Articles Posted in Failure to obtain a competent expert

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In Barkal v. Gouveia and Associates, the Court of Appeals of Indiana affirmed a grant of summary judgment for an attorney defendant. The decision was issued on December 27, 2016, and will be published.

Barkal alleged that Gouveia breached the standard of care and caused him damages when he failed to file a bankruptcy petition. (Gouveia denied having been retained to file a bankruptcy petition, but that part of his defense did not factor in the decision).  Barkal alleged that because Gouveia did not promptly file the bankruptcy case, and, as a result, he lost a meritorious bankruptcy case. (Again, the allegation is hard to fathom as Barkal hired another attorney who did file the bankruptcy case).

Gouveia moved for summary judgment on the ground that Barkal did not disclose and present expert testimony. Barkal pointed to the deposition testimony of two of his other bankruptcy lawyers, but the court noted that those lawyers were not disclosed as experts and did not offer opinion testimony in their depositions. As a result, Barkal had no expert and no case. The court explains its ruling and cites the relevant deposition transcripts:

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ALLIED WASTE NORTH AMERICA, INC. v. LEWIS, KING, KRIEG & WALDROP, PC, Dist. Court, MD Tennessee 2015 – Google Scholar.

This is an opinion of the United States District Court for the Middle District of Tennessee denying motions for summary judgment filed by the three law firms that represented Allied Waste in an underlying suit.

The underlying suit was filed after a waste facility owned by the Metropolitan Government of Nashville and Davidson County (“Metro”) burned to the ground. Metro sued Allied and other defendants. The underlying case ended with a $7.2 million verdict against Allied.

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QUAD CITY BANK & TRUST v. ELDERKIN & PIRNIE, PLC, Iowa: Court of Appeals 2015 – Google Scholar.

This is an unusual legal theory in a legal malpractice case. In the underlying case, the plaintiff bank brought a case against an accounting firm on the ground that the accounting firm had failed to detect improper transactions by one of the bank’s lending clients. The lending client had apparently falsified its inventory reports, leading the bank to believe that there was more inventory than in fact existed. The bank’s claim in the legal malpractice case was that had it received accurate information from the auditing firm, the bank would have been able to foreclose on the loan sooner and it would have mitigated its losses. The underlying case went poorly for the bank because the bank’s expert witness was barred from testifying at trial. The court summarized the facts as follows:

“The case against [the accounting firm] proceeded to trial, but [the accounting firm] successfully moved to have the bank’s sole expert witness excluded from testifying because the expert was not qualified to offer an opinion regarding the standard of care applicable to [the accounting firm]. See Quad City Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 93-94 (Iowa 2011) (upholding the district court’s ruling excluding the bank’s expert from testifying because he was not qualified to offer an opinion as to the applicable standard of care). The case proceeded to the jury, which returned a verdict in favor of [the accounting firm], and that verdict was upheld on appeal. Id.