Kansas: Plaintiffs granted new trial due to court’s ruling on the inclusion of expert witnesses

Link for opinion: http://ftp.resource.org/courts.gov/c/F2/950/950.F2d.643.88-1596.html


In Werth v. Makita Electric Works LTD, 950 F.2d 643, (KS 1991), the United States District Court of the District of Kansas erred in not allowing the testimony of the Plaintiff’s expert witnesses.

The United States District Court of the District of Kansas reversed the original court’s decision and remanded the case for a new trail due to the error of the trial judge’s exclusion of the expert testimony of two of the plaintiff’s expert witnesses.

The plaintiff’s Gilbert and Kathleen Werth filed a suit on behalf of their minor son, Chris, who had his fingers severed due to the malfunction of the defendants Makita Electric Works 7 ¼ inch circular saw while cutting a piece wood paneling. Chris has experience in the use of power tools including circular saws having used them at school and on the farm without any problems.

The complaint against Makita alleges three different counts however the plaintiffs elected to proceed with one count claiming the circular saw was defective in that the equipment was not equipped with either a blade brake or riving knife and the instruction manual contained in adequate warnings and instructions.

Makita sought to preclude the testimony of the plaintiff’s expert witness asserting he was not qualified under Fed.R.Evid.702 to testify on the proper design, function or operation of circular saws, blade brakes or riving knives. Plaintiff’s counsel said the accident was the result of the kickback of the saw that was caused by the wood binding of the wood on the rotating blade which forced the saw blade up out of the kurf (the cut made by the saw in the wood).

Makita’s counsel claimed that the incident happened at a result Chris’ carelessness in putting his hand under the paneling where it was exposed to the saw blade. Their claim is based on the fact that Chris’ cut was on the palm side. Because Chris could not recall exactly how his hand made contact with the saw blade, he conceded that it was possible that he placed his hand under the wood when steadying it.

As a result of the two expert witnesses not being able to testify, the plaintiff’s motion for a new trial was not granted. However the standards governing admission of the evidence, the admission of expert testimony is guided in federal court by the Federal Rules of Evidence 702 and 703. In Rule 702 is states “if specific, technical, or toehr specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Rule 703 states “the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonable relied upon by experts in the [articular field in forming opinions or inferences upon the subject, the facts or date need not be admissible in evidence.”

As a result of Rules 702, 703 and 704 the expert witnesses were allowed to testify and a judgment was reversed and the case was remanded for a new trail.

Connecticut: Thinking about bringing lawyer to court for legal malpractice? Think again.

Link for opinion: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP109/109ap426.pdf

In Ackerly and Brown, LLP v Richard Smithies among many others found on the State of Connecticut Judicial Branch website (http://jud.ct.gov/) the issue of legal malpractice was brought forward but the court system ruled on the side of the attorneys.

In this case the attorney Michael Sconyers, partner in Ackerly and Brown, LLP, represented the Smithies’ in a lawsuit involving a failed residential lease. A third party sued them for damages. Conyers informed that the case could be settled for a lesser amount and to bring this to court would be expensive and the outcome would be uncertain. After a four day trial, they jury returned a verdict in favor of the third party and awarded damages of approximately $25,000. The damages ended up being reduced to $8000.

Sconyers filed a complaint seeking collecting of the outstanding balance owed by the Smithies’. Smithies’ filed and answer and counterclaim essentially claiming Sconyers had committed legal malpractice. Prior to the start of evidence, the plaintiff filed a motion to preclude the defendants from presenting any evidence regarding legal malpractice. The reason for filing this motion was the defendants’ failure to disclose an expert witness in accordance with the rules of practice. In the decision handed down by the court the absence of expert testimony proved fatal to the defendants’ claim of legal malpractice. In the Civil Jury Instructions 3.8-5 it is stated that malpractice is professional negligence. “Because jurors are probably unfamiliar with legal procedures, methods, etc…cannot be expected to know the demands of proper legal representation. It is for this reason that expert testimony is required to define the standard of care or the duty owing from the lawyer to his client….” (http://www.jud.ct.gov/JI/civil/part3/3.8-5.htm) If it is required that an expert witness is a necessary that can be a HUGE deterrent to clients wanting to bring a legal malpractice against their attorney. The cost might not be worth the effort.

After further research on the State Grievance Committee website on the State Connecticut Judicial Branch website many of the decision this was affirmed that most decision went in favor of the attorney and very rarely were recommended to higher courts for decision for discipline. When there was a recommendation for discipline to find out what that was for the particular attorney was difficult if not impossible to locate.