EDWARD HARRINGTON HEYBURN v. DEBORAH MADAIO (L-1627-17, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 27, 2022
• Docket: A-0534-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0534-21

EDWARD HARRINGTON HEYBURN,

Plaintiff-Respondent,

v.

DEBORAH MADAIO and ROBIN FORCHION,

Defendants,

and

EDWARD FORCHION,

Defendant/Third-Party Plaintiff-Appellant,

EDWARD HARRINGTON HEYBURN and EDWARD HARRINGTON HEYBURN, ESQ., LLC,

Third-Party Defendants. ___________________________ Argued October 11, 2022 – Decided October 27, 2022

Before Judges Mayer, Enright, and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1627-17.

Kenneth S. Thyne argued the cause for appellant (Roper & Thyne, LLC, attorneys; Kenneth S. Thyne, of counsel and on the briefs).

Edward Harrington Heyburn, respondent, argued the cause pro se.

PER CURIAM

Defendant/third-party plaintiff (defendant) Edward Forchion challenges a

June 5, 2020 order: granting a motion in limine filed by plaintiff/third-party

defendant (plaintiff) Edward Harrington Heyburn; dismissing defendant's legal

malpractice claim; and barring defendant's claim for emotional distress.1 We

affirm.

Defendant describes himself as a "well-known . . . activist for the

legalization of marijuana" and is known as the "New Jersey Weedman." Years

ago, with the assistance of a confidential informant (CI), the Trenton Police

Department (TPD) investigated defendant. Based on its investigation, in April

2016, the TPD arrested and charged defendant with various drug-related

1 Defendants Deborah Madaio and Robin Forchion are not parties to this appeal. A-0534-21 2 offenses. Defendant hired plaintiff's former law firm to represent him on these

and other unrelated charges.

While defendant's criminal matter was pending, the State moved to protect

the identity, likeness and address of the CI. Contemporaneously, defendant

attempted to find out the CI's identity. According to defendant, plaintiff not

only advised him he was entitled to discover the CI's identity but also

encouraged him to track down this information before the trial court ruled on

the State's pending motion.

A fair reading of the record reflects defendant, at times, acted with

plaintiff's encouragement to discover the CI's identity, and, at other times,

defendant acted on his own initiative. For example, in one email exchange

between the parties in August 2016, defendant informed plaintiff he "posted [the

alleged CI's] picture and asked [the CI] to call [defendant]." Plaintiff responded

by email less than two hours later, advising defendant, "[t]hat is what I asked

you not to do. They will use that against us when we ask for his identity. Watch.

I wanted to send someone out privately to talk with [the alleged CI] . . . . Get

him to contradict himself." In the same email, plaintiff inquired if defendant

knew the CI's name and phone number.

A-0534-21 3 Thereafter, defendant attempted to expose the CI's identity by posting on

defendant's social media accounts. Further, he uploaded a YouTube video about

the suspected informant. Defendant's followers commented on his posts with

statements such as: "Get him, man, you got this"; "If you find the rat, make sure

you let me get the paperwork so I can post it on Stop Snitchin' here on

Facebook"; and "Once you find out, make sure you expose that fucking snitch."

In October 2016, defendant communicated with an individual at the

Trentonian, a daily newspaper serving the Trenton community, advising the

individual that defendant had "posted a[n] image of [his] Rat." A few days later,

defendant sent an email to plaintiff containing a hyperlink to a website entitled

"njweedman.com/WANTED.htm." The hyperlink contained a copy of a

"WANTED" ad with a picture of the alleged informant. Defendant's

accompanying message to plaintiff read, "I have not released this yet . . . . Maybe

a day or so." Plaintiff responded, "[g]o ahead. You put the caveat that no one

should harass him. I am fine with this. Good Job!!"

Shortly after this exchange, the relationship between the parties soured.

According to an article printed in the Trentonian regarding an October 2016

hearing, plaintiff purportedly told defendant "not to contact the prosecutor" and

to "run any communication through him." The article also quoted plaintiff as

A-0534-21 4 saying, "I may not be in this case much longer" and "I don't need to fight [with]

my client."

Two days later, defendant issued a press release publicly apologizing to

plaintiff, stating, "I was wrong. I should shut up sometimes . . . . I am not as

patien[t] . . . as my lawyer . . . . I apologize for my outspokenness and for

embarrassing my attorney and openly ask Edward Heyburn to stay on board."

In February 2017, defendant was indicted on charges of second- and third-

degree witness tampering, N.J.S.A. 2C:28-5a; he was arrested days later. He

remained detained for over 400 days before he was found not guilty of the

charges.

In May 2017, plaintiff moved to be relieved as defendant's counsel. Two

months later, plaintiff sued defendant and his girlfriend for libel and slander;

plaintiff subsequently amended his complaint to include defendant's sister. In

his complaint, plaintiff alleged that once he was relieved as defendant's counsel,

defendant gave an interview to a local newspaper, the Trenton Times, claiming

plaintiff "betrayed" defendant. Further, plaintiff alleged defendant "provided

the Trenton Times with false statements" about the legal advice plaintiff gave

him and that defendant's statements damaged plaintiff's professional reputation.

Additionally, plaintiff alleged that after defendant was incarcerated on the

A-0534-21 5 witness tampering charges, his girlfriend and sister assumed control of

defendant's social media accounts and posted disparaging comments about

plaintiff, further harming his reputation.

Defendant answered the complaint and filed a counterclaim and third-

party complaint against plaintiff. Defendant alleged plaintiff committed legal

malpractice and that "[a]s a direct consequence of . . . [plaintiff's] advice," he

faced "felony charges and [was] incarcerated." Further, defendant alleged

plaintiff "was retained for non-economic interests, and therefore, [was] liable

for emotional distress [damages] arising from his professional negligence."

Defendant retained Brooke Barnett, Esq. to provide an expert report

addressing whether plaintiff deviated from the professional standard of care

while representing defendant. In preparing her report, Barnett stated she

"opined based on the facts as set forth by [defendant] in his [third-party

c]omplaint and his [a]nswers to [i]nterrogatories and accepted same as true."

She concluded "[a]ll of defendant's actions taken regarding the [CI] were with

the knowledge and encouragement of his then-attorney, [plaintiff]," including

plaintiff's advice regarding "'outing' the confidential witness while a motion was

pending by the [S]tate to keep the identity of the [CI] from [defendant]."

Further, she opined defendant

A-0534-21 6 was incarcerated directly as a result of [plaintiff's] misconduct and is entitled to collect all damages that were proximately caused by this deviation of the standard of care. As [plaintiff] was representing [defendant] for a non-economic reason, he is entitled to collect emotional distress damages and the non- economic damages that resulted from his incarceration.

Plaintiff filed a motion in limine to bar Barnett from testifying at trial,

alleging the expert's report was a net opinion. He also contended the legal

malpractice action should be dismissed based on the conclusory nature of

Barnett's opinion. Additionally, plaintiff moved to bar defendant's claim for

emotional distress damages.

The motion judge heard argument on plaintiff's applications on June 5,

2020. During argument, plaintiff highlighted that Barnett "did not review any

of the underlying records, with the exception of defendant's answers to

interrogatories and the [third-party] complaint" before she rendered her opinion.

Plaintiff explained Barnett failed to "review the transcript from the grand jury

proceedings which outlined disturbing behavior by [defendant] . . ., including

contacting the family of the . . . [CI]." Additionally, plaintiff highlighted that

while he represented defendant, defendant posted a "Facebook video that . . .

went on to intimidate the [CI]" and defendant failed to apprise plaintiff "that he

A-0534-21 7 was . . . going to go on in a series of Facebook video[s] and discuss his thoughts

about that."

Plaintiff also informed the judge that defendant "made a series of

statements to the Trentonian" and when "asked about whether he was concerned

about the safety of his [CI]," and whether he "care[d] if the [CI] gets shot in the

head, . . . he said no, he's concerned only about the jail time that he has to do."

Plaintiff stated defendant's actions "triggered his indictment, and . . . ha[d]

absolutely nothing to do with me."

The judge granted plaintiff's motions, citing the court's duty "to fulfill [its]

gatekeeping role." The judge acknowledged "it's not required that the

expert . . . look at every document or every piece of evidence in order to give a

competent opinion." He added, "[b]ut here, the facts that underlie her opinion

are completely deficient." The judge concluded Barnett's report lacked "an

appropriate factual foundation," explaining, "the central, critical documents

were not reviewed, were ignored . . . . And so, . . . I think it would be completely

speculative on the issue of liability and most particularly proximate cause —

really on proximate cause is where this is deficient."

Further, the judge determined if Barnett provided testimony, she would be

"speculating . . . in giving that testimony in light of the deficiency in the factual

A-0534-21 8 foundations of her opinion." Based on this determination, defendant's attorney

agreed with the judge the legal malpractice claim would have to be dismissed,

admitting, "I can't prove a legal malpractice claim on these facts without an

expert, Judge."

Finally, the judge barred defendant's claim for damages based on

emotional distress, finding that "without medical documentation or medical

expert, the claim for emotional distress damages would be deficient." Following

argument, the judge entered a conforming order: deeming Barnett's report an

"inadmissible net opinion"; dismissing defendant's legal malpractice claim with

prejudice; and barring defendant's claim for emotional distress damages.2

On appeal, defendant contends the judge erred in finding Barnett's opinion

was a net opinion. He also argues the judge mistakenly dismissed his legal

malpractice claim and barred his claim for emotional distress. We disagree.

"Our review of the trial court's evidential rulings 'is limited to examining

the decision for abuse of discretion.'" Ehrlich v. Sorokin, 451 N.J. Super. 119,

128 (App. Div. 2017) (quoting Parker v. Poole, 440 N.J. 7, 16 (2015)). Thus,

2 The June 5 order also confirmed the voluntary dismissal of a crossclaim filed by defendant Deborah Madaio. More than a year later, on September 20, 2021, all parties formally stipulated to the dismissal, with prejudice, of the complaint and "counter-claim." A-0534-21 9 we review with deference a trial court's decision to admit or exclude expert

testimony. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72

(2011). Further, "[w]e apply the same [deferential] standard of review to in

limine motions adjudicating the admissibility of evidence." Primmer v.

Harrison, 472 N.J. Super. 173, 187 (App. Div. 2022) (citation omitted).

Expert testimony is admissible if

(1) the intended testimony . . . concern[s] 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 that such an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[DeHanes v. Rothman, 158 N.J. 90, 100 (1999) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).]

Regarding defendant's cause of action, we note as a threshold matter that

"[l]egal[] malpractice suits are grounded in the tort of negligence." McGrogan

v. Till, 167 N.J. 414, 425 (2001) (citations omitted). "[A] legal

malpractice action has three essential elements: '(1) the existence of an attorney-

client relationship creating a duty of care by the defendant attorney, (2) the

breach of that duty by the defendant, and (3) proximate causation of the damages

claimed by the plaintiff.'" Jerista v. Murray, 185 N.J. 175, 190-91 (2005)

(quoting McGrogan, 167 N.J. at 425). "The plaintiff bears the burden of

A-0534-21 10 establishing those elements by some competent proof." Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citations omitted).

Generally, a client only recovers losses proximately caused by the

attorney's professional negligence. Lieberman v. Emps. Ins. of Wausau, 84 N.J.

325, 341 (1980); Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div. 2005).

"Proximate cause consists of 'any cause which in the natural and continuous

sequence, unbroken by an efficient intervening cause, produces the result

complained of and without which the result would not have

occurred.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Conklin v.

Hannoch Weisman, 145 N.J. 395, 418 (1996)).

"To establish the requisite causal connection between a defendant's

negligence and plaintiff's harm, plaintiff must present evidence to support a

finding that defendant's negligent conduct was a 'substantial factor' in bringing

about plaintiff's injury, even though there may be other concurrent causes of

harm." Froom, 377 N.J. Super. at 313 (citing Conklin, 145 N.J. at 419). "The

burden . . . on the client to show what injuries were suffered as a proximate

consequence of the attorney's breach of duty . . . must be sustained by a

preponderance of the competent, credible evidence and is not satisfied b y mere

A-0534-21 11 'conjecture, surmise or suspicion.'" 2175 Lemoine Ave. Corp. v. Finco, Inc.,

272 N.J. Super. 478, 487-88 (App. Div. 1994) (citations omitted).

Therefore, for defendant to prevail on his legal malpractice claim, he not

only needed to establish through expert opinion that plaintiff deviated from the

applicable standard of care, but he also needed to show by a preponderance of

evidence that any alleged damages flowing from his arrest, indictment, and

incarceration on witness tampering charges were proximately caused by

plaintiff's deviation from the standard of care. We agree with the motion judge

that Barnett's expert report was lacking on the element of proximate cause.

N.J.R.E. 703

mandates that expert opinion be grounded in "facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts."

[Townsend, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).]

"The net opinion rule is a 'corollary of [Rule 703] . . . which forbids the

admission into evidence of expert's conclusions that are not supported by factual

evidence or other data.'" Id. at 53-54 (quoting Polzo, 196 N.J. at 583). Under

the net opinion rule, experts must "be able to identify the factual bases for their

A-0534-21 12 conclusions, explain their methodology, and demonstrate that both the factual

bases and the methodology are [] reliable." Landrigan v. Celotex Corp., 127

N.J. 404, 417 (1992). Thus, "[t]he net opinion rule is succinctly defined as 'a

prohibition against speculative testimony.'" Harte v. Hand, 433 N.J. Super. 457,

465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580

(App. Div. 1997)). Stated differently, an expert is required to "'give the why

and wherefore' that supports the opinion, 'rather than a mere conclusion.'"

Townsend, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E. Allendale,

LLC, 216 N.J. 115, 144 (2013)).

Here, Barnett admittedly relied solely upon defendant's third-party

complaint and his answers to interrogatories to support her opinion. As the

judge noted, the expert's narrow approach led to "central critical documents"

being ignored, including "grand jury testimony, . . . any documents or . . .

[answers to] interrogatories by [plaintiff][,] . . . . the criminal complaints, [and]

any of the documents or facts that underlie the grand jury indictment."

While "[a]n expert's proposed testimony should not be excluded merely

'because it fails to account for some particular condition or fact which the

adversary considers relevant'" it must still properly address the issue of

proximate cause. Townsend, 221 N.J. at 54 (quoting Creanga v. Jardal, 185 N.J.

A-0534-21 13 345, 360 (2005)); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309,

322-25 (App. Div. 1996) (upholding summary judgment where the expert's

report was an inadmissible net opinion on proximate cause). Here, Barnett

wholly ignored pertinent facts about defendant's arrest, indictment and

incarceration for witness tampering, despite that those facts were outlined in

multiple documents produced to defendant. Therefore, we are persuaded the

judge correctly deemed her opinion to be a net opinion and found her anticipated

testimony on the issue of liability "would be completely speculative."

Moreover, we are convinced defendant's attorney properly acknowledged that

without Barnett's testimony, defendant could not support his professional

negligence claim.

Similarly, we are not persuaded the judge erred in barring defendant's

claim for emotional distress damages. As discussed, "an attorney is responsible

for the loss proximately caused the client by his [or her] negligence." Gautam

v. De Luca, 215 N.J. Super. 388, 397 (App. Div. 1987). "Generally, damages

are awarded on the basis of economic loss." Nieves v. Adolf, 241 N.J. 567, 583

(2020) (citing McGrogan, 167 N.J. at 425). But "emotional distress damages

are . . . potentially recoverable in certain legal malpractice settings." Ibid.

A-0534-21 14 Although we previously acknowledged the possibility of a plaintiff

recovering emotional distress damages in a legal malpractice action, we also

cautioned, "emotional distress damages should not be awarded in legal

malpractice cases at least in the absence of egregious or extraordinary

circumstances." Guatam, 215 N.J. Super. at 399; see also Winstock v. Galasso,

430 N.J. Super. 391, 418-19 (App. Div. 2013) (affirming the dismissal of

plaintiffs' claims for emotional distress damages because there was "nothing in

the record . . . that substantiate[d] a finding of 'egregious or extraordinary

circumstances' warranting this form of relief."). Further, pertinent to this appeal,

we noted "such awards would be impermissible in the absence of medical

evidence establishing substantial bodily injury or severe and demonstrable

psychiatric sequelae proximately caused by the tortfeasor's misconduct."

Guatam, 215 N.J. Super. at 399.

As the trial judge noted, defendant did not produce any medical

documentation or expert evidence to support his claim for damages for

emotional distress. The court properly dismissed the claim.

Affirmed.

A-0534-21 15