When Is An Expert Good Enough?
For summary judgment purposes, an expert is an expert and is good enough . No? In legal malpractice, an attorney, duly licensed, is good enough to comment on the work of another attorney? No?
Not for Judge Buggs. In Gonzalez v Flushing Hosp. Med. Ctr. 2014 NY Slip Op 51226(U)
Decided on August 12, 2014 Civil Court Of The City Of New York, Queens County. Judge Buggs writes:
"To support her argument of legal malpractice, Gonzalez offered the affirmation of attorney Stephen Paul Haber ("Haber"), who opined that B & H's representation of Bey deviated from the standards in the practice of law in that: 1) B & H failed in its obligation to inquire of Bey about his insurance coverage, and to inform any insurance carriers with whom he had coverage about his large financial exposure to liability, and that 2) its representation of both Bey and Cha was a conflict of interest; (Gonzalez' Exhibit E; Affidavit of Stephen Paul Haber).
Before addressing the merits of Haber's affirmation, it must be noted that while the Court accepts that Haber is, as his affirmation states, "an attorney duly licensed to practice in the State of New York" (Gonzalez' Exhibit E, Paragraph 1), his expertise and qualifications to render opinions regarding legal malpractice actions and/or the professional standards for attorneys handling legal matters involving insurance coverage issues for medical malpractice cases is unclear. While Gonzalez' attorney, in his Affirmation in Opposition, speaks to Haber having "over 30 years of extensive experience in representing healthcare providers in the defense of medical malpractice actions," Haber's affirmation itself is silent about his qualifications. He fails to state how long he has practiced, and in what area of law. Movant, in its Reply Memorandum of Law, correctly cites case law requiring that an expert can be deemed qualified to render an opinion if "...he or she is possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion is reliable'" (Lopez v Gem Gravure Co., Inc., 50 AD3d 1102 at 1103 [2d Dept 2008]). Considering this standard, there is insufficient indication that Haber qualifies as an expert for the issues in contention herein.
However, solely for the sake of exploring the merits of Haber's affirmation, the Court will assume that Haber is the experienced attorney Gonzalez' counsel says he is, and not some "newbie" attorney randomly snatched from the halls of a local Appellate Division judicial department after having just been sworn in."
"Accordingly, not only is Gonzalez' expert affirmation lacking for failure to establish the expert's credentials, but even upon fully considering the merits of his contentions, he fails to demonstrate a factual issue requiring a trial on legal malpractice. There is insufficient showing of a duty owed by B & H to Bey on the issue of insurance coverage, and even assuming the existence of such a duty, no establishment of proximate cause. Haber's contention that B & H violated ethical rules in representing two physicians with conflicting interests is likewise unsupported with an establishment of a "but for" connection to Bey's damages."