James J. Polidoro v. The Law Firm of Jonathan D'Agostino, P.C

Background

James Polidoro brought a legal-malpractice action against The Law Firm of Jonathan D’Agostino, P.C. based on the firm’s representation of him in a personal-injury action arising from a 2007 motor-vehicle accident. He alleged that the firm failed, among other things, to develop appropriate expert testimony connecting his claimed injuries to that accident. The contract and fraud claims in this case had previously been dismissed, leaving a negligence-based legal-malpractice claim.

The defendant filed a motion for summary judgment. The defendant argued principally that Polidoro’s alleged losses resulted from his failure to appear for trial in the underlying personal-injury action, rather than from the firm’s alleged negligence. In opposing summary judgment, Polidoro focused on the firm’s conduct before it withdrew as his counsel, including its alleged failure to obtain expert evidence concerning causation. The defendant addressed those arguments in its reply and submitted evidence concerning the opinions of experts, Polidoro’s prior accident, and his allegations about injuries and causation.

Request to File Additional Papers

Polidoro asked for permission to submit a sur-reply, meaning an additional response to the defendant’s reply. He asserted that he needed to respond to the defendant’s treatment of Dr. Shams’s deposition testimony, his knowledge of his 2003 accident and a prior lawsuit, his own deposition testimony, and other issues.

Judge Moses explained that courts generally allow a sur-reply when a reply brief raises arguments or evidence for the first time. A further response is ordinarily unnecessary when the reply merely answers points raised in the opposition. The court found that the defendant’s reply largely responded to matters Polidoro had raised in his opposition. In particular, Polidoro had relied on Dr. Shams’s report, so the defendant’s submission of a different expert opinion and Dr. Shams’s deposition testimony was a response to Polidoro’s arguments rather than a new issue requiring full additional briefing.

Ruling

The court granted Polidoro’s letter-motion to the extent that he may submit the complete deposition transcripts, including exhibits, of Dr. Shams in this action and Polidoro in the earlier personal-injury action. The court otherwise denied the letter-motion. Any permitted transcripts had to be submitted by June 30, 2022, without further argument, and the court stated that it would not accept additional responses to that submission.

This order decided only the request to add material to the summary-judgment record. It did not state a ruling on the defendant’s underlying summary-judgment motion.