NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1326-24
CARLOS VERAS and MAYRA VERAS, husband and wife,
Plaintiffs-Appellants,
v.
THE ESTATE OF ROBERT J. ADINOLFI, ESQ., and GILL & CHAMAS, LLC, attorneys at law of the State of New Jersey,
Defendants-Respondents,
and
PLANNED LIFETIME ASSISTANCE NETWORK OF NEW JERSEY, INC., as Trustee of the Carlos Veras Special Needs Trust,
Defendant.
___________________________
Argued May 5, 2026 – Decided August 31, 2026 Before Judges Rose and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3217-21.
Batya G. Wernick argued the cause for appellants.
James B. Sharp argued the cause for respondents (Wilson Elser Moskowitz Edelman & Dicker LLP, attorneys; James B. Sharp, of counsel and on the brief;
Melissa L. Buterbaugh, on the brief).
PER CURIAM Plaintiffs Carlos Veras and Mayra Veras appeal from four Law Division orders in this legal malpractice action: (1) the September 27, 2024 order barring the testimony of their legal malpractice expert Anthony P. Ambrosio, Esq.; (2) the September 27, 2024 order denying their motion to bar the testimony of E. Drew Britcher, Esq., the legal malpractice expert, and Dr. William Diehl, the medical malpractice expert, of defendants Estate of Robert J. Adinolfi, Esq. (Estate), and Gill & Chamas, LLC (G&C); (3) the December 20, 2024 order denying their motion for reconsideration of the two September 27, 2024 orders; and (4) the December 19, 2024 order granting defendants' motion for summary judgment and dismissing the complaint with prejudice.
We reverse the September 27, 2024 order barring Ambrosio's testimony.
We affirm the other September 27, 2024 order to the extent it denies plaintiffs' motion to bar Britcher's testimony, vacate the order to the extent it denies
A-1326-24
3
plaintiffs' motion to bar Diehl's testimony, and remand for findings of fact and conclusions of law with respect to the admissibility of Diehl's testimony. In light of our decisions with respect to the parties' experts, we reverse both the December 19, 2024 order and the December 20, 2024 order.
I.
On July 19, 2011, Carlos1 underwent what was intended to be minimally invasive laparoscopic surgery to remove his sigmoid colon to treat diverticulitis. He alleges because of the negligence of his surgeon, Dr. Carl Valenziano, and the hospital where the surgery was performed, St. Joseph's Medical Center (SJMC), the "routine procedure" became open surgery.
About four days after the surgery, Carlos developed a fever and increased heart rate. Following a CAT scan, doctors suspected he had an anastomotic leak where the disconnected ends of his colon after surgery were attached to each other. Carlos was immediately returned to surgery and found to have a perforation in the colon with extensive necrotic edges approximately ten centimeters proximal to the anastomosis. Given Carlos's clinical status of shock and the presence of fecal peritonitis, the intestinal segment containing the
1 Because plaintiffs share a surname, we refer to them by their first names to avoid confusion. No disrespect is intended.
A-1326-24
4
perforation was resected and a transverse colostomy was performed. A surgical note indicates an "iatrogenic perforation" was found in Carlos's colon. Iatrogenic means a condition caused by medical treatment, although the term is not necessarily indicative of medical malpractice.
Carlos subsequently underwent multiple medical procedures, including surgeries, in an attempt to close the abdomen and reverse the colostomy. His abdomen was unable to be closed and the colostomy could not be reversed. Later surgeries were needed to drain a fistula that developed in Carlos's abdomen, and he underwent numerous skin grafts.
Carlos was permanently unable to work, could not bend down fully, lift heavy things, or take care of his daily needs without assistance. He was confined to a wheelchair for a significant period, incurred severe scaring across his abdomen, needed to sleep on his back, and suffered from major depression.
Mayra, Carlos's spouse, worked full time to support him and their three children. She ran the household and assisted Carlos with his daily needs and medical care.
In early 2013, plaintiffs retained attorney Robert J. Adinolfi, a licensed New Jersey attorney, and his firm, G&C, to sue Valenziano and SJMC for
A-1326-24
5
medical malpractice. At the time, Adinolfi, a certified civil trial attorney, was the head of the firm's medical malpractice department.
In January 2014, Adinolfi filed a complaint in the Law Division alleging medical malpractice on behalf of Carlos and loss of consortium on behalf of Mayra. Plaintiffs alleged, among other things, Valenziano perforated Carlos's colon during the initial surgery, which caused the need for subsequent surgeries and medical treatment and resulted in the permanent disabilities and the other consequences described above. Adinolfi considered naming Dr. Lawrence Livingston, one of Carlos's treating physicians, as a defendant because Carlos was not improving under his care. Plaintiffs alleged Adinolfi advised them not to name Livingston as a defendant because doing so would make them appear too litigious, Livingston was still treating Carlos, and malpractice by Livingston, if any, had not yet resulted in permanent damage to Carlos.
The matter was pending for more than four years. During that time, and through eight discovery extensions, Adinolfi did not retain an expert, apart from securing an affidavit of merit at the time the complaint was filed. In late 2017, more than three years after the complaint was filed, Adinolfi showed plaintiffs a one-paragraph letter from Livingston stating Carlos had a pre-existing "healing condition" which prevented him from healing properly after the surgery. The
A-1326-24
6
letter did not address whether Valenziano perforated Carlos's colon or otherwise committed medical malpractice during the surgery. According to plaintiffs, Adinolfi advised them Lawrence's letter would be damaging to their position if discovered by Valenziano's attorneys, and pressured them to accept $500,000 to settle their claims. Although Livingston was a treating physician of Carlos and one-time potential defendant, Adinolfi did not obtain an independent medical opinion with respect to Valenziano's treatment of Carlos or the statement made in Livingston's letter, the accuracy of which plaintiffs' contest.
In March 2018, plaintiffs followed Adinolfi's advice and accepted the $500,000 settlement offer. More than half of the settlement proceeds was used to pay legal fees and costs of $173,902, and an approximately $90,000 Medicaid lien. Adinolfi had negotiated the Medicaid lien from approximately $600,000. Plaintiffs received approximately $236,000 of the settlement.
Adinolfi advised plaintiffs to place the net settlement proceeds in a special needs trust to protect Carlos's receipt of Medicaid benefits. He referred plaintiffs to an attorney who arranged for defendant Planned Lifetime Assistance Network of New Jersey, Inc. (PLANNJ) to create the Carlos Veras Special Needs Trust (the Trust). PLANNJ is the administrator of the Trust.
A-1326-24
7
On October 11, 2021, plaintiffs filed a complaint in the Law Division against Adinolfi and G&C alleging legal malpractice. They alleged Adinolfi misadvised them to accept a settlement for far less than was reasonable and what they likely would have received had they gone to trial. According to plaintiffs, Adinolfi advised plaintiffs to abandon their strong claims to obtain an easy financial benefit for himself and G&C. They alleged Adinolfi did not explain the written settlement agreement to Carlos, who does not speak English, and was not given a translated version of the English-language release before he executed it. Mayra alleges Adinolfi did not pursue her loss of consortium claim.
In addition, plaintiffs alleged the Trust was unnecessary and not in their best interests. According to plaintiffs, they are not permitted to receive from the Trust any funds to contribute to household expenses, such as rent, utilities, or food. They alleged they must cajole PLANNJ for reimbursement for Carlos's medical expenses and neither Adinolfi nor PLANNJ explained the complex documents to Carlos before he signed them.
Plaintiffs sought as damages from Adinolfi and G&C: (1) the attorney's fees and costs they paid in the medical malpractice litigation; (2) the difference between the settlement amount and what they likely would have been awarded after trial or received in a fair and just settlement of their claims; (3) and the
A-1326-24
8
attorney's fees and costs incurred in the legal malpractice action. Plaintiffs also sought from PLANNJ an accounting of the Trust accounts, compensatory and special damages, and attorney's fees and costs. 2 The parties engaged in extensive discovery, including depositions of the parties' experts.3 During discovery, plaintiffs named Ambrosio as their legal expert and produced his report and supplement report. An attorney with fifty- five-years' experience, Ambrosio opined Adinolfi breached the applicable standard of care when he advised plaintiffs to settle their claims for far less than they were likely to recover at trial or in a fair settlement, and to put their net settlement proceeds into the Trust.
Ambrosio opined plaintiffs' claims, when measured against contemporary comparable verdicts and settlements, were worth millions of dollars. However, Adinolfi advised plaintiffs to settle their claims for $500,000 based on an irrelevant and untested letter from Livingston, who was once considered a possible defendant.
2 The claims against PLANNJ were dismissed before PLANNJ filed an answer. Accordingly, PLANNJ is not a party to this appeal. 3 Adinolfi died during discovery. Due to his medical condition, the parties were unable to depose him before his death. Valenziano died before discovery and was not deposed. Livingston stopped practicing medicine and the parties were unable to locate him.
A-1326-24
9
According to Ambrosio, Adinolfi, who specialized in medical malpractice cases, had a duty to obtain an independent medical opinion regarding Valenziano's treatment of Carlos before relying on Livingston's letter to advise settlement for a low amount. This is particularly true, Ambrosio opined, because Carlos's healing condition, if it existed, would not relieve Valenziano of liability for perforating Carlos's colon during surgery. He noted a defendant in a medical malpractice action must take the plaintiff as he or she finds them. Carlos's physical ability to recover from an injury caused by Valenziano's negligence is not germane to whether Valenziano is liable for the malpractice that caused the injury. Thus, he opined, Livingston's letter referred only to something that would not have been a significant factor in determining Valenziano's liability. 4 In addition, Ambrosio opined Adinolfi misadvised plaintiffs the Trust was necessary to preserve Carlos's medical benefits. According to Ambrosio, the Trust was unnecessary because Carlos was eligible for Medicare disability benefits based on his permanent injuries, regardless of the amount of his assets. Medicare, therefore, would pay for his medical needs going forward. In addition, to the extent the Trust was intended to keep Mayra and the children
4 According to Ambrosio, Livingston's claim Carlos had a healing condition was self-serving, as it tended to explain Carlos's lack of progress while treated by Livingston.
A-1326-24
10
eligible for Medicaid, it was unnecessary because the family was eligible for New Jersey Family Care, despite a settlement asset, based on their low income. He noted the funds in the Trust were available only for Carlos's medical expenses, not for Mayra and the children. Ambrosio opined that had plaintiffs received either a verdict after trial or settlement for the fair value of their claims, they would have been able to satisfy any existing Medicaid/Medicare liens and purchase private insurance for Carlos and his children for an extended period.
Ambrosio opined plaintiffs incurred significant fees, including fees for the attorney who established the Trust, that were unnecessary. In addition, he noted plaintiffs' claim Adinolfi advised them to accept the settlement because they could use the proceeds to purchase a house, but then advised them to put the net proceeds in a Trust, rendering the funds unavailable to purchase a home.
Ambrosio also opined Adinolfi, although aware the surgery took place on July 19, 2011, continually referred to July 19, 2012, in communications with Medicaid/Medicare, resulting in incorrect lien totals. He opined plaintiffs' medical bills from the surgery totaled over $1.65 million through May 1, 2023.
In his report, Britcher, a certified civil trial attorney with approximately forty years of experience, opined Adinolfi's actions with respect to plaintiffs
were not only well within the standard of care for attorneys practicing in that field they showed an
A-1326-24
11
exemplary sense of judgment for when to resolve a complicated matter and an admirable concern for his clients making substantial recovery, maximizing their net recovery and preserving their needed source of medical coverage.
Britcher opined Livingston's letter "vastly undermined" plaintiffs' claim Valenziano's alleged malpractice was the cause of Carlos's injuries. He opined "[h]ad . . . Adinolfi not achieved the settlement he did at the time he did, the Verases may well have lost the chance to settle, and had this matter been tried, lost altogether."
Britcher also opined Adinolfi "ably got the Medicaid lien reduced by more than [eighty-five percent]" and properly advised them to establish the Trust. He opined: "That they were able to receive the Trust while maintaining their access to Medicaid is a testament to . . . Adinolfi's excellent representation."
Diehl issued a report in which he opined Valenziano did not deviate from any accepted standard of care in his treatment of Carlos.
On July 31, 2024, plaintiffs moved to bar the testimony of Britcher and Diehl. They argued the witnesses offered inadmissible net opinions. Plaintiffs argued Britcher did not identify a standard of care to which Adinolfi adhered or cite any treatise or legal precedent supporting his opinion. In addition, they argued Diehl, having not identified a standard of care expected of a surgeon
A-1326-24
12
performing the removal of a sigmoid colon, offered a net opinion Valenziano's treatment of Carlos was not medical malpractice.
Defendants opposed plaintiffs' motion and, on August 28, 2024, cross-
moved to bar Ambrosio's testimony, arguing he lacked the knowledge, skill, experience, training, or education to opine on the standard of care owed by an attorney to his clients in a medical malpractice action of the type alleged by plaintiffs.
On September 27, 2024, the court issued a written decision denying plaintiffs' motion to bar Britcher's and Diehl's testimony and granting defendant's motion to bar Ambrosio's testimony. The court found:
Defendants seek to bar [p]laintiff[s'] legal expert . . .
Ambrosio, an attorney who is primarily a professional expert witness, due to his lack of experience as a medical malpractice attorney. This is all in furtherance of obtaining a resolution to a long-since settled medical malpractice claim. Ambrosio has never been a certified civil trial attorney. Ambrosio has only handled approximately [six] to [eight] medical malpractice cases in the course of his fifty-seven . . . years of practice, and never tried a medical malpractice case to verdict. Ambrosio's area of specialization as an attorney is as a forensic expert in legal malpractice cases. Therefore, his experience does not qualify him to be an expert witness regarding the analysis of settling a medical malpractice case such as this with the issues involved.
A-1326-24
13
The court found "Ambrosio's conclusion that the underlying medical malpractice lawsuit was a 'sure win' on the issue of liability was mere conjecture and inadmissible in front of a jury." In addition, the court found "Ambrosio failed to present a cognizable value for [p]laintiffs['] damages beyond a speculative amount. There is no factual basis for Ambrosio's opinions and the medical malpractice matter has long been settled."
The court found plaintiffs' motion to bar Britcher's testimony was "without merit" because "[a] witness may be qualified as an expert witness solely based on occupational experience or knowledge acquired over a period of time." The court continued, "Britcher's report relied on case law to support . . . Britcher's conclusion based on his own occupational experience as a medical malpractice attorney." In its decision, the court did not provide any analysis of plaintiffs' motion to bar Diehl's testimony.
A September 27, 2024 order memorialized the court's decision granting defendants' motion. A separate September 27, 2024 order memorialized the court's decision denying plaintiffs' motion.
On October 4, 2024, defendants moved for summary judgment. They argued because the testimony of plaintiffs' legal malpractice expert had been barred they could not prove their claims.
A-1326-24
14
Plaintiffs opposed the motion and cross-moved for reconsideration of the two September 27, 2024 orders and requested a hearing pursuant to N.J.R.E. 104 with respect to the admissibility of Ambrosio's opinion. Plaintiffs argued, among other things, the motion court: (1) failed to appreciate settled law that a legal malpractice expert need not have specific experience in the area of practice on which he opined; (2) ignored or misapprehended facts establishing Ambrosio had sufficient experience in the area of medical malpractice and has been deemed a legal malpractice expert by numerous courts; and (3) misunderstood other material facts when reaching its decision. Defendants opposed plaintiffs' cross-motion.
On December 19, 2024, the court issued a written decision denying plaintiffs' motion for reconsideration and granting defendants' motion for summary judgment. With respect to plaintiffs' motion for reconsideration, the court found:
In legal malpractice cases, an expert witness does not necessarily need to have experience in the specific area on which they are providing testimony, but must be qualified by "knowledge, skill, experience[,] training, or education." [N.J.R.E.] 702; State v. McGuigan, 478 N.J. Super. 284 (App. Div. 2024). However, in medical malpractice cases, such as the underlying case here, the requirements are more stringent. While a legal malpractice expert may not need to practice in the exact area of law as the defendant in the medical malpractice
A-1326-24
15
case, they must still have substantial knowledge and experience in the relevant legal principles and procedures involved in the medical malpractice litigation to provide credible expert testimony.
The court found no basis on which to reconsider its decision to bar Ambrosio's testimony. The court noted Ambrosio relied on "one-line articles showing verdicts around the relevant time period as 'samples.'" In addition, the court found "[h]e referenced settlements for medical malpractice causing permanent life-altering injuries ranging in the millions, but only pointed to two news articles referencing a botched abdominal surgery and wrongful organ removal." The court noted Ambrosio's inability to recall having served as a legal malpractice expert where the underlying action involved a medical malpractice claim. In addition, the court noted Ambrosio testified he represented clients in a medical malpractice action three or four times.
The court also found it "remain[ed] satisfied with . . . Britcher's report, which did not constitute a net opinion[,] relying on his expertise as a medical malpractice attorney, and the extensive list of articles he wrote on relative matters."
With respect to defendants' motion for summary judgment, the court rejected plaintiffs' argument it was not necessary for them to present expert testimony because Adinolfi's duty to plaintiffs was so basic it could be A-1326-24
16
determined by the court as a matter of law. The court found "[t]he value of a medical malpractice lawsuit or standard of care of an attorney is not readily apparent [to] anyone of average intelligence. With no expert testimony, [p]laintiffs will be unable to establish a deviation in the standard of care." The court, therefore, granted defendant's motion.
A December 19, 2024 order memorialized the court's decision granting defendants' motion for summary judgment and dismissing the complaint with prejudice. A December 20, 2024 order memorialized the court's decision denying plaintiffs' motion for reconsideration of the September 27, 2024 orders. This appeal followed. 5 Plaintiffs argue the motion court erred when it: (1) found Ambrosio lacked the knowledge, skill, expertise, training, or education to offer an opinion Adinolfi deviated from the standard of care he owed plaintiffs; (2) concluded Ambrosio offered a net opinion; (3) did not hold an N.J.R.E. 104 hearing before excluding Ambrosio's testimony; (4) failed to give plaintiffs time to obtain an
5 In their cross-motion for reconsideration, plaintiffs applied for an order substituting the Estate for Adinolfi as a defendant in accordance with Rule 4:34- 1(b). The motion court, however, did not address the application because it dismissed the complaint. On May 29, 2026, we temporarily remanded this matter to the motion court to conduct proceedings for the purpose of substituting a proper party for Adinolfi. On June 11, 2026, the motion court entered an order substituting the Estate for Adinolfi as a defendant.
A-1326-24
17
expert to replace Ambrosio; (5) did not bar Britcher and Diehl from testifying, as both provided net opinions in their reports; and (6) did not grant their motion for reconsideration of the September 27, 2024 orders. In addition, plaintiffs argue if this court determines Ambrosio's testimony is admissible, the December 19, 2024 order granting summary judgment to defendants should be reversed.
II.
A decision on the admissibility of expert testimony is committed to the sound discretion of the motion court. Townsend v. Pierre, 221 N.J. 36, 52 (2015). A court's grant or denial of a motion to preclude expert testimony is entitled to deference on appellate review. Ibid. The Supreme Court has instructed: "[W]e apply [a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Id. at 53 (second alteration in original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)). "Although the ordinary 'abuse of discretion' standard defies precise definition, it arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
A-1326-24
18
Two rules of evidence frame the analysis for determining the admissibility of expert testimony. See N.J.R.E. 702; N.J.R.E. 703. N.J.R.E. 702 identifies when expert testimony is permissible and requires the experts to be qualified in their respective fields. The rule provides, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. The rule
imposes three basic requirements: "(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony."
[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (quoting Kemp ex rel. Wright v. State, 174 N.J. 412, 424 (2002)).]
The requirements of N.J.R.E. 702 "are construed liberally in light of [the Rule's] tilt in favor of the admissibility of expert testimony." State v. Jenewicz, 193 N.J. 440, 454 (2008).
N.J.R.E. 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be
A-1326-24
19
those perceived by or made known to the expert at or before the proceeding. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
The rule requires an expert to ground his or her opinion in facts or data derived from: (1) the expert's observations; (2) evidence admitted at trial; or (3) data of the type normally relied on by experts in the relevant field. Townsend, 221 N.J. at 53. While an expert must ground his or her opinion in fact, the opinion's evidential support is not limited to admissible evidence and may be based on information the expert learned through personal experience. Rosenberg v. Tavorath, 352 N.J. Super. 385, 400 (App. Div. 2002) (citing Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988)).
However, an expert may not provide a "mere net opinion." Pomerantz, 207 N.J. at 372. Our Supreme Court described the net opinion rule as a logical extension of N.J.R.E. 703. See, e.g., Townsend, 221 N.J. at 53; Davis v. Brickman Landscaping, Inc., 219 N.J. 395, 410 (2014); Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) ("The 'net opinion' rule appears to be a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, is inadmissible").
A-1326-24
20
An expert must "give the why and wherefore" that supports his or her opinion, rather than a simple conclusion. Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz, 207 N.J. at 372). In other words, an opinion consisting of "bare conclusions" or speculative hypotheses "unsupported by factual evidence" is inadmissible. Rosenberg, 352 N.J. Super. at 401. This court has noted an expert who speculates "ceases to be an aid to the trier of fact and becomes nothing more than an additional juror." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div. 1996).
To establish legal malpractice, a plaintiff must demonstrate: (1) the existence of a duty; (2) breach of that duty; (3) proximate causation; and (4) actual damages. Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996); Albright v. Burns, 206 N.J. Super. 625, 632 (App. Div. 1986). The expert must base his or her opinion on standards accepted in the legal community. Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 79 (App. Div. 2007). Damages must reflect real and substantial harm, not speculation, conjecture, or suspicion. Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982). The only exception from the requirement to establish a deviation from the standard of care is when an attorney's duty to a client is so basic that it may be found by the court
A-1326-24
21
as a matter of law. Buchanan v. Leonard, 428 N.J. Super. 277, 289 (App. Div. 2012).
A. Ambrosio Having reviewed the record, we are convinced the motion court mistakenly exercised its discretion when it found Ambrosio lacked sufficient knowledge, skill, expertise, training, or education to serve as an expert witness with respect to Adinolfi's alleged legal malpractice. The reasons cited by the court in support of its decision were Ambrosio "has never been a certified civil trial attorney," "only handled approximately [six] to [eight] medical malpractice cases" and "never tried a medical malpractice case to verdict." The court also characterized Ambrosio as "a professional expert witness" and "forensic expert in legal malpractice cases."
The court cited no legal support for the proposition an expert witness in a legal malpractice action must have the same professional certifications as the attorney who is the defendant in the action. An attorney may obtain a civil trial attorney certification through written examination and finding of specified qualifications by the Board on Attorney Certification appointed by the Supreme Court. See R. 1:39-1 to -9. The certification reflects the attorney's "education,
A-1326-24
22
experience, knowledge, and skill for . . . designated area[s] of practice . . . ." R. 1:39.
There is no requirement an expert witness in a legal malpractice action against an attorney with a civil trial attorney certification must also have a civil trial attorney certification. This is unlike the overlap in specialty required in medical malpractice cases. See Nicholas v. Mynster, 213 N.J. 463, 468 (2013) (holding N.J.S.A. 2A:53A-41 requires a medical malpractice expert to have the same specialty as the defendant doctor).
In addition, although Ambrosio tried only six to eight medical malpractice cases, all of which were settled before verdict, he practiced law for fifty-five years and served as a forensic expert in legal malpractice cases hundreds of times since 2000. According to plaintiffs, in many of those cases, the legal malpractice allegedly was committed during representation of a client in a medical malpractice suit. Moreover, the most significant act of legal malpractice alleged by plaintiffs was Adinolfi's failure to obtain an expert evaluation of his client's claims before recommending settlement. An attorney's duty to his clients in the context of recommending the settlement of claims is not unique to medical malpractice litigation, but is applicable to any field of litigation.
A-1326-24
23
Finally, we fail to see the significance of the motion court's findings Ambrosio is a "professional expert witness" and plaintiffs' medical malpractice claims were "long-since settled." The first observation suggests Ambrosio has been qualified to testify as an expert in legal malpractice actions on numerous occasions, militating in favor of him being qualified as an expert here. The second states a fact not relevant to Ambrosio's qualifications as an expert.
Ambrosio's lack of a civil trial attorney certification or his limited experience trying medical malpractice cases relative to Adinolfi's experience can be explored on cross-examination by defendants' counsel. Any deficiencies in an expert's qualifications should be left to the consideration of a jury "to determine the credibility, weight and probative value of the expert's testimony." Lanzet v. Greenberg, 126 N.J. 168, 186 (1991) (quoting James v. City of E. Orange, 246 N.J. Super. 554, 563 (App. Div. 1991)).
We also conclude the motion court erred when it found Ambrosio proffered an inadmissible net opinion. In support of its decision, the court found: (1) "Ambrosio's conclusion that the underlying medical malpractice suit was a 'sure win' on the issue of liability was mere conjecture and inadmissible in front of a jury[;]" (2) "Ambrosio failed to present a cognizable value for [p]laintiffs['] damages beyond a speculative amount[;]" (3) "There is no factual
A-1326-24
24
basis for Ambrosio's opinions and the medical malpractice matter has long been settled[;]" and (4) Ambrosio offered an opinion on the value of plaintiffs' claims based on new articles and his insufficient experience.
Our review of the record reveals sufficient support for his opinions to be admitted. We disagree with the finding Ambrosio relies only on speculation to reach his opinions. Ambrosio's report notes rules of professional conduct that set parameters for competent representation of clients by attorneys. Those rules include the duty to explain a matter to the client in a manner reasonably necessary to allow the client to make an informed decision. Plaintiffs allege, among other things, Adinolfi did not adequately explain the settlement agreement, including by not providing Carlos a Spanish-language version of the document, or the impact the Trust would have on their ability to access settlement funds for family expenses. Violation of the rules of professional responsibility, while not itself legal malpractice, is evidence of legal malpractice. Baxt v. Liloia, 155 N.J. 190, 200 (1998).
In addition, Ambrosio cites Ziegelheim v. Apollo, 128 N.J. 250, 263 (1992), which holds:
Although we encourage settlements, we recognize that litigants rely heavily on the professional advice of counsel when they decide whether to accept or reject offers of settlement, and we insist that the lawyers of
A-1326-24
25
our state advise clients with respect to settlements with the same skill, knowledge, and diligence with which they pursue all other legal tasks. Attorneys are supposed to know the likelihood of success for the types of cases they handle and they are supposed to know the range of possible awards in those cases.
In addition, Ambrosio notes our holding in Cellucci v. Bronstein, 277 N.J.
Super. 506, 522 (App. Div. 1994), that "a lawyer holding himself or herself out as a specialist in an area of law must exercise the knowledge and skill ordinarily possessed by other specialists in the same area of the law." Ambrosio also cites prior jury verdicts in similar cases around the time of the settlement. He relies too on precedents concerning the calculation of damages in medical malpractice cases.
Ambrosio explains the basis for his opinion Adinolfi did not meet the applicable standard of care when he advised plaintiffs to settle their claims based on Livingston's letter without first having obtained an independent expert opinion, and when he referred them to an attorney to establish the Trust. He also explains the basis on which he reached the opinion plaintiffs would have recovered far more than $500,000 had their claims been decided by a jury or resolved in a fair settlement.
We acknowledge defendants contend Ambrosio's opinions are, in effect, unsupported speculation, and wrong. Defendants are, of course, free to A-1326-24
26
challenge the credibility of Ambrosio's opinions on cross-examination. It was a mistaken exercise of discretion for the motion court to bar his testimony.
B. Britcher We find no error in the motion court's denial of plaintiffs' motion to bar Britcher's expert testimony as a net opinion. A review of Britcher's report reveals it contains not a single citation to a rule, legal precedent, or prior jury verdict. He appears to rely solely on his experience representing plaintiffs in medical malpractice actions. However, Britcher's experience in the field is extensive, spans forty years, and includes nearly one hundred medical malpractice trials. Roughly seventy percent of his firm's medical malpractice cases either went to trial with a favorable verdict for his clients or were favorably settled. He testified to his awareness of court statistics on the resolution of medical malpractice cases obtained during his lengthy participation in legislative proceedings concerning medical malpractice legislation.
Because Britcher has sufficient experience on which to base his opinions, the motion court did not mistakenly exercise its discretion when it denied plaintiff's motion to bar his testimony. Plaintiffs may challenge the credibility of Britcher's opinions on cross-examination.
A-1326-24
27
C. Diehl We cannot reach the same decision with respect to the court's denial of plaintiffs' motion to bar Diehl's testimony. Rule 1:7-4(a) states a motion court "shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . . ."
Under Rule 2:2-3(a)(1), an appeal as of right may be taken to this court only from a "final judgment" of the trial court, subject to exceptions not applicable here. "To be a final judgment, an order generally must 'dispose of all claims against all parties.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (quoting S.N. Golden Est., Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). The September 27, 2024 order resolves only plaintiffs' motion to bar expert testimony and was not appealable as of right.
Even though Rule 1:7-4(a) does not apply, precedents interpreting it guide our analysis of whether the motion court sufficiently explained the basis of its decision to deny plaintiffs' motion. "[A]n articulation of reasons is essential to the fair resolution of a case." Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000). Effective appellate review of a motion court's decision
A-1326-24
28
requires examination of the basis for a motion court's decision. See Raspantini v. Arocho, 364 N.J. Super. 528, 533-34 (App. Div. 2003).
The motion court did not address plaintiffs' motion to bar Diehl's testimony. As a result, we cannot effectively review the September 27, 2024 order to the extent it denied plaintiffs' motion concerning Diehl. We vacate that portion of the order and remand for findings of fact and conclusions of law with respect to plaintiffs' motion to bar Diehl's testimony.
Given our decisions regarding the parties' expert witnesses, we reverse the December 20, 2024 order denying plaintiffs' motion for reconsideration.
In addition, because we concluded the motion court erred when it excluded Ambrosio's testimony, we reverse the December 19, 2024 order granting summary judgment to defendants and dismissing the complaint with prejudice. The basis of the motion court's grant of summary judgment was the absence of expert testimony supporting plaintiffs' legal malpractice claims. Our reversal of the order excluding Ambrosio's testimony cured that deficiency.
To the extent we have not specifically addressed any of plaintiffs'
remaining claims, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
A-1326-24
29
Reversed, affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
A-1326-24