Expert Testimony on Standard of Care in a Legal Malpractice Action Admitted

This legal malpractice action arises from Defendants Amy Wilburn and Gravis Law, PLLC's representation of Plaintiff Bergman Development Partners, LLC, in a Chapter 11 bankruptcy. On July 29, 2024, the day its redemption period on two properties was set to expire, Plaintiff filed a pro se Chapter 11 petition in the U.S. Bankruptcy Court for the Western District of Washington. On that same day, the Bankruptcy Court issued an amended notice of deficient filing, indicating that a statement of corporate ownership under Fed. R. Bankr. P. 1007(a)(1) was due by August 5, 2024.

Plaintiff retained Defendants on August 13, 2024. On August 19, 2024, the Bankruptcy Court notified Defendant Wilburn that the corporate ownership statement was overdue, and Wilburn responded that she would file it that day. However, the statement was not filed before the case was dismissed. On September 11, 2024, the Bankruptcy Court determined that Plaintiff's redemption period on the properties would expire on September 27, 2024. On September 18, 2024, the Bankruptcy Court dismissed the case for failure to file the corporate ownership statement, and it later denied the motion for reconsideration Defendants filed on Plaintiff's behalf. Plaintiff alleged that the dismissal cost it the right to redeem the properties, which it values at more than $5 million.

In September 2025, Plaintiff filed this action, asserting claims for professional negligence, breach of contract, and breach of fiduciary duty. Defendants admit the corporate ownership statement was not filed, but they deny that the omission breached the standard of care or caused Plaintiff's damages. Each side has disclosed a standard-of-care expert.

Defendants' expert, bankruptcy attorney Christine M. Tobin-Presser, opined that the failure to file the statement did not breach the standard of care, and that a reasonable Chapter 11 bankruptcy practitioner would not have foreseen dismissal on that basis. Plaintiff sought to exclude Tobin-Presser's testimony, arguing that her opinions rest solely on personal experience, "without referencing industry standards, verifiable methods, or supporting materials as required" by Fed. R. Evid. 702.

Bankruptcy Law Expert Witness

Christine Marie Tobin-Presser is an attorney with over 28 years of experience whose practice has focused on representing "commercial debtors in restructuring matters," including "hundreds of chapter 11 bankruptcy cases."

Want to know more about the challenges Christine Tobin-Presser has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Plaintiff did not challenge Tobin-Presser's qualifications. Instead, Plaintiff argued that the Court should exclude her standard-of-care testimony because it relies "solely on [her] personal experience without referencing industry standards, verifiable methods, or supporting materials."

The fact that Tobin-Presser's opinions may be based solely on her knowledge or experience is not enough to exclude her testimony. Indeed, for non-scientific testimony such as hers, reliability "depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it." And under Rule 702, an expert relying solely or primarily on experience "must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts."

Tobin-Presser's report satisfies these requirements. First, her experience is a sufficient basis for her opinion. The standard of care in a legal malpractice action is measured by the conduct of a "reasonable, careful, and prudent lawyer ... in this jurisdiction," and Tobin-Presser has practiced Chapter 11 bankruptcy law for over 28 years, including in "hundreds of chapter 11 bankruptcy cases."

Second, she explains how her experience leads to her conclusion. In her 28 years of practice, she has "never experienced nor, with the exception of [Plaintiff's] case, ... heard of a Court dismissing a bankruptcy case solely due to a debtor's failure to file a corporate ownership statement." She explains why: the statement serves the narrow purpose of allowing the Bankruptcy Court to determine whether the judge has a financial interest that requires recusal.

By contrast, the petition, schedules, statement of financial affairs, and creditor matrix give creditors and the Bankruptcy Court the core information needed to administer the case. According to her, a reasonable practitioner would therefore foresee that a case could be dismissed for continuing failure to file those critical documents, but not for failure to file the corporate ownership statement.

Third, she reliably applied her experience to the facts of this case. In forming her opinion, she reviewed 37 documents related to Plaintiff's bankruptcy case, and relies on specific parts of the record. For example, in support of her conclusion, she points out that Plaintiff's statement of financial affairs, filed more than a month before dismissal, "explicitly disclosed that Patrick Imeson, an individual, was the sole owner of the Debtor." She further noted that in the 44 days between the filing deadline and dismissal, the Bankruptcy Court held two substantive hearings without raising the missing statement and scheduled a case management conference at which the filing of schedules and documents was to be addressed.

Held

The Court denied Plaintiff's motion to exclude Defendants' expert Christine M. Tobin-Presser's testimony.

Key Takeaway

Accordingly, the Court found that Defendants have shown it is more likely than not that Ms. Tobin-Presser's testimony satisfies Rule 702. Plaintiff's criticisms, including that her experience may not be representative of Chapter 11 practice and that she "provides no citation to industry standards, verifiable methods, or law," go to the weight of her testimony, not its admissibility. Plaintiff may therefore challenge her conclusions through cross-examination and contrary evidence.

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