DePape v. Trinity Health Systems, Inc.

MEMORANDUM OPINION AND ORDER REGARDING BENCH TRIAL ON THE MERITS

TABLE OF CONTENTS

I. INTRODUCTION.589

II. FINDINGS OF FACT.590

III. CONCLUSIONS OF LAW.601

A. Count I: Promissory Estoppel.602

B. Count II: Breach-of-Contract.603

C. Count III: Negligence.605

D. Count IV: Legal Malpractice .608

1. Failure to pursue H-1B visa.608

2. Failure to communicate and advise.609

a. Breach of duty.609

*589 b. Causation . co i-H CO .

c. Damages. ^ tH to .

i. Lost income . ^ tH CO .

ii. Emotional distress. to t — t CD .

IV. CONCLUSION. .617

We recognize the importance of personal contact with clients as an integral part of being a responsive firm. -Blumenfeld, Kaplan & Sandweiss, P.C. law firm website, found at www.bks-law.com.

The plaintiff in this breach-of-contract and legal malpractice case, Dr. Gregory dePape, is a Canadian citizen who completed his medical studies and training in Canada. Thousands of miles away in the small city of Fort Dodge, Iowa, Trimark Physicians Group, Ltd. (“Trimark”) sought a family physician to fill a vacancy and to meet the burgeoning needs of the Fort Dodge medical community. Through a consulting firm, Trimark successfully recruited Dr. dePape to fill this vacancy, and in March of 1999, Trimark and Dr. de-Pape, while still living and working in Canada, entered into a five-year employment contract.

As part of the contract negotiations process, the parties discussed immigration matters and the fact that Dr. dePape needed to obtain a visa for lawful entry and permission to work in the United States prior to beginning employment. In order to obtain such permission, Trimark engaged the services of a St. Louis, Missouri law firm, Blumenfeld, Kaplan & Sand-weiss, P.C.

The facts of this case will be discussed in far more detail below in the court’s Findings of Fact. By way of introduction, it suffices to say that, on June 8th, 2000, Dr. dePape, at the direction of the Blumenfeld law firm, having flown 3,000 miles from the home he was leaving in Vancouver, British Columbia, attempted to cross the Peace Bridge at the Canadian/Buffalo, New York border into the United States on his convoluted immigration journey to begin practicing family medicine in Fort Dodge, Iowa. Dr. dePape found himself stranded at the Canadian/United States border in shock— homeless, jobless, and temporarily posses-sionless. This litigation raises the question of who, if anyone, bears legal responsibility for Dr. dePape’s plight.

7. INTRODUCTION

Dr. dePape initiated this lawsuit on April 18, 2001. 1 In his original complaint, he named Trimark and Trinity Health Systems, Inc. (“Trinity”) as defendants. 2 He alleged causes of action based on promissory estoppel (count I), breach of contract (count II — against Trimark only), and negligence (count III). Defendants Trinity and Trimark answered on June 6, 2001, and on October 29, 2001, they brought a third-party action against the Blumenfeld law firm. In their third party complaint, Trimark and Trinity alleged legal malpractice against the Blumenfeld law firm and, assuming liability, sought contribution and indemnification. On the eve of trial, Dr. dePape amended his complaint and likewise asserted a legal malpractice claim against Blumenfeld.

A non-jury bench trial was held in this matter on November 4-7, 2002 in Des *590 Moines, Iowa. 3 At this bench trial, the plaintiff was represented by Lawrence L. Marcucci of Marcucci & Conger, P.L.C., West Des Moines, Iowa. Defendants Trimark and Trinity were represented by Stuart J. Cochrane of Johnson, Erb, Bice, Kramer, Good & Mulholland, P.C. of Fort Dodge, Iowa. And finally, defendant Blu-menfeld was represented by Rosco A. Ries, Jr. of Whitfield & Eddy, P.L.C., Des Moines, Iowa. All parties submitted post-trial briefs, which the court has duly considered. The court finds that the matter has been fully submitted and that it is now before the court for final disposition.

II. FINDINGS OF FACT

Pursuant to Federal Rule of Civil Procedure 52, a court presiding over a bench trial is required to make findings of fact and conclusions of law. In reviewing a district court’s order entering judgment after a bench trial, the court of appeals reviews the district court’s factual findings for clear error and reviews its legal conclusions de novo. FED. R. CIV. P. 52(a); Speer v. City of Wynne, Ark., 276 F.3d 980, 984-85 (8th Cir.2002). “Under this standard, [the Eighth Circuit Court of Appeals] overturn[s] a factual finding only if it is not supported by substantial evidence in the record, if the finding is based on an erroneous view of the law, or if [the appellate court is] left with the definite and firm conviction that an error has been made.” Estate of Davis v. Delo, 115 F.3d 1388, 1393-94 (8th Cir.1997). In addition, a reviewing court gives due regard to the opportunity of the district court to judge the credibility of the witnesses. Id.; Fed. R. Civ. P. 52(a).

The facts in this case are not seriously in dispute — only in some instances do the parties’ versions of the facts vary. In any event, the court, as the factfinder in this bench trial, did not have difficulty discerning what actually happened.

Dr. dePape is from British Columbia, Canada. He received his medical degree from the University of British Columbia in May of 1997 and completed his specialty training in family medicine at Dalhousie University in Halifax, Nova Scotia in June of 1999. He focused his medical training on rural medicine, and he hoped to practice in a small United States community as a family physician. Medical students typically begin the job search process at least one year before completing their residency training. Dr. dePape had a job offer from a clinic in Grand Forks, North Dakota, but the prospect of a long and cold North Dakota winter was daunting. Thus, he kept his options open, and he was pleased to be contacted by Dawn Hamman of Enterprise Medical Services. Ms. Hamman was a Physician Search Consultant, and Trimark had engaged her firm’s services to recruit a family physician who was a good “fit” and who was willing to relocate to Fort Dodge to fill a family physician vacancy.

Through Ms. Hamman, Dr. dePape and Trimark entered into discussions in January of 1999. Trimark offered Dr. dePape a position, and contract negotiations proceeded swiftly. By March of 1999, Trimark and Dr. dePape were ready to put their agreement into writing. On March 9, 1999, Trimark and Dr. dePape entered into a five-year Professional Employment Agreement. Pursuant to this agreement, Dr. dePape would receive an annual income of $130,000 the first year, $140,000 the second year, and a percentage of his net production the following years. In addition, Trimark constructed a new office *591 for Dr. dePape, guaranteed him an interest-free loan (up to $100,000) to pay his school debts, contributed to a 401K plan on Dr. dePape’s behalf, provided life insurance benefits, and agreed to pay for Dr. dePape’s professional dues and licensure expenses. Not included within the terms of the Professional Employment Agreement but pertinent to this lawsuit are discussions and oral agreements relating to Dr. dePape’s immigration to the United States.

During the course of the negotiations process, Jack Grandgeorge was the primary liaison between Trimark and Dr. de-Pape. At Trimark, Mr. Grandgeorge was a vice president and a full-time recruiter. Dr. dePape and Mr. Grandgeorge discussed immigration matters, and, in a March 11, 1999 memorandum, Mr. Grandgeorge confirmed in writing the “verbal promises made” to Dr. dePape. [Pf. exh. 4]. The memo indicates that, among other promises, Trimark agreed to “pay for the immigration costs” associated with Dr. dePape’s immigration. [Pf. exh. 4]. In this regard, Richard Rhiner, the Senior Vice President of Trinity Health Systems, reiterated this promise in a letter to Dr. dePape, dated March 17, 1999. [Pf. exh. 8]. Mr. Rhiner’s letter advises that Trinity Health Systems had engaged the services of the Blumenfeld law firm and that the costs incurred would be assumed by Trinity Health Systems.

Trinity retained the Blumenfeld law firm in April of 1999 on the advice of Ms. Hamman. Ms. Hamman recommended the Blumenfeld firm based on her prior experience with one of the firm’s partners, Partner A. 4 The Blumenfeld law firm was experienced in assisting Canadian physicians to immigrate to the United States. In fact, it had been successful in the past in gaining entry to the United States on behalf of at least six other Canadian physicians using the identical strategy it ultimately employed in Dr. dePape’s case. In addition, Partner A was the chief editor of a book that deals entirely with the immigration of foreign physicians to the United States — AILA’s Occupational Guidebook: Immigration Options for Doctors (1995). Both Partner A and Partner B were contributing authors to this book.

It was clear to all parties that the ultimate goal in engaging the Blumenfeld firm was to obtain a “green card” for Dr. de-Pape so that he could remain permanently in the United States. Trimark made this goal exceedingly clear to Blumenfeld. Dr. dePape’s employment contract was for five years, but both he and Trimark envisioned a long-term employment relationship. Trimark, perhaps even more so than Dr. de-Pape, was eager to begin the employment relationship. It constructed a new office for Dr. dePape and expended a considerable amount of money in recruiting him and paying for his visits to Fort Dodge. It viewed Dr. dePape as a “perfect fit” with its physician’s group and highly anticipated his arrival.

Dr. dePape was likewise excited about beginning his career in Fort Dodge. He chose to come to the United States because he viewed the health system in this country as more patient-friendly than the Canadian system, which he testified is marked by delays in treatment. In Fort Dodge, he saw the opportunity to practice family medicine in a rural area with a group of like-minded physicians, and Dr. dePape expected to have a long, if not permanent, successful and fulfilling career with Trimark.

*592 On April 23, 1999, one month after Trimark and Dr. dePape entered into their employment contract, Blumenfeld held an initial conference regarding its representation of Trimark and Dr. dePape. Partners A and B of the Blumenfeld firm, Mr. Rhiner, Mr. Grandgeorge, and Ms. Hutto participated in this initial conference. Notably, Blumenfeld did not advise Dr. dePape to participate, nor did it even inform him of the conference. At this conference, Blu-menfeld outlined Dr. dePape’s immigration options. At the time of this conference, Blumenfeld learned (1) that Dr. dePape had a five-year employment contract with Trimark; (2) that both Dr. dePape and Trimark expected an employment relationship that would endure longer than five years and, ideally, the entirety of Dr. de-Pape’s medical career; and (3) that Dr. dePape had not taken a three-stage set of examinations, known as the USMLE’s, 5 which precluded him from receiving one of the two visas available to foreign physicians — namely, the H-1B visa.

At this initial conference, Blumenfeld advised Trimark that Dr. dePape could enter the United States on one of two visas: either an H-1B visa or a TN. visa. This is so despite Blumenfeld’s early knowledge that Dr. dePape was not eligible for an H-1B visa and despite its failure to even suggest that Dr. dePape should consider taking the USMLE’s in order to become H-lB-eligible. Blumenfeld’s clear focus in the initial conference and continuing throughout its representation of the plaintiff and Trimark was primarily on the H-1B visa labor certification process. Moreover, while no one who participated in the initial conference was able to recall precisely what was discussed, Blumenfeld’s notes relate almost entirely to the H-1B labor certification process. [Trimark exhs. 102, 148]. The only reference to the TN visa in Blumenfeld’s notes falls at their conclusion and states only Blumenfeld’s fees for pursuing this visa.

After holding the initial conference, Partner A sent Mr. Rhiner an engagement letter on April 26, 1999, confirming the parties’ agreement and Blumenfeld’s commitment to represent Trimark and Dr. dePape throughout the immigration process. It bears repetition that it is undisputed in this litigation that Blumenfeld represented both Trimark and Dr. de-Pape. The engagement letter specifically states that both Trimark and Dr. dePape are Blumenfeld’s clients, but Partner A sent a copy of the letter only to Trimark. Thus, Blumenfeld’s pattern of failing to communicate with Dr. dePape arose from the very outset of its representation of him. The engagement letter outlines Dr. dePape’s immigration options; yet Blu-menfeld did not send a copy to him, nor did Blumenfeld advise Trimark to forward the engagement letter to Dr. dePape. Dr. dePape did not see the letter until preparing for this trial. In addition, the letter, like the conference, focuses on the H-1B visa and does not explain the stringent limitations of the TN visa. Indeed, the subject heading of the engagement letter is “Labor Certification Application Based Upon Request for Reduction in Recruitment for Dr. Gregory E. DePape [sic].” [Pf. exh. 9].

On April 30, 1999, Mr. Grandgeorge retired. Megan Hutto filled his position and *593 became the primary intermediary between Dr. dePape and Trimark. Ms. Hutto’s job with Trimark was her first job out of college, and by all accounts, she was extremely competent, albeit inexperienced. Her principal duty, pertinent to this case, was to facilitate communication between Trimark and Dr. dePape and to make Dr. dePape’s transition to Trimark as seamless as possible.

Ms. Hutto held a bachelor’s degree in Microbiology and a master’s degree in Healthcare Administration. Neither she nor anyone else at Trimark had any training in immigration law. Yet, like Ms. Hut-to’s employer, Blumenfeld relied heavily— most times solely — on Ms. Hutto as a conduit for its communication with Dr. de-Pape.

It is undisputed that an H-1B visa is the preferred method of bringing a foreign physician into the United States. It is available to individuals engaged in certain enumerated specialty occupations, ranging from fashion modeling to practicing medicine. Like a TN visa, an H-1B visa is a temporary, non-immigrant visa. Temporary visas are just that — temporary. A common thread of all temporary visas is that the visa-holder must not have the intent to remain permanently in the United States. The INS, however, recognizes the concept of “dual intent” with H-1B visas. This means that, while an H-1B visa is only temporary, a pending application for permanent residency does not disqualify someone from receiving H-1B status. This is so despite the fact that, technically, an H-1B visa applicant or holder must not have the intent to remain permanently in the country.

In order to perform direct patient care on an H-1B visa, the foreign physician must have successfully completed the USMLE’s. In addition, the employer seeking to employ an H-1B visa-holder must petition the United States Secretary of Labor for labor certification. This process appears to be, for the most part, a game of smoke and mirrors, in which the employer, having already decided to employ a specific foreign national, places advertisements in various national newspapers in order to show that it made a good faith effort to employ a qualified United States citizen but was .unable to find one. This showing is a prerequisite to receiving labor certification, and Blumenfeld wrote and published at least one job vacancy announcement on Trimark’s behalf. Blu-menfeld’s ad intentionally emphasized the negative aspects of the job to discourage U.S. citizens from applying.

Placement of such an ad was one aspect of the services associated with the labor certification process that Blumenfeld performed and for which it charged substantial fees This is particularly troubling in light of Blumenfeld’s knowledge that Dr. dePape was not eligible for an H-1B visa. Furthermore, Blumenfeld never attempted to ascertain whether Dr. dePape would complete the USMLE’s, nor did it advise Dr. dePape that completion of the USMLE’s was a necessary prerequisite to obtaining an H-1B visa and would be in his best interest. No one suggested to Dr. dePape that he should consider taking the USMLE’s in order to become H-lB-eligible until after his failed entry attempt on June 8, 2000. Dr. dePape declined that option because he held misconceptions about the length of time that it took to complete the exams. Dr. dePape believed that the USMLE’s could not be completed in fewer than two years, while Partner A and Partner B testified that the process could be completed in six to eight months. Had Blumenfeld conveyed this information to Dr. dePape, he might not have been opposed to taking them, especially if he had been advised about the USMLE process in April of 1999 because the evidence suggests that Dr. dePape could have com *594 pleted the examinations before he was eligible to enter the United States under either the H-1B visa or the TN visa, as both visas required that he obtain an Iowa medical license prior to seeking entry to the United States, and Dr. dePape did not receive his Iowa license until May 31, 2000.

When Blumenfeld belatedly ascertained that Dr. dePape could not enter the country on an H-1B visa, it switched gears and began working on a TN visa. And while the TN visa option was briefly discussed at the initial conference between Trimark and Blumenfeld and reiterated in the April 26, 1999 engagement letter, Blumenfeld did not begin work on a TN visa until December of 1999. More importantly, until the fateful fiasco at the Peace Bridge on June 8, 2000, Blumenfeld never discussed the stringent requirements of a TN visa with Dr. dePape.

The North American Free Trade Agreement (“NAFTA”) provides for “trade national” visas for certain professionals. Only Canadian and Mexican citizens may enter the United States on TN visas. The pertinent provision of the TN law allows for the temporary entry of Canadian citizens who are physicians entering the United States in order to perform teaching and research duties, which may include “incidental patient care.” Unlike the H-1B visa, INS interpretations of the TN visa do not recognize “dual intent” so that a pending labor certification petition or application for permanent residency disqualifies an individual from entering the United States on a TN visa. This is so because the TN visa requires a bona fide intent to remain only temporarily in the United States and to not have the intent to establish permanent residency in the United States. The regulations promulgated in association with the TN visa define “temporary entry” and provide:

Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien’s entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.

8 CFR § 214.6(b).

Similarly, the NAFTA handbook 6 explains the requisite “intent” element of a TN visa:

Temporary Entry — 8 CFR 214.6(b)

AILA [American Immigration Lawyers’ Association] suggested that the [Immigration and Naturalization] Service apply the concept of “dual intent” to the TN classification to accommodate business persons who may be adversely affected by the filing of a permanent residence petition or an application for a labor certification in their behalf. The concept of “dual intent” allows certain nonimmigrant aliens to retain nonimmi-grant status even where the alien may have made application for permanent residence or where an employer has filed an application for a labor certification or employment-based petition in his or her behalf.

This suggestion cannot be adopted because it is clearly inconsistent with Article 1608 of the NAFTA. For purpose of *595 Chapter 16 of the NAFTA, Article 1608 of the NAFTA defines “temporary entry” specifically as “entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence.” (Emphasis added) In order to further explain the temporary nature of a TN alien’s entry into the United States, the definition of “temporary entry” has been clarified in the final rule providing that while there is no specific limit on the total period of time a citizen of Canada or Mexico may remain in TN status, the TN classification is nevertheless for persons seeking temporary entry without the intent to establish permanent residence. This clarified definition of “temporary entry” comports with that used by the Department of State and the intent of the Article 1608 of the NAFTA. See 22 CFR 41.59(c) (December 28, 1993).

United States DepaRtment Of Justice IMMIGRATION & Naturalization SERVICES, Naf-ta HandbooK § 1, ch. 16, Annex 1608 (1999) (citing 63 Fed.Reg. 1331, 1333 (Jan. 9, 1998)), found at 1999 WL 33438091.

When Blumenfeld began work on a TN visa for Dr. dePape, it knew that the position described in his Employment Agreement would not pass muster as an acceptable TN classification job description for two reasons. First, the TN visa is temporary, and Dr. dePape had a five year employment contract that he intended to be extended indefinitely. Second, the TN visa is available to North Americans who are coming to the United States to perform certain enumerated professional jobs, and a family physician is not one of the permissible job classifications. Physicians entering the United States on TN status are permitted to conduct research and to teach, and patient care is limited to that which is incidental to the research or teaching. Because Dr. dePape had a contract that outlasted the duration of the TN visa and was for a job that was not permitted by the visa, Blumenfeld, without consulting its clients, concocted a fictitious job title and description. Blumenfeld labeled this position “Physician Consultant” and described the duties of this position as a “community health care needs assessment.” Blumenfeld did not discuss with Dr. dePape or Trimark the newly created position or the fact that Dr. dePape could not enter the United States and practice family medicine on the TN visa. Furthermore, at trial, Blumenfeld admitted that it merely “cut and pasted” the community health care needs assessment description that it had used with prior Canadian physicians into Dr. dePape’s TN application letter.

According to Partner B, a community health care needs assessment is a study whereby a physician learns the demographics and the needs of a community in which he or she plans to develop a new practice by performing direct patient care. Partner A admitted at trial that he created the community health care needs assessment without consulting the hospital to determine if it was needed, if it would be beneficial, or if it would be done. Both Partner A and Partner B assumed that they “must have” explained the community health care needs assessment to Dr. de-Pape, but they were unable to produce any telephone, email, billing record, or other writing that would suggest they had done so. In fact, it would have been difficult for Blumenfeld to have explained to Dr. de-Pape the nuances of the community health care needs assessment and the complexities of the TN visa because Blumenfeld did not even have Dr. dePape’s phone number or address on file and never once attempted to contact him. Dr. dePape initiated what little contact there was with Blumen-feld, and the entirety of their single conference took place in 1/10 of an hour. It would be impossible to explain the cerebral *596 subtleties of the TN visa and the severe limitations that would accompany Dr. de-Pape’s entry to the United States on this visa in six short minutes, and Partners A and B did not attempt to argue that they had done so. Moreover, the court specifically finds that they did not.

Blumenfeld had successfully used the community health care needs assessment in the past with at least six other Canadian physician TN entries. In at least five of the six prior cases, neither the foreign doctor nor the employing hospital requested the community health care needs assessment, and the evidence strongly suggests that all but one of Blumenfeld’s clients never actually performed such an assessment after gaining entry. Instead, the community health care needs assessment was merely a subterfuge by which to gain entry. Once accomplished, the foreign physicians proceeded to adjust their status to permanent residents. The community health care needs assessment was solely the creation of the immigration lawyers, and they were the only ones who knew what it was. In this case, it is clear that no one at Trimark or Dr. dePape had any indication of what a community health care needs assessment entailed or how it was to be implemented; therefore, there is no way Trimark could have legitimately carried through with it. The court finds that, had Dr. dePape gained entry, a community health care needs assessment would not have been performed and that Blumenfeld did not expect that it would be.

Furthermore, even if Dr. dePape would have followed through with Blumenfeld’s interpretation of a legitimate community health care needs assessment, he still would not have been in compliance with the TN law because his job as a Physician Consultant, according to Partner B, would not have interfered with his family physician duties. Partner B testified that a physician could enter the United States on a TN visa and legitimately perform his or her duties as a family physician because this patient care would enable the physician to “get a feel” for the demographics of the area. As such, Dr. dePape would have had significant direct patient care, which the TN law does not permit. Blumenfeld argued at trial that the meaning of “incidental patient care” that a TN visa-holder may perform is a grey area of the law because it is undefined in the regulations. While perhaps true, this case does not require the court to decide a case of first impression regarding the meaning of “incidental patient care” because there is no question that the level of patient care that Blumenfeld argued Dr. dePape could lawfully provide in Fort Dodge is anything but incidental.

Webster’s Collegiate Dictionary defines “incidental” as “being likely to ensue as a chance or minor consequence.” MeRRIAM Webster’s Collegiate Dictionary 587 (10th ed.1995). Similarly, Princeton University’s WordNet defines it as “not of prime or central importance.” Princeton University, WordNet, found at < http://dictio-nary.reference.com/'search? q = incidental >. In this case, Dr. dePape and Trimark intended that, even if Dr. dePape would have performed a community health care needs assessment, the primary component of the community health care needs assessment would have been the provision of direct patient care. Because primary is antonymous with “incidental,” the court concludes that Blumenfeld’s version of a community health care needs assessment would not have been lawful. Instead, it was a sham artifice to impermissibly allow Canadian physicians entry into the United States.

The court, furthermore, finds that Blu-menfeld’s interpretation of the requisite “temporary entry” intent of a TN visa is similarly flawed. The regulations inter *597 preting “temporary entry” clearly state that a TN applicant cannot possess the intent to establish residency in the United States. At trial, Partner A testified that the law permitted Dr. dePape to sign a five year employment contract with Trimark and to have the intent to immigrate to the United States and practice medicine here forever so long as, at the moment he crosses the border, he is not eligible for permanent resident status. In other words, Dr. dePape would have the requisite temporary intent until the moment INS issues him a green card because, regardless of his aspirations to become a permanent resident, he cannot realize those aspirations until INS grants him permanent resident status. Partner A described this abstract distinction as choate versus inchoate intent, and he acknowledged that there are no cases, law journals, regulations, or INS interpretive guidelines adopting this approach. The court finds that this definition is wholly unsupported by the law.

Because no one but Blumenfeld knew what a community health care needs assessment was, because the hospital did not request or need it, and because Blumen-feld’s interpretation of inchoate intent is in direct contradiction of the plain language of the TN law, the court finds that the whole notion of a community health care needs assessment was a sham and a creative artifice to get Dr. dePape into the United States. Dr. dePape unquestionably had the intent to permanently immigrate to the United States, and the community health care needs assessment was solely the creation of Blumenfeld’s own legal gymnastics, which had no basis in reality because Blumenfeld was the only party involved that had any an inkling of what it meant.

Furthermore, Blumenfeld’s disturbing practice of exclusively using the INS office in Buffalo, New York for its Canadian TN entries bolsters the court’s conclusion that the community health care needs assessment is a sham. While Partner A and Partner B testified that the INS officials at that office were more knowledgeable of the TN visa, the record reveals that Blu-menfeld had one particular INS officer in mind when it chose that location. That officer was not working the day Dr. de-Pape attempted to enter the United States, but had he been on duty, Dr. de-Pape would be in Fort Dodge today. Moreover, Blumenfeld testified that it exclusively used Jim Eiss as its local counsel in Canadian entries. While in isolation this practice is not unusual nor unethical, the evidence establishes that Blumenfeld used Mr. Eiss because he was a former INS agent at the Peace Bridge. The fact Blumenfeld had Dr. dePape travel 3,000 miles to enter at a port of entry where Blumenfeld’s local counsel had an inside connection and where Blumenfeld knew a specific INS officer would permit entry to perform a community health care needs assessment leads to the inescapable conclusion that Blumenfeld at least suspected, if not knew, that its community health care needs assessment strategy with Canadian physicians was suspect.

The TN visa does not have an application form like most visas. Instead, a TN visa involves a United States employer writing a letter of support, describing the position to be filled. At the border, the TN applicant presents the letter, along with proof of his or her citizenship and qualifications. Partner B drafted the employer’s letter describing the community health care needs assessment, forwarded it to Ms. Hutto, and instructed her to transcribe it on Trimark letterhead and to have Dr. Whitters sign it. Incredulously, Partner B testified that she assumed the community health care needs assessment was acceptable to the clients because Dr. Whitters signed the TN application letter *598 without objecting to the job description. Dr. dePape did not see the letter, nor the accompanying job description, until the day of his failed entry attempt.

The letter of support, dated May 4, 2000, describes Dr. dePape’s position with Trimark as follows:

Professional Activity

Dr. dePape is coming to the United States as a Physician Consultant for Trimark Physicians Group, Inc. to conduct a community health care needs assessment. The profession of Management Consultant appears on Schedule II to Annex 1603 of the North American Free Trade Agreement

Purpose of Entry

The [Trimark Physicians] Group needs to have a community health care needs assessment conducted by a Physician who can help it assess the health care needs of the residents of its service area (Fort Dodge, Iowa) and the ways in which those needs can best be met.

The Physician in this position will be responsible for conducting a community health care needs assessment for Fort Dodge, Iowa, and the surrounding area. These activities will include meeting with small groups of residents to discuss the community’s health care needs, examining existing medical facilities and equipment to determine their adequacy for meeting the community’s health care needs, researching and analyzing the community’s medical and health care demographics, and conducting cost analy-ses. This appointee will be expected to provide advice and guidance to the Group with respect to the steps it should take to better meet the health care needs of the residents of its service area, and he may engage in incidental patient care in connection with this research.

[Pf. exh. 38].

As to the duration of Dr. dePape’s purported employment as a Physician Consultant, the letter states that “Dr. dePape’s initial engagement with Trimark Phsycians Group, Inc. will be for a duration of three months, but as noted above, we ask that Dr. Dieppe’s TN status be approved for a period of one year, in case the project takes longer than anticipated to complete.” [Pf. exh. 38]. The letter goes on to list “Dr. Dieppe’s” qualifications and to state the monthly compensation to be paid. As is evident from the transposition of Dr. Dieppe’s name where Dr. dePape’ name should be, 7 Blumenfeld had used this letter and job description before, and Partners A and B admitted as much.

Meanwhile, while Blumenfeld was billing for an H-1B visa for which Dr. dePape was not qualified and preparing its sham TN application, Dr. dePape was completing his medical training in Canada. Due to a glitch in the Iowa State Board of Medical Examiners’ rules, Dr. dePape did not receive his Iowa medical license until June 1, 2000, but he became a licensed physician in Canada in July of 1999. Because he could not begin work in Fort Dodge until he obtained his Iowa license, he worked in Canada doing locum tenens, which is temporary substitution work for vacationing physicians.

When Dr. dePape learned that he would be granted his Iowa medical license, he and Trimark were finally able to set a firm start date. Trimark then worked with Blumenfeld to arrange a June 8, 2000 entry at the Peace Bridge in Buffalo, New York, which Blumenfeld chose because of *599 its arrangement with a particular INS officer. Dr. dePape ended his lease, shipped all of his belongings and his vehicle to Fort Dodge, and terminated his locum tenens. He and his fiancée made arrangements to travel the nearly 3,000 miles from Dr. de-Pape’s home in British Columbia to Buffalo, New York. In this regard, they flew from Vancouver to Toronto, and then rented a car to drive to Buffalo, New York. They planned to drive across the border, drop the car off at the rental station in Buffalo, and then fly to Fort Dodge, Iowa, where Dr. dePape intended to begin his new life.

When Dr. dePape arrived at the Peace Bridge on June 8, 2000, he was filled with all the hopes and expectations of living out his “American dream.” He had worked his entire adult life to become a family physician, and he was on the verge of realizing this goal. He had negotiated an extraordinarily advantageous contract with Trimark that not only was financially lucrative, but also promised to provide him with a challenging and fulfilling career. He had visited Fort Dodge on two previous occasions and was eager to move to the new community and to work with the other physicians at Trimark. When Dr. dePape arrived at the Peace Bridge, he literally had nothing more than the clothes on his back.

Because the costs of accompanying Dr. dePape to his INS interview at the Peace Bridge were prohibitively high, Blumen-feld, consistent with its usual practice, retained its local immigration lawyer, Mr. Eiss, to assist Dr. dePape. Mr. Eiss met Dr. dePape at a coffee shop near the INS office in Fort Erie, Canada on the morning of June 8, 2000. There, for the first time, Dr. dePape was shown the letter describing his position as a Physician Consultant and told that he could not work in the United States as a family physician. Prior to meeting with Mr. Eiss, Dr. dePape knew the name of the visa on which he was entering the United States, and he knew that the visa was temporary — that is all he knew because that is all Blumenfeld had told him. Neither Partner A nor Partner B ever discussed with Dr. dePape the TN visa’s severe limitations on direct patient care or the notion of a community health care needs assessment, nor did they send him a copy of the TN visa application letter.

In fact, the only time Dr. dePape spoke with a Blumenfeld partner directly was in March of 2000, and that conversation lasted one-tenth of one hour. During that short conversation, Partner B told Dr. de-Pape that he would be entering the United States on a TN visa, that this visa was temporary but easily renewable while he waited for his “green card,” and that Dr. dePape would meet with Mr. Eiss before the entry to discuss the logistics of Dr. dePape’s entry. Although it would have been incredibly late in the process, even in this conversation Blumenfeld failed to inform Dr. dePape that he could not come to the United States to be a family physician.

At the coffee shop on June 8, 2000, Mr. Eiss’s charge was to prepare Dr. dePape for his INS interview. Mr. Eiss spent 20 minutes with Dr. dePape. During this short meeting, Mr. Eiss played the role of an immigration officer and asked Dr. de-Pape what he was planning on doing in the United States. Dr. dePape responded that he was going to be a family physician. Mr. Eiss shook his head and handed Dr. dePape the TN application letter. Dr. de-Pape was shocked, surprised, and outraged by the letter’s description of his position and its temporary nature because, as far as he knew, he was permanently moving to Fort Dodge to be a doctor, not a temporary Physician Consultant doing a community health care needs assessment — something he had never heard about or even *600 knew what it was. Dr. dePape was skeptical and concerned about’ the lawfulness of representing to INS that he intended to perform a community health care needs assessment and then return to Canada. However, Mr. Eiss convinced Dr. dePape that the community health care needs assessment was legal and only a mere technicality that would not impede him from practicing medicine. Hesitant but confident in the legal advice of his attorney, Dr. dePape proceeded with Mr. Eiss to the INS office to attempt Dr. dePape’s entry under TN status.

There, the INS official interviewing Dr. dePape did not believe that Dr. dePape sought entry to perform a community health care needs assessment. When the INS official asked Dr. dePape directly why he was going to the United States, Dr. dePape truthfully answered that he intended to practice family medicine. Because the TN visa does not permit this, the INS official turned Dr. dePape away and sent him back to Canada. Mr. Eiss did not return with Dr. dePape to counsel him further.

Devastated and shocked by his failed entry and with no direction from Mr. Eiss or the Blumenfeld firm, Dr. dePape- found a pay phone and called Ms. Hutto. She advised him to wait thirty minutes and to try to enter the United States as a visitor. If he accomplished that, she instructed him to drop the rental car off at the Buffalo airport and to fly to Fort Dodge in order to work out a “plan B.” Dr. dePape and his fiancée followed Ms. Hutto’s advice, but the INS officials immediately recognized Dr. dePape. The officials not only interrogated him and accused him of being a liar, they searched his car and belongings and Dr. dePape and his fiancée felt as if they were being treated like criminals. INS again denied Dr. dePape entry to the United States, told him not to come back, and escorted him back to Canada. Dr. dePape felt helpless, humiliated, and angry.

When that entry attempt failed, Dr. de-Pape was literally stranded. He had no job, no home, and no possessions — not even his medical bag. Fortunately, he had a credit card with him and, at his own expense, he and his fiancée drove back to Toronto, where they paid over two thousand U.S. dollars for last-minute plane tickets back to Vancouver. Throughout this entire ordeal, there was no backup contingency plan and no advice from Blu-menfeld.

Ultimately, Dr. dePape returned to British Columbia and, in his words, “re-started his life.” He made several attempts to contact Trimark, but no one at Trimark returned his phone calls until August 17, 2000. On that day, Ms. Hutto implored Dr. dePape to attempt another entry in Buffalo, New York, but he refused. She then asked if he was willing to take the USMLE’s, but because he labored under the impression that the exams would have taken years to complete, he refused that option as well. Instead, Dr. dePape explored his employment options in Canada and ultimately began his own private practice in October of 2001.

Shockingly, no one at Blumenfeld ever attempted to contact Dr. dePape after his failed entry attempt on June 8, 2000.

Finally, the record also reveals that Blu-menfeld maintained sub-adequate communication with Trimark as well as with Dr. dePape. Dr. Whitters wrote Blumenfeld on two separate occasions to request updates as to the status of Dr. dePape’s immigration. In a letter dated February 28, 2000, Dr. Whitters informed Blumen-feld that Trimark would not process further invoices until Blumenfeld provided monthly progress reports regarding Dr. dePape’s visa status. [Trimark exh. 123]. This letter reiterated a January 28, 2000 *601 letter, in which Dr. Whitters similarly requested progress reports. [Trimark exh. 119].

And while Partner B testified that she was in frequent contact with Ms. Hutto and that Blumenfeld relied on Ms. Hutto to convey information to Dr. dePape, the evidence shows that Blumenfeld did not maintain acceptable levels of contact with her either. In an email to Partner B, dated December 16,1999, Ms. Hutto asked Partner B for an update on Dr. dePape’s immigration and for information to obtain a Social Security number for him. On December 20, 1999, Partner B responded, but did not provide an update; instead, she merely informed Ms. Hutto that Dr. dePape would not be able to apply for a Social Security number until he was physically present in the United States. She notably did not provide Trimark with the requested update.

On February 17, 2001, Ms. Hutto again emailed Partner B, indicating that she had not heard from Partner B since the December 20, 2000 email. For both Trimark and Dr. dePape, the status of Dr. dePape’s immigration was critical. Trimark could not schedule Dr. dePape’s patients without knowing approximately when to expect Dr. dePape’s arrival. The status of his immigration was particularly important to Dr. dePape because he needed to inform his Canadian employer of his separation date, as well as needing adequate time to terminate the lease of his residence in Canada, arrange for a new residence in Fort Dodge, and to ship his belongings to the United States. Blumenfeld was not forthcoming with this information and never explained to Dr. dePape, or Trimark for that matter, the immigration process, Dr. dePape’s immigration options, or the significance of pursuing a TN visa.

III. CONCLUSIONS OF LAW

(Including some additional findings of fact)

The court will begin its analysis of the merits of the plaintiffs case beginning with Dr. dePape’s causes of action against Trinity and Trimark. However, as a preliminary matter, the court notes that Iowa law applies to this lawsuit, which is in federal court based on diversity of citizenship. The parties do not argue that anything other than Iowa law should apply, and the court concludes that application of Iowa law to Dr. dePape’s claims is warranted.

A federal court must apply the choice of law rules of the forum state in which it sits — in this case, Iowa. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020,