Do You Need An Expert To Sue An Expert?

By Robert Ambrogi Esq
Do You Need an Expert to Sue an Expert?
Editor’s Note:  The expert referenced in this article is not affiliated with IMS ExpertServices.
If you sue an expert witness for malpractice, do you need expert testimony to prove your case?
The question may sound circular, but it was one of first impression when it was decided earlier this month by the Oklahoma Supreme Court. The court's answer, while definitive, was also narrow.
The plaintiffs in this case, Jackie and Gene Ellison, had hired the expert, Michael Campbell, to provide testimony in an earlier case they had filed against an oilfield waste disposal facility. In that earlier case, filed in 1999, they alleged that the facility was responsible for polluting the groundwater on their property and that the polluted water was responsible for the death of their cattle.
Campbell, a hydrogeologist, was hired to conduct tests and drill monitoring wells in order to establish empirical data sufficient for him to render a scientifically supportable expert opinion. After collecting samples over a period of several years, he prepared his expert report, which was submitted to the defendants.
A Deposition Gone Bad
In 2006, in a deposition that lasted three days, the defendants' lawyers grilled Campbell about his findings. According to the court's description of what occurred in that deposition, Campbell repeatedly made statements that discredited his own report.
At one point, for example, Campbell admitted that he did not know whether he had followed certain protocols in sample testing. At another, he pointed out significant calculation errors in his report. When defendants' counsel asked him if he thoroughly researched industry knowledge in regard to mud pits and their relationship to leakage and pollution, he responded that it was "difficult to say" and that "serendipity has a lot to do with finding articles when you need them," according to the court's opinion.
At the end of the first day of depositions, defendants' counsel asked Campbell to verify some of his calculations and check errors in his report. The next morning, when asked about these items, Campbell answered that he had been too tired to go over his report, saying he was "a busy person." According to the court's opinion, he then stated that the only way he could be certain that all the charts in his materials were not "riddled with errors" would be to go back and look at them.
At another point, when he was asked if the monitoring wells complied with state and federal environmental standards, he said he did not know because he had not read them. He further stated that the U.S. Environmental Protection Agency would not accept his data as reliable.
The Expert is Sued
After settling that earlier litigation, the Ellisons sued Campbell, alleging negligence, tortious breach of contract, and breach of contract for his failure to provide them with a scientifically supportable report. After a four-day trial, the jury returned a verdict for the Ellisons of $409,000.
Campbell filed a motion to set aside the verdict, arguing that the Ellisons failed to establish their claim for breach of contract because they never presented an expert in hydrogeology to counter his scientific conclusions. The trial court denied the motion.
Campbell appealed to an intermediate appeals court, which sided with him and reversed the trial court. The appeals court held that the Ellisons should have been required to produce expert testimony to support their claim. The Ellisons appealed that decision to the Oklahoma Supreme Court.
Substandard Performance was Clear
Normally, the Supreme Court said in its opinion, expert testimony is required to establish a claim of professional negligence. But an expert is not required to establish an element that "lies within the common knowledge of lay persons."
In this case, Campbell's own statements "were sufficient to demonstrate his substandard performance in preparing expert materials," the court reasoned.
"Under these unique facts, it was unnecessary for the Ellisons to present an expert witness," the court held. "The average, lay person could most certainly conclude that Campbell had not performed the preparations necessary to produce a viable product for the purpose of demonstrating the existence and source of groundwater pollution in the [prior] proceedings."
The court was careful to explain that its holding was not intended to open a door to suing experts whenever a case is lost. "This opinion should not be read for the proposition that a losing party may recover monies paid to an expert witness for the formulation and presentation of an opinion in the context of litigation merely because the party requesting such opinion did not prevail or recover to the extent anticipated."
Rather, its ruling was based on the unique circumstances of this case, the court said, where Campbell held himself out as an expert capable of preparing a scientifically supportable report and contracted with the Ellisons to do just that.
"Instead, he produced a report which was admittedly error-riddled and based upon methodologies not meeting either state or federal regulations," the court said. "Simply, Campbell did not perform the services for which the Ellisons contracted and paid."
The case is Ellison v. Campbell, 2014 OK 15 (3/11/2014).

Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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