Hinkhouse Williams Walsh

HWW Secures Dismissal With Prejudice of $44 Million Professional Negligence and Tortious Interference Lawsuit.

On April 7, 2010, HWW attorneys John Williams and Jason Nash obtained a dismissal with prejudice of professional negligence and tortious interference claims brought against a professional engineer (the “Consultant”) retained by legal counsel for a state Department of Transportation (the “DOT”) to provide consulting services and expert witness testimony regarding scheduling and claims analysis relating to a $100 million roadway and bridge construction project.  Plaintiff, the contractor on the roadway project (the “Contractor”), brought two counts against the Consultant.  Count I, the professional negligence claim, alleged that the Consultant provided negligent advice and recommendations to the DOT related to the Contractor’s performance on the project and interfered with the Contractor’s purported right to additional compensation and contractual bonuses, alleging a loss of $26 millionagainst the Consultant and the project designer and CEI’s.  Count II, the tortious interference claim, alleged that as a result of purported intentional false reports to the DOT, the Consultant interfered with the Contractor’s ongoing business relationship with the DOT and caused the DOT to reject its $200 million bid on a second roadway construction contract bid, resulting in a loss of $18.5 million of anticipated profits from the second contract.

On February 10, 2010, HWW moved for summary judgment as to both counts against the Consultant on the grounds that as a retained expert witness consultant, the Consultant was an agent of the DOT and therefore: (1) was entitled to sovereign immunity; and (2) cannot as a matter of law interfere with the contracts or business relationships of the DOT, his principal.  Moreover, HWW argued that the Consultant’s status as a retained expert witness consultant to the DOT does not establish a duty of care to the Contractor in negligence and justified any alleged tortious interference.  In support of the Motion for Summary Judgment, HWW negotiated and secured Affidavits from high-level DOT representatives who attested that the Consultant was not involved in the DOT’s decisions related to the second construction project and that the Consultant’s work was performed at all times under the direction of DOT legal counsel.

On April 7, 2010, the day before the Motion for Summary Judgment was set for oral argument, counsel for the Contractor agreed to dismiss with prejudice all counts against HWW’s client, the Contractor, to avoid proceeding on the Motion for Summary Judgment.