Richard Hamp Sr. worked as a ready-mix concrete driver for Hanson Aggregates Pacific Southwest, Inc. The job includes driving and delivering concrete material. The delivery responsibilities require the driver to load and unload concrete material through heavy chutes that must be removed from the truck frame, attached to the rear of the truck, and then reloaded on the truck after the delivery is complete. In July 2004, Hamp injured his back at work. He filed a workers compensation claim and was on medical leave for the next several years.

Hanson Pacific made a decision to terminate Hamp based on its asserted conclusion that Hamp’s disabilities (as described in its workers compensation carrier’s report) precluded him from performing the key functions of his job (including the heavy lifting and bending requirements). However, Hanson Pacific did not send a letter to Hamp notifying him of this decision. Hamp contacted Hanson Pacific and inquired about his employment status. At that time, he first learned that he had been terminated. The next month, in December 2007, Hanson Pacific wrote a letter to Hamp confirming his 2006 termination and stating that it had been willing to seek to accommodate his disabilities before it terminated him, but Hamp never responded to its inquires and letters. Hamp denied this version of events and maintained that he had asked for accommodations but Hanson Pacific never responded to his requests.

In January 2008, Hamp retained Harry Harrison Esq., to bring a lawsuit challenging his employment termination. During November 2008 and January 2009, Hanson Pacific’s attorneys took Hamp’s deposition over three different days. In his deposition testimony, Hamp acknowledged he still had back problems and never received medical clearance to return to his ready-mix driver job. When asked if he thinks he is “physically capable of returning to work as a ready mix driver . . . ,” Hamp responded: “I can’t answer that. I don’t know.” He said he is not sure whether the problem would “flare[ ] up” if he returns to his job. When Hanson Pacific’s attorney asked Hamp about his PTPs certification to the EDD in June 2007 that he was not capable of returning to work because he could not perform the physical duties of the ready-mix driver job, Hamp indicated he agreed with that statement.

During the lawsuit, Harrison defeated Hanson Pacific’s summary adjudication motion on Hamp’s wrongful termination claim based on evidence showing Hanson Pacific failed to make efforts to accommodate Hamp’s disability. About five or six months later, in February 2010, Harrison wrote an email to Hamp explaining the weaknesses in his case and urged Hamp to accept Hanson Pacific’s $8,000 settlement offer. After Hamp refused to accept this offer, the attorney-client relationship broke down. Several months later, in May 2010, Harrison obtained the court’s approval to withdraw from the representation.

Shortly after, Hamp obtained new counsel, but the court ultimately found in Hanson Pacific’s favor on the accommodation issue and entered judgment for Hanson Pacific. Hamp then sued Harrison, and his firm Harrison Patterson O’Connor and Kinkead alleging breach of fiduciary duty and attorney malpractice. The primary focus of the complaint was on the Third Job Description produced by Hanson Pacific in the underlying lawsuit. Hamp alleged this job description “was entirely fraudulent and was produced . . . to defraud the court and prejudice the proceedings against the interest of [Hamp].” On the malpractice cause of action, Hamp alleged Harrison failed to identify and seek exclusion of the “fraudulent” job description. After considering the papers and conducting a hearing, the court granted Harrison’s summary judgment motion, finding the undisputed facts showed Hamp could not prevail on any of his causes of action. The court also overruled the parties’ numerous evidentiary objections. The dismissal of his malpractice claim was affirmed in the unpublished case of Hamp v Harrison Patterson etc.

The record of the underlying action shows Harrison’s litigation strategy was to acknowledge that Hamp was disabled and could not perform the ready-mix job without accommodation, and to use these facts to support the theory that Harrison considered the strongest: Hanson Pacific breached legal duties by failing to engage in the legally-required interactive process to identify a position that would accommodate Hamp’s disability. Under this strategy, the difference between the First Job Description and the Third Job Description was not material. Even assuming Hamp could not return to the ready-mix driver job, there is California law supporting that an employer must engage in an interactive process to determine whether any reasonable accommodation is possible. (See Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.) Whether Harrison’s strategy was a competent one is not a matter of common knowledge. An expert witness was necessary to evaluate whether this litigation strategy was within the range of reasonable tactical decisions, particularly given Hamp’s concessions at his deposition and his prelitigation admissions that he could not engage in the heavy lifting or repeated stooping and bending required for the job. Hamp did not present any expert evidence to support his theory that Harrison breached his duty by failing to challenge the Third Job Description. Generally, expert witness testimony is required in a professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether the defendant’s negligence caused the plaintiff’s damages.