Peterson v. Best

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2024
• Docket: 24-354
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RANDOLPH V. PETERSON, No. 24-354 D.C. No. Plaintiff - Appellant, 2:22-cv-00219-TOR v. MEMORANDUM* RYAN BEST, an individual doing business as Best Law PLLC; BEST LAW OFFICE, PLLC, a Washington professional limited liability company,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Argued and Submitted December 3, 2024 Seattle, Washington

Before: BOGGS, McKEOWN, and R. NELSON, Circuit Judges.**

Randolph Peterson appeals the district court’s summary judgment for Ryan

Best and Best Law Office, PLLC in a diversity action alleging legal malpractice

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. under Washington law. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court did not err in requiring expert testimony to establish

the standard of care for an attorney under the circumstances here. Generally, legal-

malpractice plaintiffs in Washington must offer expert testimony to establish a

breach of the applicable standard of care. See, e.g., Clark Cnty. Fire Dist. No. 5 v.

Bullivant Houser Bailey P.C., 324 P.3d 743, 752 n.5 (Wash. Ct. App. 2014).

Because law is “a highly technical field beyond the knowledge of the ordinary

person,” expert testimony fleshes out the “special skill or knowledge” integral to

“the preparation and conduct of specific litigation.” Walker v. Bangs, 601 P.2d 1279,

1282 (Wash. 1979). Without expert testimony, a “plaintiff risks dismissal of the

malpractice case.” Hizey v. Carpenter, 830 P.2d 646, 654 (Wash. 1992).

There is a limited exception to this default rule. An expert need not testify

when the negligence alleged “is within the common knowledge of lay persons.”

Walker, 601 P.2d at 1282. The district court here correctly found that the standard

of care for the qui tam action underlying this malpractice suit is not within the

“common knowledge” of non-lawyers. “In cases as complicated as qui tam actions,”

non-lawyers are not expected to understand “the complex legal and factual issues

involved.” See Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1128 (9th

Cir. 2007). That is no less true in this case, which lasted several years and featured

lengthy consultation with the U.S. Attorney’s Office about the merits of Peterson’s

2 24-354 claim. The district court was right to require expert testimony on the appropriate

standard of care, without which Peterson could not meet his burden of proof on

summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

2. In the alternative, Peterson argues that the district court abused its

discretion in excluding his untimely disclosure of the expert report of Judge Harold

Clarke. See Fed. R. Civ. P. 37(c)(1). Peterson concedes that Judge Clarke should

have been offered as an initial expert, not a rebuttal witness. Yet Peterson maintains

the district court still should not have excluded Judge Clarke’s opinion without

conducting a harmlessness analysis.1 See id. But Peterson never explained to the

district court why it would have been harmless to allow Judge Clarke’s untimely

expert opinion. And when “the noncompliant party fails to argue harmlessness, a

district court need not hold a sua sponte hearing on that issue before imposing Rule

37(c)(1)’s default sanction” of exclusion. Merchant v. Corizon Health, Inc., 993

F.3d 733, 741 (9th Cir. 2021) (citing Hoffman v. Constr. Protective Servs., Inc., 541

F.3d 1175 (9th Cir. 2008)). Thus, the district court properly exercised its discretion

in refusing to consider Judge Clarke’s untimely expert opinion.

AFFIRMED.

1 Malone v. U.S. Postal Service, 833 F.2d 128 (9th Cir. 1987), does not apply. Malone requires a district court to consider several factors before sanctioning a party with dismissal for failure to comply with a court order. 833 F.2d at 129–30. This case was not dismissed for noncompliance with the district court’s scheduling order.

3 24-354