sanction, if
Cochran had defended the case differently. It is not, however, the lack
of expert testimony that compels us to affirm the decision of the dis-
trict court. Although we recognize that many legal malpractice cases
require expert testimony to establish causation, see, e.g., Colucci v.
Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C. , 515 N.E.2d 891
(Mass. App. Ct. 1987) (finding expert testimony necessary to estab-
lish that, in absence of attorney's negligence, plaintiff would likely
have obtained temporary restraining order from three-judge panel);
2175 Lemoine Ave. Corp. v. Finco, Inc., 640 A.2d 346 (N.J. Super.
Ct. App. Div. 1994) (finding that expert testimony is necessary to
show that in the absence of attorney negligence, the complex com-
mercial transaction could have been legally structured), we do not
hold that expert testimony is necessary to prove causation in this case.
Our concern is that Briggs has failed to offer any evidence of any
kind that affords a reasonable basis for the conclusion that Cochran's
negligence was a proximate cause of the one-year suspension of
Briggs's license. Instead of producing such evidence, Briggs submits
that the result of a "trial within a trial" may be a substitute for proof
of causation.

2.

Under the "trial within a trial" method,2 a plaintiff in a legal mal-
practice action is given the opportunity to litigate before the malprac-
tice jury the underlying case as it would have been tried in the
absence of the attorney's negligence. Briggs invokes this model as
follows: (1) the jury would hear the patients' case against Briggs as
the Board would have heard it had Cochran presented a proper
defense; (2) taking the place of the Board, the jury would decide what
sanctions, if any, Briggs should receive for his sexual and ethical mis-
conduct. If the jury would decide not to suspend Briggs's license, or
decide to impose a lesser sanction, Briggs argues that one should then
_________________________________________________________________
2 This method is also referred to as the "suit within a suit" or "case
within a case" model.

                    6
conclude that the suspension actually imposed by the Board was a
proximate result of Cochran's negligent representation.

Such a conclusion requires a cognitive leap over the fundamental
principle that causation must be proven. In these circumstances, it is
simply illogical to infer that any difference in sanctions imposed by
a jury and those imposed by the Board would necessarily result from
the difference in the presentation of Briggs's defense. Such an infer-
ence is raw speculation that ignores the normal variation inherent in
decisions made by juries and other adjudicatory bodies.

Although Maryland has used the "trial within a trial" in a recent
legal malpractice case, that case involved circumstances that do not
implicate this analytical problem. In Thomas v. Bethea, 718 A.2d
1187 (Md. 1998), the client sued his attorney for malpractice, alleging
that the attorney negligently recommended an inadequate settlement.
Id. at 1188-89. The Court of Appeals of Maryland determined that a
"trial within a trial" was the appropriate method for calculating dam-
ages by determining whether the client would have prevailed in the
underlying case. Id. at 1197. The malpractice jury decides what the
client should receive from adjudication of his underlying claim, and
the client's damages are the difference between that amount and the
amount accepted at settlement. Id.

A "trial within a trial" is arguably appropriate in cases like Thomas
in which the attorney's negligence completely forecloses the client's
claim from proceeding to adjudication. Causation is clear in such
cases -- the attorney's breach of duty triggers the complete legal clo-
sure or loss of the client's claim or defense. The client therefore uses
the "trial within a trial" not to establish loss causation, but rather to
prove what, if any, harm arose from the loss of his claim. If the "trial
within a trial" jury determines that the claim was meritorious, it then
decides the damages. If the jury finds that the claim lacked merit, the
attorney's negligence could not have harmed the client.

We recognize that there is some authority for the proposition that
a "trial within a trial" is a substitute for proving causation in all legal
malpractice cases. See, e.g., Chocktoot v. Smith, 571 P.2d 1255, 1257
(Or. 1977) (en banc). However, when causation is not patent, Mary-
land law is clear that a plaintiff in a legal malpractice case must affir-

                     7
matively prove that the attorney's negligence proximately caused a
loss to the client.3 See, e.g., Stone, 624 A.2d at 500-02; Flaherty, 492
A.2d at 624; Fairfax Sav., 685 A.2d at 1196.

V.

In the absence of any evidence that Cochran's negligence caused
the Board's suspension of Briggs's license, we conclude that the law
of Maryland would not have a jury second guess the Board's decision
that Briggs's reprehensible conduct deserved a one-year suspension of
his license. We affirm the grant of summary judgment.

AFFIRMED
_________________________________________________________________
3 Briggs relies upon Chocktoot v. Smith, 571 P.2d 1255 (Or. 1977) (en
banc), and Pickett, Houlon & Berman v. Haislip , 533 A.2d 287 (Md. Ct.
Spec. App. 1987), in arguing that Maryland law supports the use of a
"trial within a trial" in this case. Contrary to Briggs's assertion, the
Pickett court did not adopt the premise in Chocktoot that a "trial within
a trial" is appropriate for establishing causation. Rather, the court cited
Chocktoot in support of its assertion that juries are capable of determin-
ing the damages in a legal malpractice case when the negligence con-
cerned an issue decided by a court rather than by a jury. Pickett, 533
A.2d at 297.

                    8
