Metropolitan News-Enterprise


Wednesday, May 20, 2020


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Ninth Circuit:

Legal Malpractice Action Properly Axed In Light of Lack of Expert Testimony


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed a summary judgment against six Alaska Airlines flight attendants who sued for malpractice claiming that their former lawyer botched a products liability case tried in Orange Superior Court, with the panel rejecting their contention that the representation was so obviously shoddy that expert testimony was not needed.

Under California law, a three-judge panel said in a memorandum opinion issued on Monday, it is rare that such testimony can be dispensed with in a legal malpractice action and, it declared, this was not such a case. It also agreed with the court below that a claim for breach of fiduciary duties could not withstand scrutiny.

The opinion upholds the judgment by U.S. District Court Judge James V. Selna of the Central District of California in favor of Scott Poynter, an Arkansas lawyer, and Poynter Law Group, a Little Rock law firm he and his wife run. The six plaintiffs had been among 164 clients he represented in an unsuccessful Orange Superior Court action against Twin Hill Acquisition Company, Inc., which manufactured the uniforms they wore.

The employees claimed in that 2013 state lawsuit that they suffered various maladies, including skin irritations and headaches, as a result of toxic chemicals in the fabrics. However Orange Superior Court Judge William D. Claster in 2016 found that “[a]t the end of the day, the Plaintiffs’ case borders on speculation,” not hard evidence “that the low levels of chemicals found in the uniforms could have caused their symptoms.”

Appeal Rights Waived

Poynter negotiated a settlement under which plaintiffs could avoid costs being imposed on them by waiving their appeal rights. On his advice, 158 did so; the six who brought the malpractice action against Poynter and his firm did not, and said in their First Amended Complaint, filed Aug. 2, 2017:

“As a direct and proximate result of the aforesaid negligence and/or intentional failures of Defendants, Plaintiffs lost their case at trial. Costs were awarded against Plaintiffs in the amount of $212,798.29 on January 3, 2017.”

However, after they brought an appeal from the Orange Superior Court judgment, they, too, agreed to a “walk-away” settlement.

Plaintiffs’ Allegations

In suing Poynter and his firm, the flight attendants contended that they never authorized Poynter to waive their right to a jury trial on all issues and asserted that the lawyer blundered by not having the medical expert whose services he engaged examine a sufficient number of the plaintiffs.

It was retired Los Angeles Superior Court Judge Carl West, now of the alternate dispute resolution firm of JAMS, who suggested after an unsuccessful attempt at mediation that there be a bench trial on the general issue of liability, separated from damages, rather than the parties plunging into a protracted jury trial as to the harm allegedly suffered by each plaintiff. Poynter claimed that the plaintiffs knew that this was to be the strategy.

Plaintiffs in the District Court action recited that Claster had faulted their side for not having had an adequate number of plaintiffs examined by the medical expert who testified on causation, and  asserted that Poynter thus failed in carrying out his duties to them in not bringing that about.

District Court Decision

Selna held:

“[T]he absence of any experts in support of Plaintiffs’ theory of malpractice liability is dispositive. Plaintiffs’ argument that they are not required to present expert testimony because Defendants’ breach of duty is so clear as to be easily understood by a lay person is unpersuasive….It is not within a lay person’s common knowledge whether an attorney breaches the relevant professional standard of care by making a strategic legal decision to pursue a general causation bench trial on a common theory of liability for all plaintiffs in a mass toxic tort case.”

He continued:

“Also outside a lay person’s common knowledge are the steps that a reasonably competent attorney should take in instructing and utilizing a medical expert witness in a mass toxic tort case. Therefore, without expert testimony, there is no evidence from which the trier of fact could make a finding of legal malpractice. Thus, Plaintiffs fail to meet their burden of demonstrating a genuine issue of material fact regarding the applicable professional standard of care or Defendants’ breach of duty, essential elements of legal malpractice for which Plaintiffs will carry the burden of proof at trial.”

Ninth Circuit Opinion

Agreeing, the Ninth Circuit panel—comprised of Circuit Judges William A. Fletcher and Kenneth Kiyul Lee, joined by District Court Judge Benjamin H. Settle of the Western District of Washington, sitting by designation—agreed, said:

“The district court properly granted summary judgment on Appellants’ legal malpractice claim because they failed to provide necessary expert testimony in support of the claim. Though California’s expert testimony requirement in a legal malpractice action contains a common knowledge exception…, the district court correctly determined that neither choosing a strategy to prove causation in a mass toxic tort action nor preparing an expert witness to testify on causation is within a jury’s common knowledge.”

Their opinion proclaims:

“Thus, the district court correctly determined that as Appellants had the burden to supply expert testimony in support of their claim that Poynter breached the professional standard of care, their failure to do so on summary judgment was dispositive.”

‘Different Grounds’

The panel also agreed with Claster that the plaintiffs’ claim for breach of fiduciary duty had to fall, but said it affirmed “on slightly different grounds.”

Claster had observed that, in general, the plaintiffs failed to show their claim for breach of a fiduciary duty did not merely duplicate the one for malpractice and that they produced no California authority for allowing repetitive claims in an action. The Ninth Circuit opinion says:

“Without substantive California authority clearly prohibiting these particular overlapping claims, it is not clear that factual duplication on its own provides an appropriate basis to dismiss every breach of fiduciary duty claim with the same actual predicate as a legal malpractice claim.”

However, examining the substance of the claims, the court set forth:

“We…find that summary judgment on Appellants’ breach of fiduciary duty claim was proper, not because duplicative claims are necessarily impermissible, but because the claim was actually for legal malpractice outside the common knowledge exception, which required expert testimony.”

The case is Chastain v. Poynter Law Group, 18-56592.


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