Plaintiffs unhappy with their settlement in a silicosis case can’t sue their lawyers for malpractice, a Philadelphia judge has ruled.

In explaining to the Pennsylvania Superior Court why it should uphold his ruling in Palmer v. Kenney, Philadelphia Court of Common Pleas Judge Allan L. Tereshko said the defendant lawyers’ failure to advise the plaintiffs to file a survival action claim was not actionable.

“Whether or not a potential survival action would have resulted in a recovery greater than the $272,922 settlement amount is mere speculation, and therefore the failure to advise plaintiff to pursue a survival action is not actionable legal malpractice,” Tereshko said.

The judge said plaintiff Dorothy Palmer, as executrix to her husband George Palmer’s estate, could not point to a procedural or substantive error that definitively resulted in harm to her position.

In August 2002, attorneys Brian P. Kenney and Brian P. McCafferty, along with their law firm Kenney & McCafferty, as well as Provost Umphrey Law Firm, filed a silicosis lawsuit in Philadelphia on behalf of Dorothy and George Palmer. The husband had been diagnosed with silicosis, a lung disease caused by inhaling crystalline silica fibers, earlier in 2002.

In January 2008, George Palmer was diagnosed with lung cancer and died in August of that year. Dorothy Palmer gave the lawyers her husband’s death certificate, which listed his immediate cause of death as “‘non-small cell lung cancer’” and also listed other significant conditions related to his death as “‘emphysema, interstitial lung disease.’”

In September 2009, the lawyers filed a suggestion of death in the silicosis lawsuit and Dorothy Palmer subsequently settled that suit for nearly $273,000. In January 2012, Palmer filed her malpractice lawsuit against the lawyers. She alleged that because the lawyers failed to file a survival action on the Palmer family’s behalf as well as include such an action as part of the settlement, she sustained “great economic loss.”

Tereshko granted the preliminary objections of the lawyers and their firms and dismissed Palmer’s suit on the basis that Palmer was precluded from pursuing a legal malpractice claim against the defendants after settling the underlying suit.

Read more about it in Friday’s Legal.