When a plaintiff brings a malpractice case against a doctor, a lawyer, or any other professional, the plaintiff faces a built-in disadvantage. The professional has greater knowledge of and deeper training in the subject matter than the plaintiff does. As a result, the plaintiffs in professional malpractice cases frequently turn to expert witnesses as a way of evening the playing field. A retained expert can support the plaintiff’s side of the case and neutralize the professional’s inherent advantage. That makes an expert a common feature of such cases and often a good idea. But the Wisconsin Court of Appeals’ recent decision in Nahmens v. Zimmermann, No. 2015AP2422 (Wis. Ct. App. Sept. 15, 2016), transformed the plaintiff’s retention of an expert from a strategic option to a litigation prerequisite.

A plaintiff alleging negligence or malpractice must show that the defendant breached the applicable standard of care. In malpractice cases, expert testimony is usually required in to establish the appropriate standard of care. See Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 112, 362 N.W.2d 118 (1985). As a general matter, “the requirement of expert testimony is an extraordinary one, and is to be applied by the trial court only when unusually complex or esoteric issues are before the jury.” Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 7, 186 N.W.2d 258 (1971) (internal quotation marks omitted). Helmbrecht recognized this general rule by holding that expert testimony is not required when the professional’s conduct is obviously outside the scope of acceptable professional behavior or when the standard of care is within the jurors’ ordinary knowledge and experience. 122 Wis. 2d at 112.

Thus, where a plaintiff feels that a professional’s conduct was patently beyond the pale, the plaintiff can ask the jury to infer that the defendant failed to meet the applicable standard of care. See, e.g., Olfe v. Gordon, 93 Wis. 2d 173, 182, 286 N.W.2d 573 (1980) (no expert testimony needed to establish standard of care in malpractice action against attorney who failed to follow client’s express instructions); Lewandowski v. Cont’l Cas. Co., 88 Wis. 2d 271, 276, 276 N.W.2d 284 (1979) (affirming trial court’s finding that attorney was negligent as a matter of law where he failed to file claim on plaintiff’s behalf within applicable limitations period). Asking the jury to draw such an inference—and allowing both parties’ lawyers to argue about the propriety of the inference based on the evidentiary record—is consistent with the Wisconsin pattern jury instruction for a professional negligence claim against an insurance agent, which the Civil Jury Instructions Committee updated earlier this year. See Wis. Jury Instr.-Civil No. 1023.6 (“While there is no duty to advise the policy holder of coverages available, [an insurance] agent must use reasonable skill and diligence to put into effect the insurance coverage requested by his or her policy holder, act in good faith towards that policy holder, and inform him or her of the minimum statutory requirements. A failure on the agent’s part to use that skill or diligence constitutes negligence.”).

Such was the law until Nahmens. There, the Wisconsin Court of Appeals held that expert testimony was required to determine the standard of care for insurance agents, despite the plaintiff’s argument that the insurance agent’s conduct blatantly seemed to fall outside the scope of acceptable professional conduct.

Barbara Nahmens hired an agent, John Zimmermann, to help her acquire health insurance. Nahmens, slip op., ¶2. On Zimmermann’s recommendation, Nahmens obtained a policy from the Association for Independent Managers (“AIM”). Id. Nahmens submitted a claim to AIM after she underwent hip replacement surgery. Id., ¶3. AIM denied her claim—not only because it was not a Wisconsin-licensed health insurance provider, but also, and even more shockingly, because AIM was an insurance scam. Id.

After learning the truth about her AIM policy, Nahmens sued Zimmerman for professional negligence. Id., ¶1. After Nahmens gave no notice that an expert would be testifying on her behalf, Zimmermann moved for summary judgment, arguing that expert testimony was necessary both to establish the standard of care for insurance agents and to calculate damages. Id., ¶4. The circuit court granted Zimmermann’s summary judgment motion, and the Wisconsin Court of Appeals affirmed. Id., ¶10.

The appellate court explained that, as a matter of law, expert testimony was required to show that Zimmermann’s conduct was below the standard of professional conduct for insurance agents. Id. According to the court, Zimmermann’s actions were not “obviously negligent, nor is the standard of care in this context within a jury’s ordinary knowledge and experience.” Id.

The Nahmens decision is jarring for several reasons. First, the facts—which must be construed in the plaintiff’s favor at this juncture—appear to be egregious. Second, the appellate decision is notably brief, devoting only a few sentences of its twelve paragraphs, to explaining why an expert was necessary in this case. And, third, the appellate court affirmed a grant of summary judgment, which is not available “unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy.” Racine Cty. v. Oracular Milwaukee, Inc., 2010 WI 25, ¶10, 323 Wis. 2d 682, 781 N.W.2d 88 (internal citation omitted).

On its face, Zimmermann’s recommendation that Nahmens buy into an insurance scam seems sufficiently questionable for a jury to consider a malpractice claim even without expert testimony about the standard of care. The appellate decision does not even consider the jury’s purview to draw reasonable inferences from the facts presented, or Nahmen’s right to bring her claim before a jury. It is possible that, had the case gone to trial, as the evidence came in, there would not have been a sufficient basis for the jury to find Zimmermann liable. But at least based on the record summarized the court of appeals’ brief opinion, it seems eminently possible that there would be enough information for the jury to work with. Where that possibility exists, summary judgment is inappropriate.

Professional malpractice suits are inherently uphill battles for plaintiffs, who must confront the superior knowledge and generally positive reputation of accredited professionals. The Nahmens court’s requirement that every plaintiff, no matter how glaring the facts in an individual case, must retain an expert just to survive summary judgment increases the costs plaintiffs face and further tilts the playing field in favor of professional defendants.

Law clerk Olivia Pietrantoni assisted in researching and writing this post.

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