The Business Court dismissed a legal malpractice claim
right before Thanksgiving last week in Inland
American Winston Hotels,
Inc. v. Winston, 2010 NCBC 19. Judge Tennille
found Plaintiff's expert, a Duke Law School professor, to be incompetent
to testify to the Defendant lawyer's alleged breach of his duty of care.
The claimed malpractice concerned the lawyer's work on a
commercial real estate transaction by which the Plaintiff acquired an entity
from the Defendant and by which an entity controlled by the Plaintiff was
substituted as the purchaser under an option. The alleged breach of
fiduciary duty (a form of professional malpractice) was the lawyer's role in a
change of the identity of the purchaser under the option.
Expert testimony is necessary in almost all cases to
prove professional negligence, and Judge Tennille found the professor to lack
the "requisite experience" to supply the required expert testimony,
observing that he came up short on a number of grounds:
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