Wong v. Ekberg
| Decision Date | 26 July 2002 |
| Docket Number | No. 97–346.,97–346. |
| Citation | 807 A.2d 1266,148 N.H. 369 |
| Court | New Hampshire Supreme Court |
| Parties | Allan WONG v. Donald M. EKBERG. |
Laura Dushame, of Northampton, Massachusetts, and H. Brooks Whelan Jr., of Somerville, Massachusetts, by brief, for the plaintiff.
Orr & Reno, P.A. of Concord (Emily Gray Rice and Jennifer A. Eber on the brief), for the defendant.
The plaintiff, Allan Wong, appeals an order by the Superior Court (Fauver , J.) dismissing his claims of legal malpractice and breach of contract against the defendant, Donald M. Ekberg. We affirm.
The defendant is the attorney who represented the plaintiff when he was convicted on a felony charge of receiving stolen property. In State v. Wong, 138 N.H. 56, 635 A.2d 470 (1993), we affirmed the plaintiff's conviction. The plaintiff subsequently filed the instant action against the defendant, asserting legal malpractice, negligence and breach of contract. The plaintiff alleged that the defendant was negligent in both his investigation of the case, and in his trial tactics and strategy. The plaintiff also alleged that the defendant breached his fee agreement by failing to properly investigate the case and by failing to adequately defend the plaintiff.
Prior to trial, the defendant moved to exclude the plaintiff's proposed expert testimony because the plaintiff, who was proceeding pro se , failed to identify his expert within the timeframe imposed by the structuring conference order. The trial court granted the motion, finding that the plaintiff's failure to disclose his expert was due to his own neglect, rather than accident, mistake or misfortune, and that the defendant would be prejudiced if the plaintiff's expert disclosure was accepted at such a late date in the proceedings. The parties then filed cross-motions for summary judgment.
The trial court granted the defendant's motion as to the claims for breach of contract because the plaintiff's claims "essentially allege[d] that the defendant negligently performed his contractual duties" and "New Hampshire does not recognize [this] cause of action." (emphasis omitted). The trial court also granted the defendant's motion as to the negligence claim because the plaintiff did not allege that the defendant owed him any duty independent of his duty as an attorney, and, therefore, the negligence claim simply duplicated the plaintiff's counts for legal malpractice. As for the legal malpractice claims, the defendant argued that he was entitled to summary judgment because the plaintiff could not prove that he was innocent of the underlying crime. As our decision in Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491, 495–98, 727 A.2d 996 (1999), had not yet been issued, the trial court explained that "[b]ecause this issue has not been squarely addressed by the New Hampshire Supreme Court, it is not a sufficient legal basis for a grant of summary judgment." The trial court denied the plaintiff's pro se motion for summary judgment because "the pleading does not contain a single coherent legal argument in support of the plaintiff's motion" and the plaintiff relied "on contested facts to support his argument." The defendant then moved to dismiss the remaining legal malpractice claims, arguing that the plaintiff could not sustain his burden of proof in the absence of expert testimony. The trial court granted the defendant's motion to dismiss and this appeal followed.
On appeal, the plaintiff first argues that the trial court improperly barred the testimony of his expert witness. He contends that his failure to disclose the identity of his expert witness within the discovery period was the result of accident, mistake or misfortune. He also contends that his expert witness was properly disclosed because, during the discovery period, he had indicated that his expert witness, Attorney Fredella, would be testifying as a factual witness. Lastly, the plaintiff contends that the defendant failed to indicate how he would be prejudiced by allowing Attorney Fredella's expert testimony.
"We have long recognized that justice is best served by a system that reduces surprise at trial by giving both parties the maximum amount of information." State v. Cromlish, 146 N.H. 277, 280, 780 A.2d 486 (2001). A party is thus entitled to disclosure of an opposing party's experts, the substance of the facts and opinions about which they are expected to testify, and the basis of those opinions. See Super. Ct. R. 35(f); O'Donnell v. Moose Hill Orchards, 140 N.H. 601, 604, 670 A.2d 1030 (1996). This policy of disclosure applies even when a known factual witness acts as an expert. See Hydraform Prods. Corp. v. American Steel & Alum. Corp., 127 N.H. 187, 201–02, 498 A.2d 339 (1985). A party's failure to supply this information "should result in the exclusion of expert opinion testimony unless good cause is shown to excuse the failure to disclose." O'Donnell, 140 N.H. at 604, 670 A.2d 1030. In reviewing a discovery sanction, we will not reverse the trial court's ruling unless it constitutes an unsustainable exercise of discretion. See Matthews v. Matthews, 142 N.H. 733, 735–36, 708 A.2d 685 (1998) ; see also State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) ().
We disagree with the plaintiff's contention that, because he appeared pro se throughout the discovery process, his failure to indicate that Attorney Fredella would be testifying as his expert was the result of accident, mistake or misfortune. See Preface Super. Ct. R. (amended 1999) (permitting court to provide relief from failure to comply with the provisions of any rule only when due to "accident, mistake or misfortune"). The trial court determined that "the scheduling conference order put him on clear notice of his obligations, or, at the very least, of his obligation to inform himself of what the deadline dates represented." The trial court thus concluded that the plaintiff's failure to disclose his expert was due to his own neglect rather than accident, mistake, or misfortune. See Jamieson, Inc. v. Copeland Coating Co., 126 N.H. 101, 103, 489 A.2d 613 (1985). The mere fact that the plaintiff was representing himself throughout the discovery process does not excuse him from complying with the trial court's structuring order. Cf . State v. Consolidated Recycling, 144 N.H. 467, 469, 743 A.2d 839 (1999).
We also disagree with the plaintiff's contention that his expert witness was adequately disclosed because he was listed as a factual witness. The trial court's structuring conference order set specific deadlines for expert disclosure and for discovery. While the plaintiff disclosed that Attorney Fredella would be testifying as a factual witness, he failed to inform the defendant that Attorney Fredella would be testifying as an expert and also failed to provide the substance and basis for any opinions he might offer. The plaintiff's failure to list Attorney Fredella as an expert was not only error, see Hydraform Prods. Corp., 127 N.H. at 201, 498 A.2d 339, but also prejudiced the defendant. The plaintiff did not disclose that Attorney Fredella would be testifying as an expert witness until four months after the deadline set for expert disclosure and one month after the close of all discovery. The trial court determined that "acceptance of the plaintiff's expert disclosure would require the defendant to re-depose the plaintiff, depose the plaintiff's expert, and also have his own expert study and critique the plaintiff's expert's opinion." At the time the trial court made this determination, the trial date in the case was set for "less than one month away." As we agree that the defendant would be prejudiced by the plaintiff's late disclosure of his expert witness, we conclude that the trial court properly granted the defendant's motion to strike the plaintiff's expert disclosure.
We next consider whether the trial court improperly dismissed the plaintiff's legal malpractice claims for lack of expert testimony. In a legal malpractice case, a plaintiff must prove: (1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach. Mahoney, 143 N.H. at 495–96, 727 A.2d 996. Because the plaintiff challenges the defendant's investigation of the case and his trial tactics and judgment, the defendant argues that the plaintiff cannot establish the requisite standard of care and prove a breach thereof without expert testimony. We agree.
It is well established that expert testimony is required "where the subject presented is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson." Lemay v. Burnett, 139 N.H. 633, 634, 660 A.2d 1116 (1995) (quotation omitted). Whether a plaintiff is required to have expert testimony in order to establish the requisite standard of care and to prove a breach thereof in a legal malpractice case is a question of first impression for this court. Other jurisdictions that have addressed this issue have held that, except in clear or palpable cases, "[i]n an action for legal malpractice, expert testimony is generally needed to establish both the level of care owed by the attorney under the particular circumstances and the alleged failure to conform to that benchmark." Wagenmann v. Adams, 829 F.2d 196, 218 (1st Cir.1987) ; see also McCafferty v. Musat, 817 P.2d 1039, 1044 (Colo.Ct.App.1990). The reason for this requirement is that "[w]ithout expert testimony, lay juries cannot understand most litigation issues, local practices, or the range of issues that influence how an attorney should act or advise." 5 R. Mallen & J. Smith, Legal Malpractice § 33.16, at 110 (5th ed.2000). Thus, "to avoid liability being imposed...
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