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Bettinger v. Herman & Simmons, P.A.

Superior Court of Maine, Cumberland

March 23, 2015

LESLIE BETTINGER, Plaintiff
v.
HERMAN & SIMMONS, P.A., Defendant

ORDER

Thomas D. Warren, Justice

Before the court are three motions: (1) a motion for summary judgment by defendant Berman & Simmons, (2) a motion by Berman & Simmons to exclude the expert opinions of plaintiffs expert, Thomas Hallett, and (3) a motion by plaintiff Leslie Bettinger to exclude certain of the opinions of defendant's legal malpractice expert, James Martemucci.

Counsel for Berman & Simmons had requested oral argument on the summary judgment motion, and the parties eventually suggested that oral argument be combined with the subsequently filed motions to exclude experts. Oral argument on all three motions was held on February 27, 2015.

1. Summary Judgment

Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ΒΆ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.

2. Legal Malpractice

To prove that Berman & Simmons firm committed legal malpractice or professional negligence, Bettinger must prove (1) that the law firm breached the applicable standard of conduct with respect to its handling of her medical malpractice case against Dr. Bonawitz and (2) that the breach was a legal cause of injury to Bettinger - i.e., that Bettinger would have received a more favorable outcome in the case if Berman & Simmons had not committed professional negligence. See Corey v. Norman Hanson & DeTroy, 1999 ME 196 ¶10, 13, 742 A.2d 933.

3. Breach of Standard of Conduct - Disputed Facts

Berman & Simmons argues that the undisputed facts establish that Attorneys Nofsinger and Robitzek communicated extensively with Bettinger while she was their client, that they made significant efforts to obtain a substitute expert after Bettinger's original expert, Dr. Newman, withdrew from the case for personal reasons, that they persevered with Bettinger's case after they had concluded that it could not go forward, that they did not breach any duty of loyalty to Bettinger, and that they made every effort to protect Bettinger's interests and preserve her options when they withdrew from the case. Bettinger argues that each of those issues is disputed.

The court concludes that the summary judgment record reveals disputed issues of fact with respect to at least the following issues relating to alleged breaches by Berman & Simmons of the standard of conduct:

1. Whether Nofsinger breached the applicable standard of care in her efforts to obtain a substitute expert based on alleged inaccuracies and omissions in the information she provided to prospective substitute experts. In this connection, Berman & Simmons is correct that Bettinger has not offered evidence that the experts would have changed their opinion if Nofsinger had provided the additional information that Bettinger's expert contends was required. However, this is not an issue which Bettinger was obliged to controvert because this was not an issue which Berman & Simmons challenged in its summary judgment motion. See Corey v. Norman Hanson & DeTroy, 1999 ME 196 ¶ 9 (on summary judgment motion, party opposing motion is not obliged to establish prima facie case for elements of the cause of action not challenged by the movant).

2. Whether Nofsinger breached the applicable standard of care by failing to seek a further extension - several prior extensions had already been granted - to designate a new expert before the existing January 15, 2008 deadline expired. Whether there is any basis other than speculation to conclude that another extension would have been granted if one had been sought is an issue discussed below in connection with defendant's motion to exclude certain opinions by plaintiffs expert.

3. Whether Berman & Simmons breached its duty of loyalty to Bettinger by entering into an alleged agreement with counsel for Dr. Bonawitz to dismiss or withdraw if a new expert could not be found or whether Berman & Simmons's discussions with counsel for Dr. Bonawitz assisted Bettinger by buying her additional time in which to attempt to find an expert. Once again, there may be a question as to whether it can be shown that Bettinger would more likely than not have received a more favorable result in the ...


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