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Allen v. McCann

Superior Court of Maine, Cumberland

March 19, 2014





Nancy Mills Justice

This matter is before the court on defendant's motion for summary judgment on plaintiff's complaint alleging legal malpractice. For the following reasons, the motion is granted.


Plaintiff Bonnie Allen was a mill worker for the Mead Company (Mead).[1](Supp. S.M.F. ¶¶ 1-2). On June 4, 2002, she injured her neck, back, arms, and shoulders while handling a high-pressure hose at work. (Supp. S.M.F. ¶ 2; Opp. S.M.F. ¶ 2.) Following the accident, plaintiff hired defendant Alexander McCann, Esq. in December 2002 to represent her in her workers' compensation claim. (Supp. S.M.F. 4.) Plaintiff continued to work full time at Mead under appropriate work restrictions. (Supp. S.M.F. ¶ 5.) Her condition worsened, however, and by August 2004 she had completely stopped working based on the advice of her doctors. (Supp. S.M.F. ¶¶ 6-7; Opp. S.M.F. ¶ 7.) Although Mead disputed whether she was totally incapacitated, it began paying plaintiff workers' compensation benefits on August 4, 2004. (Supp. S.M.F. ¶ 9.)

In December 2004, Mead offered plaintiff a different job. (Supp. S.M.F. ¶ 11.) Plaintiff's treating physician, David L. Phillips, II, reviewed the job description and determined that plaintiff could not perform the work. (Supp. S.M.F. ¶ 12.) Following Dr. Phillips' advice, plaintiff declined the job and remained out of work. (Supp. S.M.F. ¶14.)

In February 2005, plaintiff applied for Social Security Disability Insurance (SSDI). (Supp. S.M.F. ¶ 15; Opp. S.M.F. ¶ 15.) Plaintiff's application was initially denied, but she was ultimately successful in 2007. (Supp. S.M.F. ¶ 16; Opp. S.M.F. ¶16.) Plaintiff received $857.10 in monthly benefits. (Allen Aff. ¶ 16; Ex. D, 2.)

In March 2005, Dr. Peter A. Bridgman, performed an independent Section 312[2] medical evaluation on plaintiff, and in his opinion he stated, "the patient is capable of some limited work with her upper extremities." (Supp. S.M.F. ¶ 18; Add. S.M.F. ¶ 5.) Dr. Bridgman confirmed this opinion in a deposition on June 2, 2005, in which he stated that plaintiff could work with certain restrictions. (Add. S.M.F. ¶ 6.)

In April 2005, Mead offered plaintiff a different job. (Supp. S.M.F. ¶ 19.) Plaintiff reviewed the job with Dr. Phillips and declined the job based on his advice and a visit to the job site. (Supp. S.M.F. ¶ 20; Opp. S.M.F. ¶ 20.) In a letter dated July 6, 2005, Dr. Phillips offered his opinion that "Bonnie Allen is totally and permanently disabled and is unlikely to recover in the near future. There is no medical treatment or surgery that would allow her to fully recover and return to gainful employment." (Supp. S.M.F. ¶ 21.)

On August 20, 2005, Mead suspended plaintiff's total incapacity workers' compensation benefits, claiming she voluntarily refused reasonable employment. (Supp. S.M.F. ¶ 23.) At defendant's request, plaintiff's benefits were provisionally reinstated at a partial incapacity level[3] on 9/27/05 pending an evidentiary hearing on 2/9/06. (Supp. S.M.F. 24.) On 2/1/06, Mead's labor market survey expert issued a report on the stability of the labor market. (Add. S.M.F. ¶ 9.) After the hearing, the transcript of Mead's labor market expert was admitted into evidence on 3/31/06. (Add. S.M.F. ¶ 11.)

On 5/18/06, the hearing officer issued a decision and found plaintiff was unable to perform the jobs that Mead had offered her, but concluded that plaintiff was "partially, as opposed to totally, incapacitated on account of her work injury since August 30, 2005 and continuing." (Supp. S.M.F. ¶¶ 29-30.) The hearing officer found that plaintiff "has been since August 2005 capable of earning about $200/week in the local competitive labor market." (Add. S.M.F. ¶ 13.) The decision provides: "Ms. Allen has not presented evidence of a work search and is therefore not eligible for 100% partial incapacity benefits." (Add. S.M.F. ¶ 14.) Accordingly, plaintiff was awarded partial incapacity benefits at a rate of $308.48 per week. (Add. S.M.F. ¶ 13.)

After reading the May 2006 decision, plaintiff asked defendant whether she should be looking for work. (Add. S.M.F. ¶ 23.) Defendant responded that she was not required to look for work. (Add. S.M.F. ¶ 24.) At no time did defendant advise plaintiff to conduct a work search.[4] (Add. S.M.F. ¶ 15.)

In March 2009, plaintiff hired James MacAdam, Esq. to represent her in her workers' compensation claim. (Supp. S.M.F. ¶ 57.) At Attorney MacAdam's direction, plaintiff began a work search in April 2009 but never found employment. (Supp. S.M.F. ¶¶ 58-59.) Attorney MacAdam intended to use the failed work search to petition for an increase in her workers' compensation benefits. (Add. S.M.F. ¶ 37.) Mead raised a res judicata defense to any change in plaintiff's benefits. (Add. S.M.F. ¶ 37.) On December 7, 2010, Attorney MacAdam demanded a settlement of $350, 000 from Mead. (Supp. S.M.F. ¶ 60.) Plaintiff ultimately settled her workers' compensation claim for $300, 000. (Supp. S.M.F. ¶ 63.)


Plaintiff filed a single count complaint for professional malpractice on 3/29/12. Plaintiff alleges defendant was negligent in failing to advise her to perform a work search prior to her workers' compensation hearing, which caused her to receive partial, as opposed to total, incapacity benefits. Defendant moved for summary judgment on 2/21/13. On 6/12/13, defendant filed a suggestion of bankruptcy to stay the case. On 11/15/13, the court received notice that defendant's bankruptcy case had been dismissed.


1. Standard of Review

"Summary judgment is appropriate when there is no genuine issue of material fact that is in dispute and, at trial, the parties would be entitled to judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115, ¶ 9, 983 A.2d 382. "An issue is genuine if there is sufficient evidence supporting the claimed factual dispute to require a choice between the differing versions; an issue is material if it could potentially affect the outcome of the matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ¶ 10, 956 A.2d 104. To avoid a summary judgment, "[t]he plaintiff must establish a prima facie case for each element of his cause of action." Steeves v. Bernstein, Shur, Sawyer &: Nelson, P.C., 1998 ME 210, ¶ 11, 718 A.2d 186 (quoting Barnes v. Zappia, 658 A.2d 1086, 1089 (Me. 1995)).

"In legal malpractice cases, plaintiff must show (1) a breach by the defendant attorney of the duty owed to the plaintiff to conform to a certain standard of conduct; and (2) that the breach of the duty proximately caused an injury or loss to the plaintiff." Niehoff v. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ¶ 7, 763 A.2d 121. "Proximate cause exists in professional malpractice cases where 'evidence and inferences that may reasonably be drawn from the evidence indicate that the negligence played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably foreseeable consequence of the negligence. The mere possibility of such causation is not enough, and when the matter remains one of pure speculation ...

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