In Racine County v. Oracular Milwaukee, Inc., et al., dated April 8, 1009, the court of appeals was clear about one thing – computer consultants (whatever that means) are not professionals as that term is used in the tort of professional negligence.
Racine County contracted with Oracular for the installation of software and related training. When the project lagged, Racine County terminated the agreement and sued Oracular for breach, and violation of Wisconsin’s false advertising statute (p 9). Oracular moved for summary judgment, arguing that because the contract was one for professional services, and Racine County had not disclosed an expert witness, the claim should be dismissed.
The court could have simply decided that this case was not one for professional malpractice, and been done with it. In fact, it pointed out that
A plaintiff who is injured by a professional’s malpractice wants to be made whole. But the case at bar is not a malpractice action; it is a contract action. The County wants the benefit of the bargain; it does not seek to be “made whole.”
You’d think that would have been enough. But, judges being lawyers too, more talking was required. The court went on to address whether or not the contract was for professional services, and if so, whether expert testimony was necessary in litigating a breach.
From two lower Federal court cases, the court pieced together the following characteristics of a profession:
(1) a requirement of extensive formal training and learning; (2) admission to practice by a licensing body; (3) a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace; (4) a system of discipline for violating the code of ethics; (5) a duty to subordinate financial gain to social responsibility; and (6) an obligation of all members to conduct themselves as members of a learned, disciplined and honorable occupation, even in nonprofessional matters.
“professional” is commonly understood to refer to the learned professions, such as medicine and law. .… The court went on to remark, “[A] professional relationship is one of trust and confidence, carrying with it a duty to counsel and advise clients.”
Finally, the court reminded us that expert testimony is “not generally required” to prove negligence, and is an “extraordinary step” to be used for “unusually complex or esoteric issues” are involved. The general rule, applicable “across the entire spectrum professional negligence cases,” is
While not required in every malpractice case, expert testimony will generally be required to satisfy this standard of care as to those matters which fall outside the area of common knowledge and lay comprehension. Stated differently, but to the same effect, expert testimony is not necessary “in cases involving conduct not necessarily related to legal expertise where the matters to be proven do not involve ‘special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of [persons], and which require special learning, study or experience.’”
While this is not a Supreme Court case (and it doesn’t appear that the case was appealed), the guidance is worth noting. If you’re suing a computer consultant, it just became safer to prosecute a case without expert opinion. On the other hand, to do so may invite unwanted motion practice. In any event, it’s best to make this decision after a thorough discussion with the client about the costs, risks, and benefits of retention versus non-retention.