Cheryl Lavina, Individually and as Administratrix of the Estate of Paul Lavina
Adam R. Satin, Esq. et al No. 133627
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS TO STRIKE OPINIONS OF PLAINTIFF'S LEGAL AND
B. Gordon, Justice
for decision are a pair of defense motions to strike expert
opinions that have been offered in support of the
plaintiff's claim for legal malpractice. These motions
have been filed at the express invitation of the Court, which
in a Procedural Order dated September 1, 2015, and in a
follow-on hearing with counsel, expressed substantial
concerns regarding the adequacy of the legal and medical
malpractice expert opinions that the plaintiff had relied
upon in opposition to a previously filed motion for summary
judgment. In lieu of taking immediate action on the
defendants' Rule 56 motion, the Court ordered the
plaintiff to make her two belatedly disclosed experts
available for depositions to be conducted at plaintiff's
expense. In this way, the parties could address, and the
Court evaluate, the precise factual and legal grounds for the
plaintiff's proffered expert opinions under the gating
principles of Daubert/Lanigan .
parties appear to have adhered to the Court's directive,
having taken and completed the depositions of Diane
Paolicelli, Esq. and Richard Braver, D.P.M., the
plaintiff's legal and medical negligence experts
respectively. The defendants have now filed a Motion
to Strike Plaintiff's Legal Expert and a companion Motion
to Strike Plaintiff's Podiatry Expert. Each motion is
premised on the contentions that the subject expert (1) is
unqualified by credentials and experience to offer the
substantive opinions he or she has; and (2) has offered an
opinion resting upon impermissible speculation and
conjecture, rather than competent evidence and reliable
analytic method. The Court addresses these motions in turn.
TO STRIKE PLAINTIFF'S LEGAL EXPERT
defendants have moved to strike the testimony of
plaintiff's legal expert (Diane Paolicelli, Esq.) in its
entirety, because Ms. Paolicelli is purportedly unqualified
by education and experience to render an informed opinion
regarding the standard of care governing a Massachusetts
lawyer who prosecutes a medical malpractice action. In the
alternative, the defendants have moved to strike those
portions of Ms. Paolicelli's disclosure which opine that,
had Dr. King not prevailed at the summary judgment stage (on
account of Attorney Satin's claimed negligence in
allowing the tort statute of limitations to run), Dr.
King's insurer would have settled the medical malpractice
claim against him for between $1 million and $3.75 million.
The defendants contend that such a causation/damages opinion
rests upon speculation rather than factual evidence and/or
demonstrated analytic method.
the task of the Court to exercise " an important
gatekeeping function with respect to expert testimony, "
and to exclude from the trial evidence from an expert who is
" unqualified" or whose opinion " lacks
reliability." Commonwealth v. Lanigan, 419
Mass. 15, 25-26, 641 N.E.2d 1342 (1994). This " entails
a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and whether that reasoning or methodology properly can be
applied to the facts in issue." Id. at 26
(quoting Daubert v. Merrill Dow Pharmaceuticals,
Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d
469 (1993)). " The ultimate test for [admissibility of
expert evidence] is the reliability of the theory or process
underlying the expert's testimony." Case of
Hicks, 62 Mass.App.Ct. 755, 760, 820 N.E.2d 826 (2005)
(quoting Commonwealth v. Lanigan, 419 Mass. at 24).
the defendants' challenge to Ms. Paolicelli's
qualifications, the gravamen of such challenge is the fact
that Ms. Paolicelli is a non-Massachusetts lawyer, has never
litigated a medical malpractice case in Massachusetts, and
has never previously been qualified as an expert in any
jurisdiction. On this basis, the defendants argue that Ms.
Paolicelli cannot be considered sufficiently "
expert" to offer an opinion regarding the standard of
care applicable to a Massachusetts lawyer confronting a
malpractice statute of limitations issue governed by
Massachusetts law. The Court does not agree.
record discloses that Ms. Paolicelli has been practicing law
for 35 years. She is an honors graduate of New York
University Law School, and a published editor of its Law
Review. Ms. Paolicelli has specialized in medical malpractice
and other species of complex civil litigation, and has
secured several multi-million dollar verdicts on behalf of
personal injury clients. Ms. Paolicelli is a member of
several bar associations, and has lectured frequently on a
range of topics in tort litigation. Although her experience
in Massachusetts is concededly limited, Ms. Paolicelli
handled at least one substantial case in the Commonwealth
raising a statute of limitations issue similar to the one
presented in the case at bar. Perhaps more to the point,
Massachusetts courts routinely allow out-of-state experts to
opine on standards of care applicable to practitioners in the
Commonwealth where, as here, distinctions in the law from one
state to another are not material to the liability question
sub judice . Indeed, the SJC recently reaffirmed the
principle that experts may give opinions about specialties
other than their own. See Reckis v. Johnson &
Johnson, 471 Mass. 272, 28 N.E.3d 445, 462 (Mass. 2015).
In this regard, the Court observes that, while representing
Mr. Lavina in the underlying medical malpractice case, the
defendants themselves engaged the services of a New
Jersey doctor (Christopher Connor, M.D.) to opine on the
standard of care governing the medical performance of a
defendants' criticisms of Ms. Paolicelli's
professional credentials and legal experience are noted. As
is the fact that Ms. Paolicelli has never before been
qualified as an expert, and thus has no testimonial
experience in malpractice litigation. But such criticisms
bear at most upon the weight to be accorded her testimony;
and, however well taken the criticisms might be, they will
not foreclose her qualification as a trial expert altogether.
See Blake v. Avedikian, 412 Mass. 481, 483,
590 N.E.2d 183 (1992) (" the extent of [an expert's]
training and experience would bear only on the weight that
should be given to his testimony . . . and not its
admissibility") (quoting Commonwealth v.
Schulze, 389 Mass. 735, 740, 452 N.E.2d 216 (1983)).
This aspect of the Defendants' Motion to Strike
Plaintiff's Legal Expert, therefore, must be denied.
Court turns next to the substance of the opinion Ms.
Paolicelli has tendered. The vast majority of this
witness's testimony is addressed to various acts and
omissions committed by Attorney Satin that Ms. Paolicelli
submits deviated from the standard of care governing a
medical malpractice lawyer. Although the defendants
selectively assail certain aspects of these proffered
opinions (in particular those pertaining to Attorney
Satin's knowledge and handling of the Bonner Note), a
number are not addressed at all; and those arguments that are
advanced in this regard speak to the weight rather than
admissibility of the subject opinions. Because Ms.
Paolicelli's standard of care-related opinions fall
comfortably within the purview of what an experienced medical
malpractice lawyer might offer in the way of expert
testimony, and rest upon a satisfactory foundation in the
evidence, see Lanigan, 419 Mass. at 26, the
Court will leave them undisturbed. It will be for the
defendants to challenge these opinions through cross
examination and through the introduction of contradictory
evidence at trial. See Commonwealth v.
Sands, 424 Mass. 184, 186, 675 N.E.2d 370 (1997) ("
expert's qualifications and the logical basis of the
testimony can be effectively tested through cross examination
and rebuttal evidence").
worrisome, however, is the opinion Ms. Paolicelli tenders in
the area of causation and damages. It is, of course, well
settled that a legal malpractice claim requires proof that
the plaintiff " probably would have obtained a better
result had the [defendant] attorney exercised adequate skill
and care." Poly v. Moylan, 423 Mass. 141, 145,
667 N.E.2d 250 (1996). " Proximate cause is an essential
element[, ] . . . [and] in some circumstances, expert
testimony is necessary to prove the element of causation in a
legal malpractice claim." Atlas Tack v.
Donabed, 47 Mass.App.Ct. 221, 226, 712 N.E.2d 617
(1999). Accord Harlow v. Chin, 405 Mass.
697, 702, 545 N.E.2d 602 (1989) (" causal link generally
must be established by expert testimony that the injury was
more probably than not a result of the [defendant's]
negligence"). Here, the plaintiff purports to satisfy
the causation element through the testimony of Ms.
Paolicelli, who opines that, but for the negligence of
Attorney Satin in allowing summary judgment to enter against
the Lavinas' medical malpractice claim, Dr. King's
insurance company would likely have settled the case for
between $1 million and $3.75 million. The Court is troubled
by this aspect of Ms. Paolicelli's opinion, which the
record reveals to rest on highly conjectural supposition
rather than reliable legal analysis.
evidence adduced during Ms. Paolicelli's deposition
demonstrates that Ms. Paolicelli has no personal experience
with Dr. King's insurer, no familiarity with the
carrier's historical settlement practices, and no
knowledge of whether Dr. King even had any interest at all in
settling a lawsuit whose liability claim he had consistently
derided as " insubstantial, frivolous and not advanced
in good faith." The sole factual foundation for Ms.
Paolicelli's causation and damages opinion (
viz., that Dr. King's insurer would have settled
the Lavinas' lawsuit for large sums had the suit survived
summary judgment) is her assertion that " if a defense
lawyer does not have an expert for a case, then the insurance
company is going to want to try and settle the case for some
number, preferably one that's low . . ." This
assertion, however, is premised entirely on the
stated assumption that Dr. King's failure to have
disclosed a testifying expert as of the time of his summary
judgment filing signified that he would not have been able to
obtain one for trial at all and would thus have been
compelled to settle. In point of fact, the uncontradicted
evidence is that Dr. King had engaged consulting
experts, but the practice of his trial counsel was to defer
disclosure of his testifying experts until the close of
discovery. Discovery had not closed as of the time of Dr.
King's summary judgment filing; and proper expert
disclosure could surely have been made at the parties'
still-unscheduled Final Pretrial Conference in accordance
with Superior Court Standing Order 1-88. See
generally P. Lauriat et al., Discovery, 49
Mass. Practice ¶ 3.5, at 238-42 (2008 and Supp. 2016).
The unadorned fact that Dr. King had not disclosed a
testifying expert as of the time he filed his motion for
summary judgment thus cannot sustain the proposition that he
would have been forced to proceed to trial without
one. Accordingly, inasmuch as Ms.
Paolicelli's opinion that Dr. King's insurer would
have felt compelled to settle the Lavina malpractice lawsuit
on unfavorable terms rests upon an assumed fact that is not
established in the evidence, the opinion is unreliable and
cannot stand. See Brooke Group Ltd. v. Brown &
Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S.Ct.
2578, 125 L.Ed.2d 168 (1993) (expert opinion of no value
where it " is not supported by sufficient facts to
validate it in the eyes of the law, or where the indisputable
record facts contradict or otherwise render the opinion
there were a sufficiently reliable basis for the forecast
that the Lavinas' lawsuit would have been settled prior
to trial had it survived summary judgment, Ms. Paolicelli
expands this opinion considerably when she asserts that Dr.
King's insurer would have paid the plaintiffs between $1
million and $3.75 million. Although experts are by no means
precluded from opining on the settlement value of a claim in
the context of a legal malpractice action, this particular
opinion does not rest upon any analytical foundation
disclosed by Ms. Paolicelli. Instead, Ms. Paolicelli cites to
a selective compilation of jury verdicts and settlements in
cases involving below-the-knee amputations as the basis for
her valuation estimate. The compilation, however, had been
assembled by the plaintiff's trial counsel on a
non-comprehensive basis, and Ms. Paolicelli herself
acknowledged during deposition that she had virtually no
personal familiarity with either its substance or the
methodology underlying its creation. Ms. Paolicelli could
thus not recall the names of the cases summarized in the
compilation; could not identify the relevant dates or date
ranges of the referenced cases; could not describe the facts
of any of the summarized cases; could not distinguish which
cases were medical malpractice actions from those that
involved other types of personal injury claim; and, more
generally, could not speak to whether the compiled cases bore
any circumstantial similarity to the Lavinas'
lawsuit. To call Ms. Paolicelli's case
valuation an " analysis" at all strains the meaning
of the term. See Fourth Street Pub, Inc. v.
Nat'l Union Fire Ins. Co., 28 Mass.App.Ct. 157, 161,
547 N.E.2d 935 (1989) (expert " must have sufficient
familiarity with the particular facts to reach a meaningful
the conjectural quality of Ms. Paolicelli's opinion is
her conclusion that Dr. King's insurer would have settled
the Lavinas' claims against him for somewhere
between $1 million and $3.75 million. The imprecision of this
expansive range alone suggests speculativeness. More damning
to the opinion, however, is the fact that Dr. King's
actual insurance coverage in this case was limited to $1
million per claim. Evidently unaware of this fact, Ms.
Paolicelli acknowledged during deposition that "
insurance companies don't settle for amounts beyond the
policy." In other words, Ms. Paolicelli has opined that,
had the Lavina malpractice suit survived summary judgment,
Dr. King's insurer would have done what ...