UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KELLY D. COWAN,
Plaintiff-Appellant,

v.

COONEY AND CONWAY, P.C.; COONEY
& CONWAY; ROBERT COONEY, Esq.;
MARK E. BECKER, Esq.,                                               No. 98-2252
Defendants & Third-Party
Plaintiffs-Appellees,

and

DAVID A. VESEL, P.A.,
Third-Party Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-244-5-BR)

Argued: May 18, 1999

Decided: June 14, 1999

Before MICHAEL, MOTZ, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Alan Vesel, DAVID A. VESEL, P.A., Raleigh,
North Carolina, for Appellant. Christopher George Smith, SMITH,
ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN,
L.L.P., Raleigh, North Carolina, for Appellees. ON BRIEF: John D.
Madden, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL
& JERNIGAN, L.L.P., Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Kelly Cowan sued her former lawyers, defendants Robert Cooney
and Cooney & Conway, for legal malpractice. She alleged that they
failed to prosecute her medical malpractice claim against two doctors
and allowed the statute of limitations on that claim to expire. The
defendants moved to dismiss, contending that they were not liable
because Cowan's medical malpractice claim was barred by a class
action settlement involving the medical device that allegedly caused
her injury. The district court agreed and dismissed Cowan's suit
against her former lawyers for failure to state a claim. Cowan now
appeals, and we affirm.

I.

In January 1991 Cowan underwent a spinal fusion operation per-
formed by Dr. David Fajgenbaum. This operation involved the use of
an experimental medical device, the pedicle screw, which was manu-
factured by AcroMed Corporation. The surgery was not successful, so
Cowan underwent a second operation in February 1993. This opera-
tion was performed by Dr. Lee Whitehurst, who also used the
AcroMed pedicle screws. The second operation also failed.

In April 1994 Cowan retained the defendants to represent her in a
lawsuit against AcroMed, the two doctors, and several other parties.
However, after Cowan concluded that her lawyers had not taken steps

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to file an action on her behalf, she dismissed them and hired new
counsel, David A. Vesel, in the Spring of 1995. By this time the stat-
ute of limitations had expired on Cowan's claim against Dr. Fajgen-
baum. Her new lawyer also determined that the claim against Dr.
Whitehurst was not legally viable.

In the meantime, many other lawsuits were filed across the country
alleging injuries caused by pedicle screws. The federal lawsuits were
consolidated in the district court for the Eastern District of Pennsylva-
nia. See In re: Orthopedic Bone Screw Products Liability Litigation,
MDL Docket No. 1014 (E.D. Pa.). That court issued Pretrial Order
No. 1117, approving a class action settlement involving recipients of
the AcroMed pedicle screw. It is undisputed that Cowan was a mem-
ber of the settlement class. Pretrial Order No. 1117 permanently
enjoined class members from bringing claims related to the AcroMed
pedicle screws, with only limited exceptions. Specifically, the order
provided that members of the settlement class:

          may not initiate, assert, or prosecute Orthopedic Bone Screw
          related claims, unless: (a) the claim is in the nature of a
          claim for alleged independent medical malpractice against
          any physician who treated the Settlement Class Member . . .
          and (b) the claim does not (i) rest in whole or in part on any
          product liability-related theory of recovery, including with-
          out limitation design or manufacturing defect, the regulatory
          status of any AcroMed Orthopedic Bone Screw, or alleged
          failure to warn, nondisclosure, or inaccurate or incomplete
          disclosure, of the regulatory status of any AcroMed Ortho-
          pedic Bone Screw or (ii) have as an element of the claim
          financial relationships with AcroMed . . . .

II.

Pretrial Order No. 1117 barred all claims related to the use of
AcroMed pedicle screws, except those alleging independent medical
malpractice by doctors. We have reviewed the record, and we cannot
find that Cowan has made any allegations of medical malpractice
independent of her claim involving the AcroMed pedicle screws.
Therefore, under the terms of the Pretrial Order, Cowan's claim
against Doctors Fajgenbaum and Whitehurst was barred. As a result,

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Cowan failed to state a claim for legal malpractice against the defen-
dants for their failure to prosecute the barred claim. We therefore
affirm the judgment of the district court.*

AFFIRMED
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*The defendants filed a third-party complaint against Cowan's new
lawyer, Vesel, claiming that they were entitled to contribution from
Vesel if they were found to be liable to Cowan for failing to prosecute
an action for her. The defendants contended that the statute of limitations
had not run as to some of Cowan's claims when she retained Vesel and
that Vesel himself was therefore negligent in failing to prosecute a case.
The district court's order dismissing Cowan's complaint against the
defendants indicates that the third-party complaint was to be voluntarily
dismissed. Nevertheless, Vesel argues to us that the district court erred
in denying his motion (made earlier in the litigation) to dismiss the third-
party complaint on the merits. Regardless of the procedural posture of
the third-party complaint, we need not deal with its merits. Because we
have affirmed the judgment dismissing the underlying complaint, any
issue relating to the third-party complaint is moot.

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