The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
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 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.”
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 http://op.bna.com/mopc.nsf/r?Open=kswn-8vdvc5.
Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)