Expert Testimony Is Not Admissible to Prove Causation in Malpractice Suit

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.

Tipped Balance.

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.

Second Jury's Role.

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 properly.

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 winning case.”

Not Beyond Jury's Ken.

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 declared.

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

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.