Whether a state appellate court violates the Fourteenth Amendment's Due Process Clause and the constitutional right of access to courts by establishing heightened evidentiary standards for expert testimony on damages that effectively foreclose a plaintiff's ability to proceed to trial in a legal malpractice action

No question identified. : decision of the Appeals Court of Massachusetts rendered on March 28, 2023 (Exhibit 2). This Court has jurisdiction pursuant to 28 U.S.C. §1257. 2. This case involves important constitutional questions. Applicants brought a civil action against Respondents for attorney malpractice based upon the failure of their lawyers to competently develop evidence of damages in a medical malpractice action where their five-year-old child had his arm amputated. This resulted in a lower recovery than should have been obtained. Respondents moved for summary judgment arguing collateral estoppel, judicial estoppel, and the sufficiency of the expert testimony as to damages. The trial court denied Respondents’ motion for summary judgment finding that there were material issues of fact that required a trial. The Respondents sought immediate appellate review. On an interlocutory appeal, the Appeals Court of Massachusetts rendered a decision which affirmed the decision of the trial court as to the claims of collateral estoppel and judicial estoppel but reversed on the arguments as to evidence of damages with regard to the expert opinion. The Appeals Court of Massachusetts created a new precedent regarding the threshold standards for the admission of expert testimony and for the granting of summary judgment. The decision changed existing law regarding the necessity for expert testimony to prove damages and created an evidentiary hurdle which would foreclose the ability to prove a cause of action. The decision violated the due process rights of the Applicants and impeded their constitutional rights to access to the courts, and if allowed to stand will impede the rights of future litigants. Applicants raised constitutional issues created by the Massachusetts Court of Appeals in their application for further appellate review to the Supreme Judicial Court of Massachusetts arguing that the Supreme Judicial Court of Massachusetts “should grant further appellate review to scale back this escalation of the summary judgment standard, lest a procedural scalpel become a chainsaw and an impediment to the right to trial in civil cases.” Application for Further Appellate Review, p. 13. This Honorable Court has held “the denial of rights given by the Fourteenth Amendment need not be by legislation” but can be created by the unanticipated act of a State court. Saunders v. Shaw, 244 U.S. 317, 320 (1917). The Supreme Judicial Court of Massachusetts denied the application for further appellate review allowing the constitutional violations to stand. The important constitutional issues involved include but are not limited to: whether the new legal hurdle created by the Appeals Court of Massachusetts violated the Applicants’ due process rights; whether the decision of the Appeals Court in Massachusetts is in contravention of the precedent set forth in Saunders v. Shaw, 244 U.S. 317 (1917); whether the Applicants’ constitutional right to access to the courts was violated; whether the Appeals Court impermissibly changed the standard of review on a motion for summary judgment; and whether the Appeals Court impermissibly curtailed the state equivalent of the Daubert standard. 3. Applicants’ counsel, Alexandra C. Siskopoulos, was not the attorney of record in the Massachusetts courts and has been recently retained. As such, Applicants’ counsel needs additional time to review the entire record and fully brief the issues to be presented to this Honorable Court. Moreover, Applicants’ counsel has other substantial briefing obligations. 4. In light of the foregoing, Applicants’ counsel respectfully requests an extension of time to familiarize herself with the relevant materials and to address the complex issues raised by the instant petition. WHEREFORE, for the foregoing reasons, Applicants request that an extension of time of fifty-five (55) days, to and including November 21, 2023, be granted within which Applicants may file a petition for writ of certi