2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

(expert testimony required in case involving complex real estate transactions and an attorney’sduties in representing a client in said real estate transactions); see also, Vadovsky v. Treat, 2010U.S. Dist. LEXIS 99099 (M.D. Pa. 2010) (expert testimony required when plaintiff’s allegationswere that defendant attorney breached “the duty to timely resolve the case, the duty of diligenceand the duty of honest and timely dealing with the client”).Expert testimony is also required to demonstrate that Plaintiff would have won theunderlying case had Defendant not been negligent. Int’l Land Acquisitions, 39 Fed. Appx. 751.Expert testimony in a legal malpractice case must be based on facts in the record, andexclusion of expert testimony that is without proper foundation is not error. Jones v. Wilt, 871A.2d 210 (Pa. Super. Ct. 2005) (trial court correctly excluded expert testimony premised on factfor which there was no support in the record; order granting summary judgment in favor ofdefendant lawyer was affirmed).In Miller v. Continental Casualty Co., 943 A.2d 330 (Pa. Super. Ct. 2007), appeal denied,960 A.2d 841 (Pa. Nov 20, 2008), the Superior Court addressed multiple issues arising out of alegal malpractice claim, including issues regarding qualifications required for expert witnesses inlegal malpractice cases.By way of background, following a forty-two day trial in which the jury found in favor ofPlaintiff, the trial court in Miller granted judgment notwithstanding the verdict on Plaintiff’slegal malpractice claim based on its view that all three of Plaintiff’s expert witnesses were notcompetent to testify as to the opinions they offered at trial.At trial, the trial court initially found all three of Plaintiff’s experts competent to renderexpert testimony. After considering Defendants’ post-trial Motion, however, the trial courtreconsidered and declared all three incompetent to testify as expert witnesses. The SuperiorCourt held that the trial court erred in so holding.The Superior Court stated that to be qualified to testify in a given field, a witness “needonly possess more expertise than is within the ordinary range of training, knowledge,intelligence, or experience.” Upon review of the record, the court held that each of the threeliability experts proffered by Plaintiff were competent to testify as expert witnesses as eachpossesses the requisite experience and training.The Superior Court next addressed Plaintiff’s argument that the trial court erred when itconcluded the evidence was not sufficient to support the verdict. The trial court found thatPlaintiff failed to establish that the Defendant’s conduct fell below the applicable standard ofcare. The trial court, in reaching its decision, relied on its analysis of testimony of Plaintiff’sliability experts, and concluded that each of the three experts had based their opinions onspeculation and conjecture.The trial court had reasoned that Plaintiff’s experts were not qualified to offer theiropinions regarding the standard of care applicable to insurance defense attorneys because theyhad either not been insurance defense attorneys or had ceased practicing insurance defense. TheSuperior Court rejected this contention and held that insurance defense attorneys “are not169