The pivotal questions, around which numerous subsidiary issues easily cluster, are these: if a claim has been thrown out because an expert botched his assignment or because the expert was found unreliable or untrustworthy in key areas, does that open the expert to being sued for professional malpractice, negligence or breach of contract and, in turn, expose the lawyers who retained said expert to direct suit by frustrated clients or third-party claims by experts who are sued by losing litigants? Variations on these thematic questions can proliferate. What if a plaintiff were forced, because of a court's "gatekeeping" finding of expert unreliability pursuant to Daubert or Frye, to settle a sizeable claim for a fraction of what it was worth? Could the expert who flunked the reliability threshold be sued for the difference between the pittance paid in settlement and the more generous one which may have been obtained had the expert been allowed to enter the reliability "gate"? And, if so, could the lawyer who hired, prepared and presented the expert be implicated in claims based on the expert's failure to pass muster? Do experts who hold themselves out as professionally gifted or capable of giving opinions on subjects such as defect, design, causation, warnings and damages vouch for their own trustworthiness or reliability? Is there something akin to an expert's implied warranty of reliability? Is that an assumption lawyers who retain experts should reasonably make? Or must lawyers be more suspicious, more proactive and critical in ferreting out below-par expertise? If so, how can that duty practicably be discharged when lawyers are not versed in the scientific or technical discipline of the expert? Will lawyers get sucked into litigation regardless? Suit Permitted Perhaps now the reader can understand this writer's initial unease in presenting this topic. Clearly, there will be gunslingers who may happily undertake such litigation. The interface of lawyers with their experts is a vast, gray, polycentric area influenced by hard professional realities but also affected by a large measure of intangibles such as talent, creativity, communication skills, gamesmanship, camaraderie, trust and a host of others. When an expert flubs, do lawyers share the blame? Do they vouch for the reliability of their experts? Should they? So many lawyers retain experts on scant referrals or via referral services or agencies -- a litigation sub-industry in itself. Are such referral agencies themselves potential targets of suit when an expert egregiously falls below the mark? We raised some of these issues over five years ago in our column, "Suing for Unreliable Expertise,"[1] which reported on a Pennsylvania Supreme Court decision called LLMD of Michigan, Inc. v. Jackson-Cross Co.[2] There, during a commercial litigation, an attorney retained the chairman of a consulting company as an expert on the issue of the plaintiff's lost profits. The expert provided a calculation for trial estimating lost profits to be $6 million. The calculation was prepared by one of the expert's employees using a computerized accounting spreadsheet program. The expert offered his opinion at trial but the situation unraveled during cross-examination. Defense counsel established that the calculation contained a mathematical error that completely undermined the basis for the opinion on damages. The expert conceded the error. Worse, because he had not performed the calculations himself, he was unable to explain the mathematical error or to recalculate the lost profits by correcting the error while on the stand. Defense counsel moved to strike the testimony and the trial judge did so, instructing the jury to completely disregard the expert's testimony. The next day, critically hamstrung, the plaintiff settled for a fraction of even the corrected, lower computation of lost profits. A lawsuit against the expert and his consulting firm followed. The key question bothering the Pennsylvania courts was whether the "witness immunity" doctrine, immunizing parties and witnesses from subsequent damages liability for their testimony in judicial proceedings, protected the expert from suit. Although the "witness immunity" rule often has been raised in subsequent defamation suits, the doctrine is not limited to defamation actions. Immunity has been justified by courts to avoid litigants and witnesses from imposing two forms of self-censorship: (1) the witness might be reluctant to come forward and testify; and (2) once on the stand, the testimony might be distorted by fear of subsequent liability, resulting in the shading of testimony to favor a party or to magnify uncertainties thereby distorting candid, objective evidence. The Pennsylvania Supreme Court, however, allowed the lawsuit against the expert for professional negligence in forming the opinion, saying that the judicial process "will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession."[3] The Pennsylvania court cautioned that mere challenge of the expert by another expert's competing opinion that prevails is not grounds for liability. California Case Now comes a new decision out of a California appellate court, Forensis Group, Inc. v. Frantz, Townsend & Foldenauer,[4] involving expert services rendered in a product liability setting, and reflecting some of the pivotal issues posed at the outset of this article. In a nutshell, the facts are as follows. Mr. Hernandez was killed when struck by a forklift in a workplace setting. The family retained the Frantz, Townsend & Foldenauer law firm to pursue a products liability claim against the manufacturer. The suit alleged defects in the backup alarm and side mirrors of the forklift. The family's law firm consulted Forensis, an expert clearinghouse, which referred a mechanical engineer named Robbins to be the expert. Robbins inspected the vehicle, reviewed documents provided to him by the law firm, including publications of the Society of Automotive Engineers (SAE) regarding safety alarms on such vehicles. At his deposition, however, he did not identify any applicable safety standards with respect to the manufacturer's installation of a backup alarm. The manufacturer moved for summary judgment contending the forklift was not defective and met all applicable safety standards. Robbins prepared a declaration in opposition to the motion stating that the vehicle failed the criteria of a particular SAE safety standard. The trial judge granted defendant's motion noting that Robbins was now contradicting his earlier deposition testimony and also failed to adequately explain why he now was claiming a violation of SAE safety standards when he did not use that standard in performing his tests on the vehicle and when giving deposition testimony. The Hernandez family settled their remaining claim against the rental company. They did not appeal the summary judgment ruling. The original law firm then referred the family to a lawyer named Macaluso who was known to the firm from prior dealings. The new lawyer sued Forensis, the expert referral firm, and Robbins on many professional negligence theories, alleging that Robbins failed to exercise the care and skill that a member of the forensic engineering profession should have. This negligence allegedly caused the Hernandez family to forfeit their $1.5 million claim. They also alleged that Robbins' expertise had been misrepresented. The sued experts then filed separate cross-complaints against the Hernandez family's original lawyers, the Frantz, Townsend firm, claiming that the law firm's professional activities should subject it to a share of the loss attributable to unsuccessful opposition to the summary judgment motion in the underlying action. They argued the law firm waited too late in the action to consult Forensis to obtain a suitable expert and/or had failed to provide Robbins with sufficient information to allow him to provide adequate services. The law firm allegedly failed to provide the experts with relevant information before and after the hiring; failed to rehabilitate Robbins at his deposition regarding use of the SAE industry standards; and failed to provide the trial court with accurate products liability law about admissibility of industry standards evidence. The sued experts retained a legal expert who opined that the law firm may have breached its duty of care to its client and was therefore responsible for losing the summary judgment motion. The law firm, in turn, retained legal and engineering experts. Robbins and Forensis settled with the Hernandez plaintiffs. The trial court invited the law firm to file a summary judgment motion to resolve the experts' cross-complaints. The reason was a number of public policy concerns. One was the potential for conflict stemming from the attorney-client relationship and the confidentiality of communications that would be violated if the law firm had to defend against the cross-complaints. A second concern was that there was no duty of care flowing from the attorneys to the experts. Instead, each owed a duty of care to the client. The trial court ruled that the experts' cross-complaints should be barred. Suit Permitted The California Court of Appeals disagreed however. Following an elaborate consideration of the public policy issues and analogous malpractice scenarios, the court examined the nature of the relationship between the experts and the law firm. Quoting from a prior case, the court observed that, "In today's technologically driven litigation [many kinds of experts] frequently are hired to assist a party in preparing and presenting a legal case. 'Often they play as great a role in the organization and shaping and evaluation of their client's case, as do the lawyers. Those who provide these services are selected for their skill and ability and are compensated accordingly just as any other professional.' As experts they are subject to liability if they perform services negligently . . . . Like other defendants in negligence lawsuits, litigation support professionals are only responsible for the losses they cause."[5] Normally, such lawsuits, similar to legal malpractice, will involve a "trial within a trial." By seeking equitable indemnity against the law firm, the experts are contending that law firm personnel were joint tortfeasors with them in representing the Hernandez plaintiffs. What is the true relationship of a law firm and retained experts? The court stated [citing a treatise] that the duty of an attorney who hires an expert witness is to "make sure that the expert, particularly the inexperienced expert, understands the governing legal principles and elements that each party to the litigation must prove in order to prevail." Further, an expert "is not a mechanical toy that can simply be wound up and turned loose. Regardless of the expert's skill, it is the lawyer's responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To accomplish this task, the lawyer needs to understand the substantive details of the expert's testimony and field of expertise."[6] Examining other precedents, including attorneys who are concurrent counsel, the appellate court concluded that experts ordinarily should be permitted to sue the law firm for equitable indemnification of professional malpractice damages for which they have become liable. The policy issues involving conflict of interest and attorney-client communications were not insurmountable and did not outweigh yet another public policy: "that of protecting the professional interests of all expert witnesses generally to participate in litigation, and the interests of the judicial system in obtaining the assistance of such expertise. These interests are significant enough to warrant an expert's being accorded a right to recourse against those responsible, if any professional negligence should occur on the part of counsel who retained those expert witnesses, with respect to presenting their evidence and defining the proper scope of the experts' duties and obligations within the litigation setting, if any harm to the client should occur. Such a right to recourse for expert witnesses could include equitable indemnity claims."[7] The California and Pennsylvania decisions expose a bitter reality. Sometimes, professional services attending litigation fall below the mark. That causes some lawsuits to be filed. Lawyers, of course, have known that for quite a while. And, lest they forget, their malpractice carriers' demands for ever higher deductibles, greater premiums and limited caps on available coverage present stark reminders that legal malpractice is a sleeping tiger capable of being aroused, pouncing and biting hard. Experts and other litigation support professionals are likewise potential targets for suit when they are negligent and cause loss. What perhaps has not fully been appreciated heretofore is that an expert's flub may implicate the lawyer's own exposure. Given the purported "duties" a lawyer may have regarding the retention, preparation and presentation of experts, as the Forensis Group decision posits, lawyers may even become the choice "deep pocket" targets when experts who botch their assignments have limited resources. Lethal Brew A number of volatile ingredients have added up to create a potentially lethal and explosive brew. The past decade has seen a growth in litigation requiring experts of all kinds. A vast litigation industry has created numerous sub-industries with many expert-referral firms, litigation-support specialists, computer and electronic services and attorney specialists of all kinds. The courts have become more sensitive to "gatekeeping" or screening experts for reliability under Frye or Daubert standards and increasingly have barred expert opinion testimony causing many suits to be thrown out. Legal malpractice claims generally have increased. Frustrated, badly-injured, losing litigants, aware from media publicity that some lawsuits can fetch astronomical recoveries, even double-digit million dollar awards, are motivated to look around for other deep pockets, either to make up for their losses or to force partial settlements. Law firms can be those targets. Our "unhappy" topic, made real by emerging decisions, is a wake-up call. Precaution, caution, professional responsibility and reasonable conduct are indispensable. Michael Hoenig is a member of Herzfeld & Rubin Endnotes:________________________________________________________________________________________________________ 1. Hoenig, "Suing for Unreliable Expertise," New York Law Journal, Feb. 14, 2000, p. 3. 2. 740 A.2d 186 (Pa. Sup. Ct. 1999). 3. Id. at 191. 4. 130 Cal. App. 4th 14, 2005 Cal. App. LEXIS 929 (4th Dist., June 9, 2005). 5. Forensis Group, Inc., 2005 Cal. App. LEXIS 929, at *34 (quoting from Mattco Forge, Inc. v. Arthur Young & Co., 52 Cal. App. 4th 820, 60 Cal. Rptr. 2d 780 (Cal. App. 1997)). 6. Forensis Group, Inc., 2005 Cal. App. LEXIS 929, at *35-*36. 7. Id. LEXIS at *40. |
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