Garrett v. Bryan Cave LLP ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 21 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL B. GARRETT,
Plaintiff-Appellant,
v. No. 98-6282
BRYAN CAVE LLP, A Missouri (D.C. No. 97-CV-165)
Professional Partnership/corporation; (W.D. Okla.)
STIFEL NICOLAUS & COMPANY,
INCORPORATED,
ORDER AND JUDGMENT *
Before BRISCOE and ANDERSON , Circuit Judges, and KIMBALL , District
Judge. **
This case arises from plaintiff Michael B. Garrett’s allegations against his
former counsel, defendant Bryan Cave LLP (“Bryan Cave”), and his former
employer, defendant Stifel, Nicolaus & Company, Inc. (“Stifel”). Garrett alleges
that Bryan Cave committed malpractice by disclosing confidential information
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Dale A. Kimball, United States District Judge for the
District of Utah, sitting by designation.
and by failing to protect his interests during a “proffer” session with the United
States Attorney’s office. According to Garrett, Bryan Cave’s malpractice caused
government officials to file insupportable criminal charges against him. The
district court entered summary judgment for Bryan Cave, holding that Garrett
could not establish causation and damages. We exercise jurisdiction pursuant to
28 U.S.C. § 1291 and affirm.
I
This litigation focuses on activities in Stifel’s Oklahoma City municipal
bond office. Garrett was employed by Stifel from 1987 through 1995. During
that time he worked at Stifel’s Oklahoma City office, which was headed by
Robert Cochran. Bond issues that were underwritten by the Oklahoma City office
came under suspicion in the early 1990s, spawning at least three lawsuits. Bond
issuers filed a civil action in 1994 against Garrett and Stifel involving a Shawnee
Hospital transaction (the “ Shawnee litigation”). After conducting an
investigation, the SEC filed a complaint against Garrett and other Stifel
employees in 1995. The FBI and the United States Attorney’s office conducted
their own investigation, and filed criminal charges against Garrett and Cochran in
1995.
Bryan Cave represented Garrett during the Shawnee litigation and the SEC
investigation. Bryan Cave attorney Tom Archer began representing Stifel and
2
Garrett in the Shawnee litigation in the Spring of 1994. The litigation concluded
in late 1995. Garrett was initially represented by outside attorney Dino Viera in
the SEC investigation, while Archer and other Bryan Cave attorneys represented
Stifel. In 1994, Archer began representing Garrett in the SEC matter, and
appeared on Garrett’s behalf at one of Garrett’s SEC interviews. Archer
terminated his representation of Garrett in the SEC matter in August 1995.
On July 19, 1995, Bryan Cave attorneys participated in a proffer session
with federal authorities on Stifel’s behalf. Archer, Dan O’Neill of Bryan Cave,
and Andy Coats from the law firm of Crowe & Dunlevy represented Stifel.
Assistant United States Attorney (“AUSA”) Susan Cox, FBI agent Michael
Shook, and FBI agent Steven Kaitcer represented the government. Garrett was
not present at the proffer session. On August 4, 1995, Stifel and the United States
Attorney’s office reached an agreement under which the government promised not
to prosecute Stifel in exchange for Stifel’s full cooperation in the investigation of
its Oklahoma City office.
On September 20, 1995, the United States Attorney’s office filed a criminal
indictment against Garrett and Cochran. The indictment charged Garrett with
mail and wire fraud in connection with certain bond transactions. Garrett moved
to dismiss the indictment, arguing that the government’s participation in the
proffer session and its cooperation with Bryan Cave attorneys violated his
3
constitutional rights. After holding an evidentiary hearing, the court in the
criminal case concluded that “[t]he evidence does not support Garrett’s contention
that the government’s conduct was so egregious as to warrant dismissal under
these circumstances.” Appellant’s Brief in Chief, Exh. A, at 10. 1
Garrett was
acquitted of all charges against him at trial.
Garrett filed suit against Bryan Cave and Stifel in 1997. Garrett alleges
that Bryan Cave disclosed sensitive information to federal prosecutors and failed
to protect Garrett’s interests before, during, and after the proffer session.
According to Garrett, these purported breaches of duty led federal prosecutors to
file unwarranted criminal charges against him. Garrett contends that he was
forced to spend more than $135,000 to defend himself against these charges.
The district court entered judgment as a matter of law against Garrett on
two grounds. The court concluded that no reasonable jury could find that Bryan
Cave disclosed confidential or privileged information to the United States
Attorney’s office, and that no reasonable jury could conclude that Bryan Cave’s
alleged breaches of duty caused the government to indict Garrett. On appeal,
Garrett contends that the trial court improperly granted summary judgment on the
1
Bryan Cave argued before the district court that this order collaterally
estopped Garrett from asserting that Bryan Cave’s participation in the proffer
session constituted a breach of duty. The district court rejected Bryan Cave’s
argument, see Appellant’s Brief in Chief, Exh. A, at 8-12, and Bryan Cave has
not raised the issue on appeal.
4
issue of causation by (1) applying a “but for” test instead of a “substantial factor”
test; (2) ignoring or excluding evidence upon which a rational jury could have
found in his favor; and (3) refusing to draw reasonable inferences in his favor
from uncontested facts.
II
We review de novo the grant or denial of a motion for summary judgment.
As we explained in Craig v. Eberly , 164 F.3d 490 (10th Cir. 1998):
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law. We view the evidence and draw reasonable inferences
therefrom in the light most favorable to the nonmoving party.
Although the movant must show the absence of a genuine issue of
material fact, he or she need not negate the nonmovant’s claim.
Once the movant carries this burden, the nonmovant cannot rest upon
his or her pleadings, but must bring forward specific facts showing a
genuine issue for trial as to those dispositive matters for which [he or
she] carries the burden of proof. The mere existence of a scintilla of
evidence in support of the nonmovant’s position is insufficient to
create a dispute of fact that is genuine; an issue of material fact is
genuine only if the nonmovant presents facts such that a reasonable
jury could find in favor of the nonmovant.
Id. at 493 (citations and quotation marks omitted); accord Geoffrey E.
MacPherson, Ltd. v. Brinecell, Inc. , 98 F.3d 1241, 1245 (10th Cir. 1996).
A. Garrett’s Theories of Liability
Garrett’s malpractice claim encompasses two theories of liability: “legal
5
negligence” and “breach of fiduciary duty.” While Garrett claims in his Reply
brief that the law of Oklahoma (rather than Missouri) should apply, neither party
analyzes the choice-of-law issue in any detail. 2
Accordingly, the law of both
jurisdictions is discussed below.
1. Negligence
Oklahoma and Missouri law clearly define the elements of a negligence
claim against an attorney. To prevail on such a claim in Oklahoma, a plaintiff
must prove “the existence of an attorney-client relationship, breach of duty by the
attorney, facts constituting the alleged negligence, that the negligence was the
proximate cause of the injury, and that but for the negligence the client would not
have suffered damage.” FDIC v. Ferguson , 982 F.2d 404, 406 (10th Cir. 1991)
(citing Allred v. Rabon , 572 P.2d 979, 981 (Okla. 1977)); accord Erwin v.
Frazier , 786 P.2d 61, 63-64 (Okla. 1989); Myers v. Maxey , 915 P.2d 940, 945
(Okla. Ct. App. 1996) . A plaintiff asserting a claim for attorney malpractice
under Missouri law must establish “(1) an attorney-client relationship; (2)
negligence or breach of contract by the defendant; (3) proximate causation of
plaintiff’s damages; (4) damages to the plaintiff.” Klemme v. Best , 941 S.W.2d
493, 495 (Mo. 1997) (citing Donahue v. Shughart, Thomson & Kilroy, P.C. , 900
2
The district court found that the rules governing malpractice in Oklahoma
and Missouri were substantially similar, and thus declined to resolve the choice-
of-law issue. Appellant’s Brief in Chief, Exh. A, at 7.
6
S.W.2d 624, 626 (Mo. 1995)).
2. Breach of Fiduciary Duty
Missouri law also clearly permits a plaintiff to sue an attorney for breach of
fiduciary duty. The elements of such a claim include “(1) an attorney-client
relationship; (2) breach of a fiduciary obligation by the attorney; (3) proximate
causation; (4) damages to the client; (5) no other recognized tort encompasses the
facts alleged.” Id. at 496. However, “if the alleged breach can be characterized
as both a breach of the standard of care (legal malpractice based on negligence)
and a breach of a fiduciary obligation (constructive fraud), then the sole claim is
legal malpractice.” Id. In other words, to assert a claim for breach of fiduciary
duty the alleged breach must be “independent of any legal malpractice.” Id.
While no case provides definitive guidance, we assume without deciding
that Oklahoma law likewise permits a plaintiff to sue his attorney for breach of
fiduciary duty. To assert a claim for breach of fiduciary duty in other contexts, an
Oklahoma plaintiff must demonstrate that he had a “special relationship” of
confidence and trust with the defendant. See , e.g. , Beshara v. Southern Nat’l
Bank , 928 P.2d 280, 288-89 (Okla. 1996) (dismissing a breach of fiduciary claim
for want of a “special relationship”); Swickey v. Silvey Companies , 979 P.2d 266,
269 (Okla. Ct. App. 1999) (same). Oklahoma courts hold that “a fiduciary
relationship arises where one party reposes special confidence in another, as in
7
the case of attorney and client . . . .” Crockett v. Root , 146 P.2d 555, 559 (Okla.
1943); see also State ex rel. Oklahoma Bar Ass’n v. McKenzie , 788 P.2d 1370,
1378-79 (Okla. 1989) (stating that fiduciary obligations may “sprin[g] from an
attitude of trust, confidence, and superior knowledge arising from the attorney-
client relationship”). Other Oklahoma decisions similarly acknowledge that the
attorney-client relationship is a fiduciary one. See , e.g. , Panama Processes, S.A.
v. Cities Serv. Co. , 796 P.2d 276, 290 n.61 (Okla. 1990); In re Estate of Beal , 769
P.2d 150, 154-55 (Okla. 1989); Lowrance v. Patton , 710 P.2d 108, 111 (Okla.
1985); Renegar v. Bruning , 123 P.2d 686, 688 (Okla. 1942).
B. The “Causation” Element
Our first task is to determine the amount of proof a plaintiff asserting a
claim for malpractice must offer to satisfy the “causation” requirement. Bryan
Cave contends that the traditional “but for” test applies to Garrett’s negligence
and breach of fiduciary duty claims. Garrett asserts that a more relaxed
“substantial factor” test should apply, at least with respect to his breach of
fiduciary duty claim. We conclude that neither Oklahoma nor Missouri has
adopted a relaxed standard of causation for malpractice or breach of fiduciary
claims.
1. Negligence
8
Oklahoma law requires proof of “but for” and “proximate” causation to
sustain a claim for negligence. The Oklahoma Supreme Court held in Allred that
a plaintiff suing his attorney for malpractice must demonstrate that a defendant’s
negligence “was proximate cause of an injury” and that “but for the negligence
complained of the client would have succeeded in his action.” 572 P.2d at 981. 3
Other cases interpreting Oklahoma law are in accord. E.g. , FDIC , 982 F.2d at
406; see also Edwards v. International Union, United Plant Guard Workers of
America , 46 F.3d 1047, 1051-52 n.2 (10th Cir. 1995) (citing Allred for the
proposition that a plaintiff in a malpractice action “must prove he would have
succeeded in the underlying action but for the attorney’s negligence”); Collins v.
Wanner , 382 P.2d 105, 108 (Okla. 1963) (indicating that a plaintiff in a
malpractice action normally has “the difficult task of demonstrating that, but for
the negligence complained of, the client would have been successful in the
prosecution or defense of the action in question”).
Missouri also requires proof of “but for” and “proximate” causation to
sustain a negligence claim. A plaintiff in a negligence case must show that the
defendant’s conduct was “(1) the cause in fact; and (2) the proximate, or legal,
3
To establish “proximate” causation, an Oklahoma plaintiff typically must
show that his injury was foreseeable and a “natural and probable” consequence of
the defendant’s acts or omissions. Lockhart v. Loosen , 943 P.2d 1074, 1079
(Okla. 1997).
9
cause” of his injury. Jones v. Trittler , 983 S.W.2d 165, 167 (Mo. Ct. App. 1998)
(citing Callahan v. Cardinal Glennon Hosp. , 863 S.W.2d 852, 860-61 (Mo.
1993)). The first prong of the test “requires finding the event would not have
occurred ‘but for’ the defendant’s conduct.” Id. Missouri courts emphasize that
“[t]he ‘but for’ requirement is a minimum standard in most cases. Proximate
cause also requires a measure of foreseeability in addition to ‘but for’ causation:
the injury must be a reasonable and probable consequence of the act or omission
of the defendant.” Vittengl v. Fox , 967 S.W.2d 269, 278-79 (Mo. Ct. App. 1997)
(citations omitted); accord State ex rel. Missouri Highway & Transp. Comm’n v.
Dierker , 961 S.W.2d 58, 60 (Mo. 1998); Sansonetti v. City of St. Joseph , 976
S.W.2d 572, 577 (Mo. Ct. App. 1998).
2. Breach of fiduciary duty
Recognizing that his negligence claim requires evidence of “but for”
causation, Garrett contends that a relaxed standard of proof should apply to his
claim for breach of fiduciary duty. Garrett cites Milbank, Tweed, Hadley &
McCloy v. Boon , 13 F.3d 537 (2d Cir. 1994) for the proposition that “[a]n action
for breach of fiduciary duty is a prophylactic rule intended to remove all incentive
to breach – not simply to compensate for damages in the event of a breach. . . .
[B]reaches of a fiduciary relationship in any context comprise a special breed of
cases that often loosen normally stringent requirements of causation and
10
damages.” Id. at 543 (citation and quotation marks omitted, applying New York
law); see also id. (stating that a plaintiff must show that the defendant’s breach of
duty was a “substantial factor” in the plaintiff’s injury). Garrett also cites several
cases from other states for the argument that a lesser standard of proof should
apply. See , e.g. , Cincinnati Ins. Co. v. Byers , 151 F.3d 574, 577, 579 (6th Cir.
1998) (stating that under Ohio law a plaintiff suing an attorney for negligence is
not required to “prove in every instance that he or she would have been successful
in the underlying matter(s)”) (citation omitted); Daugherty v. Runner , 581 S.W.2d
12, 20 (Ky. Ct. App. 1978) (stating that an attorney’s negligence must be a
“substantial factor” in the plaintiff’s injury).
Garrett’s argument is unpersuasive. The main problem with Garrett’s
position is that he cannot cite any Oklahoma or Missouri law to support it. In
Missouri, the rules governing causation are the same for malpractice claims
sounding in negligence and breach of fiduciary duty. See Klemme , 941 S.W.2d at
496. In Oklahoma, a plaintiff asserting a breach of fiduciary duty claim must
show that he was “actually and proximately injured as a result of the complained-
of act.” Cockings v. Austin , 898 P.2d 136, 139 (Okla. 1995). The Oklahoma
Supreme Court’s definition of “proximate” cause includes an element of “but for”
causation. See McKellips v. Saint Francis Hosp., Inc. , 741 P.2d 467, 470 (Okla.
1987) (stating that “proximate cause” encompasses both “legal” causation and
11
“but for” causation); Gaines v. Providence Apartments , 750 P.2d 125, 126-27
(Okla. 1987) (“The proximate cause of an event must be that which in a natural
and continuous sequence, unbroken by an independent cause, produces the event
and without which the event would not have occurred.”); Johnson v. Mid-South
Sports, Inc. , 806 P.2d 1107, 1109 (Okla. 1991) (same). Moreover, the Oklahoma
Supreme Court has carefully limited exceptions to the “but for” test in the
negligence context. See Hardy v. Southwestern Bell Tel. Co. , 910 P.2d 1024,
1037-30 (Okla. 1996) (restricting the application of a relaxed standard of
causation to certain medical malpractice actions); see also id. at 1029 ( citing
Daugert v. Pappas , 704 P.2d 600 (Wash. 1985) with approval, a legal malpractice
case in which the Washington Supreme Court rejected a relaxed standard of
causation). Thus, while neither Cockings nor Hardy squarely addresses the
standard of proof for a breach of fiduciary duty claim against an attorney, they
strongly suggest that exceptions to the rule of “but for” causation should be
applied sparingly.
C. The Parties’ Evidence
The evidence upon which Garrett relies falls into two categories. The first
category relates to Bryan Cave’s alleged disclosure of sensitive information. The
second relates to the causal connection between Bryan Cave’s purported
malpractice and the indictment. The district court correctly determined that none
12
of this evidence is sufficient to create a genuine issue of material fact.
1. Disclosure
Uncontested evidence demonstrates that no confidential or privileged
information was disclosed during the proffer session. For example, AUSA Cox
testified that she did not recall Garrett’s name being mentioned during the proffer
session, and that there was no discussion of any “strategy or tactics that Mr.
Garrett’s defense might use.” Appellee’s Supplemental Appendix (“Aplee. Supp.
App.”), Exh. C, at 704-05, 748-50. Attorney Coats also testified that he did not
recall Garrett’s name being mentioned at the proffer session. Bryan Cave
attorney Archer testified that he did not provide prosecutors with confidential
information or “any information in any way adverse to Mr. Garrett.” Id. at 317;
id. , Exh. A, at 34-35. Archer, Bryan Cave attorney O’Neill, and agent Kaitcer
further testified that Garrett’s name only came up once during the proffer session,
in connection with an unrelated matter. Finally, John Williams, who served as
Garrett’s personal counsel, testified that he had no knowledge of any privileged
information that was divulged during the proffer session. In short, uncontradicted
testimony from those with personal knowledge of what transpired at the proffer
session establishes that, at most, Garrett’s name came up once in connection with
non-privileged information.
Garrett’s attempt to avoid summary judgment on the issue of disclosure
13
revolves around two items of evidence. First, Garrett highlights a remark by
AUSA Cox. In a letter to O’Neill regarding the proffer session, Cox stated that
“Stifel attorneys then went on to express the opinion that they did have evidence
available pointing to criminal culpability, and discussed such evidence as
reflected in the notes.” Appellant’s Appendix (“Aplt. App.”), Exh. A, at 376-78.
Garrett then refers to a statement by O’Neill that at the time of the proffer session
the “only person that [O’Neill] had heard the FBI purportedly [say] might be a
target was Mike Garrett.” Id. at 565. Second, Garrett emphasizes the testimony
of his former counsel, Dino Viera. Viera testified that he found it “extremely
difficult to believe that an attorney could investigate all of these matters for a
period of over two years, then have a discussion with someone about those
transactions, and not divulge either direct privileged communications or the fruit
of those privileged communications.” Id. at 80, 88.
Cox’s “criminal culpability” remark falls far short of creating a genuine
issue for trial. In her letter to O’Neill, Cox stated that Bryan Cave attorneys
discussed evidence of criminal culpability “as reflected in the notes.” Despite
being given access to these notes, Garrett cannot identify any privileged
information that was leaked to prosecutors. Moreover, Cox’s “criminal
culpability” remark does not even refer to Garrett. Cox herself testified that any
discussion of “criminal culpability” at the proffer session focused on Cochran, not
14
Garrett. In the same vein, Archer and O’Neill testified that they did not believe
the facts would support an indictment against Garrett at the time of the proffer
session.
Viera’s “expert” opinion that he found it “difficult to believe” that Bryan
Cave attorneys did not divulge confidential information is also insufficient to
prevent summary judgment. Viera admitted that he did not know what was said at
the proffer session, and he cannot begin to describe the contents of privileged
communications that were allegedly disclosed. We have previously recognized
that “the testimony of an expert can be rejected on summary judgment if it is
conclusory and thus fails to raise a genuine issue of material fact.” Matthiesen v.
Banc One Mortgage Corp. , 173 F.3d 1242, 1247 (10th Cir. 1999); cf. United
States v. Rice , 52 F.3d 843, 847 (10th Cir. 1995) (affirming the exclusion of
expert testimony under Daubert because while “hypothesis may be an appropriate
subject for expert testimony when based upon conclusions from established
evidentiary facts,” such hypothesis cannot be “based entirely on pure surmise”).
In the words of the First Circuit,
[t]he evidentiary rules regarding expert testimony at trial were “not
intended . . . to make summary judgment impossible whenever a
party has produced an expert to support its position.” We are not
willing to allow the reliance on a bare ultimate expert conclusion to
become a free pass to trial every time that a conflict of fact is based
on expert testimony. . . . Where an expert presents “nothing but
conclusions – no facts, no hint of an inferential process, no
discussion of hypotheses considered and rejected”, such testimony
15
will be insufficient to defeat a motion for summary judgment.
Hayes v. Douglas Dynamics, Inc. , 8 F.3d 88, 92 (1st Cir. 1993) (citations
omitted); see also Weigel v. Target Stores , 122 F.3d 461, 468-69 (7th Cir. 1997)
(“[A] party cannot assure himself of a trial merely by trotting out in response to a
motion for summary judgment his expert’s naked conclusion about the ultimate
issue.”) (citation omitted).
2. Causation
Even if Garrett could establish that confidential information was conveyed
to the government, summary judgment would still be warranted on the issue of
causation. Uncontested evidence demonstrates that Bryan Cave’s conduct did not
cause federal prosecutors to indict Garrett. For instance, agent Kaitcer testified
that the government did not learn anything at the proffer session that “affected the
scope or the direction of the criminal investigation.” Aplee. Supp. App., Exh. C,
at 593. AUSA Cox similarly testified that she did not learn anything she did not
already know at the proffer session, and that the session did not influence the
indictment against Garrett. Cox also testified that the indictment against Garrett
had been drafted and presented to the “in-office indictment review committee”
prior to the proffer session, and that the session did not lead to any changes in the
indictment. Id. at 695-96. Along the same lines, Garrett’s criminal defense
counsel was unable to convince the U.S. Attorney’s office that it should not
16
prosecute Garrett.
This evidence notwithstanding, Garrett insists that a reasonable jury could
find in his favor on the issue of causation. First, Garrett points to the non-
prosecution agreement that Bryan Cave attorneys helped negotiate for Stifel.
Garrett suggests that a similar agreement could have been obtained for him, and
observes that Stifel’s agreement potentially required the company to cooperate
with the government at Garrett’s expense. Second, Garrett stresses the timing of
the indictment. Garrett notes that in response to subpoenas, Bryan Cave attorneys
assisted in the production of documents containing payroll information and
information about a transaction that was at issue in the SEC and FBI
investigations. On September 20, 1995, the day after some of Garrett’s payroll
records were produced, the United States Attorney’s office filed criminal charges
against Garrett. Third, Garrett contends that he explained complicated bond
transactions to Bryan Cave attorneys, and that the attorneys later used this
information to explain the transactions to prosecutors. Garrett asserts that in
1993, while he was still being represented by Viera, he discussed the subject
matter of the SEC investigation with Archer. Viera testified that in the 1993
meeting Garrett “educated” Archer about particular bond transactions, because
17
Archer was “behind on the learning curve.” Aplt. App., Exh. A, at 67-68. 4
Once again, this evidence falls far short of creating a genuine issue for
trial. First, the non-prosecution agreement is insufficient to sustain an inference
of causation. Agent Kaitcer and AUSA Cox unequivocally testified that the
proffer session affected neither the investigation nor the indictment. In view of
this testimony, it would be unreasonable for the jury to infer either that the
resultant agreement “imbued the prosecutorial team with the confidence it needed
to prosecute Garrett criminally,” see Aplt. Brief in Chief at 3, or that Garrett
could have avoided criminal charges if Bryan Cave had actively defended his
interests at the proffer session. Furthermore, the non-prosecution agreement
required Stifel , not Bryan Cave, to provide documents and cooperate with federal
investigators. Second, the mere fact that Garrett was indicted shortly after the
production of his payroll records does not prove that the latter caused the former.
See , e.g. , Sunward Corp. v. Dun & Bradstreet, Inc. , 811 F.2d 511, 521 & n.8
4
Garrett also claims that the following facts support his theory of
causation: (1) Bryan Cave attorneys were aware in the Spring of 1994 that, in
addition to the SEC, the FBI was investigating Stifel and its employees; (2) prior
to the proffer session, Bryan Cave attorneys knew that Garrett had been contacted
by and was a potential target of the FBI; (3) Bryan Cave attorneys did not
personally inform Garrett of the proffer session or obtain Garrett’s permission to
negotiate a deal on Stifel’s behalf; and (4) Bryan Cave attorneys did not present
exculpatory evidence or otherwise attempt to obtain an agreement with federal
prosecutors on Garrett’s behalf. However, these alleged facts relate to the issue
of whether Bryan Cave was negligent or breached a fiduciary duty, not whether
Bryan Cave’s actions caused the government to indict Garrett.
18
(10th Cir. 1987) (rejecting evidence based on “reasoning from sequence to
consequence, that is, assuming a causal connection between two events merely
because one follows the other”) (citation omitted). Third, nothing in the record
suggests that Bryan Cave’s purported tutorial had any influence on the
government’s decision to indict Garrett.
Garrett also argues that the testimony of expert witness Joel Wohlgemuth
precludes summary judgment. Wohlgemuth testified that he believed the decision
to indict Garrett “had to be based in part upon that proffer session,” and that he
was “not confident that Garrett would have been indicted had his counsel used
that window to address the problems that he had as well as the problems that
Stifel had.” Aplt. App., Exh. I, at 15, 19. Wohlgemuth also testified that he
believed Garrett was harmed “by not being afforded the opportunity that was
given to Stifel by Bryan Cave to be the first in to engage in a proffer session” and
by “not having the benefit of continuity of counsel.” Id. at 13.
Garrett’s argument misses the mark. Wohlgemuth acknowledged that his
“experience” was the only basis for his conclusion that Garrett was harmed by
“not being afforded the opportunity . . . to be the first in to engage in a proffer
session” and by “not having the benefit of continuity of counsel.” Id. at 13. The
only specific fact discussed in Wohlgemuth’s testimony is the “criminal
culpability” remark in Cox’s letter – a remark that has little probative value on
19
the issue of disclosure, and no probative value as to whether the information
allegedly disclosed caused the government to indict Garrett. Under cases such as
Matthiesen , Hayes , and Weigel , Wohlgemuth’s unsupported opinion (like Viera’s)
cannot forestall summary judgment. See also Black v. Baker Oil Tools, Inc. , 107
F.3d 1457, 1460 (10th Cir. 1997) (citing Vitkus v. Beatrice Co. , 11 F.3d 1535,
1539 (10th Cir. 1993) for the proposition that “[s]ummary judgment may be
granted if the evidence is merely colorable or is not significantly probative” ). 5
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
5
Although the element of causation often presents issues of fact for the
jury, summary judgment in this case is consistent with Oklahoma and Missouri
law. Oklahoma courts recognize that “[t]he question of proximate cause becomes
one of law when there is no evidence from which the jury could find a causal
nexus between the negligent act and the resulting injuries.” Elledge v. Staring ,
939 P.2d 1163, 1165 (Okla. Ct. App. 1996) (citing Thompson v. Presbyterian
Hosp., Inc. , 652 P.2d 260, 263 (Okla. 1982)). “When the matter is one of pure
speculation or conjecture or the probabilities evenly balanced,” judgment as a
matter of law is proper. Hardy , 910 P.2d at 1027; see also Butler v. Oklahoma
City Pub. Sch. Sys. , 871 P.2d 444, 446 (Okla. Ct. App. 1994) (granting summary
judgment for the defendant and commenting that “[s]peculation is the antithesis
of proximate cause”). Missouri courts similarly recognize that “[e]vidence of
causation must be based on probative facts and not on mere speculation or
conjecture.” Bond v. California Compensation & Fire Co. , 963 S.W.2d 692, 697
(Mo. Ct. App. 1998); accord Stanley v. City of Independence , 995 S.W.2d 485,
488 (Mo. 1999); Brison v. O’Brien , 645 S.W.2d 142, 145-46 (Mo. Ct. App.
1982).
20