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Dog Fight: Utilizing Summary Judgment as a Weapon in Defense of Meritless Professional Liability Cases

Posted on: 4/5/2012
Sean T. Devenney, William E. Kelley, Jr.
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Upon receiving a file to defend a professional liability claim, one of the first things attorneys do is start to consider interrogatories and requests for production in hopes of quickly ferreting out the issues in the case.  The limited goal with early interrogatories and requests for production is to provide an opportunity to assess the case with a fairly complete understanding of the plaintiff's position and the facts upon which that position is based.   With appropriate responses to the interrogatories and sufficient documentation, these early discovery responses can be used to set the strategy for the case and focus the issues.

However, the more questionable or undeveloped the facts supporting the plaintiff's case, the worse the initial discovery responses seem to be, and it is these cases that always seem to take the most time and money to bring to closure.  After all, when a plaintiff has a good case, why would he/she not be forthcoming with detailed answers to basic questions defining the injuries sustained and the mistakes made that resulted in those injuries? In those cases, there is money riding on thorough responses.  The least fun cases to handle are the "dogs"—the cases with undeveloped (at best) or questionable (at worst) fact patterns.  These are the cases where the discovery responses provide you with next to no information because the more information the plaintiff shares, the worse the case becomes.   In essence, for the plaintiff in these cases – the money is in obfuscation (within the rules), avoidance (within the rules) and defense costs (it's the American way).  There is no good early, efficient out.    

One great thing about working on professional liability cases is that for the most part, defense lawyers have at their disposal a weapon to control the plaintiff and perhaps eliminate the "dog" case in a cost effective manner.  A weapon that will make the plaintiff and his attorney expend resources to pursue their cause – which they tell you is just; but sometimes seems to be just about the money.  A weapon that is relatively easy to prepare.  A weapon that teaches the judge about the case before the case is tried, and highlights the unsupported nature of the allegations.   A weapon, that if used properly and precisely, will give you the information you need to understand the plaintiff's claims at worst, and win the case at best.  The weapon is summary judgment.

In most professional liability cases the plaintiff must prove that the defendant failed to meet the standard of care utilizing expert testimony.   See Narducci v. Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000); Hice v. Lott, 223 P.3d 139, 143 (Colo. App. 2009); May v. ERA Landmark Real Estate of Bozeman, 15 P.3d 1179, 1188 (Mont. 2000).

The rationale for requiring expert testimony to establish a standard of care for professionals acting in the professional capacity is that such professionals are required to possess a minimum standard of special knowledge and ability, and as a result juries which are composed of laypersons are normally incompetent to pass judgment on such questions without the assistance of expert testimony.

May, 15 P.3d at 1188 (Mont. 2000). 

This rule provides defendants with a "built-in" competitive advantage in dealing with truly unsupportable allegations of the plaintiff which are not available in simple negligence cases.  In simple negligence cases, the standard of care is measured against the reasonable man standard.  This means the lay jury is fully capable of determining what that standard is – what is "reasonable."  The types of questions the jury will be asked to resolve could be:  (1) Was it reasonable to fail to shovel the snow for three hours after the snow stopped falling?; (2) Was it reasonable for the defendant to swerve to miss the deer and enter the other lane?; or (3) Was it reasonable for the homeowner to fail to prune a dead tree limb?    Outside of settlement, the plaintiff will almost assuredly have the right to present his or her case to the jury with very little out of pocket costs. 

By contrast in the professional negligence case, the jury might be asked to resolve such questions as:  (1) Did the doctor commit malpractice during the course of the Sigmoidectomy?; (2) Did the accountant properly apply GAAP in valuing the company; or (3) Did the engineer properly account for the moment forces in the structural design? In these examples, unlike in the simple negligence cases, the typical lay jury has no understanding of the standard of care required to perform surgery, value a company, or design the structural steel for a building.  Since it is the plaintiff's burden to prove its case, the plaintiff cannot pursue the case without expending resources to obtain an expert to explain the standard of care required.   The defense attorney in a professional liability case has access to a "built-in" expert in the form of the client.   Although the client is typically far from "unbiased", an experienced defense attorney can account for the bias through secondary research and verification, and quickly assess the strength of the plaintiff's claims. 

So while the plaintiff has the upper hand in the typical negligence case because -- for the most part -- he or she can create a question of fact necessitating trial and perhaps leverage a defense cost settlement even in a "dog" case; a professional malpractice case requires more from the plaintiff.  This is where the litigator should at least consider turning toward a summary judgment motion sooner rather than later.

As mentioned above, assume that you have received the discovery responses on what you suspect is a "dog" case against the physician, architect, or accountant you are defending.  Further assume that your suspicion is validated when you realize the plaintiff has failed to answer basic questions about his or her case.  At this point, the litigator has to explore his or her options.


You could follow up with the plaintiff's lawyer telling the lawyer that the responses to the discovery are inadequate, that you need more detail, and that you will seek fees and costs if forced to go to Court on the issue.  The plaintiff's lawyer may sit on the letter for several weeks and then do one of two things – respond to the letter by supplementing the responses or explain to you why your accusation that the discovery responses are inadequate is baseless and that he or she will seek fees and costs if you push the issue to Court.  We all know how much the Court loves to involve itself in discovery disputes.  Occasionally, of course, the plaintiff's lawyer chooses to supplement the responses, but more often than not the plaintiff's lawyer politely (or not) tells you to pound sand.  Keep in mind, the less details the plaintiff gives you, the longer the case takes, the more money that is spent defending, the more likely the plaintiff may be able to leverage a settlement.


You could save the hassle over discovery, conduct depositions based on what you received in response to interrogatories and requests for production and move forward.  This obviously saves fees and costs associated with a discovery fight—but may not necessarily lead to the most effective deposition. 


Finally, you could file a motion for summary judgment contending the plaintiff cannot prove his or her case, utilizing affidavits from your own expert or even your client on the alleged breach of the professional standard of care.  Of course, the decision to utilize the client's affidavit at the summary judgment phase should not be made lightly.  You may be able to jettison an expert if he or she turns out to be a poor witness; whereas you do not have any options with respect to positions your client might take early in the process.  The cost of the summary judgment is relatively minimal because the issue is so clear – either the plaintiff has the expert (and thus can potentially create a question of fact) or he/she does not.  By filing the summary judgment motion, the plaintiff immediately is on the defensive attempting to keep his or her case alive.  The plaintiff and the attorney must decide early whether the case is "worth" finding an expert (and perhaps the plaintiff will not be able to find one).  Even if the plaintiff finds an expert, in the process of responding to the motion, the plaintiff will have to provide the defense with the kind of focused position statements and facts that the plaintiff avoided in responding to the discovery.  Hence, it places the defendant in a win/win position.  Even if the motion fails, the plaintiff had to articulate his or her case and now the defendant is in the position he or she should have been in had the initial discovery been appropriately answered. The cost of filing the motion relative to a thoroughly vetted discovery fight is probably fairly similar – if not cheaper.  It also avoids having to file a discovery motion – thus minimizing the potential to irritate the Court.  Further, it provides an opportunity for the defense to educate the Court about the case – and if it truly is a dog – the Court will hopefully recognize the case and the weaknesses going forward.

Early motions for summary judgment are certainly not for every professional malpractice case.  There is no sense filing a summary judgment motion on cases where the plaintiff's position is well defined, and the defendant has identified either potential weaknesses in his or her own case or potential questions of fact that will likely preclude summary judgment.  However, when faced with a dog case, there is no sense waiting on the plaintiff to push the case forward or involving the Court in a discovery dispute.  In those situations, summary judgment can serve the purpose of an additional discovery tool or, in best case scenarios, weed out a "dog" case without having to pursue it through trial.     

Sean T. Devenney and William E. Kelley, Jr.

Drewry Simmons Vornehm, LLP

Carmel, Indiana




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