Plaintiff's Experts in Legal Mal Cases - Courts Continue to Limit Testimony

By: Bill Buechner and Dana Maine

Expert testimony almost always is necessary to prevail on a legal malpractice claim. However, plaintiffs pursuing a legal malpractice claim sometimes overreach and attempt to offer expert testimony on subjects about which expert testimony is inappropriate.

In a legal malpractice case, the plaintiff must establish three elements: (1) he employed the attorney; (2) the attorney failed to exercise ordinary care, skill and diligence; and (3) the attorney's negligence was the proximate cause of damage to the plaintiff. Quartermann v. Collum, 311 Ga. App. 800, 804-05, 717 S.E.2d 267 (2011). In order to establish the last element, "[t]he plaintiff must show that, but for the attorney's negligence in the underlying case, the plaintiff would have prevailed." Blackwell v. Potts, 266 Ga. App. 702, 705(1), 598 S.E..2d 1 (2004).

Expert testimony as to whether certain professional standards of conduct were violated is necessary in most cases. The use of expert testimony to establish proximate cause, however, is often much more problematic. This is, of course, a frequent ploy of plaintiffs. 

In Leibel v. Johnson, 291 Ga. 180, 728 S.E.2d 554 (2012), for example, the plaintiff, a pediatric neurosurgeon, asserted age and sex discrimination claims against a hospital. The hospital obtained summary judgment on the employment discrimination claims, and the plaintiff's appeal was dismissed as untimely.  The plaintiff then brought a legal malpractice claim against the attorney who handled her employment case.  The plaintiff's expert testified that the plaintiff's attorney failed to depose or obtain affidavits from certain witnesses whose testimony established evidence of pretext and could have been utilized to oppose the hospital's motion for summary judgment. When asked what the jury in the employment case would have done if this additional evidence had been presented, the plaintiff's expert testified that there was "powerful evidence of pretext," that the plaintiff established a prima facie case of age and sex discrimination, and that the evidence of pretext "tipped the balance" in the plaintiff's favor. The jury returned a verdict of $2 million in favor of the plaintiff.

The Court of Appeals upheld the admissibility of this expert testimony. The Georgia Supreme Court, however, reversed the decision of the Court of Appeals. Relying on a Wisconsin appellate decision, the Court concluded that, under the "case-within-a-case" framework as applied in legal malpractice cases, the jury in the malpractice case "is not deciding what the first jury would have done in the underlying case had the attorney not been negligent, but only what a reasonable jury would have done had the underlying case been tried without the attorney negligence alleged by the plaintiff." Id. at 182 (emphasis in original). The Court then explained that the malpractice jury must independently evaluate the evidence in the underlying case as it should have been presented and determine whether the plaintiff had a winning case. The Court then concluded that the expert testimony as to the merits of the underlying discrimination case was inappropriate and inadmissible because the jury did not need expert testimony to assist in deciding the merits of the underlying discrimination case. Id. at 182-83.

More recently, the Court of Appeals, applying Leibel, affirmed the trial court's ruling in a legal malpractice case excluding testimony proffered by the plaintiff's expert that the plaintiff would have received a $500,000 verdict in a wrongful death action if the attorney had named the correct defendant in a timely manner. Tidwell v. Hinton & Powell, --- 322 Ga. App. 486, 744 S.E. 2d 87 (2013).

In light of Leibel and Tidwell, a plaintiff's attempt to utilize expert testimony to establish proximate cause in a legal malpractice case should be carefully scrutinized and opposed in most instances. Leibel certainly will not foreclose expert testimony to the extent that it would have been needed to establish liability or damages for the underlying claim. However, expert testimony as to ultimate issues of fact in a legal malpractice case, such as whether the plaintiff would have prevailed in the underlying case or that the plaintiff would have recovered a certain amount in the underlying case, likely are precluded by Leibel.


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