CHARLESTON – One prominent attorney has sued another lawyer and his law firm following what he calls a disastrous outcome to a previous lawsuit he filed against another law firm.
Scott S. Segal filed his legal malpractice complaint September 26 in Kanawha Circuit Court against Carey Douglas Kessler & Ruby PLLC and attorney Steven R. Ruby individually.
Segal had hired Ruby and the firm to represent him in a federal tort action against Dinsmore & Shohl in 2020. In the complaint, Segal says Ruby “actually flatly admitted negligence in the handling of the case in a mea culpa letter to the judge” who handled the federal case.
Ruby
| File photo
Segal now accuses Ruby and his law firm of legal malpractice, breach of contract and breach of fiduciary duty in failing to properly and diligently represent him and in failing to carefully prosecute, pursue and handle his case against Dinsmore.
“It’s unfortunate to have a dispute like this arise, but we’re confident in our position and confident this will be resolved in our favor,” Ruby told The West Virginia Record.
According to the complaint, Segal hired the defendants to represent him against Dinsmore and four of its attorneys who had represented PITA LLC and the Puskar Trust in an action to recover on a commercial promissory note.
“Mr. Segal has steadfastly maintained and continues to contend that the Dinsmore attorneys’ conduct in undertaking and continuing with that representation involved that law firm and its lawyers in a deliberate, shameful and fraudulent breach of legal and ethical duty owed to Mr. Segal, and the concealment of their misconduct and fraudulent misrepresentation, all of which were motivated by their greed and avarice,” the complaint states. “Mr. Segal asserts that the conduct of the Dinsmore attorneys rendered them liable to him for compensatory and punitive damages.”
Segal says he was compelled to settle the case and paid $1.75 million because of missteps the Carey Douglas defendants made during litigation.
“The defendants, without the knowledge and certainly without the approval of plaintiff (Segal), failed to draft, serve and/or otherwise prepare responses to the Dinsmore attorneys’ requests for admissions, thereby resulting in binding admissions as to each and every request contained therein,” Segal’s complaint states. “Defendants (Carey Douglas) further failed to ensure that an expert witness disclosures were served … The failure to make timely disclosures … precluded plaintiff from presenting expert testimony in the underlying litigation.”
On May 31, 2022, the Dinsmore attorneys filed a joint motion for summary judgment based upon the statute of limitations “because no responses had been made to their requests for admissions.” The motion also said expert testimony would be precluded “because no expert disclosures had been made by plaintiff.”
The Carey Douglas defendants did file a motion for stay the next month, but Segal says it “offered no justifiable ground for having failed to respond to the requests for admissions, nor any excuse for failing to serve expert disclosures.”
On March 31, 2023, U.S. District Judge Thomas S. Kleeh granted Dinsmore’s motion for summary judgment because the Carey Douglas attorneys “failed to file any motion seeking to amend or withdraw a response to a request for admission, failed to serve even untimely responses to requests for admissions and failed to response at all to, not just requests for admissions, but also interrogatories and requests for production of documents” directed to Segal.
Kleeh therefore ruled Segal’s claims were “time-barred by the two-year statute of limitations,” saying he made his ruling “based largely on Segal’s admissions” that were a consequence of no responses being served to the Dinsmore attorneys.
On April 17, 2023, Ruby sent a letter to the court saying the Carey Douglas defendants “fell short in (their) handling of (Segal’s) case” and “the deficiencies in the case’s prosecution were in no way attributable to Mr. Segal, who has done everything that (they) have asked of him and more in (their) representation of him.”
Ruby’s letter also said the Carey Douglas defendants “were too busy to handle” the matter, according to Segal’s complaint, as the firm was representing a central defendant in a case before the West Virginia Mass Litigation Panel and were restricting two loan portfolios of more than $1 billion for Gov. Jim Justice’s Bluestone Resources and The Greenbrier companies.
“Mr. Ruby’s effort at contrition and his rationalization for the mishandling of the underlying litigation is no more than a reaffirmation that the summary judgment was a result of blatant dereliction,” Segal’s complaint states, adding that the Carey Douglas defendants never told Segal they were too busy or had “exceptional professional demands” or were “overburdened with cases and work.”
“In short, defendants (Carey Douglas) concealed that they were neglecting to devote the necessary time, attention, oversight and due diligence to the underlying litigation, leading Mr. Segal to believe, reasonably so, that they were zealously representing him and diligently prosecuting his claims,” Segal’s complaint states.
Segal says the granting of summary judgment against him kept him from recovering from the Dinsmore attorneys the recovery of the $1.75 million he had to pay in settlement of the action, additional damages he would have recovered against Dinsmore for loss, cost, expenses and legal fees as well as punitive damages he would have recovered.
In addition to the economic losses, Segal says he has suffered anguish, distress, embarrassment, aggravation and inconvenience.
Segal, who declined comment for this story, seeks compensatory damages. He is being represented by Avrum Levicoff of The Levicoff Law Firm in Pittsburgh. The case has been Circuit Judge Jennifer Bailey.
Kanawha Circuit Court case number 24-C-1088