## Facts

- Dr. Raymond Tronzo sued Biomet for patent infringement and related claims in federal court; a jury awarded compensatory damages and $20 million in punitive damages, and the court entered an injunction.
- Biomet retained Finnegan Henderson LLP to assist with post-trial matters and handle the appeal to the Federal Circuit.
- Finnegan appealed and challenged liability and related issues but did not raise a constitutional challenge to the punitive-damages award in the first appeal.
- The Federal Circuit reversed the infringement finding and remanded; on remand, compensatory damages were reduced to a nominal amount and the trial court reduced punitive damages on constitutional excessiveness grounds.
- On a second appeal, the Federal Circuit held Biomet had waived its constitutional punitive-damages challenge by not raising it in the initial appeal and reinstated the $20 million punitive award.
- Biomet sued Finnegan in the District of Columbia for legal malpractice, alleging Finnegan negligently failed to preserve and present the constitutional punitive-damages issue in the first appeal.
- The trial court granted summary judgment to Finnegan; Biomet appealed.

## Issues

1. Whether appellate counsel can be liable for malpractice for omitting a constitutional punitive-damages argument in an initial appeal when the relevant law and preservation requirements were unsettled and the omission was a considered litigation strategy.
2. Whether “judgmental immunity” bars malpractice liability for reasonable professional judgments among competing appellate strategies in uncertain legal conditions.

## Decision

- The court affirmed summary judgment for Finnegan.
- Finnegan’s choice not to raise the constitutional punitive-damages challenge in the first appeal was a reasonable tactical decision in an unsettled area of law.
- Because the strategic choice was within the range of reasonable professional judgment at the time, Finnegan could not be held liable for malpractice as a matter of law.
- The court treated this ground as dispositive and did not rely on the separate preservation/cause rationale accepted by the trial court.

## Legal Principles

- Legal malpractice is assessed based on the reasonableness of counsel’s conduct at the time of the representation, not by hindsight after later adverse rulings.
- When governing law is unsettled, attorneys are not negligent for choosing among reasonable courses of action after reasonable consideration and investigation.
- Under the doctrine often termed “judgmental immunity,” a good-faith, informed tactical decision within the bounds of reasonable professional judgment does not constitute malpractice even if it later proves unsuccessful.
- A later appellate finding of waiver does not, by itself, establish that counsel’s earlier strategic omission fell below the standard of care.

## Conclusion

The court held that Biomet’s malpractice claim failed because Finnegan’s omission of a constitutional punitive-damages argument in the initial appeal reflected a reasonable appellate strategy in an unsettled legal context, shielding the firm from liability under judgmental-immunity principles.


Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662 (D.C. 2009)