Attorney wanted to testify as an expert in her own case
By David Donovan
The Daily Record Newswire
COLUMBIA, SC — A lawyer-turned-ophthalmologist who has become a regular fixture in South Carolina’s appellate courts will not be able to bring a malpractice claim against her former attorneys, the state’s Supreme Court ruled June 4. In the same ruling the court also upheld an award of sanctions against the plaintiff, Cynthia Holmes.
The case dates to 1999, when Holmes filed the first of four lawsuits against her former employer, East Cooper Community Hospital, after Holmes lost her privileges to admit patients and perform procedures there. The Supreme Court disposed of the last of those suits on March 26, upholding an award of sanctions against Holmes personally under the state’s Frivolous Civil Proceedings Sanctions Act.
Holmes had also sued Haynsworth Sinkler Boyd and two of its attorneys — Manton Grier and James Becker — for malpractice over the way they handled her first unsuccessful suit, in which she accused East Cooper of federal antitrust violations. The Supreme Court upheld a circuit court’s dismissal of the suits, finding that the circuit court properly dismissed the suit against the firm because Holmes lacked the relevant expertise to testify as an expert witness in her own case, and that the statute of limitations had lapsed for her suit against Grier and Becker.
A lawyer, but not an expert
Holmes is a licensed South Carolina attorney, subsequently suspended, but has not practiced law in more than 30 years and has never represented a client other than herself. Nonetheless, Holmes tendered herself to the circuit court as an expert on the relevant standard for legal malpractice, arguing that she was qualified as an expert by the mere fact of her being a licensed attorney. The circuit court had disqualified Holmes as an expert, and the Supreme Court held that it was within its discretion to do so. (Holmes did not offer any other expert opinion to bolster her case.)
“Regardless of her status as a licensed attorney, Appellant was required to demonstrate to the circuit court’s satisfaction that she had the requisite training, experience, and education to testify as an expert witness in this case. Although Appellant is a licensed attorney, we agree Appellant was unqualified to testify as an expert regarding the applicable standard of care for attorneys handling a federal antitrust lawsuit due to the mere fact that she is licensed to practice law,” Chief Justice Jean Hoefer Toal wrote for the court.
Holmes had also argued that Haynsworth Sinkler Boyd’s own expert witness had conceded that the firm committed malpractice. The Supreme Court rejected that argument, saying that Holmes had taken out of context the witness’ answer to a hypothetical question posed by Holmes on cross-examination that was not based on the facts of the case.
It tolls not for thee
The Court also found that the statute of limitations for bringing a malpractice suit had passed. Holmes first filed a pro se motion in federal court, which included complaints about the way her attorneys were handling the case, in January 2000. After Holmes and Haynsworth Sinkler Boyd were unable to resolve a fee dispute, Holmes filed her malpractice claim against the firm in April 2002 — but didn’t serve process on the firm or its attorneys until April 2003.
South Carolina has a three-year statute of limitations for legal malpractice suits. The Supreme Court agreed with the circuit court that the statute began running at the time she filed her pro se complaint. Holmes, an attorney, clearly should have known, and in fact did know, she had a potential claim against her attorneys at that time, the court said. Holmes argued that the circuit court should have tolled the statute of limitations after Becker and Grier appeared in court to respond to her complaint and participate in motions to dismiss for lack of jurisdiction and transfer venue, an argument the court rejected.
“We have never tolled the statute of limitations by the date on which a party subjects himself to the personal jurisdiction of the court, and we decline to do so here,” Toal wrote.
Persistent plaintiff pays price
The circuit court also ruled that Holmes’ lawsuit was frivolous and ordered her to pay sanctions to the defendants, stating that “the entire tenor of [Appellant’s] case appears to be her belief that she is right and her former lawyers and 4 other courts are all wrong.” (Emphasis in the original.) The Supreme Court, noting that Holmes lodged “frivolous and dilatory appeals,” and moved for reconsideration after nearly every ruling made by the circuit court, held that “without a doubt,” the circuit court did not abuse its discretion.
As one example, the circuit court had to order Holmes, who had been attempting to proceed under a “J. Doe” pseudonym, to proceed under her real name.
The sanctions were not the only negative outcome of the case for Holmes. While the court was hearing oral arguments for the case in October 2012, it noted that Holmes was not properly registered with the state’s Attorney Information System, and instructed Holmes to provide the state with a working email account. Holmes refused to comply with that directive, and the court suspended her license to practice law in October 2013.
