United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge.
the Court is a motion for summary judgment or, in the
alternative, for partial summary judgment and a supporting
memorandum, together with several exhibits, filed by
Defendants Kevin Podlaski (“Podlaski”), an
attorney, and Carson Boxberger, LLP (“Carson
Boxberger”), a law firm (together
“Defendants”), seeking judgment as a matter of
law on Plaintiff Matthew Bissonnette's
(“Bissonnette”) claims for legal malpractice and
breach of fiduciary duty under Indiana law. (DE 137-DE 139).
Bissonnette timely filed a response brief, also submitting
several exhibits (DE 140; DE 141; DE 150), and Defendants
filed a reply (DE 142). On February 8, 2018, the Court heard
oral argument on the motion. (DE 147).
before the Court is Defendants' motion seeking to
preclude Bissonnette's expert, Mark Zaid, Esq.
(“Zaid”), pursuant to Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), filed together with a
supporting brief and exhibits. (DE 76-DE 78). Bissonnette
timely filed a response, also submitting several exhibits (DE
104; DE 105; DE 109), and Defendants filed a reply (DE 121).
The motion is now fully briefed, including the filing of
sur-responses and sur-replies. (DE 124; DE 126; DE 128; DE
129; DE 131; DE 132).
motion for summary judgment and motion to preclude are ripe
for ruling. For the reasons set forth below, Defendants'
motion for summary judgment will be GRANTED in part and
DENIED in part, and their motion to preclude expert Zaid will
FACTUAL AND PROCEDURAL BACKGROUND
is a former Navy SEAL who authored the book, “No Easy
Day” (the “Book”), under the pseudonym Mark
Owen. (DE 14 ¶ 5; DE 140 at 31). The Book gives
Bissonnette's first-hand account of Operation Neptune
Spear, the raid that resulted in the death of Osama Bin
Laden. (DE 14 ¶ 11; DE 140 at 31).
2011, Bissonnette connected with Elyse Cheney
(“Cheney”), who was affiliated with Dutton, a
division of Penguin Group (USA), Inc., a publishing
corporation. (DE 138-1 at 27-29; DE 138-2 at 22; DE 138-3 at
26-27). Bissonnette, Cheney, and Benjamin Sevier
(“Sevier”), the editor in chief of Dutton, agreed
to produce a book that would detail Bissonnette's account
of Operation Neptune Spear. (DE 138-2 at 23; DE 138-3 at
26-27). The three enlisted the help of a ghost writer, Kevin
Maurer (“Maurer”). (DE 138-2 at 27-28).
began “looking for a lawyer . . . to help [Bissonnette]
follow whatever his legal obligations were in regards to the
publication [of the Book], ” and she was put in touch
with Podlaski as somebody who could do so. (DE 138-3 at 33;
see also DE 138-2 at 21; DE 138-13 at 6; DE 138-14
at 6). Podlaski was a partner at Carson Boxberger at the
time. (See, e.g., DE 14 ¶¶ 6-7; DE 150 at
4-8; DE 138-4 at 8). Podlaski demonstrated a familiarity with
the government's non-disclosure agreements
(“NDA”) regarding confidential material, and
represented that he had previously assisted a former Special
Forces member in publishing a book. (DE 138-1 at 40, 85; DE
138-3 at 7, 33; DE 138-3 at 54). Bissonnette believed that
Podlaski possessed familiarity with issues he would encounter
in writing the Book, and the two began talking on the phone
in November or December 2011. (DE 138-4 at 9; DE 138-13 at 8;
DE 138-14 at 8).
January 11, 2012, Bissonnette agreed to hire Podlaski. (DE
138-1 at 42). On January 17, 2012, Defendants and Bissonnette
executed an Engagement/Representation Letter
(“Engagement Letter”). (See DE 150 at
4-8). In the Engagement Letter, Podlaski agreed to provide
the following services:
Reviewing the publishable manuscript of [Bissonnette's]
career to ensure [his] compliance with [his] obligations
under any agreements [he] may have signed with the U.S.
Government not to release classified or classifiable
information or otherwise compromise the national security
interests of the United States, as those terms are used,
intended or understood in Standard Form 312, Confidential
Information Non-Disclosure Agreement ([“]CINA”),
or any other such agreements.
at 4). On February 10, 2012, Bissonnette signed an agreement
with Dutton to draft the Book. (DE 138-6).
submitted a manuscript of the Book to Podlaski on or around
June 21, 2012, so that Podlaski could screen it for
classified information. (DE 138-14 at 27). Podlaski and
Bissonnette had other communications in June 2012, but
Podlaski did not bill Bissonnette for these communications,
as it is was not his practice to bill or memorialize every
interaction with Bissonnette. (DE 138-4 at 11, 19). According
to Bissonnette, Podlaski advised him not to submit a
manuscript of the Book for prepublication review. (See,
e.g., DE 138-1 at 44, 48; DE 138-14 at 9; DE 150 at 32).
The Book was due to be released for sale on September 11,
2012. (DE 138-1 at 55).
not clear how, but at some point in mid or early August 2012,
United States Special Operations Command or SOCOM, and United
States Joint Special Operations Command, and perhaps other
entities within the military or intelligence community
obtained advance copies of the Book. (DE 138-1 at 14; DE
138-2 at 43). Beginning in late August, certain media outlets
and investigative journalists purported that the government
had taken the position that Bissonnette had violated NDAs in
publishing the Book and that the Book contained classified
information. (DE 138-1 at 55-56; DE 138-2 at 45; DE 138-3 at
45; DE 150 at 30-31). At some point, United States Joint
Special Operations Command and Maurer discussed the
government's concerns. (DE 138-2 at 43). On August 29,
2012, a source reported to Sevier that the Department of
Defense (the “DoD”) would not seek an injunction
against releasing the Book. (DE 138-2 at 46). Nevertheless,
Podlaski insisted that Bissonnette was not required to submit
a manuscript of the Book for prepublication review and that
the Book did not contain classified material. (DE 150 at
26-28, 29). Around that time, Dutton decided to release the
Book for sale a week early, on September 4, 2012. (DE 138-2
rumors and reports of the government's concerns were
realized on August 30, 2012, when Jeh Johnson, General
Counsel of the DoD, faxed Dutton a letter to the attention of
“Mr. Mark Owen” (the “Johnson
Letter”). (DE 150 at 17-25; DE 138-9). The Johnson
Letter explained that Bissonnette had signed two NDAs on
January 24, 2007, that remained in force after Bissonnette
had left active duty because Bissonnette signed a Sensitive
Compartmented Information Debriefing Memorandum on April 20,
2012 (the day Bissonnette left active duty), acknowledging
the NDAs. (DE 150 at 18). In these NDAs, Bissonnette had,
among other things:
(i) acknowledged [his] awareness that disclosure of
classified information constitutes a violation of federal
criminal law; (ii) agreed to submit [his] manuscript for
pre-publication security review, and to obtain permission
from the agency before publishing it, and (iii) assigned to
the U.S. Government “all royalties, remuneration, and
emoluments that have resulted, will result or may result from
a disclosure, publication or revelation of classified
information not consistent with the terms of [that
(DE 150 at 18). The DoD claimed that Bissonnette was in
“material breach and violation” of the NDAs by
publishing and releasing the Book for sale. (DE 150 at 18).
The letter warned that “[f]urther public
dissemination” of the Book would aggravate
Bissonnette's breach. (DE 150 at 18). The DoD was
considering “all remedies legally available” in
light of Bissonnette's alleged breach of the NDAs. (DE
150 at 18).
to the Johnson Letter were several documents including: a
personal attestation of Bissonnette's loyalty and duty to
maintain the secrecy of classified information; a standard
Classified Information Non-Disclosure Agreement
(“CINA”), signed by Bissonnette on January 24,
2007; and DD Form 1847-1, signed by Bissonnette on January
24, 2007, and acknowledged again on April 20, 2012. (DE 150
at 17-25; DE 151). Under DD Form 1847-1, Bissonnette agreed
that he would not publish or disclose in any form, a work
containing Special Compartment Information
(“SCI”) “or description of activities that
produce or relate to SCI or that [Bissonnette] ha[d] reason
to believe [were] derived from SCI . . .
.” (DE 150 at 22; DE 151 at 5). SCI is
defined in DD Form 1847-1 as “information or material
protected within Special Access Programs . . . .” (DE
150 at 22; DE 151 at 5).
next day, Bissonnette hired attorney Bob Luskin
(“Luskin”) to handle “the new issue that
seemed to have materialized” from the Johnson Letter.
(DE 138-1 at 12). Luskin took the lead in writing a response
to the Johnson Letter (DE 138-1 at 13; DE 138-11) with
Podlaski's input (DE 150 at 41-44). Luskin sent the
response to the DoD on August 31, 2012. (DE 138-11). In the
response, Luskin claimed that Bissonnette “sought legal
advice about his responsibilities before agreeing to publish
his book and scrupulously reviewed the work to ensure that it
did not disclose any material that would breach his
agreements or put his former comrades at risk.” (DE
testified at his deposition that on or around August 30,
2012, Luskin instructed him not to speak to Bissonnette
unless Luskin was present; giving Podlaski the sense that he
was fired. (DE 138-4 at 16). Luskin testified that he
instructed Podlaski early on not to speak to Bissonnette
about facts involving the events precipitating the Johnson
Letter in Luskin's absence, because Podlaski would likely
be a witness in any legal proceeding related to issues
identified in the Johnson Letter and Luskin did not want
Podlaski's or Bissonnette's testimony to be tainted.
(DE 138-12 at 37). Luskin testified that he had no issue with
Bissonnette and Podlaski discussing subjects other than
historical facts of the case in Luskin's absence. (DE
138-12 at 37-38). In any event, Podlaski communicated with
Bissonnette no less than eight times between August 31, 2012,
and May 9, 2013, without including Luskin. (See DE
138-4 at 55, 56, 59, 62, 63, 64-65). Podlaski billed
Bissonnette for some, but not all, of these interactions. (DE
138-23 at 24-31).
September 4, 2012, the Book was released for sale. (DE 138-2
at 39). Around that time, Luskin had a couple of meetings
with Johnson and the DoD. (DE 138-12 at 30). Bissonnette also
participated in some of these meetings with the DoD and other
government agencies. (DE 138-1 at 18-19, 61-63). By
Luskin's second meeting, on or around September 20, 2012,
he did not think that Bissonnette had a good argument that he
complied with his obligations under the NDAs. (DE 138-12 at
30-33). As such, Luskin thought that Bissonnette would likely
lose if the DoD sued him for breach of
contract. (DE 138-12 at 29-30).
Luskin, Bissonnette, and the government discussed what
material in the Book the government considered classified or
sensitive to national security, the government has prohibited
them from identifying with specificity any offending material
in the Book. (DE 138-1 at 18-19, 61-63; DE 138-12 at 47-48,
57). However, Luskin testified that the DoD was concerned
that the Book improperly disclosed specific matters
(e.g., tactics and procedures), but that the DoD did
not have a problem with “generally talking about the
mission.” (DE 138-12 at 57). Bissonnette also testified
that he heard from all the agencies present at the interviews
that had a stake in the information revealed in the Book, and
“there wasn't anything that [he] couldn't have
written around very easily or simply deleted . . . out of the
book.” (DE 138-1 at 72).
believed that Bissonnette was being unfairly targeted by the
government. (DE 138-6). He knew that other people in the
military and intelligence communities had published books
without being subjected to the same sort of treatment as
Bissonnette. (DE 138-1 at 66; DE 138-4 at 17, 61-62; DE
138-12 at 38). Thus, around September 18, 2012, Podlaski sent
requests to the government pursuant to the Freedom of
Information Act, 5 U.S.C. § 552, et seq.
(“FOIA”), for information on whether other books
written on topics that were sensitive to national security
similar to the Book had been subjected to similar scrutiny or
treatment. (DE 150 at 97-99; see also DE
138-4 at 61). On November 13, 2012, Podlaski submitted a
similar request to the Federal Bureau of Investigation
regarding 16 books. (DE 150 at 97-99; see also DE
138-4 at 61). These requests were Podlaski's idea. (DE
138-4 at 61-63).
the end of 2012, Podlaski had little to no communication with
Bissonnette, Luskin, or anyone at Dutton. (DE 138-3 at 44-45;
DE 138-4 at 17, 64). On May 8, 2013, an associate of
Cheney's reached out to Podlaski regarding the status of
the FOIA request. (DE 150 at 100). Podlaski responded by
emailing Bissonnette directly with an update on the FOIA
request and asking that Bissonnette “[c]ontact
[Podlaski] at [his] convenience to discuss the status of
[his] situation.” (DE 150 at 101).
September 2013, Cheney put Bissonnette in touch with attorney
Alan Enslen (“Enslen”) to advise Bissonnette in
drafting and publishing his second book, “No
Hero.” (DE 138-17 at 9). Enslen has a background in
Special Forces and advised Bissonnette to submit a manuscript
of “No Hero” to the Defense Office of
Prepublication and Security Review
(“DOPSR”). (DE 138-17 at 9, 15-17). Bissonnette
testified that Enslen was the first person who advised him
that Podlaski had given him bad advice. (DE 138-1 at 65).
August 26, 2014, Bissonnette and Defendants entered into the
Tolling Agreement. (DE 138-18; DE 150 at 105-10). Under the
Tolling Agreement, the parties agreed that the statute of
limitations for any claim Bissonnette could bring against
Defendants was tolled from August 26, 2014, until November
30, 2014, or 30 days after any party to the agreement
provided written notice of an intention to terminate the
agreement. (DE 150 at 105). The Tolling Agreement provided
Bissonnette shall make no effort to publicize [any claim he
may have against Defendants] or otherwise make or cause to be
made any disparaging remarks about [Defendants]. . . . Any
violation of this provision will void this agreement as if it
had not existed and the statute of limitations had not been
tolled on the date of such violation.
November 2, 2014, the television program 60 Minutes aired a
segment featuring interviews with Bissonnette and Luskin.
(See DE 138-19). During this segment, Bissonnette
and Luskin stated that Bissonnette did not submit a
manuscript of the Book to the government for prepublication
review because Bissonnette received bad legal advice from his
former attorney. (E.g., DE 138-19 at 5).
November 5, 2014, Bissonnette filed a complaint in the United
States District Court for the Southern District of New York
against Defendants, alleging that Defendants committed legal
malpractice in advising Bissonnette that he was not obligated
to submit a manuscript of the Book for prepublication review.
(DE 138-25). The complaint alleged that the court had
personal jurisdiction over Defendants pursuant to New
York's long arm statute because Defendants
“transacted business within the state, contracted to
provide legal services, and did provide legal services within
the state . . . .” (DE 138-25 at 4). Around this time,
Bissonnette's second book, “No Hero, ” was
released. (DE 138-19 at 7-8; DE 138-27 at 4).
October 7, 2015, District Judge Jesse Furman dismissed
Bissonnette's complaint for lack of personal jurisdiction
over Defendants. (DE 138-24). Judge Furman observed that
“aspects of the underlying transaction in this case
took place in New York or involved New York law.” (DE
138-24 at 14). For example, Bissonnette's contract with
Dutton, which Podlaski helped negotiate, was governed by New
York law, and Defendants were hired to provide legal advice
for Bissonnette's team, which was located in New York.
(DE 138-24 at 14-15). Nevertheless, Judge Furman found that
Defendants had not engaged in meaningful activity in New York
as to avail themselves to the court's jurisdiction. (DE
138-24 at 15).
August 19, 2016, the United States filed a civil complaint
against Bissonnette in the United States District Court for
the Eastern District of Virginia (DE 138-15) and entered into
a Consent Decree with Bissonnette. (DE 138-16). The complaint
alleged that Bissonnette violated a fiduciary duty he owed to
the United States and breached the NDAs by failing to submit
the Book for prepublication review. (DE 138-15). The
complaint does not allege with any specificity that the Book
contained classified information or SCI, much less identify
what information in the Book references SCI or classified
information. (DE 138-15).
the Consent Decree is unclear as to the nature or presence of
SCI or classified material in the Book. (See DE
138-16). Under the Consent Decree, Bissonnette agreed to
forfeit “any and all revenues, gains, profits,
royalties, and other financial advantages derived by
[Bissonnette], or derived by [him] in the future, from the
sale, serialization, republication rights in any form,
television or movie rights, and other redistribution for
profit of the work entitled No Easy Day.” (DE
138-16 at 3 (emphasis in original)). At the time of the
Consent Decree, proceeds from the Book totaled $6, 664,
882.21. (DE 138-16 at 4). The government released Bissonnette
from civil liability in connection with publishing the Book,
apart from any liability for future breaches or liability
arising under the Internal Revenue Code. (DE 138-16 at 5).
November 9, 2015, Bissonnette filed his complaint in this
case alleging that Podlaski committed legal malpractice in
advising him not to submit a manuscript of the Book for
prepublication review, and that Defendants breached a
fiduciary duty to Bissonnette by not producing certain
documents in Bissonnette's dealings with the government.
(DE 1; DE 14). Bissonnette alleges that Carson Boxberger is
liable for Podlaski's negligence because Podlaski was a
partner at Carson Boxberger during the relevant time period.
(DE 14 ¶ 8).
instant motion for summary judgment, Defendants argue that
they are entitled to judgment as a matter of law on all of
Bissonnette's claims because he filed his complaint in
this action after the statute of limitations had expired. In
the alternative, Defendants argue that they are entitled to
judgment as a matter of law on Bissonnette's claim that
they proximately caused $6, 664, 882.21 (the royalties
Bissonnette forfeited to the government) in damages.
Defendants also seek summary judgment as to Bissonnette's
claim for breach of fiduciary duty.
has not responded to Defendants' motion for summary
judgment on his breach of fiduciary duty claim. The law is
clear that failure to respond to issues raised in a summary
judgment motion constitutes waiver. See Fed. R. Civ.
P. 56(e); Gaerte v. Great Lakes Terminal & Transp.
Corp., No. 3:05 CV 1141, 2007 WL 2461650, at *2 (N.D.
Ind. Aug. 27, 2007) (“[I]ssues raised in [a] summary
judgment motion that non-moving party does not properly
respond to are deemed waived[.]” (citing E.E.O.C.
v. U.S. Bell, No. 2:03 CV 237, 2005 WL 1683979, at *15
(N.D. Ind. July 19, 2005))); see also Palmer v. Marion
Cty., 327 F.3d 588, 597-98 (7th Cir. 2003) (deeming a
claim abandoned when a party “failed to delineate his .
. . claim in his district court brief in opposition to
summary judgment ” (citations omitted)). Therefore, the
Court will grant Defendants' motion for summary judgment
as to Bissonnette's claim for breach of fiduciary duty.
The Court will address Defendants' statute of limitations
and proximate cause arguments in turn.
MOTION FOR SUMMARY JUDGMENT
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “when there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law.” Dietchweiler by Dietchweiler v.
Lucas, 827 F.3d 622, 627 (7th Cir. 2016). Courts
“view the record in the light most favorable to the
nonmoving party and draw all reasonable inferences in that
party's favor.” Zerante v. DeLuca, 555
F.3d 582, 584 (7th Cir. 2009) (citing Darst v. Interstate
Brands Corp., 512 F.3d 903, 907 (7th Cir. 20008)). The
Court is tasked only with deciding whether “there is
any material dispute of fact that requires a trial”
within the “evidence of record[.]” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)
(citations omitted). “[I]f the evidence is such that a
reasonable factfinder could return a verdict in favor of the
nonmoving party[, ]” then summary judgment may not be
granted. Payne v. Pauley, 337 F.3d 767, 770 (7th
Cir. 2003). However, “ a party opposing summary
judgment may not rest on the pleadings, but must
affirmatively demonstrate that there is a genuine issue of
material fact for trial.” Id. at 771 (citation
Statute of Limitations
Indiana law, an action for legal malpractice “must be
commenced within two (2) years after the cause of action
accrues.” Ind. Code. § 34-11-2-4(a). “[T]he
cause . . . accrues and the statute of limitations begins to
run when the plaintiff knew or, in the exercise of ordinary
diligence, could have discovered that an injury had been
sustained . . . .” Madlem v. Arko, 592 N.E.2d
686, 687 (Ind. 1992) (citation and internal quotation marks
omitted). The parties do not dispute that Bissonnette's
claims against Defendants accrued on August 30, 2012; the day
that he received the Johnson Letter. (DE 138-8). The parties
also do not dispute that Bissonnette filed the complaint in
this action on November 9, 2015. (DE 1; DE 14).
parties dispute whether the statute of limitations on
Bissonnette's claims was tolled, and if so for how long.
Bissonnette asserts that the statute of limitations was
tolled on three grounds: (1) Indiana's continuous
representation doctrine; (2) the parties' agreement
tolling the statute of limitations; and (3) Indiana's
Journey Account Statute.
The Continuous Representation Doctrine
the continuous representation doctrine, the statute of
limitations does not commence until the end of an
attorney's representation of a client in the same matter
in which the alleged malpractice occurred.” Biomet,
Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 765
(Ind.Ct.App. 2003); see Atl. Credit & Fin., Inc. v.
Robertson, No. 115-CV-00044-MJD-SEB, 2016 WL 81809, at
*2 (S.D. Ind. Jan. 7, 2016) (citation omitted);
Bambi's Roofing, Inc. v. Moriarty, 859 N.E.2d
347, 357 (Ind.Ct.App. 2006) (citation omitted). “To
determine whether the doctrine applies, Indiana courts focus
on ‘the matter which formed the basis of the alleged
professional malpractice.'” Morgan v.
Fennimore, 429 Fed.Appx. 606, 609 (7th Cir. 2011)
(quoting Bambi's Roofing, Inc., 859 N.E.2d at
356). The continuous representation doctrine does not toll
the statute of limitations if the professional and the client
have only “some general, ongoing professional
relationship”; their relationship must be related to
the “precise matter” that gave rise to the
client's claims against the professional. Id.
Defendants argue that after September 4, 2012 (the day the
Book was released for sale), Podlaski fulfilled his
obligations to Bissonnette under the Engagement Letter.
However, according to Podlaski, neither he nor Bissonnette
communicated to the other that their relationship in
connection with the Engagement Letter was over. (DE 138-4 at
17). In fact, Podlaski submitted the FOIA requests on
November 13, 2012, and May 9, 2013, to show that “there
were authors who had not submitted their books for review and
. . . there was precedence for not submitting
[Bissonnette's] book for review . . . .” (DE 138-4
at 17). Moreover, on October 3, 2012, while discussing
negotiations with the DoD, Podlaski advised Bissonnette to
“do nothing except apologize and maybe donate money to
charity of DoD's choice!” (DE 138-4 at 62-63). And
prior to that conversation, Podlaski had apparently sent
Bissonnette his thoughts on terms of a proposed settlement
with the DoD. (DE 138-4 at 63). Defendants' argument that
these actions were merely part of an ongoing professional
relationship between Podlaski and Bissonnette is not
supported by evidence in the record. The fact that Podlaski
did not bill or record any interaction with Bissonnette after
September 27, 2012, does not necessarily establish that
Podlaski ceased representing Bissonnette in the precise
matter giving rise to the alleged malpractice, because
Podlaski testified that it was not his practice to bill
Bissonnette for every interaction they had. Podlaski advised
Bissonnette and submitted the FOIA requests “in
connection with, ” Bambi's Roofing, Inc.,
859 N.E.2d at 357 (citation omitted), his obligation to limit
Bissonnette's liability as described in the Engagement
Letter through November 13, 2012.
Defendants argue that Bissonnette hiring Luskin was analogous
to hiring an attorney on appeal, “which ends any
continuous representation tolling.” (DE139 at 16
(citing Biomet, Inc., 791 N.E.2d at 766 n.2)).
However, the parties do not dispute that Podlaski assisted
Luskin in dealing with the government and that Podlaski
continued to bill Bissonnette for work performed under the
Engagement Letter, using the same client-matter number,
through September 27, 2012. (DE 138-23 at 2-28). And, again,
from September 28, 2012, through November 13, 2012, Podlaski
reviewed and advised Bissonnette on potential settlement
terms with the DoD (DE 138-4 at 62-63), and submitted a FOIA
request on November 13, 2012, in an attempt to establish that
Bissonnette had not violated any NDA with the government (DE
138-4 at 63-64). Even Podlaski testified that through May 8,
2013, he was “work[ing] for Mr. Owen and then was
working with Luskin.” (DE 138-4 at 64). Thus, a
reasonable jury could only conclude that Bissonnette's
hiring of Luskin did not cut off Podlaski's representing
Bissonnette “in the same matter in which the
alleged malpractice occurred” through November 13,
2012. See Biomet, Inc, 791 N.E.2d at 765.
Defendants argue that policy concerns weigh against applying
the continuous representation doctrine. In that regard, the
court in Biomet stated:
[T]he continuous representation rule avoids disruption of the
attorney-client relationship and gives attorneys the chance
to remedy mistakes before being sued. At the same time, a
client is not required to constantly second-guess the
attorney, and in some cases, be forced to obtain other legal
opinions regarding the attorney's handling of the case.
Furthermore, a client may fully be aware that his attorney
has erred to his detriment and still be willing to place his
confidence in the attorney's ability to correct the
791 N.E.2d at 766 (citations omitted); see Bambi's
Roofing, Inc., 859 N.E.2d at 357-58 (citations omitted).
Regarding the first policy consideration, as discussed
supra, a reasonable jury could only conclude that
Podlaski continued to represent Bissonnette in connection
with the Engagement Letter after Bissonnette hired Luskin.
to the second policy consideration, Defendants correctly
argue that once the Book was published Podlaski could not vet
it for classified or sensitive information. Unfortunately for
Defendants, that does not mean there was “nothing
[Podlaski] could have done in an ongoing professional
capacity” to mitigate or reduce the damage resulting
from Podlaski's alleged negligent advice to Bissonnette.
Bambi's Roofing, Inc., 859 N.E.2d at 359. To the
contrary, Podlaski appears to have advised Bissonnette on how
to manage the fallout from the Johnson Letter by counseling