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Attorney Who Failed To Pay Uncooperative Experts Found To Have Breached Contract (NY)

April 22, 2022

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<p style="text-align: justify;">Recently, in the Supreme Court, New York County case <em><a href="">Tiago v. Trachtman</a> </em>plaintiffs, both psychologists retained to be expert witnesses by the defendant, were awarded summary judgment as to liability under the breach of contract claims only and successful in severing and dismissing the defendant’s counterclaims. Contemporaneously, the Court denied the defendant’s cross-motion for summary judgment. The underlying action in which the plaintiffs were retained experts was a Southern District of Florida class action lawsuit, filed by the defendant, involving claims of special needs children and their family members arising out of alleged injuries the class members suffered during a severe winter storm while aboard a cruise line at sea. The passengers were confined to their cabins between 12 and 13 hours.</p>
<p style="text-align: justify;">Plaintiffs prepared reports for 14 of the class action members and delivered those reports to the defendant who refused to pay. Subsequently, the defendant demanded the plaintiff appear for depositions in the Florida action. However, the plaintiffs decided they did not want to sit for multiple depositions when still owed thousands of dollars. The defendant then subpoenaed the plaintiffs who claim they had to hire counsel to respond to the subpoenas. Plaintiffs argued that the defendant did not deny that he did not pay them.</p>
<p style="text-align: justify;">In opposition and in support of his own cross-motion for summary judgment, defendant argued that the plaintiffs committed an anticipatory breach of contract of the expert retainer agreements by suddenly imposing time and schedule limitations relative to the tasks requested. With one plaintiff able to work Friday mornings and early afternoons and the other on Saturdays, Defendant claimed such limitations were additional terms separate from the retainer agreement, thus, constituting anticipatory breach of contract and him not having to pay.</p>
<p style="text-align: justify;">Analyzing the facts under various theories of contract law, the Court summarized that although the defendant was likely displeased with the plaintiffs for working on certain days and refusing to show for depositions, he could have attempted to cancel the contract with the plaintiffs when he learned about their time constraints but did not. Instead, he let them continue to work on the case, and it was not clear whether the limitations resulted in the plaintiffs failing to do anything under the contract. Notwithstanding that the defendant may have had sanctions imposed upon him in the Florida action and had to retain a new expert, such did not relieve him of having to pay the plaintiffs for the work performed. If the defendant had problems with the Florida case, missed deadlines, or did not communicate effectively with the plaintiffs, not paying the plaintiffs was not supported by the facts or the law.</p>
<p style="text-align: justify;">This case illustrates, beyond affirming that contract is king and attorneys having to pay retained experts for work performed, that a handling attorney, when it comes to Court deadlines or directives, cannot shift culpability for delays to experts working on the case. It is paramount for the attorney to know their experts, communicate all expectations with them effectively at the outset of the relationship, and to monitor the progress making timely adjustments if necessary.</p>
<p style="text-align: justify;">Please contact <a href="">John Diffley</a> with any questions.</p>

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