Marston v. Orlando

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

18-P-358 Appeals Court

JONATHAN B. MARSTON, conservator,1 vs. JOSEPH M. ORLANDO2 &
another.3

No. 18-P-358.

Essex. December 7, 2018. - June 25, 2019.

Present: Blake, Lemire, & Singh, JJ.

Attorney at Law, Malpractice. Negligence, Attorney at law,
Expert opinion. Evidence, Legal malpractice, Expert
opinion. Admiralty. Vessel, Seaman. Practice, Civil,
Judicial discretion. Words, "Seaman," "Employee."

Civil action commenced in the Superior Court Department on
March 6, 2013.

The case was heard by Timothy Q. Feeley, J., and the entry
of judgment was ordered by him.

Keith L. Miller for the plaintiff.
Daniel R. Sonneborn for the defendant.

1 Of Norris Marston.

2 Individually and doing business as Orlando & Associates.

3 Brian S. McCormick.
2

BLAKE, J. This legal malpractice action requires an

understanding of the requirements for expert testimony under

Fishman v. Brooks, 396 Mass. 643 (1986), and the duty of an

attorney to properly advise a client when the law governing the

client's case is unsettled.

Norris Marston (Norris)4 suffered a severe brain injury

after an accident at his work site, an offshore light tower.

His attorneys secured a $7,500 lump sum settlement under the

Massachusetts Workers' Compensation Act (Act), and then pursued

Federal remedies, including a claim under the Jones Act, 46

U.S.C. § 30104 (2012), ultimately negotiating a $200,000

settlement. The plaintiff, Norris's conservator, believing

these settlements were woefully inadequate in light of Norris's

injuries, sued the defendant attorneys for malpractice. On the

eve of trial, a judge of the Superior Court issued a number of

rulings that led to the dismissal of all of Norris's claims

against the attorneys. This appeal followed.

On appeal, the plaintiff principally argues that the judge

(1) misapplied Fishman v. Brooks, 396 Mass. 643, as to the

requirements for expert testimony in a negligent settlement

legal malpractice case; and (2) erred by finding that the lump

sum settlement approved by the Department of Industrial

4 To avoid confusion, we use the injured party's first name,
as the conservator shares his surname.
3

Accidents (DIA) was not a final adjudication of Norris's

employment status.5 For the reasons that follow, we reverse.

Background. We recite the facts in the light most

favorable to the plaintiff. See Augat, Inc. v. Liberty Mut.

Ins. Co., 410 Mass. 117, 120 (1991).6 After a ship struck the

Ambrose light tower (light tower), located approximately eight

miles off the New Jersey coast, the United States Coast Guard,

the owner of the light tower, became concerned about its

structural integrity, and decided to completely disassemble it

(project). Costello Dismantling Company, Inc., was the general

contractor. Hallum Marine Construction (Hallum), one of the

subcontractors, retained Norris to work on the project.7 On

August 24, 2008, as Norris was cutting sections of a steel

docking station attached to the light tower, the docking station

5 The crux of the matter is whether Norris was a "seaman"
when he was injured. The Act expressly excludes "masters of and
seamen on vessels engaged in interstate or foreign commerce"
from the definition of "employee." G. L. c. 152, § 1 (4) (a).
In contrast, the Jones Act, which "creates a statutory right of
recovery for negligence," is limited to "seam[e]n." Morris v.
Massachusetts Maritime Academy, 409 Mass. 179, 190-191 (1991).

6 The attorneys do not dispute the conservator's argument
that the judge effectively granted summary judgment in favor of
them.

7 Hallum owns and operates a number of barges and tugboats,
including, as herein relevant, a tugboat named the Miss Yvette.
The Semper Diving and Marine Corporation also provided
subcontracting services on the project.
4

came loose, striking him on the head and driving him deep into

the water, where he remained for a significant period of time.

Norris was diagnosed with an anoxic brain injury.

A resident of Gloucester, Norris retained local attorneys

Joseph M. Orlando and Brian S. McCormick, of the firm of Orlando

& Associates (collectively, attorneys).8 The attorneys planned

to seek damages exceeding $1,000,000 against Hallum and other

parties under the Jones Act and related Federal statutes

(collectively, Federal claims)9 in the United States District

Court. They decided to first pursue Norris's remedies under the

Act in proceedings before the DIA.10

8 At the time, the website of Orlando & Associates stated
that they specialized in civil litigation, with practice areas
in maritime injuries and workers' compensation. Attorney
McCormick handled all of the workers' compensation cases in the
office and performed most of the work on Norris's case.

9 See note 13 and accompanying text, infra.

10Norris's case was the first time Attorney McCormick had
pursued a claim under a State workers' compensation system
before pursuing a Jones Act claim. His previous experience was
limited to filing claims for compensation under the Federal
compensation system. See Longshore and Harbor Workers'
Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq. (2013).
Under Federal law, an injured worker may obtain voluntary
compensation benefits under the LHWCA without jeopardizing a
subsequent Jones Act case so long as the compensation claim did
not result in a formal award. See Southwest Marine, Inc. v.
Gizoni, 502 U.S. 81, 91 (1991).
5

1. DIA proceedings. On October 28, 2008, Attorney

McCormick filed a claim with the DIA.11 Although Hallum's

workers' compensation carrier, Farm Family Casualty Insurance

(Farm Family), opposed the claim, it agreed to commence

voluntary wage and medical payments. See G. L. c. 152, § 19.

After the contested claim was assigned to an administrative

judge (AJ) for a conference, see G. L. c. 152, § 10A (1), Farm

Family moved to dismiss the claim, arguing that Norris was a

seaman on a vessel engaged in interstate commerce (seaman), and

thus ineligible to receive benefits under the Act. In a

statement filed with DIA and presented to the AJ, Attorney

McCormick made the following representations about why Norris

was a land-based employee:

"Here, [Norris] lacked the requisite connection to the
Miss Yvette [Hallum's tugboat], necessary to qualify him as
a seaman . . . . The anticipated evidence . . . is as
follows:

"[Norris] picked up a truck owned by the principles
[sic] of Hallum Marine Construction, and drove to Jersey
City, NJ. After waiving [sic] a period of time, the Miss
Yvette appeared, and [Norris] boarded her. The vessel
steamed 10 miles offshore, taking between 3-4 hours of time
before arrival. The vessel was brought alongside the
Ambrose Light Tower, where, over the following seventeen

11The preprinted DIA form completed by Attorney McCormick
was intended for use by "employees" claiming benefits as a
result of injuries or death. As we have noted, the Act excludes
"seamen" from the definition of "employee." See note 5, supra.
The DIA docketed Norris's claim and assigned a DIA board number.
For the four procedural stages of a workers' compensation
dispute, see Fleming v. National Union Fire Ins. Co., 445 Mass.
381, 384 (2005).
6

days, [Norris] spent virtually all of his work time,
working with a blow torch, dismantling the structure.
During this time frame, he did absolutely no work upon the
Miss Yvette, but carried out all physical work activities
on the structure itself. At the conclusion of his stint,
the Miss Yvette carried him back to shore."

Following the conference, the AJ denied the claim for

compensation, apparently concluding that Norris was a seaman.

Attorney McCormick exercised Norris's right to appeal for a more

complete evidentiary hearing. See G. L. c. 152, §§ 10A (3), 11.

Before the hearing, Attorney McCormick settled Norris's case by

lump sum agreement for $7,500 (Massachusetts or workers'

compensation settlement). See G. L. c. 152, § 48 (1). Norris

agreed to the settlement solely on the recommendation of the

attorneys, who did not advise him of the potential risk to his

Jones Act claims. On February 5, 2010, the AJ approved the

agreement, concluding it was in Norris's best interest, and

entered it as an administrative order of the DIA.12

12 The settlement provided:

"Liability has NOT been established by standing decision of
the Board, the Reviewing Board, or a court of the
Commonwealth and this settlement shall redeem liability for
the payment of medical benefits and vocational
rehabilitation benefits with respect to such injury."

In addition to the $7,500 lump sum payment, Farm Family agreed
to pay Norris's medical bills through the date of the
conference. Farm Family refused to waive its $18,666.52 lien in
the event of any third-party recovery.
7

2. Jones Act proceedings. On March 15, 2010, the

attorneys filed an action under the Jones Act and general

maritime law in the United States District Court for the

District of Massachusetts (Federal court), raising negligence

and maintenance and cure claims against Hallum (Jones Act case

or claims); in addition, they asserted claims against several

other parties (collectively with third-party defendants, Federal

court defendants).13 As we have noted, the generous remedies

provided under the Jones Act are limited to seamen. See 46

U.S.C. § 30104; Morris v. Massachusetts Maritime Academy, 409

Mass. 179, 191 (1991). "Whether under the Jones Act or general

maritime law, seamen do not include land-based workers."

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 348 (1991).

Attorney McCormick signed and submitted a sworn "Seaman's

Affidavit" to the Federal court, averring that Norris was a

"seaman." In his memorandum of law in support of his motion to

amend the complaint, Attorney McCormick made the following

factual representations about Norris's status:

"In August of 2008, the plaintiff was hired to act as a
member of the crew of the Miss Yvette, a tugboat utilized

13Given the nature and the location of the accident and the
potential overlapping jurisdiction, Norris also asserted claims
against the Federal court defendants under the Federal Tort
Claims Act, the Outer Continental Shelf Lands Act, and the
LHWCA. Hallum impleaded its insurance broker and its insurance
agent over disputed coverage issues. One Federal court
defendant, the United States of America, was dismissed at
summary judgment.
8

to transport barges to and from the Ambrose Lighthouse
. . . . In the course of his work, [Norris] spent the vast
majority of his time working on matters relating to the
vessel, as well as the transport of materials to and from
shore. He did, however, spend a small percentage of time
working in actual dismantling operations on the platform
itself. . . . [F]actually, the evidence to date supports
that a substantial amount of plaintiff's duties were done
upon the tender vessel, the Miss Yvette, as opposed to on
the platform itself, thereby rendering him, under relevant
Maritime law, a Jones Act seaman."14

During the proceedings, Hallum and the two third-party

Federal court defendants raised the specter of the possible

preclusion of the Jones Act claims due to the actions and

positions taken at the DIA. Attorney McCormick addressed this

defense in his mediation memorandum.

A one-day mediation session was held on October 17, 2011.

Attorney Orlando advised Norris that if he did not take the

final offer, he would lose at trial. Accordingly, Norris

accepted $200,000 plus Farm Family's waiver of its $18,666.52

workers' compensation lien15 in full settlement of his claims

against all the Federal court defendants (Federal settlement).

Within days, Norris retained new counsel. A petition for the

appointment of a conservator on behalf of Norris was filed in

14Additionally, in Norris's confidential mediation
memorandum, Attorney McCormick made the following statements to
the Federal magistrate: Norris's "primary role in the job was
to work on board the tug and barge. He did little actual
construction site work."

15 See note 12, supra.
9

the Probate and Family Court, and Norris's brother, Jonathan

Marston, was appointed. The conservator sought to intervene and

reopen the Federal case on behalf of Norris. His efforts were

unsuccessful.

3. Legal malpractice proceedings. On March 6, 2013, the

conservator filed this malpractice action in the Superior Court,

asserting claims of negligence, breach of contract, and

violations of G. L. c. 93A. On June 25, 2015, a judge denied

the conservator's motion for partial summary judgment on the

basis that he lacked an expert witness on the relevant standard

of care. On October 14, 2015, Norris voluntarily supplemented

his initial answers to expert interrogatories, reserving the

right to supplement those answers at a later date.16 In March,

16Maureen Counihan, an experienced personal injury and
workers' compensation attorney, opined, as is relevant here,
that the attorneys breached the standard of care in the DIA
proceeding by advising Norris to take a nominal lump sum
settlement that terminated his ongoing medical and wage payments
and potentially compromised his Jones Act case, and by advising
Norris to accept a settlement offer in the Jones Act case that
represented twenty percent of the reported value of the claim on
the ground that he would lose at trial, and without revealing
how the case had been compromised as a result of the attorneys'
negligence. We pause to note that in this context, expert
testimony was necessary on the question whether the attorneys
breached the standard of care. See Pongonis v. Saab, 396 Mass.
1005, 1005 (1985). Compare Greenspun v. Boghossian, 95 Mass.
App. Ct. 335, 340-341 (2019) (experts should not be permitted to
opine on questions of law).
10

2017, cross motions for summary judgment were denied by a second

judge. Trial was scheduled for October 2, 2017.

Due to a scheduling conflict, the case was reassigned to a

different session, and a third judge (trial judge) rescheduled

the trial date to October 4, 2017. At a hearing on October 3,

2017, the judge made a number of rulings from the bench and

thereafter issued a lengthy decision that effectively ended

Norris's negligence and breach of contract claims. After

additional proceedings, the judge extended his prior rulings to

Norris's remaining G. L. c. 93A claims and dismissed the case.

Discussion. 1. Standard of review. To the extent the

trial judge considered certain motions in the nature of summary

judgment, we review those claims de novo, testing "whether,

viewing the evidence in the light most favorable to the

[conservator], all material facts have been established and the

[attorneys are] entitled to a judgment as a matter of law."

Augat, Inc., 410 Mass. at 120. We review the remaining rulings,

including the exclusion of expert testimony and the denial of

Norris's motion for leave to supplement answers to expert

interrogatories for abuse of discretion or other error of law.

See Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 631

(2009). Finally, we review de novo pure conclusions of law in

the judge's decision on motions in limine. See Commonwealth v.

Spencer, 465 Mass. 32, 46 (2013).
11

2. Expert testimony. The trial judge dismissed this case,

first, by ruling both that Norris was required to show that the

Federal settlement was unreasonable, and that Norris had failed

to offer expert opinion supporting that position. The judge

also ruled that Norris's theory of liability failed as a matter

of law. We disagree with both rulings. This case was more than

a negligent settlement case. The conservator maintained that

the Massachusetts settlement had a preclusive effect on Norris's

Jones Act claim, that the attorneys knew this and failed to

disclose it to Norris, and that the attorneys intended to cause

Norris to accept the inadequate Federal settlement to disguise

their negligence.

a. Trial within a trial. Fishman permits clients claiming

unreasonable settlements to proceed under one of two

methodologies for trying their cases. The conservator elected

to proceed under the first methodology outlined in Fishman, the

so-called trial within a trial. Fishman, 396 Mass. at 647. In

that approach, in a single proceeding, the same jury decides

first, whether the attorney was "negligen[t] in the settlement

of [the client's] claim and, second, if that were established,

. . . whether, if the claim had not been settled, [the client]

would probably have recovered more than he received in the

settlement." Id. See Kiribati Seafood Co., LLC v. Dechert LLP,

478 Mass. 111, 117 (2017). This approach is of long-standing
12

origin, is more commonly used than the second Fishman

methodology, and provides a potential opportunity for greater

damages.17 See G. Jacobs & K. Laurence, Professional Malpractice

§ 16.40 (2007); McLellan v. Fuller, 226 Mass. 374 (1917).

To prevail on his chosen approach, the conservator was

required to prove that Norris probably would have obtained a

better result if the Federal claim had not been settled. See

Fishman, 396 Mass. at 647. Under that approach, the conservator

would first need to establish, to the satisfaction of a fact

finder, that the attorneys were negligent in recommending that

Norris first enter into the workers' compensation settlement,

and thereafter the settlement of the Jones Act claim.18 Id.

17 Under the second approach, a client asserts that as a
result of his attorney's negligence, he "lost a valuable right,
the opportunity to settle the case for a reasonable amount
without a trial." Fishman, 396 Mass. at 647 n.1. In this
scenario, the client is entitled to damages consisting of "the
difference between (a) the lowest amount at which his case
probably would have settled on the advice of competent counsel
and (b) the amount of the settlement." Id. Unlike the trial
within a trial, this approach requires expert testimony as to
the reasonable settlement value of the underlying case. See id.
at 647.

18Generally, expert testimony is required to establish the
professional standard of care and any departures from it. See
Pongonis, 396 Mass. at 1005. Here, the proper handling of a
workers' compensation case and the mediation of the Federal
case, as well as any attorney's disclosure obligations, were
matters beyond the common knowledge of jurors, and accordingly
warranted expert testimony. On the other hand, expert testimony
on the attorneys' alleged violation of the ethical standards
would be inappropriate. See Fishman, 396 Mass. at 650.
13

Second, assuming negligence was established, the "consequences,"

if any, of that negligence would be determined by presenting the

underlying Jones Act case to the jury. See id. ("The original

or underlying action is presented to the trier of fact as a

trial within a trial"); G. Jacobs & K. Laurence, Professional

Malpractice § 16.40, at 388 n.4 ("the trial within a trial

concept encompasses proof of damages as well as causation, since

the two are inextricably linked, damages being the amount or

extent of the loss caused by the defendant attorney's

negligence"). See also Frullo v. Landenberger, 61 Mass. App.

Ct. 814, 818 (2004) (fact finder essentially decides causation

and damages elements of malpractice claim). In this second

portion of the proceeding, Norris would be required to establish

not only the liability of one or more of the Federal court

defendants, but also a damages amount exceeding the amount of

the Federal settlement.19 See Fishman, supra at 648.

The absence of an expert opinion on fair settlement value

was not fatal to the conservator's legal malpractice case.

Fishman teaches that while expert testimony on reasonable

settlement value is admissible in this type of action, it is not

required to establish the cause and extent of the client's

19If the jury determined that the value of the underlying
claim was less than the $200,000 obtained in the Federal
settlement, Norris would be unable to establish legal
malpractice.
14

damages. See Fishman, 396 Mass. at 647-648; Colucci v. Rosen,

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

107, 116 (1987) (under Fishman, "a jury in a malpractice action

can decide without expert testimony . . . that the plaintiff in

the malpractice action would have prevailed in his [underlying]

. . . tort case"). Cf. Atlas Tack Corp. v. Donabed, 47 Mass.

App. Ct. 221, 227 (1999) (contrasting Fishman). Given the

conservator's election to proceed under the first Fishman

methodology, it was error for the trial judge to impose an extra

burden on him -- a requirement that he show "loss/causation"

through expert testimony as to reasonable settlement value.20

b. Motion to supplement answers as to reasonable

settlement value.21 After ruling that the conservator was

20As to the breach of contract claims, even assuming they
were simply "restated" negligence claims, expert testimony on
reasonable settlement value was not a required element of these
claims. The trial judge also erred by concluding that
reasonable settlement value was an essential element of Norris's
G. L. c. 93A claims, which rested on a very different factual
predicate -- that the attorneys allegedly pressured Norris to
settle the Jones Act claim in order to avoid a judicial
determination as to whether the workers' compensation settlement
precluded recovery under the Jones Act. Causation and damages
from the allegedly forced settlement, if any, may be established
in the trial within a trial.

21As this issue has been briefed on appeal, we address it,
notwithstanding our determination, supra, that under the trial
within a trial approach, selected by the conservator, no expert
opinion as to the reasonable settlement value of the Federal
claims was required.
15

required to provide expert opinion as to the reasonable

settlement value of the Federal claims, the trial judge denied

the conservator's motion to further supplement his answers to

expert interrogatories by adding such an opinion. Pursuant to

Mass. R. Civ. P. 26 (e) (1) (B), the conservator had timely

supplemented his initial answers. At summary judgment, the

second judge had rejected, without comment, the attorneys'

challenge to the adequacy of Norris's expert's opinion. The

deficiency later identified by the trial judge -- the lack of

expert testimony on fair settlement value -- was not raised

until the eve of trial.22 Up until that point, the conservator

had no reason to suspect that anything might be missing from his

expert disclosure.

As a result, the conservator orally requested leave to

correct the deficiency, and within two days filed a written

motion attaching the "missing" information.23 See Atlas Tack

22We do not agree with the conservator's argument that the
trial judge abused his discretion in reaching this issue. Since
the precise issue was not before the motion judge, the trial
judge did not abuse his discretion by reaching it. Moreover,
even if the motion judge had earlier considered and rejected the
alleged flaw in the conservator's case, the trial judge
possessed the discretion to reconsider and to reverse the
earlier ruling. See Herbert A. Sullivan, Inc. v. Utica Mut.
Ins. Co., 439 Mass. 387, 401 (2003).

23The conservator sought leave to add the expert's opinion
that the reasonable settlement value of the Federal claims was
between $750,000 and $900,000.
16

Corp., 47 Mass. App. Ct. at 224, quoting Mass. R. Civ. P.

26 (e) (3) (plaintiff may "file[] a motion to supplement its

answers with the necessary information 'at any time' prior to

trial"). Despite the absence of prejudice to the attorneys, the

judge denied the motion.24 Under the circumstances, this was an

abuse of discretion.

3. Effect of lump sum agreement. The trial judge

concluded that while the lump sum agreement was a final

adjudication of Norris's claim under the Act, it did not finally

adjudicate the issue of Norris's status as a nonmaritime

employee for purposes of future Jones Act claims.25 The

conservator, with support from his expert witness, maintains

24No postponement of the trial was requested by the
conservator. As demonstrated by the attorneys' motion in limine
for a trial within a trial, the conservator's intentions were
disclosed earlier in the case. The attorneys never sought to
depose Norris's expert or to compel further answers to expert
interrogatories.

25As to the DIA settlement agreement, the judge reasoned
that (1) the approval of a $7,500 lump sum agreement in exchange
for a $1,000,000 claim "was certainly not in [Norris's] best
interest," and thus could not be used to bar the Jones Act
claim; (2) "[o]ne of the stated terms of the compromise
agreement was an acknowledgement that [Norris's] entitlement to
benefits was in question, and that his entitlement to benefits
was not being established by the agreement"; (3) the status
issue that the AJ decided adversely to Norris was not final due
to administrative appellate rights; and (4) "[i]t is
inconceivable that the parties, under their compromise
settlement, intended to or did incorporate into their agreement
a binding reversal of the DIA's preliminary determination that
[Norris] was not eligible for compensation because he was a
seaman."
17

that the agreement to accept a lump sum settlement in the DIA

proceeding resulted in a "final adjudication" that potentially

precluded Norris's subsequent Jones Act claims. Cf. Martin v.

Ring, 401 Mass. 59, 60 (1987). We conclude that, in the context

of this case, it was error to reach the question whether the

workers' compensation settlement had preclusive effect on the

Jones Act claim. In fact, this was an issue that was not

settled at the time of these proceedings. And it is the

unsettled state of the law that is pertinent in assessing any

negligence on the part of the attorneys.

For example, at the time of the proceedings below, the

Federal courts were divided as to whether a formal award of

benefits in a contested proceeding under a Federal analog to our

Act, the Longshore and Harbor Workers' Compensation Act (LHWCA),

barred subsequent Jones Act claims. There were a plethora of

published cases in which courts, applying principles of res

judicata, concluded that the Jones Act claims were in fact

barred in such circumstances.26 Here, because of the mediated

26See, e.g., Sharp v. Johnson Bros., 973 F.2d 423, 426-427
(5th Cir. 1992) (holding that Department of Labor administrative
law judge's order approving settlement under LHWCA constituted
"formal award" barring Jones Act suit, even where status issue
had not been litigated); Anders v. Ormet Corp., 874 F. Supp.
738, 741 (M.D. La. 1994) (construing administrative law judge's
decision under LHWCA as "formal award" under Gizoni, 502 U.S. at
91 [see note 10, supra], and holding that, where parties had
fully litigated seaman status before administrative law judge,
Jones Act action was barred, and plaintiff was collaterally
18

Federal settlement, the Federal court never reached the estoppel

issues. To date, the United States Court of Appeals for the

First Circuit has yet to decide the issue.27

Given the unsettled state of the law, the attorneys had the

duty to fully disclose the potential consequences to Norris

before recommending that he accept the Massachusetts settlement.

See Williams v. Ely, 423 Mass. 467, 476-477 (1996). Contrary to

the trial judge's assertion, the preclusive bar had been raised

in the Federal proceedings. The attorneys' failure to alert

Norris to the uncertainty deprived him of the opportunity to

assess the risk and was an actionable basis of negligence. See

Hendrickson v. Sears, 365 Mass. 83, 90 (1974) ("The attorney

owes his client a duty of full and fair disclosure of facts

estopped from relitigating issue). Contrast Figueroa v.
Campbell Indus., 45 F.3d 311, 315-316 (9th Cir. 1995) (recovery
under LHWCA did not bar Jones Act action for pain and suffering
where no express administrative finding as to whether employee
was seaman).

27Following the attorneys' representation at issue in this
case, a Federal magistrate construed Maine's workers'
compensation statute which, like the Act, excludes seamen from
coverage. See Polak v. Riverside Marine Constr., Inc., 22 F.
Supp. 3d 109 (D. Mass. 2014). Applying the Maine law of res
judicata, the magistrate concluded that a consent decree
approving the parties' settlement agreement under the Maine
workers' compensation statute precluded the plaintiff from
claiming seaman status under the Jones Act. See id. at 118-120.
19

material to the client's interests"). The case was therefore

improperly dismissed.28

Conclusion. The judgment dismissing the conservator's

complaint is reversed, and the case is remanded for further

proceedings consistent with this opinion.29

So ordered.

28The attorneys argue that even if Norris's Jones Act
claims against Hallum were extinguished, there is no reason why
he could not have recovered in full against the other Federal
court defendants. There is no merit to that claim. On the
conservator's theory of his case, the attorneys intentionally
forced a settlement of all claims in order to avoid the exposure
of their negligence. Put another way, as a result of their
unfair and deceptive conduct, the attorneys allegedly deprived
Norris of a trial on these claims.

29The trial judge indicated that if this court finds error
and reverses the judgment, he will recuse himself from further
proceedings. In light of this representation, we need not
address the propriety of the denial of the recusal motions, as a
different judge shall be assigned to this matter.