When Experts Err, Is the Lawyer Liable?

By Robert Ambrogi Esq

When an expert witness is targeted for malpractice, can the expert turn and sue the lawyer who hired him? Under some circumstances, he can, says a California appeals court.

Dismissing arguments that such an action would undermine the attorney-client relationship, the court allowed an expert – and the agency that referred him – to sue the law firm that retained him for equitable indemnification.

"We do not believe that attorneys who are defending against such an indemnity claim will be required to betray the client's confidential communications," the court said, "because the issues in the indemnity matter deal primarily with legal strategy and litigation decision-making."

The malpractice case arose after relatives of a worker killed in an industrial accident lost their lawsuit claiming that a defectively designed forklift caused his death. The trial judge entered summary judgment for the manufacturer, in part because he found that the plaintiffs' engineering expert gave contradictory statements about whether the manufacturer violated safety standards.

After the court dismissed the plaintiffs' case, they retained new counsel and filed a malpractice lawsuit against the expert witness and the firm that referred him. In turn, the expert and the referral firm filed cross-complaints against plaintiffs' original law firm, seeking indemnification.

The law firm brought a motion for summary judgment on public policy grounds, which the trial court granted. It ruled that the cross-complaints were barred based upon the public policies protecting attorney-client loyalty and confidential client communications.

On appeal, the California Court of Appeal sided with the experts, finding that the public policy considerations regarding the former attorney-client relationship did not outweigh those in favor of allowing equitable indemnification between joint tortfeasors.

In fact, said the court, the case raised a parallel issue of public policy not considered by the trial court: "That of protecting the professional interests of all expert witnesses generally to participate in litigation, and the interests of the judicial system in obtaining the assistance of such expertise."

Once it found that public policy was not an impediment, the court had little difficulty concluding that the experts' indemnity claims against the lawyers who hired them were permissible.

"Experts could not independently communicate their knowledge and opinions to the trial court, and had to act through the intermediary of the counsel who retained them on behalf of the client," the court said. "Experts were not involved in legal strategy, but rather supplied expertise based on the physical facts of the underlying case, within the applicable legal standards as supplied to them by counsel."

This made the experts and the lawyers "concurrently acting litigation participants," who should be permitted to sue for indemnification of professional malpractice damages, the court said.

The case is Forensis Group Inc. v. Frantz, Townsend & Foldenauer, 2005 Cal. App. LEXIS 929 (Cal. Ct. App., June 9, 2005).


Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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