Section 9 Professional Standard of Care and Requirement of Expert Testimony

• Library: Prof Liability 2005

Courts have recognized the need for expert testimony to establish the standard of care of design professionals. See Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, 392 F.2d 472 (8^th Cir. 1968). The requirement of expert testimony in an action against an architect or an engineer is essentially the same as in a malpractice action against any other professional. Normally, in a technical malpractice action, expert testimony assists the fact-finder in determining the standard of care and whether the professional failed to comply with that standard. As in any other professional negligence case, a qualified expert’s testimony is usually critical evidence in making a submissible case of malpractice. Because a malpractice case involves the exercise of professional skill and technique by a design professional, it is necessary to prove by expert testimony from members of that profession that the skill or technique used did not conform to the standards of the profession. When the conduct in question does not involve skill or technique in an area where knowledge of it is a peculiar possession of the profession and involves a matter any layperson would know, “professional” testimony from an “expert” is not necessary. Nagy v. Mo. Highway & Transp. Comm’n, 829 S.W.2d 648, 653 (Mo. App. E.D. 1992).

The rationale for requiring expert testimony to establish and support a professional negligence claim is to prevent lay jurors from deciding cases requiring specialized experience or knowledge by setting their own arbitrary standard for performance. An expert witness with credentials similar to the defendant’s must explain to the jury what standard practice is in the profession.

But while acknowledging that there is a “professional standard,” the cases make clear that the design professional is not a guarantor or insurer of perfection but is just a member of a learned profession and, therefore, is under a duty to exercise only the ordinary, reasonable technical skill, ability, and competence that is required of a design professional in a similar situation. Annen v. Trump, 913 S.W.2d 16, 19–20 (Mo. App. W.D. 1995).

In Missouri, the standard for qualification of those purporting to be experts is statutory. Section 490.065, RSMo 2000. If scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.

An expert’s opinions must be based on admissible evidence and documents, such as contracts, construction plans, specifications, project files, and standard engineering calculations. Mattes v. Black & Veatch, 828 S.W.2d 903, 907 (Mo. App. W.D. 1992). Experts should be guided in their testimony by the ethical tenets established by their profession, as set out in Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes. These tenets have been endorsed by most design professional organizations, including the ASFE, the American Institute of Architects (AIA), the American Society of Civil Engineers (ASCE), the American Society of Landscape Architects (ASLA), and the National Society of Professional Engineers (NSPE), among others.

To make a submissible case of design professional negligence, the plaintiff must present the testimony of a qualified professional as to the degree of care and skill that is generally accepted by those engaged in the profession and how the defendant’s conduct...