CSG Law Alert: Law Firm Can Sue Expert For Not Testifying in Contingency Case

The Appellate Division recently permitted a law firm to proceed with litigation against a former expert who had been poised to provide expert testimony on behalf of the law firm’s clients in a medical malpractice proceeding.  Prior to trial, the expert declined to participate, and the court denied the clients’ request for leave to seek another expert.  Thereafter, the action was dismissed.  Following the dismissal, the law firm filed an action against the expert on behalf of the clients, which was removed to federal court.  The expert sought to disqualify the law firm, who then withdrew as counsel in that litigation.

Subsequently, however, the law firm filed an action on its own behalf against the expert, claiming that the expert’s failure to participate at the trial of the medical malpractice action was, among other things, a breach of contract and negligence.  The law firm sought its own damages allegedly incurred as a result of the expert’s failure to participate.  The expert moved to dismiss the action, and that motion was granted in part and denied in part.  On a motion for leave to appeal, the Appellate Division considered the question of whether the law firm properly possessed a cause of action against the expert, and answered that question in the affirmative.  Specifically, the Appellate Division held: “[P]laintiffs were in large measure acting as the estate’s representative in their dealings with defendants, but that does not preclude either a derivative or independent right to relief if defendants’ negligence or breach of contract wrongly caused plaintiff[’]s injury beyond or different from the estate’s alleged injury.  The very nature of plaintiffs’ contingency fee arrangement with the estate reveals plaintiffs had a real stake in the outcome of the medical malpractice action because certain obligations incurred during the litigation would be solely borne by plaintiffs if no recovery was obtained and because a recovery in favor of the estate would also benefit plaintiffs.”  Joseph E. Collini, Esq. et al. v. National Medical Consultants, PC, et al., Docket No. A-2857-18T4 (App. Div. June 4, 2019) (emphasis added).  The court thus concluded that the trial court properly denied the motion to dismiss and negligence claims, although the court also concluded that the trial court should have stayed the action pending the disposition of the clients’ federal action against the expert, as the attorney’s claims were largely derivative of those of the clients.