 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Shimer v. Foley9/16/2003
However, Shimer argues that evidence that Synthes continued to pay Shimer for his services some eight months after he rejected its offer would tend to show that it had the ability to fund at least a portion of the offer had he accepted it in January, 1994. As we previously noted, a plaintiff in a legal malpractice suit need only show that he could have collected "something" on the underlying judgment. See Jernigan v. Giard, 398 Mass. at 723, and cases cited. It is that portion of the judgment that can actually be collected "that determines the financial liability and responsibility of the legal malpractice defendant, assuming professional negligence has been determined." McDow v. Dixon, 138 Ga. App. 338, 341 (1976). See Poly v. Moylan, 423 Mass. at 148. Hence, Shimer was not required to prove collectibility of the entire sum he might have obtained from accepting the Synthes offer, but only that he could have collected "something," thereby demonstrating the likelihood of a result better than he obtained by relying on FHE's advice. See Jernigan v. Giard, supra.
Of course, evidence of Synthes's timely payments to Shimer, alone, would not prove that Synthes had the financial ability to pay Shimer additional amounts beyond what was actually paid. But Shimer also proposed to testify about his subsequent employment as a consultant for a Synthes competitor, and about market studies he conducted in the course of that employment specifically concerning Synthes's revenues and market share as of 1996.
It is in this respect that the nature of the underlying dispute and settlement offer between Synthes and Shimer becomes relevant to the issue of collectibility. While the judge opined that Synthes's financial status, as demonstrated by a market study in 1996, had no bearing on its ability to fund the Synthes offer extended to Shimer in December, 1993, we note from Shimer's proposed evidence that certain terms of the Synthes offer anticipated an ongoing relationship with Shimer. It allegedly included, for example, an annual salary, annual bonuses, and relocation expenses for up to two years. As a consequence, evidence of Synthes revenues and market share in 1996 could support a reasonable inference that it could have funded at least some portion of the proposed agreement with Shimer beyond the end of their relationship in 1994. How much, we think, would be a question for the jury. See generally Taylor Oil Co. v. Weisensee, 334 N.W.2d 21, 30 (S.D. 1983).
Admittedly, Shimer's proposed proof of collectibility was thin. See, e.g., McDow v. Dixon, 138 Ga. App. at 341-342 (judgment against legal malpractice defendant reduced to amount of underlying tortfeasor's insurance coverage where plaintiff failed to introduce business records, financial statements, or assets to prove collectibility over and above insurance). "A toehold, however, is enough to survive a motion for summary judgment." Marr Equip. Corp. v. I.T.O. Corp., 14 Mass. App. Ct. 231, 235 (1982). See Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct. 954, 955 (1994). We conclude that there was enough here to go to a jury on the issue of Synthes's ability to fund at least some portion of the monetary benefits promised in its offer, had Shimer accepted it, over the subsequent course of their business relationship. Accordingly, on this record, dismissal for lack of proof of collectibility was unwarranted.
b. Legal expenses as damages.
The judge erred, as well, when she concluded that Shimer could not recover as damages in the malpractice action his legal fees and costs incurred in the underlying Federal litigation because he could not prove the existence and terms of a new contract offer from Synthes.
Shi
Page 1 2 3 4 5 6 7 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|