Opinion
No. 03-189.
March 30, 2004.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BACKGROUND
Plaintiff, Jonathan L. Tucker, retained defendant, Mary H. Schmidt, an attorney, in April, 1985 to contest his father's will (will contest) Tucker's father, Charles W. Tucker, Jr. (father), died in 1994. Prior to his death the father had executed a new will which left a smaller inheritance to plaintiff than his earlier will. On plaintiff's behalf defendant, under Probate Court Rule 16, filed an "Affidavit of Objections" (Affidavit of Objections) in the case which alleged, inter alia, that the father was not of sound mind due to deterioration of his physical and emotional health at the time he executed his new will and also that the new will and trust were procured through the undue influence of Nancy Penhune, a financial adviser of the father, who was the principal legatee under the new will. The plaintiff supplied information to the defendant which she used to prepare the Affidavit and he also signed it. Thereafter, the proponent of the will, Shawmut Bank, N.A. (Shawmut), filed a "Motion to Strike Appearance and Affidavit of Objections" (motion to strike). Shawmut's contention in its motion to strike included that the Affidavit of Objections contained no opinions of expert witnesses or opinions of physicians or medical personnel which supported plaintiff's claim. A hearing was held on Shawmut's motion to strike in Dukes County Probate Court on September 6, 1995. The Probate judge subsequently dismissed the plaintiff's will contest.
Plaintiff and his brother retained defendant. Each paid defendant $9,000.00. Tucker's brother is not a party to this lawsuit.
On September 12, 1995, defendant wrote a letter to plaintiff which advised him of the judge's ruling and discussed possible options. Thereafter, neither plaintiff nor defendant took further action in the case. Plaintiff had no communication with defendant from the end of 1995 until September of 2002 when plaintiff wrote a letter to the defendant alleging that she committed legal malpractice by failing to retain psychiatric and other medical witnesses to support his case. In that letter, plaintiff demanded that defendant return to him the $9,000 which he had paid to her. Plaintiff later filed this suit in the Brockton District Court on December 9, 2002, over seven years after the hearing in the Dukes County Probate Court. In his lawsuit, plaintiff has alleged, in essence, that the defendant committed legal malpractice for not having his father's medical records properly reviewed by psychiatrists and/or other medical personnel and for her failure to submit affidavits and other medical evidence in the will contest action.
Defendant has moved for summary judgment on two grounds: (1) since plaintiff waited more than seven years before filing this lawsuit, the three-year statute of limitations under G.L.c. 260, § 4 which covers malpractice actions (as well as the six-year statute governing contract actions) has expired; (2) that the issue of legal malpractice in this case can only be established through expert witnesses, and plaintiff has stated in his deposition and answers to interrogatories that he does not intend to call any expert witnesses.
Plaintiff has opposed summary judgment. He argues that he did not realize the defendant had committed malpractice until approximately August of 2002 and under the "discovery rule" the statute did not begin to run until then. See Lyons v. Nutt, 436 Mass. 244, 247 (2002). Plaintiff further contends that he has no need to have expert witnesses testify at trial because defendant's malpractice can be discerned from the facts by ordinary jurors without the need of expert testimony.
DISCUSSION
Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c);Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983);Cmty. Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law.Pedersen v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991).
A. The Statute of Limitations Defense
Regarding the "discovery rule," defendant testified at his deposition that he filed for bankruptcy in approximately 1994 but his bankruptcy petition had been dismissed. Around August of 2002, a question arose in his mind about why his bankruptcy petition was dismissed. Although he cannot recall the exact question that arose, it caused him to look at the bankruptcy papers in his home. The will contest papers were with those bankruptcy papers. He reviewed the Affidavit of Objections which had been filed by defendant in 1995. While reading this he suddenly realized that he had not heard the defendant say anything to him about having a psychiatric expert review his father's hospital records or her otherwise retaining expert medical personnel. He sent to Dukes County for the records of the will contest and realized for the first time that no affidavits or expert medical evidence had been filed by the defendant. Based upon this recent "discovery" by him, he contends that the statute of limitations did not begin to run until around August of 2002, and this action was filed well within the allowable period. The court finds to the contrary, since the record amply demonstrates that the plaintiff knew or reasonably should have known of the defendant's alleged legal malpractice in 1995. The Affidavit of Objections filed in 1995, which plaintiff signed and for which he provided information, specifically stated that "Medical evidence and testimony will show both his weakened, dependent state and his submission to Nancy's influence"; plaintiff wrote to the defendant in 1995 suggesting the need for medical testimony including the need for a psychiatrist to examine his father's records regarding his mental condition or that his father's attending physician be contacted; plaintiff admitted receiving defendant's billing invoices while the will contest was ongoing. There is no indication of disbursements for medical expert witnesses on the invoices; in Shawmut's Motion to Strike which defendant supplied to plaintiff on September 12, 1995, Shawmut challenged the plaintiff's Affidavit of Objections contending that it stated nothing more than general background facts and conclusory allegations of "unsound mind" and "undue influence" and did not contain opinions of attending physicians or medical personnel; plaintiff was present at the hearing in Duke's County Probate Court at which Shawmut's motion to strike was argued. Defendant wrote to the plaintiff on September 12, 1995, enclosing a copy of the judge's order dismissing the will contest. In that letter she did not encourage the plaintiff to file a complaint and stated that "Without specific facts as to undue influence or unsound mind, the complaint would most likely be denied." From all of these facts, despite his claimed incomprehension, plaintiff knew or should have known no later than September,1995, that the defendant had not retained expert psychiatric or other medical experts to review his father's records or otherwise support his claims that his father lacked the mental incapacity to execute the new will or was coerced because of undue influence. Plaintiff's duty of reasonable inquiry began in September of 1995. The present action is now time-barred by the statute of limitations. See Malapanis v. Shirazi, 21 Mass. App. Ct. 378 (1986); Bowen v. Ely Lilly Co., 408 Mass. 284, 206-208 (1990); Fidler v. E.M. Parker Co., 294 Mass. 534, 546, fn. 1 (1985). Therefore, defendant's motion to dismiss based upon the applicable statute of limitations must be allowed.
Plaintiff testified at his deposition that he never spoke with defendant after that note or otherwise discussed it with her.
Plaintiff claims he trusted his attorney and never reviewed the invoices.
Plaintiff claims that the courtroom was too large and noisy to hear what was said.
B. The Failure of Plaintiff to have Expert Witness Testimony
In order to establish legal malpractice, the plaintiff must establish that his attorney was negligent, that he suffered a loss, and that the defendant's negligence was the proximate cause of that loss. Colucci v. Rosen, Goldberg, Slavet, Levinson Y Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987). Expert legal testimony is necessary except in the rare circumstance where the evidence is so gross or obvious that the jurors can rely on their common knowledge to recognize or infer negligence. See Pongonis v. Saab, 396 Mass. 1005 (1985). Plaintiff claims that this is such a case. The court disagrees. However, even if plaintiff were correct, summary judgment must be granted because plaintiff can not establish the requisite proximate cause without expert medical testimony. It is not enough for plaintiff to prove that defendant negligently failed to introduce medical evidence. Plaintiff must further prove that this medical evidence would have established at trial that his father was of unsound mind when he executed the new will and/or that he executed the new will because of duress exerted by Nancy Penhune. Absent expert medical testimony to establish proximate cause, summary judgment must be allowed on this additional ground.
ORDER
For the reasons stated above, defendant's motion for summary judgment is ALLOWED.