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Is the failure to utilize expert witnesses at trial grounds for a malpractice lawsuit?

Stamford, CT |

After a fire that destroyed everything we owned, we pursued a claim against the contractor who caused the fire, culminating in a trial where we prevailed, albeit with a very low verdict by jury. Our attorney failed to properly advise the defendant of two experts that were to be called at trial, and thus no expert testimony was heard. We essentially lost the opportunity to elicit testimony to support a per se CUTPA violation, that the workers were doing work that they were not licensed for, that they had admitted to doing many times in the past. The expert testimony was required to demonstrate that the type of work they were doing was such that required a license. The defendant's attorney and experts exploited this easily. Any thoughts?

Attorney Answers 3

Posted

I was interested in your question because I handled a similar case in NY a few years ago, where the malpractice was failure to timely exchange an expert's report so that the expert was precluded. Having read the other answers and your comments, I agree that it would be worth your while to consult with an attorney regarding a legal malpractice claim. You should be aware that not many lawyers specialize in legal malpractice claims. You need a good all around trial lawyer, preferably one with experience in cases involving similar issues to those in your trial. Depending on the specifics of your case and the magnitude of the damages, it is possible you may find a lawyer who will take it on a contingency fee basis. One wrinkle in a potential legal malpractice claim- you must not only prove that you were damaged, but that the damages were collectable from the defendant in the underlying case. That could be a problem because insurance does not usually cover treble damages.

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Posted

If an attorney fails to properly and timely designate experts, and the at trial is barred from presenting their testimony...that could amount to legal malpractice. However, the difficulty I foresee is your damage model. You won your trial. I understand you are not satisfied because the jury award was minimal. The trouble is measuring your injury and, thereby, attaching a dollar value to it. You'd have to have a basis for claiming that those 2 experts would have likely added "x" dollars to your verdict. That sounds very speculative.

Now, it may be that one of those experts was specifically prepared to say, for example -- "the fire caused the loss of $100,000 of art and I can say that because I am an art expert." If there was a measurement of lost dollars directly attributable to the missing expert testimony, you might have something.

Consult with a CT lawyer with experience in legal malpractice work. Do it fast. I'm not licensed in CT so I can't advise you on your statute of limitations & other important state laws.

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Asker

Posted

Thanks for the thoughtful comments. While I would agree that in the case of lack of expert advice on something speculative in value, in this case it's the lack of expert testimony to establish a CUTPA violation which would have given us triple damages. The jury was left with no testimony in the record to establish a finding for a CUTPA violation. "Alteration" of sheet metal for a fire suppression system in the state of CT requires a license. Unlicensed alteration is a per se violation of CUTPA. The defendant's expert witness went to great pains to not even use the terminology of sheet metal or alteration under cross-x.

Marc Edward Stewart

Marc Edward Stewart

Posted

You know more about that CT state law than I do. I agree with you. If it would have established treble damages, you have the measuring stick for damages you need. Seek a good lawyer. Good luck man.

Posted

It would appear that you were successful in your suit with respect to liability. You obtained a verdict, although a low one. The only expert testimony that might have helped would have been an expert to testify as to the value of your various possessions. If one of the experts was supposed to have testified as to valuation, then you might have a legal malpractice lawsuit. However, if the experts were with respect to liability, then you would not have a legal malpractice case.

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Posted

The expert's only purpose at trial was to establish with expert testimony that the nature of the work being done by the contractor was such that it required a license. Liability was established the day before the trial when the defense admitted liability. The required testimony to establish a violation of CUTPA and the requisite triple damages of our property and lost rents, could only have been brought by expert testimony. The judge specifically chastised our attorney for failing to advise the defense of our expert. Thus, our expert was not allowed to testify and bring into the record that the nature of the work being done was such that it required a license and that doing this type of work unlicensed was a per se violation of CUTPA.

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