A large number of court opinions discuss whether expert testimony should be permitted to assist a trier of fact in litigation. However, a question of equal and perhaps more importance is whether expert testimony is required in litigation. Several courts – hearing business litigation claims – have determined that it often is.
It is commonly understood that a plaintiff must provide expert testimony to succeed on a medical negligence claim. In fact, most states have codified the obligation to provide expert testimony in such cases. However, a plaintiff’s obligation to offer expert testimony is not always limited to medical negligence claims. See The New Wigmore: A Treatise on Evidence, § 2.5 (emphasis in original) (“if a party seeks to prove an issue that is beyond the ken of the jury, that party must present expert testimony.”). In fact, to the surprise of many, business litigation commonly requires a plaintiff to offer expert testimony in order to prevail.
For instance, expert testimony is required to prove that a professional failed to meet his profession’s standard of care, regardless of whether the claim is founded in tort or contract. See, e.g., Hoagland v. Sandberg, Phoenix & von Gotard, PC, 385 F.3d 737 (7th Cir. 2004) (holding that expert testimony is required for a legal malpractice claim, even if the claim is phrased in terms of breach of contract or breach of fiduciary duty); Crawford v. Signet Bank, 179 F.3d 926 (D.C. Cir. 1999) (appraiser); Chicago Coll. of Osteopathic Med. v. George A. Fuller Co., 719 F.2d 1335, 1346 (7th Cir. 1983) (architect); Storm v. Golden, 538 A.2d 61 (Pa. Super. Ct. 1988) (attorney); see also Audio Visual Artistry v. Tanzer, 403 S.W.3d 789, 811 (Tenn. Ct. App. 2012) (finding that, to establish that a seller misrepresented the quality of its services, a plaintiff would typically be required to offer “expert testimony concerning the professional standard of care and corresponding breach.”).
Similarly, a plaintiff will typically be required to produce expert testimony to establish a bank’s standard of care and/or the bank’s deviation from that standard of care. See Schultz v. Bank of Am., N.A., 413 Md. 15 (Md. 2010). In Schultz, the plaintiff brought negligence and breach of contract claims against a bank, alleging that the bank breached its duty of ordinary care when it added a name to his deceased father’s bank account. A jury awarded a verdict in favor of the plaintiff and the bank appealed. The Court of Special Appeals reversed the trial court and held that “expert testimony was necessary to establish the Bank’s standard of care when adding an individual’s name to a bank account.” The plaintiff thereafter appealed the case to the Court of Appeals of Maryland.
In affirming the Court of Special Appeals, the Schultz Court noted that:
the relevant activity in this case was by the bank itself, not a bank customer. Even if most people have added a name to their bank accounts, most people have certainly not acted as a bank officer adding a name to a customer’s bank account. That process may occur behind closed doors, out of the sight of the customer, and may involve numerous unknown procedures. To explain this process, a plaintiff must produce expert testimony from someone familiar with the process from a bank’s perspective.
Schultz, 413 Md. at 34-35 (emphasis added). Accordingly, in dismissing the plaintiff’s negligence and breach of contract claims, the Schultz Court held:
[Plaintiff] could not have succeeded on his negligence claim without producing expert testimony establishing the Bank’s standard of care. Adding an individual’s name to a bank account involves an understanding of internal bank procedures that the trier of fact cannot be expected to appreciate. Accordingly, expert testimony was necessary to explain to the jury the reasonable commercial standards prevailing in the area with respect to adding names to a customer’s checking account and verifying the identities of the signatories. For the same reason, [plaintiff] could not have succeeded on his breach of contract claim. That claim was based on a breach of the Bank’s implied contractual duty to exercise ordinary care; [plaintiff], however, produced no expert testimony establishing the extent of the obligation imposed by that standard of care.
Id. at 19; see also Rosemann v. Sigillito, 2013 U.S. Dist. LEXIS 95629, 82 (E.D. Mo. July 9, 2013) (“The duties owed by an IRA custodian bank are beyond the knowledge of a layperson.”); Steward, III v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 83258 (D. Minn. June 10, 2011), adopted, 2011 U.S. Dist. LEXIS 83064 (D. Minn. July 28, 2011) (“an expert is necessary to define the standard of care for Wells Fargo’s actions, as these issues fall beyond the scope of a lay person’s knowledge.”); but see RBS Citizens v. Aresty, 2011 U.S. Dist. LEXIS 119237, 3 (D. Mass. Oct. 14, 2011) (“Although expert testimony may ordinarily be necessary to prove the standard of care used by banks in the community, some acts committed by banks may be so obviously negligent that the trier of fact can easily recognize that the actions violate the standard of care.”).
Accordingly, a claim charging that a bank or other commercial entity failed to meet its standard of care can serve as a trap for the weary. If a plaintiff fails to offer expert proof to support its claim, the claim may be ripe for dismissal on summary judgment.