NYSTROM v. CAMPBELL (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Elizabeth Ann Nystrom, appeals from an amended summary judgment dismissing her malpractice claims against the defendants, Attorney M. Trant Campbell and others. We affirm.

1. Background. Attorney Campbell represented Nystrom at the trial of her divorce. On May 14, 2012, following trial, a judgment nisi entered. As to alimony, the judgment only awarded Nystrom approximately six months of “rehabilitative” alimony, although she and her husband had been married twenty-one years. Disagreements quickly arose between Nystrom and Campbell regarding payment of Campbell's invoices. Nystrom discharged Campbell on May 29, 2012, and Campbell had no further involvement in the underlying litigation.³

In her complaint in this case, and in her opposition to Campbell's motion for summary judgment, Nystrom asserted that Campbell made several errors in his representation of her -- during discovery, at trial, and after trial. Nystrom asserted, among other things, that Campbell did not (1) obtain certain relevant materials through discovery; (2) properly cross-examine Nystrom's husband or rehabilitate Nystrom's own testimony; and (3) make efforts to correct or to rebut assertions in her husband's posttrial submissions. Nystrom also asserted that Campbell reprimanded the trial judge, which in turn allegedly predisposed the judge to enter an inequitable judgment favoring Nystrom's husband.

After discovery closed, Campbell moved for summary judgment. While Campbell raised several substantial arguments, the most important for present purposes is that Nystrom did not present any expert testimony to support her claims that Campbell, in conducting the litigation and trial, failed to exercise the degree of care and skill expected of a qualified practitioner. After a hearing the judge dismissed Nystrom's claims, ruling in particular that Nystrom's claims failed for a lack of supporting expert opinion.

2. Discussion. A claim of attorney malpractice will in most cases require support from an expert. “An attorney owes his client an obligation to exercise a reasonable degree of care and skill in the performance of his legal duties․ Expert testimony is generally necessary to establish that the attorney failed to meet the standard of care owed by an attorney in a particular case.” Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). “We generally require expert testimony because ‘laymen, including the jury, the trial judge, and ourselves, could not be, and are not, in a position to determine ․ the requirements of professional conduct’ in the relevant circumstances.” LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 329 (2012), quoting Haggerty v. McCarthy, 344 Mass. 136, 141 (1962).

While Nystrom concedes that she did not submit expert opinion evidence, she argues that she had no need to do so here because Campbell's acts and omissions were “so gross or obvious,” Pongonis, 396 Mass. at 1005, that a fact finder properly could infer negligence even in the absence of expert testimony. We disagree. Nystrom's allegations have to do, for example, with the types of materials obtained in discovery, with cross-examination at trial, and with the content of posttrial submissions. An evaluation of whether such tasks were performed with the proper level of due care is beyond the knowledge of a lay jury, and requires testimony from a qualified legal expert. Id. See Goldberg v. Northeastern Univ., 60 Mass. App. Ct. 707, 709 (2004), quoting Bennett v. Winthrop Community Hosp., 21 Mass. App. Ct. 979, 981 (1986) (expert testimony required where the essential question concerns the quality of a professional's “deliberated judgment in the particular case”); Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111-112 (1987).

The narrow exception for “gross or obvious” errors that Nystrom attempts to invoke does not apply here; it is limited to those cases in which, for example, an attorney without excuse missed a clear deadline or failed to perform some other obvious, essentially ministerial task. See Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500-501 (2010) (no expert testimony required where in underlying action attorneys did not file timely notice of appeal and made no showing of excusable neglect). The allegations here do not fall into those categories. Pongonis, 396 Mass. at 1005.

The fact that the original divorce judgment was vacated on appeal, see note 2, supra, also does not show that Campbell's performance fell below the standards expected. This court's decision vacating the original divorce judgment is not grounded in or attributable to Nystrom's counsel's performance. Instead, the panel essentially ruled that the original divorce judgment (1) was unsupported by appropriate factual findings; and (2) did not demonstrate that the judge considered various statutorily mandated and other highly relevant considerations, including Nystrom's unrebutted testimony (elicited by Campbell) pertaining to Nystrom's job search and employment prospects. Nystrom v. Nystrom, 85 Mass. App. Ct. 1121 (2014).

Finally, Nystrom also appears to argue that the judge erred in not authorizing public funds for her to retain an expert witness. Passing the question whether such funds would even be available, we have already noted that Nystrom did not identify any expert witness before discovery closed, or even before judgment entered. In granting summary judgment the judge stated that “[d]iscovery has closed [and] the plaintiff does not have an expert and has not offered a good faith representation that she intends to retain an expert.” There was no abuse of discretion in the judge's handling of Nystrom's failure to present an expert.

We have considered Nystrom's remaining arguments and found them to be without merit. In light of our disposition we need not consider Campbell's alternative points.

Conclusion. The amended judgment is affirmed. The order on the motion for extra costs and fees, entered November 15, 2017 (nunc pro tunc to November 10, 2017), is affirmed.

So ordered.

Affirmed

FOOTNOTES

3.   The plaintiff pursued an appeal pro se and succeeded in getting the judgment nisi vacated and the matter remanded for further proceedings as to the alimony award. See Nystrom v. Nystrom, 85 Mass. App. Ct. 1121 (2014). On remand, an amended judgment entered. The amended judgment was itself subsequently vacated in part by Nystrom v. Nystrom, 92 Mass. App. Ct. 1124 (2018), and the matter was again remanded for further proceedings.