Shifting the Causation Burden of Proof in Legal Malpractice Actions

HEADNOTE

Courts are applying doctrines taken from other types of cases and placing the burden on defendant attorneys on the basis of public policy considerations

THE well-known elements of a cause of action for legal

malpractice are: (1) the attorney's duty to use the skill, prudence and diligence that others in his or her profession commonly possess and exercise; (2) acts that constitute a breach of that duty; (3) injury, damage or loss to the plaintiff; and (4) a proximate causal connection between the conduct constituting the breach of duty and injury, damage or loss. The plaintiff usually has the burden of establishing each of these essential elements, including causation.1

Clients alleging that their attorney was negligent in connection with litigation have the burden of proving that damages resulted, this burden involving, usually, the difficult task of demonstrating that the attorney's negligent investigation, advice or conduct of the client's affairs was a substantial factor in causing an unfavorable result, including the loss of the client's meritorious claim. Proof that the client would have prevailed or achieved a better result in the underlying action generally requires trial of a "suit within a suit," that is, a determination of the merits of the underling action in the malpractice trial. This is sometimes also referred to as the "case within the case" requirement.2

BUT NOW THERE'S A SHIFT

When the attorney's alleged negligence impacts an underlying personal injury or products liability suit, the courts in California have begun to wrestle with the proper application of doctrines that have been applied in non-legal malpractice contexts. In negligence and products liability cases, for example, the doctrine has evolved that the burden of proof on the issue of causation may be shifted to the defendant when demanded by public policy considerations.3 "On rare occasions," the California Court of Appeal stated in National Council Against Health Fraud Inc. v. King Bio Pharmaceuticals Inc., "the courts have altered the normal allocation of the burden of proof."4

As the California Supreme Court stated in Haft v. Lone Palm Hotel:

[T]he shift of the burden of proof . . . may be said to rest on a policy judgment that when there is a substantial probability that a defendant's negligence makes it impossible, as a practical matter, for plaintiff to prove "proximate causation" conclusively, it is more appropriate to hold the defendant liable than to deny an innocent plaintiff recovery, unless the defendant can prove that his negligence was Not a cause of the injury.5

The essential principle underlying the narrow exception to the usual allocation of proof in negligence and product liability actions is that the burden of proving an element of a case is more appropriately borne by the party with a greater access to information. For example, in Harris v. Truck Lines Inc., the California Supreme Court stated that a "defendant who is in a better position to discover and preserve . . . evidence should not be permitted to profit from the plaintiff's inability to produce it."6

SOURCE OF THE SHIFT

There is no definitive or "general rule" that clarifies the circumstances under which the defendant in a personal injury or products liability case must prove non-causation of the plaintiff's injuries. The most commonly cited formulation of the factors to consider is in McGee v. Cessna Aircraft Co., in which the California Court of Appeal quoted the following reasons from the California Law Revision Committee's comment to Section 500 of the state's Evidence Code, that a shift in the normal allocation of the burden of proof is based on consideration of a "number of factors: the knowledge of the parties concerning the particular facts, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or non-existence of the fact."7

Generally, in the relatively few non-legal malpractice cases where the burden of proof for causation was shifted, the courts found that it was impossible for the plaintiff to prove its case otherwise.8

APPLICATION TO LEGAL MALPRACTICE

The McGee factors were applied by California courts in two legal malpractice cases involving underlying products liability actions, with different results. In Thomas v. Lusk,9 the California Court of Appeal held that the trial court committed prejudicial error in instructing the jury that the burden of proof of causation was shifted to the attorney on a showing of the attorney's negligence. In Galanek v. Wismer,10 another district of the Court of Appeal held that the trial court committed error by granting a non-suit to the attorney because, under the facts of the case, the burden of proof on causation should have been shifted to him.

A. Thomas v. Lusk

Emory Thomas was injured on his job as an aircraft repairer when the metal head of a hammer disengaged from the handle, causing his left hand to come in contact with turbine blades. He sustained a severe injury to his finger. Immediately following the accident, a fellow employee retrieved the broken hammer, which was in four parts, and turned it over to Thomas's supervisor, who placed it in a locked drawer of a file cabinet in his office. The file remained locked until about eight months later when the lock on the file cabinet was broken and the file cabinet became accessible even without keys. The supervisor later was promoted and transferred to another office.

Thomas retained Benjamin Lusk Jr. to represent him in a products liability action against the manufacturer of the hammer. Lusk learned soon after being retained that the hammer was being "stored somewhere." He did not promptly initiate any formal discovery proceedings, but he contacted the counsel of Thomas's employer a year after he was retained in an attempt to locate the hammer. The former supervisor, at the request of the employer's counsel, searched the file cabinet and consulted the acting shop foreman, but the hammer was not located.

Lusk advised Thomas that "it would be very difficult to try the case" without the hammer. Lusk was concerned that the handle of the hammer may have been modified, which would compromise Thomas's case. Lusk advised Thomas that he still believed, however, that the case had "significant settlement value."

Thomas retained new counsel and settled against the manufacturer for $35,000. Thomas then filed a legal malpractice action against Lusk. At trial, the trial court gave the following instruction shifting the burden of proof on causation to the defense:

In order for plaintiff to recover from defendant in this case, plaintiff must prove, by a preponderance of the evidence, that the failure of the defendant to gain access to the hammer . . . was negligence. If plaintiff proves that defendant was negligent, . . . it then becomes the duty of the defendant to prove, by a preponderance of the evidence, that defendant's negligent failure to obtain access to the hammer was not a legal cause of damage to plaintiff.11

The jury rendered a verdict against Lusk for $88,745. On appeal, the First District California Court of Appeal reversed and remanded for retrial. The court agreed that the evidence established that Lusk was negligent in failing to undertake any efforts to obtain the hammer until approximately one year after his retention. It also agreed that in certain circumstances it would be appropriate to shift the burden of proof in actions for legal malpractice. Nonetheless, it concluded that the trial court erred in shifting the burden of proof under the particular facts of the case.

The court based its opinion on a number of factors. First, it argued that the lost evidence was no more available to Thomas than Lusk. Since the hammer was disposed of by an unknown party, neither Thomas nor Lusk had access to it to satisfy the burden of proof on causation. At the same time, the parties still had equal access to hammers "essentially identical." Thus, Lusk had no better means of negating causation than Thomas had of proving it.

Second, the relative culpability of the parties did not make a shift in the burden of proof appropriate. Following the accident, the court noted, the hammer was preserved temporarily and therefore available to both Thomas and Lusk. While Lusk, as Thomas's attorney, was "primarily responsible during the course of the litigation for the preservation of evidence," Lusk was not "singularly responsible" for the destruction of evidence of causation. Thomas's employer had custody of the hammer and was in a position to preserve it, but failed to do so, and therefore it must share fault for the disappearance of the evidence.

Finally, and to the court the "most significant consideration," Thomas had not established a "prima facie" case or "substantial probability" of causation, which the court viewed as a "condition precedent" to shifting the burden of proof. The court pointed out that even prompt initiation of discovery by Lusk when he was retained may not have produced the hammer.

The court also was not persuaded that preservation of the missing evidence was critical to the case. Thomas had not presented evidence suggesting that a defect in the lost hammer was only provable if the hammer had been preserved by Lusk. Acknowledging the obvious point that the burden of proving a manufacturing defect, or a foreseeable alteration of the hammer that rendered it defective, was made more difficult by the loss of the hammer, the court went on to state that the burden of proving causation is not "transferred merely upon testimony that the defendant's negligence may have compromised the plaintiff's ability to establish a product liability case."

As the court stated:

Rather, the burden of proof is shifted only "where there is a substantial probability that the defendant's negligence was a cause of an accident, and when the defendant's negligence makes it impossible, as a practical matter, for plaintiff to prove "proximate causation" conclusively.12

While the Lusk court did not cite cases from other jurisdictions as authorities for its decision, its decision and opinion is entirely consistent with a number of cases from other jurisdictions that have refused to alter the burden of proof even where the attorney's delay or failure to conduct discovery impaired the plaintiff's ability to produce evidence.13

B. Galanek v. Wismar

Ronald E. Mallen and Jeffrey Smith, in their treatise Legal Malpractice, opine that a different rule from that applied in the discovery negligence cases might be appropriate "if the attorney was responsible for the loss of evidence directly rather than as a consequence of the basic negligence [in delaying or failing to pursue discovery]."14 That was the fact situation presented in Galanek v. Wismar.

Stephen Wismar represented Stephanie Galanek in an underlying personal injury and products liability action arising from an automobile accident in which Galanek's car was rearended, causing her seat to collapse and her to suffer an alleged "contrecoup" brain injury.

Wismar was the second attorney to handle Galanek's case. He was retained in September 1992, more than six months after the accident. He filed suit against the manufacturer of the vehicle (Honda) on March 11, 1993, the day before the statute of limitations ran. On the same day, Wismar sent Honda written notice that Galanek's vehicle had been sold at an auction to a third party and, therefore, Honda should inspect it forthwith.

Subsequently, in April 1993, Wismar wrote a letter to the storage facility holding the vehicle, advising it that the vehicle was critical evidence in Galanek's case. The storage facility gave Wismar permission to inspect the vehicle, but he did not send an engineer to inspect, nor did he take possession of the vehicle. Instead, he had a pri vate investigator take photographs and measurements. The investigator also removed and took possession of the allegedly defective seat. In May 1993, Wismar learned that the storage facility had sold the vehicle to a third party, without giving the required statutory prior notice to Galanek, and that the vehicle had then been destroyed.

After Galanek replaced Wismar with new counsel, Honda moved for summary judgment on the ground that Galanek could not prove that the vehicle was defective because it had been sold to a third party and destroyed without having been adequately inspected. In opposition, Galanek presented the declaration of an engineer-accident reconstructionist, who stated that a comparison of an exemplar vehicle with photographs of Galanek's car taken after the accident would be sufficient to prove the alleged defect. The trial court granted Honda's motion for summary judgment.

It is significant that the summary judgment ruling did not state that Galanek could not prove a defect without the car, but only that her expert's declaration in opposition to the motion failed to raise a trial issue of fact as to the existence of a defect, because the expert merely described the procedures for showing a defect without having the car. He did not state he had performed those procedures and concluded there was a defect.

Instead of seeking reconsideration or appealing the questionable summary judgment in the underlying action, Galanek filed a legal malpractice action against Wismar based on Wismar's alleged failure to take reasonable steps to prevent the destruction of the car. The trial court granted non-suit after the plaintiff's opening statement at trial on the grounds that there was a lack of scientific evidence that producing the Honda as evidence was essential to proving the alleged defect and that there was a lack of expert opinion that a failure of the car seat was a cause of her alleged brain injury.

The California Fourth District Court of Appeal reversed and remanded. In its view, the plaintiff stated sufficient facts in the opening statement to avoid a non-suit. Those facts were simply that the car was destroyed as a result of Wismar's negligence, that the car was defective, that the defect was a cause of Galanek's head injury, and that the unavailability of the car resulted in the loss of Galanek's case against Honda. Therefore, the statement included sufficient facts to prove Galenek's "case within the case" against Honda. The opening statement also was found to allege sufficient facts to shift the burden of proof to Wismar to establish that his negligence did not cause the loss of a "meritorious products liability claim." The court's reasoning was:

If Galanek cannot prove her underlying case against Honda, it follows that she cannot conclusively prove "proximate causation" in the instant malpractice action against Wismar. Because Wismar's negligence in failing to preserve the car is what made it impossible for Galanek to prove causation, as a matter of public policy it is more appropriate to hold Wismar liable than to deny Galanek recovery, unless Wismar can prove his negligence did not damage Galanek.15

The Galanek court's reasoning is questionable in numerous respects. First, it assumes that Wismar was negligent and, therefore, implicitly found that Wismar had a high degree of culpability for loss of the Honda that made a shifting in the burden of proof appropriate. The opening statement, however, did no more than make the same allegation of negligence made in every legal malpractice action. There is certainly room for expert testimony on either side of the issue of whether the standard of care requires attorneys in seat failure cases always to obtain possession of the entire vehicle. The court did not purport to find, as a matter of law, that Wismar was negligent, so any comments concerning Wismar's alleged negligence were dicta that should not have played a factor in the court's conclusion that the burden of proof should be shifted.

Moreover, with respect to the relative culpability of the parties, the Galanek court disregarded three factors that the Lusk court found significant: (1) that the Honda was equally available to both the client and the attorney for a period of time after the accident, (2) that Wismar was not "singularly responsible" for the loss of the evidence (or responsible in any respect for the preparation of the inadequate expert's declaration which resulted in the loss of the summary judgment motion or for the failure to appeal the granting of the summary judgment motion), and (3) that both parties had access to exemplar Hondas "essentially identical" to the vehicle involved in the accident.

Second, the court gave great weight to the summary judgment granted in favor of Honda in the underlying proceeding. Notwithstanding the court's recognition that the summary judgment did not state Galanek could not prove a defect without the car, by the end of the opinion the summary judgment was transmuted into prima facie evidence of the allegation in the opening statement that Wismar's "negligence in failing to preserve the car" made it "impossible for Galanek to prove causation." Moreover, even if Wismar was negligent in failing to preserve the Honda, and even if the court in the underlying action had stated in the summary judgment ruling that Galanek could not prove a defect without the car, the fact that Honda prevailed on a summary judgment motion says nothing about whether Galanek had a meritorious claim against Honda in the first place. It is difficult to see how the court considered that evidence of the summary judgment ruling in and of itself would be sufficient to establish Galanek's "case within the case" against Honda.

Finally, the court implicitly determined (and later explicitly stated in an unpublished opinion following a second non-suit granted in the retrial of the case) that the expert testimony of a products liability attorney to the effect that "Galanek's action against Honda is the kind of case where products liability attorneys prevail when they have the product" would be competent and sufficient to shift the burden of proof to Wismar. This is analogous to allowing a medical malpractice attorney to testify as to what a radiologist would have been able to testify to in an underlying medical malpractice case if a lost or destroyed X-ray had been preserved as evidence. This view appears to be in direct conflict with the more current view of this California District Court of Appeal that it is error to admit expert testimony on the ultimate issue of whether the client would have succeeded in an underlying proceeding "but for" the attorney's alleged negligence.16

It should be noted that Galanek's "seat failure" expert, Larry Coben, never testified at the retrial that Galanek definitely would have prevailed or even that she probably would have prevailed in her case against Honda if the entire vehicle had been preserved as evidence. He was able to opine only that failing to preserve the car compromised Galanek's ability to pursue her products liability case, exactly the type of testimony found unpersuasive by the Lusk court.

CONCLUSION

Defense counsel must be scrupulous in taking all reasonable steps to preserve evidence in personal injury or products liability actions that comes into their actual or constructive possession. Failure to do so may be viewed by the courts far more harshly than simply the failure to obtain evidence through discovery. To the extent courts in California or elsewhere follow Galanek, plaintiffs will be able to avoid non-suits and directed verdicts and shift the burden of proof on causation to defendant attorneys in legal malpractice cases on a minimal evidentiary showing that might include adverse summary judgment rulings in an underlying proceeding, including rulings that might be erroneous, and proffered expert testimony by attorneys as to the likely causal effect in the underlying proceeding of the loss of key evidence.

FOOTNOTE

1. Sukoff v. Lemkin, 249 Cal.Rptr. 42 (Cal.App. 1988); Conley v. Lieber, 158 Cal.Rptr. 770 (Cal.App. 1979). Section 500 of the California Evidence Code provides, "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."

2. Gutierrez v. Mofid, 705 P.2d 886 (Cal. 1985); Lysick v. Walcom, 65 Cal.Rptr. 406 (Cal.App. 1968); Moradi-Shalal v. Fireman's Fund Ins. Cos., 758 P.2d 58 (Cal. 1998).

3. Fagerquist v. Western Sun Aviation Inc., 236 Cal.Rptr. 633 (Cal.App. 1987).

4. 133 Cal.Rptr. 2d 207, 214 (Cal.App. 2003).

5. 478 P.2d. 465, 476 n.19 (Cal. 1970), court's emphasis.

6. 521 P.2d 481, 484 (Cal. 1974).

7. 188 Cal.Rptr. 542, 547 (Cal.App. 1983). See also Lakin v, Watkins Associated Indus., 25 Cal.Rptr.2d 109 (Cal.App. 1993).

8. See, e.g., Summers v. Tice, 9 199 P.2d 1 (Cal. 1948) (plaintiff could not prove which of two hunters fired shot that struck him]; Haft, 478 P.2d 465 (hotel's failure to provide statutorily required lifeguard deprived plaintiffs of witness to establish causation); Sindell v. Abbott Lab., 607 P.2d 924 (Cal. 1980) (drug injured plaintiff in utero and fungibility of drug made causation impossible to prove); Wolf v. Superior Court (Walt Disney Pictures and Television), 8 Cal.Rptr.3d 69 49 130 Cal.Rptr. 860 (Cal.App. 2004), modified on denial or rehearing, 2004 Cal.App. Lexis 193 (in breach of contract action, when financial records essential to proving contingent compensation owed are in exclusive control of defendant, fairness requires shifting burden of proof to defendant). But see Sargent Fletcher Inc. v. Able Corp., 3 Cal.Rptr.3d 9 29 79 (Cal.App. 2003) (court refused to shift burden of proof for causation from manufacturer to subcontractor in trade secrets case); Rutherford v. Owens-Illinois Inc., 941 P.2d 1203 (1997) (court refused to shift burden of proof for causation to defendant where it was not impossible for plaintiff to prove causation of asbestos-related cancer).

9. 34 Cal.Rptr.2d 265 (Cal.App. 1994).

10. 81 Cal.Rptr.2d 236 (Cal.App. 1999), review denied, 9 1999 Cal. Lexis 1753.

11. 34 Cal.Rptr.2d at 268.

12. 34 Cal.Rptr.2d al 270, quoling from Haft, 478 P.2d 265.

13. See, e.g., Ignarski v. Norbut, 648 N.E.2d 285 (Ill.App. 1995) (failure to serve summons timely); Dunavan v. Calandrino, 522 N.E.2d 347 (Ill.App. 1988); Williams v. Bashman, 457 F.Supp. 322 (E.D. Pa. 1978); Lewis v. Collins, 9 39 49 So.2d 444 (La.App. 1977). See also Cook v. Gould, 440 N.E.2d 448 (Ill.App. 1982).

14. RONALD E. MALLEN & JEFFREY SMITH, LEGAL MALPRACTICE 9 39 2.9, n.7, page 174 (4th ed. 1996).

15. 81 Cal.Rptr.2d at 242.

16. See Piscitelli v. Friedenberg, 105 Cal.Rptr.2d 88 (Cal.App. 2001).

AUTHOR_AFFILIATION

Alan E. Greenberg is a partner in the San Diego office of Lewis, Brisbois, Bisgaard & Smith LLP and concentrates his practice in the defense of professional liability, bad faith actions against insurers, insurance coverage, and defense of brokers and broker-dealers in arbitrations. He is a graduate of Claremont Men's College (1973) and Columbia Law School (1977). The author participated in the trial and appeal of Galanek v. Wismar, a case discussed in this article.