Abdulky v. Lubin & Meyer, P.C. ( 2023 )

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22-P-498 Appeals Court
OBAIDA ABDULKY1 & another2 vs. LUBIN & MEYER, P.C., & others.3
No. 22-P-498.
Worcester. December 8, 2022. – March 28, 2023.
Present: Milkey, Ditkoff, & Englander, JJ.
Attorney at Law, Malpractice. Contract, Settlement agreement,
Minor. Collateral Estoppel. Estoppel. Judicial Estoppel.
Evidence, Expert opinion, Legal malpractice. Witness,
Expert. Practice, Civil, Summary judgment.
Civil action commenced in the Superior Court Department on
August 14, 2018.
The case was heard by Janet Kenton-Walker, J., on a motion
for summary judgment.
A proceeding for interlocutory review was heard in the
Appeals Court by Singh, J.
Joseph D. Lipchitz (Bridgitte E. Mott also present) for the
defendants.
Peter J. Brockmann for the plaintiffs.
1 As parent and next friend of Anthony Abdulky.
2 Ward Abdulky, as parent and next friend of Anthony
Abdulky.
3 Andrew C. Meyer, Jr., and Krysia Syska.
2
ENGLANDER, J. This is an action for attorney malpractice.
The defendants (defendants or defendant lawyers) represented the
plaintiffs, parents of a minor child whose arm was amputated
below the elbow at age five, in a medical malpractice action
that was settled in 2015 for $6 million. The plaintiffs
(parents) thereafter brought this suit, arguing that their
lawyers failed to competently develop evidence of damages -- in
particular, the lifetime costs of the child's medical treatments
and prosthetics -- and that this failure resulted in a lower
recovery than should have been obtained. The defendants moved
for summary judgment on several grounds, including (1) that the
plaintiffs' claims were barred by collateral estoppel, because a
Superior Court judge determined that the settlement was
reasonable, after a hearing pursuant to G. L. c. 231,
§ 140C 1/2; (2) that the plaintiffs' claims were barred by the
doctrine of judicial estoppel, due to representations that the
plaintiffs made to the court during the settlement process; and
(3) that the plaintiffs had not elicited competent evidence of
damages -- that is, had not shown, by admissible evidence, that
proper legal representation would have resulted in a settlement
or verdict greater than $6 million.
3
A different Superior Court judge (motion judge) denied the
motion for summary judgment, and a single justice of this court
granted the defendants leave to take this interlocutory appeal.
While we agree with the motion judge that the plaintiffs' claims
were not barred by either collateral estoppel or judicial
estoppel, we conclude that the plaintiffs did not adduce
evidence of damages "such . . . as would be admissible" at
trial. Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) (rule 56
[e]). Accordingly, the order denying the motion for summary
judgment must be reversed.
Background. 1. The medical malpractice lawsuit. The
child, then age five, was admitted to UMass Memorial Medical
Center (hospital) for a fractured wrist. Due to complications
arising from the child's treatment, the child's right arm was
amputated below the elbow. In 2012, the parents (on behalf of
the minor child) sued nine physicians associated with the
hospital as well as the Commonwealth (hospital defendants),
alleging claims of professional negligence. The parents also
asserted a loss of consortium claim on their own behalf.
The parties engaged in mediation and settlement
negotiations, and in mid-August 2015 the hospital defendants'
insurer made a settlement offer of $6 million. After much
discussion with their attorneys (the defendants in this case),
and after a meeting with the Superior Court session judge
4
(settlement judge), the parents directed and authorized the
defendant lawyers, in writing, to accept the settlement offer.
On August 27, 2015, the defendant lawyers advised the hospital
defendants, also in writing, that the offer was accepted.
The settlement judge was advised that the parties had
settled, and he scheduled a hearing to review the proposed
settlement, with the first of (what turned out to be) three
hearings occurring on September 17, 2015. The judge opened the
first hearing by noting that, although he had expected to
approve the settlement at that time, he had been advised that
the particulars were not yet finalized and that the parents were
attempting to "pull[] away from the settlement." The judge then
inquired of the parents whether the case was in fact settled.
The parents acknowledged that it had been reported to the court
that the case had settled, but explained that they had
reservations. After the judge had an off-the-record discussion
with the parents about those reservations,4 the judge stated that
it was "clear" that the case was settled. The judge also
inquired of the father whether he had felt "pressured" into
proceeding with the settlement, to which the father responded in
the negative. The judge accordingly directed the parties to
4 The judge described the plaintiffs' reservations as
concerning "various things, including the privacy of this
information regarding their son because of him being young and
having potential, in the future, access to some funds."
5
finalize their settlement, and he scheduled an approval hearing
for October 2, 2015. In the interim, on September 23, 2015, the
court entered an order of dismissal nisi "after [the] action was
reported settled," directing the parties to file an agreement or
stipulation by October 26, 2015.
At the October 2 hearing, the defendant lawyers presented
(on behalf of the parents) a petition for approval of the
settlement agreement pursuant to G. L. c. 231, § 140C 1/2.5
Prior to the settlement judge addressing the petition, however,
the parents, through the defendant lawyers, requested to be seen
at sidebar, where the parents attempted to reverse course on the
settlement because they were concerned the settlement amount did
not properly account for the costs of the child's future
prosthetics. After further discussion, the judge stated that
the parents were not in a position to disavow the settlement,
noting that "[t]he case is completely settled as of now for six
million." Although the parties reported that they had some
additional details to work out, the judge approved the
settlement structure (and those settlement details already
agreed to) and ordered the parties to appear for another
5 That statute provides, in part, that "[t]he trial court
may review and approve a settlement for damages because of
personal injury to a minor . . . in any case before the court
where any party has filed a petition for settlement approval
signed by all parties." G. L. c. 231, § 140C 1/2.
6
approval hearing to address those aspects that remained
outstanding.
The parties appeared for a third hearing on October 22,
2015. At that time, however, the parents (in a pleading signed
by the defendant lawyers) filed a motion to vacate the September
23 order of dismissal nisi and to void the settlement agreement.
The motion to vacate made two arguments: (1) that the
settlement amount failed to properly consider the costs of the
child's future prosthetics needs, and (2) that the parents had
entered the agreement under duress, due to their fear that a
guardian ad litem would be appointed to evaluate the settlement
on their child's behalf. The settlement judge held a hearing,
but took no sworn testimony or other evidence.6 He thereafter
rejected the parents' arguments, denied their motion, and stated
on the record that he believed the settlement amount accounted
for the future costs of prosthetics and that the parents were
not under duress when they entered into the settlement. The
judge then reviewed the remaining aspects of the settlement
structure and approved the settlement, stating that the
settlement was "favorable" and "just."7 The parents did not
6 The parents' motion, however, did contain a letter from a
prosthetist containing a "rough estimate" of purported costs for
the child's future prosthetics.
7 During a sidebar conversation with the parents, the judge
explained that, in his experience, similar cases did not result
7
appeal from the approval and, on October 26, 2015, signed the
final settlement agreement and release on behalf of themselves
and the child. The settlement monies were paid out between
October and November 2015.
2. The legal malpractice lawsuit. Just shy of three years
later, in August of 2018, the plaintiffs commenced this
malpractice lawsuit against the defendant lawyers, alleging
(1) that the settlement amount was inadequate in that it did not
consider the child's future need for and costs of prosthetics,
and (2) that the defendant lawyers had caused them to settle
under duress, by informing them that the hospital defendants
were considering seeking appointment of a guardian ad litem.
The defendants moved for summary judgment, making three
arguments in particular. First, they argued that the plaintiffs
were collaterally estopped from attacking the adequacy and
voluntariness of the settlement agreement, because the
settlement judge had considered and ruled on those issues in
approving the settlement. Second, they argued that judicial
estoppel barred the parents' claims, where the parents had
represented to the judge that they entered the medical
in awards higher than $6 million. He also cautioned that the
parents risked a lower recovery due to the limits on the
hospital defendants' insurance coverage -- meaning that the
parents would need to prove multiple doctors were at fault to
collect more than $6 million, which (in the judge's view) was
far from a guarantee.
8
malpractice settlement free from duress and considered the
settlement to be in their child's best interests. Finally, the
defendants argued that the plaintiffs had failed to present
competent evidence regarding damages, and in particular, that
the proffered opinion of the plaintiffs' damages expert was
speculative, and insufficient in law to give rise to an issue of
material fact as to whether the plaintiffs should have recovered
more than $6 million.
The motion judge denied the motion in a margin endorsement.
The judge stated that she was not persuaded that either
collateral or judicial estoppel applied under the circumstances.
Her ruling, however, did not specifically address the
defendants' arguments concerning the lack of evidence of
damages.
Discussion. Before us the defendants press the same three
arguments -- collateral estoppel, judicial estoppel, and the
failure to adduce competent evidence of damages.8 We address
8 The plaintiffs argue that this appeal should be dismissed,
because the "the Single Justice did not reference or cite to any
serious and/or irreparable consequence(s)" justifying an
interlocutory appeal. We are not persuaded that the single
justice had such a duty. It is well established that "[t]he
single justice 'enjoys broad discretion . . . to report the
request for relief to the appropriate appellate court.'"
Ashford v. Massachusetts Bay Transp. Auth., 421 Mass. 563, 566
(1995), quoting Packaging Indus. Group, Inc. v. Cheney, 380
Mass. 609, 614 (1980). Indeed, the Supreme Judicial Court has
held that a single justice of this court has "the authority to
allow appellate review of the denial of [a] motion for summary
9
each argument in turn, applying the de novo standard of review.
See Lynch v. Crawford, 483 Mass. 631, 641 (2019) ("We review an
order granting or denying summary judgment de novo . . .").
1. Collateral estoppel. The thrust of the defendants'
collateral estoppel argument is that in ruling on the § 140C 1/2
motion and approving the settlement, the settlement judge made
factual findings that preclude the plaintiffs' legal malpractice
claim, to wit, (1) that the settlement amount was reasonable,
and (2) that the plaintiffs were not under duress. We do not
agree that collateral estoppel applies here.
In general, collateral estoppel applies where the following
requisites are met: (1) "there was a final judgment on the
merits in the prior adjudication"; (2) "the party against whom
preclusion is asserted was a party (or in privity with a party)
to the prior adjudication"; (3) "the issue in the prior
adjudication was identical to the issue in the current
adjudication"; and (4) the issue "was essential to the earlier
judgment, and was actually litigated in the prior action"
(quotation and citation omitted). DeGiacomo v. Quincy, 476
judgment" where the single justice "concluded that an appeal on
this single issue would facilitate the administration of
justice." Swift v. American Mut. Ins. Co. of Boston, 399 Mass.
373, 375 n.5 (1987). The single justice accordingly had
discretion as to whether to allow the appeal, see McHoul v.
Commonwealth, 365 Mass. 465, 468 (1974), and here we discern no
abuse of discretion.
10
Mass. 38, 42 (2016). For an issue to be actually litigated and
essential to the judgment, "[t]he nonmoving party previously
must have had a full and fair opportunity to litigate the
issue." Mullins v. Corcoran, 488 Mass. 275, 282 (2021).
While in this case one might question whether any of the
above requisites were met, here we will focus on two -- the lack
of identity of issues, and the lack of a full and fair
opportunity to litigate the issue previously. As to each of
these elements, our reasoning is influenced by the unusual
nature of the prior proceeding that is claimed to have
preclusive effect -- a motion under § 140C 1/2 to approve a
medical malpractice settlement. A proceeding under § 140C 1/2
is an ancillary proceeding to a personal injury damages claim,
specifically designed for the circumstance where the plaintiff
is a minor and thus represented by a guardian, usually the
parents. See Mass. R. Civ. P. 17 (b), as appearing in 454 Mass.
1402 (2009) ("If an infant . . . does not have a duly appointed
representative, he may sue by his next friend or by a guardian
ad litem"). See also Sharon v. Newton, 437 Mass. 99, 107 (2002)
(minors may disaffirm most contracts before reaching eighteen
years of age or within reasonable time thereafter). General
Laws c. 231, § 140C 1/2, provides:
"The trial court may review and approve a settlement for
damages because of personal injury to a minor . . . in any
case before the court where any party has filed a petition
11
for settlement approval signed by all parties. The trial
court may make such orders and take such action as it deems
necessary to effectuate the disposition of a settlement
approval including . . . the appointment of a guardian
. . . or the holding of an evidentiary hearing."
The statute thus provides that the proceeding can be
invoked by a "party," after which the judge "may review and
approve a settlement." G. L. c. 231, § 140C 1/2. The primary
purpose of the statute is to ensure the settlement is fair to
the child -- including, significantly, whether the parents have
acted in the child's best interests. Thus, the Supreme Judicial
Court has cited "the types of conflicts and financial pressures
that may arise in the postinjury settlement context," which "can
create the potential for parental action contrary to the child's
ultimate best interests." Sharon, 437 Mass. at 109 n.10.9
Secondarily, the statute provides a measure of protection to the
parents, who can secure review and approval from a knowledgeable
neutral. See id. And, arguably, § 140C 1/2 can benefit the
9 Although there is not much discussion of § 140C 1/2 in our
cases or in the legislative history, courts in other
jurisdictions have acknowledged that similar rationales drive
their own rules about judicial approval of settlement agreements
involving minors. See, e.g., Hojnowski v. Vans Skate Park, 187
N.J. 323, 334 (2006) ("a minor's parent . . . may not dispose of
a minor's existing cause of action without statutory or judicial
approval" so as "to guard a minor against an improvident
compromise [and] to secure the minor against dissipation of the
proceeds" [quotation and citation omitted]); Whitcomb v. Dancer,
140 Vt. 580, 586 (1982) (Vermont's statute "imposes an
affirmative obligation on the superior court judge to protect
the best interests of the minor" and protect the "minor child
. . . from the potential improvidence of his or her parents").
12
original defendants, by protecting them in "any later action by
or on behalf of the child." Cf. Dominique v. Ralph D. Kaiser
Co., 479 A.2d 319, 325 n.3 (D.C. 1984) (Terry, J., concurring).
Given its purposes, we think that approval under the
statute at most will have preclusive effect as to the settlement
parties it was intended to protect -- the child, the parents,
and perhaps, the original defendants. But there is nothing in
§ 140C 1/2, or in any case law addressing analogous statutes,
that indicates that the judicial approval process was intended
to protect the child's lawyers. Here, the settlement judge did
not make any findings regarding the services the defendant
lawyers provided, nor is there any suggestion in the statute
that such is required.10 Moreover, as this case illustrates, the
approval procedure may be relatively informal, in which case the
settlement judge is dependent, to some extent, on the
presentation of the child's lawyers as to the facts that bear on
10Approval under § 140C 1/2 thus differs from approval of
class-action settlements under Fed. R. Civ. P. 23 (2018) (rule
23). The defendants argue by analogy that we should apply
collateral estoppel here because some Federal courts have held
that class-action settlements approved under rule 23 cannot be
collaterally attacked through subsequent legal malpractice
claims. We do not find the analogy persuasive, however, because
approval under rule 23 requires something that § 140C 1/2 does
not -- an express determination that counsel adequately
represented the interests of the class. See Laskey v.
International Union, United Automotive, Aerospace and Agric.
Implement Workers, 638 F.2d 954, 957 (6th Cir. 1981) ("finding
that the class was adequately represented is necessary for
finding the settlement was fair and reasonable").
13
the strength and value of the child's claim. In this case, at
least, the issue addressed at the settlement approval hearing
was whether the settlement was reasonable in structure and
amount as to the child and the parents, based upon what was
known of the facts and law, and under an implicit assumption
that the defendant lawyers worked the case to professional
standards. By definition, that issue is not identical to the
issue presented in this legal malpractice case.
For many of the same reasons, we do not believe the issue
of the reasonableness of the settlement was "full[y] and
fair[ly]" litigated for purposes of this claim against the
defendant lawyers. See Mullins, 488 Mass. at 282. As noted
above, the settlement judge did not take evidence regarding the
plaintiffs' possible damages. Nor did he take evidence
regarding the investigation the defendant lawyers performed, or
how or whether the defendant lawyers evaluated the child's
potential lifetime prosthetics costs. True, the plaintiffs did
argue in their motion to vacate the settlement that they entered
the agreement not fully understanding the child's future
prosthetics needs. However, it does not follow from the denial
of that motion that the judge actually determined that the
defendant lawyers properly advised the plaintiffs about those
costs, where he took no evidence on the subject.
14
Our conclusion is consistent with the Supreme Judicial
Court's decision in Meyer v. Wagner, 429 Mass. 410 (1999).
There, the court addressed a client's legal malpractice claim
against her former divorce attorney. See id. at 411. The crux
of the client's claim was that the attorney failed to
(1) competently prepare and execute a settlement agreement, and
(2) institute ancillary proceedings to secure certain assets,
causing her to obtain less than her fair share of the marital
assets. See id. As here, the settlement agreement at issue had
been approved by a judge as "fair" and incorporated into the
underlying judgment. Id. at 414. The attorney argued that the
client's acceptance of the agreement and its approval barred the
subsequent malpractice claim. See id. at 416. The lower court
struck the malpractice claim, but the Supreme Judicial Court
reversed. See id. at 412, 425. The court declined to depart
from "the usual malpractice rule on settlements" just because a
judge had approved the agreement. Id. at 419, citing Grayson v.
Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 175 (1994).
The court accordingly held that
"where a client establishes that his or her attorney, in
advising on the settlement of a divorce action, has failed
to exercise the degree of skill and care of the average
qualified lawyer, and that the failure has resulted in loss
or damage to the client, the client is entitled to recover
even if the settlement has received judicial approval"
(emphasis added).
15
Meyer, supra at 419. Consistent with Meyer, we will not apply
collateral estoppel under the circumstances here.11
2. Judicial estoppel. The defendants next argue that the
parents are judicially estopped from attacking the settlement,
due to the parents' initial representations to the settlement
judge that the amount was adequate and that they had entered the
agreement voluntarily. The doctrine of judicial estoppel
generally arises where a party makes a representation or
advances a contention to a court in one proceeding, achieves
success as a result of the representation, and then, in a
subsequent proceeding, asserts a contradictory contention. See
Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 641 (2005). The
doctrine's purpose is to prevent "parties from improperly
manipulating the machinery of the judicial system" -- i.e.,
"playing fast and loose with the courts" (citation omitted).
11Separately, the finding that the plaintiffs were not
under duress when they signed the settlement agreement does not
preclude the plaintiffs' legal malpractice claim, at least
insofar as the claim asserts that the settlement amount was
unreasonable because the defendant lawyers failed to properly
investigate the costs of future prosthetics. That aspect of the
plaintiffs' legal malpractice claim does not turn on whether
they were under duress. See Fishman v. Brooks, 396 Mass. 643,
646 (1986) ("an attorney is liable for negligently causing a
client to settle a claim for an amount below what a properly
represented client would have accepted"). Insofar as the
plaintiffs' legal malpractice claim seeks recovery based upon
the alleged duress, rather than a failure to investigate, the
collateral estoppel issue presented would be different; however,
in light of our decision on damages infra, we need not decide
that question.
16
Id. at 642. To that end, there are "two fundamental elements"
that warrant judicial estoppel: "[f]irst, the position being
asserted in the litigation must be 'directly inconsistent,'
meaning 'mutually exclusive' of, the position asserted in a
prior proceeding" (citation omitted), and "[s]econd, the party
must have succeeded in convincing the court to accept its prior
position." Id. at 640-641.
It should be evident that the elements of judicial estoppel
are not present here. Although in the § 140C 1/2 proceeding the
parents initially represented that they were satisfied with the
settlement, they expressed their reservations almost immediately
thereafter. Rather than seeking to gain a benefit from their
initial representations to the settlement judge, the parents
actively sought to withdraw those representations and to undo
the settlement. They filed a motion to that effect before the
§ 140C 1/2 process was complete, arguing specifically that the
settlement did not adequately consider the future costs of
prosthetics for their child. The parents' ultimate position in
the medical malpractice action therefore was not directly at
odds with, but consistent with, their position here. Nor did
the parents actually succeed in convincing the judge to accept
their positions on the settlement -- that is, final approval of
the settlement occurred in spite of the parents' expressed
concerns. Put differently, there is no indication that the
17
plaintiffs engaged in the type of "playing fast and loose with
the courts" or manipulation of the judicial system that judicial
estoppel is designed to prevent. Otis, 443 Mass. at 642.
3. Evidence of damages. The defendants fare better with
their third argument, however, which is that the plaintiffs
failed to put forward competent evidence of damages -- that is,
the plaintiffs failed to present admissible evidence that they
would have obtained a settlement or recovery in excess of $6
million had the defendant lawyers performed to professional
standards. Proof of damages, of course, is an essential element
of the plaintiffs' malpractice claim. See Colucci v. Rosen,
Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct.
107, 111 (1987). Here, the only evidence of damages the
plaintiffs produced was the purported expert disclosure of David
Oliveira, an experienced medical malpractice attorney. The
entirety of his purported opinion about the value of the medical
malpractice action, and its basis, was as follows:
"The realistic case value for this matter is in excess of
$10 million. This would have included future equipment and
medical costs, loss of consortium and, of equal importance,
[the child's] pain and suffering over many years (past and
future). The pain and suffering alone could have been
worth $3-$4 million given that the higher number is merely
$1000/week for an 80-year life expectancy."
Thereafter, in response to the defendants' summary judgment
motion, the plaintiffs submitted a supplemental affidavit from
Oliveira, in which he stated that he had since "confirmed" his
18
prior opinion by researching "verdicts and settlements in the
Commonwealth for a variety of cases, including medical
malpractice cases involving amputations." Notably, the
supplemental affidavit did not identify any specific settlements
or verdicts, nor provide a methodology for how those settlements
and verdicts supported his $10 million opinion.
The defendants are correct that the plaintiffs' damages
submissions were insufficient to survive summary judgment. Our
conclusion is rooted in rule 56 (e), which provides that
affidavits supporting or opposing summary judgment "shall set
forth such facts as would be admissible in evidence."
Accordingly, if a party moving for summary judgment properly
supports their motion, "an adverse party may not rest upon the
mere allegations or denials of his pleading"; instead, the
adverse party must -- "by affidavits or as otherwise provided"
under rule 56 -- "set forth specific facts showing that there is
a genuine issue for trial." Mass. R. Civ. P. 56 (e). See
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991).
Here, the plaintiffs' submission did not "set forth such
facts as would be admissible in evidence," not just as a matter
of form, but as a matter of substance. Mass. R. Civ. P. 56 (e).
Admissibility of expert testimony at trial is governed by
Commonwealth v. Lanigan, 419 Mass. 15 (1994), and its progeny.
19
Under that case law, judges have a "gatekeeping" role in the
admission of expert testimony of all types. See Canavan's Case,
432 Mass. 304, 313 (2000). A proponent of expert testimony must
show (among other things) both (1) that the proposed expert
testimony is based upon a reliable methodology, and (2) that
that methodology has been reliably applied to the facts of the
case. See Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010),
cert. denied, 563 U.S. 990 (2011). See also Lanigan, supra at
26; Smith v. Bell Atl., 63 Mass. App. Ct. 702, 719-720 (2005);
Mass. G. Evid. § 702(d) (2022). In the past, this court has
applied the Lanigan standard at the summary judgment stage to
conclude that a particular expert proffer was, as a matter of
law, not admissible. See, e.g., Grassi Design Group, Inc. v.
Bank of Am., N.A., 74 Mass. App. Ct. 456, 462-463 (2009);
Baptiste v. Sheriff of Bristol County, 35 Mass. App. Ct. 119,
126 (1993). Cf. Molly A. v. Commissioner of the Dep't of Mental
Retardation, 69 Mass. App. Ct. 267, 284 n.24 (2007) (noting
that, if made, Lanigan challenge to expert evidence at summary
judgment "might have succeeded . . . because [the expert
evidence] largely failed to satisfy the requirements of" rule
56 [e]).
Here Oliveira's expert disclosure and supplemental
affidavit failed to meet the basic standard for admissibility
under the case law, because they did not set forth how Oliveira
20
had applied a reliable methodology to the facts of this case.12
Put differently, Oliveira's disclosure and affidavit seem to be
saying that for a medical malpractice claim of this type, with
injuries of this type, previous settlements and verdicts
demonstrate a likely value of $10 million or more. Assuming
that Oliveira described a valid methodology for valuing cases,
however -- that is, analyzing verdicts and settlements of cases
with comparable facts -- that methodology still must be reliably
applied. See Lanigan, 419 Mass. at 26. See also Commonwealth
v. Patterson, 445 Mass. 626, 648 (2005) ("Judges . . . need not
admit . . . every application of a . . . method . . . merely
because another application of the method has been deemed
reliable"). And here, nothing in either Oliveira's expert
disclosure or his supplemental affidavit describes how his
methodology was applied. He does not explain, for example,
which verdicts and settlements he reviewed, what the amounts of
those verdicts and settlements were, or why those upon which he
based his opinion were apt comparators. Cf. Santos v. Chrysler
Corp., 430 Mass. 198, 206 (1999) (expert's opinion properly
excluded where proponent did not establish that data underlying
the opinion "matched the circumstances of the plaintiff's
accident"). Simply setting forth an expert's experience, and
12We do not here question whether Oliveira had sufficient
qualifications to determine the value of the plaintiffs' case.
21
that he did some research, is not sufficient when the expert's
application of his methodology to the facts is not disclosed.13
See Commonwealth v. Franceschi, 94 Mass. App. Ct. 602, 610
(2018) (proponent did not show that expert "reliably applied a
reliable method"). In short, how Oliveira arrived at his
opinion was "ill described," rendering it "invalid and
unreliable." Hicks v. Brox Indus., 47 Mass. App. Ct. 103, 107
(1999) (expert opinion insufficient to warrant reconsideration
of summary judgment).14
In their brief, the plaintiffs argue that a Lanigan
gatekeeper analysis does not apply to summary judgment motions
-- that it applies only when "trial [is] imminent." To the
extent the plaintiffs are arguing that at summary judgment
judges cannot determine a proffered expert opinion to be without
evidentiary value, they are incorrect. As noted, rule 56 (e)
requires plaintiffs to proffer facts that would be admissible in
13The disclosure's cursory reference to pain and suffering
damages is equally deficient. Oliveira does not cite any
factual basis for opining as to the value of the pain and
suffering claim.
14We do not hold that judges must conduct Lanigan hearings
at the summary judgment stage whenever a party challenges an
opponent's expert report (although we do not rule out using such
a process, in the judge's discretion). We hold no more than
when a party seeks to meet their summary judgment burden by
relying on expert affidavits, reports, or disclosures, those
materials must meet rule 56 (e)'s requirement that they set
forth sufficient grounds to establish that the opinion "would be
admissible in evidence."
22
evidence. This requirement applies to proffered expert opinions
as well, as numerous cases have held, from this court and the
Federal courts. See Grassi Design Group, Inc., 74 Mass. App.
Ct. at 462-463 (affirming summary judgment to defendants where
plaintiff's reports did "not qualify as expert opinions under
[Lanigan] and . . . [we]re insufficient to create a genuine
issue of material fact"); Baptiste, 35 Mass. App. Ct. at 126 (no
error in "disregard[ing] the affidavit from the plaintiff's
expert" in granting defendants' motion for summary judgment
where "many of the expert's statements [we]re based upon
assumptions proved faulty by the undisputed facts" and "would
not be admissible at any trial").15 Rule 56 does not contain an
exception for expert evidence, nor should it. Because the
plaintiffs did not proffer admissible evidence on damages,
summary judgment should have entered for the defendants.
15See also, e.g., Equal Employment Opportunity Comm'n v.
Freeman, 778 F.3d 463, 465-468 (4th Cir. 2015) (affirming
summary judgment where plaintiff's expert's opinion was excluded
as unreliable, leaving plaintiff without evidence sufficient to
establish prima facie case); Nora Beverages, Inc. v. Perrier
Group of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (expert
evidence correctly excluded because "[o]n a summary judgment
motion, the district court properly considers only evidence that
would be admissible at trial"); Salas v. Carpenter, 980 F.2d
299, 305 (5th Cir. 1992) (reversing denial of defendant's motion
for summary judgment, noting that plaintiff's expert's summary
judgment affidavit contained "conclusory assertions" that were
inadmissible and could not "be relied upon by plaintiffs to
prevent summary judgment").
23
Order denying motion for
summary judgment reversed.
MILKEY, J. (concurring). I join the majority's opinion in
all respects, including its ruling that the plaintiffs did not
address the damages issue in a manner sufficient to survive
summary judgment. In my view, this is a correct, if strict,
application of what Mass. R. Civ. P. 56, 365 Mass. 824 (1974),
requires. I write separately merely to highlight my sense that
the strictness we apply may be a bit out of step with the
somewhat more lenient summary judgment culture prevalent in the
trial courts. In this respect, I note that we do not typically
review orders denying motions for summary judgment in light of
their interlocutory nature, and we performed such review here
only because a single justice had allowed it. The bar,
especially the plaintiffs' bar, would be wise to view today's
opinion as presenting a cautionary tale.