Boyle v. Welsh, S-97-249

• Decision Date: 12 February 1999
• Docket Number: No. S-97-249,S-97-249
• Citation: 589 N.W.2d 118,256 Neb. 118
• Parties: Jean M. BOYLE, appellant, v. James R. WELSH, appellee.
• Court: Nebraska Supreme Court

Page 118

589 N.W.2d 118

256 Neb. 118

Jean M. BOYLE, appellant, v. James R. WELSH, appellee.

No. S-97-249.

Supreme Court of Nebraska.

Feb. 12, 1999.

Syllabus by the Court

1. Summary Judgment. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. The question on such review is not how a factual issue is to be decided, but whether any real issue of genuine fact exists.

2. Malpractice: Attorney and Client: Negligence: Proximate Cause: Proof. A litigant alleging legal malpractice must prove the following: (1) the attorney's employment, (2) the attorney's neglect of a reasonable duty, and (3) that such negligence resulted in and was the proximate cause of loss to the client.

3. Malpractice: Attorney and Client. In a legal malpractice action, the required standard of conduct is that the attorney exercise such skill, diligence, and knowledge as that commonly possessed by attorneys acting in similar circumstances. Although this general standard is established by law, the question of what an attorney's specific conduct should be in a particular case and whether an attorney's conduct fell below that specific standard is a question of fact.

4. Attorney and Client: Expert Witnesses. Expert testimony is generally required to establish an attorney's standard of conduct in a particular circumstance and that the attorney's conduct was not in conformity therewith.

5. Malpractice: Attorney and Client: Negligence: Evidence: Expert Witnesses: Presumptions. In legal malpractice cases, where the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons, no expert testimony is required.

6. Summary Judgment: Proof. In the absence of a prima facie showing by the movant that he or she is entitled to summary judgment, the opposing party is not required to reveal evidence which he or she expects to produce at trial to prove the allegations contained in his or her petition.

7. Summary Judgment: Proof. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial.

8. Malpractice: Physicians and Surgeons: Affidavits: Negligence: Summary Judgment. An affidavit of a defendant physician in a malpractice case, which affidavit states the defendant did not breach the appropriate standard of conduct, presents a prima facie case of lack of negligence for the purposes of summary judgment.

9. Affidavits. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

10. Affidavits: Summary Judgment. Statements in affidavits as to opinion, belief, or conclusions of law are of no effect, and mere formal denials or general allegations which do not show the facts in detail and with precision are insufficient to prevent the award of summary judgment.

11. Trial: Evidence: Expert Witnesses. The key inquiry under Neb.Rev.Stat. § 25-1334 (Reissue 1995), insofar as an expert's opinion and foundational evidence is concerned, is whether such evidence would be admissible at trial.

12. Rules of Evidence: Expert Witnesses. Under the Nebraska Rules of Evidence, in an appropriate case, an expert may render an opinion without first disclosing the underlying data upon which that opinion is based.

13. Summary Judgment: Evidence: Proof. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. If the movant for summary judgment submits an affidavit as to a material fact, and that fact is not contradicted by the adverse party, the movant is entitled to summary judgment.

14. Malpractice: Attorney and Client: Proof. The plaintiff's burden of proving that an attorney failed to comply with the applicable standard of conduct in a legal malpractice case can be met without expert testimony when the asserted negligence lies within the fact finder's comprehension as a matter of common knowledge.

15. Attorney and Client: Negligence: Limitations of Actions. The failure to file a suit that should otherwise be filed within the time required by the statute of limitations is a deviation from the standard of care falling within the common knowledge exception. Obviously, an attorney commits no negligence concerning the statute of limitations by failing to file a frivolous suit or one which otherwise would not produce a satisfactory result.

16. Malpractice: Attorney and Client: Limitations of Actions. Determining whether there was a suit that should be filed is a predicate step to determining whether the failure to file such a suit within the period provided for in the statute of limitations constituted a violation of an attorney's standard of conduct.

17. Malpractice: Attorney and Client: Expert Witnesses. Whether a suit should be instituted against a particular defendant is an issue that is within the province of an attorney's professional skill and judgment, and is not within the ordinary knowledge and experience of laypersons. Thus 18. Attorney and Client: Expert Witnesses: Physicians and Surgeons. A medical expert cannot demonstrate that an attorney should have filed a lawsuit.

generally, legal expert testimony is required to establish such.

James D. Sherrets and Theodore R. Boecker, Jr., of Sherrets & Associates, and, on brief, Kathy Pate Knickrehm, Omaha, for appellant.

James R. Welsh, of Bradford, Coenen & Welsh, Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, and STEPHAN, JJ.

CONNOLLY, J.

We granted the petition for further review of the appellee, James R. Welsh. The appellant, Jean M. Boyle, brought a legal malpractice action against Welsh, alleging, inter alia, that Welsh was negligent in failing to timely file suit against certain potential defendants in her underlying medical malpractice action. The question presented is whether an attorney's failure to file a suit within the period provided for in the statute of limitations amounts to negligence, even in the absence of any showing that the suit should have been filed. We conclude that determining whether there was a suit that should be filed is a predicate step to determining whether the failure to timely file such a suit is negligent. We also determine that in the instant case, legal expert testimony was required to establish whether a suit should have been filed. We reverse the judgment of the Nebraska Court of Appeals and remand the cause with directions.

BACKGROUND

Welsh agreed to represent Boyle in a lawsuit against the physicians that performed her postoperative treatment, which occurred during the spring and summer of 1990. Boyle's primary physician was Dr. Patrick A. Smith. However, Boyle was also treated on one occasion by Smith's partner, Dr. John W. Monson. During his representation of Boyle, Welsh filed suit against Smith, but not against Monson or Monson and Smith's partnership. The suit against Smith was tried in 1994, and a verdict was rendered in favor of Smith.

In 1995, Boyle filed a pro se legal malpractice claim against Welsh, alleging that Welsh was negligent (1) by failing to file suit against Monson and the partnership within the period provided for in the applicable statute of limitations and (2) in failing to join Monson and the partnership as defendants in the lawsuit against Smith. Welsh filed a motion for summary judgment and offered his own affidavit stating that he was a certified trial attorney licensed in the State of Nebraska; had represented Boyle in her medical malpractice claim; was personally familiar with the facts of Boyle's case, including the allegations made against him in her petition; and had reviewed the file and trial notebook applicable to his legal representation of Boyle. The affidavit then stated that based on Welsh's education, training, and experience in malpractice cases; his personal knowledge of the facts in Boyle's case; and a review of the file, medical records, and depositions, it was Welsh's professional opinion, based on a reasonable degree of legal certainty, that his representation of Boyle complied with the appropriate standard of conduct. He also offered Boyle's interrogatories, which indicated that she had not retained an expert to testify regarding legal malpractice.

In response, Boyle offered the affidavit of Dr. Thomas J. Safranek, which stated that Monson and Smith violated the appropriate standard of medical conduct in the treatment of Boyle. Boyle also offered her own affidavit, which stated that she had "repeatedly questioned [Welsh] regarding his failure to add Dr. Monson as a defendant in the underlying medical malpractice lawsuit" and that Welsh had "declined to institute an action against" Monson. Her affidavit also stated that Welsh had assured her that "it was not necessary to include Dr. Monson as a defendant in the action in order for the essential evidence to be properly presented at the time of trial" and that Boyle "relied upon and believed [Welsh's] representations and followed his advice."

The trial court received the parties' offered evidence and granted Welsh's motion for summary judgment. The trial court concluded that there was no genuine issue of material fact, because Boyle failed to offer legal expert testimony to establish Welsh's alleged negligence.

Conceding that legal expert testimony is generally required, Boyle appealed,...