MacFarlane v. MacKean

• Court: District Court, D. New Hampshire
• Decided: July 10, 1995
• Docket: CV-92-614-SD
• Status: Published

Opinion

MacFarlane v. MacKean CV-92-614-SD 07/10/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

James MacFarlane

v. Civil No. 92-614-SD

Edgar D. MacKean III, et al

O R D E R

This order addresses some, but not all, of the issues raised

by certain currently pending motions.

1. Defendants' Motion to Continue, document 50

This legal malpractice action is currently scheduled for

final pretrial conference on September 7, 1995, with jury

selection to be held on September 26, 1995. Unfortunately, two

of the defendants. Attorneys McKean and Nye, will not be

available for trial as thus scheduled. Attorney McKean is

reguired to attend a trial in Rhode Island, and Attorney Nye will

be without the country during the currently scheduled trial

dates.

As the time for interposition of an objection to the motion

has passed without such objection having been filed, the court,

on due consideration of the motion, herewith grants same. The

final pretrial conference of September 7 and the jury selection

of September 26, 1995, are herewith continued, to be thereafter

rescheduled at the convenience of the court's calendar. 2. Defendants' Motion to Dismiss/Summary Judgment, document 51

This dispositive motion, to which plaintiff has interposed

objections, documents 56 and 57,1 is largely grounded on

defendants' argument that plaintiff, having failed to disclose an

expert by December 7, 1994, cannot prove his case.

Although plaintiff argues that such expert testimony is not

reguired, in part his objection suggests that he should be

granted additional time to find such expert.

The New Hampshire Supreme Court has not yet addressed the

issue as to whether expert testimony is reguired in an action for

legal malpractice. This court is satisfied, however, that the

better rule, which will be adopted in New Hampshire, is that such

expert testimony is reguired unless the legal malpractice alleged

is so obvious that lay jurors could rely on their own knowledge

to decide the issue. This is the majority rule that has recently

been adopted in the neighboring jurisdictions of Maine, Jim

Mitchell & Jed Davis, P.A. v. Jackson, 627 A.2d 1014 (Me. 1993),

cert, denied, ___ U.S. ___ , 114 S. C t . 903 (1994), and

Massachusetts, Pongonis v. Saab, 396 Mass. 1005, 486 N.E.2d 28

(1985) .

Inasmuch as the case has been continued, the court will

afford the pro se plaintiff an opportunity to supply the

1Document 56 is the plaintiff's objection to the motion, and document 57 is his "Submission of Additional Authority" in support of said objection. Defendant has also filed a motion to strike, document 55. As the court elects to treat the motion challenged as a motion for summary judgment, the motion to strike is herewith denied.

2 requisite expert evidence. An opinion of the expert thus

retained by plaintiff is to be filed by 4:30 p.m. on August 14,

1995,2 and the court will treat the motion as a motion for

summary judgment and will thereafter rule on the issues before

it.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 10, 1995

cc: James MacFarlane, pro se Eugene M. Van Loan III, Esq.

2Plaintiff is also afforded until August 14, 1995, to file such additional affidavits contravening the motion for summary judgment as he desires.