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The District Court Strikes Out a Claim of Negligence Decision Against the Former Water Commissioner

In a landmark decision, the Tel Aviv District Court accepted Zell & Co’s motion to strike out the claim of negligence filed against the former Water Commissioner, stating that an expert witness who testifies on behalf of one party does not owe a conceptual duty of care to the opposing party for a written opinion submitted by the expert in court.

On April 23, 2002, the Honorable Judge J. Schitzer accepted Zell & Co’s motion to strike out the claim of negligence in the matter of C.C. 2100/01 A. Spector and Co. Ltd. et al. v. Professor Dan Zaslavsky in the District Court of Tel Aviv. In the statement of claim, the plaintiffs contended that in a previous proceeding they had sued the City of Bnei Brak and other defendants in the Tel Aviv District Court for damages in the amount of several million NIS, caused to their business as a result of flooding and a failure of the City’s sewage system. They argued that the City was responsible for the damages caused by the flooding. As part of the previous proceeding Prof. Zaslavsky, who is an expert in the field of physics of water and soil and previously held the position of Israel’s Water Commissioner, submitted a written expert opinion on behalf of the City of Bnei Brak. In the opinion, Prof. Zaslavsky opined that the City was not responsible in any way for the flooding or the damages caused to the plaintiffs. The District Court denied the previous claim and the Supreme Court denied the plaintiffs’ subsequent appeal.

On July 15, 2001 the plaintiffs filed the present statement of claim against Prof. Zaslavsky in the amount of 3,000,000 NIS, alleging that the expert opinion given by Prof. Zaslavsky in the previous proceeding totally contradicted expert opinions Prof. Zaslavsky gave in two similar proceedings. The plaintiffs alleged that in both of these expert opinions Prof. Zaslavsky opined that the City of Bnei Brak shared responsibility for similar flooding and damages. The plaintiffs claimed therefore, that Prof. Zaslavsky’s expert opinion in the previous proceeding was false, that he had caused them to lose the previous proceeding and that he was liable to them for both for negligence and fraud.

On September 25, 2001 Prof. Zaslavsky, represented by Zell & Co (Adv. Asaf Biger), filed a motion to strike out the statement of claim for lack of legal merit. In the motion, Adv. Biger claimed (among other things) that an expert witness does not owe a conceptual duty of care to the opposing party for expert testimony given in court and that the expert opinion in question was part of testimony given in court. The plaintiffs responded by claiming their case was based on the longstanding rule that an expert owes a conceptual duty of care for an expert opinion, first laid down by the Supreme Court in the early 1950’s in the matter of Weinstien v. Kadima. The plaintiffs further claimed that the written opinion in question was not part to be regarded as testimony given in court. During the hearing that took place on January 21, 2002, the parties agreed to limit their arguments to the question of the whether or not Prof. Zaslavsky owed the plaintiffs a conceptual duty of care, while the defendant reserved his right to raise the rest of his preliminary arguments (including the argument that the claim of fraud should also be stricken out for lack of legal merit) at a future date.

In a landmark decision, the District Court accepted Zell & Co’s motion to strike out the negligence for lack of legal merit, stating that an expert witness who testifies on behalf of one party does not owe a conceptual duty of care to the opposing party for a written opinion submitted by the expert in court. Judge Schitzer accepted Adv. Biger’s position that two of the prerequisites for applying the Weinstien v. Kadima rule did not apply in such cases, namely that: (a) an expert witness did not intend and could not reasonably foresee that the opposing party would rely on his expert opinion; and (b) an expert witness could reasonably assume that his expert opinion would be subject to interim examination, i.e. by the court to which it was submitted. Subsequently, Judge Schitzer struck out the claim for negligence and awarded costs to Prof. Zaslavsky.

At this point and subject to the possibility of appeal, the only remaining matter is the claim of fraud against Prof. Zaslavsky.

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