Opinion
11-P-358
04-24-2012
PHYLLIS A. MASTON & another, v. PAUL POIRIER & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial on the G. L. c. 93A claims of the plaintiffs, Phyllis and Douglas Maston, a judge of the Superior Court found the defendants, Paul and Jane Poirier, doing business as ServPro of Fitchburg-Leominster (ServPro), liable for damages resulting from Phyllis's exposure to a ServPro disinfecting product, SaniPro II. The judge found that the defendants had breached the implied warranty of merchantability by failing to warn of dangerous conditions resulting from the use of SaniPro II during the cleanup of the plaintiffs' basement after a city sewer backup, and that, as a consequence, Phyllis developed chronic asthma. In addition to awarding $267,248.67 to Phyllis for her injuries, and $5,000 to Douglas for his loss of consortium, the judge awarded the plaintiffs $215,328 in attorneys' fees and costs in the amount of $15,447.61. In this appeal from the ensuing judgment, the defendants challenge the judge's liability findings and the attorneys' fee award. We affirm.
The judge did not award multiple damages.
1. Sale of goods. The defendants argue that there could be no breach of the warranty of merchantability, and hence no liability under c. 93A, because Phyllis's exposure to SaniPro II came about as a result of the defendants' provision of services and not the sale of goods. The plaintiffs respond that, in addition to providing cleanup services, the defendants 'supplied' SaniPro II -- an exclusive product required to be used by the defendants as ServPro franchisees -- and that the transaction was predominantly a sale of goods. We need not decide the issue, however, because the defendants did not make their argument below. We will not consider a nonjurisdictional argument in support of reversal which was not made in the trial court, particularly where, as here, the absence of objection deprived the judge of the opportunity to make potentially relevant factual findings. See Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977).
The defendants are represented by new counsel on appeal. While it is understandable that they have brought fresh perspective to the case, our review must proceed on the record made in the trial court. Notably absent from the defendants' appellate briefs are record references demonstrating that the services/goods argument was preserved, and our own review of the voluminous record confirms that it was not. By the time the parties' posttrial briefs were exchanged, there could be no doubt that the plaintiffs were asserting that the defendants' failure to warn constituted a breach of the warranty of merchantability, and that the case therefore fell within the rubric of Maillet v. ATF-Davidson Co., 407 Mass. 185 (1990). Thereafter, the judge convened the parties to hear closing arguments in the case. The defendants did not argue (orally or in writing) that the plaintiffs could not prevail on their warranty theory because there was no sale of goods. The defendants' arguments were that the evidence showed that SaniPro II was safe, that they had no knowledge of any health risks associated with it, and that the plaintiff's exposure was not causally related to any medical condition from which she suffered.
2. Demand letter. In a related vein, the defendants argue that the plaintiffs' c. 93A demand letter failed to give adequate notice of the specific theory (breach of the warranty of merchantability) on which c. 93A liability was imposed. Again, it is not apparent that this alleged infirmity in the demand letter was brought to the judge's attention. Regardless, the argument lacks merit. 'Specificity is required to describe the practices complained of, not the legal basis for the claim.' Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 506 (2011). Here, the plaintiffs' detailed demand letter fairly notified the defendants of the actions and practices at issue and the injury suffered as a result. No more was required.
3. Duty to warn. The evidence was sufficient to permit the judge to find that the defendants were required to warn or instruct Phyllis about hazards associated with SaniPro II, and the need to properly ventilate the area and remain away from it until it was dry. As explained in his findings of fact, rulings of law, and order for judgment dated December 11, 2009, the judge relied, inter alia, upon the following: expert testimony establishing that quaternary ammonium compounds (QUATS) contained in SaniPro II have the ability to cause asthma and respiratory sensitization; the 'Material Safety Data Sheet' (MSDS) for SaniPro II, requiring that workers use an approved respirator if the product is sprayed during application, as was done in this case; ServPro's own written policies and standards, which required their employees to remove occupants from treated areas to prevent exposure, to determine whether potentially at-risk people were in the building, to inform customers about products to be used, to inquire about sensitivity to the product, and to ensure that the treated area was properly ventilated and that the product had time to dry before allowing occupants back in; the testimony of the Mastons' neighbor, who stated that when ServPro treated his basement after the same sewer backup, he was advised to stay out of the basement and to ventilate and dry the treated areas with continuously running fans for four days; Phyllis's testimony that she was not so advised, and that she therefore entered the basement to perform additional cleaning and organizing as soon as ServPro left, and continued to work in the basement over several days.
To the extent that the defendants challenge not only the sufficiency of the evidence but the accuracy of the judge's subsidiary findings, we are unpersuaded that any material finding is clearly erroneous. The judge was not required to credit the defendants' evidence or to accept their interpretation of the facts.
4. Expert opinion on causation. It was within the judge's discretion to deny the defendants' motion in limine and to admit and refuse to strike the expert testimony of Dr. Robert J. McCunney. See Canavan's Case, 432 Mass. 304, 312 (2000). Given Dr. McCunney's extensive education, experience, and research in the fields of toxicology, medicine, and environmental health, the judge was entitled to find him qualified to opine as to both general and specific causation.
The judge also was entitled to conclude that Dr. McCunney's opinion met Lanigan reliability standards. The opinion was based upon the chemical composition of SaniPro II as reflected in its MSDS, peer-reviewed, scientific literature linking the QUATs contained in SaniPro II to the development of asthma and respiratory sensitization; the history of Phyllis's exposure to SaniPro II; her recorded symptoms from the time of exposure onward; and the results of a methacholine challenge test, which confirmed a diagnosis of hyperactive airways. The judge could conclude in his discretion that the lapse of time between Phyllis's exposure and her ultimate diagnosis of asthma, and the absence of quantitative analysis of exposure, did not render Dr. McCunney's opinion inadmissible, and that these issues could be explored on cross-examination and through the testimony of the defendants' expert.
See Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), accepting the basic reasoning of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
5. Jury trial. The defendants were not entitled to a jury trial on the c. 93A claim. E.g., Nei v. Burley, 388 Mass. 307, 315 (1983). The plaintiffs' waiver of their common law claims just prior to trial does not affect the analysis.
6. Attorneys' fees. Regardless of the fee arrangements between the attorneys and the plaintiffs, having prevailed on their c. 93A claims, the plaintiffs were entitled to recover an award of reasonable attorneys' fees for the work done to vindicate their rights under the statute. Siegel v. Berkshire Life Ins. Co., 64 Mass. App. Ct. 698, 704 (2005). The award belongs to the plaintiffs, not the attorneys, while the extent of the plaintiffs' obligation to pay the attorneys is defined by the agreement between them. Ibid.
The basic measure of a reasonable statutory fee award is the lodestar method, which involves multiplying the number of hours reasonably spent on the case by a reasonable hourly rate. Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). The amount awarded 'is largely discretionary with the judge, who is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney's services.' Ibid.
In the present case, the judge found, on the basis of the attorneys' experience, the complexity of the case, and an expert opinion contained in the affidavit of John Mavricos, Esq., that a reasonable hourly rate for the work of Attorney Reynolds was $300, and a reasonable hourly rate for the work of Attorney Reynolds-Daigneault was $250. We see no reason to disturb the judge's exercise of discretion in this regard.
The judge declined to find a higher hourly rate for in-court time, as requested in Attorney Reynolds' submissions.
A more difficult issue is presented as to the computation of the number of hours reasonably spent by the attorneys, because neither of them kept contemporaneous time records. Instead, they submitted affidavits supported by reconstructed 'statements,' listing the dates, amount of time, and activities performed. These statements were said to have been derived from the attorneys' daily calendars, computer records of documents created, personal notes, letters sent and received, court documents created and received, electronic mail sent and received, telephone messages recorded, and their best memories.
Given that the plaintiffs were prosecuting claims which, if successful, would result in an award of attorneys' fees, counsel would have been well advised to keep contemporaneous records to support any fee request. That said, we cannot say that the judge abused his discretion in relying upon the attorneys' detailed reconstructions. Contrary to the defendants' position, the reconstructions provided a nonspeculative basis for a lodestar calculation; to a considerable extent they were based upon activities and events that were indisputable. 'It is not the law that a request for attorneys' fees must be entirely denied when a fee applicant does not submit contemporaneous time records to the court.' Handy v. Penal Institutions Commr. of Boston, 412 Mass. 759, 767 (1992). Then again, '[i]t is not unreasonable to impose a reduction in the compensation awarded when the party seeking an award of attorneys' fees does not demonstrate conclusively on the record that contemporaneous time records were kept.' Id. at 768-769.
Here, as indicated in the judge's order on attorneys' fees, the judge made substantial downward adjustments after scrutinizing the submissions for excessive or duplicative efforts. He reduced the hours submitted by Attorney Reynolds by approximately thirty-five percent (from 526.9 to 341.01), and reduced the hours submitted by Attorney Reynolds-Daigneault by approximately forty-two percent (from 781.80 to 452.1). While the total fee award remains sizeable, we are unable to conclude that the judge abused his discretion.
Judgment affirmed.
By the Court (Kafker, Cohen & Katzmann, JJ.),