Examiner was an independent contractor.  What's in play is that the attorney's malpractice carrier is attempting to subrogate onto the examiner's E&O.  The examiner's E&O carrier is disallowing the claim stating that the attorney must not have actually read the abstract.  I think, though not actually sure about this, that the examiner is being sued by the attorney to cover the cost of the malpractice deductible (at minimum).