A Consultant as a Defendant
By Andrew Port
As consultants in the occupational and environmental health and safety field, there is an inherent risk associated with professional liability attached with the type of work we do. For one reason or another, a client or an affected party may decide that the consultant is responsible for an actual or perceived loss and take legal action. As individuals and consultants, we believe that it won’t happen to us. We believe that the quality of the work we perform and how we communicate to our clients will protect us from any legal action. However, as some of us will learn, despite all of our precautions, we can still be the targets of legal action.
Background
This past year, I benefited from the following learning experience. I had a client who, after receiving the fifth and final invoice for work that I had performed over a six-month period, decided that I had done something wrong and filed a lawsuit against me to recover damages. I first became aware of this when I answered my door and was served with the legal papers. The complaint stated that the client suffered a financial loss arising from inaccurate information and unprofessional actions that led the client to perform unnecessary and unwarranted procedures.
My first reaction was to immediately call them to find out what was wrong and what could be done to resolve any issues. However, I was told that none of my contacts would accept my phone calls. I then called my attorney who told me to bring the entire project file to his office first thing in the morning. At this point I was a little nervous. I started second-guessing my work and wondering if there was something that I had missed. At my attorney’s office, we went through my files and tried to find anything that might have been inaccurate or the cause of the client’s loss. After three and a half hours of reviewing every item at least twice, we could not find any inaccuracies or mistakes in the data or reports. My attorney then contacted my insurance carrier and informed them of the lawsuit and the actions taken so far. The insurance company explained that they had been contacted by the client regarding their claim and had determined to have an independent consultant review the case files and submit a summary report to them. The report from the insurance carrier’s consultant confirmed that the work that I had performed “complied with current professional guidelines and practices, including the information presented to the client.”
During the independent consultant’s review, my attorney decided to take the depositions of the client’s representatives in order to understand the basis of the claim against me. The questioning focused on two primary areas: their familiarity with the monthly status reports that were submitted with the monthly invoices and what specifically was the cause for the financial loss.
My attorney met with me a few days after he completed the depositions and explained that, based on the independent consultant’s report and the information provided during the deposition, he was sure that there was no legal basis for the lawsuit. As a result, he asked for a summary dismissal of the lawsuit based on the lack of any evidence supporting the claim. My attorney called me two weeks after he filed the request and informed me that the judge decided in favor of our motion for dismissal. In addition, my insurance carrier was in complete agreement with the defense actions and would reimburse me for all legal fees minus my deductible. However, there still remained the question of the monies due to me, not to mention the time lost and the $2,500 deductible.
I asked my attorney what options I had and he stated that there were two basic choices. The first was to file a claim against the client for all monies owed. The second option was to file a countersuit against the client seeking full damages, including the monies owed. He stated that the first option would be relatively simple and quick considering the dismissal of their lawsuit. The second option, he explained, was more complicated and would take a considerable amount of time and money. He was fairly certain that we would be successful but was unsure of the time frame. He said that I should make my decision fairly soon to ensure that there was continuity with the evidence.
Based on all of the information, I decided to file a countersuit in order to recover all of my out-of-pocket expenses as well as damages. My decision was based on a number of factors, including concern for my professional reputation, financial necessity and personal satisfaction. Even though the case against me was dismissed, I still felt that it had a negative effect on my reputation. I wanted all of the evidence presented and on record in order to establish that I had done nothing wrong. Financially, between the monies that were past due, the insurance deductible and the amount of time spent over the four-month period defending myself, my company had a serious cash flow problem.
Lessons Learned
The case was costly, both in time and money. From the filing of the initial complaint to the court decision, it took a little more than eight months. It was another seven weeks before I received my check. In addition, because of the extended pretrial and trial period and amount of personal time required, I had to obtain a business loan to cover the upfront legal fees and my company’s operational expenses.
This experience taught me a number of important facts. Among them was the importance of participating and maintaining a high level of professionalism in our field. I cannot overemphasize the importance of keeping up with advances in technology and information and applying them to your work. As a consultant, the ability to demonstrate a firm grasp of current information is necessary for success. In addition, incorporating current technology and methods into your procedures is an essential part of providing scientifically valid and defensible data. In short, using old methods and equipment based on out-of-date information is a recipe for trouble.
The second lesson learned applies to one of the standard topics in our field, recordkeeping. To put it simply and to paraphrase my attorney, my entire case, both as a defendant and plaintiff, was based on my project records. The project records and documentation that I maintained included copies of all communications, copies of information submitted to the client, notes of all verbal communications with clients, written documentation of methodologies and equipment, complete laboratory reports and detailed photo documentation. I would recommend that all consultants acquire a digital camera that is capable of taking both still photos and movies to maintain thorough project records and document what methods are used.
The third lesson learned was an understanding of the role my insurance carrier has in defending me against a claim. While the carrier would provide a competent attorney to defend me, that attorney will probably not be as aggressive in my defense as an attorney who is working directly for me. As a result, for any claim, no matter what the size, I would consult an attorney who works for me and has no affiliation with my insurance carrier. This guarantees that my interests are being represented without any possible conflicts.
The fourth and final lesson learned was how mentally unprepared I was for this type of occurrence. Like many consultants, I had taken a number of law-related courses, privately and through AIHA, to obtain an understanding of what was involved in providing expert services during litigation. However, nothing in my more than 23 years of experience prepared me for being a defendant in a lawsuit. Unfortunately, I don’t believe there is anything you can do that will give you the information and experience you need to be prepared for this. The only thing you can do is keep up with new information and technology and perform all work as if you would have to defend it in court later, because you just might have to one day.
Port, a PhD and CIH, is president of OES Consultants, Scotch Plains, N.J. Port has more than 23 years of consulting experience and has served as an expert in indoor environmental quality, mold contamination and occupational and environmental safety cases.