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In John P. Blumberg’s (www.blumberglaw.com) article “Legal-malpractice experts: Choosing, Using or Losing” in the October 2016 issue of The Advocate Magazine, he points out how crucial the legal malpractice expert witness is in reviewing the underlying case.

For example, in a circumstance where an attorney recommended a settlement to his client that may have been inadequate. Before the expert can testify about whether it was negligent to recommend such a settlement, the legal malpractice expert must be familiar with the facts of the underlying case.

In doing so, the author puts for such questions as: Was there liability (where the defendant failed to use reasonable care to prevent harms)? Were there probable damages (actual loss or harm)? Were there procedural issues that could affect the outcome of a trial? Mr. Blumberg suggests the expert must be able to testify about all of these factors of the underlying case that would have gone into a competent opinion by the defendant-attorney in recommending the settlement. He also advocates that the expert be retained early in the litigation so that the trial attorney can develop the facts to support the expert’s opinion.

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Below are a few recent opinions on the admissibility of expert witness testimony.

  1. Serrano et al v. American Airlines, Inc. – United States District Court – Southern District of Florida – November 8th, 2016 – This case involves injuries sustained by the plaintiff (Serrano) when she attempted to disembark from a plane via a mobile stairway.  Serrano sued the defendant (American Airlines) as the cause of her injuries and hired Paul M. Getty (Forensic Engineering Expert Witness).  Getty opined that Serrano fell on a partially lifted, lower stairway during the decent.  In addition, he has criticized the record keeping about the event.  American Airlines filed a motion to exclude Getty’s testimony, stating that his opinions are unreliable or unhelpful to the jury.  The court agreed, stating that Getty’s observations about two possible stairway models is not disputed and would not assist the jury. In addition, he did not perform any testing or consult any relevant publications to reach his conclusions.  In addition, his thoughts on American Airlines’s record keeping are unreliable as there is no evidence to support his conclusions.  The court thus ruled that his testimony would not be allowed.
  2. Global One Engineering, LLC v. SiteMaster, Inc. – United States District Court – Northern District of Oklahoma – October 31st, 2016 – In this contract dispute involving a construction project, the plaintiff (Global One) hired Michael Berryman as a construction expert witness.  The defendant (SiteMaster) filed a motion to exclude the testimony of Mr. Berryman arguing that he does not have the necessary qualifications.  SiteMaster contends that Mr. Berryman does not have the knowledge, skill, or experience in the standards established by the Society for Protective Coatings (SSPC).  GlobalOne argues that Mr. Berryman’s testimony is not intended to establish that their work met the SSPC standards.  The court agreed with the Global One, denying SiteMasters motion to exclude.
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