Tuesday, June 25, 2019

A Seaman Or Not: Malpractice And Unsettled Law

The Massachusetts Supreme Judicial Court reversed the dismissal of a legal malpractice action

This legal malpractice action requires an understanding of the requirements for expert testimony under Fishman v. Brooks, 396 Mass. 643 (1986), and the duty of an attorney to properly advise a client when the law governing the client's case is unsettled.

Norris Marston (Norris)  suffered a severe brain injury after an accident at his work site, an offshore light tower. His attorneys secured a $7,500 lump sum settlement under the Massachusetts Workers' Compensation Act (Act), and then pursued Federal remedies, including a claim under the Jones Act, 46 U.S.C. ยง 30104 (2012), ultimately negotiating a $200,000 settlement. The plaintiff, Norris's conservator, believing these settlements were woefully inadequate in light of Norris's injuries, sued the defendant attorneys for malpractice. On the eve of trial, a judge of the Superior Court issued a number of rulings that led to the dismissal of all of Norris's claims against the attorneys. This appeal followed.

The client worked for a subcontractor tasked with bringing down a light tower eight miles offshore

On August 24, 2008, as Norris was cutting sections of a steel docking station attached to the light tower, the docking station came loose, striking him on the head and driving him deep into the water, where he remained for a significant period of time. Norris was diagnosed with an anoxic brain injury.

A resident of Gloucester, Norris retained local attorneys Joseph M. Orlando and Brian S. McCormick, of the firm of Orlando & Associates (collectively, attorneys).  The attorneys planned to seek damages exceeding $1,000,000 against [subcontractor] Hallum and other parties under the Jones Act and related Federal statutes (collectively, Federal claims) in the United States District Court. They decided to first pursue Norris's remedies under the Act in proceedings before the DIA.

The key issue for compensation purposes was whether Norris was a "seaman."

the generous remedies provided under the Jones Act are limited to seamen.


During the proceedings, Hallum and the two third-party Federal court defendants raised the specter of the possible preclusion of the Jones Act claims due to the actions and positions taken at the DIA. Attorney McCormick addressed this defense in his mediation memorandum.

A one-day mediation session was held on October 17, 2011. Attorney Orlando advised Norris that if he did not take the final offer, he would lose at trial. Accordingly, Norris accepted $200,000 plus Farm Family's waiver of its $18,666.52 workers' compensation lien  in full settlement of his claims against all the Federal court defendants (Federal settlement). Within days, Norris retained new counsel. A petition for the appointment of a conservator on behalf of Norris was filed in the Probate and Family Court, and Norris's brother, Jonathan Marston, was appointed. The conservator sought to intervene and reopen the Federal case on behalf of Norris. His efforts were unsuccessful.

Then came the malpractice claim, which the trial court dismissed

The absence of an expert opinion on fair settlement value was not fatal to the conservator's legal malpractice case. Fishman teaches that while expert testimony on reasonable settlement value is admissible in this type of action, it is not required to establish the cause and extent of the client's damages...

The trial judge concluded that while the lump sum agreement was a final adjudication of Norris's claim under the Act, it did not finally adjudicate the issue of Norris's status as a nonmaritime employee for purposes of future Jones Act claims.  The conservator, with support from his expert witness, maintains that the agreement to accept a lump sum settlement in the DIA proceeding resulted in a "final adjudication" that potentially precluded Norris's subsequent Jones Act claims. Cf. Martin v. Ring, 401 Mass. 59, 60 (1987). We conclude that, in the context of this case, it was error to reach the question whether the workers' compensation settlement had preclusive effect on the Jones Act claim. In fact, this was an issue that was not settled at the time of these proceedings. And it is the unsettled state of the law that is pertinent in assessing any negligence on the part of the attorneys.


Given the unsettled state of the law, the attorneys had the duty to fully disclose the potential consequences to Norris before recommending that he accept the Massachusetts settlement. See Williams v. Ely, 423 Mass. 467, 476-477 (1996). Contrary to the trial judge's assertion, the preclusive bar had been raised in the Federal proceedings. The attorneys' failure to alert Norris to the uncertainty deprived him of the opportunity to assess the risk and was an actionable basis of negligence.

(Mike Frisch)


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