Colassi v. Hartford Life et al.

2012 DNH 141

• Court: District Court, D. New Hampshire
• Decided: August 21, 2012
• Docket: CV-10-562-PB
• Status: Published

Opinion

Colassi v . Hartford Life et a l . CV-10-562-PB 8/21/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kenneth William Colassi

v. Civil N o . 10-cv-562-PB Opinion N o . 2012 DNH 141 Hartford Life & Accident Insurance Co., et. a l .

MEMORANDUM AND ORDER

Kenneth William Colassi brings a legal malpractice suit

against his former attorney, Ronald Eskin. Colassi alleges that

he was denied disability benefits in a prior administrative

proceeding because of Eskin’s negligent or willful failure to

submit certain medical information. Both parties have filed

motions for judgment on the pleadings.

I first address Colassi’s motion. To the extent Colassi’s

brief even touches on the legal malpractice claim, he does not

appear to be asking for judgment in his favor, but for other

assorted relief, including the service of a subpoena on his

primary care physician and a guarantee that his case will

eventually reach a jury. Suffice it to say that Colassi has not

established, as he must to prevail on a 12(c) motion, that he is

entitled to judgment even if the facts are viewed in the light most favorable to the non-moving party. See Pérez-Acevedo v .

Rivero-Cubano, 520 F.3d 2 6 , 29 (1st Cir. 2008). Accordingly, I

deny Colassi’s motion (Doc. N o . 7 0 ) .

Turning to the other motion at issue, Eskin’s sole argument

is based on Colassi’s failure to disclose an expert witness

pursuant to the timetable of the court-approved discovery plan.

The New Hampshire Supreme Court has recently held that, “absent

exceptional circumstances, expert testimony is necessary [in

legal malpractice cases] to inform the jury regarding the skill

and care ordinarily exercised by lawyers and to prove a breach

thereof.” Carbone v . Tierney, 151 N.H. 5 2 1 , 528 (2004).

Notwithstanding Colassi’s conclusory protestations, it is clear

from the allegations in the complaint that this case falls

within the general rule: an expert would be necessary to

establish that Eskin’s allegedly wrongful conduct fell below the

appropriate standard of care and caused Colassi to be denied

benefits he otherwise would have received.

Although I agree with Eskin on the need for expert

testimony, ordinarily I would not rule on a motion for judgment

on the pleadings that was contingent on a factual assertion that

is not established by the pleadings; here, the assertion that

Colassi has failed to disclose an expert. See Rules 7 , 12(c). 2 In a typical case, I would convert a Rule 12(c) motion that

presented a matter outside of the pleadings into a motion for

summary judgment and allow the opposing party a reasonable

opportunity to respond. See Rule 12(d).

In his responsive materials, however, Colassi admits that

he has not disclosed a legal expert, and thereby concedes the

only disputable fact that might save his case from judgment.

Further, rather than moving for leave to file a late expert

disclosure, he instead indicates that he does not anticipate

finding an expert to testify. See Pl.’s O b j . at 1 8 , Doc. N o . 69

(“Expert testimony to show that ESKIN harmed his client is

something that the attorneys of this region will never step up

to the plate and perform openly and in public let alone for a

hated plaintiff in [the] state of N H . ” ) . When the pleadings are

viewed in light of his statements that he has not, and will not,

produce an expert, it is clear that Colassi “can prove no set of

facts in support of his claim which would entitle him to

relief.” See Rivera-Gomez v . de Castro, 843 F.2d 6 3 1 , 635 (1st

Cir. 1988) (quotation marks and citation omitted); see also

Edwards v . Serv. Fed. Credit Union, Civ. N o . 95-170-JD, slip o p .

at 5 (D.N.H. Sept. 1 1 , 1997) (granting 12(c) motion in part

based on plaintiff’s failure to disclose expert witness). To 3 prolong the case and allow additional filings at this juncture

would exalt form over substance.

I therefore grant Eskin’s motion for judgment on the

pleadings (Doc. N o . 6 7 ) . The clerk is directed to enter

judgment accordingly and to close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 2 1 , 2012

cc: Kenneth William Colassi Byrne J. Decker, Esq. Catherine B . Cosgrove, Esq.