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Desimini v. Durkin

United States District Court, D. New Hampshire

May 27, 2015

Felicia M. Desimini,
v.
John F. Durkin, Jr. and Wilson, Bush, Durkin & Keefe PC

ORDER Opinion No. 2015 DNH 107

JOSEPH DiCLERICO, Jr., District Judge.

Felicia M. Desimini brings claims against her former attorney, John F. Durkin, Jr., and his law firm, Wilson, Bush, Durkin & Keefe, PC that arose from Durkin's representation of Desimini during her divorce proceedings. The defendants move to exclude or limit the opinions of Desimini's expert witness, Jennifer Brooke Sargent. Desimini objects.

Standard of Review

The testimony of expert witnesses is governed by Federal Rule of Evidence 702. Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d 109, 113 (1st Cir. 2010). "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702. As part of the court's gatekeeping function with respect to expert witnesses, the court must determine whether an expert is qualified to give the proffered opinion. Pages-Ramirez, 605 F.3d at 114.

Discussion

Desimini offers Sargent as an expert witness to testify about the standard of care applicable to her claims against the defendants. The defendants challenge Sargent's opinions on the grounds that she is not qualified because she lacks experience in the area of family and divorce law and because her opinions about violations of the New Hampshire Rules of Professional Conduct are not relevant to Desimini's claims. In response, Desimini contends that Sargent has sufficient experience in pertinent legal fields and that the Rules of Professional Conduct provide standards of professional responsibility that are relevant to the issue of legal malpractice.

The defendants filed a copy of Sargent's resume and excerpts from her deposition but did not file a copy of her expert report with their motion to exclude or limit her testimony as required by Local Rule 7.1(a)(2). While not obligated to do so, the court searched the docket and found that the defendants filed a copy of Sargent's report with their motion for summary judgment (document no. 44).

The court has read the report. The defendants have not challenged specific opinions in the report. Instead, the defendants' motion appears to seek a ruling as a matter of law that Sargent is not qualified to give any opinion related to the standard of care and that opinions about ethics violations can never be relevant to the standard of care in a legal malpractice case.

A. Qualifications

In her resume, Sargent states that she graduated from law school in 1992 and worked as a judicial law clerk in the Vermont Superior and Family Courts for the next year. She was a staff attorney, appellate defender, and managing attorney with the New Hampshire Public Defender from August of 1993 to August of 2000, although she spent a six-month period in 1997 as an associate at McLane, Graf, Raulerson & Middleton.

Sargent taught criminal law and administered an internship program at Vermont Law School from 2000 to 2002. A few years later, Sargent taught legal ethics, evidence, and criminal procedure and administered externship programs at the law school. She served as a special justice in the Littleton, Lancaster, and Haverhill District Courts from August of 2002 to June of 2010. From June of 2010 through April of 2011, Sargent was chief prosecutor for the State of New Hampshire in attorney discipline cases.

Currently, Sargent is a visiting associate professor of writing at Dartmouth College and trains and coaches the Dartmouth Moot Court Team. Since 2005, Sargent has also been part of the faculty at the National Judicial College in Reno, Nevada. In that capacity, she has taught judges on subjects including evidence, criminal procedure, and judicial immunity.

The defendants argue that Sargent is not qualified to give opinions about the applicable standard of care because she does not practice in the area of domestic relations and divorce. Neither the New Hampshire Supreme Court nor a court interpreting New Hampshire law has held that a witness giving an expert opinion about the standard of care in a legal malpractice case must practice in the same area of law.

In the context of medical malpractice, the New Hampshire Supreme Court has held that a "lack of specialization in a particular medical field does not automatically disqualify a doctor from testifying as an expert in that field." Goudreault v. Kleeman, 158 N.H. 236, 246 (2009). Other courts that have considered the question focus on whether the proffered expert in a legal malpractice case is familiar with the issue on which the expert is expected to provide an opinion. See, e.g., Cadle Co. v. Sweet & Brousseau, P.C., 2006 WL 43229, *4 (N.D. Tex. Feb. 23, 2006); Weber v. Sanborn, 526 ...


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