Which claims require consulting with an expert witness prior to filing a lawsuit?
Parties to litigation often employ the services of expert witnesses during litigation and at trial. Generally, a person is qualified as an expert if he or she has special knowledge, skill, experience, training or education about the subject on which his or her testimony relates. (Evidence Code section 720). For most claims, a plaintiff (or cross-complainant) is not required to consult with an expert prior to filing a lawsuit. Accordingly, experts are often brought on after the litigation begins. However, in a few circumstances, a plaintiff must think about consulting with an expert witness prior to filing a lawsuit.
When a plaintiff files a malpractice action against certain types of professionals, he or she must consult with an expert prior to filing a lawsuit, subject to a few exceptions. (Code of Civil Procedure section 411.35) Specifically, a plaintiff must consult with an expert before filing a professional negligence suit against:
1.) A professional architect
2.) A professional engineer
3.) A person holding a valid land surveyor’s license
This rule has some practical appeal. The work performed by an architect, engineer or land surveyor is often complex and analyzing mistakes requires a technical understanding of the respective trade. Accordingly, a layman, or even an experienced attorney, may not fully understand the nuances when analyzing whether a claim for malpractice against these professionals is appropriate. Experts can examine the underlying merits of the claim and offer an opinion on whether an action has merit. (Adams v. Rosas (1986) 183 CA3d 498, 504.)
In malpractice lawsuits against an architect, engineer or land surveyor, the plaintiff must file and serve a “certificate of merit” showing that he or she has consulted with an expert in the appropriate field, or alternatively, provide a valid excuse for failing to do so. (CCP 411.35.) Valid excuses to the consult requirement may include: 1) if an attorney has contacted at least 3 professionals and all refuse to consult, 2) the plaintiff intends to rely solely on the legal doctrine of res ipsa loquitur, or 3) the statute of limitations is set to imminently run. (Id.)
If you believe you have a professional liability claim against an architect, engineer or land surveyor, you may want to consult with an attorney. The real estate litigation attorneys at Schorr Law have years of experience representing clients in malpractice actions against architects, engineers and land surveyors. As a result, Schorr Law has built long-standing relationships with top experts in and around Southern California in each of these fields. Contact Schorr Law for a free consultation today.