Kaufman v. Jesser, No. CV-12-459-PHX-LOA: Arizona U.S. District Court Denies Motion to Dismiss Legal Malpractice Case


The U.S. District Court for the District of Arizona has denied an attorney’s motion to dismiss a legal malpractice action. In Kaufman v. Jesser, a client retained an attorney to pursue an action for medical malpractice against a veterinarian who treated the client’s exotic bird. The veterinarian had performed surgery on the bird, but it never fully recovered and died a month later. The client sought damages for his emotional distress and loss of companionship.

At trial, jury found that the veterinarian was 30% negligent, but awarded the client zero damages. The client appealed. The appellate court affirmed the ruling, finding that under Arizona law, an owner is not entitled to recover emotional damages for the loss of a pet. The client then filed a legal malpractice action against the attorney in state court. The client alleged that the attorney’s conduct amounted to malpractice, including his failure to (a) submit a pretrial witness and exhibit list, which resulted in the exclusion of key witnesses and exhibits, (b) submit jury instructions, and (c) require the veterinarian to answer interrogatories after the court had granted the client’s motion to compel responses.

The attorney successfully removed the case into federal district court on diversity grounds, and then brought a motion to dismiss for the client’s failure to state a claim, and failure to provide a preliminary expert witness opinion, as required by Arizona law. The client argued that an expert witness was not necessary because the alleged negligence was so obvious that a lay person could make a determination.

The federal court denied the motion, finding that the client’s complaint properly pleaded all of the elements of a legal malpractice claim. However, the court found that a preliminary expert witness was necessary to establish the requisite standard of care for a reasonable attorney. The court permitted the client to submit an affidavit with an expert opinion within thirty days.

Decision: Kaufman v. Jesser


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