Pinkham v. Burgess

• Decision Date: 06 March 1991
• Docket Number: 90-1313,Nos. 90-1254,s. 90-1254
• Parties: 32 Fed. R. Evid. Serv. 1223 Kay PINKHAM, Plaintiff, Appellee, v. John A. BURGESS, Defendant, Appellant. Kay I. PINKHAM, Plaintiff, Appellant, v. John A. BURGESS, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1066

933 F.2d 1066

32 Fed. R. Evid. Serv. 1223

Kay PINKHAM, Plaintiff, Appellee, v. John A. BURGESS, Defendant, Appellant.

Kay I. PINKHAM, Plaintiff, Appellant, v. John A. BURGESS, Defendant, Appellee.

Nos. 90-1254, 90-1313.

United States Court of Appeals, First Circuit.

Heard March 6, 1991.

Decided May 22, 1991.

Lon A. Berk with whom Bert J. Capone and Peabody & Arnold were on brief, Boston, Me., for John A. Burgess.

Steven R. Smith, Portland, Me., for Kay Pinkham.

Before CAMPBELL, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Both parties appeal from a judgment on a jury verdict awarding plaintiff Kay Pinkham damages on her claim of negligent representation by defendant attorney John Burgess. We affirm.

I. Background

In early 1980, Kay Pinkham was arrested for forging a stock certificate with the name of Maurice Rodrigue, a principal stockholder in the corporation that Pinkham and several others had jointly established. The complaining party was a fellow stockholder, Frank Johansen, who, together with Rodrigue, had been involved in a stockholder dispute with Pinkham. Pinkham was tried and convicted by a jury on the charge in August 1980. One year later, the Maine Law Court overturned her conviction, ruling that the evidence was insufficient.

Within two weeks of her arrest, Pinkham contacted attorney Burgess. Burgess agreed to represent her in a civil action against the private and public parties, alleging that her arrest, prosecution and conviction violated her civil rights. No action was filed until after the termination of the criminal proceedings.

In the course of his representation of Pinkham, Burgess committed what expert testimony represented to be gross negligence. He repeatedly delayed filing and prosecuting the action. He proceeded against the district attorneys who undoubtedly were protected by absolute immunity. He failed to appear at the last minute to argue an appeal from partial summary judgment. He failed to pursue a variety of state law claims. He conducted no discovery over a period of years, despite having received two extensions. He did not appear for the deposition of a key witness who had been subpoenaed from out of state. He neglected to attend plaintiff's deposition. Finally, he failed to respond to a motion for summary judgment, resulting in the dismissal of the action.

Pinkham brought suit in the district court alleging that Burgess had represented her negligently. She pursued two alternative theories. First, she claimed that he had negligently advised her about the nature and risks of the underlying lawsuit, and that, had she been adequately advised, she never would have instituted the action. Second, she argued that Burgess had negligently caused her to lose the underlying suit, and she sought damages for the value of that suit. She also sought damages for emotional distress caused by Burgess' negligent or reckless conduct.

The jury found that Burgess was not negligent in advising Pinkham about the nature and risks of undertaking the lawsuit. It found that Burgess was negligent in the handling of the suit after it was instituted, but that his negligence did not cause plaintiff to lose the value of the underlying case. The jury found, however, that Burgess negligently or recklessly had caused Pinkham severe emotional distress. It placed a total value of $218,600 on Pinkham's damages, which it reduced to $186,500 on the basis of her comparative negligence.

On appeal, Burgess principally challenges the award of emotional distress damages, asserting both legal and factual inadequacy. He suggests that the jury improperly was permitted to find emotional distress damages where it found that Pinkham would not have prevailed in the underlying case. He also argues that plaintiff failed to present sufficient evidence of severe emotional distress to support a verdict.

Burgess further complains that he was deprived of his only defense to Pinkham's claim of reckless or intentional infliction of emotional distress when the court refused to allow expert testimony concerning his psychological condition. Finally, Burgess argues that the court abused its discretion by refusing to grant a mistrial after plaintiff referred to liability insurance during her direct testimony.

Pinkham cross appeals the reduction in her damage award for comparative negligence. She suggests that a comparative negligence claim in a professional relationship may not as a matter of public policy be based on a claim that the plaintiff should have fired the attorney earlier. ¹

We shall address these arguments in turn.

II. Emotional Distress Damages

Defendant argues that the district court erred in allowing the jury to find emotional distress damages for two reasons. First, he suggests that such damages are not available under Maine law in an attorney malpractice action without a finding that the plaintiff would have prevailed in the underlying lawsuit. He argues that such damages are neither proximately caused by the malpractice nor reasonably foreseeable as a matter of law.

Defendant, however, has failed to preserve this issue for appeal. The court instructed the jury that it could not award damages for the value of plaintiff's civil rights claim in the absence of finding that she would have prevailed on that claim. It instructed, however, that the jury could award damages for emotional distress that were foreseeable and proximately caused by defendant's negligent or reckless conduct, regardless of the viability of the underlying action. The defendant entered no objection to this instruction. ² As we repeatedly have held, in the absence of a specific objection after the jury instructions are given, this court will not review the asserted error. See Fed.R.Civ.P. 51; Kelley v. Schlumberger Technology Corp., 849 F.2d 41, 43-44 (1st Cir.1988).

Defendant argues, however, that the real issue here is whether his motion for directed verdict on the sufficiency of plaintiff's case was improperly denied. But to the extent Burgess is claiming that the jury did not properly reach emotional distress damages in the absence of a finding that the underlying lawsuit was meritorious, he merely is lodging an objection to the judge's contrary instructions, not challenging the sufficiency of the evidence. His appeal on this point therefore is not properly preserved. ³

Burgess also challenges the sufficiency of plaintiff's evidence of severe emotional distress. He suggests that the evidence did not, as a matter of law, show such severe harm as to support a finding of negligent or reckless infliction of emotional distress. Although Burgess recognizes that he is not entitled to an outright reversal of the judgment based on insufficient evidence because he failed to move for judgment n.o.v., see Johnson v. New York, New Haven & Hartford R.R., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952), he argues that his motion for directed verdict preserved his right to ask on appeal for a new trial on this issue.

Defendant misconstrues the law. Our case law unequivocally holds that this court will not review the sufficiency of the evidence in the absence of a motion for judgment notwithstanding the verdict. See Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 810 (1st Cir.1988). While failure to move for judgment n.o.v. does not preclude a party from seeking a new trial, the authority to grant a new trial is confided almost entirely to the discretion of the district court. Id. at 811. A motion for new trial therefore must be made in the first instance to the district court, "particularly where the weight of the evidence is at issue." Id. Burgess moved for neither judgment n.o.v. nor new trial, and therefore has failed to preserve this issue for appeal.

Even were the error preserved, however, our review discloses adequate evidence to support the jury's finding of severe emotional distress. There was evidence that Pinkham was severely depressed and taking a strong antidepressant medication, that Burgess' conduct caused her years of anxiety and humiliation, that he caused tremendous friction in her marriage leading to her divorce, and that the protracted suit and fees in part caused the loss of her home. This evidence, taken together, was sufficient for a jury to find severe emotional distress.

III. Exclusion of Expert Testimony

Burgess argues that the district court erred when it excluded expert testimony about his inability to recognize the emotional distress he was causing or to form an intent to cause it. He argues that this evidence was critical to rebut plaintiff's claim of reckless or intentional infliction of emotional distress. He admitted below and to this court that the evidence is not a defense to the negligent infliction of such emotional distress, an alternate theory raised by plaintiff. ⁴

The district court concluded that the evidence was relevant in assessing the seriousness of defendant's conduct. ⁵ The court allowed defendant's witness, a psychologist, to begin to testify. After hearing a portion of the testimony, the court dismissed the jury and continued to hear the evidence as an offer of proof.

The witness, Dr. Wicks, testified that he had examined Burgess in August 1987, subjecting him to a series of psychological tests. From those tests, he concluded that the defendant had organic brain syndrome. Because he was not a medical doctor, Wicks was not qualified to diagnose the cause of the syndrome, although he testified that it could have had a number of origins, including a series of small strokes, a blow to the head or several diseases. He testified, however, that in light of the psychological profile, the syndrome was chronic rather than acute, that is, it was not the result of recent trauma. Wicks offered the opinion that Burgess was suffering from the problem as early as 1982-83, basing that opinion on the defendant's unsubstantiated report of...