Attorney Liability Michigan Product

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          William E. Vita
Gallagher Gosseen Faller & Crowley
      1010 Franklin Avenue
   Garden City, New York 11530
          (516) 742-2500
                   EXPERTS THEY RETAIN
                                   by William E. Vita1
        You obtain authorization from your client to retain a top-flight expert who will “make or
break” your case. You send the expert deposition transcripts, Interrogatory responses and
similar items and then sit back. Your job is done, right? It’s now time to relax and watch your
expert go to work, isn’t it? A recent California Appellate case indicates otherwise. The
California court found that a law firm may be held liable when an expert’s opinions unravel,
leaving the plaintiffs unable to collect a dime on their big-ticket case. It happened in California,
could it happen to you?

        The California Court’s decision in Forensis Group, Inc. v. Frantz Townsend &
Foldenauer, 130 Cal App. 4th 14; 29 Cal. Rptr. 3rd 622; 2005 Cal App LEXIS 929; 2005 Cal
Daily Op. Service 4954(4th App. Dist. 2005) is sufficient to grab any practitioner’s attention.
The facts can be briefly summarized as follows: The law firm of Frantz Townsend & Foldenauer
(“the Law Firm”) represented the plaintiffs in a wrongful death action. The plaintiffs’ husband
and father died in a workplace accident when a forklift struck the decedent. The Law Firm
retained a professional engineer through an “expert witness clearing house.” The engineer
inspected the forklift in question and reviewed documents provided by the Law Firm, including
publications by the Society of Automotive Engineering (“SAE”) regarding the placement of
safety alarms on forklifts.

         When the engineer was deposed, he failed to identify applicable safety standards with
respect to the installation of a back-up alarm. The forklift’s manufacturer then moved for
summary judgment, contending that the lack of a back-up alarm was not a defect and that the
forklift met all applicable safety standards. In opposition to the summary judgment motion, the
engineer submitted a declaration pointing out that the forklift “failed the criteria of a particular
SAE safety standard.” However, the trial court found that this declaration contradicted the
expert’s earlier deposition testimony, in which he did not identify any such safety standards.

        The plaintiffs lost the summary judgment motion against the manufacturer. They then
hired new counsel and promptly brought an action against the engineer and the expert witness
clearing house firm (together, “the experts”), alleging theories of professional negligence,
misrepresentation, and breach of fiduciary duty. The plaintiffs claimed that the experts “failed to
exercise the care and skill that a member of the forensic engineering profession should have,
thereby losing the underlying action for the [plaintiffs] and forfeiting their $1.5 million claim.

        William Vita is a partner in the New York law firm of Gallagher Gosseen Faller &
Crowley. He earned his Bachelor’s Degree at the University of Notre Dame and the degree of
Juris Doctor from Boston College. He engages in a wide range of civil litigation. He is a
member of DRI’s Commercial Litigation Section and serves as Chair of the F.D.C.C.’s
Management, Economics & Technology of Practice Section.
They also claimed the experts misrepresented the expertise of the [engineer].” Forensis, supra,
at 21.

       The experts, in turn, filed cross-complaints against the Law Firm for indemnity. The
engineers argued that:

               Law Firm had waited too late in the action to consult [the
               engineers] to obtain a suitable expert, and/or failed to provide [the
               mechanical engineer] with sufficient information to allow him to
               provide adequate services and had failed to provide experts with
               relevant information before and after the hiring. They also argued
               Law Firm attorneys failed to rehabilitate [the mechanical engineer]
               at his deposition about the problems regarding the use of the SAE
               industry standards and had failed to provide the trial court with
               accurate products liability law in opposing [the forklift
               manufacturer’s] summary judgment motion, regarding
               admissibility or inadmissibility of industry standards evidence.

Forensis, supra, at 21.

        This claim must have seemed, to the Law Firm, like every attorney’s nighmare. They
were not only second-guessed about the decisions the firm made during high-stakes litigation,
they were also attacked by the very experts the Law Firm had relied upon to lead the charge
against the product manufacturer.

        As any attorney who has ever worked with an expert knows, the preparation of expert
reports, deposition testimony and, particularly, trial testimony, is a collaborative effort between
the expert(s) and the attorney(s). Decisions on what arguments to make, how to make them,
what aspects of a defendant’s product to attack and what documents to rely upon when doing so,
are only some of the dozens of decisions that attorneys and experts must make in every case, as
they work together. The notion that all of these discussions and collaborative decisions, might,
one day, pit the collaborators against each other in an ugly display of finger-pointing, is a
sobering thought.

        Both attorneys and experts regularly accept or discard all sorts of theories and opinions
and similarly, accept or discard all sorts of documentary evidence to support these opinions. To
then go back and second-guess each of these innumerable decisions in the wake of an adverse
verdict or court opinion, would chill the relationship between attorney and expert like a February
day in Fairbanks.

       The trial court, perhaps, realizing this, dismissed the expert’s cross-complaint against the
Law Firm, based on the public policy consideration that conflicts of interest might arise between
the Law Firm and its former clients and such a lawsuit would impinge on attorney-client
communications. Specifically, the trial court noted that the Law Firm:

               has a duty to do nothing in the trial by [plaintiffs] against the
               [experts] that would harm [plaintiffs’] case. Yet defeating or
               diminishing the [plaintiffs’] case is exactly the self-interest the
               Law Firm would have, knowing that if plaintiff recovers, Law
               Firm will have to defend the claim that it should indemnify [the
               experts] from its loss. Therefore, there was a conflict between the .
               . . Law Firm and their former [plaintiffs] clients no matter what
               opinion the attorneys at the Law Firm held concerning the merits
               of the underlying product defect action.

Forensis, supra, at 23-24.

       The Appellate Court reversed, noting that:

               In today's technologically driven litigations [experts] frequently
               are hired to assist a party in preparing and presenting a legal case.
               Often they play as great a role in the organization and shaping and
               evaluation of their client's case as do the lawyers'. . . As experts,
               they are subject to liability, if they perform the services negligently

Forensis, supra, at 33, citing Mattco Forge Inc. v. Arthur Young & Co., 52 Cal App. 4th 820,
834, 60, Cal Rptr2d 780 (1997).

       The Appellate Court went on to note the duty of an attorney who hires an expert witness

               [m]ake sure that the expert, particularly the inexperienced expert
               understands the governing legal principles and elements that each
               party to the litigation must prove in order to prevail . . . An expert
               is not a mechanical toy that can simply be wound up and turned
               loose. Regardless of the expert's skill, it is the lawyer's
               responsibility to make sure that his or her expertise is presented to
               the trier of fact in an admissible and persuasive way.

Forensis, supra, at 34, citing California Expert Witness Guide (Cont. Ed. Bar.2d ed. 2005), §
8.28, page 290 - 291.

       The Court observed that:

               [e]xperts 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 . . . Consequently, .
               . . Experts should ordinarily be permitted to sue Law Firm for
               equitable indemnification of professional malpractice damages for
               which they have become liable.

Forensis, supra, at 34-35.

       The appellate court did admit that:

                an otherwise permissible equitable indemnification claim may
               become improper if certain important public policy principles are
               violated by it. Specifically, it must be asked in this case whether
               Law Firm will be able to defend itself against the cross-complaint
               while: 1) avoiding significant conflicts of interest between itself
               and the former client . . . and 2) protecting confidentiality of prior
               attorney-client communications.

Forensis, supra, at p. 35.

        The potential for a conflict of interest arises because a law firm dragged into litigation
between ex-clients and an expert must necessarily argue either that: 1) the client's case was a
strong one, thus driving up the value of the case on which the firm may owe indemnity
obligations (an obvious conflict of interest) or 2) the client's case was a weak one (an equally
obvious conflict, as the law firm is taking a position adverse to its ex-client's interests).

        The Forensis court's decision was made much easier because the Law Firm's underlying
client settled with the expert defendants, thereby solving the conflict of interest dilemma.
Because the client no longer had a financial stake in the case, it did not much matter what
position the Law Firm took regarding the strength of the underlying case.

        Turning to the attorney-client confidentiality policy issues, the Court indicated that the
California Code of Evidence exempted issues involving alleged breach of an attorney's duty from
the attorney-client privilege protections. Further, the cross-complaint dealt with communication
and strategy shared by the Law Firm and the experts, not by the Law Firm and it's clients.

       So, evaluating the peculiar aspects of the fact pattern, as presented, the Appellate Court
reversed the trial court and allowed the experts' claims to proceed against the law firm.

        The California Appellate Court was not asked to consider whether the doctrine of witness
immunity should have barred the client's action against the experts. But this argument has been
rejected by other courts throughout the country. In LLMD of Michigan, Inc. et al. v. Jackson-
Cross Company, 559 Pa. 297, 306, 740 A.2d 186, 1999 Pa. LEXIS 3206 (1999), the

Pennsylvania Supreme Court refused to extend the witness immunity doctrine to professional
negligence actions which are brought against an expert witness when the allegations of
negligence are not premised on the substance of the expert's opinion.

        California, Missouri, New Jersey and Texas have also held that witness immunity
doctrine does not protect an expert witness from liability. Hanson, R., Witness Immunity Under
Attack: Disarming “Hired Guns,” 31 Wake Forest L. Rev. 497 (1996). See, also, Marrogi v.
Howard, 805 So.2d 1118; 2002 La. LEXIS 19 (La. 2002) (the Louisiana Supreme Court rejected
witness immunity doctrine as protection for an expert witness); Boyes-Bogie v. Horvitz, 14 Mass
L. Rep. 208; 2001 Mass Super. LEXIS 582 (Mass Superior Ct. 2001); Pollock v. Manohar
Murlidbar Panjabi, et al, 47 Conn. Supp. 179, 781 A2d 518, 2000 Conn Super. LEXIS 1338
(Conn. Superior Ct. 2000); but, see, Darragh v. Superior Court of the State of Arizona, 183 Ariz.
79; 900 P.2d 1215, 1995 Ariz. App. LEXIS 160 (Ariz Ct. of App. 1995); Kahn v. Burman, 673
F.Supp. 210, 1987 U.S. Dist. LEXIS 10422 (E.D. MI., 1987).

         The key question is: will the Forensis decision serve as a harbinger of further cases to
come? Will clients bring direct actions against their attorneys if the clients are dissatisfied with
the experts the attorneys select? One can certainly envision a future in which attorneys will be
held increasingly responsible for the success or failure of the experts they choose. Perhaps, such
outcomes are appropriate when applied to mass tort plaintiffs' cases in which experts have
engaged in junk science or outright fraud. Recent revelations about the fraudulent collusion
between plaintiffs’ attorneys and radiologists in asbestos and silica litigation is one example of
egregious and unethical behavior on the part of attorneys and experts. See, Case of the
Vanishing X-Rays, Wall Street Journal, August 31, 2005, pg. A8 (Federal Judge Janis Graham
Jack uncovered evidence that plaintiffs had filed fraudulent asbestosis and silcosis claims, based
on highly suspect readings of x-rays by expert radiologists.) But are we prepared for such
outcomes in situations where an attorney retains a reputable expert who, for whatever reason,
fails to persuade a trier of facts?

       In any event, attorneys should consider these questions in the future as they retain and
prepare experts for trial.


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