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Shimer v. Foley9/16/2003
was unable to assess the risks associated with further litigation compared to the benefits connected to Synthes's offer of a new contract. Shimer now asserts that he would have accepted Synthes's latest contract offer had he known that, in circumstances similar to his, an appellate court had taken a position essentially supporting that of Synthes. In any event, had he accepted the offer the Federal litigation, in which he claims to have incurred $135,000 in legal expenses, would have been rendered moot.
2. Discussion.
The trial judge's allowance of FHE's motion in limine to preclude certain evidence of damages ultimately proved fatal to Shimer's case. In addition to proving that FHE failed to exercise reasonable care and skill in rendering him legal advice, Pongonis v. Saab, 396 Mass. 1005 (1985); Glidden v. Terranova, 12 Mass. App. Ct. 597, 598 (1981), it was Shimer's obligation to prove that FHE's negligence was the proximate cause of his reasonably foreseeable damages or loss. Fishman v. Brooks, 396 Mass. 643, 646-647 (1986). See Girardi v. Gabriel, 38 Mass. App. Ct. 553, 558 (1995). Following an exhaustive consideration of Shimer's proof, the trial judge concluded that Shimer was unable to prove either his damages or their collectibility and dismissed the action without reaching the issue of negligence.
Shimer's complaint should not have been dismissed. Rather, his proposed evidence should have been admitted to prove not only the terms of the new contract offered by Synthes, but also the damages stemming from his rejection of the offer as well as their collectibility. Independent of the lost opportunity to accept the new contract offered by Synthes, Shimer also claims that he suffered damages in the form of unnecessary legal fees expended in litigating the declaratory judgment action. Shimer was prepared to prove the amount of legal fees and costs that he paid relative to the Federal suit, a sum that could have been averted, he states, had he been provided the fruits of FHE's legal research. We conclude that evidence of such expenditures should not have been excluded by the trial judge, with the consequence being that Shimer's complaint was improperly dismissed.
a. Evidence concerning the offer of a new contract.
For a jury to infer that FHE's alleged negligence caused him harm, Shimer must prove not only that Synthes offered him a new contract, but also the benefits he would have realized had he accepted the proposal. The measure of his damages would thus be the value of the benefits lost when he rejected the offer based on FHE's legal analysis of his case. See, e.g., Brady v. Nestor, 398 Mass. 184, 189-190 (1986) (in malpractice case in which plaintiff alleged that attorney's negligent handling of employment discrimination suit deprived her of a valuable claim for reinstatement, plaintiff's verdict set aside for failure to prove damages resulting from her rejection of her employer's reinstatement offer). Moreover, Shimer had to demonstrate that benefits offered by Synthes in its contract offer were actually collectible. See Poly v. Moylan, 423 Mass. 141, 148 (1996), cert. denied, 519 U.S. 1114 (1997) (plaintiff in a legal malpractice action asserting negligence in handling of his claim bears burden of showing that he would have been able to collect something had a judgment been obtained in the underlying case). See also Jernigan v. Giard, 398 Mass. 721, 723-724 (1986).
i. Damages.
Shimer's theory of damages was that, had FHE adequately apprised him of the law, he would have accepted Synthes's last offer, thereby reaping the financial benefits of the proposed agreement and forgoing the costs of litigation. See, e.g., Van
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