NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0177-15T4
RANDY B. ROSENBLATT,
Plaintiff-Appellant,
v.
VINCENT STRIPTO, ESQ., AND DRAZIN & WARSHAW, P.C., HOWARD BACHMAN, ESQ. AND GOLDSTEIN & BACHMAN, ATTORNEYS AT LAW,
Defendants-Respondents. ___________________________________
Submitted January 18, 2017 – Decided August 2, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-12-13.
Ginsberg & O'Connor, P.C., attorneys for appellant (Gary D. Ginsberg and Stephen P. Burke, Jr., on the brief).
Giordano, Halleran & Ciesla, P.C., attorneys for respondents Vincent Stripto and Drazin & Warshaw, P.C. (Michael J. Canning, of counsel; Mr. Canning and Matthew N. Fiorovanti, on the brief).
Kaufman Dolowich & Voluck, LLP, attorneys for respondents Howard Bachman and Goldstein & Bachman, Attorneys at Law (Iram P. Valentin, of counsel; Mr. Valentin and David J. Gittines, on the brief).
PER CURIAM
In this attorney malpractice case, we review the trial court's
requirement that plaintiff provide expert testimony to establish
proximate cause. Plaintiff Randy Rosenblatt sued two of her former
divorce attorneys and their respective law firms, Vincent Stripto
of Drazin & Warshaw, P.C., and Howard Bachman of Goldstein &
Bachman. Plaintiff alleged that the two failed to notify her that
she might have a Tevis claim, which negatively affected the outcome
of her divorce. The trial court concluded that expert testimony
was necessary to prove proximate causation, and eventually granted
summary judgment for defendants once it became clear that plaintiff
had not offered such testimony.
On appeal, plaintiff challenges the court's evidentiary
ruling and the entry of summary judgment. We affirm.
I.
Bachman succeeded Stripto as plaintiff's divorce attorney.
Stripto began representing plaintiff in 2000. He filed and then,
at plaintiff's request, withdrew complaints on her behalf in 2000,
2001 and 2002. The following year, he filed the complaint that
was later amended and ultimately litigated. Stripto also
represented plaintiff in a related domestic violence action, which
2 A-0177-15T4 resulted in a January 2004 final restraining order (FRO) against
her husband.
Plaintiff substituted Bachman for Stripto later that year.
During Bachman's representation, plaintiff and her husband agreed
to binding arbitration of their divorce case. Plaintiff discharged
Bachman in 2006 after receiving the arbitration decision.
In November 2007, after consulting with another attorney,
plaintiff claimed she discovered for the first time that she had
a potential marital tort claim against her husband under Tevis v.
Tevis, 79 N.J. 422 (1979).1 The potential claim related to three
altercations in 2002, 2003 and 2004. She alleged that in 2002,
her husband grabbed her arm so firmly it left a black and blue
mark that lasted a week; in 2003, he pushed her against a wall,
causing short-lived pain to her neck and one of her hands (she
could not recall which); and in 2004, he butted heads with her in
the midst of an argument.
She contended neither Stripto nor Bachman ever informed her
that she had a potential tort claim, which was now barred.
Plaintiff filed her legal malpractice action on December 28, 2012,
1 Stripto and his law firm contested this assertion during discovery, stating that another attorney at Drazin & Warshaw explicitly discussed and recommended against filing a Tevis claim. However, for purposes of our review, we assume — as did the trial court — the truth of plaintiff's allegation.
3 A-0177-15T4 seeking damages that she allegedly would have recovered had the
claim been brought. Plaintiff also sought damages for the "severe,
temporary and permanent physical and mental injuries requiring
medical and psychological care and treatment and will require such
care in [the] future." She produced no medical records or expert
testimony to support her claim of permanent injury, however.
Although the attorneys did not discuss a potential Tevis
claim or file one on plaintiff's behalf, they were aware of the
incidents. Stripto referred to them in plaintiff's claim for
divorce based on extreme cruelty. The 2004 incident also prompted
the domestic violence complaint (although the prior history of
domestic violence added only the 2003 incident and did not allege
any physical injury from that prior event). Bachman, in turn,
relied on the FRO during the arbitration hearings in an attempt
to gain sole legal custody of the children.
Both attorneys explained they did not discuss the possibility
of a Tevis claim with plaintiff because they did not believe the
incidents provided a viable claim for such relief. In particular,
they noted plaintiff did not suffer any documented long-term
physical or psychiatric injury from the events. Moreover,
plaintiff never received medical treatment or medication for any
resulting injuries, nor did she seek any psychological or
psychiatric treatment for emotional or verbal abuse by her husband.
4 A-0177-15T4 As a result, they believed that the Tevis claim would be neither
successful nor cost-effective for plaintiff.
In support of her malpractice claim, plaintiff relied on the
expert opinion of attorney Ronald Edelman. In his brief report,
Edelman opined that plaintiff had a "potential Tevis claim" and,
further, that defendants "had the obligation to advise her of her
Tevis rights" and "to protect her rights." The report did not
expressly address whether defendants breached their duty of care
by not filing such claims, nor did it discuss whether they would
have succeeded.
The court granted in part and denied in part without prejudice
defendant's first motion for summary judgment, which was filed
before the end of discovery. In an oral decision in March 2015,
Judge Katie A. Gummer dismissed plaintiff's claim for damages tied
to alleged permanent physical or mental injury. Specifically, the
court noted, "it is undisputed that plaintiff did not suffer any
permanent physical injuries as a result of the purported physical
and verbal abuse inflicted upon her by her former husband." The
court concluded that plaintiff "neither factually nor legally"
established that she had suffered any "disability or ongoing
physical or mental injury" or that she was entitled to damages
flowing therefrom. Nonetheless, Judge Gummer concluded plaintiff
had a viable Tevis claim for damages arising out of the injury she
5 A-0177-15T4 allegedly experienced after the three assaults. The court rejected
defendants' argument, which relied on Merenoff v. Merenoff, 76
N.J. 535 (1978), that the husband's actions and plaintiff's injury
were too trivial to be litigable.
The court also concluded that because plaintiff's malpractice
action concerned "the soundness of decisions made by lawyers as
to what they should relay to their clients and what actions to
take in a matrimonial matter[,]" expert testimony would be required
to establish proximate causation. The court noted that plaintiff
had not alleged (at least at that point) that she would have filed
a Tevis claim if her attorneys had informed her of the potential
claim. The judge stated it was unclear whether Edelman's opinion
that the attorneys had failed to protect plaintiff's interests was
intended to convey a view on proximate causation. However, giving
plaintiff the benefit of the doubt, the court assumed it did,
subject to clarification in discovery.
In his subsequent deposition, Edelman denied opining "as to
whether any actions of the lawyers proximately caused any damage
to" plaintiff. He stated his report focused on "whether or not
the attorney[s] fulfilled [their] obligation to [their] client,"
by failing "to advise the client of her Tevis rights." Edelman
stated he did not form an opinion as to the value of the Tevis
claim, whether it was negligent of the attorneys to conclude it
6 A-0177-15T4 should not be filed, whether plaintiff would have pursued the
claim if she had been advised about it, or the impact of filing
the claim on other issues in the divorce.2
Defendants submitted an expert report by attorney David
Wildstein, who stated he had extensive experience with Tevis
claims. He explained that, in general, Tevis claims are "a rarity"
in matrimonial matters. He noted that successful claims usually
require "medical or expert testimony and serious or substantial
injury." He asserted it was "doubtful" that plaintiff would have
succeeded if she had brought a claim. Wildstein stated, "Plaintiff
has failed to provide any evidence that she would have prevailed
in recovering damages." He endorsed Bachman's strategic decision
to utilize the FRO in connection with the custody dispute rather
than bring a Tevis claim.
Wildstein also noted that the filing of a weak Tevis claim
would disadvantage the client's case in the matrimonial matter.
For example, "if a non-viable Tevis count was filed, it could be
viewed by a Judge or arbitrator as a legal tactic to obtain
leverage which could prejudice plaintiff's custody case." He also
2 Edelman admitted a plausible reason not to pursue the Tevis claim in this case was the fact that it would have opened the door for plaintiff's husband to introduce evidence of plaintiff's alleged extramarital affair, which had prompted his verbal and physical response.
7 A-0177-15T4 stated that "the Court frowns upon weak or non-viable Tevis claims
which may be used as leverage."
In the meantime, plaintiff filed a certification stating that
she would have pursued a Tevis claim if she had been informed
about the possibility. She filed no further expert certifications
or other reports.
Based on this expanded record, Judge Gummer granted
defendants' renewed motion for summary judgment. She concluded
that Edelman's deposition clarified he was not, in fact, offering
an opinion as to proximate cause. Reaffirming her prior holding
regarding the necessity of expert testimony on this subject for
plaintiff's prima facie case, the judge concluded that its omission
was fatal to plaintiff's cause of action. The court entered final
orders dismissing plaintiff's malpractice complaint with
prejudice. This appeal followed.
II.
"The necessity for, or propriety of, the admission of expert
testimony, and the competence of such testimony, are judgments
within the discretion of the trial court." State v. Zola, 112
N.J. 384, 414 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct.
1146, 103 L. Ed. 2d 205 (1989). Accordingly, we must "generously
sustain" such determinations, so long as they are "supported by
credible evidence in the record." Estate of Hanges v. Metro.
8 A-0177-15T4 Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010). Conversely, if
the trial court applies the wrong legal test when analyzing
admissibility, we apply de novo review. Konop v. Rosen, 425 N.J.
Super. 391, 401 (App. Div. 2012).
The evidentiary question here is whether the trial court
appropriately required expert testimony to establish proximate
cause in plaintiff's legal malpractice claim. As a general matter,
expert testimony is barred "unless it relates to a subject matter
which is so distinctively related to some science, profession,
business or occupation as to be beyond the ken of the average
layman." Boland v. Dolan, 140 N.J. 174, 188 (1995) (internal
quotation marks and citation omitted). Although N.J.R.E. 702
speaks permissively — stating that "[i]f . . . specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue . . . [an expert witness] may
testify thereto" (emphasis added) — "New Jersey courts have
required expert testimony to explain complex matters that would
fall beyond the ken of the ordinary juror." State v. Fortin, 189
N.J. 579, 596 (2007).
Legal malpractice actions often present such complex matters.
The elements of legal malpractice consist of: "(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,
9 A-0177-15T4 and (3) proximate causation of the damages claimed by the
plaintiff." Jerista v. Murray, 185 N.J. 175, 190-91 (2005)
(internal quotation marks and citation omitted). The client bears
the burden of proof. Sommers v. McKinney, 287 N.J. Super. 1, 10
(App. Div. 1996).
The attorney's duty of care involves the "exercise [of] the
knowledge, skill and ability ordinarily possessed and exercised
by members of the legal profession similarly situated" and the
"exercise [of] a reasonable degree of care and prudence having
reference to the character of the service [an attorney] undertakes
to perform." Passante v. Yormark, 138 N.J. Super. 233, 238 (App.
Div. 1975), certif. denied, 70 N.J. 144 (1976). Whether an
attorney has fulfilled that duty is not ordinarily a matter within
the jury's common experience or knowledge. Brizak v. Needle, 239
N.J. Super. 415, 432 (App. Div.), certif. denied, 122 N.J. 164
(1990).
Accordingly, we generally require expert testimony to
establish the first two elements of a malpractice claim. See
Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78 (App. Div.
2007) (internal quotation marks and citation omitted); Restatement
(Third) of Law Governing Lawyers § 52, comment g (2000) ("[A]
plaintiff alleging professional negligence . . . ordinarily must
introduce expert testimony concerning the care reasonably required
10 A-0177-15T4 in the circumstances of the case and the lawyer's failure to
exercise such care."). Only in the exceptional case, where the
breach of duty is basic or obvious, is an expert not required.
See Brizak, supra, 239 N.J. Super. at 431-32 (App. Div.) (no expert
needed when attorney "fail[ed] to conduct any investigation" into
client's alleged malpractice claim); see also Sommers, supra, 287
N.J. Super. at 10 ("In rare cases, expert testimony is not required
in a legal malpractice action where the duty of care to a client
is so basic that it may be determined by the court as a matter of
law.").
The third element, proximate cause, requires a showing that
the malpractice was a "substantial factor in bringing about" an
injury. Conklin v. Hannoch Weisman, 145 N.J. 395, 419 (1996)
(internal quotation marks and citation omitted). Proof must be
based on "competent credible evidence," Sommers, supra, 287 N.J.
Super. at 10, and not "mere conjecture, surmise or suspicion,"
2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 488
(App. Div. 1994) (internal quotation marks and citation omitted).
Here as well, our courts have required the use of expert testimony
except when "the causal relationship between the attorney's legal
malpractice and the client's loss is so obvious that the trier of
fact can resolve the issue as a matter of common knowledge." Id.
at 490; see also Sommers, supra, 287 N.J. Super. at 11 (accord);
11 A-0177-15T4 4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, § 37:23,
at 1653 (2013 ed.) ("[U]nless the causal link is obvious or can
be established by other evidence, expert testimony may be essential
to prove [causation.]"); Allen v. Martin, 203 P.3d 546, 569 (Colo.
App. 2008) (noting "most jurisdictions have concluded that
causation in a legal malpractice action must be proved by expert
testimony, unless causation is within the jury's common
understanding" and collecting cases); Bozelko v. Papastavros, 147
A.3d 1023, 1030 (Conn. 2016) ("Because a determination of what
result should have occurred if the attorney had not been negligent
usually is beyond the field of ordinary knowledge and experience
possessed by a juror, expert testimony generally will be necessary
to provide the essential nexus between the attorney's error and
the plaintiff's damages.").
Whether a particular causal chain is so obvious that expert
testimony is unnecessary is a fact-sensitive inquiry. We required
expert testimony when the alleged malpractice concerned the manner
in which a complex transaction had been structured. 2175 Lemoine
Ave. Corp., supra, 272 N.J. Super. at 487-90. Conversely, we
concluded that no expert testimony was required to demonstrate
that an attorney's misrepresentation about the strength of an
adversary's position had a substantial, negative impact on the
terms of his client's settlement. Sommers, supra, 287 N.J. Super.
12 A-0177-15T4 at 8-9. Although we held that the plaintiff needed an expert to
challenge the quality of work done on her behalf, an expert was
not required "to announce that an attorney may not charge for work
that has not been performed . . . . [or] to establish the causal
connection between a charge for services not performed and lesser
proceeds to the plaintiff." Id. at 14.
Here, the trial court found expert testimony was required to
establish proximate cause. We will not disturb that discretionary
conclusion. It bears repeating that the alleged malpractice here
pertains to a failure to notify plaintiff of a potential claim
under Tevis during the course of a matrimonial dispute.
Accordingly, in order to meet the proximate cause prong of
her negligence claim, plaintiff had to demonstrate: (1) that she
would have brought the Tevis claim; (2) that the Tevis claim would
have produced an award greater than the cost of bringing it; and
(3) that such a net award would not have been offset by negative
repercussions in the broader matrimonial litigation. This is a
far more attenuated and intricate chain of causation than was
presented in Sommers. Even assuming plaintiff would have filed a
Tevis claim, the second and third elements implicate complex
questions of the law beyond the ken of average jurors.
Plaintiff had to demonstrate she would have brought the Tevis
claim because she provided no evidence that defendants would have
13 A-0177-15T4 acceded to a request, if she made one, to file such a claim on her
behalf. As noted above, the attorneys believed the claim would
have been ill-advised and counter-productive, assertions
corroborated by Bachman's expert. Edelman admittedly offered no
opinion on whether defendants' actions caused plaintiff
compensable harm.
Plaintiff also had to demonstrate not only that the Tevis
claim would succeed, but it would produce a net positive award.
There is no evidence that an attorney would have pursued the claim
on a contingency basis (even assuming doing so would not run afoul
of Rule of Professional Conduct 1.5(d)(1)). Plaintiff thus may
have been required to incur fees and costs to pursue the claim.
To prove damage, plaintiff would need to establish that those fees
and costs did not exceed the value of a recovery for the tort.
Furthermore, filing the claim could have complicated and
prolonged the underlying matrimonial litigation and increased
costs. Perhaps more significantly, it could have resulted in a
less favorable outcome on other issues of value and importance to
plaintiff in the divorce case. For example, as noted above, the
Tevis claim may have opened the door to evidence about plaintiff's
alleged extra-marital affair, which may have had an impact on
custody and financial issues pertinent to both alimony and
equitable distribution.
14 A-0177-15T4 Additionally, if plaintiff secured any recovery in a Tevis
action, the court would subsequently need to guard against a
double-recovery based on application of the same facts to the
calculation of equitable distribution. As we have warned:
[P]laintiff's age, physical and emotional health and occupational limitations, if any, attributable to defendant's tortious conduct, may not again be considered in evaluating the equitable division of property issues. Likewise, defendant's actual liability in tort resulting in judgment must be considered in the court's decision respecting the division of property. The judgment debt owed plaintiff must also be considered in evaluating plaintiff's demand for alimony and particularly defendant's ability to pay alimony. There may not be a double recovery from defendant.
[Giovine v. Giovine, 284 N.J. Super. 3, 29 (App. Div. 1995) (authorizing marital tort claim for battered woman's syndrome).]
One treatise has observed that, although practitioners would be
well-advised to "re-examine the financial viability" of marital
tort claims after cases like Giovine, "most matrimonial
practitioners recognized that these types of claims were illusive,
spurious, inciteful [sic], rarely financially fruitful, and might,
in some cases . . . invite an undesired and financially
dysfunctional judicial response . . . ." 1 Gary N. Skoloff &
Laurence J. Cutler, New Jersey Family Law Practice § 1:67 (15th
ed. 2013) (emphasis added).
15 A-0177-15T4 Accordingly, we discern no abuse of discretion by the trial
court in its decision to require expert testimony on proximate
cause.
Further, we reject plaintiff's argument that she could have
proceeded without expert testimony because she could have
established causation at trial in the "suit within a suit." Put
simply, this argument confuses a procedural trial framework with
plaintiff's prima facie burden.
The "suit within a suit" approach allows a plaintiff to prove
proximate cause by "present[ing] the evidence that would have been
submitted at a trial had no malpractice occurred." Garcia v.
Kozlov, 179 N.J. 325, 358 (2004). Notably, the Court has
emphasized that this is only one of a number of procedures
available to the parties in a malpractice suit. Lieberman v.
Employers Ins. of Wausau, 84 N.J. 325, 343-44 (1980). Another
option is the "use of expert testimony as to what as a matter of
reasonable probability would have transpired at the original
trial." Ibid.
But this procedural choice does not relieve plaintiff of her
substantive, prima facie burden as plaintiff seems to suggest.
Just because the parties choose to proceed by a "suit within a
suit" instead of by expert certifications does not mean that a
trial court cannot still require expert testimony as part of
16 A-0177-15T4 plaintiff's proofs. See 4 Mallen, supra, § 37:23, at 1650 ("In
the trial-within-a-trial context, expert testimony that would have
been mandatory remains such."); cf. Cellucci v. Bronstein, 277
N.J. Super. 506, 520-24 (App. Div. 1994) (reviewing expert
testimony regarding negligence offered at a "suit within a suit"
proceeding), certif. denied, 139 N.J. 441 (1995).
Plaintiff may not have needed an expert to establish the
merits of her Tevis claim — that is, that her husband assaulted
her, that she suffered pain, and that a monetary award is
appropriate to compensate her for that pain. But, as we noted,
it was beyond the ken of the average juror to determine whether
such a compensatory award would have been offset by the direct
costs of bringing it and the indirect costs upon her other claims
in the divorce case. Only expert testimony could remedy that gap
in understanding. The "suit within a suit" procedure would not
suffice.
To the extent not already discussed, plaintiff's remaining
claims lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
In sum, we discern no abuse of discretion in the court's
determination that plaintiff required expert testimony to meet her
prima facie showing of proximate cause. As plaintiff failed to
17 A-0177-15T4 do so, we affirm the court's grant of summary judgment for
defendants.
Affirmed.
18 A-0177-15T4