IN THIS ISSUE

THE USE OF EXPERT TESTIMONY IN PROFESSIONAL MALPRACTICE ACTIONS
Leslie McHugh, Esquire and Kevin Kelly, Esquire

IN A PENNSYLVANIA BAD FAITH CASE, PLAINTIFF MAY BE ENTITLED TO LEGAL COSTS IN ADDITION TO ACTUAL AND PUNITIVE DAMAGES

Christopher J. Poulos, Esquire and Lawrence M. Kelly, Esquire

NJ AFFIDAVIT OF MERIT STATUTE

John H. Maucher, Esquire and Daniel J. McCarthy, Esquire

MSZL&M WINS SUMMARY JUDGMENT IN ROCK CONCERT INJURY CASE

Steven N. Cherry, Esquire and Phillip B. Silverman, Esquire

MSZL&M SUCCESSFUL IN HAVING $550,000 DEFAULT SET ASIDE
George W. Vokolos, Esquire and Phillip B. Silverman, Esquire

PITTSBURGH/WEST VIRGINIA OFFICE MOVES TO NEW LOCATION
Jay E. Mintzer, Esquire

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THE USE OF EXPERT TESTIMONY IN PROFESSIONAL MALPRACTICE ACTIONS

By Leslie McHugh, Esquire and Kevin Kelly, Esquire

It is axiomatic in a medical malpractice action that an expert's testimony is required for plaintiff to make out a prima facie case. Plaintiff, must, in sum, prove that the defendant deviated from the standard of care, and that such deviation was the proximate cause of plaintiff's damages, "unless the matter is one which is within the experience of an ordinary juror. This is so, because, without an expert's assistance, a jury will have no understanding of what constitutes reasonable behavior in a complex and technical profession, such as medicine". Paul v. Boschenstein.

However, in other areas of "professional" malpractice is an expert's opinion always necessary to prove negligence? Generally, the rule is that "an expert should be allowed to offer an opinion when it would be helpful to clarify an issue involving professional or scientific knowledge or skill that is not possessed by the ordinary juror". Edgewater Apartments, Inc. v. Flynn. An argument can almost be made, with regards to other professions, however, that the rule is based on common sense. Thus, in Merlin Biomed Asset Management v. Schoor, a legal malpractice action, the court held that "a lawyer's role in drafting purchase and money marketing agreements in the field of hedge funds and financial companies is not part of the jurors' ordinary daily experience; and without an expert's testimony, they are not equipped to measure an attorney's conduct". Likewise, in Greene v. Payne, Wood and Littlejohn, the court noted that an expert is needed in the "subtle and complex area of pendent jurisdiction". However, in Serhofer v. Groman Wolf P.C., it was determined that where plaintiff's claim in a legal malpractice action is based on the defendant's failure to fulfill a request to draft a particular contract provision, an expert's testimony is not necessary, because the allegation rests on principles of contract and agency, not negligence.

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	VOLUME 16 September 2006