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Plaintiff’s Failure to Obtain Expert Testimony Fatal To Malpractice Claim

This case, Alerding Castor Hewitt, LLP v. Paul Fletcher, et al, 16-cv-02453 (S.D. Indiana, Indianapolis Division) (April 18, 2019) illustrates the necessity of obtaining expert testimony to support a claim. Fletcher brought a malpractice claim against his former counsel after counsel sued for legal fees. Fletcher alleged that the attorneys were negligent when they represented him in a civil forgery case. The court disagreed and granted summary judgment for the attorneys.

Fletcher could not show that any alleged error by the attorneys proximately caused his loss because he had no expert testimony to support his claims:

To establish the applicable standard of care, Alerding Castor has presented an expert report from attorney David C. Jensen. Jensen’s thorough report discusses his review of the record from the Forgery Lawsuit in light of the applicable standard of care. Dkt. 130-3. Jensen concludes that Alerding Castor exercised ordinary skill and knowledge in litigating the Forgery Lawsuit and met the standard of care they were obligated to provide in its representation of Defendants. Id. at 16. Jensen’s conclusions are amply supported by the facts in the record.

Defendants have not met their burden in establishing that there is any triable issue as to whether Alerding Castor exercised ordinary skill and knowledge in representing Defendants in the Forgery Lawsuit. In their Counterclaim, Defendants identify seven actions that Alerding Castor allegedly failed to do: 1) “research the appropriate statute for forgery and cite proper authority for forgery”; 2) “file a Pre-Trial Order”; 3) “properly introduce most critical evidence at trial”; 4) “argue to secure adverse rulings for appeal during trial”; 5) “produce a trial outline”; 6) “know the facts of proof of [Defendants’] case”; and 7) “use experienced attorneys to present [Defendants’] case”. Dkt. 14 at 30-31 (¶ 132). Defendants, however, did not timely advance any argument or designate any evidence in response to Alerding Castor’s Motion for Partial Summary Judgment. See dkt. 160; dkt. 165; dkt. 169. Additionally, having missed the deadline to file expert disclosures, Defendants are precluded from introducing expert testimony. See dkt. 124; dkt. 148. Therefore, Jensen’s report is uncontested. Accordingly, Defendants cannot show that Alerding Castor failed to exercise due care and diligence in their representation of Defendants in the Forgery Lawsuit. See Boczar v. Reuben, 742 N.E.2d 1010, 1018 (Ind. Ct. App. 2001) (affirming the trial court’s grant of summary judgment in favor of the attorney, including his clients’ legal malpractice counterclaim, because the clients “failed to designate any evidence establishing that [the attorney] committed malpractice,” after the clients failed to present expert testimony in support of their claim).

There similarly is no triable issue as to proximate cause. In a legal malpractice action, proximate cause is a “but for” requirement, that is, a plaintiff must show that that the outcome of the underlying action would have been more favorable “but for” the attorney’s negligence. Gates v. O’Connor, 111 N.E.3d 215, 224 (Ind. Ct. App. 2018) (citation omitted). “Such proof typically requires a `trial within a trial.'” Flatow v. Ingalls, 932 N.E.2d 726, 729 (Ind. Ct. App. 2010) (citation omitted).

Here, the undisputed facts establish that the outcome of the Forgery Lawsuit would have been the same regardless of how Alerding Castor handled the tasks that Defendants complain they failed to do. Discovery had already closed when Defendants hired Alerding Castor to represent them. Dkt. 14 at 15 (¶ 76). While Alerding Castor sought to reopen discovery, the request was denied by both the Lake Superior Court and the Court of Appeals. Id. at 15-16 (¶ 80). The designated portions of the record from the Forgery Lawsuit do not contain any evidence from which a trier of fact could conclude that Taylor’s signature was forged on the Change of Beneficiary Form or that there would have been a different outcome in the Forgery Lawsuit “but for” Alerding Castor’s alleged failure to do the things complained of by Defendants. Moreover, having failed to respond to Alerding Castor’s motion for summary judgment, Defendants have not designated any evidence from which such a conclusion could be drawn. Defendants therefore cannot establish proximate cause.

Defendants cannot show that Alerding Castor failed to exercise due care and diligence in their handling of the Forgery Lawsuit, or that the outcome of the Forgery Lawsuit would have been different “but for” Alerding Castor’s alleged failure to do the things complained of by Defendants. Therefore, Alerding Castor is entitled summary judgment on Count II.