November 21, 2014

Can a Defendant in a Professional Liability Case be Asked for His Opinions?

For those of us who practice in the area of professional liability defense, there remains the question of whether to designate a client as an “expert.” This is true whether the defendant is an attorney, doctor, accountant, or any other type of professional. An expert is allowed to give his opinions as to the ultimate issues of liability and causation. Having the defendant also act as an expert subjects the client at his deposition to questions about his opinions on these matters rather than limiting the questions to only facts of the case (i.e. what happened in the incident). It typically means that the defendant must review all of the evidence and also be prepared to explain and defend his opinions. Usually, litigating attorneys decide not to offer the defendant as an expert, which avoids requiring him to answer questions about his opinions, particularly opinions formed after the fact, based upon investigation and with the ability to review all the evidence.

Interestingly, on August 19, 2014, in Petrancosta v. Malik Case No. 3:12-CV-00677 (U.S. M.D. Pa.), Magistrate Judge William I. Arbuckle issued an opinion and order that a defendant could be asked for his expert opinions on his own conduct even if those opinions will ultimately be inadmissible. In this case, the defendant is a physician; however, nothing in the opinion limits the holding to doctors. Further, although this is a federal opinion, the rational applied would also apply to the Pennsylvania courts. The judge specifically distinguished several opinions that defense attorneys in the past have traditionally relied upon to prevent these types of questions from being asked of their clients. Therefore, although it remains to be seen what the state courts will do with this issue going forward, clever plaintiff’s attorneys will start pushing for responses to these types of questions.

At this time, a professional liability case brought in federal court in Pennsylvania will mean that the defendant can, and likely will, be asked about any opinions he has about the case. It remains to be seen whether the state courts will follow.

In this case the judge did not address whether the defendant can be asked about his opinions as to other defendants. The holding is limited to opinions about his own conduct. In Pennsylvania, the case law is clear that the defendant, unless designated as an expert, cannot be compelled to give his or her opinions as to the conduct of other defendants.

We will continue to monitor case law in this area in Pennsylvania as it continues to develop. If you have questions about professional liability defense and this case in particular, contact jmcguire@c-wlaw.com.

What It Means to You

What This Means to Professionals Who are Defendants

Consideration early on must still be given as to whether you will hold yourself out as an “expert” to the jury. If you are a client who is also considered to be an expert, you must be prepared for questions about not only what you did and why you did it at that time, but also whether you still believe you made the right decision and whether additional facts might have changed your opinion.

What This Means to Professional Liability Adjusters

Be certain to have the lawyer discuss with the insured the issues raised in this article. There may be occasions where the insured will have to admit that an unknown fact or that hindsight would have changed what he did under the circumstances. These issues must be fleshed out prior to depositions being taken to avoid surprises and to allow everyone to be prepared on how to address the effects on the case going forward. A motion in limine may be required prior to trial to preclude these opinions if the insured has not been designated as an “expert.” This also should be discussed with counsel.