Tuesday, March 28, 2023

Summary Judgment Granted To Law Firm Sued In $6 Million Settlement

The Massachusetts Supreme Judicial Court has reversed the denial of summary judgment to a legal malpractice defendant law firm

This is an action for attorney malpractice. The defendants (defendants or defendant lawyers) represented the plaintiffs, parents of a minor child whose arm was amputated below the elbow at age five, in a medical malpractice action that was settled in 2015 for $6 million. The plaintiffs (parents) thereafter brought this suit, arguing that their lawyers failed to competently develop evidence of damages -- in particular, the lifetime costs of the child's medical treatments and prosthetics -- and that this failure resulted in a lower recovery than should have been obtained. The defendants moved for summary judgment on several grounds, including (1) that the plaintiffs' claims were barred by collateral estoppel, because a Superior Court judge determined that the settlement was reasonable, after a hearing pursuant to G. L. c. 231, ยง 140C 1/2; (2) that the plaintiffs' claims were barred by the doctrine of judicial estoppel, due to representations that the plaintiffs made to the court during the settlement process; and (3) that the plaintiffs had not elicited competent evidence of damages -- that is, had not shown, by admissible evidence, that proper legal representation would have resulted in a settlement or verdict greater than $6 million.

A different Superior Court judge (motion judge) denied the motion for summary judgment, and a single justice of this court granted the defendants leave to take this interlocutory appeal. While we agree with the motion judge that the plaintiffs' claims were not barred by either collateral estoppel or judicial estoppel, we conclude that the plaintiffs did not adduce evidence of damages "such . . . as would be admissible" at trial. Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) (rule 56 [e]). Accordingly, the order denying the motion for summary judgment must be reversed.

Plaintiffs had expressed reservations about the settlement during the mediation process and

Just shy of three years later, in August of 2018, the plaintiffs commenced this malpractice lawsuit against the defendant lawyers, alleging (1) that the settlement amount was inadequate in that it did not consider the child's future need for and costs of prosthetics, and (2) that the defendant lawyers had caused them to settle under duress, by informing them that the hospital defendants were considering seeking appointment of a guardian ad litem.

Collateral and judicial estoppel did not bar the action.

But the defendants prevailed on insufficiency of expert evidence on damages

Oliveira's disclosure and affidavit seem to be saying that for a medical malpractice claim of this type, with injuries of this type, previous settlements and verdicts demonstrate a likely value of $10 million or more. Assuming that Oliveira described a valid methodology for valuing cases, however -- that is, analyzing verdicts and settlements of cases with comparable facts -- that methodology still must be reliably applied. See Lanigan, 419 Mass. at 26. See also Commonwealth v. Patterson, 445 Mass. 626, 648 (2005) ("Judges . . . need not admit . . . every application of a . . . method . . . merely because another application of the method has been deemed reliable"). And here, nothing in either Oliveira's expert disclosure or his supplemental affidavit describes how his methodology was applied. He does not explain, for example, which verdicts and settlements he reviewed, what the amounts of those verdicts and settlements were, or why those upon which he based his opinion were apt comparators. Cf. Santos v. Chrysler Corp., 430 Mass. 198, 206 (1999) (expert's opinion properly excluded where proponent did not establish that data underlying the opinion "matched the circumstances of the plaintiff's accident"). Simply setting forth an expert's experience, and that he did some research, is not sufficient when the expert's application of his methodology to the facts is not disclosed.

Justice Milkey concurred

I note that we do not typically review orders denying motions for summary judgment in light of their interlocutory nature, and we performed such review here only because a single justice had allowed it. The bar, especially the plaintiffs' bar, would be wise to view today's opinion as presenting a cautionary tale.

(Mike Frisch)


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