Richard G. Kahn
Jon Meyer, Esq. & a.
The plaintiff's motion to strike and for other relief is denied. The plaintiff, Richard G. Kahn, appeals an order of the superior court granting summary judgment in favor of the defendants, Jon Meyer, Esq. and the law firm of Backus, Meyer, Solomon and Branch, LLP, on his claims of legal malpractice. The trial court concluded that the plaintiff failed to disclose sufficient expert testimony to establish legal causation and damages. We affirm in part, reverse in part, and remand.
In reviewing the trial court's grant of summary judgment, we consider the summary judgment record, and all reasonable inferences drawn from it, in the light most favorable to the nonmoving party. See Dent v. Exeter Hosp., 155 N.H. 787, 791 (2007). Summary judgment is required where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See id. at 792; RSA 491:8-a, III (1997).
To establish legal malpractice, it is the plaintiff's burden to prove: "(1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach." Carbone v. Tierney, 151 N.H. 521, 527 (2004). Proof of both breach of the standard of care and causation in a legal malpractice action ordinarily requires expert testimony. See id. at 528; see also Estate of Sicotte v. Lubin & Meyer, P.C., 157 N.H. ___, ___ (decided September 12, 2008). Although the trial court may properly grant summary judgment if the plaintiff fails to disclose required expert testimony, see Dent, 155 N.H. at 795-96, the trial court has discretion to excuse a failure to timely disclose expert testimony, see Gulf Ins. Co. v. AMSCO, 153 N.H. 28, 33 (2005).
In this case, the plaintiff, a retired attorney, alleged that he began receiving total disability insurance benefits in 1989. In 1997, the insurer began to demand that the plaintiff undergo independent medical examinations (IMEs) pursuant to the policy, a demand he resisted unless the insurer would assent to the attendance of his own physician or attorney at the IMEs. In 1998, after the insurer refused the plaintiff's terms, he engaged the defendants to represent him in the dispute with the insurer.
In January 1999, the insurer sent the defendants a letter declaring that its continued payment of benefits was pursuant to a reservation of rights, and that it would be rescheduling IMEs. The insurer later scheduled the IMEs for October 1999, and notified the defendants. The defendants, however, neither advised the plaintiff of the reservation of rights and that the insurer had scheduled IMEs, nor advocated his position that he was entitled under the policy to the attendance of his own representative at the IMEs. The plaintiff failed to attend the IMEs, the insurer terminated the policy, and the plaintiff, represented by the defendants, commenced litigation with the insurer. The insurer counterclaimed for benefits paid under the reservation of rights.
During the underlying litigation, the plaintiff alleges, inter alia, that the defendants failed: (1) to research, develop, and assert viable claims; (2) to vigorously and expeditiously prosecute the litigation; (3) to initially sue the proper party; and (4) to develop an appropriate budget and litigation strategy. In December 2000, the plaintiff allegedly learned of, and confronted the defendants about, a conflict of interest. The plaintiff subsequently terminated the attorney-client relationship, and proceeding pro se, settled with the insurer for $220, 000.
Thereafter, the plaintiff commenced the present action, asserting numerous violations of professional obligations. He claimed that the defendants' actions, both prior to and during the litigation, caused him to lose insurance benefits prematurely, to incur litigation expenses, and to settle for an amount less than the value of the benefits due him under the policy. He sought to recover the difference between the settlement and the total value of the insurance benefits, the legal fees he paid the defendants, the expenses he incurred in the underlying case and would incur in the malpractice case, and the value of the time he devoted to the underlying case and would devote to the malpractice case.
Prior to trial, the plaintiff disclosed himself as his sole expert witness, and produced an eighty-three page report detailing his claims. The defendants moved to strike the plaintiff as an expert witness, and for summary judgment on the basis that because the plaintiff had not disclosed expert opinion testimony as to the reasonable settlement value of the underlying case, or that he was, in fact, medically disabled, he could not establish causation or damages. The plaintiff countered that his report cited, and he had produced, videotaped depositions of medical experts from the underlying case, and that he himself was qualified to testify as to the value of his disability benefits. The trial court denied the motion to strike, and denied summary judgment "without prejudice to any pretrial [and] trial evidentiary obj[ections]."
Shortly before trial, a different trial judge granted a motion in limine to preclude the medical depositions taken in the underlying case on the basis that the defendants had either not participated in them, or had participated only as the plaintiff's counsel. Recognizing that the order would "prejudice [the plaintiff] in the damage phase of his upcoming trial, " however, the trial court bifurcated the case, ruling that the scheduled trial would address "the liability portion of the plaintiff's case, " with a separate trial "to decide the plaintiff's damage claims after the plaintiff ha[s] had the opportunity to redepose his medical experts with the defendants being able to participate in that process." The trial court denied a second motion in limine to preclude the plaintiff from acting as his own expert or introducing testimony regarding the value of future benefits.
The scheduled trial did not go forward, however, and the case was transferred to another county. At the trial management conference, a third trial judge referred to the order denying summary judgment, and asked whether the plaintiff had disclosed any new experts. When the plaintiff responded that the bifurcation order still stood, and that the trial court had already ruled that he was qualified to provide expert testimony as to liability, the trial judge stated that she was going to reexamine the summary judgment motion. Thereafter, the trial court granted the motion, finding that because the plaintiff had not disclosed medical testimony that he was disabled, or evidence as to the settlement value of the underlying case, he could not meet his burden.
On appeal, the plaintiff argues that the trial court erred by excluding the medical depositions taken in the underlying case. In the event the trial court properly excluded such depositions, the plaintiff challenges the granting of summary judgment, arguing that the finding that he had failed to disclose medical testimony and evidence concerning the settlement value of the underlying case was inconsistent with the bifurcation of the case. Finally, the plaintiff argues that the trial court erred by denying certain motions to compel discovery responses, and that neither the trial judge who excluded the depositions, nor the trial judge who granted summary judgment, was impartial.
We address first whether the trial court erred by excluding as hearsay the plaintiff's medical expert depositions. We review the trial court's rulings on the admissibility of hearsay evidence for an unsustainable exercise of discretion. See Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 777 (2005).
Upon this record, the trial court was not compelled to find that the medical experts were "unavailable, " a prerequisite to the admissibility of the depositions under either Rule 804(b)(1) or Rule 804(b)(6) of the New Hampshire Rules of Evidence. See Carlisle, 152 N.H. at 777-78. Moreover, given the defendants' role as counsel for the plaintiff in the underlying proceedings, the trial court was not compelled to find that they had a motive to develop the experts' testimony through cross-examination, see N.H. R. Ev. 804(b)(1), or that admission of the depositions would serve the interests of justice, see N.H. R. Ev. 804(b)(6)(C). Accordingly, we reject the ...