Johnson, Ga., No. S11G0557, 6/18/12
Key Holding: The plaintiff in a malpractice action may not present
expert testimony that she would have won the underlying lawsuit but for the
Significance: Makes clear that expert testimony is for proving
standard of care and breach of duty, not proximate cause.
By Joan C. Rogers
Expert testimony is not admissible in a malpractice action to prove that the
plaintiff would have won the underlying case if her lawyer had handled it
properly, the Georgia Supreme Court ruled June 18 (Leibel v. Johnson,
Ga., No. S11G0557, 6/18/12).
Expert testimony on proximate cause is inadmissible and irrelevant, Justice
Harold D. Melton explained, because the jury's role in the malpractice action is
to decide for itself whether the plaintiff would have won the underlying case
but for the attorney's negligence.
The function of expert witnesses is to address the elements of standard of
care and breach of duty rather than causation, the court said.
Georgia trial lawyer Steven K. Leibel represented Dr. Mary Johnson, a
pediatric neurosurgeon, in an unsuccessful gender and age discrimination lawsuit
against Scottish Rite Hospital.
Johnson thereafter sued Leibel for malpractice, claiming in part that he had
failed to introduce evidence that would have shown there were issues of fact for
a jury to decide in the discrimination action.
At trial in the malpractice case, Johnson presented a lawyer expert, Peter
Spanos, who testified that certain evidence “tipped the balance” of the
underlying discrimination in Johnson's favor. The jury ruled against Leibel and
awarded Johnson $2 million.
The trial court granted Leibel a new trial, but the court of appeals reversed
and upheld the jury's award, holding that the testimony of Johnson's expert was
admissible given the “legal complexities” associated with her discrimination
claims. The appellate court concluded that expert testimony is admissible to
prove proximate cause in those malpractice cases in which a nonlawyer could not
competently determine whether or not the negligence of the defendant lawyer
proximately caused the plaintiff's damages.
The supreme court reversed the appellate court, holding that the disputed
expert testimony should not have been admitted.
The plaintiff in a malpractice action must prove, the court noted, that the
lawyer failed to exercise ordinary care, skill, and diligence. Expert testimony
is necessary to establish the parameters of acceptable professional conduct
except for clear lapses such as missing a statute of limitation, it said.
In addition, the court continued, the plaintiff must show that she would have
prevailed in the underlying case but for the lawyer's negligence. On this point,
Melton quoted at length from a 1993 Wisconsin decision which said that proof of
proximate cause entails a “suit within a suit” to determine what the outcome of
the underlying action should have been if the defendant lawyer had handled it
Embracing the Wisconsin court's description of the jury's role on the issue
of proximate cause in the malpractice action, Melton said that “the second 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.”
The second jury does this, Melton wrote, “by independently evaluating the
evidence in the underlying case as it should have been presented to determine
whether it believes that the plaintiff has a winning case, not by deciding
whether some prior jury may or may not have believed that the plaintiff had a
Applying this view of the malpractice jury's role, the court held that the
court of appeals was incorrect in concluding that the jurors in Johnson's
malpractice case were tasked with deciding an issue that could not be resolved
by the average juror.
The malpractice jury was merely asked, Melton said, “to do exactly what any
jury in a discrimination lawsuit would do, which is, evaluate the evidence in
the case and decide the case on the merits.” That task is solely for the
malpractice jury and is not properly the subject of expert testimony, the court
In any event, Melton added, expert testimony on the behavior of the original
jury is irrelevant because the second jury is not being asked to decide what the
original jury would have done.
Michael J. Goldman, Christine L. Mast, and Joseph H. Wieseman of Hawkins
Parnell Thackston & Young, Atlanta, represented Leibel. Johnson's attorneys
were Richard L. Brittain and Wendell R. Bird of Bird, Loechl, Brittain &
McCants, Atlanta, and Jenny E. Jensen and Richard E. Harris of Jones, Jensen
& Harris, Norcross, Ga.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8vdvc5.
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