In the following guest post, Richard M. Leisner takes a look at recent case law developments in Texas that underscore the key role of expert testimony as well as problems that can arise with expert witnesses. The article also provides important examples of the importance of the proper deployment of expert witness testimony. Leisner is a Senior Member in the Trenam law firm in Tampa. I would like to thank Richie for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Richie’s article.
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Because I frequently serve as an expert witness in complex cases, I was drawn to a recent article pertinent to expert witness practice co-authored by Sabrina N. Geisler and Terrence P. McAvoy of Hinshaw & Culbertson.[i] The article summarizes a recent Texas Court of Appeals case (Chamblee Ryan, P.C. v. JBS Carriers, Inc.) [ii] recounting the unhappy results of two trials for JBS Carriers, one of the parties in both cases. In the first, JBS Carriers was a defendant in what at first seemed to be just a “fender-bender” personal injury case but resulted in a plaintiff’s verdict for $1.6 million.[iii] Then, JBS Carriers sued its counsel in the personal injury case for legal malpractice. JBS Carriers was initially victorious in this second case with a jury verdict of $1.4 million. But the defendant law firm appealed. Because of the failure to provide necessary expert testimony, the Court of Appeals did not reverse the verdict of legal malpractice but did slash the verdict to zero. JBS Carriers was left with a valueless “victory.”
In each case, expert witness testimony played a key role in the result: some expert testimony was given but was not effective; some expert testimony was proffered but not accepted; and some expert testimony was planned for trial but not proffered. I was intrigued by the events and usual results. I hope this case will be a springboard to consider various elements of effective expert witness practice and relate those elements to what happened in the JBS Carriers litigation.
To provide context, this article will next provide more facts about these cases.
The litigation resulted from a traffic accident in 2014. George Oliver was stopped at an intersection when the car in which he was riding was rear ended by a JBS Carriers’ vehicle. In the litigation that followed, the parties were not concerned with JBS’ fault, which was admitted. The parties were focused on determining the dollar value of damages for Mr. Oliver’s injuries and the amount and reasonableness of Mr. Oliver’s then current and likely future medical expenses.
The Chamblee Ryan law firm was counsel for JBS Carriers. Initial informal consultations with defense experts indicated that Mr. Oliver was not seriously injured. As a result, such experts expressed the view that Mr. Oliver’s medical expenses were excessive, and any future expenses should not be great. Discovery took place over several years and included informal settlement communications, but the parties never came to a meeting of the minds about settling the case. Meanwhile, as years passed, Mr. Oliver’s out-of-pocket medical expenses grew larger and larger.
Finally, in 2018, the matter was contested in a jury trial. At the end of the trial, the jury presented Mr. Oliver with a plaintiff’s verdict of $1.6 million.
JBS Carriers then sued their defense counsel (the Chamblee Ryan firm) for legal malpractice. The jury in the malpractice action returned a $1.4 million verdict in favor of JBS Carriers. Upon appeal by Chamblee Ryan, the Texas Court of Appeals (Ninth Circuit) did find in JBS’ favor but did so after wiping out the $1.4 million jury verdict and delivering a “take nothing” judgment to JBS Carriers.
There were several bases underlying JBS’ malpractice claims against Chamblee Ryan, the most prominent one being the assertion that a competent attorney in similar circumstances would have settled Mr. Oliver’s personal injury claims sooner and for a lesser amount than the verdict.[iv] Settlement opportunities presented themselves several times – before trial, during trial and after verdict.
In the legal malpractice case, JBS’ counsel relied on the $1.6 million plaintiff’s verdict and testimony from the parties to prove the damages caused by Chamblee Ryan’s legal malpractice. JBS’ counsel presented no expert testimony about settlement practices and amounts of settlements in comparable situations.
The Court of Appeals reviewed the case history, including events involving Chamblee Ryan’s defense experts in the underlying personal injury action. The Court of Appeals was far from complimentary about the contributions from Chamblee Ryan’s expert witnesses, Drs. Fulford and Gwin. Their anticipated testimony was aimed at questioning the amount of Mr. Oliver’s medical expenses, the need for future medical services and the extent of injury from the rear end impact on Mr. Oliver’s vehicle.
William Chamblee, the firm’s senior partner, led the defense from inception up to the time of the trial. A week before trial Mr. Chamblee became unavailable and did not participate in the trial. The defense was led by less experienced attorneys who were also less familiar with the case history.
The pre-trial defense plans to attack the reasonableness of current and estimated future medical expense did not come to fruition at trial. Dr. Fulford did not pick apart the extent and dollar amount of medical expenses. Dr. Fulford testified that Mr. Oliver’s medical treatment was “appropriate.” The Court of Appeals does not report how or why Dr. Fulford’s testimony varied from his prior advice and the planned testimony.
The trial court significantly limited the anticipated testimony of Dr. Gwin, a biomedical expert for the defense. At trial, the court did not permit Dr. Gwin to testify about rear-end impact issues (thus, there was no testimony to challenge the information presented on Mr. Oliver’s behalf on that topic).[v]
The Court of Appeals noted that Chamblee Ryan’s evaluation of their own expert (Dr. Fulford) was far from a ringing endorsement : [Dr. Fulford was] “average at best and is many years removed from working as a surgeon.” Mr. Oliver’s counsel offered a less enthusiastic evaluation: “[Dr. Fulford] didn’t do a good job in his report or in his deposition or at trial.. . . . I think he was not average at best. He was terrible at best.”[vi]
Ultimately, it does not appear that the quality of the expert testimony by Drs. Fulford and Guinn was determinative to the Court of Appeals’ ruling. Instead, the Court of Appeals dealt with the malpractice action on the legal requirements to prove damages in an action for legal malpractice when failure to settle the underlying case is at issue. The Court of Appeals ruled that qualified expert witness testimony about timing for settlement and the amount of settlement in similar personal injury litigation was the sine qua non for the entire legal malpractice action.
JBS’ counsel asserted expert testimony was unnecessary – that the $1.6 million verdict and testimony of the parties about their experiences in the case at issue were sufficient. The Court of Appeals rebuffed these assertions, finding their personal experience was insufficient to establish a breach of the standard of care and a link from the breach to damage causation. Expert testimony was required about timing and amounts of settlement in similar personal injury cases from attorneys with sufficient experience to qualify as “experts.” The absence of admissible testimony about both damages and causation was fatal to the legal malpractice action.[vii]
The Court of Appeals made admissible expert testimony regarding the amount of damages the keystone to the malpractice suit. Without such testimony, the entire malpractice case collapsed. The Court of Appeals voided the $1.4 million legal malpractice jury verdict against Chamblee Ryan.[viii]
JBS Carriers had lost twice on the same facts – once as a defendant at trial and second as the plaintiff in a legal malpractice action about the performance of its trial counsel in the initial losing action.
As a “post-mortem” for the JBS Carriers litigation, this article will consider how well the strategy and tactics of the two counsels for JBS Carriers measured up against effective expert witness practices.
- Why does a case need an expert witness?
If you have a “good” lawyer, why should you ever need an expert witness? Did you hire the wrong lawyer or bad lawyer if they are suggesting that you need an outsider expert witness?
The raison d’être for the presence of expert witnesses in the court room is that issues crucial to the outcome of a case involve technical, scientific or other issues the understanding of which is beyond the general understanding of lay persons (i.e., jury members and often the judge). Permitting testimony from qualified expert witnesses bridges this “understanding gap” and enables lay persons to arrive at more just results than might otherwise would have been the case without such testimony.[ix]
While experienced litigation counsel might be able to explain “everything” pertinent to a particular cause of action (in this case, personal injuries and auto accidents), their explanation – no matter how clear – will likely be perceived by the jury as trial advocacy slanted to the benefit of the lawyer’s client and given less weight than that provided by an individual independent of counsel with demonstrable special expertise. Expert witness engagement is an integral part of American jurisprudence.
| Personal Injury (Yes, testified). Issues about the extent of Mr. Oliver’s injury and “reasonable” current and future medical expenses were exactly the type of issues that call for expert witness testimony. The Court of Appeals reported on JBS experts’ participation in the personal injury case.[x] |
| Legal Malpractice (No, no testimony). The Court of Appeals ruled that expert witness testimony was needed to provide admissible evidence for the jury to determine whether JBS Carriers suffered any damages as a result of the quality of the legal services Chamblee Ryan provided in defending the personal injury case. The failure to proffer such testimony compelled the Court of Appeals to erase the $1.4 million jury verdict in favor of JBS Carriers. The Court of Appeals does not tell us why counsel for JBS Carriers did not provide expert testimony. Was testimony proffered but not admitted? Was counsel trying to minimize costs? Did counsel really believe the $1.6 million verdict was sufficient admissible evidence of damages? In legal malpractice actions, “everyone knows” you need expert testimony to establish a breach of the standard of care. When the alleged legal malpractice conduct at issue is counsel’s failure to settle the subject litigation, the standard of care analysis, according to the Court of Appeals, must be based upon expert witness testimony about how similarly situated counsel in similar cases dealt with these issues. |
The JBS Carriers litigation teaches both counsel and experts to carefully consider no later than the time case strategy is being developed if and in what areas expert testimony will be needed.
2. Who Should be Your Expert Witness?
Rule 702 provides the criteria for a testimonial expert witness: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education [whose] . . .scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”
| Personal Injury (Yes, but. . ;). Drs. Fulford and Gwin must have had sufficient credentials to make their way to witness stand to testify as experts in the trial. According to the Court of Appeals, neither earned high marks for their expert witness qualifications. Dr. Fulford was “years removed from surgery.” Because Dr. Gwin’s proffered injury impact testimony was so limited, it is fair to ask if her credentials were deficient for the task assigned? In the four years’ time between the accident and the trial, why didn’t Chamblee Ryan seek out or otherwise consider other better experts? |
| Legal Malpractice (No). At trial, there was testimony from “non-expert” witnesses about the amount of damages suffered, including from the $1.6 adverse jury verdict and other expenses. But there was no expert witness testimony about settlement of similar cases. The Court of Appeals ruled that the issue of damages had to start with expert testimony about settlement results in similar cases. Without such testimony, determination of damages ended before it even started. Again, we are left to ponder what JBS counsel may have done (or failed to do) about engaging experts with personal injury settlement experience. |
3. What Opinions Should Your Expert Provide?
The Federal Rules of Civil Procedure[xi] require disclosure of expert witnesses, disclosure of anticipated expert opinions/testimony and delivery of any written report. Typically, the details of for expert witness timing will be included in case management orders. Each side in litigation should know what expert testimony will be offered by the other. As will be noted below, such testimony does not have to be presented “cold.” Engaging counsel will usually work with their experts on the outline of anticipated opinions, the form and content of written expert reports and trial testimony.
| Personal Injury. The Court of Appeals reports briefly on Dr. Fulford’s anticipated testimony about medical expenses in the course of reviewing the case history and increasing medical expenses (and Dr. Fulford’s informal views that they were excessive/unnecessary. It invests little time on the extent of Mr. Oliver’s injuries after the initial report alleging Mr. Oliver to have reported that he suffered more serious injuries in a football practice than in the subject crash. The Court of Appeals simply reports that Dr. Gwin’s testimony was limited, and she was not permitted to testify of the results impact forces of the crash. |
| Legal Malractice. It appears that counsel for JBS Carriers did not plan on expert witness testimony or a written report to support claims for legal malpractice. Counsel for JBS Carriers asserted that the amount of the amount of the verdict in the personal injury case established the amount of damages. The Court of Appeals found this analysis legally insufficient (and therefore also legally insufficient to establish causation). With hindsight, is appears that counsel for JBS Carriers should have added an expert witness on legal malpractice in settling personal injury cases even if it were “certain” that the adverse verdict itself would be sufficient to carry the burden. If there is a risk that your case may require expert testimony, it should be addressed early on so that the client may make an informed decision if they choose to forgo the testimonial expert. |
Engaging counsel and the expert witness should work collaboratively identifying, developing and refining anticipated expert opinions/testimony. Even if not required by applicable rules or case management orders, they should consider approving the expert’s preparation of a written expert report. Authoring an expert report focuses the attention of the expert witness (and engaging counsel) on the strengths and weaknesses of their opinions. There is significant additional time, effort and expense involved in preparing an expert report. Eschewing such undertakings may save some client funds but may also result in unhappy results.
4. When Should You Engage Your Expert?
The Court of Appeals did not address the timing of the engagement of the experts in either the personal injury or the legal malpractice cases.
As noted above, applicable rules of civil procedure, case management orders and negotiation with opposing parties and their counsel will establish the dates by which experts should/must be disclosed, written reports delivered and when experts must sit for deposition and respond to discovery requests.
Most engaging counsel experienced working with expert witnesses will tell you that they “always” engage their experts “very early” in the process and that they “always” involve their experts as “part of the team throughout the case.”
My experience as an expert witness varies significantly from what may be promised.
I cannot recall ever having an experienced litigation attorney say that there is “no need to rush out” and engage an expert witness early in a case or that they always plan to engage their experts only when they absolutely have to with little or no participation/guidance/input in writing expert reports or preparing for deposition or trial testimony. In some of expert witness engagements, it has seemed as if the foregoing sarcastic remarks were in fact the mantra of my engaging counsel.
Even if an expert witness is “engaged” early in a case, some engaging counsel’s role vis-à-vis substantive content of anticipated expert testimony may rise to top-of-mind consideration (and action) only when a deadline approaches (e.g., delivery of expert report or attendance at deposition).
My experience suggests that the best answer to the question of “when should counsel engage their expert witness” is “sooner than most engaging counsel think they need to,” and that once engaged expert witness involvement should be substantive.
5. How Will You Work with Your Expert?
As was the case with timing of engagement, the Court of Appeals opinion does not directly address what should be encompassed in response to the inquiry about “working with your expert.” We are able to read between the lines and find some guidance from the Court of Appeals.
| Personal Injury. It appears that Chamblee Ryan was working closely with Dr. Fulford because the Court of Appeals reports on the communications between Dr. Fulford and Chamblee Ryan over the years after the accident and the planned trial strategy. But the Court of Appeals made a point to criticize Dr. Fulford’s performance at trial which failed, as had been planned, to be critical of the amount of out-of-pocket expenses or anticipated future medical needs. Perhaps the change in the Chamblee Ryan attorneys covering this case was the source of the disconnect between plans and execution.[xii] The Court of Appeals opinion provides no further information to explain Dr. Fulford’s surprising trial performance. Other than reporting on Dr. Gwin’s limited trial participation, the Court of Appeals does not report on what had been planned. The results suggest that there was a gap in the coordination between engaging counsel and expert witness. Regardless, the results were not client-favorable. |
| Legal Malpractice. As noted above, there was no expert witness testimony presented in the legal malpractice trial. The Court of Appeals does not report if JBS’ counsel considered engaging experts on personal injury settlement practices. |
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Considering the “why,” “who,” “what,” and “how” of using expert witnesses requires thoughtful coordination among engaging counsel, the client and the expert witness. Chamblee Ryan v. JBS Carriers illustrates that the failure to make proper use of any of the essential expert witness practice elements may be the harbinger of adverse results.
[i] Sabrina N. Geisler and Terrence P. McAvoy, “Lack of Expert Testimony Results in $1.4 Million Legal Malpractice Verdict Being Overturned,” Hinshaw & Culbertson Lawyers for the Profession, Legal Updates June 24, 2024, available at Lack of Expert Testimony Results in $1.4 Million Legal Malpractice Verdict Being Overturned (hinshawlaw.com).
[ii] Chamblee Ryan, P.C. v. JBS Carriers, Inc. 691 S.W.3d 797 (Texas Court of Appeals, 9th Cir. June 12, 2024).
[iii] The actual verdict of $1.683,608.70 was closer to $1.7 million. 692 S.W.3d 797, 806.
[iv] Chamblee Ryan had also missed the deadline for filing an appeal of the personal injury case. 691 S.W.3d 797, 806.
[v] The Court of Appeals opinion does not explain the nature of Dr. Gwin’s anticipated testimony that was limited or the reason(s) why such anticipated testimony was limited. Similarly, there is no explanation why Dr. Gwin was not allowed to testify about injuries resulting from the rear-end impact suffered by Mr. Oliver.
[vi] 692 S.W.3d 797, 806.
[vii] The Court of Appeals found “the requirements for proof of damages . . . is dispositive [to the entire action].” 692 S.W.3d 797, 811.
[viii] Deficient performance by Dr. Fulford and limited testimonial participation by Dr. Gwin in the 2018 trial accordingly were not directly at issue in the Court of Appeal’s 2024 decision. Nevertheless, one may wonder whether better experts and better expert testimony in 2018 personal injury trial could have brought a defense verdict or at least a substantially lower damage award for Mr. Oliver.
[ix] Rule 702, Federal Rules of Evidence. The interpretation of the Rule 702 and other rules of evidence or civil procedure governing expert witness qualification and the boundaries of expert witness testimony are beyond the scope of this article.
[x] The Court of Appeals does not report on the substance of expert witness testimony provided on behalf of the party opposing JBS Carriers.
[xi] Rule 26 of the Federal Rules of Civil Procedure (2023). Many state rules of civil procedure include similar provisions.
[xii] Senior partner William Chamblee had led the defense from the start of the litigation but became did not participate in the trial, which was left to two less experienced attorneys, Braden Cole and Matt Loving. The insurance company adjusters were familiar with Dr. Fulford’s criticism of Mr. Oliver’s medical expenses. They were “surprised” by the ineffective testimony of Dr. Fulford.