Monday, April 6, 2020

In the July/August 2015 issue of Los Angeles Lawyer Magazine, Judge Michael D. Marcus (ret.) observes the need for fact based evaluation of each malpractice case.

In the article, Marcus discusses several cases as examples of when expert testimony in not needed.  Expert testimony is needed when the testimony assists the trier of facts, but may not be necessary when the facts are overwhelming such as in a legal malpractice action where the attorney’s performance is contrary to established standards that a trier of fact may find professional negligence without expert testimony.

An expert opinion, whether or not it embraces an issue of law, is not admissible if it invades the province of the jury to decide a case.  An expert should not be allowed to testify what a reasonable trier of fact would have done in the underlying case.

The examples Marcus provides in the article appear to be unusual circumstances.  The cases are distinguishable and do not stand for the proposition that a malpractice claim can ordinarily be proven without an expert witness on a professional’s standard of care and the breach of duty.

Usually malpractice actions center on negligence.  Usually the professional, such as a doctor or an attorney, gets sued for failure to properly perform duties to a client.  Similar to a doctor, when an attorney takes on a case, the attorney contracts to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess.

The elements of a malpractice case based on negligence are:  (1) the duty to use such skill, prudence, and diligence as members of profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury, and (4) actual loss or damage resulting from the negligence.

Duty is a two part question. First, the plaintiff needs to be foreseeable.  Once it is determined the professional owes a duty to the plaintiff, the question is what standard of care the professional needs to follow.  Standard of care is where the expert witness comes in.  The expert testimony may establish the standard of care when the standard is not a matter of common knowledge such as when an attorney practices in a specialized field.

In medical and legal malpractice cases, it is common for plaintiffs and defendants in to call expert witnesses to either support or refute the existence of a duty owed by the professional to the clients and whether the facts at issue constitute a breach of duty.  

Read the Article Here