Introducing Charlie Campbell as Advise & Consult’s Newest Expert Witness

Charlie Campbell has extensive experience in large loss / catastrophe situations. He has worked as Director of J.S. Held preparing estimates and bid specifications for more than 500 buildings in over 110 locations throughout Florida after Hurricanes Hugo and Andrew.

Charlie has also handled wildfires in California and flooding in the mid-west and in 1994 was heavily involved in the Northridge earthquake.

Charlie also has international experience working in Africa spending more than a month inspecting and writing estimates of building damaged along the front lines of civil war zone areas.

Prior to his time with J.S. Held, Charlie was a general contractor that specialized in restoration work. He also has worked as an adjuster and catastrophe manager for Allstate Insurance.

With Advise & Consult, Charlie will be based in Ohio and covering the states of Ohio, Kentucky, Tennessee, West Virginia and Indiana – along with large loss cases throughout the United States. As you can tell, he has many valuable and unique talents that he can bring your clients in your next construction defect and/or insurance dispute case.

Introducing John Link – Construction Expert Witness

Advise & Consult, Inc. | August 2, 2018

John Link Headshot 002
John Link

We are excited to announce the addition of John Link to our expert witness family here at Advise & Consult, Inc. He covers the Michigan area and has expertise in construction, remodeling and restoration services. John is also very experienced as a business consultant, public speaker and educator, and system and program development.

John has been a licensed builder, remodeler, and restoration contractor for over 30 years. His former businesses performed work thorough out the US with over 200 employees. His company was one of the only ISO certified restoration companies in the United States, which allowed direct contracts with large corporations. He also developed an industry 1st in the contents restoration services by standardizing the contents remediation process for several insurance providers and third party administrators. Throughout his career he has consulted with numerous companies to implement scalable growth and sales strategies. He has served as an expert witness for over 25 years. He has produced many CE classes, speaks publically, and provides industry training.  

Since the start of his business career, one of John’s main focuses has been how to effectively run and scale a business. With this focus, John has put together a comprehensive business administrative package. It provides start to finish protocol with over 300 critical documents covering the 4 main areas of business: personnel, project management, accounting, and file management. It also contains marketing sales strategies including educational classes that are industry specific. The package has been designed and implement to be highly adaptable to various businesses. This kind of organization and detailed business focus is what help his company become one of the only ISO Certified restoration companies in America.

If you are in Michigan and in need of his services – call 231.598.6166 or email johnlink@adviseandconsult.net

Privileged Communications With a Testifying Client/Expert

Shannon M. Warren | The Subrogation Strategist | April 30, 2019

In In re City of Dickinson, 568 S.W.3d 642 (Tex. 2019), the Supreme Court of Texas recently assessed whether a client’s emails with its counsel were subject to disclosure after the client was designated as a testifying expert witnessIn re City of Dickinson involved a coverage dispute between a policyholder and its insurer. The policyholder moved for summary judgment on the issue of causation, essentially alleging that its insurer did not pay all damages caused by Hurricane Ike. In responding to the motion, the insurer relied upon an affidavit by one of its employees, a claims examiner, that included both factual testimony and expert witness testimony.

The policyholder subsequently filed a motion to compel, seeking the production of emails between the claims examiner and the insurer’s counsel that were generated while the affidavit was being drafted. The emails contained numerous revisions of the affidavit. The insurer objected, asserting that the emails were protected by the attorney-client privilege and were generated in the course of the rendition of legal services.

The trial court granted the motion to compel, ordering production. Ultimately, after a series of appeals, the Supreme Court had to decide whether the documents in dispute were subject to discovery. In resolving this issue, the court examined the rules pertaining to expert disclosures. As noted by the court, the rules authorize the production of all documents provided to a testifying expert witness. Thus, the court was faced with determining if its rules required the disclosure of documents that are also subject to the attorney-client privilege.

The court, declining the opportunity to create a new exception, acknowledged that there are exceptions to the attorney-client privilege but found that none of the recognized exceptions applied. Instead, the court focused on the rules that govern the scope of discovery and the applicability of privileges.

In examining the rule governing expert disclosures, the court focused on the fact that the rule was permissive in nature, highlighting the word “may.” The court explained that the rule allows a party to request that an opposing party disclose materials, but does not require such disclosure. Additionally, the court noted that the rule governing expert disclosures does not address the disclosure of such materials that are otherwise protected by the attorney-client privilege. Thus, the court held that the general protections afforded by the privilege remained in effect.

The court made it clear that, in the context of expert disclosures, there is a significant distinction between information that is protected by the work product doctrine as opposed to information protected by the attorney-client privilege. The court noted that the rule governing the disclosure of expert materials explicitly states that work product is discoverable, but does not address materials subject to the attorney-client privilege. After examining numerous judicial decisions where courts upheld the attorney-client privilege in the context of expert disclosures, the In re City of Dickinson court, noting that the attorney-client privilege is “quintessentially imperative,” upheld the appellate court’s decision overruling the trial court’s order compelling disclosure.

The In re City of Dickinson case reminds us that, while not absolute, the attorney-client privilege provides powerful protections and can be asserted in situations when the materials sought are otherwise subject to disclosure. The case also exemplifies the importance of performing a critical analysis of the applicable rules to ensure compliance with the law, while maximizing a party’s position. Accordingly, it is a major benefit to involve counsel early in the case.

That’s Common Knowledge! Failure to Designate an Expert Witness in a Professional Negligence Case is Not Fatal Where “Common Knowledge” Exception Applies

Lyndsey Torp | Snell & Wilmer | May 16, 2019

In reversing summary judgment for defendants, the California Fourth District Court of Appeal recently held that homeowners suing their real estate broker for negligence did not need an expert witness to establish the elements of their causes of action. Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal. App. 5th 637. Typically, expert witnesses are required to establish the standard of care in professional negligence cases. But in Ryan, the court of appeal held that the “common knowledge” exception applied despite this general rule, because the conduct required by the particular circumstance of the case was within the common knowledge of a layman. The conduct in question here? The broker’s failure to disclose to his client that the client’s neighbor told him that she planned extensive renovations that would obstruct the client’s property’s ocean views.

Ryan and Patricia Ryan (the Ryans) hired defendant Real Estate of the Pacific, Inc., doing business as Pacific Sotheby’s International Realty (Sotheby’s) and defendant real estate broker to sell their residence in La Jolla, California. During an open house at the residence, a neighbor informed the Ryan’s real estate broker that she planned extensive renovations at her home that would, among other things, permanently obstruct the Ryan’s westerly ocean views and take several years to complete. The real estate broker never informed the Ryans of this, nor the subsequent buyer. The subsequent buyer purchased the property for $3.86 million, and defendants received $96,500 as commission for the sale. The day after escrow closed, the buyers learned of the renovations, and sought to rescind the purchase. Based on advice of defendants, the Ryans refused, and the dispute proceeded to arbitration. The buyer obtained a rescission of the purchase, with the Ryans order to pay damages, interest, and attorneys’ fees and costs in excess of $1 million. The Ryans then sued Sotheby’s and the real estate broker to recover these amounts and damages caused by defendants’ alleged negligence.

Sotheby’s and the defendant real estate broker moved for summary judgment against the Ryans, arguing that the Ryans could not establish the existence of any cause of action without an expert witness. Because the Ryans did not designate an expert witness, defendants argued summary judgment was warranted. The trial court agreed and granted the motion. The court of appeal reversed.

The court of appeal first analyzed whether the Ryans had forfeited certain arguments by failing to raise them with the trial court. At the trial court level, the Ryans opposed summary judgment on the grounds that they did not need expert testimony because the findings of fact and conclusions of law regarding the standard of care in the arbitration with the buyers, and the arbitration award collaterally estopped defendants from relitigating the issue. The trial court rejected this argument, given that defendants were not a party to the arbitration. In their appeal, the Ryans instead advanced the “common knowledge” theory, which states that an expert witness is not needed to establish the standard of care in a professional negligence cause of action when the conduct required by the particular circumstances is within the common knowledge of a layman. The court of appeal found that the common knowledge theory presented a new question of law based upon undisputed facts, and the Ryans could make such an argument for the first time on appeal.

The court of appeal then analyzed the Ryans’ claims, noting that they were contingent on defendants having a duty to share the subject information. At the summary judgment stage, to satisfy their initial burden and shift the burden to the Ryans to prove the existence of a triable issue of material fact, defendants had to show that an expert witness was essential for the Ryans’ claims. To carry that burden, they needed to explain why the lack of an expert witness was fatal to the Ryans’ claims. The court of appeal found that defendants did not meet this burden.

California law does not require an expert witness to prove professional malpractice in all circumstances. One such exception is where the negligence is obvious to a layman. Defendants argued that this was not one of those cases, and instead attempted to limit to their duties to those set forth in California Civil Code section 2079(a), and that their duties of investigation and disclosure, as real estate brokers, were limited to the property being sold. The court of appeal disagreed that these were the real estate broker’s only source of duties. Rather, real estate brokers are subject to duties imposed by regulatory statutes, such as section 2079(a), but also those arising from the general law of agency. The court of appeal explained:

Here, the Ryans’ claims are not contingent on an expansion of the statutorily defined duties of a real estate broker. Instead, their claim is more elementary. If a real estate broker has information that will adversely affect the value of a property he or she is selling, does that broker have a duty to share that information with his or her client? The clear and uncontroversial answer to that question is yes.

The court of appeal concluded that because the Ryans alleged a cause of action for breach of fiduciary duty against defendants, the lack of an expert witness would not be an impediment to proving such a cause of action based upon the allegations in the complaint. In addition, defendants had not shown, for purposes of summary judgment, that an expert witness was necessary to establish the scope of a broker’s duty or a breach of that duty for professional negligence. Defendants possessed material information that impacted the value of the property. They did not need to engage in investigation to discover the information, but rather, they “simply chose to remain silent, collect their commission, and allow the Ryans to deal with the consequences.” The conduct required here was within the common knowledge of a layman. “Put differently, anyone who hired a real estate broker to sell her home, would expect that broker to share information that would adversely impact the value of the home.”

This case is interesting for a few reasons. First, the court of appeal rejected defendants’ forfeiture argument, and considered a new legal argument on appeal. Second, the case navigates an exception to the general rule requiring the designation of an expert to establish the standard of care in professional negligence cases. The conduct at issue here strikes a chord for anyone that has purchased or sold a home. Even so, assessing whether to designate an expert in a particular case requires close scrutiny, given that the wrong call could be fatal to the case.


Claim Denied? Why Picking the Wrong Expert Can Cost You

Ian Dankelman | Property Insurance Coverage Law Blog | June 2, 2019

Picking the right expert has never been more important when fighting an insurance company that has wrongfully denied an insurance claim. The rule for expert admissibility has just changed in Florida and the same concerns about experts apply everywhere.

Under the Frye test, a party seeking to introduce expert evidence had to prove the general acceptance of the underlying scientific principles and methodology that the expert employed when advancing new or novel scientific testimony. Now, Florida has adopted the Daubert  standard, which requires the trial judge to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.”1 In reaching this decision, the Supreme Court emphasized that the amendments would reduce forum shopping and harmonize Florida’s standard with the standard employed by federal courts.

However, in dissent, Justice Labarga cautioned that “Daubert and its progeny drastically expand[] the type of expert testimony subject to challenge.”2 One concern over the amendment the dissent highlighted was that the new standard would undermine the constitutional right to a jury trial by authorizing judges “to exclude from consideration the legitimate but competing opinion testimony of experts.”3 Another was that the new expert testimony standard would overburden the courts, impede the ability of parties to prove their cases on the merits, and increase litigation costs.

So what does this mean for policyholders? On one hand, Daubert is the well-established standard in federal court, and there is clear direction in federal case law that state judges can follow to reach reasoned rulings. It is likewise conceivable that the number of cases removed from state court to federal court will be reduced based on the amendments to the evidence code. The new standard will also give policyholders a new ability to challenge the insurers’ experts when their work does not meet the requirements demanded by the Daubert standard. On the other, policyholders’ cases may be delayed while Florida courts deal with increasing numbers of challenges to expert opinion testimony. Policyholders will likely face additional hearings on the admissibility of expert testimony that will require intense preparation.

It remains to be seen how judges will tackle the increase in challenges to expert testimony in Florida’s courts. Only one thing is certain: the amendment to the evidence code will have important ramifications on all litigation in Florida.
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1 In re: Amendments to the Florida Evidence Code, No. SC19-107 (Fla. May 23, 2019).
2 Id. at 13 (Labarga, J., dissenting).
2 Id. at 15-16.