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Shimer v. Foley9/16/2003
mer claims that FHE's failure to disclose the adverse findings of its legal research also resulted in his unnecessary defense of the declaratory judgment action. Had he been properly informed by FHE, he posits, he would have conceded the matter and brought the litigation to a close. He would have done so, he asserts, because the significant expense of legal representation would have outweighed the reduced likelihood of success in light of the adverse case law that FHE's research had revealed. Moreover, he would have taken that course of action, he states, regardless of the availability of a new contract offer from Synthes.
In such circumstances, it was appropriate for Shimer to claim as damages in the malpractice action his legal fees and costs associated with the continued defense in the Federal litigation. Thus, evidence demonstrating Shimer's payment of legal fees and costs would constitute competent proof of damages purportedly resulting from FHE's alleged negligence, independent of any damages stemming from Shimer's rejection of Synthes's offer. Accordingly, his complaint should not have been dismissed on that basis.
3. Disposition.
We vacate the judgment of dismissal and remand counts 1 and 3 of the complaint for further proceedings consistent with this opinion.
So ordered.
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