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Insurance – Duty To Defend – Legal Malpractice – Expert Witness

Deborah Elkins//March 1, 2010

Insurance – Duty To Defend – Legal Malpractice – Expert Witness

Deborah Elkins//March 1, 2010

A Richmond U.S. District Court excludes each side’s expert witness in this dec action by a malpractice carrier who says a lawyer did not timely notify it of a possible claim arising from the lawyer’s drafting a marital settlement agreement.

Plaintiff carrier moves to exclude the testimony of lawyer Donald Butler, and defendant lawyer moves to exclude expert testimony of lawyer David Masterman. Both Butler’s and Masterman’s proffered evidence are inappropriate for this case. While it would be helpful to the jury to have an expert testify about asset classification in an equitable distribution case, neither expert’s opinion addresses that concise issue. Instead, both experts only offer opinions as to the reasonableness of the policyholder’s conduct; the reasonableness of the resulting damages based on that conduct; and the foreseeability and reasonability of a claim for damages against defendants. Expert testimony is inappropriate for such matters; instead they are factual issues that lay jurors can independently understand and assess.

Defendant also asserts that Masterman’s testimony is inadmissible because his report was “ghost-written” by counsel for the carrier. The court will briefly address this allegation only because of the nature of the allegation suggesting improper conduct by counsel.

It appears from the submissions that counsel for the carrier did not prepare Masterman’s expert report from “whole cloth,” and then simply ask him to sign it as his product. Instead, Masterman reviewed several pieces of evidence before he formulated his opinion and related it to counsel for the carrier.

Only after receiving Masterman’s verbal opinion did counsel draft the report. Upon receiving an initial draft of his expert report, Masterman reviewed the draft, made changes to it and had a conversation with counsel for the carrier reviewing the report paragraph by paragraph. After those changes were made, Masterman again reviewed the report and only signed it once he was satisfied with the changes that were made. It is clear Masterman played a much larger role in drafting his report than just reading what counsel drafted for him and signing it. It is not improper for counsel to assist in the drafting of an expert report; it is only improper where counsel has prepared the report from “whole cloth” with little or no input from the expert. Only then is the report not the expert’s own opinion. That is not the case here. The court rejects defendant’s argument that Masterman’s report was ghost-written by the carrier’s counsel.

Counsel can certainly argue that the policyholder lawyer’s actions were or were not reasonable, as counsel can also argue whether or not a claim for legal malpractice was foreseeable. Lay jurors will be able to understand and appreciate the evidence as presented to them, without expert testimony on such matters.

The court finds Butler’s proposed testimony is inappropriate for the same reasons that Masterman’s testimony is inappropriate in that Butler would opine on issues that are within the province of the jury to determine, and on which expert testimony would be inappropriate. The court also notes that even if defendants propose to have Butler testify as a “professional in the field,” rather than an expert, Butler’s testimony would still be inadmissible.

The court grants each side’s motion to exclude expert testimony.

Minnesota Lawyers Mut. Ins. Co. v. Batzli (Dohnal, J.) No. 3:09cv00432, Feb. 19, 2010; USDC at Richmond, Va. VLW 010-3-078, 7 pp.

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