The California Court of Appeal has reinstated a malpractice suit against a San Diego lawyer and his firm for negligently allowing crucial evidence in an automotive product liability case to be lost.
The ruling enables former client Stephanie Galanek to pursue her claim against Stephen Wismar and the firm of Jones, Wismar & Ball.
Galanek had hired Wismar to sue Honda Motor Co. Ltd. after a 1991 accident in which her 1990 Acura Integra was rear-ended while stopped at a crosswalk.
The vehicle that struck her was moving at 35 to 40 mph, according to Jeffrey Brown, the La Jolla attorney who represents her in the malpractice case. She settled her claim with the driver for the limits of his auto insurance policy.
Galanek's seating system failure suit contended that a defect caused the driver's seat to collapse on impact, seriously injuring her.
Honda disputed the defect allegations, and the product liability case was dismissed without trial because the damaged Integra, which was in storage, had been sold and destroyed before Honda had inspected it adequately. The seat was saved, however.
Galanek then sued Wismar for negligently failing to take reasonable steps to prevent the destruction of the car. Brown said, 'Since the car was destroyed, Honda never had an opportunity to properly defend itself. The reason we lost was because he knew the car was the evidence of the case.'
San Diego County Superior Court Judge S. Charles Wickersham dismissed the malpractice suit at the start of trial.
In its decision, the Court of Appeal said Galanek's allegations were sufficient for a full malpractice trial on the issue of whether her underlying claim against Honda had merit and whether Wismar's negligence was responsible for destruction of the car.
Those allegations, if proved at trial, would require Wismar to prove that his negligence was not the reason Galanek lost a valid product liability claim, the court said.
Wismar's appellate attorney, Douglas Reynolds of San Diego, said a further appeal to the California Supreme Court is possible, but that 'both sides would just as soon settle the case. There is a limited amount of malpractice insurance available.'