B.E. v. Pistotnik

Opinion

No. 128,144

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

B.E., Appellant,

v.

BRAD PISTOTNIK, TONY ATTERBURY, and BRAD PISTOTNIK LAW, P.A., Appellees.

SYLLABUS BY THE COURT

1.

K.S.A. 60-456 requires a proffered expert to be shown to be qualified by "knowledge, skill, experience, training or education" in his or her proposed area of expertise.

2.

Daubert did not lessen the qualifications for expert witnesses so that any licensed attorney is per se qualified to be an expert in a legal malpractice case.

3.

K.S.A. 60-456, both before and after the 2014 Daubert amendment, requires that to be qualified as an expert witness in a legal malpractice matter, an attorney must be found to possess expertise beyond that possessed by every attorney simply as a result of membership in the legal profession.

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Appeal from Sedgwick District Court; MIKE WARD, judge. Oral argument held May 12, 2026.

Opinion filed September 11, 2026. Affirmed.

Stephen L. Brave, of Brave Law Firm, LLC, of Wichita, for appellant.

Richard A. Olmstead, of Kutak Rock LLP, of Wichita, for appellees.

Before BRUNS, P.J., SCHROEDER and GARDNER, JJ.

GARDNER, J.: This case asks whether every licensed attorney is qualified to testify as an expert in a legal malpractice case. After all, every licensed attorney has graduated from law school, in which torts and civil procedure are taught, and has passed the bar exam which qualifies them to practice law in Kansas. We answer this question in the negative and find no abuse of discretion in the district court's exclusion of the designated expert's testimony under K.S.A. 60-456(b). We reaffirm that even after this statute was revised to adopt the standards of Daubert, testimony is generally required from an attorney who has expertise in the same area of law in which the defendant attorney practices, to prove a deviation from the appropriate standard of care in a legal malpractice case.

FACTUAL AND PROCEDURAL BACKGROUND

B.E.'s Tort Lawsuit Against G.G.

This court summarized the facts of B.E.'s initial lawsuit in B.E. v. G.G., No.

117,924, 2018 WL 4167678 (Kan. App. 2018) (unpublished opinion). We need not repeat all the facts here, but B.E. sued G.G., claiming he had transmitted HIV to her, and G.G. counterclaimed that B.E. had transmitted HIV to him. B.E. sued G.G. for negligence, negligent infliction of emotional distress, outrage, breach of duty not to transmit HIV, failure to warn of HIV status, and failure to warn her of his sexually dangerous lifestyle.

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Tony Atterbury testified that he filed B.E.'s petition as a verified petition because the statute of limitations was about to run and he could not, in good faith, verify her claims before the statute of limitations expired. 2018 WL 4167678, at *1-2.

B.E. and G.G. then entered a mutual release agreement and settled their claims.

But B.E. later claimed that the agreement was unenforceable because she had not intended to settle her claims and her attorneys had fraudulently attached her signature to the agreement. After an evidentiary hearing, the district court found no evidence of fraud or bad faith so it enforced the settlement agreement. This court affirmed that decision on appeal in 2018. 2018 WL 4167678, at *3-5.

The Legal Malpractice Lawsuit Against Defendants

Later that year, B.E. sued Tony Atterbury, Brad Pistotnik, and Brad Pistotnik Law, P.A. (collectively Defendants)—the lawyers who represented her in the settled tort case—alleging fraud, negligence, breach of fiduciary duty, and violations of the Kansas Consumer Protection Act (KCPA). She alleged that Defendants had violated the KCPA by engaging in unconscionable and deceptive acts and practices in advertising legal services; that all Defendants had committed fraud in their legal advertising and their handling of her lawsuit against G.G.; and that all Defendants had been negligent and had breached their fiduciary duties by failing to handle her tort suit against G.G. within the applicable standards of care.

The district court granted summary judgment for Defendants on all claims. This court summarized those facts in B.E.'s other appeal, B.E. v. Pistotnik, No. 124,400, 2022 WL 4391063 (Kan. App. 2022) (unpublished opinion), and we need not repeat them here. On appeal, this court upheld summary judgment in part but remanded for additional proceedings on B.E.'s claims that were distinct from the dispute about how the mutual release was signed. 2022 WL 4391063, at *15.

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After remand, the district court set expert disclosure deadlines and B.E. timely designated an attorney expert (Amanda Jumpponen) and a medical expert (Wendy Gill) and submitted their expert reports to support her claims against Defendants. She also deposed Defendants' designated attorney expert (Timothy J. Finnerty).

The Designated Experts on Legal Malpractice

Jumpponen determined from her review of the record that Defendants had breached the applicable standard of care in handling B.E.'s case. She opined that Defendants had failed to (1) timely consult with or engage a qualified medical expert before concluding that B.E.'s claims had causation issues and expressing an intent to withdraw from the case; (2) take G.G.'s deposition; or (3) adequately investigate B.E.'s claims and defenses. She offered no opinion on B.E.'s claims of fraud or KCPA violations.

Defendants' designated expert, Finnerty, found that Defendants had not breached any fiduciary duty to B.E. for two main reasons. First, undisputed facts established no basis to sue G.G. because he did not know he was infected with HIV at the relevant times and thus could not have breached a duty to disclose the disease. Second, Defendants' decision to withdraw as B.E.'s counsel did not imperil B.E.'s interests, and B.E. independently and knowingly agreed to the mutual release of the parties' claims, which settlement the appellate court had already upheld.

Dispositive Motions

Defendants moved to strike Jumpponen's opinion and testimony, arguing she lacked enough experience in civil litigation and relevant areas of law to qualify as an expert.

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Defendants also moved for summary judgment, arguing in part that collateral estoppel precluded B.E. from claiming they caused her to unwillingly forgo trial. As for B.E.'s KCPA claim, Defendants argued that B.E. presented no evidence that they willfully intended to harm consumers or that she was an "aggrieved" party who had seen and relied on their advertisements. Defendants' summary judgment motion explained why Atterbury had lost confidence in B.E.'s claims after reviewing G.G.'s medical records, and why he believed that B.E. had misrepresented important facts about the monogamous nature of her and G.G.'s relationship and her knowledge about G.G.'s other sexual partners.

B.E. moved for partial summary judgment, arguing that Defendants had breached the applicable standard of care and that their advertisements constituted unconscionable acts or practices in violation of K.S.A. 50-627(a). B.E. submitted many exhibits in support, including expert reports, witness depositions, written communications between the parties, medical notes, and HIV test results.

Rulings on Expert Testimony and Summary Judgment Motions

After a hearing on Defendants' motion to strike Jumpponen's opinion and testimony, the district court granted the motion. The district court found Jumpponen was not qualified to testify as an expert in the legal malpractice case which involved civil litigation of complicated negligence and malpractice claims. The district court found that Jumpponen had limited litigation experience, no experience litigating civil claims, and that her education and personal knowledge did not show enough understanding of the subject matters to qualify her as an expert.

The district court separately heard the parties' competing motions for summary judgment. In light of Jumpponen's disqualification, the parties modified their initial

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arguments and the district court requested supplemental briefing on whether any of B.E.'s claims could survive summary judgment without expert testimony.

B.E. conceded that Jumpponen's testimony was necessary to prove her claim for breach of a fiduciary duty, but she maintained that other evidence sufficiently supported her legal malpractice and KCPA claims. B.E. argued that Finnerty's testimony and the testimony of Bradley LaForge, G.G.'s original attorney, provided sufficient evidence of Defendants' deficient performance—Finnerty testified that Defendants did not know about the HIV window period, and LaForge testified that B.E. and G.G. had settled their claims after B.E.'s expert deadline passed.

After reviewing the parties' motions, arguments, and supplemental briefs, the district court granted summary judgment to Defendants and denied B.E.'s motion for partial summary judgment. The district court clarified that B.E.'s legal malpractice and tort claims required expert testimony. And B.E. had to survive summary judgment on her legal malpractice claims to make a prima facie showing of harm to establish that she was an aggrieved party under the KCPA. See B.E., 2022 WL 4391063, at *11, 13. The district court thus found that B.E. could not prove any claim without an expert opinion. Based on its review of the record, the district court determined that Defendants did not breach any duty of care, and B.E. presented no evidence of proximate cause.

B.E. timely appeals.

ANALYSIS

Although B.E. briefs several issues on appeal, all of her arguments challenge the district court's order striking Jumpponen's opinion. B.E. concedes that if this court affirms the district court's ruling striking Jumpponen's testimony, summary judgment was properly granted on all of her claims.

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Standards of Review and Basic Legal Principles

When reviewing a summary judgment decision, this court reviews the same evidence and is in the same position as the district court when it decided the motion, so we apply the same standards. GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976, 981-82, 453 P.3d 304 (2019). Summary judgment is rarely appropriate in negligence cases, unless a plaintiff fails to establish a prima facie case demonstrating the existence of one of the elements of negligence: "existence of a duty, a breach of that duty, an injury, and proximate cause." Montgomery v. Saleh, 311 Kan. 649, 653, 466 P.3d 902 (2020).

To prevail on a claim of legal malpractice, a plaintiff must show "(1) the duty of the attorney to exercise ordinary skill and knowledge, (2) a breach of that duty, (3) a causal connection between the breach of duty and the resulting injury, and (4) actual loss or damage." Canaan v. Bartee, 276 Kan. 116, Syl. ¶ 1, 72 P.3d 911 (2003). And "to prove legal malpractice in the handling of litigation, a plaintiff must establish the validity of the underlying claim by showing that it would have resulted in a favorable judgment in the underlying lawsuit had it not been for the attorney's error." 276 Kan. at 120.

K.S.A. 60-456(b) governs expert testimony:

"If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case."

The Kansas Legislature amended this statute in 2014 to adopt the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). See In re Care & Treatment of Cone, 309 Kan. 321, 325, 435 P.3d 45

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(2019). Under this framework, the district court has a gatekeeping role to assess expert testimony for reliability and relevance. See Cone, 309 Kan. at 327 ("trial judge has a gatekeeping obligation to ensure that scientific evidence is relevant and scientifically reliable"). But a court's gatekeeper role is not intended to supplant the adversary system or the role of the jury. See Daubert, 509 U.S. at 596; United States v. Nacchio, 555 F.3d 1234, 1280 (10th Cir. 2009) (Henry, J., dissenting).

Daubert dealt with scientific testimony and outlined four nonexclusive factors for determining reliability. Daubert, 509 U.S. at 592-94 (assessing reliability based on the proposed scientific theory's testing, peer review and publication, rate of error, and acceptance). But Daubert's standards were later applied to all expert testimony. See Cone, 309 Kan. at 327 (recognizing holding in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 149-50, 119 S. Ct. 1167, 143 L. Ed. 2d 238 [1999] that the trial court's gatekeeping function applies to all expert testimony, not just scientific testimony).

B.E. challenges the district court's ruling that her designated expert on legal malpractice was unqualified to testify as an expert on that topic. We review a district court's ruling on the qualifications of a witness as an expert for an abuse of discretion. State v. McIntosh, 274 Kan. 939, 955, 58 P.3d 716 (2002); see Salem v. U.S. Lines Co., 370 U.S. 31, 35, 82 S. Ct. 1119, 8 L. Ed. 2d 313 (1962) ("[T]he trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous."); Cone, 309 Kan. at 325. A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. The party asserting the district court abused its discretion bears the burden of showing such abuse. In re A.S., 319 Kan. 396, 400, 555 P.3d 732 (2024). But our review is de novo to the extent the trial court's admission of expert testimony is based on statutory interpretation. Bullock v. BNSF Railway Co., 306 Kan. 916, 921, 399 P.3d 148 (2017).

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Although rejection of expert testimony is the exception rather than the rule, Daubert requires the court to act as a gatekeeper for the admission of expert testimony. Smart v. BNSF Railway Co., 52 Kan. App. 2d 486, 496, 369 P.3d 966 (2016). A district court's duty under Daubert is two-fold—first to assess whether a proposed expert is qualified to give the proposed opinion, then to determine whether the proposed opinions are reliable and relevant.

"Under the rule, the court must first assess whether a proposed expert is qualified to render an opinion. Id. If the expert is qualified, the court must determine whether the expert's opinions are reliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and its progeny. The purpose of the Daubert inquiry is 'to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)." Berndt v. Levy, No. 08-1067-WEB, 2010 WL 3913240, at *3 (D. Kan. 2010) (unpublished opinion).

We focus on two components to this analysis in determining whether the district court properly performed its evidentiary gatekeeping role: (1) whether the court used the correct legal standard; and (2) whether the court properly applied that standard in evaluating whether (a) an expert is qualified to render an opinion and (b) the opinion is sufficiently relevant and reliable. The first question asks whether the district court committed an error of law, and the second asks whether the district court committed an error of fact or acted arbitrarily or unreasonably. State v. Aguirre, 313 Kan. 189, 198, 485 P.3d 576 (2021); see Smart, 52 Kan. App. 2d at 494. Yet "both components . . . fall under separate aspects of [an appellate court's] abuse of discretion analysis." Aguirre, 313 Kan. at 198. B.E. claims both errors here, focusing solely on the expert's qualifications and not the opinion's reliability or relevance.

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I. THE DISTRICT COURT APPLIED THE CORRECT LEGAL STANDARD IN PERFORMING ITS GATEKEEPING ROLE

As this court recognized in B.E.'s previous appeal, expert testimony is generally required in legal malpractice claims. B.E., 2022 WL 4391063 at *11 (citing Singh v. Krueger, 39 Kan. App. 2d 637, 640, 183 P.3d 1 [2008]). Kansas courts have consistently applied this rule. See, e.g., Bowman v. Doherty, 235 Kan. 870, 879, 686 P.2d 112 (1984); Zimmerman v. Brown, 49 Kan. App. 2d 143, 160, 306 P.3d 306 (2013); Law Office of Ross D. Alexander v. Brown, No. 107,019, 2012 WL 5392151, at *4 (Kan. App. 2012) (unpublished opinion). As explained in Bowman, 235 Kan. at 879, expert testimony is required in these cases unless the breach of duty is so obvious that it could be reviewed by the trier of facts, using common knowledge. B.E. does not invoke the common knowledge exception to the general requirement of expert testimony and tacitly concedes that expert testimony is necessary.

We thus begin by determining whether the district court used the proper legal standards in determining whether the proposed expert was qualified to give the proffered expert opinions. The court read the briefs on the motion to strike and held a Daubert hearing to consider the parties' claims before ruling. See Aguirre, 313 Kan. at 205 (noting a Daubert hearing is "'[t]he most common method for fulfilling' a district court's gatekeeping function") [quoting Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000)]).

In its order, the district court correctly outlined the applicable rules for reviewing expert testimony under K.S.A. 60-456(b), Daubert, and related cases. That order identified the factors listed in K.S.A. 60-456(b) and made relevant findings showing that the court had reviewed Jumpponen's qualifications, including her knowledge, experience, and education. Because the district court found her unqualified to offer expert testimony in this legal malpractice case, it did not reach the analysis of the reliability or relevance of

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Jumpponen's opinions. It had no need to do so. The district court thus generally applied the correct legal framework in performing its gatekeeping role.

Still, B.E. contends that the legal standards the district court used were too narrow.

B.E. asserts that because Jumpponen attended law school and thus took torts and civil procedure classes, and is a licensed attorney, she was per se qualified to provide an expert opinion in a legal malpractice case.

To prevail on a legal malpractice claim, a plaintiff must prove, among other elements, that the attorney breached his or her duty of care. See Canaan, 276 Kan. at 120. What constitutes negligence in a particular situation is judged by the professional standards of the particular area of the law in which the practitioner is involved. Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 245-46, 736 P.2d 882 (1987).

As a result, in legal malpractice claims, our Kansas Supreme Court has traditionally required expert testimony about standard of conduct and breach of the standard of conduct from an attorney who has expertise in the same area of law as the defendant in the legal malpractice case.

"The next element of a legal malpractice claim is proving a breach of the duty created by the fiduciary relationship between attorney and client. See Canaan, 276 Kan. at 120. To prove breach, a plaintiff must establish that the defendant attorney deviated from the professional standards of conduct applicable to the type of practice in which the defendant attorney practices law. Testimony from an expert in that particular area of law is generally required to prove the standard of conduct by which the professional actions of the attorney are measured and whether the attorney deviated from the appropriate standard. Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 246, 736 P.2d 882 (1987); PIK Civ. 4th 123.44." (Emphasis added.) Zimmerman, 49 Kan. App. 2d at 160.

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The district court relied on the italicized language above and recited it verbatim in its ruling. B.E. contends this was legal error because this and other cases the district court relied on have been superseded by Daubert. B.E. contends that under Daubert and K.S.A. 60-456, which codified Daubert, testimony from an expert in the particular area of law in which the defendant attorney practices is no longer required in legal malpractice cases. Thus, B.E. asserts, because Jumpponen attended law school and is a licensed attorney, she was qualified to provide an expert opinion about Defendants' performance in B.E.'s tort lawsuit.

B.E. generally contends that after Daubert, expert testimony should be tested by the adversary process—competing expert testimony and active cross-examination— rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies. But that point relates solely to testing the reliability or relevance of an expert's opinions, not to determining an expert's qualifications, as here. See Daubert, 509 U.S. at 590 (a party who proffers expert testimony need not prove to the judge that the expert's assessment of the situation is correct; as long as an expert's scientific testimony rests upon "'good grounds,' based on what is known," it should be tested by the adversary process).

B.E. also contends that "[t]he entire point of Daubert was to abandon the 'inflexible and ultra-orthodox' Frye test to widen the door to other experts to qualify as an expert," citing Smith v. General Elec. Co., No. Civ.A.91-12912-RGS, 2004 WL 870832, at *2 (D. Mass 2004) (unpublished opinion). But Smith does not state that proposition and found the designated experts were easily qualified by virtue of their education and experience. The issue in Smith was rather whether Daubert's "gatekeeping" rule precluded a jury from considering a novel and controversial scientific theory of causation that, while plausible, was on the "outer rim of supportable science." 2004 WL 870832, at *1.

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In finding that the experts could testify to that theory, the Smith court distinguished between Frye's general acceptance test and Daubert's reliability test for the content of expert opinions:

"As conceived by the Supreme Court, Daubert was intended to supplant the inflexible and ultra-orthodox 'general acceptance' test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), with a more liberal relevancy test derived from the Federal Rules of Evidence. 'That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence.' Daubert, 509 U.S. at 589. Two considerations guide the exercise of a judge's discretion to admit or exclude expert testimony under the federal rules. First, a proffered expert must be shown to be qualified by 'knowledge, skill, experience, training, or education' in his or her proposed area of expertise. Fed. R. Evid. 702. Second, 'under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.' Daubert, 509 U.S. at 589. Stated more colorfully, a trial judge has the obligation to screen out of the trial process 'expertise that is fausse and science that is junky.' Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 159, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (Scalia, J., concurring)." Smith, 2004 WL 870832, at *2.

This case fails to support B.E.'s assertion that Daubert widened the door "to other experts to qualify as an expert." To the contrary, the rule under Fed. R. Evid. 702, as well as under K.S.A. 60-456, is that "a proffered expert must be shown to be qualified by 'knowledge, skill, experience, training, or education' in his or her proposed area of expertise." Smith, 2004 WL 870832, at *2.

Relevant statutes do not support B.E.'s "any attorney" rule.

We now look to see if the crucial statute, K.S.A. 60-456, supports B.E.'s premise that Daubert substantially changed the law regarding expert witness qualifications. If so, this statute, changed to incorporate Daubert's principles, would reflect that. Before the

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2014 amendment, which incorporated Daubert's principles, subsection (b) of K.S.A. 60- 456 stated:

"If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness."

Under that statute, a witness could testify as an expert if: (1) the opinions were based on facts known to the person; (2) the person had "special knowledge, skill, experience or training"; and (3) the person's opinions were within the scope of that special knowledge, skill, experience, or training.

The 2014 amendment to K.S.A. 60-456, which was in effect at the time of B.E.'s legal malpractice case, struck all language of subsection (b) and replaced it with this Daubert test:

"If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case."

Under this statute, a witness could testify as an expert if: (1) scientific, technical, or other specialized knowledge would help the trier of fact to understand the evidence or to determine a fact in issue; (2) the person is qualified as an expert by knowledge, skill, experience, training, or education; and (3) the person and his or her opinions meet the three-part test for evidentiary sufficiency, reliability, and methodology.

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Comparing these two versions of K.S.A. 60-456, we do not agree that the 2014 amendment generally made it easier to admit expert testimony. The Daubert amendment added that the person's "specialized knowledge" must be helpful to the jury, and added the three-part test for evidentiary sufficiency, reliability, and methodology. As a practical matter, these rigorous requirements likely made it more difficult, not less so, for a court to admit expert testimony, no matter how highly qualified an expert was.

And when we focus solely on the listed qualifications one must demonstrate to qualify as an expert, they are largely unchanged from one version of the statute to the next. True, the Daubert amendment required an expert to show specialized "knowledge, skill, experience, training or education," while its predecessor omitted "education" from that list. See K.S.A. 60-456(b); K.S.A. 2013 Supp. 60-456(b). But only to the extent that a witness could show "education" that was not already encompassed within the generic category of "knowledge" could we agree that the addition of the word "education" broadened this clause in 2014. Because the goal of education is to impart or acquire knowledge, we find these two clauses substantially similar in their requirements for the personal qualifications of an expert witness. Both require an expert to show specialized knowledge—meaning knowledge beyond that acquired by everyone who has passed the bar and is a licensed attorney. See Glaser v. Pullman and Comley, LLC, 88 Conn. App. 615, 623, 871 A.2d 392 (2005) ("To be qualified as an expert witness in a legal malpractice matter, an attorney 'must be found to possess special knowledge beyond that exhibited by every attorney simply as a result of membership in the legal profession.' [Citation omitted.]"). The text of K.S.A. 60-456 before and after Daubert thus does not support B.E.'s basic premise that Daubert lessened the qualifications for expert witnesses so that any attorney is per se qualified to testify as an expert in legal malpractice cases.

B.E. also contends that if the Legislature had wanted experts in legal malpractice cases to practice the same type of law as the attorney accused of malpractice, it would have enacted a statute saying so, as it did for physicians. B.E. points to K.S.A. 60-3412,

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which sets requirements in Kansas to qualify as an expert witness about the standard of care in medical malpractice actions:

"In any medical malpractice liability action, . . . in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed."

Thus, in Wisker v. Hart, 244 Kan. 36, Syl. ¶ 3, 766 P.2d 168 (1988), our Supreme Court held that one medical doctor may testify as to the standard of care applicable to another, irrespective of the area of specialization—surgeon or general practitioner—of either. B.E. correctly notes that Kansas has no legal malpractice expert statute analogous to the medical malpractice expert statute.

But B.E.'s premise—that the Legislature would have enacted a statute had it wanted experts in legal malpractice cases to practice the same type of law as the attorneys accused of malpractice—rests on the faulty assumption that the Legislature passed this medical malpractice witness statute for some purpose relevant to this case. To the contrary, our Supreme Court has found that K.S.A. 60-3412's two-year 50% clinical practice requirement was intended to prohibit the testimony of "professional witnesses." Glassman v. Costello, 267 Kan. 509, 519, 986 P.2d 1050 (1999). That statute, K.S.A. 60- 3412, which predates Daubert, was thus not enacted to settle any debate about whether an expert physician had to practice in the same specialty as the physician being sued. The lack of an analogous statute for expert attorney witnesses thus fails to persuade us that B.E.'s premise is correct.

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Caselaw does not support B.E.'s "any attorney" rule.

We next look to see whether caselaw supports B.E.'s assertion that "[u]nder Daubert, a licensed attorney is certainly qualified to offer any legal opinion whatsoever." We note that both before and after Daubert, few cases focus on a designated expert's qualifications. This is likely because, as a practical matter and for strategic reasons, attorneys often stipulate to an expert's qualifications and focus their objections on the unreliability or unhelpfulness of a proposed expert's opinions.

Expert testimony is required to establish breach of an attorney's standard of care.

Cases may be found supporting B.E.'s claim that any attorney may, perhaps, testify to the general standard of care that a lawyer owes his or her client. After all, our Supreme Court held in Bowman, 235 Kan. 870, Syl. ¶ 6, that "[t]he duty of an attorney to exercise reasonable and ordinary care and discretion remains the same for all attorneys." Thus this court found in Zimmerman, 49 Kan. App. 2d at 159, that

"the attorney-client relationship between the parties in this case is sufficient to establish the existence of [the attorney's] legal duty, fiduciary in character, binding him 'to the highest degree of fidelity and good faith to his client on account of the trust and confidence imposed.' Ford, 220 Kan. 244, Syl. ¶ 3."

But more is required to establish a breach of duty by an attorney. When determining whether an attorney has breached the standard of care in a particular situation, we rely on "the professional standards of the particular area of the law in which the practitioner is involved." Bowman, 235 Kan. 870, Syl. ¶ 6. See McConwell v. FMG of Kansas City, Inc., 18 Kan. App. 2d 839, 847, 861 P.2d 830 (1993) (finding negligence in

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a particular situation is judged by the professional standards of the particular area of the law in which the practitioner is involved). Not just any attorney will do.

Our Supreme Court made that point in Bergstrom v. Noah, 266 Kan. 847, 872-73, 974 P.2d 531 (1999). There, it found that testimony of an expert qualified in the area of antitrust law was required to support a legal malpractice claim which alleged that the attorney had been negligent by prosecuting an antitrust claim in state court rather than in federal court under the Sherman Antitrust Act. Similarly, in Brown, 2012 WL 5392151, at *2, 5, this court affirmed summary judgment for failure to designate a qualified expert witness, upholding the trial court's finding that a licensed attorney was not an expert qualified to render a standard of care opinion in a legal malpractice case involving domestic law.

We do not discount cases before 2014 in determining expert qualifications.

B.E. dismisses these and similar cases as irrelevant because they were decided before K.S.A. 60-456's Daubert revision in 2014. But she points to no case that persuades us that this matters. We find no logical reason to discount pre-Daubert cases because, as shown above, B.E. fails to establish that Daubert substantially changed the law in Kansas about testing the personal qualifications of an expert, as distinct from testing the reliability or relevance of a proposed expert's opinions. We thus find no reason to depart from our earlier cases requiring an expert in a legal malpractice case to have special knowledge, skill, experience, training, or education in the particular area of the law in which the lawyer being sued practices. See Leeper, 241 Kan. at 246; Bowman, 235 Kan. at 878; Zimmerman, 49 Kan. App. 2d at 160 (citing PIK Civ. 4th 123.44); McConwell,18 Kan. App. 2d at 847; Brown, 2012 WL 5392151, at *4.

B.E.'s argument to the contrary ignores the basic nature of expert testimony. "[A]n expert must show more than a 'casual familiarity' with the standards of the specialty in

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question." Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990). As the district court aptly stated in its opinion, the term "expert" has no meaning if a general legal education is all that is required to testify as an expert in any legal malpractice action.

The admissibility-versus-weight analysis does not permit an expert to testify outside his or her subject area of expertise.

B.E. also contends that "'a lack of specialization does not affect the admissibility of an opinion, but only its weight,'" quoting Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991). But the accurate quote is "[i]n a products liability action, an expert witness is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight." 935 F.2d at 1100. Yet that same paragraph concludes that "[a]n expert must, however, stay within the reasonable confines of his subject area and cannot render expert opinions on an entirely different field or discipline." 935 F.2d at 1100.

Contrary to B.E.'s suggestion, a fair reading of Wheeler and many other cases stating the same proposition shows that courts do not apply this admissibility-versusweight analysis to permit an expert to testify outside his or her subject area of expertise. See, e.g., Skypoint Advisors, LLC v. 3 Amigos Productions LLC., 585 F. Supp. 3d 1326, 1331 (M.D. Fla. 2022) ("'The qualification standard for expert testimony is not stringent, and so long as the expert is minimally qualified, objections to the level of the expert's expertise go to credibility and weight, not admissibility.'" [Citation omitted.]); Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307, 1328 (M.D. Fla. 2015) ("'As long as an expert stays within the reasonable confines of his subject area, . . . a lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight.'" [Citation omitted.]); Slash F. Cattle Co., LLC v. Agridyne, LLC, No. 23-1197-JWB, 2026 WL 251734, at *3 (D. Kan. 2026) (unpublished opinion) ("So long as a medical expert stays 'within the reasonable confines of his subject area,' the Tenth Circuit has held a lack of specialization

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does not affect the admissibility of that opinion, but only its weight. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 [10th Cir. 2001]."); Ibarra v. Lee, No. 4:20- CV-598-JDR-SH, 2025 WL 2817639, at *1 (N.D. Okla. 2025) (unpublished opinion) (same); Raytheon Co. v. United States, No. 05-448C, 2009 WL 1373959, at *1 (Fed. Claims 2009) (unpublished opinion) ("[Q]uestions regarding the extent of an expert's specialized knowledge in a field go to the weight of the expert's testimony, not to its admissibility."). None of these cases support B.E.'s premise that specialization is not required for an expert.

So, for example, in Edmondson v. RCI Hosp. Holdings, Inc., No. 16 Civ. 2242, 2020 WL 1503452, at *4 (S.D.N.Y. 2020) (unpublished opinion), the plaintiffs argued that the expert was unqualified to offer an opinion on the Trust's damages because he had never been employed as a modeling agent. But the purported expert had served as an expert in 31 fair market valuation cases; was the Managing Director of an intellectual asset consulting firm specializing in trademark, copyright, and rights of publicity valuation and licensing; and was a Certified Licensing Professional and Certified Valuation Analyst who had written and lectured on fair market valuation. The court found that "such quibbles regarding a witness's qualifications or lack of specialization go to the weight of the expert's testimony, rather than to its admissibility." 2020 WL 1503452, at *4. No quibble about the extent of Jumpponen's specialized knowledge is at issue; thus, we decline to find that her lack of any specialization relevant to this legal malpractice case goes solely to the weight of her testimony.

Other jurisdictions require more than a law license to qualify as an expert witness in a legal malpractice case.

If B.E. is correct that Daubert loosened the qualifications for expert testimony, then federal cases which apply Fed. R. Evid. 702, which is based on Daubert, should reflect that. But our research shows that federal courts applying Fed. R. Evid. 702 have

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held that more than a law license is required to qualify as an expert witness in a legal malpractice case. See, e.g., Butler v. First Acceptance Insurance Co., 652 F. Supp. 2d 1264, 1272 (N.D. Ga. 2009) (finding designated expert not qualified to offer his opinion because his area of experience was not relevant to the issues in the litigation and would not aid the trier of fact); Landeen v. PhoneBILLit, Inc., 519 F. Supp. 2d 844, 848 (S.D. Ind. 2007) ("Although the Court has no doubt that [the witness] has considerable experience as a lawyer in the Indianapolis community, there is no specialized training, experience, or education in [the witness'] background that would qualify him as an expert on matters of legal malpractice."); Sallam v. Nolan, No. 96-9661, 1997 WL 311607, at *2 (2d Cir. 1997) (unpublished opinion) (attorney was not qualified to testify as an expert in a legal malpractice action arising from trial strategy used in a medical malpractice action even though the attorney had been admitted to the New York Bar in 1992, belonged to the professional ethics section of the American Bar Association since law school, tried six medical malpractice cases, testified once before as an expert witness, and had occasionally lectured on professional ethics as an alumnus at a state law school); D & D Associates, Inc. v. Board of Education of North Plainfield, No. Civ.A. 03-1026, 2006 WL 755984, at *4-5 (D.N.J. 2006) (unpublished opinion) (attorney was not qualified to testify as an expert in a legal malpractice action arising from a termination for default on school construction contracts even though he had been an attorney in the region for over 30 years, and his areas of practice and experience included administrative law, school law, and real estate and zoning law); The Cadle Co. v. Sweet & Brousseau, P.C., No. Civ.A. 3:97-CV-298-L, 2006 WL 435229, at *3-4 (N.D. Tex. 2006) (unpublished opinion) (judge was not qualified to testify as an expert because the fact a person may be a licensed attorney, or even a judge with years of experience in the practice of law, standing alone, will not qualify him or her to give an opinion on every conceivable legal question, including legal malpractice issues); Talmage v. Charles B. Harris Doar, Drill & Skow, S.C., No. 03-C-0658-C, 2005 WL 1458750, at *1 (W.D. Wis. 2005) (unpublished opinion) (attorney was not qualified to testify as an expert in a legal malpractice action arising out of a bad faith suit against an insurer even though the attorney had extensive

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knowledge about the law of bad faith claims), aff'd 486 F.3d 968 (7th Cir. 2007). Thus, an attorney is not minimally qualified as an expert in a legal malpractice case by virtue of being an attorney.

State court cases reflect the same rule. See, e.g., Dean v. Tucker, 205 Mich. App.

547, 550-51, 517 N.W.2d 835 (1994) (attorney was not qualified to testify as an expert in a legal malpractice action arising out of an attorney's failure to call a physician as a witness when the attorney had never tried a personal injury case and thus would not have been able to provide competent testimony about the issue of trial strategy, which was the basis of plaintiff's malpractice claim against defendants); Noske v. Friedberg, 713 N.W.2d 866, 871-72 (Minn. Ct. App. 2006) (a law professor was not qualified to testify as an expert in a legal malpractice action against a criminal defense attorney and his firm because he had no practical or academic experience in criminal law and had academic experience only on issues of professional responsibility); Ghidoni v. Skeins, No. 05-18- 00355-CV, 2019 WL 2067255, at *4 (Tex. App. 2019) (unpublished opinion) (attorney was not qualified to testify as a legal malpractice expert even though he had handled several malpractice cases and had testified as an expert in two such cases because there was no evidence he had handled water law issues); Olsen v. Karam, No. 277856, 2008 WL 2440024 (Mich. Ct. App. 2008) (unpublished opinion) (attorney who primarily practiced estate planning and trust and estate administration was not qualified to testify as to the standard of care in an action for legal malpractice brought by a trust beneficiary against his attorneys over their mishandling of litigation involving the trust because he was not a litigator familiar with trial strategy).

B.E. thus fails to show any error in the district court's finding that under Kansas law, expert testimony in legal malpractice claims requires expertise in the same subject matter as the defendant attorney. The district court thus properly rejected B.E.'s claim that under Daubert, every licensed attorney is qualified to offer an expert legal opinion on breach of an attorney's duty.

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II. THE DISTRICT COURT PROPERLY APPLIED THE LEGAL STANDARD

We next consider whether the district court properly applied the legal standard in evaluating whether the proposed expert was qualified to render an opinion. B.E. argues that it is widely recognized under Daubert and its progeny that inexperience in a particular subject matter alone does not necessarily render an expert opinion inadmissible. See Dilts v. United Group Services, LLC, 500 Fed. Appx. 440, 446 (6th Cir. 2012) (unpublished opinion) ("An expert's lack of experience in a particular subject matter does not render him unqualified so long as his general knowledge in the field can assist the trier of fact."). We agree that in a legal malpractice suit, an expert on the standard of professional care need not be qualified by experience in the particular specialty. A lawyer may instead be qualified by studying the law—by knowledge rather than by experience under K.S.A. 60-456.

"[T]he test of competency of an expert witness is whether he discloses sufficient knowledge to entitle his opinion to go to the jury." Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, Syl. ¶ 2, 442 P.2d 1013 (1968). See State v. Jones, 209 Kan. 526, 532, 498 P.2d 65 (1972). "An expert may acquire knowledge of the applicable standard [of care] in the same manner that he acquires his other expert knowledge through practical experience, formal training, reading, and study, or through a combination of those." Chandler v. Neosho Memorial Hospital, 223 Kan. 1, Syl. ¶ 2, 574 P.2d 136 (1977). We thus agree with B.E. that the district court erred by stating that "to become an 'expert' in a particular area of substantive law, one must have experience in that specific area." It is the knowledge that the witness possesses, not the source of that knowledge, that determines eligibility to provide expert testimony. Still, the district court properly reviewed both Jumpponen's legal education or knowledge and her accumulated legal experience to see if she was qualified to testify as an expert in this case.

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First, when assessing an expert's qualifications, "courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony." United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004). A trial court "must consider 'the totality of a witness's background when evaluating the witness's qualifications to testify as an expert.'" Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 422 (S.D.N.Y. 2009). The court must look at each conclusion an expert draws individually to see if the expert has the adequate education, skill, and training to reach them. See, e.g., Dieker v. Case Corp., 276 Kan. 141, 161, 73 P.3d 133 (2003) (finding expert's testimony, given his educational background and work experience, was within the scope of his special knowledge, skill, experience, or training). The court did so here, then concluded that Jumpponen was unqualified based on her lack of education and experience, so it had no need to reach Defendants' additional claims that her opinions were unreliable or unhelpful to the jury.

Jumpponen's Knowledge/Education

B.E. contends primarily that Jumpponen is qualified as an expert in this legal malpractice case because she graduated from law school and is licensed to practice law. Based on the criteria in K.S.A. 60-456(b), the question is whether Jumpponen's testimony as to the duties borne and breached by defendants was within the scope of her special "knowledge, skill, experience, training or education." Because B.E. does not argue that Jumpponen had the requisite skill or training, the question narrows to whether Jumpponen's opinions were within the scope of her knowledge from her education, based on her law school courses and other studying she did to prepare for this case.

Jumpponen did not submit a curriculum vitae with her expert report and admitted that she had none. She did not attend the K.S.A. 60-457(b) hearing but testified about her professional background during her deposition. She attended Washburn University School of Law but she did not focus on any subject matter area there. She did serve,

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however, on the Family Law Journal and at times before and during law school worked as a paralegal in the areas of criminal and family law. Jumpponen graduated from law school and obtained her license in 2013. Yet nothing in the record shows what classes Jumpponen took and nothing shows whether Jumpponen was a stellar, average, or less than average student. She testified that she got out of law school "as soon as [she] could."

In explaining the basis for her opinions on Defendants' representation of B.E. in the tort lawsuit, Jumpponen attested that she reviewed the "entire file." She conceded that she did not base her opinions on any experience in civil litigation, medical malpractice, negligence, or personal injury because she had no such experience. She admitted that she had to learn along the way to understand the elements of the civil causes of action that B.E. brought against G.G. in her underlying tort case.

Defendants' counsel asked Jumpponen what specialized knowledge she had that could help the trier of fact decide this case. Following an objection by B.E.'s counsel, Jumpponen explained that she reviewed the record as if she were prosecuting or defending the case and "did . . . a thorough analysis of the elements [and] the facts" to determine if the claim could be proved or disproved. She had already admitted that she did not have prior knowledge about "how Kansas . . . would handle these sorts of cases [or] how other states were handling these sorts of cases." She explained that she had to gain an "underst[anding of] the elements of the claim[s], the definitions of the claims" because she "just didn't know the elements as well and so [she] needed to make sure [she] understood those and how they would be applied." She was thus "learning as [she] went" through the case record.

Having reviewed the record, we find sufficient competent evidence supporting the district court's finding that Jumpponen is not qualified as an expert in legal malpractice actions because of her knowledge or education. Nothing about her disclosed law school

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education or her learning along the way in this case qualifies her as an expert in legal malpractice.

Jumpponen's Experience

To a lesser extent, B.E. claims that Jumpponen's experience boosted her qualifications as an expert. After law school, Jumpponen worked as a prosecutor in the Saline County Attorney's Office for seven years and then in the Harvey County Attorney's Office for less than a year. She then worked briefly for two private firms for about six weeks at each firm. In 2021, she started a solo practice, then in 2022 formed a firm with one other attorney. Since 2021, Jumpponen's work primarily includes Child in Need of Care cases, criminal defense, family law, and probate matters. She had no civil litigation experience other than filing K.S.A. 60-1507 motions, which relate to criminal cases. She had no experience in medical malpractice, negligence, or personal injury claims. Jumpponen had never testified as an expert witness and did not hold herself out as one.

B.E. contends that K.S.A. 60-1507 motions involve claims of ineffective assistance of counsel and likens them to legal malpractice cases. But as the district court explained in detail, K.S.A. 60-1507 motions differ from the tort claims here both procedurally and substantively. What is more, Jumpponen's testimony shows that her experience with K.S.A. 60-1507 motions was limited, and she conceded that she had no experience with cases such as this one.

Still, Jumpponen indicated that her experience as a prosecutor informed at least some of her opinions. With regard to her opinion that Defendants breached their duty of care by failing to secure an expert before the parties settled their claims, Jumpponen referred to her experience in prosecuting sexual offenses. She explained that those cases required timely consultation with SANE/SART. She also posited that it was clear from

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the nature of B.E.'s allegations against G.G. that an expert would be needed to prove those claims and defend against counterclaims. Jumpponen characterized the record as showing an obvious failure by Defendants to pursue B.E.'s claims, thus suggesting that any attorney could conclude from a review of the record that Defendants deviated from the applicable standard of care.

But Jumpponen sought to testify that Defendants breached their duty to B.E. in specific ways: (1) by failing to consult a qualified expert; (2) by failing to depose G.G. or a treating physician; (3) by failing to designate an expert on B.E.'s behalf; (4) by inadequately defending B.E. against G.G.'s counterclaims; and (5) by failing to get an adequate foundation to offer an informed opinion on the merits of B.E.'s case. Those conclusions rested on complex facts that were not susceptible to only one conclusion. These detailed legal conclusions are not ones that every attorney would reach from reviewing the file, as is shown by the opposite legal conclusions reached by Defendants' expert. And Jumpponen failed to show that she had any specialized knowledge, experience, or education enabling her to reach those conclusions. We thus find sufficient competent evidence supporting the district court's finding that Jumpponen's experience in the law, whether viewed individually or collectively with her education and knowledge, fails to qualify her as an expert in this legal malpractice action. See Morris v. Sorn, No. 68,572, 1994 WL 17120221, at *2 (Kan. App. 1994) (unpublished opinion) (finding no abuse of discretion in the court's finding that the proposed expert was not qualified when his proposed testimony was based on conjecture and speculation).

We agree that a proposed expert should not be required to satisfy an overly narrow test of his or her own qualifications. And another case may perhaps find that testimony from a designated expert who has educational or experiential qualifications in a field closely related to the subject matter in question may not be excluded solely on the ground that the witness lacks expertise in the specialized areas that are directly pertinent. But those facts are not present here.

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In summary, we find nothing unreasonable or arbitrary about how the district court performed its gatekeeping function. It was well within the court's discretionary authority to exclude expert testimony from an attorney witness who essentially admitted having no expertise, no directly related experience, and little knowledge or education about the subject matters at issue. Cf. Glaser, 88 Conn. App. at 629-30 (excluding attorney because of an inadequate showing that he had more than a casual understanding of the standard of care); Smart, 52 Kan. App. 2d at 500 (finding no connection between expert's experience and his conclusions; "opinion evidence [was] connected to existing data only by the ipse dixit of the expert." [quoting Kumho Tire, 526 U.S. at 157]). The district court properly exercised its duty to "make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. Although the district court misstated the legal standard, it properly applied the correct legal standard in considering Jumpponen's education, knowledge, and experience to serve as an expert witness in this case. We thus find no abuse of discretion in the district court's order striking Jumpponen's expert testimony.

This court has no doubt that Jumpponen may be well-respected in the Wichita community for her experience in the area of criminal or family law. Yet no specialized knowledge, education, or experience has been shown that would qualify her to give the opinions she posited as an expert in legal malpractice in this case. See Zimmerman, 49 Kan. App. 2d at 160-61 (upholding the expert opinion of a trial attorney who had experience representing both plaintiffs and defendants in legal malpractice cases and practiced in the same locality as the attorney being sued).

CONCLUSION

As the parties agree on appeal, without an expert, B.E. could not prove her legal malpractice claim, underlying tort claim, or breach of a fiduciary duty claim. And once her malpractice claim failed, so too did her KCPA claims. Thus, summary judgment was

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properly granted to Defendants on all claims. Similarly, B.E.'s motion for partial summary judgment was properly denied as moot.

We find it unnecessary to reach Defendants' alternative argument that even if Jumpponen was qualified to testify as an expert, collateral estoppel barred her from showing that Defendants' legal performance was the proximate cause of B.E.'s injury.

Affirmed.