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  • March 07, 2017

    Plaintiffs Beware: Broad-brush Expert Opinion of Design Professional Negligence Will Not Suffice

    A recent decision by a Milwaukee Circuit Court judge serves as guidance to plaintiffs in the future that defendant-specific expert testimony is crucial to establishing negligence on the part of design professionals for construction defects. Brian Smigelski discusses the decision and its impact.

    Brian R. Smigelski

    In Sears, Roebuck & Co. v. Bayshore Town Center, LLC, Case No. 14CV006143 (Milw. Co. Cir. Ct.), appeal docketed, 2015 AP 001381 (Dist. I, July 13, 2015), plaintiff, Sears Roebuck & Co. (Sears), alleged that it suffered substantial flooding to its Bayshore Town Center retail store during a significant rainstorm on July 22, 2010. Sears contended that this flooding was caused by, inter alia, negligent architectural and engineering design services related to the redevelopment of the Bayshore Town Center.

    Brian R. Smigelski Brian R. Smigelski, Marquette 1987, is a shareholder with DeWitt Ross & Stevens s.c., Brookfield, where he concentrates his practice in civil litigation with an emphasis in construction law.

    As to its professional liability claims, Sears relied upon the opinions of one expert witness. While Sears’ expert broadly opined that certain elements of the project were designed and constructed negligently, the expert witness conceded in his deposition that he did not know what specific role any of the defendants played in designing the Bayshore project. Consequently, he did not have any specific criticisms of any individual defendant’s services on the project.

    Summary Judgement

    Accordingly, the design defendants moved for summary judgment. They argued that a plaintiff alleging professional negligence must prove four elements:

    1. a duty to conform to a certain standard of conduct to protect others against unreasonable risks;
    2. a failure to conform to the required standard;
    3. a causal connection between the conduct and the injury; and
    4. actual loss or damage as a result of the injury.

    Tesar v. Anderson, 210 WI App. 116, ¶ 5, 329 Wis. 2d 240, 789 N.W.2d 351.

    The design defendants also asserted that expert testimony is required to support an allegation of professional malpractice as to the design, specifications or construction of a building or building component. See Baumeister v. Automated Products, Inc., 2004 WI 148, ¶ 19, 277 Wis. 2d 21, 690 N.W.2d 1. They then pointed out that to survive a motion for summary judgment, a plaintiff must submit “evidentiary material that raises a genuine issue of fact,” typically in the form of an expert report, that a construction professional “violated the applicable standard of care.” Transportation Ins. Co., Inc. v. Hunzinger Const. Co., 179 Wis. 2d 281, 294, 507 N.W.2d 136 (1993).

    Applying these well-established rules, the design defendants argued that where Sears’ liability expert admitted that he did not know what work each design professional had provided on the project, and he did not have any criticisms of any specific design defendants’ work, Sears failed as a matter of law to satisfy it burden of establishing the elements of a professional negligence claim.

    The Expert’s Task

    Milwaukee County Circuit Court Judge Daniel Noonan readily agreed with the design defendants’ arguments that in design malpractice cases, an expert must set forth the standard of care and how it was violated. The trial court therefore held as a matter of law that where Sears failed to present expert testimony as to the applicable standard of care and how any design defendant specifically breached such standard of care, Sears’ case consisted of mere “ipse dixit,” and Sears failed to establish a prima facie case. Accordingly, Judge Noonan granted the design defendants’ motion for summary judgment and dismissed Sears’ professional negligence claims.

    This case plainly warns plaintiffs in construction defect cases that their claims must be supported by defendant-specific expert testimony to establish the applicable standard of care, that a professional’s actions breached that standard of care and that such breach caused harm to the plaintiff. Without such defendant-specific evidence, the plaintiff’s claims are doomed as a matter of law.

    This article was originally published on the State Bar of Wisconsin’s Construction & Public Contract Law Section Blog. Visit the State Bar Sections or the Construction & Public Contract Law Section web pages to learn more about the benefits of section membership.

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    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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