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Marston v. Orlando

Appeals Court of Massachusetts, Essex

June 25, 2019

Jonathan B. MARSTON, Conservator,[1]
v.
Joseph M. ORLANDO[2] & another.[3]

         Argued December 7, 2018.

         [127 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.

         Keith L. Miller, Boston, for the plaintiff.

         Daniel R. Sonneborn, Boston, for the defendant.

         Present: Blake, Lemire, & Singh, JJ.

         OPINION

         BLAKE, J.

Page 527

          This 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.

         Norris Marston (Norris)[4] 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.

         On 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.[5] For the reasons that follow, we reverse.

         Background.

          We 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).[6] [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, retained Norris

Page 528

to work on the project.[7] 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.

         A resident of Gloucester, Norris retained local attorneys Joseph M. Orlando and Brian S. McCormick, of the firm of Orlando & Associates (collectively, attorneys).[8] 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)[9] in the United States District Court. They decided to first pursue Norris’s remedies under the Act in proceedings before the DIA.[10]

         1. DIA proceedings.

         On October 28, 2008, Attorney McCormick filed a claim with the DIA.[11] 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

Page 529

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 ...


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