Verbal Retainer — Litigation Surprise?
Verbal retainers between attorneys and expert witnesses are non-standard fare, and in this instance, the attorney is suing the expert to recover the $10k retainer he paid, plus damages, in a case that has gone to the Iowa Supreme Court and is now being returned to the district court. The expert's legal fees will likely outweigh his $10k retainer.
In Harding v. Sasso (No. 21-1666, Iowa 2023), medical malpractice and personal injury attorney Marc Harding (who is also a physician), with 40 years experience practicing in Iowa, first hired a initial reviewer for his case, who emailed him a one page opinion that there was a breach of the stand or care. Harding then contact Dr. Rick Sasso, an Orthopedic Surgeon, and professor of Orthopedic Surgery at Indiana University, and they verbally agreed that Dr. Sasso would “serve as an expert to both evaluate a potential malpractice claim and to testify as an expert in any ensuing litigation.” Dr. Sasso's rate would be $1,000 per hour, and they agreed that “any unearned portion of that advance would be returned to Harding.” That is where there verbal agreement ended.
After reviewing the records, Dr. Sasso called Harding to inform him that there was no breach of the standard of care, that he had spent 12 hours reviewing the 166 pages of medical records Harding had sent him, and that Sasso would not be returning any portion of the advance.
Harding sued Dr. Sasso in an Iowa district court for breach of contract, breach of fiduciary duty, conversion, and fraud. Dr. Sasso filed an affidavit claiming that he did not share any plans for litigation in Iowa and “did not commit to provide any particular result or opinion and did not commit to providing testimony in any case that Mr. Harding might file in the future.” Dr. Sasso was “surprised” to be sued in Iowa as he did not engage in business in Iowa.
The district court denied Dr. Sasso's motion to dismiss the case, finding that his agreement to provide expert testimony in Iowa was sufficient for him to be sued in Iowa. Dr. Sasso sought interlocutory appeal, and the Iowa court of appeals reversed the district court. On appeal, the Iowa Supreme Court found that Dr. Sasso “had sufficient minimum contacts with Iowa to support the exercise of personal jurisdiction.” The case now heads back to the Iowa district court.
Why make only a verbal retainer agreement? A highly experienced malpractice attorney and a highly experienced expert witness choose not to make a written retainer? Given that Dr. Sasso won a $112M verdict in 2018 in a case involving one of his medical device inventions, and the costs of litigating this matter, his refusal to return the $10k retainer was unlikely based on pure financial need.
Neither Dr. Sasso or Mr. Harding have returned our email or phone inquiries, but the case does provide an example that, for the most part, a clearly written retainer for expert witnesses is well worth the effort — unless each party has reason to prefer the ability to deny aspects of an agreement, which may leave them in the state of this case.