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COMMONWEALTH OF MASSACHUSETTS
WORCESTER, ss. , SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 16-0663D
1
THE ESTATE OF NELLIE BARBACKI,
BY ITS PERSONAL REPRESENTATIVES
KARL BARBACKI AND
ROSALIND BREZINSKI
Plaintiff,
FILE
JUN 17 2019
ames Ae Hult, CLERK
Vv.
ABIGAIL WILLIAMS, ERIN ATWATER, and
ABIGAIL WILLIAMS & ASSOCIATES, LLC.,
Defendants.
ee SS SSH SHH SH HD
DEFENDANTS ABIGAIL WILLIAMS AND ABIGAIL WILLIAMS &
ASSOCIATES, LLC’S MOTION TO BIFURCATE TRIAL AND
INCORPORATED MEMORANDUM OF LAW
Pursuant to Mass. R. Civ. P. 42(b), the Defendants Abigail Williams (“Attorney
Williams”) and Abigail Williams & Associates, LLC., (“AWA”), hereby move this
Honorable Court for an order bifurcating the trial of this matter. As fully explained below
this is a legal malpractice action brought by the adult children of the late Nellie Barbacki
(the “Barbackis”) based on Attorney Williams representation of Mrs. Barbacki in a medical
malpractice action. At the trial of this matter the Barbackis must prove causation and
damages in the medical malpractice action before the legal negligence claim is heard by the
jury. If the Plaintiff is not successful in proving causation and damages in the medical
malpractice matter, the jury does not reach the legal negligence claim. Not only will judicial
time and resources be wasted should the Barbacki’s legal negligence claim be presented at
trial first, but as explained herein Attorney Williams will undoubtedly sustain severe and
4842-3364-0343,1
\8Pe
1
pervasive prejudice and there is a danger the jury will be tainted from the presentation of
sensationalized and irrelevant (circumstantial evidence. Moreover, extensive expert
testimony will be required with respect to the Plaintiff’s alleged legal negligence damages.
As a result an order of bifurcation is necessary in order to preserve judicial economy and
expedition as well as to prevent severe prejudice to Attomey Williams. In further support of
it’s request for bifurcation, awa states as follows:
'L BACKGROUND
This is a legal malpractice action brought by the adult children of the deceased Nellie
Barbacki (““Mrs. Barbacki”) who died at age ninety-five (95) . Attorney Williams represented
Mrs. Barbacki in a medical Malpractice action against her primary care physician (“PCP”)
Dr. William Mugg (“Dr. Mugg”). Based on representations of the Barbacki family and an
initial review of the limited medical records in AWA’s possession, initially, Mrs. Barbacki’s
case seemed strong. After review of additional medical records however, it became obvious
that what AWA initially thought was a sufficiently clear medical malpractice case had
significant hurdles with respect to causation due to Mrs. Barbacki’s undisclosed history of
Transient Ischemic attacks (“TIA”), Mrs. Barbacki’s history of taking herself off anti-
coagulants and the Barbacki’s reluctance to put Mrs. Barbacki on anti-coagulants due to her
history of falling. Despite these significant hurdles, and appreciating that the medical
malpractice case would not have passed the medical tribunal on causation, with the express
approval of the Barbacki Family Attorney Williams was able to obtain an excellent
settlement in the amount of Two-Hundred and Fifty Thousand Dollars ($250,000).
Months after authorizing the settlement on behalf of their mother and after the
settlement had been reported to'the Court, the Barbacki’s refused to sign the settlement
4842-3364-0343.1 2agreement, retained Attorney Halstrom, and reported to the Court that there was a
“disagreement regarding disbursement of the settlement proceeds.” After multiple motions
were heard by the underlying court, the Court ordered that the settlement agreement be
executed. Now, the Plaintiffs allege they never authorized settlement of the lawsuit against
Dr. Mugg, that Attorney Williams told the Plaintiffs they would net $156,000 from a
$250,000 settlement, that Attorney Williams did not obtain an expert to opine on behalf of
Nellie Barbacki, and did not determine whether there was a Medicare lien prior to settling
the case. The Barbackis further allege that to this day, despite having received settlement
proceeds, the underlying lawsuit against Dr. Mugg has not settled.
I. LEGAL STANDARD
Legal Malpractice actions are traditionally grounded in the tort of negligence. 7A
C.LS. Attorney & Client §255 (1380) The party that files a legal malpractice action must
prove duty, breach, and causation of damages. Pedro v. Gallone, 14 Mass. L. Rep. 723, 1
(2002). Of these elements causation is typically the most difficult to establish. To prove
causation of damages, a clientplaintitt ‘must also prove the validity of the underlying claim.
Campbell v. Magana, 184 Cal.App. 2d 751 (1960) (causation of a loss must be proven to
hold an attorney liable in malpractice). If the original lawsuit was non-meritorious, the client
is not injured when the original claim is lost. Maryland Casualty Co. v Price, 231 F. 397,
402 (4" Cir. 1916). Therefore if the original claim is not valid, the attorney’s negligence
when loosing that claim does not cause injury to the client. Id, Without injury, no
malpractice liability exists. Id. In addition to proving causation of damages in the legal
malpractice case, the plaintiff/ex-client must show that a viable problem was initially placed
in the hands of the attorney. Id., at 401-402. This double burden which requires proof of a
4842-3364-0343.1 3viable original claim to establish causation in the malpractice action, is commonly known as
the “trial within a trial” requirement. Cogin, Attorney Negligence... A Suit Within A Suit,
60 W. Va. L. Rev. 225 (1958). The plaintiff must plead and prove every essential element to
the malpractice action. Malloy v. Sullivan, 415 So. 2d 1059 (Als.), cert. denied, 459 U.S.
974 (1982). Therefore the plaintiff must prove the validity of the underlying claim because
that validity will establish causation in the malpractice claim. Id., note 6.
Bifurcation is entirely within the discretion of the trial judge. Dobos v. Driscoll, 404
Mass. 634, 645 (1989). It may be granted “when separate trials will be conducive to
expedition and economy.” Mass.R.Civ.P. 42(b). The purpose of the rule permitting
bifurcation is the “convenience of adjudication, the avoidance of prejudice and the interests
of expedition and economy.” Roddy & McNulty Ins. Agency v. A.A. Proctor Co., Inc., 16
Mass. App. Ct. 525, 528 (1983).
In one of the leading out-of-state cases on bifurcating medical malpractice and
negligent credentialing claims, the decision to bifurcate was grounded in concerns about
prejudice. Scheiiling v. Humphrey, 916 N.E.2d 1029, 1026 (Ohio, 2009). Specifically the
concern in Schelling was that evidence admitted in the negligent credentialing case against
the hospital regarding past problems with the defendant doctor’s conduct might prejudice the
doctor in the medical malpractice action. Another case that supports bifurcation in legal
malpractice actions is Lewandowski v. Continental Casualty Co., 88 Wis. 2d, 271 (1790). In
Lewandowski, the Plaintiff client filed a malpractice claim against the attorney defendant
who failed to file a personal injury action regarding an auto accident with the applicable
statute of limitations period. The attorney denied that his negligence in missing the filing
period had caused any damage to the plaintiff, who asserted that the attorney contributed to
4842-3364-0343.1 4the underlying negligence. The trial court tried the underlying case first and the jury
determined that the plaintiff was 65% negligent in causing the underlying car accident. The
plaintiff appealed the decision of the trial court and on review the Supreme Court held that
under the facts of the case the trial court choose the appropriate methodology to resolve the
issue in the case. The Court held that in the final analysis, whether the plaintiff/ex-client had
been damaged by the defendant-attomey’s failure to timely file suit against the other driver
could only be determined after a trial involving the question of whether the negligence of the
other driver was greater than that of the Plaintiff. Id. At 289.
Similar reasoning was used by the Alabama Supreme Court in Johnson v. Horne.
500 SO. 2d 1024, 1025 (Ala. 1986) where the court determined that the trial court did not err
when it separated the legal malpractice claim from the underlying claim of an automobile
accident where the Defendant attorney had missed a deadline for filing the case. The trial
court in Johnson ordered that the underlying case be tried first in order to determine whether
the ex-client/plaintiff was entitled to recover, reasoning that the result of the underlying suit
would show whether the alleged negligence of the attorney was harmless or not. Id.
Finally, the standard of care is an issue distinct and separate from the issue of what
should have happened in the underlying proceeding. Ronald Mallen and Jeffrey Smith,
Treatise on Legal Malpractice, Chapter 33.26, Bifurcation of the issues, 4 Legal Malpractice
§ 33.26 (2006 ed).
I. ARGUMENT
As described above the:Barbackis must first prove causation in the underlying
medical malpractice case before they are allowed to proceed to proving the legal malpractice
case. The Barbackis have taken extensive discovery in this matter, much of which has been
4842-3364-0343.1 5|
directed at the firms finances and money that was misappropriated by a former associate
attorney. The posture of the Plaintiff throughout the course of this litigation has made it
clear that the Plaintiff will use the trial of this matter to attempt to disgrace Attorney
Williams and prejudice the jury against her through circumstantial evidence that her law firm
was having financial difficulties, that employees pay would sometimes be late, and that
Attorney Williams therefore must have settled the Barbacki’s case without their authority.
None of this has anything to do with the validity of the underlying medical malpractice case
and whether the Barbackis can prove that case, which they must do, before they reach their
legal malpractice claim. For example, the Plaintiff will seek to admit testimony regarding
former AWA Associate Ross Annenberg who stole and misappropriated client funds from
AWA and who has since been disbarred in three (3) states. This has absolutely nothing to
do with whether the Barbacki’s can prove causation in the medical malpractice matter, but
will severely prejudice Attorney Williams and carries the real risk of tainting the jury against
her should the legal negligence claim be heard first.
Attomey Williams expressly denies each and every one of the Plaintiff's allegations
against her and her firm. Attorney Williams maintains that she obtained a very good
settlement for Nellie Barbacki, that Karl Barbacki instructed her to accept the settlement, and
that after instructing her to accept the settlement and after the settlement was reported to the
Court, Karl Barbacki refused to sign the settlement agreement. The evidence and testimony
that the Plaintiff will attempt to introduce in the legal malpractice case will have the likely
effect of tainting the jury when it hears the medical malpractice case. Further, bifurcation in
this matter will avoid the jury from simultaneously hearing evidence about the underlying
4842-3364-0343.1 6claims and the current legal malpractice claims, and potentially confusing and commingling
the issues.
TI. CONCLUSION
For all the foregoing reasons, the Defendants Abigail Williams and Abigail Williams
& Associates respectfully request that this Honorable Court enter an order bifurcating the
trial in this matter requiring the Plaintiff to first try the underlying medical malpractice action
before the legal malpractice claim is presented to the Jury.
THE DEFENDANTS REQUEST A HEARING ON THIS MOTION.
A
Dated: May 13, 2019
ABIGAIL WILLIAMS, ERIN ATWATER
And ABIGAIL WILLIAMS & ASSOCIATES,
LLC.,
. Walton, Esq. BBO # 562174
Courtney A. Longo, Esq. BBO # 666466
LEWIS BRISBOIS BISGAARD & SMITH,
LLP
One International Place, 3 Floor
Boston, MA 02110
(p) 857-313-3950
ken.walton@lewisbrisbois.com
courtney.longo@lewisbrisbois.com
4842-3364-0343.1 7CERTIFICATE OF a
rv
I, Courtney A. Longo, hereby certify that on this 4 day of May, 2018, a copy of the
foregoing document was served by first class mail on:
Frederic N. Halstrom, Esq.
Ingrid A. Halstrom, Esq.
Halstrom Law Offices, P.C.
P.O. Box 121203 Lafayette Station
Boston, MA 02112-1203
a
Courtney AY Longo
4842-3364-0343.1 8
Preview
| | i i COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. , SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 16-0663D 1 THE ESTATE OF NELLIE BARBACKI, BY ITS PERSONAL REPRESENTATIVES KARL BARBACKI AND ROSALIND BREZINSKI Plaintiff, FILE JUN 17 2019 ames Ae Hult, CLERK Vv. ABIGAIL WILLIAMS, ERIN ATWATER, and ABIGAIL WILLIAMS & ASSOCIATES, LLC., Defendants. ee SS SSH SHH SH HD DEFENDANTS ABIGAIL WILLIAMS AND ABIGAIL WILLIAMS & ASSOCIATES, LLC’S MOTION TO BIFURCATE TRIAL AND INCORPORATED MEMORANDUM OF LAW Pursuant to Mass. R. Civ. P. 42(b), the Defendants Abigail Williams (“Attorney Williams”) and Abigail Williams & Associates, LLC., (“AWA”), hereby move this Honorable Court for an order bifurcating the trial of this matter. As fully explained below this is a legal malpractice action brought by the adult children of the late Nellie Barbacki (the “Barbackis”) based on Attorney Williams representation of Mrs. Barbacki in a medical malpractice action. At the trial of this matter the Barbackis must prove causation and damages in the medical malpractice action before the legal negligence claim is heard by the jury. If the Plaintiff is not successful in proving causation and damages in the medical malpractice matter, the jury does not reach the legal negligence claim. Not only will judicial time and resources be wasted should the Barbacki’s legal negligence claim be presented at trial first, but as explained herein Attorney Williams will undoubtedly sustain severe and 4842-3364-0343,1 \8Pe 1 pervasive prejudice and there is a danger the jury will be tainted from the presentation of sensationalized and irrelevant (circumstantial evidence. Moreover, extensive expert testimony will be required with respect to the Plaintiff’s alleged legal negligence damages. As a result an order of bifurcation is necessary in order to preserve judicial economy and expedition as well as to prevent severe prejudice to Attomey Williams. In further support of it’s request for bifurcation, awa states as follows: 'L BACKGROUND This is a legal malpractice action brought by the adult children of the deceased Nellie Barbacki (““Mrs. Barbacki”) who died at age ninety-five (95) . Attorney Williams represented Mrs. Barbacki in a medical Malpractice action against her primary care physician (“PCP”) Dr. William Mugg (“Dr. Mugg”). Based on representations of the Barbacki family and an initial review of the limited medical records in AWA’s possession, initially, Mrs. Barbacki’s case seemed strong. After review of additional medical records however, it became obvious that what AWA initially thought was a sufficiently clear medical malpractice case had significant hurdles with respect to causation due to Mrs. Barbacki’s undisclosed history of Transient Ischemic attacks (“TIA”), Mrs. Barbacki’s history of taking herself off anti- coagulants and the Barbacki’s reluctance to put Mrs. Barbacki on anti-coagulants due to her history of falling. Despite these significant hurdles, and appreciating that the medical malpractice case would not have passed the medical tribunal on causation, with the express approval of the Barbacki Family Attorney Williams was able to obtain an excellent settlement in the amount of Two-Hundred and Fifty Thousand Dollars ($250,000). Months after authorizing the settlement on behalf of their mother and after the settlement had been reported to'the Court, the Barbacki’s refused to sign the settlement 4842-3364-0343.1 2agreement, retained Attorney Halstrom, and reported to the Court that there was a “disagreement regarding disbursement of the settlement proceeds.” After multiple motions were heard by the underlying court, the Court ordered that the settlement agreement be executed. Now, the Plaintiffs allege they never authorized settlement of the lawsuit against Dr. Mugg, that Attorney Williams told the Plaintiffs they would net $156,000 from a $250,000 settlement, that Attorney Williams did not obtain an expert to opine on behalf of Nellie Barbacki, and did not determine whether there was a Medicare lien prior to settling the case. The Barbackis further allege that to this day, despite having received settlement proceeds, the underlying lawsuit against Dr. Mugg has not settled. I. LEGAL STANDARD Legal Malpractice actions are traditionally grounded in the tort of negligence. 7A C.LS. Attorney & Client §255 (1380) The party that files a legal malpractice action must prove duty, breach, and causation of damages. Pedro v. Gallone, 14 Mass. L. Rep. 723, 1 (2002). Of these elements causation is typically the most difficult to establish. To prove causation of damages, a clientplaintitt ‘must also prove the validity of the underlying claim. Campbell v. Magana, 184 Cal.App. 2d 751 (1960) (causation of a loss must be proven to hold an attorney liable in malpractice). If the original lawsuit was non-meritorious, the client is not injured when the original claim is lost. Maryland Casualty Co. v Price, 231 F. 397, 402 (4" Cir. 1916). Therefore if the original claim is not valid, the attorney’s negligence when loosing that claim does not cause injury to the client. Id, Without injury, no malpractice liability exists. Id. In addition to proving causation of damages in the legal malpractice case, the plaintiff/ex-client must show that a viable problem was initially placed in the hands of the attorney. Id., at 401-402. This double burden which requires proof of a 4842-3364-0343.1 3viable original claim to establish causation in the malpractice action, is commonly known as the “trial within a trial” requirement. Cogin, Attorney Negligence... A Suit Within A Suit, 60 W. Va. L. Rev. 225 (1958). The plaintiff must plead and prove every essential element to the malpractice action. Malloy v. Sullivan, 415 So. 2d 1059 (Als.), cert. denied, 459 U.S. 974 (1982). Therefore the plaintiff must prove the validity of the underlying claim because that validity will establish causation in the malpractice claim. Id., note 6. Bifurcation is entirely within the discretion of the trial judge. Dobos v. Driscoll, 404 Mass. 634, 645 (1989). It may be granted “when separate trials will be conducive to expedition and economy.” Mass.R.Civ.P. 42(b). The purpose of the rule permitting bifurcation is the “convenience of adjudication, the avoidance of prejudice and the interests of expedition and economy.” Roddy & McNulty Ins. Agency v. A.A. Proctor Co., Inc., 16 Mass. App. Ct. 525, 528 (1983). In one of the leading out-of-state cases on bifurcating medical malpractice and negligent credentialing claims, the decision to bifurcate was grounded in concerns about prejudice. Scheiiling v. Humphrey, 916 N.E.2d 1029, 1026 (Ohio, 2009). Specifically the concern in Schelling was that evidence admitted in the negligent credentialing case against the hospital regarding past problems with the defendant doctor’s conduct might prejudice the doctor in the medical malpractice action. Another case that supports bifurcation in legal malpractice actions is Lewandowski v. Continental Casualty Co., 88 Wis. 2d, 271 (1790). In Lewandowski, the Plaintiff client filed a malpractice claim against the attorney defendant who failed to file a personal injury action regarding an auto accident with the applicable statute of limitations period. The attorney denied that his negligence in missing the filing period had caused any damage to the plaintiff, who asserted that the attorney contributed to 4842-3364-0343.1 4the underlying negligence. The trial court tried the underlying case first and the jury determined that the plaintiff was 65% negligent in causing the underlying car accident. The plaintiff appealed the decision of the trial court and on review the Supreme Court held that under the facts of the case the trial court choose the appropriate methodology to resolve the issue in the case. The Court held that in the final analysis, whether the plaintiff/ex-client had been damaged by the defendant-attomey’s failure to timely file suit against the other driver could only be determined after a trial involving the question of whether the negligence of the other driver was greater than that of the Plaintiff. Id. At 289. Similar reasoning was used by the Alabama Supreme Court in Johnson v. Horne. 500 SO. 2d 1024, 1025 (Ala. 1986) where the court determined that the trial court did not err when it separated the legal malpractice claim from the underlying claim of an automobile accident where the Defendant attorney had missed a deadline for filing the case. The trial court in Johnson ordered that the underlying case be tried first in order to determine whether the ex-client/plaintiff was entitled to recover, reasoning that the result of the underlying suit would show whether the alleged negligence of the attorney was harmless or not. Id. Finally, the standard of care is an issue distinct and separate from the issue of what should have happened in the underlying proceeding. Ronald Mallen and Jeffrey Smith, Treatise on Legal Malpractice, Chapter 33.26, Bifurcation of the issues, 4 Legal Malpractice § 33.26 (2006 ed). I. ARGUMENT As described above the:Barbackis must first prove causation in the underlying medical malpractice case before they are allowed to proceed to proving the legal malpractice case. The Barbackis have taken extensive discovery in this matter, much of which has been 4842-3364-0343.1 5| directed at the firms finances and money that was misappropriated by a former associate attorney. The posture of the Plaintiff throughout the course of this litigation has made it clear that the Plaintiff will use the trial of this matter to attempt to disgrace Attorney Williams and prejudice the jury against her through circumstantial evidence that her law firm was having financial difficulties, that employees pay would sometimes be late, and that Attorney Williams therefore must have settled the Barbacki’s case without their authority. None of this has anything to do with the validity of the underlying medical malpractice case and whether the Barbackis can prove that case, which they must do, before they reach their legal malpractice claim. For example, the Plaintiff will seek to admit testimony regarding former AWA Associate Ross Annenberg who stole and misappropriated client funds from AWA and who has since been disbarred in three (3) states. This has absolutely nothing to do with whether the Barbacki’s can prove causation in the medical malpractice matter, but will severely prejudice Attorney Williams and carries the real risk of tainting the jury against her should the legal negligence claim be heard first. Attomey Williams expressly denies each and every one of the Plaintiff's allegations against her and her firm. Attorney Williams maintains that she obtained a very good settlement for Nellie Barbacki, that Karl Barbacki instructed her to accept the settlement, and that after instructing her to accept the settlement and after the settlement was reported to the Court, Karl Barbacki refused to sign the settlement agreement. The evidence and testimony that the Plaintiff will attempt to introduce in the legal malpractice case will have the likely effect of tainting the jury when it hears the medical malpractice case. Further, bifurcation in this matter will avoid the jury from simultaneously hearing evidence about the underlying 4842-3364-0343.1 6claims and the current legal malpractice claims, and potentially confusing and commingling the issues. TI. CONCLUSION For all the foregoing reasons, the Defendants Abigail Williams and Abigail Williams & Associates respectfully request that this Honorable Court enter an order bifurcating the trial in this matter requiring the Plaintiff to first try the underlying medical malpractice action before the legal malpractice claim is presented to the Jury. THE DEFENDANTS REQUEST A HEARING ON THIS MOTION. A Dated: May 13, 2019 ABIGAIL WILLIAMS, ERIN ATWATER And ABIGAIL WILLIAMS & ASSOCIATES, LLC., . Walton, Esq. BBO # 562174 Courtney A. Longo, Esq. BBO # 666466 LEWIS BRISBOIS BISGAARD & SMITH, LLP One International Place, 3 Floor Boston, MA 02110 (p) 857-313-3950 ken.walton@lewisbrisbois.com courtney.longo@lewisbrisbois.com 4842-3364-0343.1 7CERTIFICATE OF a rv I, Courtney A. Longo, hereby certify that on this 4 day of May, 2018, a copy of the foregoing document was served by first class mail on: Frederic N. Halstrom, Esq. Ingrid A. Halstrom, Esq. Halstrom Law Offices, P.C. P.O. Box 121203 Lafayette Station Boston, MA 02112-1203 a Courtney AY Longo 4842-3364-0343.1 8