NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-571
JOHN E. LUNDGREN1
vs.
ROBERT HOFFER & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an industrial accident at his workplace, the
plaintiff, John E. Lundgren, contracted Legionnaires' disease;
years later, he remains disabled. This appeal concerns the
plaintiff's claims against two lawyers, Robert Hoffer and Robert
Berluti, whom he retained to pursue claims against his employer
and for workers' compensation. We consider both the rulings on
the motions for summary judgment and the decisions on the
motions to reconsider, which we deem timely motions pursuant to
1The Superior Court docket spelled the plaintiff's name as "John F. Lundgren." As is our custom, we spell the plaintiff's name as it was spelled in the complaint.
2 Robert Berluti. Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), for the purpose
of this appeal. We affirm.
Background. "We summarize the findings set forth in the
order on the [defendant's] . . . motion[] for summary judgment,
supplemented by other uncontroverted facts in the summary
judgment record, and viewing 'the evidence in the light most
favorable to the party against whom summary judgment was
entered'" -- here, the plaintiff (citations omitted). Williams
v. Board of Appeals of Norwell, 490 Mass. 684, 685 (2022).
The accident occurred on December 1, 2014. Within a week,
the plaintiff was diagnosed with Legionnaires' disease. He
retained Berluti to represent him in potential accident-related
claims against his employer. Berluti took the case on a
contingency basis and did not bill the plaintiff for his time.
On June 29, 2015, Berluti terminated his representation of the
plaintiff.
The plaintiff maintains that Berluti's representation was
deficient in several ways. According to the plaintiff, during
the representation, Berluti failed to (1) meet with him in
person; (2) adequately prevent or address spoliation of
evidence; (3) take adequate steps to secure water samples;
(4) conduct witness interviews; (5) take adequate steps to
ensure that the Occupational Safety and Health Administration
(OSHA) followed its investigatory protocol or undertook more
2 than a minimal investigation of the accident; (6) timely obtain
or act on the conclusions of the National Institute for
Occupational Safety and Health (NIOSH) investigation;
(7) adequately assess or address the maintenance history of the
compressor involved in the incident; and, finally, the plaintiff
claims that when Berluti withdrew from representing the
plaintiff, he incorrectly told him that no third-party claim
could be brought. With one exception,3 the plaintiff confirmed
that he was aware of each of these actions or inactions in 2015
at or before the time Berluti withdrew from representing him.
Berluti referred the plaintiff to Hoffer to pursue a
potential workers' compensation claim, and Hoffer and the
plaintiff agreed to a contingent fee arrangement. The company
and its compensation insurer both denied coverage. Hoffer filed
a workers' compensation claim with the Department of Industrial
Accidents (DIA) on the plaintiff's behalf. A doctor hired by
the insurer opined (to a reasonable degree of medical certainty)
3 The NIOSH report (begun in March 2015 and dated April 2016) concluded that all samples from the plaintiff's workplace were negative for Legionella bacteria and stated that the agency was unable to determine if the workplace incident was related to the plaintiff's case of Legionnaires' disease. The investigation was still underway when Berluti ended his representation in June 2015 and the report was not issued until ten months later, when Berluti had no lawyer-client relationship with the plaintiff. If Berluti failed to acquire or act on the NIOSH report, it is because he had no authority or obligation to do so.
3 that the plaintiff's disability was not related to Legionnaires'
disease and that he did not contract Legionnaires' disease at
work. NIOSH found no evidence that Legionnaires' disease was
present at the plaintiff's workplace.
At the request of the DIA judge, a second doctor examined
the plaintiff. This doctor concluded that it was "plausible" or
"likely" that the plaintiff's Legionnaires' disease was a
product of his workplace exposure but also concluded there was
"insufficient evidence that [the plaintiff] is disabled from a
respiratory point of view or that [h]is symptoms are due to the
effects of Legionella pneumonia." This second doctor
characterized the examination of the plaintiff as "essentially
normal," and noted that it would be helpful to review pulmonary
function tests and respiratory records (which he did not have)
to confirm his impression. It is unclear whether he ever
reviewed them; the record reflects no updated opinion from this
doctor.
There is a disagreement between the parties about how
Hoffer received the plaintiff's medical records. For the
reasons explained in the discussion of the claim against Hoffer,
this disagreement does not preclude our review.
Hoffer began settlement negotiations with the insurer by
demanding $125,000 and, eventually, a condition that the insurer
accept liability. The insurer, relying on the first doctor's
4 report, refused to consider a resolution that included an
acceptance of liability.
The plaintiff's workers' compensation case was set for
trial before the DIA judge in October 2015, but the judge did
not reach the case; instead, a different DIA judge mediated the
parties' claims in late November, following which the insurer
extended a settlement offer of $60,000, with payment of the
plaintiff's medical bills incurred to date for treatment of
Legionnaires' disease, and no acceptance of responsibility. The
plaintiff did not accept the offer and a new trial date was set
for December 4, 2015. On that date, the plaintiff signed a
settlement agreement on the terms outlined above. In connection
with accepting the settlement, he answered questions posed to
him by the judge about the settlement, including questions about
his understanding of the settlement and his desire to settle his
claim. The plaintiff filed his original complaint on December
4, 2018, in the Superior Court.
A judge of the Superior Court allowed the defendants'
motions for summary judgment (after a hearing) and denied the
plaintiff's motions for reconsideration. Before us are counts I
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-571
JOHN E. LUNDGREN1
vs.
ROBERT HOFFER & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an industrial accident at his workplace, the
plaintiff, John E. Lundgren, contracted Legionnaires' disease;
years later, he remains disabled. This appeal concerns the
plaintiff's claims against two lawyers, Robert Hoffer and Robert
Berluti, whom he retained to pursue claims against his employer
and for workers' compensation. We consider both the rulings on
the motions for summary judgment and the decisions on the
motions to reconsider, which we deem timely motions pursuant to
1The Superior Court docket spelled the plaintiff's name as "John F. Lundgren." As is our custom, we spell the plaintiff's name as it was spelled in the complaint.
2 Robert Berluti. Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), for the purpose
of this appeal. We affirm.
Background. "We summarize the findings set forth in the
order on the [defendant's] . . . motion[] for summary judgment,
supplemented by other uncontroverted facts in the summary
judgment record, and viewing 'the evidence in the light most
favorable to the party against whom summary judgment was
entered'" -- here, the plaintiff (citations omitted). Williams
v. Board of Appeals of Norwell, 490 Mass. 684, 685 (2022).
The accident occurred on December 1, 2014. Within a week,
the plaintiff was diagnosed with Legionnaires' disease. He
retained Berluti to represent him in potential accident-related
claims against his employer. Berluti took the case on a
contingency basis and did not bill the plaintiff for his time.
On June 29, 2015, Berluti terminated his representation of the
plaintiff.
The plaintiff maintains that Berluti's representation was
deficient in several ways. According to the plaintiff, during
the representation, Berluti failed to (1) meet with him in
person; (2) adequately prevent or address spoliation of
evidence; (3) take adequate steps to secure water samples;
(4) conduct witness interviews; (5) take adequate steps to
ensure that the Occupational Safety and Health Administration
(OSHA) followed its investigatory protocol or undertook more
2 than a minimal investigation of the accident; (6) timely obtain
or act on the conclusions of the National Institute for
Occupational Safety and Health (NIOSH) investigation;
(7) adequately assess or address the maintenance history of the
compressor involved in the incident; and, finally, the plaintiff
claims that when Berluti withdrew from representing the
plaintiff, he incorrectly told him that no third-party claim
could be brought. With one exception,3 the plaintiff confirmed
that he was aware of each of these actions or inactions in 2015
at or before the time Berluti withdrew from representing him.
Berluti referred the plaintiff to Hoffer to pursue a
potential workers' compensation claim, and Hoffer and the
plaintiff agreed to a contingent fee arrangement. The company
and its compensation insurer both denied coverage. Hoffer filed
a workers' compensation claim with the Department of Industrial
Accidents (DIA) on the plaintiff's behalf. A doctor hired by
the insurer opined (to a reasonable degree of medical certainty)
3 The NIOSH report (begun in March 2015 and dated April 2016) concluded that all samples from the plaintiff's workplace were negative for Legionella bacteria and stated that the agency was unable to determine if the workplace incident was related to the plaintiff's case of Legionnaires' disease. The investigation was still underway when Berluti ended his representation in June 2015 and the report was not issued until ten months later, when Berluti had no lawyer-client relationship with the plaintiff. If Berluti failed to acquire or act on the NIOSH report, it is because he had no authority or obligation to do so.
3 that the plaintiff's disability was not related to Legionnaires'
disease and that he did not contract Legionnaires' disease at
work. NIOSH found no evidence that Legionnaires' disease was
present at the plaintiff's workplace.
At the request of the DIA judge, a second doctor examined
the plaintiff. This doctor concluded that it was "plausible" or
"likely" that the plaintiff's Legionnaires' disease was a
product of his workplace exposure but also concluded there was
"insufficient evidence that [the plaintiff] is disabled from a
respiratory point of view or that [h]is symptoms are due to the
effects of Legionella pneumonia." This second doctor
characterized the examination of the plaintiff as "essentially
normal," and noted that it would be helpful to review pulmonary
function tests and respiratory records (which he did not have)
to confirm his impression. It is unclear whether he ever
reviewed them; the record reflects no updated opinion from this
doctor.
There is a disagreement between the parties about how
Hoffer received the plaintiff's medical records. For the
reasons explained in the discussion of the claim against Hoffer,
this disagreement does not preclude our review.
Hoffer began settlement negotiations with the insurer by
demanding $125,000 and, eventually, a condition that the insurer
accept liability. The insurer, relying on the first doctor's
4 report, refused to consider a resolution that included an
acceptance of liability.
The plaintiff's workers' compensation case was set for
trial before the DIA judge in October 2015, but the judge did
not reach the case; instead, a different DIA judge mediated the
parties' claims in late November, following which the insurer
extended a settlement offer of $60,000, with payment of the
plaintiff's medical bills incurred to date for treatment of
Legionnaires' disease, and no acceptance of responsibility. The
plaintiff did not accept the offer and a new trial date was set
for December 4, 2015. On that date, the plaintiff signed a
settlement agreement on the terms outlined above. In connection
with accepting the settlement, he answered questions posed to
him by the judge about the settlement, including questions about
his understanding of the settlement and his desire to settle his
claim. The plaintiff filed his original complaint on December
4, 2018, in the Superior Court.
A judge of the Superior Court allowed the defendants'
motions for summary judgment (after a hearing) and denied the
plaintiff's motions for reconsideration. Before us are counts I
and VI. The remaining claims were dismissed under Mass.
R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).
Discussion. "The allowance of a motion for summary
judgment 'is appropriate where there are no genuine issues of
5 material fact in dispute and the moving party is entitled to
judgment as a matter of law'" (citation omitted). Williams, 490
Mass. at 689.
"[A] party moving for summary judgment in a case in which
the opposing party will have the burden of proof at trial is
entitled to summary judgment if he demonstrates . . . that the
party opposing the motion has no reasonable expectation of
proving an essential element of that party's case."
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991). We review summary judgment decisions de novo. Kiribati
Seafood Co., LLC v. Dechert LLP, 478 Mass. 111, 116 (2017).
"To prevail on a claim of negligence by an attorney, a
client must demonstrate that the attorney failed to exercise
reasonable care and skill in handling the matter for which the
attorney was retained . . . ; that the client has incurred a
loss; and that the attorney's negligence is the proximate cause
of the loss." Kiribati Seafood Co., LLC, 478 Mass. at 117,
quoting Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010).
"Expert testimony is generally necessary to establish that the
attorney failed to meet the standard of care owed by an attorney
in a particular case" (citations omitted). Pongonis v. Saab,
396 Mass. 1005, 1005 (1985).
The statute of limitations for a legal malpractice claim is
three years, see G. L. c. 260, § 4; claims for breach of
6 fiduciary duty likewise are subject to a three-year statute, see
G. L. c. 260, § 2A. "The statute of limitations applicable to a
legal malpractice claim begins to run when a client 'knows or
reasonably should know that he or she has sustained appreciable
harm as a result of the lawyer's conduct.'" Lyons v. Nutt, 436
Mass. 244, 247 (2002), quoting Williams v. Ely, 423 Mass. 467,
473 (1996). "[A]ppreciable harm is 'injury, loss or detriment'
that is 'capable of being measured or perceived.'" Vinci v.
Byers, 65 Mass. App. Ct. 135, 139 (2005), quoting Kennedy v.
Goffstein, 62 Mass. App. Ct. 230, 233 (2004). See Parr v.
Rosenthal, 475 Mass. 368, 383-384 (2016) ("actual knowledge that
an attorney caused a client appreciable harm generally means
actual knowledge that the attorney committed legal
malpractice"). "The plaintiff need not know the extent of the
injury or know that the defendant was negligent for the cause of
action to accrue" (citation omitted). Williams, supra at 473.
1. Malpractice and breach of fiduciary duty claims against
Berluti. Berluti's representation of the plaintiff ended on
June 29, 2015, when Berluti met with the plaintiff and his wife
and told them he would no longer represent them. At his
deposition, the plaintiff acknowledged that by this date he was
aware that Berluti's performance had allegedly been deficient in
each of the ways he identified in his lawsuit, detailed above.
7 The plaintiff alleged that these claimed deficiencies began
almost immediately at the beginning of the representation,
positing that (1) Berluti should have taken immediate action to
procure samples, (2) at the time he retained Berluti, "pertinent
evidence . . . was in the process of being destroyed," and (3)
obtaining information about the maintenance of the
malfunctioning equipment was "imperative," and yet Berluti did
not do it. The plaintiff also contends that Berluti instructed
him not to pursue getting "critical[,] mandated samples" and
that Berluti failed to interview willing witnesses. Each of
these claimed deficiencies by counsel impaired or denied the
plaintiff's ability to prove an ephemeral and -- in the
plaintiff's view -- necessary element of his job-related injury.
As such, by or before June 29, 2015, the plaintiff was on notice
that Berluti had caused him appreciable harm.
We therefore conclude that the complaint, filed more than
three years later, was filed after the statute of limitations
had run.4 See G. L. c. 260, § 4; Lyons, 436 Mass. at 247.
Because it was also subject to a three-year statute of
4 At least one alternative ground exists for allowing the motion for summary judgment in Berluti's favor. As more fully discussed in relation to the claims against Hoffer, proof of legal malpractice generally requires proof of negligence in the form of an expert opinion, which was not present here. See Pongonis, 396 Mass. at 1005.
8 limitations, the claim for breach of fiduciary duty is also time
barred. See G. L. c. 260, § 2A.
2. Malpractice and breach of fiduciary duty claims against
Hoffer. The plaintiff maintains that Hoffer committed legal
malpractice by failing to collect necessary medical records,
thus causing the plaintiff to settle the case for less than he
might have obtained if represented by competent counsel.
"In a legal malpractice action a plaintiff who alleges his
attorney was negligent in the prosecution of a claim will
prevail if he proves that he probably would have obtained a
better result had the attorney exercised adequate skill and
care." Poly v. Moylan, 423 Mass. 141, 145 (1996), citing
Fishman v. Brooks, 396 Mass. 643, 647 (1986). "[F]ormer clients
suffer a loss due to an attorney's negligence only if that
negligence is shown to have made a difference to the client."
Poly, supra, quoting Jernigan v. Giard, 398 Mass. 721, 723
(1986).
The "traditional approach" in the trial of a legal
malpractice case is, first, that "[t]he original or underlying
action is presented to the trier of fact as a trial within a
trial." Fishman, 396 Mass. at 647. "If the trier of fact
concludes that the attorney was negligent, a matter on which
expert testimony is usually required, the consequences of that
negligence are determined . . ." (citation omitted). Id.
9 The first step, then, would be to determine whether Hoffer
was negligent. The plaintiff offered no expert opinion to
support his claims and suggests that none was needed because the
need to collect medical records in a personal injury case is so
obvious that expert testimony is not required.
Even if we assume without deciding that some medical
records were missing because of Hoffer's failure to subpoena
them, the plaintiff made no showing that he would have obtained
a better result (that is, a more favorable settlement) had
Hoffer obtained these missing medical records. The doctors who
examined the plaintiff did not opine that his disability
resulted from Legionnaires' disease that he contracted at his
workplace. In the absence of evidence that (1) the missing
records included such an opinion, likely increasing the amount
of the settlement offer, or (2) better lawyering would have
resulted in a more favorable settlement offer for a different
reason, the plaintiff's claim is unavailing. See Fishman, 396
Mass. at 647. Not all attorney negligence is actionable;
rather, as Poly makes clear, to support a malpractice claim, a
plaintiff must show that "he probably would have obtained a
care." 423 Mass. at 145, citing Fishman, supra at 647. Because
the plaintiff failed to do that, the grant of summary judgment
10 for Hoffer was proper.5 Where the same facts supported the
plaintiff's claim against Hoffer for breach of fiduciary duty,
that judgment was also properly awarded to Hoffer.
3. The plaintiff's motions for reconsideration. We
"review the judge's denial of a motion for reconsideration only
for abuse of discretion." Merchants Ins. Group v. Spicer, 88
Mass. App. Ct. 262, 271 (2015), citing Commissioner of Rev. v.
Comcast Corp., 453 Mass. 293, 312-313 (2009). Here, we find
none. For the reasons discussed in the consideration of the
claims against each defendant, the plaintiff raised no argument
in his motions for reconsideration that rendered the summary
5 The plaintiff also claims that the judge could have served as an expert witness. This argument was not raised below and therefore is not properly before us. See, e.g., Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). Even if it were, it would not offer the plaintiff the result he seeks. Judges are tasked with being impartial arbiters of the law and may not serve as experts in the cases before them. See S.J.C. Rule 3:09, Canon 3, Rule 3.1(C) (2016) (judges shall not "participate in activities that would appear to a reasonable person to undermine the judge's . . . impartiality"). See also Mass. G. Evid. § 605 (2024) ("The presiding judge may not testify as a witness at the trial").
11 judgment decision unreasonable. See L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).6
Judgment affirmed.
Orders dated August 8, 2022, and August 17, 2022, denying motions for reconsideration affirmed.
By the Court (Meade, Hershfang & Toone, JJ.7),
Clerk
Entered: November 21, 2024.
6 "To the extent that we have not specifically addressed other points made . . . in [the appellant's] brief, they 'have not been overlooked. We find nothing in them that requires discussion.'" Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
7 The panelists are listed in order of seniority.