Slip Opinion
N.D. Ind.2018Background
- Matthew Bissonnette (former Navy SEAL, author of No Easy Day) hired attorney Kevin Podlaski (Carson Boxberger) in Jan. 2012 to screen his manuscript for classified/SCI material and advise on prepublication-review obligations under NDAs he had signed.
- DoD sent a Johnson Letter Aug. 30, 2012 asserting Bissonnette breached NDAs by publishing without prepublication review; government threatened remedies and later obtained a Consent Decree requiring forfeiture of all royalties from No Easy Day (~$6.66M).
- Bissonnette retained subsequent counsel (Bob Luskin); Podlaski continued some communications and submitted FOIA requests; parties disputed whether Podlaski advised against prepublication review and whether his representation continued.
- Bissonnette sued Defendants for legal malpractice and breach of fiduciary duty; initial New York suit was dismissed for lack of personal jurisdiction; this suit followed in N.D. Ind.; Defendants moved for summary judgment and to exclude plaintiff’s expert (Mark Zaid).
- Court granted summary judgment on breach of fiduciary duty (claim abandoned by plaintiff), denied summary judgment as to malpractice (statute of limitations tolled by continuous representation and tolling agreement; Journey Account revived suit), and denied motion to exclude expert Zaid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute of limitations barred malpractice claim | Tolling applied: continuous representation, Tolling Agreement (Aug–Nov 2014), and Journey Account revived claim after NY dismissal | Statute expired; Tolling Agreement was voided by plaintiff’s 60 Minutes comments and Journey Account inapplicable due to bad faith filing in NY | Tolled: continuous representation to Nov 13, 2012 (75 days); Tolling Agreement tolled 67 days; Journey Account applies; claim timely — summary judgment denied on SOL grounds |
| Whether Podlaski’s conduct proximately caused forfeited royalties (~$6.66M) | But‑for causation: had manuscript been submitted, DOPSR would have allowed publication with minor edits and plaintiff would have retained some royalties; expert testimony supports this | Proof would require speculative "trial within a trial" about DOPSR outcome and risks implicating political‑question/nonjusticiability; insufficient evidence of what DoD would have done | Court: plaintiff need only show it was more likely than not some version would have been published; evidence (testimony, other publications, expert) creates triable issue; partial summary judgment on proximate cause denied |
| Whether resolving proximate‑cause requires answering a nonjusticiable political question | Plaintiff: resolving hypothetical review outcome does not require assessing national‑security judgments committed to executive branch | Defendants: deciding what DOPSR would have done would intrude on executive military/intelligence judgments and lacks judicially manageable standards | Court: political question doctrine does not bar inquiry here; predicting a likely outcome of review is justiciable and manageable; doctrine not implicated given government has not intervened |
| Admissibility of expert Mark Zaid under Rule 702/Daubert | Zaid qualified by experience with prepublication reviews and national‑security litigation; his methodology is reliable and will aid jury | Zaid lacks DoD/government reviewer credentials; his opinions on hypothetical DOPSR outcome are speculative and subjective | Court: Zaid sufficiently qualified and his methods sufficiently reliable and helpful; motion to exclude denied |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (expert‑testimony admissibility standard)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to all expert testimony)
- Snepp v. United States, 444 U.S. 507 (prepublication‑review agreements enforceable)
- Dep’t of Navy v. Egan, 484 U.S. 518 (deference to executive on classification decisions)
- Praxair, Inc. v. Hinshaw & Culbertson, 235 F.3d 1028 (malpractice plaintiff must show it was more likely than not a better outcome would have occurred)
- Transcraft, Inc. v. Galvin, Stalmack, Kirschner & Clark, 39 F.3d 812 (proximate cause in legal malpractice requires but‑for showing of lost favorable outcome)
- McKnight v. Dean, 270 F.3d 513 (plaintiff must show they would have obtained a better result but for counsel’s conduct)
- Baker v. Carr, 369 U.S. 186 (political question doctrine factors for nonjusticiability)