Jonathan B. MARSTON, Conservator,
Joseph M. ORLANDO & another.
December 7, 2018.
N.E.3d 298] CIVIL ACTION commenced in the Superior Court
Department on March 6, 2013., The case was heard by Timothy
Q. Feeley, J., and the entry of judgment was ordered by him.
L. Miller, Boston, for the plaintiff.
R. Sonneborn, Boston, for the defendant.
Blake, Lemire, & Singh, JJ.
legal malpractice action requires an understanding of the
requirements for expert testimony under Fishman v.
Brooks, 396 Mass. 643, 487 N.E.2d 1377 (1986), and the
duty of an attorney to properly advise a client when the law
governing the client’s case is unsettled.
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. � 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
appeal, the plaintiff principally argues that the judge (1)
misapplied Fishman v. Brooks, 396 Mass. 643, 487
N.E.2d 1377, as to the requirements for expert testimony in a
negligent settlement legal malpractice case; and (2) erred by
finding that the lump sum settlement approved by the
Department of Industrial Accidents (DIA) was not a final
adjudication of Norris’s employment status. For the
reasons that follow, we reverse.
recite the facts in the light most favorable to the
plaintiff. See Augat, Inc. v. Liberty Mut. Ins. Co.,
410 Mass. 117, 120, 571 N.E.2d 357 (1991). [127 N.E.3d
299] After a ship struck the Ambrose light tower (light
tower), located approximately eight miles off the New Jersey
coast, the United States Coast Guard, the owner of the light
tower, became concerned about its structural integrity, and
decided to completely disassemble it (project). Costello
Dismantling Company, Inc., was the general contractor. Hallum
Marine Construction (Hallum), one of the subcontractors,
to work on the project. 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.
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 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
October 28, 2008, Attorney McCormick filed a claim with the
DIA. Although Hallum’s workers’
compensation carrier, Farm Family Casualty Insurance (Farm
Family), opposed the claim, it agreed to commence voluntary
wage and medical payments. See G. L. c. 152, � 19. After the
contested claim was assigned to an administrative judge (AJ)
for a conference, see G. L. c. 152, � 10A (1), Farm Family
moved to dismiss the claim, arguing that Norris was a seaman
on a vessel
engaged in interstate commerce (seaman), and thus ineligible
to receive benefits under the Act. In a statement filed with
DIA and presented to the AJ, Attorney McCormick made the