## Facts

- Holly and Robert Labair’s newborn son died shortly after an emergency C-section in October 2003.
- In January 2004, the Labairs retained attorney Steve Carey to pursue a medical malpractice claim against the obstetrician and related entities.
- Carey investigated and consulted medical experts; one supported medical causation, one declined to testify despite believing malpractice occurred, and others did not support the claim.
- Montana medical malpractice claims must be submitted to the Montana Medical Legal Panel (MMLP) within the limitations period; Carey failed to timely file the required MMLP application.
- The underlying medical malpractice action was dismissed as time-barred.
- The Labairs sued Carey for legal malpractice, alleging his missed deadline caused the loss of their medical malpractice claim.
- The district court granted summary judgment to Carey, holding the Labairs failed to show the underlying medical malpractice case would have succeeded but for Carey’s negligence.

## Issues

1. Whether a legal-malpractice plaintiff, when the attorney missed a limitations deadline in an underlying medical malpractice matter, must prove at summary judgment that the underlying case would have succeeded at trial to establish causation and damages.
2. Whether expert legal testimony is required to establish the likelihood of success of the underlying medical malpractice claims in order to avoid summary judgment.
3. Whether compensable injury in legal malpractice may include the loss of an opportunity to pursue or settle a claim capable of surviving summary judgment, rather than only the loss of a claim that would have produced a favorable verdict.

## Decision

- The Montana Supreme Court reversed the grant of summary judgment and remanded.
- The court held the district court applied an overly demanding causation/damages standard by requiring proof that the underlying medical malpractice case would have succeeded at trial.
- The court held expert legal testimony was not required in the manner used to foreclose the claim at summary judgment.
- The Labairs’ medical expert evidence was sufficient to create a genuine dispute that the underlying medical malpractice claim was viable (at least capable of proceeding past summary judgment), precluding summary judgment in the legal-malpractice action.

## Legal Principles

- Legal malpractice requires proof of breach, causation, and damages; causation focuses on cause-in-fact—whether attorney negligence caused the client’s loss.
- In a missed-deadline malpractice case, injury can be the loss of a claim or settlement opportunity that had sufficient merit to survive summary judgment or carry settlement value.
- A rigid “suit within a suit” requirement (full proof the underlying case would have produced a favorable judgment) is not the exclusive method to show causation and damages, particularly at the summary judgment stage.
- Legal experts are not substitutes for medical experts on medical standard of care and medical causation in evaluating the underlying medical malpractice merits.

## Conclusion

The court held that, where attorney negligence time-bars an underlying medical malpractice claim, the client may proceed on evidence showing the lost claim was viable and carried a probable chance of economic recovery through trial or settlement; proof of certain success at trial is not required to defeat summary judgment.


Labair v. Carey, 291 P.3d 1160 (Mont. 2012)