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• Choosing Your Malpractice Expert with Care

    The competence of a witness to testify on a particular matter is an important issue to determine when choosing whom to hire to support your case of malpractice.  In Minnesota, in order for a witness to be deemed competent to testify as an expert, the witness must have both sufficient knowledge of, and some practical experience with, the subject matter of the offered testimony.  A court will disallow a proposed expert witness from testifying if that witness fails to make the required showing that he or she is qualified.

    As an example, in Noske v. Friedberg, 716 N.W.2d 866 (Minn.Ct.App. 2006), the Minnesota Court of Appeals did not allow a law professor to testify as an expert witness against a defendant attorney in a legal malpractice case involving criminal law issues.  There, the professor taught a course in professional responsibility but had no practical experience at criminal law matters and only academic experience in the area of professional responsibility.  In failing to allow the expert to testify, the Court noted that the professor's lack of practical and academic experience in the criminal law area made it unlikely that the professor's testimony on the standard of care of a practicing criminal defense lawyer would be admissible at trial.  The professor was therefore precluded from testifying against the defendant attorney.

    The lesson learned from Noske is that a plaintiff must always obtain an opinion from an expert that has both knowledge of and practical experience with the precise subject matter of the malpractice.  If not, courts will deem the proposed expert witness unqualified and prevent that person from testifying.  Under that circumstance, the plaintiff's case may be open to dismissal altogether for failing to provide proper expert support for the claims of malpractice.   

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