Abdulky v. Lubin & Meyer, P.C.

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22-P-498 Appeals Court

OBAIDA ABDULKY1 & another2 vs. LUBIN & MEYER, P.C., & others.3

No. 22-P-498.

Worcester. December 8, 2022. – March 28, 2023.

Present: Milkey, Ditkoff, & Englander, JJ.

Attorney at Law, Malpractice. Contract, Settlement agreement,
Minor. Collateral Estoppel. Estoppel. Judicial Estoppel.
Evidence, Expert opinion, Legal malpractice. Witness,
Expert. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on
August 14, 2018.

The case was heard by Janet Kenton-Walker, J., on a motion
for summary judgment.

A proceeding for interlocutory review was heard in the
Appeals Court by Singh, J.

Joseph D. Lipchitz (Bridgitte E. Mott also present) for the
defendants.
Peter J. Brockmann for the plaintiffs.

1 As parent and next friend of Anthony Abdulky.

2 Ward Abdulky, as parent and next friend of Anthony
Abdulky.

3 Andrew C. Meyer, Jr., and Krysia Syska.
2

ENGLANDER, J. This is an action for attorney malpractice.

The defendants (defendants or defendant lawyers) represented the

plaintiffs, parents of a minor child whose arm was amputated

below the elbow at age five, in a medical malpractice action

that was settled in 2015 for $6 million. The plaintiffs

(parents) thereafter brought this suit, arguing that their

lawyers failed to competently develop evidence of damages -- in

particular, the lifetime costs of the child's medical treatments

and prosthetics -- and that this failure resulted in a lower

recovery than should have been obtained. The defendants moved

for summary judgment on several grounds, including (1) that the

plaintiffs' claims were barred by collateral estoppel, because a

Superior Court judge determined that the settlement was

reasonable, after a hearing pursuant to G. L. c. 231,

§ 140C 1/2; (2) that the plaintiffs' claims were barred by the

doctrine of judicial estoppel, due to representations that the

plaintiffs made to the court during the settlement process; and

(3) that the plaintiffs had not elicited competent evidence of

damages -- that is, had not shown, by admissible evidence, that

proper legal representation would have resulted in a settlement

or verdict greater than $6 million.
3

A different Superior Court judge (motion judge) denied the

motion for summary judgment, and a single justice of this court

granted the defendants leave to take this interlocutory appeal.

While we agree with the motion judge that the plaintiffs' claims

were not barred by either collateral estoppel or judicial

estoppel, we conclude that the plaintiffs did not adduce

evidence of damages "such . . . as would be admissible" at

trial. Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) (rule 56

[e]). Accordingly, the order denying the motion for summary

judgment must be reversed.

Background. 1. The medical malpractice lawsuit. The

child, then age five, was admitted to UMass Memorial Medical

Center (hospital) for a fractured wrist. Due to complications

arising from the child's treatment, the child's right arm was

amputated below the elbow. In 2012, the parents (on behalf of

the minor child) sued nine physicians associated with the

hospital as well as the Commonwealth (hospital defendants),

alleging claims of professional negligence. The parents also

asserted a loss of consortium claim on their own behalf.

The parties engaged in mediation and settlement

negotiations, and in mid-August 2015 the hospital defendants'

insurer made a settlement offer of $6 million. After much

discussion with their attorneys (the defendants in this case),

and after a meeting with the Superior Court session judge
4

(settlement judge), the parents directed and authorized the

defendant lawyers, in writing, to accept the settlement offer.

On August 27, 2015, the defendant lawyers advised the hospital

defendants, also in writing, that the offer was accepted.

The settlement judge was advised that the parties had

settled, and he scheduled a hearing to review the proposed

settlement, with the first of (what turned out to be) three

hearings occurring on September 17, 2015. The judge opened the

first hearing by noting that, although he had expected to

approve the settlement at that time, he had been advised that

the particulars were not yet finalized and that the parents were

attempting to "pull[] away from the settlement." The judge then

inquired of the parents whether the case was in fact settled.

The parents acknowledged that it had been reported to the court

that the case had settled, but explained that they had

reservations. After the judge had an off-the-record discussion

with the parents about those reservations,4 the judge stated that

it was "clear" that the case was settled. The judge also

inquired of the father whether he had felt "pressured" into

proceeding with the settlement, to which the father responded in

the negative. The judge accordingly directed the parties to

4 The judge described the plaintiffs' reservations as
concerning "various things, including the privacy of this
information regarding their son because of him being young and
having potential, in the future, access to some funds."
5

finalize their settlement, and he scheduled an approval hearing

for October 2, 2015. In the interim, on September 23, 2015, the

court entered an order of dismissal nisi "after [the] action was

reported settled," directing the parties to file an agreement or

stipulation by October 26, 2015.

At the October 2 hearing, the defendant lawyers presented

(on behalf of the parents) a petition for approval of the

settlement agreement pursuant to G. L. c. 231, § 140C 1/2.5

Prior to the settlement judge addressing the petition, however,

the parents, through the defendant lawyers, requested to be seen

at sidebar, where the parents attempted to reverse course on the

settlement because they were concerned the settlement amount did

not properly account for the costs of the child's future

prosthetics. After further discussion, the judge stated that

the parents were not in a position to disavow the settlement,

noting that "[t]he case is completely settled as of now for six

million." Although the parties reported that they had some

additional details to work out, the judge approved the

settlement structure (and those settlement details already

agreed to) and ordered the parties to appear for another

5 That statute provides, in part, that "[t]he trial court
may review and approve a settlement for damages because of
personal injury to a minor . . . in any case before the court
where any party has filed a petition for settlement approval
signed by all parties." G. L. c. 231, § 140C 1/2.
6

approval hearing to address those aspects that remained

outstanding.

The parties appeared for a third hearing on October 22,

2015. At that time, however, the parents (in a pleading signed

by the defendant lawyers) filed a motion to vacate the September

23 order of dismissal nisi and to void the settlement agreement.

The motion to vacate made two arguments: (1) that the

settlement amount failed to properly consider the costs of the

child's future prosthetics needs, and (2) that the parents had

entered the agreement under duress, due to their fear that a

guardian ad litem would be appointed to evaluate the settlement

on their child's behalf. The settlement judge held a hearing,

but took no sworn testimony or other evidence.6 He thereafter

rejected the parents' arguments, denied their motion, and stated

on the record that he believed the settlement amount accounted

for the future costs of prosthetics and that the parents were

not under duress when they entered into the settlement. The

judge then reviewed the remaining aspects of the settlement

structure and approved the settlement, stating that the

settlement was "favorable" and "just."7 The parents did not

6 The parents' motion, however, did contain a letter from a
prosthetist containing a "rough estimate" of purported costs for
the child's future prosthetics.

7 During a sidebar conversation with the parents, the judge
explained that, in his experience, similar cases did not result
7

appeal from the approval and, on October 26, 2015, signed the

final settlement agreement and release on behalf of themselves

and the child. The settlement monies were paid out between

October and November 2015.

2. The legal malpractice lawsuit. Just shy of three years

later, in August of 2018, the plaintiffs commenced this

malpractice lawsuit against the defendant lawyers, alleging

(1) that the settlement amount was inadequate in that it did not

consider the child's future need for and costs of prosthetics,

and (2) that the defendant lawyers had caused them to settle

under duress, by informing them that the hospital defendants

were considering seeking appointment of a guardian ad litem.

The defendants moved for summary judgment, making three

arguments in particular. First, they argued that the plaintiffs

were collaterally estopped from attacking the adequacy and

voluntariness of the settlement agreement, because the

settlement judge had considered and ruled on those issues in

approving the settlement. Second, they argued that judicial

estoppel barred the parents' claims, where the parents had

represented to the judge that they entered the medical

in awards higher than $6 million. He also cautioned that the
parents risked a lower recovery due to the limits on the
hospital defendants' insurance coverage -- meaning that the
parents would need to prove multiple doctors were at fault to
collect more than $6 million, which (in the judge's view) was
far from a guarantee.
8

malpractice settlement free from duress and considered the

settlement to be in their child's best interests. Finally, the

defendants argued that the plaintiffs had failed to present

competent evidence regarding damages, and in particular, that

the proffered opinion of the plaintiffs' damages expert was

speculative, and insufficient in law to give rise to an issue of

material fact as to whether the plaintiffs should have recovered

more than $6 million.

The motion judge denied the motion in a margin endorsement.

The judge stated that she was not persuaded that either

collateral or judicial estoppel applied under the circumstances.

Her ruling, however, did not specifically address the

defendants' arguments concerning the lack of evidence of

damages.

Discussion. Before us the defendants press the same three

arguments -- collateral estoppel, judicial estoppel, and the

failure to adduce competent evidence of damages.8 We address

8 The plaintiffs argue that this appeal should be dismissed,
because the "the Single Justice did not reference or cite to any
serious and/or irreparable consequence(s)" justifying an
interlocutory appeal. We are not persuaded that the single
justice had such a duty. It is well established that "[t]he
single justice 'enjoys broad discretion . . . to report the
request for relief to the appropriate appellate court.'"
Ashford v. Massachusetts Bay Transp. Auth., 421 Mass. 563, 566
(1995), quoting Packaging Indus. Group, Inc. v. Cheney, 380
Mass. 609, 614 (1980). Indeed, the Supreme Judicial Court has
held that a single justice of this court has "the authority to
allow appellate review of the denial of [a] motion for summary
9

each argument in turn, applying the de novo standard of review.

See Lynch v. Crawford, 483 Mass. 631, 641 (2019) ("We review an

order granting or denying summary judgment de novo . . .").

1. Collateral estoppel. The thrust of the defendants'

collateral estoppel argument is that in ruling on the § 140C 1/2

motion and approving the settlement, the settlement judge made

factual findings that preclude the plaintiffs' legal malpractice

claim, to wit, (1) that the settlement amount was reasonable,

and (2) that the plaintiffs were not under duress. We do not

agree that collateral estoppel applies here.

In general, collateral estoppel applies where the following

requisites are met: (1) "there was a final judgment on the

merits in the prior adjudication"; (2) "the party against whom

preclusion is asserted was a party (or in privity with a party)

to the prior adjudication"; (3) "the issue in the prior

adjudication was identical to the issue in the current

adjudication"; and (4) the issue "was essential to the earlier

judgment, and was actually litigated in the prior action"

(quotation and citation omitted). DeGiacomo v. Quincy, 476

judgment" where the single justice "concluded that an appeal on
this single issue would facilitate the administration of
justice." Swift v. American Mut. Ins. Co. of Boston, 399 Mass.
373, 375 n.5 (1987). The single justice accordingly had
discretion as to whether to allow the appeal, see McHoul v.
Commonwealth, 365 Mass. 465, 468 (1974), and here we discern no
abuse of discretion.
10

Mass. 38, 42 (2016). For an issue to be actually litigated and

essential to the judgment, "[t]he nonmoving party previously

must have had a full and fair opportunity to litigate the

issue." Mullins v. Corcoran, 488 Mass. 275, 282 (2021).

While in this case one might question whether any of the

above requisites were met, here we will focus on two -- the lack

of identity of issues, and the lack of a full and fair

opportunity to litigate the issue previously. As to each of

these elements, our reasoning is influenced by the unusual

nature of the prior proceeding that is claimed to have

preclusive effect -- a motion under § 140C 1/2 to approve a

medical malpractice settlement. A proceeding under § 140C 1/2

is an ancillary proceeding to a personal injury damages claim,

specifically designed for the circumstance where the plaintiff

is a minor and thus represented by a guardian, usually the

parents. See Mass. R. Civ. P. 17 (b), as appearing in 454 Mass.

1402 (2009) ("If an infant . . . does not have a duly appointed

representative, he may sue by his next friend or by a guardian

ad litem"). See also Sharon v. Newton, 437 Mass. 99, 107 (2002)

(minors may disaffirm most contracts before reaching eighteen

years of age or within reasonable time thereafter). General

Laws c. 231, § 140C 1/2, provides:

"The trial court may review and approve a settlement for
damages because of personal injury to a minor . . . in any
case before the court where any party has filed a petition
11

for settlement approval signed by all parties. The trial
court may make such orders and take such action as it deems
necessary to effectuate the disposition of a settlement
approval including . . . the appointment of a guardian
. . . or the holding of an evidentiary hearing."

The statute thus provides that the proceeding can be

invoked by a "party," after which the judge "may review and

approve a settlement." G. L. c. 231, § 140C 1/2. The primary

purpose of the statute is to ensure the settlement is fair to

the child -- including, significantly, whether the parents have

acted in the child's best interests. Thus, the Supreme Judicial

Court has cited "the types of conflicts and financial pressures

that may arise in the postinjury settlement context," which "can

create the potential for parental action contrary to the child's

ultimate best interests." Sharon, 437 Mass. at 109 n.10.9

Secondarily, the statute provides a measure of protection to the

parents, who can secure review and approval from a knowledgeable

neutral. See id. And, arguably, § 140C 1/2 can benefit the

9 Although there is not much discussion of § 140C 1/2 in our
cases or in the legislative history, courts in other
jurisdictions have acknowledged that similar rationales drive
their own rules about judicial approval of settlement agreements
involving minors. See, e.g., Hojnowski v. Vans Skate Park, 187
N.J. 323, 334 (2006) ("a minor's parent . . . may not dispose of
a minor's existing cause of action without statutory or judicial
approval" so as "to guard a minor against an improvident
compromise [and] to secure the minor against dissipation of the
proceeds" [quotation and citation omitted]); Whitcomb v. Dancer,
140 Vt. 580, 586 (1982) (Vermont's statute "imposes an
affirmative obligation on the superior court judge to protect
the best interests of the minor" and protect the "minor child
. . . from the potential improvidence of his or her parents").
12

original defendants, by protecting them in "any later action by

or on behalf of the child." Cf. Dominique v. Ralph D. Kaiser

Co., 479 A.2d 319, 325 n.3 (D.C. 1984) (Terry, J., concurring).

Given its purposes, we think that approval under the

statute at most will have preclusive effect as to the settlement

parties it was intended to protect -- the child, the parents,

and perhaps, the original defendants. But there is nothing in

§ 140C 1/2, or in any case law addressing analogous statutes,

that indicates that the judicial approval process was intended

to protect the child's lawyers. Here, the settlement judge did

not make any findings regarding the services the defendant

lawyers provided, nor is there any suggestion in the statute

that such is required.10 Moreover, as this case illustrates, the

approval procedure may be relatively informal, in which case the

settlement judge is dependent, to some extent, on the

presentation of the child's lawyers as to the facts that bear on

10Approval under § 140C 1/2 thus differs from approval of
class-action settlements under Fed. R. Civ. P. 23 (2018) (rule
23). The defendants argue by analogy that we should apply
collateral estoppel here because some Federal courts have held
that class-action settlements approved under rule 23 cannot be
collaterally attacked through subsequent legal malpractice
claims. We do not find the analogy persuasive, however, because
approval under rule 23 requires something that § 140C 1/2 does
not -- an express determination that counsel adequately
represented the interests of the class. See Laskey v.
International Union, United Automotive, Aerospace and Agric.
Implement Workers, 638 F.2d 954, 957 (6th Cir. 1981) ("finding
that the class was adequately represented is necessary for
finding the settlement was fair and reasonable").
13

the strength and value of the child's claim. In this case, at

least, the issue addressed at the settlement approval hearing

was whether the settlement was reasonable in structure and

amount as to the child and the parents, based upon what was

known of the facts and law, and under an implicit assumption

that the defendant lawyers worked the case to professional

standards. By definition, that issue is not identical to the

issue presented in this legal malpractice case.

For many of the same reasons, we do not believe the issue

of the reasonableness of the settlement was "full[y] and

fair[ly]" litigated for purposes of this claim against the

defendant lawyers. See Mullins, 488 Mass. at 282. As noted

above, the settlement judge did not take evidence regarding the

plaintiffs' possible damages. Nor did he take evidence

regarding the investigation the defendant lawyers performed, or

how or whether the defendant lawyers evaluated the child's

potential lifetime prosthetics costs. True, the plaintiffs did

argue in their motion to vacate the settlement that they entered

the agreement not fully understanding the child's future

prosthetics needs. However, it does not follow from the denial

of that motion that the judge actually determined that the

defendant lawyers properly advised the plaintiffs about those

costs, where he took no evidence on the subject.
14

Our conclusion is consistent with the Supreme Judicial

Court's decision in Meyer v. Wagner, 429 Mass. 410 (1999).

There, the court addressed a client's legal malpractice claim

against her former divorce attorney. See id. at 411. The crux

of the client's claim was that the attorney failed to

(1) competently prepare and execute a settlement agreement, and

(2) institute ancillary proceedings to secure certain assets,

causing her to obtain less than her fair share of the marital

assets. See id. As here, the settlement agreement at issue had

been approved by a judge as "fair" and incorporated into the

underlying judgment. Id. at 414. The attorney argued that the

client's acceptance of the agreement and its approval barred the

subsequent malpractice claim. See id. at 416. The lower court

struck the malpractice claim, but the Supreme Judicial Court

reversed. See id. at 412, 425. The court declined to depart

from "the usual malpractice rule on settlements" just because a

judge had approved the agreement. Id. at 419, citing Grayson v.

Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 175 (1994).

The court accordingly held that

"where a client establishes that his or her attorney, in
advising on the settlement of a divorce action, has failed
to exercise the degree of skill and care of the average
qualified lawyer, and that the failure has resulted in loss
or damage to the client, the client is entitled to recover
even if the settlement has received judicial approval"
(emphasis added).
15

Meyer, supra at 419. Consistent with Meyer, we will not apply

collateral estoppel under the circumstances here.11

2. Judicial estoppel. The defendants next argue that the

parents are judicially estopped from attacking the settlement,

due to the parents' initial representations to the settlement

judge that the amount was adequate and that they had entered the

agreement voluntarily. The doctrine of judicial estoppel

generally arises where a party makes a representation or

advances a contention to a court in one proceeding, achieves

success as a result of the representation, and then, in a

subsequent proceeding, asserts a contradictory contention. See

Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 641 (2005). The

doctrine's purpose is to prevent "parties from improperly

manipulating the machinery of the judicial system" -- i.e.,

"playing fast and loose with the courts" (citation omitted).

11Separately, the finding that the plaintiffs were not
under duress when they signed the settlement agreement does not
preclude the plaintiffs' legal malpractice claim, at least
insofar as the claim asserts that the settlement amount was
unreasonable because the defendant lawyers failed to properly
investigate the costs of future prosthetics. That aspect of the
plaintiffs' legal malpractice claim does not turn on whether
they were under duress. See Fishman v. Brooks, 396 Mass. 643,
646 (1986) ("an attorney is liable for negligently causing a
client to settle a claim for an amount below what a properly
represented client would have accepted"). Insofar as the
plaintiffs' legal malpractice claim seeks recovery based upon
the alleged duress, rather than a failure to investigate, the
collateral estoppel issue presented would be different; however,
in light of our decision on damages infra, we need not decide
that question.
16

Id. at 642. To that end, there are "two fundamental elements"

that warrant judicial estoppel: "[f]irst, the position being

asserted in the litigation must be 'directly inconsistent,'

meaning 'mutually exclusive' of, the position asserted in a

prior proceeding" (citation omitted), and "[s]econd, the party

must have succeeded in convincing the court to accept its prior

position." Id. at 640-641.

It should be evident that the elements of judicial estoppel

are not present here. Although in the § 140C 1/2 proceeding the

parents initially represented that they were satisfied with the

settlement, they expressed their reservations almost immediately

thereafter. Rather than seeking to gain a benefit from their

initial representations to the settlement judge, the parents

actively sought to withdraw those representations and to undo

the settlement. They filed a motion to that effect before the

§ 140C 1/2 process was complete, arguing specifically that the

settlement did not adequately consider the future costs of

prosthetics for their child. The parents' ultimate position in

the medical malpractice action therefore was not directly at

odds with, but consistent with, their position here. Nor did

the parents actually succeed in convincing the judge to accept

their positions on the settlement -- that is, final approval of

the settlement occurred in spite of the parents' expressed

concerns. Put differently, there is no indication that the
17

plaintiffs engaged in the type of "playing fast and loose with

the courts" or manipulation of the judicial system that judicial

estoppel is designed to prevent. Otis, 443 Mass. at 642.

3. Evidence of damages. The defendants fare better with

their third argument, however, which is that the plaintiffs

failed to put forward competent evidence of damages -- that is,

the plaintiffs failed to present admissible evidence that they

would have obtained a settlement or recovery in excess of $6

million had the defendant lawyers performed to professional

standards. Proof of damages, of course, is an essential element

of the plaintiffs' malpractice claim. See Colucci v. Rosen,

Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct.

107, 111 (1987). Here, the only evidence of damages the

plaintiffs produced was the purported expert disclosure of David

Oliveira, an experienced medical malpractice attorney. The

entirety of his purported opinion about the value of the medical

malpractice action, and its basis, was as follows:

"The realistic case value for this matter is in excess of
$10 million. This would have included future equipment and
medical costs, loss of consortium and, of equal importance,
[the child's] pain and suffering over many years (past and
future). The pain and suffering alone could have been
worth $3-$4 million given that the higher number is merely
$1000/week for an 80-year life expectancy."

Thereafter, in response to the defendants' summary judgment

motion, the plaintiffs submitted a supplemental affidavit from

Oliveira, in which he stated that he had since "confirmed" his
18

prior opinion by researching "verdicts and settlements in the

Commonwealth for a variety of cases, including medical

malpractice cases involving amputations." Notably, the

supplemental affidavit did not identify any specific settlements

or verdicts, nor provide a methodology for how those settlements

and verdicts supported his $10 million opinion.

The defendants are correct that the plaintiffs' damages

submissions were insufficient to survive summary judgment. Our

conclusion is rooted in rule 56 (e), which provides that

affidavits supporting or opposing summary judgment "shall set

forth such facts as would be admissible in evidence."

Accordingly, if a party moving for summary judgment properly

supports their motion, "an adverse party may not rest upon the

mere allegations or denials of his pleading"; instead, the

adverse party must -- "by affidavits or as otherwise provided"

under rule 56 -- "set forth specific facts showing that there is

a genuine issue for trial." Mass. R. Civ. P. 56 (e). See

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

(1991).

Here, the plaintiffs' submission did not "set forth such

facts as would be admissible in evidence," not just as a matter

of form, but as a matter of substance. Mass. R. Civ. P. 56 (e).

Admissibility of expert testimony at trial is governed by

Commonwealth v. Lanigan, 419 Mass. 15 (1994), and its progeny.
19

Under that case law, judges have a "gatekeeping" role in the

admission of expert testimony of all types. See Canavan's Case,

432 Mass. 304, 313 (2000). A proponent of expert testimony must

show (among other things) both (1) that the proposed expert

testimony is based upon a reliable methodology, and (2) that

that methodology has been reliably applied to the facts of the

case. See Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010),

cert. denied, 563 U.S. 990 (2011). See also Lanigan, supra at

26; Smith v. Bell Atl., 63 Mass. App. Ct. 702, 719-720 (2005);

Mass. G. Evid. § 702(d) (2022). In the past, this court has

applied the Lanigan standard at the summary judgment stage to

conclude that a particular expert proffer was, as a matter of

law, not admissible. See, e.g., Grassi Design Group, Inc. v.

Bank of Am., N.A., 74 Mass. App. Ct. 456, 462-463 (2009);

Baptiste v. Sheriff of Bristol County, 35 Mass. App. Ct. 119,

126 (1993). Cf. Molly A. v. Commissioner of the Dep't of Mental

Retardation, 69 Mass. App. Ct. 267, 284 n.24 (2007) (noting

that, if made, Lanigan challenge to expert evidence at summary

judgment "might have succeeded . . . because [the expert

evidence] largely failed to satisfy the requirements of" rule

56 [e]).

Here Oliveira's expert disclosure and supplemental

affidavit failed to meet the basic standard for admissibility

under the case law, because they did not set forth how Oliveira
20

had applied a reliable methodology to the facts of this case.12

Put differently, Oliveira's disclosure and affidavit seem to be

saying that for a medical malpractice claim of this type, with

injuries of this type, previous settlements and verdicts

demonstrate a likely value of $10 million or more. Assuming

that Oliveira described a valid methodology for valuing cases,

however -- that is, analyzing verdicts and settlements of cases

with comparable facts -- that methodology still must be reliably

applied. See Lanigan, 419 Mass. at 26. See also Commonwealth

v. Patterson, 445 Mass. 626, 648 (2005) ("Judges . . . need not

admit . . . every application of a . . . method . . . merely

because another application of the method has been deemed

reliable"). And here, nothing in either Oliveira's expert

disclosure or his supplemental affidavit describes how his

methodology was applied. He does not explain, for example,

which verdicts and settlements he reviewed, what the amounts of

those verdicts and settlements were, or why those upon which he

based his opinion were apt comparators. Cf. Santos v. Chrysler

Corp., 430 Mass. 198, 206 (1999) (expert's opinion properly

excluded where proponent did not establish that data underlying

the opinion "matched the circumstances of the plaintiff's

accident"). Simply setting forth an expert's experience, and

12We do not here question whether Oliveira had sufficient
qualifications to determine the value of the plaintiffs' case.
21

that he did some research, is not sufficient when the expert's

application of his methodology to the facts is not disclosed.13

See Commonwealth v. Franceschi, 94 Mass. App. Ct. 602, 610

(2018) (proponent did not show that expert "reliably applied a

reliable method"). In short, how Oliveira arrived at his

opinion was "ill described," rendering it "invalid and

unreliable." Hicks v. Brox Indus., 47 Mass. App. Ct. 103, 107

(1999) (expert opinion insufficient to warrant reconsideration

of summary judgment).14

In their brief, the plaintiffs argue that a Lanigan

gatekeeper analysis does not apply to summary judgment motions

-- that it applies only when "trial [is] imminent." To the

extent the plaintiffs are arguing that at summary judgment

judges cannot determine a proffered expert opinion to be without

evidentiary value, they are incorrect. As noted, rule 56 (e)

requires plaintiffs to proffer facts that would be admissible in

13The disclosure's cursory reference to pain and suffering
damages is equally deficient. Oliveira does not cite any
factual basis for opining as to the value of the pain and
suffering claim.

14We do not hold that judges must conduct Lanigan hearings
at the summary judgment stage whenever a party challenges an
opponent's expert report (although we do not rule out using such
a process, in the judge's discretion). We hold no more than
when a party seeks to meet their summary judgment burden by
relying on expert affidavits, reports, or disclosures, those
materials must meet rule 56 (e)'s requirement that they set
forth sufficient grounds to establish that the opinion "would be
admissible in evidence."
22

evidence. This requirement applies to proffered expert opinions

as well, as numerous cases have held, from this court and the

Federal courts. See Grassi Design Group, Inc., 74 Mass. App.

Ct. at 462-463 (affirming summary judgment to defendants where

plaintiff's reports did "not qualify as expert opinions under

[Lanigan] and . . . [we]re insufficient to create a genuine

issue of material fact"); Baptiste, 35 Mass. App. Ct. at 126 (no

error in "disregard[ing] the affidavit from the plaintiff's

expert" in granting defendants' motion for summary judgment

where "many of the expert's statements [we]re based upon

assumptions proved faulty by the undisputed facts" and "would

not be admissible at any trial").15 Rule 56 does not contain an

exception for expert evidence, nor should it. Because the

plaintiffs did not proffer admissible evidence on damages,

summary judgment should have entered for the defendants.

15See also, e.g., Equal Employment Opportunity Comm'n v.
Freeman, 778 F.3d 463, 465-468 (4th Cir. 2015) (affirming
summary judgment where plaintiff's expert's opinion was excluded
as unreliable, leaving plaintiff without evidence sufficient to
establish prima facie case); Nora Beverages, Inc. v. Perrier
Group of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (expert
evidence correctly excluded because "[o]n a summary judgment
motion, the district court properly considers only evidence that
would be admissible at trial"); Salas v. Carpenter, 980 F.2d
299, 305 (5th Cir. 1992) (reversing denial of defendant's motion
for summary judgment, noting that plaintiff's expert's summary
judgment affidavit contained "conclusory assertions" that were
inadmissible and could not "be relied upon by plaintiffs to
prevent summary judgment").
23

Order denying motion for
summary judgment reversed.
MILKEY, J. (concurring). I join the majority's opinion in

all respects, including its ruling that the plaintiffs did not

address the damages issue in a manner sufficient to survive

summary judgment. In my view, this is a correct, if strict,

application of what Mass. R. Civ. P. 56, 365 Mass. 824 (1974),

requires. I write separately merely to highlight my sense that

the strictness we apply may be a bit out of step with the

somewhat more lenient summary judgment culture prevalent in the

trial courts. In this respect, I note that we do not typically

review orders denying motions for summary judgment in light of

their interlocutory nature, and we performed such review here

only because a single justice had allowed it. The bar,

especially the plaintiffs' bar, would be wise to view today's

opinion as presenting a cautionary tale.