JONATHAN B. MARSTON, conservator, 
JOSEPH M. ORLANDO & another.
Heard: December 7, 2018.
action commenced in the Superior Court Department on March 6,
case was heard by Timothy Q. Feeley, J., and the entry of
judgment was ordered by him.
L. Miller for the plaintiff.
R. Sonneborn for the defendant.
Present: Blake, Lemire, & Singh, JJ.
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.
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 followed.
appeal, the plaintiff principally argues that the judge (1)
misapplied Fishman v. Brooks, 396 Mass. 643, 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
recite the facts in the light most favorable to the
plaintiff. See Augat, Inc. v. Liberty Mut. Ins.
Co., 410 Mass. 117, 120 (1991). 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, retained Norris 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 DIA.
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 following representations about why Norris
was a land-based employee:
"Here, [Norris] lacked the requisite connection to the
Miss Yvette [Hallum's tugboat], necessary to qualify him
as a seaman .... The anticipated evidence . . . is as
"[Norris] picked up a truck owned by the principles
[sic] of Hallum Marine Construction, and drove to
Jersey City, NJ. After waiving [sic] a period of
time, the Miss Yvette appeared, and [Norris] boarded her. The
vessel steamed 10 miles offshore, taking between 3-4 hours of
time before arrival. The vessel was brought alongside the
Ambrose Light Tower, where, over the following seventeen
days, [Norris] spent virtually all of his work time, working
with a blow torch, dismantling the structure. During this
time frame, he did absolutely no work upon the Miss Yvette,
but carried out all physical work activities on the structure
itself. At the conclusion of his stint, the Miss Yvette
carried him back to shore."
the conference, the AJ denied the claim for compensation,
apparently concluding that Norris was a seaman. Attorney
McCormick exercised Norris's right to appeal for a more
complete evidentiary hearing. See G. L. c. 152, §§
10A (3), 11. Before the hearing, Attorney McCormick settled
Norris's case by lump sum agreement for $7, 500
(Massachusetts or workers' compensation settlement). See
G. L. c. 152, § 48 (1). Norris agreed to the settlement
solely on the recommendation of the attorneys, who did not
advise him of the potential risk to his Jones Act claims. On
February 5, 2010, the AJ approved the agreement, concluding
it was in Norris's best interest, and entered it as an
administrative order of the DIA.
Jones Act proceedings.
March 15, 2010, the attorneys filed an action under the Jones
Act and general maritime law in the United States District
Court for the District of Massachusetts (Federal court),
raising negligence and maintenance and cure claims against
Hallum (Jones Act case or claims); in addition, they asserted
claims against several other parties (collectively with
third-party defendants, Federal court defendants)
. As we have noted, the generous remedies
provided under the Jones Act are limited to seamen. See 46
U.S.C. § 30104; Morris v. Massachusetts Maritime
Academy, 409 Mass. 179, 191 (1991). "Whether under
the Jones Act or general maritime law, seamen do not include
land-based workers." McDermott Int'l, Inc.
v. Wilander, 498 U.S. 337, 348 (1991) . Attorney
McCormick signed and submitted a sworn "Seaman's
Affidavit" to the Federal court, averring that Norris
was a "seaman." In his memorandum of law in support
of his motion to amend the complaint, Attorney McCormick made
the following factual representations about Norris's
"In August of 2008, the plaintiff was hired to act as a
member of the crew of the Miss Yvette, a tugboat utilized to
transport barges to and from the Ambrose Lighthouse . . . .
In the course of his work, [Norris] spent the vast majority
of his time working on matters relating to the vessel, as
well as the transport of materials to and from shore. He did,
however, spend a small percentage of time working in actual
dismantling operations on the platform itself. . . .
[F]actually, the evidence to date supports that a substantial
amount of plaintiff's duties were done upon the tender
vessel, the Miss Yvette, as opposed to on the platform
itself, thereby rendering him, under relevant Maritime law, a
Jones Act seaman."
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
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, ...