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Lavina v. Satin

Superior Court of Massachusetts, Suffolk

May 13, 2016

Cheryl Lavina, Individually and as Administratrix of the Estate of Paul Lavina
v.
Adam R. Satin, Esq. et al No. 133627

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO STRIKE OPINIONS OF PLAINTIFF'S LEGAL AND PODIATRY EXPERTS

          Robert B. Gordon, Justice

         Presented 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 .

         The 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.[1] 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.

         MOTION TO STRIKE PLAINTIFF'S LEGAL EXPERT

         The 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.

          It is 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).

         Regarding 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.

         The 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 Massachusetts podiatrist.

         The 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.[2] 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.

         The 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").

         More 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.

         The 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.[3] 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 unreasonable").

         Even if 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.[4] 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 expert opinion").

         Reinforcing 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 ...


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