The reference is to a 2021 post, https://www.videntpartners.com/blog/2021/shooting-fish-barrel. Opening paragraph: “That’s an unkind title, I know. But really, when the plaintiff’s attorney submitted a pharmacist’s affidavit in opposition to a physician’s motion for summary judgment (which was supported by a physician’s affidavit), what did he think was going to happen?”
Today’s case, Faxel v. Wilderness Hotel & Resort, (7th Cir., No. 21-1967, 8/15/2024), is arguably worse. It’s clear from the procedural history that plaintiffs’ counsel couldn’t find a supportive expert and decided to tough it out by arguing that no expert was needed, with the predictable result that the trial judge granted the defendants’ motion for summary judgment and the Seventh Circuit affirmed.
Of course, as is customary, the court attributed what was done and not done to the plaintiffs, not their attorney, as in the opening paragraphs of the opinion:
Meghan Faxel was injured while riding an inflatable tube down the “Black Hole,” a water slide at the Wilderness Hotel in Wisconsin Dells, Wisconsin. Her tube became stuck and then flipped over, and she injured her shoulder. Meghan and her husband, Mike Faxel, sued Wilderness alleging claims for negligence, common-law premises liability, and loss of consortium. . . .
The scheduling order set a deadline for the Faxels to disclose their liability expert, but the date came and went with no disclosure. Almost three months later, they sought an extension of time to name an expert. A magistrate judge, presiding by consent, denied the motion. Wilderness then moved for summary judgment, arguing that without expert testimony, the Faxels could not prove their claims. The magistrate judge agreed and entered judgment for Wilderness.
We affirm. The hotel’s duty of care depends on what is reasonably required of water-park operators regarding the safety protocols, inspection, and maintenance of water slides like this one. These questions require specialized knowledge and expertise; they are not within the common knowledge of jurors. It follows that without expert testimony, the Faxels cannot prove their claims. Summary judgment for Wilderness was appropriate.
But eventually, in discussing the procedural history of the case, the court unavoidably identified the plaintiffs’ attorney (not the plaintiffs) as the source of a procedural default:
[T]he parties consented to proceed before a magistrate judge and filed a joint status report proposing a case schedule and noting that the Faxels planned to file an amended complaint adding [the manufacturer of the Black Hole water slide] as a defendant. The magistrate judge held a pretrial conference and entered a scheduling order, which included deadlines to amend the pleadings, disclose liability experts, complete discovery, and other customary case-management deadlines.
The Faxels missed their deadline to file the anticipated amended complaint. For the next two months Wilderness’s counsel repeatedly emailed their attorney inquiring about the status. When an amended complaint was not forthcoming, Wilderness moved to dismiss for failure to prosecute. Two days later the Faxels filed an amended complaint adding ProSlide as a defendant. Though it was more than two months late, the magistrate judge accepted the amended complaint and denied the motion to dismiss. Still, the judge admonished the Faxels’ attorney for her “lack of attention to her obligations” and the “troubling lack of candor” in her response to the dismissal motion; the judge warned her that further neglect of her responsibilities would not be tolerated. (Emphasis added.)
So when the court subsequently refers to “the Faxels,” it’s painfully obvious that it means their attorney:
The Faxels soon missed another important deadline: they did not disclose an expert witness by the deadline in the scheduling order. Nearly three months later, they moved to “reset” the expert disclosure date. The judge denied the motion because the Faxels had not demonstrated good cause under Rule 16 of the Federal Rules of Civil Procedure.
The defense then moved for summary judgment, which was granted. On appeal,
The Faxels do not challenge . . . the denial of their motion for an extension of time to disclose an expert witness. Their only argument is that the judge was wrong to enter summary judgment for Wilderness; they maintain that they can prove their claims against the resort even without expert testimony. . . .
To determine whether Wilderness acted reasonably under the circumstances, a jury must understand what is reasonably required of a water park of its kind. More specifically, Wilderness’s duty of care is determined by what is reasonably required of water-park operators regarding the inspection, maintenance, and safety protocols of water parks in general and water slides like this one in particular. These are not questions that lay jurors can answer based on common knowledge or experience. Where the specifics of a defendant’s duty of care involve specialized knowledge, plaintiffs must introduce expert testimony to establish this element of a negligence claim. . . . Without expert testimony, jurors would be left to guess about the standard of care or infer a breach from the fact of Meghan’s injury, neither of which is legally permissible.
Many – perhaps most – of the cases I’ve discussed during my nearly six years (!) of writing this blog involved legal questions on which reasonable minds could differ, and the appellate court’s job was to determine the better argument. But a disturbingly large minority involved an attorney’s error – usually not nearly as egregious as the Faxels’ attorney’s procedural defaults. In fact, my very first post, https://www.videntpartners.com/blog/2018/does-your-medical-expert-witness-meet-your-state%E2%80%99s-statutory-qualification-requirements, involved the plaintiff’s attorney’s misunderstanding of the kind of expert required in a lawsuit against a cardiologist and an internist/hospitalist:
The plaintiff settled with the cardiologist, and the internist moved for summary judgment on the ground that the plaintiff’s expert, a board certified cardiologist, was not qualified under Alabama law to render an opinion on the standard of care for a board certified internist. . . . Of course, since cardiology is a subspecialty of internal medicine, the plaintiff’s expert was board certified in internal medicine as well as cardiology. Nevertheless, the trial court struck the testimony of the plaintiff’s expert and granted the motion for summary judgment, and its decision was affirmed on appeal. Internal medicine is itself a specialty, and since the defendant was board certified in internal medicine only, [Alabama law required] an expert with exactly the same certification, not one who was also certified in a subspecialty.
So I conclude with the final paragraph of that same post, which sets forth Vident Partners’ unique strengths:
Vident Partners takes a consultative approach to referral, rather than using technology to replace the human element. Among other things, this enables us to ensure that every expert we refer is in precisely the right specialty. The comprehensive, in-depth conversations that we have with our attorney-clients and with potential experts frequently enable us to provide the client with new insights into a case, to sharpen the issues, and sometimes to determine that the case requires an expert in a different field of specialization than the one the client originally requested. We work as a team in order to guarantee that our clients are getting the best possible service. Our goal is to select the right expert for each referral. We are always available for consultation, and there is no charge for our services unless you retain an expert we’ve referred to you.
We look forward to working with you the next time you need help finding an expert.
