Archive for March, 2011

01
Mar
11

Expert witness standards in legal malpractice clarified

In Wilson v. McNeely, 307 Ga. App. 876, 705 S.E.2d 874 (2011), the Court of Appeals addressed a legal malpractice case for the third time, this time on the issue of admissibility of expert testimony.  McNeely represented Wilson in connection with a real estate closing.  Wilson later sued McNeely for malpractice.  At trial, Wilson offered his brother to testify that the standard of care was breached.

Momma always said I was an expert

The Court addressed the test for the admissibility of a professional in a professional liability case, and specifically OCGA § 24-9-67.1 (c). To be admissible, “at the time the act or omission is alleged to have occurred, such expert” must have been “licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time[.]” OCGA § 24-9-67.1 (c).

The Court summarized its analysis of the statute:  “in order to comply with the licensing requirement of OCGA § 24-9-67.1 (c) (1), an expert in a professional malpractice action must be licensed and practicing (or teaching) in one of the states of the United States at the time the alleged negligent act occurred.”  Citing Craigo v. Azizi, 301 Ga. App. 181, 186-187, 687 SE2d 198 (2009).

The Court further explained that the practice or teaching qualification is a legal determination for the trial court subject to an abuse of discretion standard, citing HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 642, 697 SE2d 770 (2010) and Moran v. Kia Motors America, 276 Ga. App. 96, 97 (1) (622 SE2d 439) (2005).

The evidence before the Court was as follows:  at the time of the alleged negligence about which the witness would testify, (1) the witness was a member in good standing of the State Bar of Georgia; (2) witness did not have a municipal business license as an attorney; (3) witness did not have malpractice insurance coverage; (4) witness worked in a family wholesale equipment distribution business and described his principal occupation as “merchant;” (5) described himself as “somewhat corporate counsel” for that business; (6) he did not perform typical legal functions such as representing his company or any other litigant in court, drafting or filing pleadings; preparing deeds or other conveyancing documents, or searching property title records or performing the legal tasks inherent in closing real estate transactions.

The Court of Appeals confirmed that OCGA 24-9-67.1(c)(1) applied to all professional negligence experts.  The Court also rejected the trial court’s analogy regarding OCGA 24-9-67.1(c)(2).  That statute, which limits medical malpractice experts to those in areas of speciality about which they are testifying, does not apply outside of medical malpractice cases.  Although the trial court analogized that provision to the rejected attorney witness in the case, the Court of Appeals found the analogy harmless since the evidence supported the finding that the witness did not qualify under OCGA 24-9-67.1(c)(1).

Prior to the enactment of OCGA 24-9-67.1(c)(1), the testimony of an a licensed attorney would likely have been admissible under the facts of this case.  This case provides some clarity as to what may be required to establish an attorney is “practicing law” sufficient to offer expert testimony in a professional liability case.

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