The Expert Who Was Not an Expert
Attorney Lin represents Priya in a products-liability suit over a space heater that allegedly caused a house fire. Lin retained Dr. Hsu, a mechanical engineer, as the plaintiff's liability expert. Hsu's report concluded the heater's wiring was defective. At his deposition, Hsu admitted he had never tested heaters, his analysis was based solely on photographs, and he had been retained by Lin in four prior cases. The defense moved to exclude Hsu; the judge granted the motion, finding his methodology unreliable. With no other liability expert and trial four weeks away, Lin settled for $60,000. Priya's actual damages were assessed at $400,000. Priya now sues Lin for malpractice, alleging Lin should have vetted Hsu and retained a better expert.
1. Did Lin breach the standard of care in selecting and vetting the expert?
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Probably yes. A reasonably competent attorney retains an expert whose opinions will survive a reliability challenge and investigates the expert's qualifications before designation. Red flags here: Hsu had never tested a heater, relied only on photographs, and had a repeat-retainer relationship with Lin. A diligent attorney would have asked about testing methodology, reviewed the basis for the opinion, and confirmed the expert could withstand cross-examination on reliability.
Lin may argue expert selection is a matter of professional judgment, and that judges vary in how strictly they apply reliability standards. That argument has some force - hindsight is easy. But the failure to run any reliability check, combined with the repeat-retainer pattern, suggests Lin did not exercise ordinary skill.
Priya will need an expert to testify about the standard of care in retaining and vetting experts. Without one, her claim may fail even if the outcome looks bad. The strongest evidence is the deposition admissions, which show the weaknesses were discoverable before designation.
2. How does the case-within-a-case work here, and what must Priya show about the excluded expert's testimony?
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Priya must prove that, but for Lin's negligence, she would have won or obtained a better result in the underlying suit. That means proving the heater was actually defective and caused the fire - the merits she lost when Hsu was excluded.
She can do this by offering a competent expert now who can establish defect and causation with reliable methodology. If her new expert relies on testing, teardown analysis, or fire-pattern evidence, the case-within-a-case becomes provable. If no reliable expert can support the claim, then the heater was not provably defective and Priya cannot show Lin's conduct caused her loss - the claim would have failed anyway.
The $60,000 settlement versus $400,000 in assessed damages frames the gap, but the settlement is not automatically the measure. Priya must show what a properly presented case would have yielded. If liability was strong but damages uncertain, the jury may discount. Lin will argue the settlement was reasonable given litigation risk and that Priya cannot prove a better outcome.
3. If Priya proves breach and causation, how are her damages calculated given the settlement?
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Damages equal the difference between what she actually received and what she would have recovered with competent representation, minus avoided costs. Start with the case-within-a-case verdict: if a properly tried case would have produced $400,000, that is the benchmark.
Subtract the $60,000 settlement she already received - otherwise she recovers twice for the same injury. Subtract the contingency fee she would have paid on the underlying recovery (if her agreement was, say, 33%, she would have netted $268,000 from a $400,000 judgment). Her malpractice recovery should put her in the position she would have occupied, roughly $208,000, not the full $340,000 gap.
Lin may also claim credit for costs not incurred because the case settled early, and may argue the settlement released the manufacturer, limiting any later recovery. The court will also consider whether Priya's own decision to accept the settlement was an intervening cause - generally not, if she relied on counsel's assessment that the case was unwinnable after exclusion.