MacFarlane v. McKean ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1853



                                  JAMES MACFARLANE,



                                Plaintiff, Appellant,



                                          v.



                        EDGAR D. MCKEAN, III, ESQUIRE, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Shane Devine, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                               Selya, Boudin and Stahl,

                                   Circuit Judges.
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            James MacFarlane on brief pro se.
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            Jeffrey  H.  Karlin,  Jennifer  L.  Murphy,  and  Wadleigh, Starr,
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        Peters, Dunn & Chiesa on brief for appellee.
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                                   August 19, 1997

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                      Per  Curiam.   James  MacFarlane appeals  from  the
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            district court's grant  of the motion by  appellees, Edgar D.



            McKean, III, Esq.,  Julia M.  Nye, Esq. and  the law firm  of





















            McKean, Mattson and Latici, P.A., for judgment as a matter of



            law under Fed.  R. Civ. P. 50(a).  We agree with the district



            court  that appellant failed to introduce evidence from which



            a   reasonable  jury  could  find  causation  in  this  legal



            malpractice case.  We also find no abuse of discretion in the



            district  court's exclusion  of  one  of  appellant's  expert



            witnesses.  Finally, we decline appellant's request to vacate



            a sanction imposed jointly  on him and his attorney  pursuant



            to Fed. R. Civ. P. 11.



                 1. Rule 50(a) Dismissal
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                 We  have   carefully  reviewed  the   evidence  and  the



            inferences reasonably to be drawn therefrom in the light most



            favorable to MacFarlane.  See Gibson v. City  of Cranston, 37
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            F.3d 731,  735 (1st  Cir. 1994).   As the  governing standard



            requires,  we   have  not   considered  the   credibility  of



            witnesses, resolved conflicts in testimony,  or evaluated the



            weight of evidence.  See id.  Applying plenary  review to the
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            district court's judgment,  we conclude that the  evidence of



            causation  "is such that reasonable minds could not differ as



            to  the outcome." Rolon-Alvorado v. Municipality of San Juan,
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            1 F.3d 74, 77 (1st Cir. 1993).



                 No reasonable  jury could have  found that, but  for the



            breaches   of  duty   identified   by  MacFarlane's   expert,



            MacFarlane  should have obtained  a more favorable  result in



            his divorce trial.  Specifically, in the  absence of evidence







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            regarding  the contents  of the  mortgage application,  Beryl



            Rich's financial circumstances  or her own representation  of



            those circumstances,  the jury  would have  been required  to



            speculate as to the probable  result if the alleged errors at



            the trial and appellate level had not occurred.  "Speculation



            about  what  might have  occurred  fails  to  create  a  jury



            question  as to the  alleged damage sustained  by plaintiff."



            Tanner  v. Caplin  & Drysdale,  24  F.3d 874,  878 (6th  Cir.
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            1994).



                 B. Exclusion of Expert Witness
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                 "[T]he   court  has   broad   discretionary  powers   in



            determining whether or  not the proposed expert  is qualified



            by  'knowledge, skill,  experience,  training or  education.'



            Fed.  R. Evil.  702."  Bogosian  v.  Mercedes-Benz  of  North
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            America,  Inc., 104 F.3d 472, 476 (1st Cir. 1997).  The trial
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            court  did not  abuse that  discretion  in excluding  Roberta



            Harding, Esq., as an expert witness.



                 C. Award of Attorneys' Fees
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                 In accordance with this court's order of March 18, 1997,



            that part  of MacFarlane's  appeal that  seeks to  vacate the



            sanction award is dismissed.
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                 The   judgment  of     the   district  court,   granting



            defendants' motion  for  judgment  as  a matter  of  law,  is



            affirmed.
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