"It is within the sound discretion of the trial court to dismiss [a] case for failure to comply with the court's discovery order," and we typically "review the court's decision for an unsustainable exercise of discretion." Estate of Sicotte v. Lubin & Meyer, 157 N.H. 670, 673, 959 A.2d 236 (2008) (quotation and ellipsis omitted). Because, however, the trial court here determined that an expert was required as a matter of law, our review is de novo.Ellis v. Candia Trailers & Snow Equip., 164 N.H. 457, 463, 58 A.3d 1164 (2012).
To establish legal malpractice under New Hampshire law, under either a contract or tort theory, a plaintiff must prove (1) the existence of an attorney-client relationship, "which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client;" (2) a breach of that duty; and (3) "resultant harm legally caused by that breach." Yager v. Clauson , 166 N.H. 570, 572–73, 101 A.3d 6, 9 (2014)(citing Estate of Sicotte v. Lubin & Meyer, P.C. , 157 N.H. 670, 674, 959 A.2d 236, 240 (2008). "Whether [an] attorney has breached the applicable standard of care in representing the client is a question of fact to be determined through expert testimony and usually cannot be decided as a matter of law."
Proof of professional malpractice, in most instances, requires evidence in the form of expert testimony. Estate of Sicotte v. Lubin & Meyer, P.C., 157 N.H. 670 , 674 (2008), citing Carbone v. Tierney, 151 N.H. 521 , 527-28 (2004).4 While “(e]xpert testimony is not required where the subject presented is within the realm of common knowledge and everyday experience,” it is required where the subject presented is so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson.'1 Id. at 673-74 (quotation omitted).
Dr. Johnson alleges that the Health Insurance Portability and Accountability Act (" HIPAA") obligated Exeter Hospital to maintain an audit trail regarding access to the Jodoin head CT scan on August 9, 2007. Proof of professional malpractice, in most instances, requires evidence in the form of expert testimony. Estate of Sicotte v. Lubin & Meyer, P.C., 157 N.H. 670, 674, 959 A.2d 236 (2008), citing Carbone v. Tierney, 151 N.H. 521, 527-28, 864 A.2d 308 (2004). While " [e]xpert testimony is not required where the subject presented is within the realm of common knowledge and everyday experience, " it is required where the subject presented is so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson.
The elements of a legal malpractice claim are "(1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach." Estate of Sicotte v. Lubin & Meyer, P.C., 157 N.H. 670, 674 (2008). In most cases, expert opinion testimony is necessary to inform the jury of the standard of care, to show a breach of the standard of care, and to establish that the breach caused the plaintiff harm. Yager, 166 N.H. at 573.
Plaintiffs cannot recover for legal malpractice, negligent misrepresentation, breach of fiduciary duty, and breach of contract simply by showing that Callahan wronged them (which, if their account is accepted, he plainly has); rather, they must demonstrate that they suffered some loss caused by his conduct. See Estate of Sicotte v. Lubin & Meyer, P.C., 157 N.H. 670, 674 (2008) ("[A] plaintiff in a legal malpractice action must prove resultant harm legally caused by the breach."); Mullen v. Kalil, 2008 DNH 137, 12-14 (plaintiff must prove damages caused by breach to recover for breach of fiduciary duty); Indep. Mech. Contractors, 138 N.H. at 113-14 (plaintiff in breach of contract action must show reasonably foreseeable damages caused by breach); DiPerri v. Tothill, 129 N.H. 676, 679-80 (1987) (negligent misrepresentation plaintiff must establish "causal connection between the asserted misrepresentations and the harm which ultimately occurred").
ion requiring an expert opinion to establish a causal relationship between the incident and the injury or disability."); Saigen T. by & through Jacynda G. v. Mosaic , No. A–15–299, 2016 WL 4045204, at *4–5 (Neb. Ct. App. July 26, 2016) (expert testimony required except where "a causal connection between negligence ... and the resulting injury [is] apparent," i.e., "a layperson could clearly conclude that the[ ] injuries obviously stemmed from [the negligent act]") (citing cases); Neal–Lomax v. Las Vegas Metro. Police Dep't , 574 F.Supp.2d 1193, 1199 (D. Nev. 2008) ("Under Nevada law, Plaintiffs must produce medical expert testimony to establish causation, particularly where the cause of death is not immediately apparent."), aff'd , 371 Fed.Appx. 752 (9th Cir. 2010) ; Layton v. Yankee Caithness Joint Venture, L.P ., 774 F.Supp. 576, 580 (D. Nev. 1991) ("[W]here a question of fact is beyond the comprehension of the ordinary lay person, expert testimony is required to prove that fact."); Estate of Sicotte v. Lubin & Meyer, P.C ., 157 N.H. 670, 959 A.2d 236, 239 (2008) ("Expert testimony is required where the subject presented is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson. Expert testimony is not required where the subject presented is within the realm of common knowledge and everyday experience.");
Under New Hampshire law, there are three elements to a legal malpractice claim: “(1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach.” Estate of Sicotte v. Lubin & Meyer, P.C., 157 N.H. 670, 674, 959 A.2d 236, 240 (2008) (quoting Carbone v. Tierney, 151 N.H. 521, 527, 864 A.2d 308, 314 (2004)). Here, there is no dispute that a duty existed between Attorney Denby, Burke Warren, and Ms. Tamposi by virtue of their attorney-client relationship.
For example, we have held that expert testimony is generally required to establish proximate cause in a legal malpractice suit. Id.; Estate of Sicotte v. Lubin & Meyer, 157 N.H. 670, 674, 959 A.2d 236 (2008). It is also required to prove physical symptoms suffered from alleged negligent infliction of emotional distress.
The Circuit Court stated its research—and that of the parties—had revealed "no negligence claim based solely on a fee dispute has been approved in any published case law in Kentucky or nationally." Both briefs and the Circuit Court opinion discuss Estate of Sicotte v. Lubin & Meyer, P.C., 959 A.2d 236 (N.H. 2008), wherein a minor sustained birth injuries giving rise to a medical malpractice suit. The minor's parents signed an agreement to pay the law firm representing the minor's estate forty percent of the gross amount collected.