An Old Story Told Well – No Expert = No Malpractice Claim

Adkins v. Palermo, Dist. Court, ED Kentucky 2014 – Google Scholar.

Probably the most common way to lose a legal malpractice case is to fail to identify an expert. The defendant moves for summary judgment and the court grants it. This opinion is worth reporting because it is well-written.

In the underlying case, plaintiff, represented by Mr. Palermo, filed a personal injury case. The trial court held that the defendant was immune under workers compensation doctrines. The lawyer told Adkins that there was no valid basis to appeal and concluded the representation. Adkins sued the lawyer, but he failed to obtain an expert witness and, thus, could not prove a breach of the standard of care.

The court recognizes that, in a few cases such as the failure to file the case before expiration of the statute of limitations, the lawyer’s error is so obvious that no expert is required. The court explains that the underlying case, which deals with immunity under the workers compensation law, is complex.

“Similarly, the issue of contractor immunity is not a simple issue for the lay juror to comprehend. The issues in this matter involve in depth interplay of the Federal Rules of Civil Procedure, Kentucky substantive law, Kentucky Revised Statutes as well as administrative regulations and the application of the exclusive remedy provision of the Kentucky Worker’s Compensation Act and how these impact litigation strategy.

An expert witness, namely another lawyer, is necessary to explain to the jury the nuances of the law and what “ordinary care” means in that context. It appears Plaintiff agrees, by stating in his responsive memorandum that “surely a Kentucky lawyer” would know that Palermo breached a standard of care by failing to address the affirmative defense pled by the defense in the underlying litigation. Indeed.

Expert testimony is indispensable to Plaintiff’s case. Without it, his case is nothing more than sour grapes.”

Bottom Line: If you don’t retain an expert, all you have is sour grapes.

Edward X. Clinton, Jr.