Legal malpractice lawsuits in Michigan are subject to the case-within-a-case doctrine. This rule applies when a plaintiff alleges that she was unable to pursue an underlying claim because of an attorney’s malpractice. It holds that a plaintiff can recover in malpractice only if she can prove that the underlying claim would have been successful.
In practice, this rule means that a legal malpractice plaintiff often has to prove two cases—first, that her underlying claim is would have prevailed and, second, that the attorney’s malpractice prevented her from pursuing that claim. Meeting this burden can be a tall order. Consequently, Michigan’s courts regularly dismiss legal malpractice claims—even when there is an appearance of malpractice—if there is insufficient proof that the plaintiff would have prevailed in the underlying case.
The case-within-a-case doctrine was at work in Bush v Goren. The plaintiff in Bush had cardiac surgery, and participated in a study involving “a new, unapproved, vascular closure device.” She claimed that no one told her the device was improper for nursing mothers and that she experienced medical complications as a result. She contacted the defendant about representing her in a medical malpractice or product liability claim. But the defendant eventually determined that the claims lacked merit and sent her a letter declining to take the case. The defendant’s letter noted the upcoming deadline for the medical malpractice claim, which was earlier than the deadline for a product liability claim. The defendant concluded that, if he alerted the plaintiff to the earlier of the two deadlines, the plaintiff could contact another attorney, and that attorney would be aware of the statute of limitations applicable to the product liability claim.
The plaintiff did indeed contact other attorneys. But none was willing to take the case and none alerted her to the longer statute of limitations for the product liability claim. She therefore sued the defendant-attorney, claiming that his failure to specifically flag the product-liability statute of limitations prevented her from pursuing that claim.
After an initial trip to the Court of Appeals, the defendant filed a motion for summary disposition. The motion argued that the plaintiff’s product-liability claim (which was based on state law) was preempted by federal law. Specifically, the Federal Food, Drug, and Cosmetic Act prohibited state law “different from, or in addition to” the Act’s requirements.
Both the trial court and the Court of Appeals agreed with the defendant: the plaintiff’s state-law, product-liability claim could not survive under federal law. And because the plaintiff would never have recovered in her product-liability case, her legal malpractice claim failed as well. In other words, the legal malpractice claim failed—regardless whether there was actual malpractice—because the underlying claim failed.
The case-within-a-case doctrine strikes again.