GEYED v. KUPRIS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from an adverse jury verdict in this action for attorney malpractice. The plaintiff's sole argument is that the trial judge erred when he excluded the testimony of the plaintiff's proposed expert witness, because the disclosure of the expert was untimely. We discern no abuse of discretion or other error, and accordingly affirm.

Background. The underlying action, in which the defendant attorney represented the plaintiff, was the plaintiff's divorce proceeding. The defendant was retained to prosecute an appeal from the divorce judgment, and the plaintiff contends that the defendant failed to file the appellant's brief.² The plaintiff thereafter filed this suit for attorney malpractice, in 2014; the case was eventually tried in September of 2018.

The jury answered special questions. They found that the defendant was negligent, but that the defendant's failure did not cause the plaintiff any loss because the plaintiff would not have obtained a better result through an appeal of his divorce case. Judgment entered that the plaintiff would take nothing.³

Prior to trial, the plaintiff was given multiple deadlines to disclose any expert witnesses he would be presenting at trial. He failed to meet any of those deadlines. In connection with the third pretrial conference in the case, on July 26, 2018, the plaintiff was given an expert disclosure deadline of July 23, 2018. He failed to meet that deadline, and sought extensions and a trial continuance. Over the defendant's objections, the plaintiff was given a new expert disclosure deadline of August 8, 2018, and trial was set for September 10, 2018. The plaintiff missed that deadline as well. Finally, the plaintiff filed an expert disclosure on August 29, twelve days before trial. The proposed expert, a former probate judge, purportedly would have provided testimony that there were errors in the trial judge's handling of the divorce case, and that those errors should have been corrected by a properly handled appeal.

The trial judge excluded the expert disclosure as untimely. He noted:

“In fact, the deadline I set was August 8th, this was filed August 29th, and trial is scheduled for the 10th of September․ That you or your client, I recognize that you are relatively new counsel ․, you or your client have had four years to find an expert and to disclose one for the first time less than two weeks before trial seems to me to be untimely. I already gave you an opportunity by setting a deadline earlier in August with the proviso that if you found somebody back then, the [defendant] could decide whether ․ he wanted his own expert․”

Discussion. A judge's decision on discovery matters, such as the timing of expert disclosures, is generally committed to his sound discretion. See Billings v. GTFM, LLC, 449 Mass. 281, 296-297 (2007); Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 798-799 (1987). There was no abuse of discretion here. Expert disclosures are required in advance of trial, so that the opposition can adequately prepare a response, including crossexamination and perhaps, retention of an expert of their own. The plaintiff was given multiple opportunities to provide sufficiently timely disclosure, and failed. See Billings, 449 supra. The judge certainly did not have to credit the plaintiff's contention that the defendant was not prejudiced by this late notice because the plaintiff's proposed expert testimony would be straightforward or easily addressed. The discovery rules are intended to do away with trial by ambush, and the judge was within his discretion in enforcing the deadlines he set. See Commonwealth v. Chappee, 397 Mass. 508, 516-520 (1986).

Judgment affirmed.

FOOTNOTES

2.   Although not material to this appeal, we note that the defendant claims that he withdrew from the representation due to nonpayment of his fees, but that he still wrote the brief and provided it to the plaintiff.

3.   The defendant argues that the plaintiff did not file a timely notice of appeal from the judgment. Resolution of this issue turns on whether the plaintiff timely filed a rule 60 motion for relief from the judgment, thereby tolling the appeal period. Because the docket sheet does not contain the filing date of the plaintiff's rule 60 motion, we do not resolve the issue and instead address the merits of plaintiff's argument.