       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


TIRESE JOHNSON, et. al.,           :
                                   :
          Plaintiffs,              :            C.A. No: N13C-01-119 RBY
                                   :
      v.                           :
                                   :
PREFERRED PROFESSIONAL             :
INSURANCE COMPANY, et. al.,        :
                                   :
          Defendants.              :
__________________________________ :
                                   :
MASON E. TURNER JONES, JR., and    :
PRICKETT, JONES & ELLIOTT, P.A.,   :
                                   :
          Third-Party Plaintiffs,  :
                                   :
      v.                           :
                                   :
KENNETH M. ROSEMAN; KENNETH        :
ROSEMAN, P.A.; DANIEL MCCARTHY; :
MINTZER SAROWITZ ZERIS LEDVA & :
MEYERS, LLP; and PHYLLIS JAMES,    :
M.D.,                              :
                                   :
          Third-Party Defendants.  :

                           Submitted: July 10, 2014
                           Decided: August 21, 2014

  Upon Consideration of Third-Party Defendants’, Kenneth M. Roseman and
                Kenneth Roseman, P.A., Motion to Dismiss
                               GRANTED

                                   ORDER
Francis J. Murphy, Esquire, Murphy & Landon, Wilmington, Delaware for
Plaintiffs.

William J. Cattie, III, Esquire, Rawle & Henderson, LLC, Wilmington, Delaware
for Defendant Preferred Professional Insurance Company.

John A. Elzufon, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington,
Delaware for Defendant Michelle Montague.

Colm F. Connolly, Esquire, Morgan Lewis & Bockius, LLP, Wilmington,
Delaware for Defendants/Third-Party Plaintiffs Mason E. Turner, Jr. and Prickett,
Jones & Elliott, P.A.

Allison L. Texter, Esquire, Swartz Campbell, LLC, Wilmington, Delaware for
Third-Party Defendants Kenneth M. Roseman and Kenneth Roseman, P.A.

Pro Hac Vice Jeffrey McCarron, Esquire, Swartz Campbell, LLC, Philadelphia,
Pennsylvania for Third-Party Defendant Kenneth M. Roseman and Kenneth
Roseman, P.A.

Kevin J. Connors, Esquire, Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware for Third-Party Defendants Daniel McCarthy and Mintzer
Sarowitz Zeris Ledva & Meyers, LLP.

Pro Hac Vice Eric A. Weiss, Esquire, Marshall Dennehey Warner Coleman &
Goggin, Philadelphia, Delaware for Third-Party Defendants Daniel McCarthy and
Mintzer Sarowitz Zeris Ledva & Meyers, LLP.

Leroy A. Tice, Esquire, Silverman, McDonald & Friedman, Wilmington, Delaware
for Third-Party Defendant Phyllis James, M.D.




Young, J.
Johnson, et. al. v. PPIC, et. al.
C.A. No.: N13C-01-119 RBY
August 21, 2014

                                    SUMMARY
       Kenneth M. Roseman and Kenneth Roseman, P.A. (“Roseman” or “Third-
Party Defendants”), move for dismissal of the Third-Party Complaint of Mason E.
Turner, Jr. and Prickett, Jones & Elliott, P.A. (“Third-Party Plaintiffs”), pursuant
to Superior Court Rule 12(b)(6), for failure to state a claim upon which relief can
be granted. In particular, Third-Party Defendants argue that Third-Party Plaintiffs
fail to state a contribution claim adequately. In response, Third-Party Plaintiffs
assert that Third-Party Defendants seek to escape potential liability for Roseman’s
alleged negligence based upon fact-based arguments, and an erroneous
interpretation of the law.
       First, under the Delaware Uniform Contribution Among Tortfeasors Act
(“DUCATA”), the legal relationship between Plaintiff and both defendants against
whom contribution is asserted is not the same, meaning joint or several
negligence, will not suffice to impose contribution. Second, contribution claims by
non-clients against lawyers for malpractice are generally not permitted. Third,
even if Third-Party Plaintiffs could impose a contribution claim, there are no facts
in either the Third-Party Complaint or the First Amended Complaint supporting
Third-Party Plaintiffs’ argument that Roseman breached any duty to Plaintiff to
support a legal malpractice claim, that would provide the basis for a contribution
claim. Therefore, Third-Party Defendants’ Motion to Dismiss is GRANTED.
                           FACTS/PROCEDURAL POSTURE
       The allegations discussed in Third-Party Defendants’ instant motion arise
from two prior lawsuits in this Court: 1) a medical negligence action filed on

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Tirese Johnson’s (“Johnson”) behalf by his mother Letoni Wilson (“Plaintiff”) in
2007 against Defendant Michele Montague (“Montague”) and non-party Dr.
Phyllis James, M.D. (“Dr. James”) (herein the “Negligence Case”); as well as 2) a
bad faith and legal malpractice case (the “Bad Faith Case”), which Dr. James filed
against her malpractice insurance carrier Defendant Preferred Professional
Insurance Company (“PPIC”).
       In 2006, Dr. James and Montague, a physician’s assistant employed by Dr.
James, was found by a jury to have negligently failed to diagnose Johnson as a
newborn for high levels of bilirubin. Allegedly, the failure to diagnose and treat
Johnson caused him to develop kernicterus, which resulted in Johnson’s brain
damage. Attorney Defendant Mason E. Turner, Jr. (”Turner”), attorney and former
director of another Attorney Defendant Prickett, Jones & Elliott, P.A., represented
Montague in the Negligence Case.
       In March 2010, this Court entered summary judgment in favor of Montague
on the ground that Plaintiff had failed to satisfy 18 Del. Code § 6853(e)’s
requirement that she provide an admissible expert opinion that Montague violated
the standard of care applicable to a physician’s assistant. Plaintiff proffered an
expert opinion that Montague failed to adhere to the standard of care required by a
pediatrician, which Montague was not. The Court granted Montague’s motion in
limine to exclude that opinion due to the expert’s lack of familiarity with the
practices of physician’s assistants in Delaware, which rendered him unqualified to
articulate the standard of care for a physician’s assistant. The Court denied
Plaintiff’s motion to reargue the Court’s motion in limine ruling, granting

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summary judgment in Montague’s favor.
       Plaintiff appealed the Court’s judgment. The Delaware Supreme Court
affirmed the Court’s decision which had granted the motion in limine; denied
reargument on the motion in limine; then dismissed Montague from the
Negligence Case. One of the crucial issues in the Negligence Case was whether
Johnson showed signs of jaundice, the yellowing of the skin, below his nipple line
in 2006, four days after his birth. Montague’s expert, Dr. John E. Hocutt,
acknowledged at his deposition that the yellowing of Johnson’s skin “at or below
the nipple line” would constitute a “significant risk factor” for the “presence of the
development of neurotoxic levels of bilirubin.”1 Montague’s testimony was
consistent with the notation she made about Johnson’s yellow tinted face and
sternum in an examination note (the “Sternum Note”), that Dr. James’s attorney,
Daniel McCarthy, Esq. (“McCarthy”), had produced in discovery. However,
Montague’s testimony was inconsistent with Dr. James’s testimony that Dr. James
did not observe yellowing on Johnson’s face or sternum.
       After a $6.25 million judgment against Dr. James was entered in the
Negligence case, Plaintiff’s lawyer Roseman filed, on behalf of Dr. James, the Bad
Faith Case. PPIC produced to Roseman a letter, in which McCarthy had written to
a PPIC representative that Turner had brought to his attention two instances of
Johnson’s medical chart being altered (the “McCarthy Letter”). PPIC also
produced to Roseman the McCarthy Letter’s two enclosures. The first enclosure


       1
           First Amended Complaint, Paragraph 122; Ex. I at 15:31-16:2.

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was a note of the July 21, 2006 examination of Johnson written by Montague that
differed from the Sternum Note. The Sternum Note recorded an observation of
“yellow tinted face/sternum,” but the second note (“the Abdomen Note”), written
by Dr. James, memorialized an observation of “yellow tinted face/abdomen.” The
second enclosure was a note of the July 21, 2006 examination written by Dr.
James (“the James Original Office Note”).
       Unlike Dr. James’s examination note that was produced in discovery in the
Negligence Case, the James Original Office Note lacked the following two
sentences: “If no changes occur, infant to F/U [follow up] early next week. Pt’s
mom stressed on importance to call since older sibling during neonatal period
required biliblanket.” In Paragraphs 67, 72, 75, and 77, the First Amended
Complaint in this case alleged that Roseman determined from Montague's
deposition that there were no documents to be obtained from Montague. Roseman
did not serve a request for documents on Montague.
       On October 2010, Plaintiff filed a motion to vacate the judgment of
dismissal of Montague pursuant to Rules 60(b)(2) and (3) based on the non-
disclosure of the Abdomen Note and Montague’s alleged perjury (“the Motion to
Vacate”). The Court denied the Motion to Vacate on the basis that Montague’s
possession of the Abdomen Note would not have changed the outcome of the
Motion to Dismiss that arose from Johnson’s failure to produce a qualified expert
opinion.
       Third-Party Defendants filed the instant Motion to Dismiss on May 29,
2014. Third-Party Plaintiffs filed a Response in Opposition to Third-Party

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Defendants on June 25, 2014.
                                    STANDARD OF REVIEW
       “A motion to dismiss under [Superior Court Civil] Rule 12(b)(6) presents
the question of ‘whether a plaintiff may recover under any reasonably conceivable
set of circumstances susceptible of proof’ under the complaint.”2 “When
considering a motion to dismiss, the Court must read the complaint generously,
accept all well-[pled] allegations as true, and construe them in a light most
favorable to the plaintiff.”3 “A complaint is ‘well-plead’ if it puts the opposing
party on notice of the claim being brought against it.”4 “Dismissal is warranted
only when ‘under no reasonable interpretation of the facts alleged could the
complaint state a claim for which relief might be granted.’”5
                                        DISCUSSION
I. Under DUCATA, joint or several negligence will not suffice to impose
contribution in this matter, because the legal relationship between Plaintiff
and both defendants against whom contribution is asserted is not the same.
       Third-Party Defendants argue that Third-Party Plaintiffs fail to state a
contribution claim upon which relief can be granted. The Third-Party Complaint


       2
         Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403, 406 (Del. 1995),
citing Kofron v. Amoco Chems. Corp., 441 A.2d 226, 227 (Del. Super. 1982).
       3
           Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952).
       4
          Boyce Thompson Inst v. MedImmune, Inc., 2009 WL 1482237 (Del. Super. 2009),
citing Precision Air v. Standard Chlorine of Del., 654 A.2d 403, 406 (Del. 1995).
       5
           Id., citing Hedenberg v. Raber, 2004 WL 2191164, at *1 (Del.Super.).

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by Third-Party Plaintiffs asserts a claim for contribution against Third-Party
Defendants. Contribution is governed by the DUCATA, which provides the
parameters for determining when contribution is appropriate, and how it is to be
decided.6 DUCATA permits contribution only among tortfeasors whom the injured
person could hold jointly or severally liable for the same damage or injury to his
person or property. 10 Del. Code § 6302(a). Third-Party Defendants argue that,
without this dual liability, no right of contribution can exist.7 There is no case law
stating that DUCATA does not apply to legal malpractice claims in particular. In
fact, DUCATA has been applied to cases involving legal malpractice claims in
Delaware.8 Therefore, DUCATA applies to the legal malpractice claim in this
matter.
       Third-Party Plaintiffs contend that they need to allege only that a third-party
is liable in whole or in part for Plaintiff’s injury to establish an adequate claim for
contribution. However, joint or several negligence will not suffice to impose
contribution under DUCATA if the legal relationship between plaintiffs and all
defendants against whom contribution is asserted is not the same.9 As a general
rule, the right to contribution among tortfeasors, where permitted, is dependent


       6
         Lutz v. Boltz, 100 A.2d 647, 648 (Del. Super. 1953); Builders and Managers, Inc. V.
Dryvit Systems, Inc., 2004 WL 304357 (Del. Super. 2004).
       7
          ICI America v. Martin-Marietta, 368 F. Supp. 1150, 1151 (D. Del. 1974); New Zealand
Kiwifruit Marketing Bd. v. City of Wilmington, 825 F. Supp. 1180, 1186 (D. Del. 1993).
       8
           See Hood v. McConemy, 53 F.R.D. 435 (D. Delaware. 1971).
       9
           10 Del. Code § 6301, et seq. Farrall v. Armstrong Cork Co., 1983, 457 A.2d 763.

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upon the existence of a common liability to the injured person, and consequently
where there is no concert of action between persons whose acts of negligence have
injured the plaintiff or where such acts did not concur in producing a single
indivisible injury, no right to contribution arises.10
       In this matter, Roseman clearly had a completely different legal relationship
and duty to Plaintiff as Plaintiff’s attorney than Third-Party Plaintiffs had to
Plaintiff as defense counsel. Further, there was no concert of action between
Roseman and Third-Party Plaintiffs. Even if Roseman’s alleged negligence helped
to cause Plaintiff’s injury, it was merely passive. Similar to the law of indemnity,
generally no right to contribution exists where the defendant’s liability is primary
rather than secondary, or where the tortfeasor’s negligence is active rather than
passive.11
II. Contribution claims by non-clients against lawyers for malpractice are
generally not permitted.
       Third-Party Defendants argue that contribution claims by non-clients
against lawyers for malpractice to the Plaintiff are not permitted. According to
Third-Party Defendants, Third-Party Plaintiffs, non-clients of Roseman, should
not be permitted to pursue a malpractice claim against Roseman when the person
to whom Roseman actually owed a duty has not asserted a claim against Roseman.
       In response, Third-Party Plaintiffs argue that no Delaware Court has


       10
            Am. Jur. 2d, Contribution § 47.
       11
            Am. Jur. 2d, Indemnity § 20.

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actually adopted a rule that exempts lawyers from joint tortfeasor liability.
However, Third-Party Defendants do not argue that DUCATA exempts lawyers.
Rather, it is Third-Party Defendants’ position that non-clients should not be
permitted to pursue malpractice claims against lawyers. As has been discussed
above, DUCATA applies to legal malpractice contribution claims.
       More importantly, there is authority in Delaware stating that non-clients
may not sue for malpractice claims against lawyers.12 In addition, there are
decisions from other jurisdictions that have disallowed third-party suits for
contribution or indemnity filed by non-clients against lawyers based upon the
lawyer’s negligence or malpractice to the plaintiff.13 In Delaware, it is generally
held that a claim for professional negligence will fail when a third-party brings an
action against an attorney, because beyond the duty owed to their client and the
Court, no other duty is owed by an attorney.14
       It is true that this matter deals with establishing a breach of duty that was
owed to Plaintiff, not the duty that was owed to the non-clients, Third-Party

       12
            Keith v. Sioris, 2007 WL 544039 (Del. Super. 2007).
       13
           Prescott Investors, Inc. v. Blum, 762 F. Supp. 1553 (D. Conn. 1991) (Accounting firm,
being sued for negligence, brought third-party complaint against law firm which represented
client. The court held that the law firm could not be held liable in tort to non-client accounting
firm); Bukoskey v. Walter W. Shuman, C.P.A., P.C., 666 F. Supp. 181 (D. Alaska 1987)
(Accounting firm brought third-party action against attorneys who drafted union trust fund
documents, seeking contribution for losses to trust fund allegedly incurred as result of
embezzlement by employee of accounting firm. The court held that evidence failed to support
allegation of professional negligence against attorneys).
       14
            Nichols v. Twilley, Street & Braverman, P.A., 1991 WL 226777, at * 2 (D. Del.).


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Plaintiffs. However, it is still the case that joint or several negligence will not
suffice to impose contribution under DUCATA if the legal relationship between
Plaintiff and all defendants against whom contribution is asserted is not the same.
It follows that Third-Party Plaintiffs, adversaries of Plaintiff, cannot bring a
contribution claim against Third-Party Defendants for breaching a professional
duty to Plaintiff.
III. There are not sufficient facts in either the Third-Party Complaint or the
First Amended Complaint to suggest that Roseman breached any duty to
Plaintiff to support a legal malpractice claim.
A. Roseman did not breach any duty to Plaintiff by failing to serve a request for
documents on Montague.
       Third-Party Plaintiffs bring to the Court’s attention that, to state a claim for
contribution, a third-party plaintiff need only allege that the same injury it
allegedly caused the plaintiff to suffer was caused in whole or in part by the third-
party defendant.15 More importantly, a motion to dismiss “tests the sufficiency of
the claims as pled, not whether a party will ultimately prevail on those claims.”16
Third-Party Plaintiffs argue that Third-Party Defendants’ mere disagreement with
the allegations in the Third-Party Complaint is insufficient to carry their
significant burden of showing that Third-Party Plaintiffs have failed to state a


       15
            See Encite LLC v. Soni, 2008 WL 2973015, at *13 (Del. Ch. Aug. 1, 2008); see also
Ulmer v. Whitfield, 1985 WL 189262, at *2 (Del. Super. Sept. 10, 1985) (noting the definition of
“joint tortfeasors” under DUCATA).
       16
            See Doe 30's Mother v. Bradley, 58 A.3d 429, 438 n. 3 (Del. Super. 2012).

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Johnson, et. al. v. PPIC, et. al.
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claim under any conceivable set of circumstances. As a principle, that is correct. It
is, however, inapposite.
       Third-Party Plaintiffs cannot maintain a contribution claim against Roseman
unless Roseman is actually liable to Plaintiff. Roseman’s liability to Plaintiff
depends upon a valid cause of action for legal malpractice by Plaintiff against
Roseman. To establish a claim of legal malpractice, Plaintiff must establish: a) the
employment of the attorney; b) the attorney’s neglect of a professional obligation;
and c) resulting loss.17
       Third-Party Plaintiffs argue that the following allegations are sufficient to
state a claim for contribution: 1) that the First Amended Complaint’s fraud and
conspiracy claims are premised on Turner’s failure to produce the Abdomen Note
and Dr. James’ Original Office Note in discovery in the Negligence Case; 2) that
Turner did not produce any medical notes or other documents because Roseman
never served a document request on Montague; and that 3) Roseman’s failure to
serve a document request on Montague for all notes or records relating to Plaintiff
was a breach of the standard of care of a reasonable attorney to his client, and was
the primary proximate cause and/or contributing proximate cause of damages, if
any, suffered by Plaintiff.
       In the instant matter, the main inquiry is whether Roseman breached a duty
to Plaintiff, in order to support a legal malpractice claim. In the Third-Party
Complaint, Third-Party Plaintiffs allege that Roseman failed to serve a request for

       17
        Seiler v. Levitz Furniture Co., 367 A.2d 999, 1008 (1976); Middlebrook v. Ayers, 2004
WL 1284207 at *10 (Del. Super. 2004); Oakes v. Clarke, 2013 WL 3147313 (Del. 2013).

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Johnson, et. al. v. PPIC, et. al.
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production of documents on Montague. Third-Party Defendants argue that it was
already determined in Montague’s deposition that there were no documents to be
obtained from Montague, and since there were no documents to be obtained from
Montague, there can be no duty to serve a request to obtain allegedly non-existent
documents. Therefore, according to Third-Party Defendants, Roseman did not
breach a duty owed to Plaintiff when he did not serve a document request on
Montague. Further, Third-Party Defendants assert that the alleged failure to
request the documents by way of a request for production was not the cause of
harm to Plaintiff. Rather, Third-Party Defendants argue that Plaintiff’s harm
resulted from Montague’s false testimony and concealment of documents, not
from Roseman’s failure to serve a request for production on Montague.
       Third-Party Plaintiffs assert that these contentions are merely issues of fact.
Moreover, the substance of Montague’s deposition and the inferences that could
be reasonably drawn therefrom are not pled in the Third-Party Complaint. Even
though these are issues of fact, these facts are incorporated in the First Amended
Complaint in this case.18 The facts also demonstrate why Roseman’s failure to
serve a document request on Montague was not a breach of the standard of care of
a reasonable attorney to his client. Where, as is the case in this matter, the Third-
Party Complaint incorporates by reference the allegations of the First Amended
Complaint, “the Court must accept as true the well-pleaded allegations in both the




       18
            First Amended Complaint, Paragraphs 67, 72, 75, and 77.

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underlying complaint and the third party complaint.”19 Neither the Third-Party
Complaint nor the First Amended Complaint supports an inference that Roseman
neglected a professional obligation. Therefore, Third-Party Plaintiffs do not
sufficiently allege that Roseman breached a duty to Plaintiff; and Third-Party
Plaintiffs cannot maintain a contribution claim against Roseman, because there is
no valid cause of action for legal malpractice by Plaintiff against Roseman.
B. Third-Party Plaintiffs cannot maintain a contribution claim on the basis that
Roseman breached a duty to Plaintiff by failing to move to vacate the judgment
against Dr. James.
        Third-Party Defendants argue that Third-Party Plaintiffs fail to state a
contribution claim based on the alleged failure to move to vacate the judgment
against Dr. James. The Third-Party Complaint alleges that, if Dr. James’ conduct,
including her alleged alteration of Plaintiff’s medical file and perjurious
testimony, denied Plaintiff a full recovery for damages to which she was entitled,
Roseman should have sought a Rule 60 motion for vacatur of the judgment against
Dr. James. According to Third-Party Defendants, the contention that Roseman
failed to move for vacatur of the judgment is a contention for sole liability by
Roseman to Plaintiff, which is not a basis for contribution or a basis for
interpleader under Superior Court Civil Rule 14(a).
       This contention by Third-Party Defendants, in essence, blames Roseman for


       19
           Beesly v. Miller, 2014 WL 1759862 (Del. Super. 2014). Marcucilli v. Boardwalk
Builders, Inc., 1999 WL 1568612, at *3 (Del. Super. Dec. 22, 1999) (citing Precision Air, Inc. v.
Standard Chlorine of Delaware, 654 A.2d 403, 406 (Del.1995).

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failing to rectify Third-Party Plaintiffs’ fraud. Roseman did not have a duty to
discover and protect Third-Party Plaintiffs from their fraud, which is the basis for
the claim asserted by Plaintiff. Therefore, even if Third-Party Plaintiffs could
prove that a motion to vacate the judgment against Dr. James would have been
successful, Roseman’s alleged negligence in failing to file a motion to vacate is
merely a reaction to the fraud that Third-Party Plaintiffs caused. In addition, as
mentioned above, the legal relationship between Plaintiffs and both defendants
against whom contribution is asserted is not the same. Third-Party Plaintiffs
cannot maintain a contribution claim on this basis.
                                    CONCLUSION
      For the foregoing reasons, Third-Party Defendants’ Motion to Dismiss is
GRANTED. Third-Party Plaintiffs’ claim against Third-Party Defendants is
DISMISSED.
       IT IS SO ORDERED.

                                           /s/ Robert B. Young
                                                      J.

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