Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Diamond v. Sokol

October 29, 2007


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


This Opinion and Order addresses the parties' various motions in limine in preparation for the upcoming trial in this legal malpractice case.

The factual background relating to the case are fully set forth in the Court's earlier opinion denying defendants' motions for summary judgment, Diamond v. Sokol, 468 F. Supp. 2d 626 (S.D.N.Y. 2006), and need not be repeated here. The parties are fully familiar with that background, and interested readers are referred to that opinion.

Plaintiff's Motions

1. Plaintiff moves to preclude the testimony of defendant David J. Sokol's proffered legal expert, James McPhilliamy. The motion is denied.

Plaintiff's primary argument is that McPhilliamy's testimony is "pure legal conclusion, with no analysis or basis." (P. Mem. 3.)*fn1 This is not correct. Although McPhilliamy's report includes scant legal analysis, his testimony is not offered to inform the jury about the underlying law, which is hardly in dispute and in any event is the province of the Court. Rather, the primary function of his proposed testimony is to address issues rooted in the experience of practicing lawyers. For example, McPhilliamy offers opinions about the strength of the plaintiff's potential case for economic loss in the underlying action, how a jury would be expected to react to various claims, how New York State judges would be expected to rule on matters confided by law to their discretion, and the reasonableness of various tactical decisions. These are matters within the expertise of experienced trial lawyers; indeed, it is precisely for their judgment about such questions that clients retain and pay lawyers, and it is on such judgments that legal professionals rely in deciding what claims to advance and when and whether to settle cases. McPhilliamy is an experienced lawyer in dental malpractice matters, and plaintiff does not question his credentials or competence on such matters.*fn2

Plaintiff's subsidiary arguments are no more persuasive. Contrary to plaintiff's contention, McPhilliamy does not purport to offer an opinion as to the credibility of any witness; he discusses only how a reasonable lawyer would have sized up plaintiff's case, and the tactical decisions a reasonable lawyer would have made in light of such an evaluation. Nor does McPhilliamy's testimony "usurp the role of the jury." (P. Mem. 6.) As plaintiff acknowledges, a legal expert in a legal malpractice case may offer his or her "conclusion[s] that the defendant did or did not exercise the appropriate standard of care." Middle Market Fin. Corp. v. D'Orazio, 2002 WL 31108260, at * 8 (S.D.N.Y. Sept. 23, 2002). Plaintiff's own expert proffers similar conclusions. That the jury will have to reach a conclusion on that issue does not render the testimony inadmissible.

2. Plaintiff seeks to preclude certain portions of the proposed testimony of Fred Goldman, defendants' economic expert, arguing that two brief portions of that testimony go beyond the witness's expertise, by addressing legal rather than economic questions. The motion is completely lacking in merit, and is denied. Goldman offers no opinion on any legal issue. He simply notes certain largely indisputable aspects of New York law with respect to damages (such as the effect of income taxes and the manner in which future damages would be paid) as the basis for his mathematical calculations regarding the economic value of plaintiff's potential lost earnings claim in the underlying action.

3. Plaintiff seeks to preclude portions of the proposed testimony of Edmond Provder, defendants' vocational expert, arguing that those portions go beyond the witness's expertise by addressing medical questions. The motion is denied. Again plaintiff misconceives the relevance of the evidence. Provder does not address any issue with respect to the seriousness of plaintiff's medical condition or the effect of such condition on her ability to work. Rather, the challenged portions of the testimony address the potential role of a vocational expert such as himself in the underlying action and the likelihood that a person with plaintiff's qualifications could be expected, absent the effects of her dental condition and its mistreatment, to obtain certain employment. These are matters within Provder's expertise.

4. Plaintiff seeks to preclude the testimony of a hearing expert, Susan Waltzman. The motion is granted. As plaintiff has withdrawn any claim of hearing loss, Waltzman's testimony is not relevant to any issue remaining in the case. Defendants' argument that Waltzman's testimony is relevant to prove that plaintiff at some point advanced a claim, now withdrawn, that was without merit is rejected. The time consumed, and the juror confusion risked, by trying the merits of withdrawn claims far outweighs any minimal light such testimony would cast on plaintiff's credibility.

5. Plaintiff argues that the defendants should not be permitted to refer to the Court's prior ruling capping damages in this action at $740,000. The motion is denied.

In the underlying action, plaintiff agreed, as part of a compromise to permit the case to go forward after the death of the underlying-defendant dentist, to limit the damages in that case to $1,000,000, the amount of the dentist's insurance coverage. In the summary judgment opinion, this Court ruled that because plaintiff did not raise a genuine issue as to the fact that she had agreed to the cap, and because her complaint did not allege (and she presented no evidence) that her attorneys were negligent in advising her to do so, as a matter of law she could not have recovered more than $1,000,000 in damages in the underlying action, and therefore, since she did recover $260,000, any negligence by her attorneys could not have caused more than $740,000 in damages. 468 F. Supp.2d at 640.

Plaintiff suggests that she should be entitled to prove the full extent of the damages that she contends could have been proven in the underlying action, and the jury should be instructed to return a verdict for the full amount, with the damages cap applied after the fact by the Court. For reasons discussed below in connection with defendants' motion, this suggestion is sensible enough. However, that does not mean that the jury should not learn of the $1,000,000 cap in the underlying case, or of the effect of that cap on the judgment that could be entered here.

One of defendants' principal factual arguments is that their disregard of plaintiff's potential economic damage claims was reasonable because those claims were weak and her claim of pain and suffering strong, and that it therefore made tactical sense not to weaken the credibility of the case by presenting a weak claim. They further posit that the damages limitation has a bearing on the reasonableness of this tactical decision; with the damages limited in any event, the relative merits of different claims would arguably look different than they might in a case in which unlimited damages were a possibility. In order to evaluate the defendants' conduct of the litigation, the jury must review that conduct in light of the facts and circumstances of the underlying action. See e.g., Rosner v. Paley, 65 N.Y.2d 736, 738 (1985); Hand v. Silberman, 789 N.Y.S.2d 26, 27 (1st Dept. 2005). The Court cannot rule as a matter of law that the damages cap could not be relevant to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.