JOHN E. LUNDGREN v. ROBERT HOFFER & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-571

JOHN E. LUNDGREN1

vs.

ROBERT HOFFER & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following an industrial accident at his workplace, the

plaintiff, John E. Lundgren, contracted Legionnaires' disease;

years later, he remains disabled. This appeal concerns the

plaintiff's claims against two lawyers, Robert Hoffer and Robert

Berluti, whom he retained to pursue claims against his employer

and for workers' compensation. We consider both the rulings on

the motions for summary judgment and the decisions on the

motions to reconsider, which we deem timely motions pursuant to

1The Superior Court docket spelled the plaintiff's name as
"John F. Lundgren." As is our custom, we spell the plaintiff's
name as it was spelled in the complaint.

2 Robert Berluti.
Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), for the purpose

of this appeal. We affirm.

Background. "We summarize the findings set forth in the

order on the [defendant's] . . . motion[] for summary judgment,

supplemented by other uncontroverted facts in the summary

judgment record, and viewing 'the evidence in the light most

favorable to the party against whom summary judgment was

entered'" -- here, the plaintiff (citations omitted). Williams

v. Board of Appeals of Norwell, 490 Mass. 684, 685 (2022).

The accident occurred on December 1, 2014. Within a week,

the plaintiff was diagnosed with Legionnaires' disease. He

retained Berluti to represent him in potential accident-related

claims against his employer. Berluti took the case on a

contingency basis and did not bill the plaintiff for his time.

On June 29, 2015, Berluti terminated his representation of the

plaintiff.

The plaintiff maintains that Berluti's representation was

deficient in several ways. According to the plaintiff, during

the representation, Berluti failed to (1) meet with him in

person; (2) adequately prevent or address spoliation of

evidence; (3) take adequate steps to secure water samples;

(4) conduct witness interviews; (5) take adequate steps to

ensure that the Occupational Safety and Health Administration

(OSHA) followed its investigatory protocol or undertook more

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than a minimal investigation of the accident; (6) timely obtain

or act on the conclusions of the National Institute for

Occupational Safety and Health (NIOSH) investigation;

(7) adequately assess or address the maintenance history of the

compressor involved in the incident; and, finally, the plaintiff

claims that when Berluti withdrew from representing the

plaintiff, he incorrectly told him that no third-party claim

could be brought. With one exception,3 the plaintiff confirmed

that he was aware of each of these actions or inactions in 2015

at or before the time Berluti withdrew from representing him.

Berluti referred the plaintiff to Hoffer to pursue a

potential workers' compensation claim, and Hoffer and the

plaintiff agreed to a contingent fee arrangement. The company

and its compensation insurer both denied coverage. Hoffer filed

a workers' compensation claim with the Department of Industrial

Accidents (DIA) on the plaintiff's behalf. A doctor hired by

the insurer opined (to a reasonable degree of medical certainty)

3 The NIOSH report (begun in March 2015 and dated April
2016) concluded that all samples from the plaintiff's workplace
were negative for Legionella bacteria and stated that the agency
was unable to determine if the workplace incident was related to
the plaintiff's case of Legionnaires' disease. The
investigation was still underway when Berluti ended his
representation in June 2015 and the report was not issued until
ten months later, when Berluti had no lawyer-client relationship
with the plaintiff. If Berluti failed to acquire or act on the
NIOSH report, it is because he had no authority or obligation to
do so.

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that the plaintiff's disability was not related to Legionnaires'

disease and that he did not contract Legionnaires' disease at

work. NIOSH found no evidence that Legionnaires' disease was

present at the plaintiff's workplace.

At the request of the DIA judge, a second doctor examined

the plaintiff. This doctor concluded that it was "plausible" or

"likely" that the plaintiff's Legionnaires' disease was a

product of his workplace exposure but also concluded there was

"insufficient evidence that [the plaintiff] is disabled from a

respiratory point of view or that [h]is symptoms are due to the

effects of Legionella pneumonia." This second doctor

characterized the examination of the plaintiff as "essentially

normal," and noted that it would be helpful to review pulmonary

function tests and respiratory records (which he did not have)

to confirm his impression. It is unclear whether he ever

reviewed them; the record reflects no updated opinion from this

doctor.

There is a disagreement between the parties about how

Hoffer received the plaintiff's medical records. For the

reasons explained in the discussion of the claim against Hoffer,

this disagreement does not preclude our review.

Hoffer began settlement negotiations with the insurer by

demanding $125,000 and, eventually, a condition that the insurer

accept liability. The insurer, relying on the first doctor's

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report, refused to consider a resolution that included an

acceptance of liability.

The plaintiff's workers' compensation case was set for

trial before the DIA judge in October 2015, but the judge did

not reach the case; instead, a different DIA judge mediated the

parties' claims in late November, following which the insurer

extended a settlement offer of $60,000, with payment of the

plaintiff's medical bills incurred to date for treatment of

Legionnaires' disease, and no acceptance of responsibility. The

plaintiff did not accept the offer and a new trial date was set

for December 4, 2015. On that date, the plaintiff signed a

settlement agreement on the terms outlined above. In connection

with accepting the settlement, he answered questions posed to

him by the judge about the settlement, including questions about

his understanding of the settlement and his desire to settle his

claim. The plaintiff filed his original complaint on December

4, 2018, in the Superior Court.

A judge of the Superior Court allowed the defendants'

motions for summary judgment (after a hearing) and denied the

plaintiff's motions for reconsideration. Before us are counts I

and VI. The remaining claims were dismissed under Mass.

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).

Discussion. "The allowance of a motion for summary

judgment 'is appropriate where there are no genuine issues of

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material fact in dispute and the moving party is entitled to

judgment as a matter of law'" (citation omitted). Williams, 490

Mass. at 689.

"[A] party moving for summary judgment in a case in which

the opposing party will have the burden of proof at trial is

entitled to summary judgment if he demonstrates . . . that the

party opposing the motion has no reasonable expectation of

proving an essential element of that party's case."

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). We review summary judgment decisions de novo. Kiribati

Seafood Co., LLC v. Dechert LLP, 478 Mass. 111, 116 (2017).

"To prevail on a claim of negligence by an attorney, a

client must demonstrate that the attorney failed to exercise

reasonable care and skill in handling the matter for which the

attorney was retained . . . ; that the client has incurred a

loss; and that the attorney's negligence is the proximate cause

of the loss." Kiribati Seafood Co., LLC, 478 Mass. at 117,

quoting Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010).

"Expert testimony is generally necessary to establish that the

attorney failed to meet the standard of care owed by an attorney

in a particular case" (citations omitted). Pongonis v. Saab,

396 Mass. 1005, 1005 (1985).

The statute of limitations for a legal malpractice claim is

three years, see G. L. c. 260, § 4; claims for breach of

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fiduciary duty likewise are subject to a three-year statute, see

G. L. c. 260, § 2A. "The statute of limitations applicable to a

legal malpractice claim begins to run when a client 'knows or

reasonably should know that he or she has sustained appreciable

harm as a result of the lawyer's conduct.'" Lyons v. Nutt, 436

Mass. 244, 247 (2002), quoting Williams v. Ely, 423 Mass. 467,

473 (1996). "[A]ppreciable harm is 'injury, loss or detriment'

that is 'capable of being measured or perceived.'" Vinci v.

Byers, 65 Mass. App. Ct. 135, 139 (2005), quoting Kennedy v.

Goffstein, 62 Mass. App. Ct. 230, 233 (2004). See Parr v.

Rosenthal, 475 Mass. 368, 383-384 (2016) ("actual knowledge that

an attorney caused a client appreciable harm generally means

actual knowledge that the attorney committed legal

malpractice"). "The plaintiff need not know the extent of the

injury or know that the defendant was negligent for the cause of

action to accrue" (citation omitted). Williams, supra at 473.

1. Malpractice and breach of fiduciary duty claims against

Berluti. Berluti's representation of the plaintiff ended on

June 29, 2015, when Berluti met with the plaintiff and his wife

and told them he would no longer represent them. At his

deposition, the plaintiff acknowledged that by this date he was

aware that Berluti's performance had allegedly been deficient in

each of the ways he identified in his lawsuit, detailed above.

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The plaintiff alleged that these claimed deficiencies began

almost immediately at the beginning of the representation,

positing that (1) Berluti should have taken immediate action to

procure samples, (2) at the time he retained Berluti, "pertinent

evidence . . . was in the process of being destroyed," and (3)

obtaining information about the maintenance of the

malfunctioning equipment was "imperative," and yet Berluti did

not do it. The plaintiff also contends that Berluti instructed

him not to pursue getting "critical[,] mandated samples" and

that Berluti failed to interview willing witnesses. Each of

these claimed deficiencies by counsel impaired or denied the

plaintiff's ability to prove an ephemeral and -- in the

plaintiff's view -- necessary element of his job-related injury.

As such, by or before June 29, 2015, the plaintiff was on notice

that Berluti had caused him appreciable harm.

We therefore conclude that the complaint, filed more than

three years later, was filed after the statute of limitations

had run.4 See G. L. c. 260, § 4; Lyons, 436 Mass. at 247.

Because it was also subject to a three-year statute of

4 At least one alternative ground exists for allowing the
motion for summary judgment in Berluti's favor. As more fully
discussed in relation to the claims against Hoffer, proof of
legal malpractice generally requires proof of negligence in the
form of an expert opinion, which was not present here. See
Pongonis, 396 Mass. at 1005.

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limitations, the claim for breach of fiduciary duty is also time

barred. See G. L. c. 260, § 2A.

2. Malpractice and breach of fiduciary duty claims against

Hoffer. The plaintiff maintains that Hoffer committed legal

malpractice by failing to collect necessary medical records,

thus causing the plaintiff to settle the case for less than he

might have obtained if represented by competent counsel.

"In a legal malpractice action a plaintiff who alleges his

attorney was negligent in the prosecution of a claim will

prevail if he proves that he probably would have obtained a

better result had the attorney exercised adequate skill and

care." Poly v. Moylan, 423 Mass. 141, 145 (1996), citing

Fishman v. Brooks, 396 Mass. 643, 647 (1986). "[F]ormer clients

suffer a loss due to an attorney's negligence only if that

negligence is shown to have made a difference to the client."

Poly, supra, quoting Jernigan v. Giard, 398 Mass. 721, 723

(1986).

The "traditional approach" in the trial of a legal

malpractice case is, first, that "[t]he original or underlying

action is presented to the trier of fact as a trial within a

trial." Fishman, 396 Mass. at 647. "If the trier of fact

concludes that the attorney was negligent, a matter on which

expert testimony is usually required, the consequences of that

negligence are determined . . ." (citation omitted). Id.

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The first step, then, would be to determine whether Hoffer

was negligent. The plaintiff offered no expert opinion to

support his claims and suggests that none was needed because the

need to collect medical records in a personal injury case is so

obvious that expert testimony is not required.

Even if we assume without deciding that some medical

records were missing because of Hoffer's failure to subpoena

them, the plaintiff made no showing that he would have obtained

a better result (that is, a more favorable settlement) had

Hoffer obtained these missing medical records. The doctors who

examined the plaintiff did not opine that his disability

resulted from Legionnaires' disease that he contracted at his

workplace. In the absence of evidence that (1) the missing

records included such an opinion, likely increasing the amount

of the settlement offer, or (2) better lawyering would have

resulted in a more favorable settlement offer for a different

reason, the plaintiff's claim is unavailing. See Fishman, 396

Mass. at 647. Not all attorney negligence is actionable;

rather, as Poly makes clear, to support a malpractice claim, a

plaintiff must show that "he probably would have obtained a

better result had the attorney exercised adequate skill and

care." 423 Mass. at 145, citing Fishman, supra at 647. Because

the plaintiff failed to do that, the grant of summary judgment

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for Hoffer was proper.5 Where the same facts supported the

plaintiff's claim against Hoffer for breach of fiduciary duty,

that judgment was also properly awarded to Hoffer.

3. The plaintiff's motions for reconsideration. We

"review the judge's denial of a motion for reconsideration only

for abuse of discretion." Merchants Ins. Group v. Spicer, 88

Mass. App. Ct. 262, 271 (2015), citing Commissioner of Rev. v.

Comcast Corp., 453 Mass. 293, 312-313 (2009). Here, we find

none. For the reasons discussed in the consideration of the

claims against each defendant, the plaintiff raised no argument

in his motions for reconsideration that rendered the summary

5 The plaintiff also claims that the judge could have served
as an expert witness. This argument was not raised below and
therefore is not properly before us. See, e.g., Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006). Even if it were,
it would not offer the plaintiff the result he seeks. Judges
are tasked with being impartial arbiters of the law and may not
serve as experts in the cases before them. See S.J.C. Rule
3:09, Canon 3, Rule 3.1(C) (2016) (judges shall not "participate
in activities that would appear to a reasonable person to
undermine the judge's . . . impartiality"). See also Mass. G.
Evid. § 605 (2024) ("The presiding judge may not testify as a
witness at the trial").

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judgment decision unreasonable. See L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).6

Judgment affirmed.

Orders dated August 8, 2022,
and August 17, 2022,
denying motions for
reconsideration affirmed.

By the Court (Meade,
Hershfang & Toone, JJ.7),

Clerk

Entered: November 21, 2024.

6 "To the extent that we have not specifically addressed
other points made . . . in [the appellant's] brief, they 'have
not been overlooked. We find nothing in them that requires
discussion.'" Commonwealth v. Brown, 479 Mass. 163, 168 n.3
(2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78
(1954).

7 The panelists are listed in order of seniority.

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