Boston PI firm feels wrath of disappointed client

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As lawyers well know, unhappy clients can be like scorned lovers: unforgiving.

Such is the case for med-mal firm Crowe & Mulvey and its former client Brian Evans.

Evans had retained the Boston firm to pursue malpractice claims against various medical providers who had treated his mother in 2012. The woman died from an alleged cardiac event at Holy Family Hospital in Methuen, several days after undergoing elective knee replacement surgery.

Crowe & Mulvey attorneys Florence A. Carey and David W. Suchecki represented Evans in his wrongful death case, which alleged negligence in the pre- and post-operative care received by his mother.

After a trial that lasted several weeks, an Essex Superior Court jury returned a defense verdict on Sept. 17, 2018.

Unhappy with the result, in August 2021 Evans sued Carey, Suchecki and Crowe & Mulvey in Suffolk Superior Court for legal malpractice.

Evans complains that his former lawyers abruptly dropped out of the case immediately following the verdict, leaving him to file his notice of appeal pro se. He says it later took his new attorney, Richard C. Chambers Jr. of Lynnfield, considerable time and effort to salvage his appeal after the defendants in the medical malpractice case urged dismissal on the basis of technical defects with his pro se filing.

Evans further asserts that while browsing the internet more than a year after the end of his med-mal case, he came across information that the wife of the trial judge, Salim R. Tabit, was a doctor who had some form of professional relationship with Holy Family Medical Center.

In his legal malpractice complaint, Evans alleges that the Crowe & Mulvey defendants “failed to investigate and/or inform Evans that the trial judge’s wife being associated with one of the defendants in the trial gave the appearance of impropriety and was, on its face, improper and should have been the subject of further inquiry prior to trial.”

Aside from those claims, the plaintiff asserts that his former lawyers failed to depose or call certain witnesses and investigate certain other matters that would have been helpful to the wrongful death case.

On Nov. 22, the Appeals Court ruled on the plaintiff’s appeal of the medical malpractice verdict. The decision appears to present obstacles to Evans recovering on his legal malpractice claims.

The decision in Evans v. Martin was issued as a summary disposition under Appellate Rule 23.0, the panel’s polite way of telling readers, “There’s nothing to see here.”

More substantively, the panel seems to absolve trial counsel of causing harm to the plaintiff with respect to the various issues raised on appeal in the med-mal case.

For example, on appeal the plaintiff argued that the trial judge should have dismissed a juror who came forward during trial and informed the court that he had suffered a heart attack and had preconceived notions about how heart attacks can occur unexpectedly.

While the panel concluded that Evans’ trial lawyers, by failing to raise a timely objection at the lower court, had waived that argument for purposes of the appeal subsequently filed by the plaintiff pro se, the panel further concluded the plaintiff had not suffered any prejudice as a result.

The trial judge “spoke to [the juror] at length and in front of counsel to evaluate his ability to set aside his experience and remain neutral,” the Appeals Court wrote. “After determining that juror 27 was capable of doing so, the judge instructed him accordingly. Juror 27 agreed to follow these instructions. Given the judge’s thorough investigation and instructions, we see no error or abuse of discretion.”

With respect to the trial judge’s alleged conflict of interest, the panel noted that that issue was waived because the plaintiff failed to file timely appeals from the denials of his post-trial motions for recusal.

“Not only is plaintiff’s claim presumptively untimely, but he has also failed to make a showing of good cause for why he could not have discovered the information at issue prior to trial,” the panel said.

Chambers says the post-trial conduct of the Crowe & Mulvey attorneys will be a focus of his client’s legal malpractice case.

“I understand that a lot of lawyers will have it [spelled out] in their retainer agreement that they are not retained for the appeal,” Chambers says. “But at least a common-sense practice to protect your client, and normally what most [lawyers] do after a very adverse verdict, is to at least file a notice of appeal and go over with the client their appellate rights. It’s [Evans’] contention that they failed to do so.”

Chambers also represents Evans in his appeal from the medical malpractice verdict.

“There was a good-faith appeal with respect to the juror,” Chambers says. “You break it down to how a reasonable person would perceive it. You would think a plaintiff’s malpractice attorney wouldn’t [have wanted that juror] and would have at least objected.”

But Edwards S. Cheng, a professional liability attorney at Sherin & Lodgen in Boston, sees rough sailing ahead for Evans in his case against Crowe & Mulvey.

“When I do a legal malpractice analysis, one of my first questions is the ‘So what?’ question,” Cheng says. “You can always go back into the record of virtually any case and question whether a lawyer should or should not have done this or that. But the question is, would that have led to a different outcome?”

According to Cheng, the Appeals Court’s decision in the medical malpractice case shows that the answer to the question regarding the Crowe & Mulvey attorneys’ performance is largely “no.”

“Even if someone were to second-guess the [Crowe & Mulvey attorneys] for not making a formal objection, they may have just made the judgment at the time that the judge had made a sufficient query as to the propriety of retaining that juror, and decided that trying to argue that issue further would be futile,” Cheng says.

The defendants in the legal malpractice case are represented by Quincy attorney Lewis C. Eisenberg, who did not respond to a request for comment.