State courts are in general agreement that plaintiffs who sue for professional malpractice must present expert testimony to establish the applicable standard of care and the professional’s breach of that standard. While most of the litigation establishing that rule has involved claims of medical malpractice, the rule typically applies to claims of professional negligence by other professionals, including accountants, lawyers, and psychologists.
Expert opinions are generally required to prove professional negligence because juries lack the knowledge to determine the standard of care by which professionals must govern their conduct. Exceptions to the need for expert testimony may nevertheless arise when the negligence is obvious. When a doctor operates on the wrong knee or when a lawyer fails to file a lawsuit before the limitations period expires, a lay jury can easily determine that the professional was negligent in absence of expert testimony.
The Court of Appeals for the Ninth Circuit was recently asked whether the rule requiring expert testimony can be circumvented by characterizing a claim of legal malpractice as a claim for breach of a law firm’s fiduciary duty to its client. The court essentially held that a malpractice claim by any other name is still a malpractice claim that must be established by expert testimony.
The plaintiffs in Chastain v. Poynter Law Group were Alaska Airlines flight attendants. Represented by Poynter Law Group, they brought a mass tort claim in a California state court against Twin Hill Acquisition Company Inc. They alleged that the uniforms provided by Twin Hill caused skin irritation, hives, respiratory problems, and headaches, among other injuries.
The case went to trial. According to Twin Hill’s press release, the judge dismissed the case because no evidence established that the flight attendants’ symptoms were caused by the uniforms. The court evidently reached that conclusion after relying on expert testimony and an evaluation of the uniforms by the National Institute for Occupational Safety and Health.
The plaintiffs then sued Poynter Law Group in a California state court, alleging that the firm mishandled their claims. They alleged that Poynter failed to prepare expert witnesses to testify and otherwise neglected to manage the litigation wisely. They also alleged that Poynter breached its fiduciary duty to the plaintiffs by failing to give them proper advice.
Poynter removed the case to federal court. After a federal judge dismissed both claims, the plaintiffs appealed to the Ninth Circuit.
Need for Negligence Expert
The district court granted summary judgment on the malpractice claim because the plaintiffs offered no expert testimony regarding the standard of care the attorneys should have followed. The appellate court recognized that California law does not require expert testimony to prove obvious acts of negligence but held that the exception did not apply.
According to the Ninth Circuit panel, the strategy a lawyer should follow to prove a mass tort claim is not within the knowledge of an ordinary juror. The court also held that the standard for preparing an expert witness to testify about causation is beyond the ken of ordinary jurors. Since negligence was not obvious, the failure to supply expert testimony was fatal to the malpractice claim.
Breach of Fiduciary Duty
The plaintiffs argued that even if expert testimony is required to prove professional negligence, their claim for the law firm’s breach of its fiduciary duty was not governed by the same standard. That claim alleged that the firm breached its fiduciary duty by failing to give adequate advice to the plaintiffs, by “generally mishandling” the case, and by failing to manage the litigation in a “prudent manner.”
The district court dismissed the fiduciary duty claim because it duplicated the malpractice claim. The appellate court noted that no California precedent expressly disallows claims brought under different legal theories that might duplicate each other. The court also noted the federal rule that alternative claims are permitted in federal complaints.
The appellate court agreed with the plaintiffs that California law requires expert testimony to prove a professional malpractice case but does not necessarily require expert testimony to prove a claim for breach of a fiduciary duty. In many cases, a fiduciary’s failure to act in a client’s best interests can be established without the assistance of an expert. For example, a claim that a fiduciary improperly diverted a client’s money into the fiduciary’s pocket — an act that would breach a fiduciary’s duty of loyalty — might readily be proved without expert testimony.
In this case, however, the breach of fiduciary duty claim was based on strategic considerations about how to present the case in court or what legal advice would best serve the client. The plaintiffs, for example, alleged that they wanted to testify but the law firm refused to allow them to do so.
While the plaintiffs claimed that the firm’s advice violated the duty of loyalty, whether a client should testify is a matter of trial strategy. The appellate court decided that making an honest strategic decision does not breach a duty of loyalty. If the decision is wrong, the claim is one of malpractice and must be proved with expert testimony.
Recharacterizing a malpractice claim as a claim for breach of a fiduciary duty cannot circumvent the requirement to prove malpractice claims with expert testimony. The lesson to learn is that plaintiffs should be prepared to call an expert witness whenever a claim rests on a professional’s departure from an expected standard of care.