By Neil J Wertlieb
A recent federal court holding reminds us of the importance of engaging and properly utilizing expert witnesses in litigation, especially in malpractice actions against lawyers. The holding is reflected in a memorandum opinion filed on May 18, 2020, by the United States Court of Appeals for the Ninth Circuit, in the case of Chastain v. Poynter Law Group, 812 Fed. Appx. 443 (9th Cir. 2020) [not for publication; available at: https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/05/18/18-56592.pdf].
The plaintiffs in Chastain v. Poynter were part of a group of flight attendants who in the underlying action had engaged the defendant lawyers to represent them in a mass tort action against a manufacturer of uniforms. The plaintiffs alleged that the fabrics used in the uniforms they wore contained toxic chemicals, which caused them to suffer headaches, skin irritations and other afflictions. The judge in that case, however, found that, “[a]t the end of the day, the Plaintiffs’ case borders on speculation” because there was insufficient evidence presented at trial “that the low levels of chemicals found in the uniforms could have cause their symptoms.”
Following the dismissal of the underlying case, six of the flight attendants sued their former lawyers at the Poynter Law Group, alleging legal malpractice and breach of fiduciary duty. They claimed that their former lawyers mishandled the case by failing to properly utilize the medical expert who testified on causation – in essence, alleging that, if their former lawyers had arranged for more of the flight attendants to be examined by the expert, they would have addressed the judge’s concerns regarding insufficient evidence.
The United States District Court of the Central District of California granted summary judgement in favor of the Poynter Law Group, holding that “the absence of any experts in support of Plaintiffs’ theory of malpractice liability is dispositive.” The District Court essentially ruled that, because the plaintiffs failed to present expert witness testimony in their case against their former lawyers, their case must be dismissed.
In response to Poynter Law Group’s motion for summary judgment, the plaintiffs had argued that their former lawyers’ misconduct was so clear that they need not present expert testimony. The District Court, however, held that “[i]t is not within a lay person’s common knowledge whether an attorney breaches the relevant professional standard of care by making a strategic legal decision to pursue a general causation bench trial on a common theory of liability for all plaintiffs in a mass toxic tort case.” The District Court further held that, “without expert testimony, there is no evidence from which the trier of fact could make a finding of legal malpractice.”
On appeal, the Court of Appeals upheld dismissal of the legal malpractice claim on summary judgment because the plaintiffs “failed to provide necessary expert testimony in support of the claim.” Such testimony was necessary because “neither choosing a strategy to prove causation in a mass toxic tort action nor preparing an expert witness to testify on causation is within a jury’s common knowledge.” The plaintiffs “had the burden to supply expert testimony in support of their claim that Poynter breached the professional standard of care,” and “their failure to do so on summary judgment was dispositive.”
As noted above, the plaintiffs had alleged not just legal malpractice, but also breach of fiduciary duty. With respect to the breach of fiduciary duty claim, the Court of Appeals noted that such claims do not necessarily require expert testimony. However, the Court of Appeal found that the plaintiffs’ claim was not based on fiduciary duty, but rather “was actually for legal malpractice outside the common knowledge exception, which required expert testimony.” Because neither claim was supported by expert testimony, summary judgment was warranted.
The Court of Appeals’ holding is generally consistent with existing California and federal law. The memorandum opinion in Chastain v. Poynter cites with approval the following prior decisions: Vaxiion Therapeutics, Inc. v. Foley & Lardner LLP, 593 F. Supp. 2d 1153, 1165 (S.D. Cal. 2008) (“In a legal malpractice action, expert testimony is required to establish the prevailing standard of skill and learning in the locality and the propriety of particular conduct by the practitioner in particular circumstances, as such standard and skill is not a matter of general knowledge. … Expert evidence is not needed, however, when the type of conduct required by the particular circumstances is within the knowledge of laymen.”); Lipscomb v. Krause, 87 Cal. App. 3d 970, 975 (Cal. Ct. App. 1978) (“It is the current view in California that the legal malpractice suit is but one variety of negligence action and is governed by the general doctrines of pleading and proof prevailing in negligence actions. … These questions of fact in a case such as the one at bench require expert evidence.”); and Hutchinson v. United States, 838 F.2d 390, 392 n.1 (9th Cir. 1988) (“This standard of care [i.e., “the degree of knowledge and skill ordinarily possessed and exercised by members of their profession in similar circumstances”], which is the basic issue in malpractice actions, can be proven only by expert testimony.”).
It is ironic that, after the plaintiffs’ original case against the uniform manufacturer was dismissed due to their failure to properly utilize an expert, their case against their former lawyers was dismissed for similar reasons. If the flight attendants were to now sue their new attorneys for their failure to engage an expert in Chastain v. Poynter, they would be well advised to engage an expert!
Chastain v. Poynter is a timely reminder that certain types of malpractice and breach of fiduciary duty cases require expert testimony. If you are prosecuting or defending against such a case, be sure to timely engage a competent expert witness who can assist in your case by explaining and opining on complex issues to the trier of fact, especially with respect to standard of care and custom and practice. And, of course, in the unfortunate (and hopefully unlikely) situation where you are a defendant in such a case where the plaintiff has failed to timely engage an expert, keep the Chastain v. Poynter holding in mind!
Neil J Wertlieb is a founding member and co-chair of the California Lawyers Association Ethics Committee. Mr. Wertlieb is an experienced transactional lawyer, educator and ethicist, who provides expert witness services in disputes involving business transactions and corporate governance, and in cases involving attorney malpractice and attorney ethics. For additional information, please visit www.WertliebLaw.com. The views expressed herein are his own.