Thomas M. Brooks v. John R. Lemieux — 2017 ME 55

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 55
Docket: 	Cum-16-86
Argued: 	November 8, 2016
Decided: 	March 21, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
THOMAS M. BROOKS
v.
JOHN R. LEMIEUX
HUMPHREY, J.
[¶1] 	Thomas M. Brooks appeals from a summary judgment entered in
the Superior Court (Cumberland County, L. Walker, J.). 	The court concluded
that Brooks failed to present prima facie evidence of causation to proceed
with his legal malpractice and other tort claims against John R. Lemieux. 	We
affirm the judgment.
I. BACKGROUND
[¶2] 	“Viewing 	the 	record 	in 	the 	light 	most 	favorable 	to 	the
non-prevailing part[y], the summary judgment record contains the following
facts, which are undisputed unless otherwise noted.” Estate of Frost, 2016 ME
132, ¶ 2, 146 A.3d 118 (quotation marks omitted).

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[¶3] 	Brooks was employed at Bath Iron Works (BIW) from 1979 until
his termination in 2006 following BIW’s determination that Brooks had failed
in his job performance and had violated the conditions of a “Last Chance
Agreement.” 	Brooks unsuccessfully grieved the termination. 	After the Local
S7 Union Grievance Committee voted not to arbitrate his grievance, Brooks
hired Attorney John R. Lemieux. 	In February 2007, Brooks, represented by
Lemieux, filed a complaint in the United States District Court for the District of
Maine against the Union and BIW alleging claims for breach of the collective
bargaining agreement and discrimination. 	BIW and the Union moved for
summary judgment.
[¶4] 	In opposing the motions, Lemieux failed to timely file opposing
statements of material facts: Lemieux filed the opposition to the Union’s facts
one day late and filed a motion to enlarge the time to respond to BIW’s facts
more than thirty days late.1
[¶5] The magistrate judge (Rich, Mag.) issued a recommended decision
granting 	a 	summary 	judgment 	in 	favor 	of 	BIW 	and 	the 	Union. 	The
1 The federal court denied the request to enlarge the time to file an opposition to BIW’s facts,
and considered only Brooks’s opposition to the Union’s statement of facts in ruling on the motion
for summary judgment. This was ultimately not material to the court’s decision because the claims
were analyzed pursuant to the rules applicable to “hybrid” cases wherein an employee alleges a
breach of the collective bargaining agreement and discrimination in the handling of the grievance.
See Miller v. U.S. Postal Serv., 985 F.2d 9, 11 (1st Cir. 1993). Because the claims against the Union
failed, the court did not have to reach the claims against BIW.

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recommended decision noted numerous instances in which Lemieux failed to
cite to record evidence in Brooks’s statement of additional material facts as
well as the opposing statement of material facts, which were thus deemed
admitted. The court (Singal, J.) affirmed the magistrate judge’s recommended
decision. The First Circuit Court of Appeals affirmed.
[¶6] 	On June 27, 2014, Brooks filed the action at issue in this appeal in
the Superior Court alleging claims against Lemieux for legal malpractice,
breach of fiduciary duty, and negligent infliction of emotional distress. Brooks
alleged that, in the federal case, Lemieux breached the professional standard
of care applicable to attorneys by failing to (1) timely file responses to
statements of material fact supporting summary judgment, (2) follow Local
Rule 56 governing statements of fact, (3) obtain affidavits from witnesses, and
(4) conduct adequate discovery.
[¶7] 	On August 5, 2015, Lemieux moved for summary judgment on all
claims. 	After a hearing on January 8, 2016, the court granted the motion and
issued a written order entering a summary judgment in Lemieux’s favor,
concluding that Brooks failed to put forth prima facie evidence of causation
for several reasons. 	First, Lemieux’s failure to oppose BIW’s statement of
material facts was not causally related to the entry of summary judgment

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because the federal court relied entirely on the Union’s facts, and Lemieux’s
opposition to those facts, although untimely, was considered by the court.
Second, even accepting that Lemieux failed to timely oppose the statements of
fact, 	follow 	the 	Local 	Rule 	regarding 	record 	citations, 	obtain 	adequate
affidavits, and conduct adequate discovery, Brooks did not identify what
evidence should have been cited, what affidavits should have been obtained,
and what discovery should have been conducted, leaving a fact-finder to
speculate about any causal link between the alleged negligence and the injury.
Third, Brooks failed to submit admissible expert testimony to support the
causation element of his tort claims. The court refused to consider an affidavit
by 	Attorney 	Julie 	Moore 	in 	which 	she 	opined 	that 	but 	for 	Lemieux’s
negligence, Brooks would have prevailed in the federal case.2 	The court
2 Moore opined that had Lemieux properly cited to the summary judgment record, timely filed
an opposition to BIW’s statements of fact, and filed an opposition to the Union’s motion for
summary judgment on the disability issue, Brooks “would have more likely than not survived
summary judgment; and, had the same facts as provided in the documents above and reviewed by
me been submitted to and found credible by a jury, . . . Brooks would more likely than not . . . [have]
been successful in his claim for discrimination against BIW and the Union.” Moore further averred
that had Lemieux done the foregoing, Brooks “would have more likely than not survived summary
judgment and the facts as presented in the documents listed above do show that Mr. Brooks had a
claim for discrimination and the facts, should they be believed by a jury, substantiate that claim.”
Moore formed this opinion based on a review of the motions for summary judgment, oppositions,
statements of material fact, “and other material” in Brooks’s federal case. 	Moore identifies no
specific evidence from the federal summary judgment record or elsewhere to substantiate her
opinion.

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concluded that the affidavit contradicted Moore’s deposition testimony3 and,
citing the rule announced in Zip Lube, Inc. v. Coastal Savings Bank, held that the
affidavit was insufficient to generate a disputed issue of material fact. 	1998
ME 81, ¶ 10, 709 A.2d 733 (“When an interested witness has given clear
answers 	to 	unambiguous 	questions, 	he 	cannot 	create 	a 	conflict 	and
resist summary judgment with an affidavit that is clearly contradictory, but
does not give a satisfactory explanation of why the testimony is changed.”
(quotation marks omitted)). 	Because the court did not consider the Moore
affidavit, it held that Brooks failed to submit any admissible expert evidence
on causation. 	The court entered a summary judgment on all three counts
alleged in the complaint.4
[¶8] Brooks timely appealed the judgment pursuant to 14 M.R.S. § 1851
(2016) and M.R. App. P. 2.
3 At her deposition, Moore testified as follows:
Q: Would the jury be asked to make a credibility determination as to whether they
believe what the Union and Bath Iron Works witnesses said about their reason for
terminating Mr. Brooks?
A: 	Yes. 	Ultimately, was that the real issue or was that a pretext for unlawful
discrimination? So that’s the ultimate decision. That’s a legal conclusion. The jury
is dealing with that issue. I’m not dealing with that issue or opining on that at all.
4 Although the court focused on the legal malpractice claim, the court concluded that if Brooks
could not produce prima facie evidence of causation as to that claim, the other derivative tort
claims for breach of fiduciary duty and negligent infliction of emotional distress failed as well.
See Niehoff v. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ¶ 8, 763 A.2d 121.

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II. DISCUSSION
[¶9] “We review a grant of summary judgment de novo, considering the
evidence in the light most favorable to the nonprevailing party to determine
whether the parties’ statements of material facts and the record evidence to
which the statements refer demonstrate that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
Pawlendzio v. Haddow, 2016 ME 144, ¶ 9, 148 A.3d 713 (quotation marks
omitted). 	“To prove attorney malpractice, a plaintiff must show (1) a breach
by the defendant of the duty owed to the plaintiff to conform to a certain
standard of conduct; and (2) that the breach of that duty proximately caused
an injury or loss to the plaintiff.” Id. ¶ 10.
[¶10] 	“In an action following an attorney error during trial, the court
addressing the causation issue in the subsequent malpractice action merely
retries, or tries for the first time, the client’s cause of action which, the client
asserts was lost or compromised by the attorney’s negligence.” 	Steeves v.
Bernstein, Shur, Sawyer & Nelson, P.C., 1998 ME 210, ¶ 15, 718 A.2d 186
(emphasis omitted) (quotation marks omitted). A plaintiff must establish that
the defendant’s conduct was “a substantial factor in bringing about the loss of
the [underlying] action.” 	Spickler v. York, 566 A.2d 1385, 1390 (Me. 1989)

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(quotation marks omitted). A “mere possibility” of a more favorable result is
insufficient. Id.
[¶11] 	Brooks argues that (1) the trial court applied the incorrect
malpractice standard, (2) expert testimony is not required, (3) causation
presents a jury question, and (4) Attorney Moore’s affidavit established prima
facie evidence of causation, rendering summary judgment erroneous.
[¶12] We have held that a modified malpractice standard applies where
“the alleged negligence is in failing to plead or timely plead so that plaintiff’s
opportunity to get before the factfinder is lost.”5 Niehoff v. Shankman & Assocs.
Legal Ctr., P.A., 2000 ME 214, ¶ 9, 763 A.2d 121. This is not such a case.
[¶13] 	Although 	Brooks 	argues 	he 	had 	a 	viable 	retaliation 	claim,
Lemieux brought a discrimination claim and developed facts sufficient to
evaluate 	the 	alleged 	malpractice 	pursuant 	to 	the 	ordinary 	standard.
Cf. Niehoff, 2000 ME 214, ¶¶ 9-10, 763 A.2d 121. Brooks argues that Lemieux
brought the discrimination claim pursuant to the wrong federal statute, but
5 The standard dispenses with the ordinarily malpractice standard in order to account for the
difficulty of proving that the plaintiff would have prevailed on a claim that was never brought. See
Niehoff, 2000 ME 214, ¶ 9, 763 A.2d 121. The standard requires a plaintiff to “demonstrate that
there are facts in dispute which are sufficient to allow a jury to conclude that: (1) the defendant
attorney was negligent in representation of the plaintiff; and (2) the attorney’s negligence caused
the plaintiff to lose an opportunity to achieve a result, favorable to the plaintiff, which (i) the law
allows; and (ii) the facts generated by plaintiff's M.R. Civ. P. 7(d) statements would support, if the
facts were believed by the jury.” Id. ¶ 10.

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fails to explain how this technical defect was material to the court’s decision.
Brooks lastly appears to argue that Lemieux should have presented more
evidence to support the claim—alleged negligence that may be properly
evaluated pursuant to the garden-variety legal malpractice standard. 	See id.
¶ 9 (stating that the ordinary malpractice standard applies to “advice or
tactics which preceded a final result on the merits of an underlying action”).
[¶14] 	Contrary to Brooks’s contention, expert testimony establishing
that Brooks would have prevailed had Lemieux not breached his duty of care
is required to establish a causal link between the negligence and the injury.
See, e.g., Johnson v. Carleton, 2001 ME 12, ¶¶ 14-15, 765 A.2d 571 (affirming
the entry of a summary judgment on the basis that a legal malpractice claim
failed without expert testimony on causation).
[¶15] 	As noted above, after disregarding the Moore affidavit because
the affidavit contradicted Moore’s deposition testimony and expert disclosure,
the trial court concluded that the record was devoid of expert evidence on
causation. See Zip Lube, 1998 ME 81, ¶ 10, 709 A.2d 733.
[¶16] 	The rule recited in Zip Lube is intended to prevent parties from
submitting contradictory testimony in opposition to a summary judgment
motion to strategically generate a material fact dispute. See 10A Charles Alan

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Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2726.1 at 465 (2016) (“[T]he nonmoving party should not be allowed to
manufacture a question of fact to delay resolution of the suit.”); see also Blue
Star Corp. v. CKF Props., LLC, 2009 ME 101, ¶¶ 33-34, 980 	A.2d 1270
(affirming entry of a summary judgment, concluding that new testimony
contradicted prior deposition testimony and interrogatory responses); Zip
Lube, 1998 ME 81, ¶¶ 9-10, 709 A.2d 733 (concluding that the court properly
disregarded a party’s contradictory testimony about the chronology of events
supporting a claim). The rule applies where there is a clear contradiction, not
merely 	discrepancies, 	between 	the 	prior 	testimony 	and 	the 	subsequent
testimony. 	See 	Garland 	v. 	Roy, 	2009 	ME 	86, 	¶ 	18 	n.4, 	976 	A.2d 	940
(“[A]lthough 	there 	are 	discrepancies 	between 	[the 	plaintiff]’s 	earlier
testimony and later testimony, the changes in [his] later testimony do not
amount to a direct contradiction of his earlier testimony.”).
[¶17] 	At Moore’s deposition, Lemieux asked whether the fact-finder
would find credible BIW’s and the Union’s reason for terminating Brooks.
Moore declined to opine as to whether the jury would believe the reason was
a pretext, maintaining that that was the “ultimate decision,” a legal conclusion,
and a question for the jury. 	Her affidavit similarly noted that the ultimate

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determination as to the credibility and weight of the evidence supporting the
discrimination claim would be for the fact-finder. 	There was therefore no
contradiction between her deposition testimony and her affidavit; at most,
Moore expanded upon her earlier testimony to opine that it was more likely
than not that Brooks would have prevailed. 	Moore did not, for example,
testify that Brooks could not prevail on his discrimination claim only to opine
the opposite in the affidavit—a circumstance in which the rule would apply.
The trial court should not have refused to consider Moore’s affidavit on the
basis that it contradicted Moore’s prior testimony.
[¶18] The error, however, was harmless because even if considered, the
affidavit is fatally deficient for other reasons highlighted by the court. See M.R.
Civ. P. 61. 	The affidavit is conclusory, offering not a single specific reference
to evidence that was in the record or could have been obtained to support the
opinion that but for Lemieux’s errors, Brooks would have prevailed. 	Such
evidence is essential to proving the “case-within-a-case.” 	See Bozelko v.
Papastavros, 147 A.3d 1023, 1029 (Conn. 2016) (“[T]he plaintiff typically
proves that the . . . attorney’s professional negligence caused injury to the
plaintiff 	by 	presenting 	evidence 	of 	what 	would 	have 	happened 	in 	the
underlying action had the [attorney] not been negligent. This traditional

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method of presenting the merits of the underlying action is often called the
‘case-within-a-case.’” (quotation marks omitted)); see also Steeves, 1998 ME
210, ¶ 15, 718 A.2d 186.
[¶19] 	Moore’s opinion amounts to, in substance, listing Lemieux’s
breaches of the standard of care and baldly stating that had those breaches
not occurred, Brooks would have defeated the motion for summary judgment.
Without citing the evidence that, in her opinion, supported the underlying
claims in the federal case or rendered Lemieux’s breaches material to the
outcome, Moore’s conclusory opinion was insufficient prima facie evidence of
causation to evade summary judgment. 	The fact-finder would have had no
competent evidence from which to conclude that Lemieux’s negligence caused
the loss without speculating. 	See Pawlendzio, 2016 ME 144, ¶ 15, 148 A.3d
713 (affirming a summary judgment where an expert neither specifically
stated what the attorney failed to do nor established, through statements of
material fact, a causal link between the breach and the injury); Allen v.
McCann, 2015 ME 84, ¶ 11, 120 A.3d 90 (holding that an attorney’s assertion
“without further detail or explanation” that the client could have settled for
more “[did] not provide a foundation upon which a jury could assess damages
without resort to speculation”); Steeves, 1998 ME 210, ¶ 13, 718 A.2d 186.

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[¶20] 	Because Brooks failed to put forth prima facie evidence of
causation 	to support his 	claims, 	the court properly granted a summary
judgment in favor of Lemieux.
The entry is:
Judgment affirmed.
Anthony J. Sineni III, Esq. 	(orally), Law Offices of Anthony J. Sineni III,
Portland, for appellant Thomas M. Brooks
Martha C. Gaythwaite, Esq. (orally), and Marie J. Mueller, Esq., Verrill Dana,
LLP, Portland, for appellee John R. Lemieux
Cumberland County Superior Court docket number CV-2014-293
FOR CLERK REFERENCE ONLY