Maine Supreme Court holds that competent expert testimony required to prove causation in legal mal
This Ethics Alert which will discuss the March 21, 2017 opinion of the Maine Supreme Court which held that expert testimony that is not based on supporting facts in the record was insufficient to prove that a lawyer’s alleged negligence caused the plaintiff's injury.
The underlying caseThe former client/malpractice plaintiff in the underlying matter (Brooks) retained the lawyer/malpractice defendant (Lemieux) after he unsuccessfully grieved his termination from Bath Iron Works (BIW) and his failure to attend arbitration. Brooks was a long-time union employee and, after the union voted not to assist Brooks to arbitrate his grievance, Brooks hired Lemieux. In February 2007, Brooks filed a complaint against the union and BIW in federal district court for breach of the collective bargaining agreement and discrimination.
After the union and BIW moved for summary judgment, Lemieux failed to timely file opposing statements of material fact, and summary judgment was granted against Brooks. The magistrate granted the motion and noted that Lemieux had failed to cite to record evidence in the statement of facts refuting the opposing statement of facts, resulting in their admission.
The malpractice caseBrooks then sued Lemieux for legal malpractice, alleging that the lawyer fell below the standard of care by failing to: (1) timely file responses to statements of material fact supporting summary judgment, (2) follow a local rule governing statements of fact, (3) obtain affidavits from witnesses and (4) conduct adequate discovery.
The trial court granted summary judgment in Lemieux 's favor in the malpractice matter, finding that Brooks had failed to prove causation because he failed to identify what evidence Lemieux should have cited, affidavits that he should have obtained, and what discovery he should have conducted. This resulted in the fact-finder having to speculate as to any causal link between the alleged negligence and the injury, and failed to submit admissible expert testimony on causation.
The trial court refused to consider Brooks' expert's corrective affidavit on causation, which contradicted that expert's earlier deposition testimony. Relying on a Maine case, the trial court held that the contradictory affidavit could not create a disputed issue of material fact given the expert's clear and unambiguous answers in the deposition testimony.
Brooks appealed and argued that (1) the trial court applied the incorrect malpractice standard, (2) expert testimony was not required, (3) causation presents a jury question, and (4) plaintiff's expert's affidavit established prima facie evidence of causation.
The appeal and decisionThe Maine Supreme Judicial Court Brooks found that Brooks failed to set forth prima facie evidence of causation to support his claims, and that the trial court properly granted summary judgment in favor of Lemieux. The opinion rejected the argument that an incorrect standard was applied since Lemieux did not fail to timely plead in the underlying case and cause Brooks' opportunity before the fact-finder to be lost. The opinion also found that there was insufficient expert testimony to establish that Brooks would have prevailed but for Lemieux's alleged negligence since the expert's deposition testimony and "corrected affidavit" created a clear contradiction, not merely a discrepancy.
According to the opinion, the trial court improperly refused to consider the contradictory affidavit; however, the error was harmless since the affidavit was deficient for summary judgment purposes. The affidavit also provided only conclusory statements that Lemieux breached the standard of care without citing to facts which connect the alleged negligence to the injury; therefore, without competent evidence of negligence, a fact-finder could only speculate about causation (which requires a showing that the plaintiff would have prevailed in the underlying litigation but for the defendant's alleged negligence); therefore, the expert opinion was insufficient. Pursuant to the above, the opinion affirmed the summary judgment in favor of Lemieux.
Bottom lineThis opinion found that an expert retained by the plaintiff in a legal malpractice matter cannot merely conclude that a lawyer failed to meet the standard of care but must cite "to facts which connect the alleged negligence to the injury." In addition, the "corrected affidavit" by an expert which contradicts the expert's clear testimony in a deposition created a clear contradiction, not merely a discrepancy, and was inadequate to prove causation.