NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                     No. 16-2005
                                   _______________

                                 JESSICA BAPTISTE,
                                            Appellant

                                           v.

                                     LEE J. ROHN

                                          ___

                         On Appeal from the District Court
                                 of the Virgin Islands
                              (D.V.I. No. 1-13-cv-00104)
                    District Judge: The Honorable Wilma Lewis
                                  _______________

                                 Argued: May 4, 2017

      Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges

                              (Opinion Filed: June 5, 2017)
                                   _______________

Andrew C. Simpson [Argued]
Andrew C. Simpson Law Offices
2191 Church Street, Suite 5
Christiansted, VI 00820
       Counsel for Appellant

Rhea R. Lawrence [Argued]
Lee J. Rohn
Lee J. Rohn & Associates
1101 King Street
Christiansted, VI 00820
       Counsel for Appellee
                                         _____________

                                           OPINION
                                         _____________
FUENTES, Circuit Judge.

       The plaintiff-appellant, Jessica Baptiste, brought a civil legal malpractice lawsuit

against her former lawyer, defendant-appellee Lee Rohn, claiming that Rohn was

negligent when she failed to file Baptiste’s personal injury case within the statutory time

period. Her case went to trial before a jury, where Baptiste carried the burden of

demonstrating that she would have prevailed in the underlying personal injury case had

Rohn filed it in time. The jury found that Baptiste would not have succeeded in the

underlying case, and that Rohn, therefore, was not liable for malpractice.

       On appeal, Baptiste argues that the District Court erred in requiring her to bear the

burden of proof on success in the underlying case. Instead, Baptiste proposes that

liability should be proven in one of two ways. The court could shift the burden to the

defendant-attorney to prove that the underlying case would not have succeeded even if

she had not been negligent. Or, in the alternative, the court could permit the plaintiff to

prove her case by showing that the defendant-attorney’s negligence caused a loss in the

value of the case. Because Baptiste could not have succeeded on her malpractice claim

even if the District Court had adopted either of her proposed methods of establishing civil

malpractice liability, we will affirm.

                                              I.



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                               2
       In August 2000, while Baptiste was working as an employee for a contractor,

Jacobs IMC, at the Hovensa refinery in St. Croix, she slipped on the last step of a bus

ferrying her to work and injured herself. She alleges that she suffered long-term injuries

as a result of the fall but continued to work for Jacobs at Hovensa. She waited a year and

a half before she retained attorney Rohn in February 2002 to represent her in her tort case

against Hovensa. At the time of her consultation, five months remained on the statute of

limitation.

       Instead of filing a complaint immediately, however, Rohn filed the complaint in

the Superior Court of the Virgin Islands on August 8, 2002, one day after the statute of

limitation ran. As a result, Baptiste’s case was dismissed before any discovery could take

place. Rohn appealed the dismissal to the Appellate Division, and, while the appeal was

pending, she sent Hovensa a settlement demand letter seeking $1.5 million. Hovensa did

not respond to that demand. The appeal was eventually denied, but Rohn did not inform

Baptiste of this denial until 2012, at which point Baptiste brought her legal malpractice

suit against Rohn in the District Court.

       Baptiste’s malpractice suit against Rohn went to trial in 2016. The District Court

adopted the “trial-within-a-trial” approach to prove liability in the malpractice case.

Under this approach, in order to establish that Rohn’s negligence caused her damages,

Baptiste would have to “try” her underlying case before the jury and bear the burden to

prove that she would have succeeded in the underlying case had it not been dismissed for

untimeliness. During the pre-trial conference, Baptiste argued to the District Court that

the trial-within-a-trial approach was inappropriate and urged it to adopt instead one of

                                              3
two alternative approaches. Baptiste argued that she should be permitted to either

establish liability by showing that Rohn’s negligence impaired the value of her case, or

be permitted to shift the burden of proof to Rohn to prove that Baptiste’s case would not

have succeeded. The District Court rejected both of these approaches. The District Court

also rejected Baptiste’s attempt to introduce Rohn’s $1.5 million settlement demand letter

into evidence. Ultimately, Baptiste lost the jury verdict because she could not meet her

burden of showing that she would have succeeded in the underlying case. The

malpractice question never reached the jury.

       Pending before the Court is the plaintiff’s appeal of the District Court’s exclusion

of the settlement demand letter and its adoption of the trial-within-a-trial approach to

prove legal malpractice.1

                                              II.

       On appeal, Baptiste is seeking reconsideration of two rulings made by the District

Court during the pre-trial conference. First, Baptiste argues that the District Court erred

in excluding the settlement demand letter Rohn sent to Hovensa refinery under Federal

Rules of Evidence 403 and 408. Second, Baptiste challenges the District Court’s

decision to utilize the trial-within-a-trial method to demonstrate liability in this case.



1
  The District Court had jurisdiction over this case under 28 U.S.C. § 1332. We have
jurisdiction to hear this appeal under 28 U.S.C. § 1291. We exercise de novo review of
the District Court’s interpretation of Virgin Islands law on legal civil malpractice.
Koppers Co. v. Aetna Casualty & Surety Co., 

, 1445 (3d Cir. 1996). We
review the exclusion of evidence for abuse of discretion, but where that ruling is based on
an interpretation of the Federal Rules of Evidence, our review becomes plenary. United
States v. Georgiou, 

, 143 (3d Cir. 2015).
                                               4
Instead, Baptiste requests that we either adopt one of the two approaches she outlines or

certify the question to the Virgin Islands Supreme Court.

        We will first consider the exclusion of the settlement demand letter. Baptiste

sought to introduce this demand letter in her suit to demonstrate “the loss in value of her

claim due to Rohn’s negligence” because it shows that “even after the case was dismissed

(e.g. at a time when the validity of the claim was not at issue), Rohn felt that the case had

significant value.”2 Rohn, during the pre-trial stage, filed a motion in limine to exclude

the letter under Rules 403 and 408. The District Court granted the motion, finding that

the letter was excludable under either rule. We will affirm the exclusion under Rule

403.3

        Under the Federal Rule of Evidence 403, a “court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” The District Court here

found that “any probative value of the letter is substantially outweighed by the potential

prejudice to Defendant and the danger of misleading the jury as to the value and


2
  Appellant’s Br. at 30.
3
  Rule 408 prohibits the use of settlement demand letters “on behalf of any party either to
prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction.” Fed. R. Evid. 408. Rule 408 is typically
applied to exclude statements made in the efforts to settle a claim in the trial involving
that same claim. Whether Rule 408 may be applied in cases like this—to exclude
settlement evidence between Baptiste and Hovensa in Baptiste’s legal malpractice suit
against Baptiste’s own lawyer—is an issue of first impression in this circuit. We do not
need to address that issue today, however, because we may affirm the exclusion under
Rule 403.
                                              5
legitimacy of Plaintiff’s claim against Hovensa.”4 Baptiste’s challenge to this ruling is

procedural in nature. She argues that the District Court erred in failing to “identify the

nature of the ‘potential prejudice’ to Rohn or conclude that such prejudice was ‘unfair’; .

. . [or] consider the use of a limiting instruction that would have made it clear that the

letter was admitted to show that Baptiste’s malpractice claim had value or to show bias.” 5

       As we have previously held, we will not disturb a district court’s Rule 403

explicit balancing analysis unless “it is irrational or arbitrary.”6 Though it would be

edifying for the parties, we have held that district courts need not elaborate on their

analysis to be entitled to our deferential review.7 Here, the District Court clearly

performed an explicit balancing analysis, which is neither irrational nor arbitrary. We

agree that the unanswered settlement demand letter has little probative value. We also

agree that what little probative value exists was substantially outweighed by both the

potential prejudice and confusion it may cause jurors, who would have been presented

with a number “valuing” Baptiste’s tort claim against Hovensa, but which number did not




4
  Appx 27.
5
  Appellant’s Br. at 33.
6
  Ansell v. Green Acres Contr. Co., 

, 525 (3d Cir. 2003) (quotation marks
omitted).
7
  See, e.g., 

the district court “fails to explicitly articulate the Rule 403
balancing,” we could still decide that it “implicitly performed the required balance” and
review that decision for abuse of discretion); Glass v. Phila. Elec. Co., 

, 192
(3d Cir. 1994) (noting that “the trial court’s failure to expressly articulate a Rule 403
balance when faced with a Rule 403 objection, would not be reversible error per se,” and
that the district court in that case would be entitled to abuse of discretion review even
where the district court did not explain its balancing analysis at all and merely said “Let’s
not relitigate the Eddystone matter. . . . I’ll sustain the objection”).
                                              6
appear to be based on any real damages calculation. Consequently, we will affirm the

District Court’s decision to exclude the letter.

       Second, we turn to Baptiste’s argument that the District Court erred in adopting

the so-called trial-within-a-trial method, which requires Baptiste to prove that she would

have succeeded in her underlying case against Hovensa in order to demonstrate liability

in the malpractice case. Baptiste advocates for two alternative approaches: (1) the burden

should have been shifted to Rohn to prove that the underlying tort case against Hovensa

would have failed; or (2) Baptiste should have been permitted to prove her case by

demonstrating merely a loss in the value of a case. Without determining how the Virgin

Islands should require plaintiffs to prove liability in civil legal malpractice tort cases

based in tort, we will affirm the jury’s verdict in favor of Rohn because Baptiste would

have failed to prove her case as a matter of law even if her alternative approaches were

adopted.8

       Even if the District Court had adopted the first approach and shifted the burden to

Rohn to prove lack of success in the underlying case, Baptiste would still have lost.

Testimony at trial revealed that though Hovensa was the legal owner of the bus on which

Baptiste slipped in August 2000, Hovensa did not have control over it.9 Hovensa had


8
  Baptiste also requested that we certify this question to the Virgin Islands Supreme
Court. Both under our own Local Appellate Rule 110.1 and the Virgin Islands Supreme
Court Rule 38(a), we may certify a question to the Virgin Islands Supreme Court only if
the question is outcome determinative. Because we find, for the reasons below, that
Baptiste could not prevail regardless of which liability approach the District Court
adopted, we will also deny her request to certify the question.
9
  See Appx 654-59 (testimony by bus driver that he worked for Jacobs IMC, not
Hovensa, and that Jacobs maintained the bus, and made the decision to change the last
                                               7
leased the bus to Jacobs IMC, Baptiste’s employer at the time, and transferred all

maintenance duties to Jacobs. In other words, Hovensa could not have “negligently

maintained the bus which caused Plaintiff Baptiste’s injury and her resulting damages,”

as she alleged.10

       Baptiste’s second suggested approach likewise fails for lack of evidence. Baptiste

argues that she should have been permitted to demonstrate liability by proving a loss of

value in the case, divorced from underlying success on the merits. Baptiste, however,

had no evidence tending to show what the “value” of the case might have been had Rohn

filed the complaint in time, and, thus, no way of proving to the jury any reduction in

value. Baptiste was barred from using the settlement demand letter as proof of value, and

she did not have an expert who could have testified to the same. The only damages

evidence she presented was her own testimony regarding the pain she suffered and the

handful of days she was out of work due to her injury. But even this kernel of damages

evidence is insufficient by itself. The main assumption of a loss-of-value theory is that

there is some value to Baptiste’s claim against Hovensa even if it might not have

succeeded on the merits. In other words, the “value” of the case is something related to

but different from Baptiste’s actual damages. Therefore, Baptiste would need to present

some additional evidence showing the relationship between her actual losses and the

potential settlement value of her claim, which she has not done.

step of the bus to plywood after discovering that the original metal step had rotted); Appx
684-85 (testimony by Hovensa’s former counsel that Hovensa owned the buses but leased
them to contractors, such as Jacobs, and that the contractors were responsible for the
maintenance of the buses during the pendency of the leases).
10
   Appx 978.
                                             8
       During argument, Baptiste pivoted slightly to argue that she need not present

evidence of actual damages because the loss of the right to sue itself is an injury for

which she should have received nominal damages. This argument is equally meritless.

Nominal damages are typically reserved to “vindicate[] deprivations of certain ‘absolute’

rights that are not shown to have caused actual injury,” 11 such as the right to procedural

due process and the right to be free from unlawful arrests, searches, and seizures, and

from racial discrimination.12 In the context of legal malpractice suits, “[t]he prevailing,

and more reasonable view, is that an actual, measurable injury is essential to a cause of

action, and that a plaintiff is not entitled to nominal damages.”13 In fact, only one state

appears to permit the recovery of nominal damages.14

       Baptiste supports her assertion that nominal damages are available by relying

solely on an inapposite Virgin Islands Supreme Court case, Arlington Funding Services,

Inc. v. Geigel, which explained, in the context of standing doctrine, that “[it] is a long

standing principle of tort law that loss of the right to sue represents an injury in and of




11
   Carey v. Piphus, 

, 266 (1978) (holding that students who have
demonstrated that their procedural due process rights were violated may recover nominal
damages not to exceed $1 because “the right to procedural due process is ‘absolute’ in the
sense that it does not depend upon the merits of a claimant’s substantive assertions, and
because of the importance to organized society that procedural due process be
observed”).
12
   

n.22.
13
   3 Ronald E. Mallen, Legal Malpractice § 21:5, Westlaw (database updated January
2017); see also 7A C.J.S. Attorney & Client § 366; Christopher C. Haug, The Law of
Damages in a Legal Malpractice Action, 24 J. Legal Prof. 433, 433-34 (2000).
14
   Spence v. Hilliard, 

, 634 (Ga. 1987).
                                               9
itself.”15 But the mere fact that a plaintiff has suffered an injury such that she has

standing to bring suit does not mean that she has suffered an injury for which she must be

compensated, regardless of actual loss. Consequently, we find that Baptiste has not

demonstrated that she could have prevailed under the loss-of-value theory

                                             III.

       For the foregoing reasons, we will affirm the jury verdict in favor of Rohn.




15
  

, 126 (2009), overruled in part on other grounds by Benjamin v. AIG Ins.
Co. of P.R., 

(2012).
                                              10