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Shimer v. Foley9/16/2003
Suffolk.
June 24, 2002
Attorney At Law, Malpractice. Negligence, Attorney at law, Proximate cause. Damages, Loss of profits, Attorney's fees. Evidence, Legal malpractice, Settlement offer.
This is a legal malpractice case brought by a client, Stephen Shimer, who claims that, but for the negligent advice of his attorneys at Foley, Hoag & Eliot LLP (FHE), he would have settled his underlying dispute with Synthes Ltd. (U.S.A.) (Synthes) and avoided costly litigation. With a jury waiting in the wings, a Superior Court judge granted FHE's written motion in limine to preclude certain evidence of damages. As a consequence of that ruling, Shimer was unable to prove the essential element of damages as to the two pending counts in his legal malpractice complaint, and the judge dismissed both on FHE's oral motion. At issue in this appeal is the propriety of those rulings.
1. Background.
Shimer, a medical instruments distributor, alleges that he hired FHE to advise him concerning the interpretation of a termination provision in his written contract with Synthes, for which he served as a sales agent in the New England area. Synthes claimed the agreement was due to expire on January 1, 1994, while Shimer asserted that it would automatically renew and continue in effect after that date. According to Shimer, in the course of this dispute, Synthes offered him new, albeit less favorable, contractual terms, which he rejected based on encouraging advice he had received from FHE concerning the viability of his position on the original agreement. In a declaratory judgment action eventually brought by Synthes in Federal District Court in Pennsylvania to resolve the underlying contract dispute, summary judgment entered in favor of Synthes, a ruling that was upheld on appeal.
Subsequently, at the malpractice trial, Shimer's expert was expected to testify that FHE negligently failed to advise him of the existence of legal precedents adverse to FHE's interpretation of the contract between Shimer and Synthes. FHE had originally evaluated Shimer's legal position and concluded that it was "very likely" that Shimer's agreement with Synthes would be enforced as a self-renewing contract under Pennsylvania law and would be terminable only for certain limited reasons not applicable to Shimer's situation. Nonetheless, FHE told Shimer that further research would be necessary. At a later point, Shimer asked FHE to perform additional research so that he could better evaluate whether to continue defending the Federal litigation initiated by Synthes or to accept that company's offer of a new contract.
FHE conducted further research that revealed two appellate cases involving facts similar to those in Shimer's case, neither of which was helpful to his position. Indeed, one of the cases actually supported Synthes's position that its contract with Shimer was not self-renewing and was, in fact, terminable in the circumstances. Shimer was neither advised of the results of FHE's research nor of the existence of precedent supporting the position of Synthes. Instead, Shimer was told that FHE's additional legal research revealed nothing that changed its original analysis that Shimer's legal position was sound.
Shimer contends that he was denied the opportunity to re-assess the strength of his position in light of the new information, which he claims indicated that the issue was less clear than FHE had led him to believe. See Williams v. Ely, 423 Mass. 467, 476 (1996) (certainty of counsel's opinion unwarranted when underlying issue not conclusively resolved, thus denying plaintiffs the opportunity to evaluate different courses of action). As a result, he
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