explaining case was not “one of those exceptional cases where [the defendant’s] breach of the standard of care was so obviously the legal cause of [the plaintiffs] injuries that expert testimony was not required”
How later courts described this case
- explaining case was not “one of those exceptional cases where [the defendant’s] breach of the standard of care was so obviously the legal cause of [the plaintiffs] injuries that expert testimony was not required”
- noting that in legal malpractice cases "damages [cannot] be calculated with mathematical certainty, and the method used to compute damages need not be more than an approximation"
- noting, with respect to the causation element of a legal malpractice claim, that “[u]nless the causal link is obvious or can be established by other evidence, expert testimony may be essential to prove what the lawyer should have done.”
- noting that malpractice defendant has burden to establish as an affirmative defense that lost judgment would have been uncollectible
Written by the judges who cited it.
The opinion
Nadeau, J.,
dissenting in part. I disagree with the majority’s conclusion that an expert was necessary in this case to prove proximate cause.
In the performance of her duty as the plaintiffs legal counsel, the defendant: (1) failed to allege in the complaint she filed for him in the Urnted States District Court for the District of New Hampshire an amount *537 in controversy sufficient to establish subject matter jurisdiction, as a result of which the complaint was dismissed; (2) failed to appeal the dismissal, leading to the dismissal of a second complaint she filed in the district court alleging a sufficient amount, as a result of which a subsequent complaint filed in the United States District Court for the District of Massachusetts was also dismissed; (3) after filing a complaint in the Massachusetts Superior Court, failed to inquire why it was dismissed; (4) having failed to make this inquiry, did not appeal the unjustified dismissal; (5) then, while representing the plaintiff in a bankruptcy proceeding initiated by a party against whom he had been making the dismissed claims, failed to appear at the first meeting of creditors; and (6) failed to oppose the homestead exemption asserted in the bankruptcy, as a result of which the responsible party was discharged.
As far as I am concerned, this defendant’s conduct is the equivalent of a surgeon leaving a sponge inside a patient. I agree with the trial judge; the plaintiff did not need an expert to meet his burden of proof under Furbush v. McKittrick, 149 N.H. 426 (2003). The circumstances in this case are exceptional; the negligence of the defendant is clear; the consequences to the plaintiff are obvious. “There needs no ghost, my lord, come from the grave to tell us this.” W. Shakespeare, Hamlet, Prince of Denmark, act 1, sc. 5.
The plaintiff is entitled to his jury verdict and I would not subject him to any further judicial process. Respectfully, therefore, I dissent.