YVONNE BRAIME v. FREDERICK E. POPOVITCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3077-07T23077-07T2

YVONNE BRAIME,

Plaintiff-Respondent/

Cross-Appellant,

v.

FREDERICK E. POPOVITCH,

An Attorney at Law of the

State of New Jersey, and

POPOVITCH & POPOVITCH,

LLC,

Defendants-Appellants/

Cross-Respondents.

___________________________________________________________

 

Argued March 24, 2009 - Decided

Before Judges Skillman, Graves and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L-1968-04.

Frederick J. Klein argued the cause for

appellants/cross-respondents.

Kenneth J. Fost argued the cause for respondent/

cross-appellant.

PER CURIAM

In this legal malpractice action, defendant Frederick E. Popovitch and his law firm, Popovitch & Popovitch, LLC, appeal from an order of the Law Division dated January 18, 2008, denying their motion for reconsideration of an amended judgment in favor of their former client, plaintiff Yvonne Braime, in the sum of $359,035.37. Defendants also challenge several earlier trial court orders. The amended judgment, which was entered following a proof hearing, included an award of damages in the amount of $275,000, plus prejudgment interest of $31,453.20, and counsel fees and costs totaling $52,582.17. We affirm.

The facts are relatively straightforward. Plaintiff, who was born in 1968, sustained two work-related injuries to her left knee in 1993 and injured her right shoulder while at work in 1994. After Dr. Steven Nahmer operated on plaintiff's left knee, he referred her to Dr. Toufic Boucherit, an anesthesiologist at Overlook Hospital in Summit, New Jersey.

Dr. Boucherit recommended a series of epidural injections to ease the pain in plaintiff's left knee. Between May 21 and August 27, 1996, Dr. Boucherit administered four epidural nerve blocks, which relieved some of plaintiff's pain. However, after the fifth and final injection, which took place under general anesthesia on September 19, 1996, plaintiff experienced "excruciating" pain in her back, she was unable to urinate, and later had blood in her urine. Dr. Boucherit advised plaintiff to see her gynecologist because her symptoms were not side effects of the epidural injection, and he prescribed a Duragesic patch for plaintiff's back pain.

Plaintiff continued to experience severe back pain, and she eventually spoke with defendant Frederick Popovitch (Popovitch), an attorney, regarding a potential medical malpractice claim. Popovitch referred plaintiff to Dr. Raphael Cilento, a neurologist, who prepared an expert report on August 8, 1998. After examining plaintiff and reviewing her medical records, Dr. Cilento concluded that Dr. Boucherit had damaged plaintiff's kidney during the nerve block procedure on September 19, 1996. In his initial five-page report, Dr. Cilento stated:

FORENSIC OPINION: On the basis of my evaluation of the patient and the documents concerned, it is my opinion that with a reasonable degree of medical certainty, this patient suffers from a departure from the standard of medical care in that her kidney was perforated. Also, that she had a number of epidural blocks that have not performed any useful function except to cause greater irritation and probable damage to the nerve roots.

SPECIAL NOTE: The epidural block procedure is now being classified as being not effective, and this has been published in the New England Journal of Medicine and substantiated by other reliable medical bodies, and this procedure is no longer done.

Dr. Cilento also stated that plaintiff was "totally and permanently disabled," and that the epidural injections performed by Dr. Boucherit "were the proximate cause of her problems."

In September 1998, Popovitch filed a medical malpractice action on plaintiff's behalf against Dr. Boucherit and several other defendants. According to plaintiff, Popovitch initially contacted her "on a regular basis," but after a while the "contact kind of dropped off," and he did not return her calls. On June 11, 1999, plaintiff's complaint was "dismissed without prejudice for failure to answer interrogatories"; on November 5, 1999, plaintiff's complaint was "dismissed with prejudice for continued failure to answer interrogatories"; and on December 17, 1999, plaintiff's motion for reconsideration was denied.

Popovitch did not inform plaintiff of these developments. Therefore, plaintiff was unaware that the court had dismissed her medical malpractice case until she contacted court personnel regarding the status of her case. After learning that her case had been dismissed, she made several telephone calls to Popovitch's office, but she was never able to speak with him. On January 31, 2000, Popovitch filed a notice of appeal on plaintiff's behalf, however, the appeal was dismissed for lack of prosecution.

On April 30, 2004, plaintiff filed the present action against Popovitch and his law firm, alleging legal malpractice in her underlying medical malpractice case. Defendants filed their answer to plaintiff's complaint on August 20, 2004. On February 8, 2005, the court granted plaintiff's motion to suppress defendants' answer without prejudice based upon defendants' failure to provide discovery. Plaintiff's motion was unopposed. In a subsequent order dated June 15, 2005, defendants' answer was "suppressed, with prejudice, pursuant to Rule 4:23-5(a)(2)." This motion was also unopposed.

The court denied defendants' motion to reinstate their answer and restore their case to the trial list on June 24, 2005, and entered default on July 11, 2005. On August 4, 2005, defendants filed a notice of appeal and on September 30, 2005, this court remanded the matter to the Law Division "for findings of fact and a statement of reasons in support of the court's order dated June 15, 2005." Defendants' appeal was dismissed on October 27, 2005.

On remand, the court adjourned plaintiff's motion requesting a date for a proof hearing to allow defendants' attorney to file a motion to vacate the orders entered on February 8 and June 15, 2005, and to set aside the default. Defendants' motion was heard on February 17, 2006. During that proceeding, plaintiff's attorney argued that defendants had not complied with all of plaintiff's discovery requests and defendants' attorney agreed that "Mr. Popovitch . . . did not answer interrogatories the way he should have." Consequently, defendants' motion was denied without prejudice on March 1, 2006, to "give both parties an opportunity to refine the situation." On the same day, the court scheduled a hearing for April 7, 2006, "to enter final judgment by default, pursuant to R. 4:43-2(b)."

That hearing was adjourned, however, because defendants filed another motion to vacate the suppression orders and for other relief. In a certification in support of defendants' motion, Popovitch detailed health problems he had been experiencing, including "a series of TIA's" in July and August 2002, "most probably due to an ulcerated right carotid"; surgery to repair his right carotid artery on November 4, 2002; congestive heart failure in January 2003 and triple bypass surgery on December 23, 2003; and regular dialysis commencing on March 6, 2003, on a three-day-per-week schedule until he obtained a kidney transplant on November 15, 2005. Popovitch certified he had lost "a tremendous percentage" of his working time due to his many medical problems, but he also stated that he expected "to return to work with an increase in my time" by the end of June or the beginning of July 2006.

During oral argument on June 9, 2006, plaintiff's attorney argued that defendants' motion should be denied because Popovitch's certification was "not properly documented," and Popovitch failed to establish that he was unable to provide discovery in February and June 2005, when the suppression orders were entered. Plaintiff's counsel admitted, however, that all discovery had been provided. The court granted defendants' motion because the dismissal with prejudice was entered without a hearing in violation of Rule 4:23-5(a)(2), and because Mr. Popovitch's health problems "affected what has gone on in this case." The court also ruled that plaintiff's counsel was entitled to reasonable counsel fees for his efforts "relative to this issue." Accordingly, the order entered by the court on June 9, 2006, provided that defendants' motion was granted "on the condition of payment of reasonable counsel fees connected with obtaining the dismissal with prejudice and the orders thereafter."

On August 25, 2006, the court found that plaintiff's request for a counsel fee in the amount of $18,112.50 was "not reasonable" and ordered defendants to pay plaintiff's attorney the sum of $5000 within thirty days. Although defendants did not object to the award of counsel fees, they never paid any portion of the counsel fees. Consequently, at plaintiff's request, the court scheduled a proof hearing, which was held on April 20, 2007.

Popovitch and his attorney were both present in court during the proof hearing, and defendants' attorney was allowed to cross-examine plaintiff regarding her damages and to present a closing statement. Plaintiff testified she never suffered from back pain prior to the procedure on September 19, 1996, when Dr. Boucherit inserted a needle into the left lower side of her spine. However, following that procedure she experienced "excruciating" pain in the left lower side of her back and urinary problems. In addition, plaintiff was still experiencing back pain when she testified at the proof hearing, more than ten years later. Plaintiff also introduced into evidence two reports prepared by Dr. Cilento to support her claim that she would have been successful in her underlying medical malpractice action. In his second report, Dr. Cilento reiterated that plaintiff was "totally and permanently disabled" as a result of "a departure of standards of care in connection with the administration of the sympathetic nerve blocks by Dr. Boucherit," which caused "a perforation of the kidney."

With regard to her legal malpractice claim, plaintiff testified about Popovitch's lack of communication and introduced the trial court's orders dismissing her medical malpractice complaint into evidence along with the order that dismissed her appeal for lack of prosecution. The court also considered an expert report by attorney Michael S. Bubb. Bubb concluded that Popovitch's deviations from accepted standards of care deprived plaintiff of a meritorious cause of action against Dr. Boucherit. According to Bubb, plaintiff's case probably would have settled "for somewhere between $250,000 and $500,000" and "the potential jury value of the case was in excess of one million dollars."

When Bubb's report was offered into evidence, defendants' attorney stated the report was "irrelevant." After the court asked defendants' attorney if he meant that Bubb's report was irrelevant because legal malpractice had been proven without it, counsel answered: "Yeah. And the other one is the CV . . . these are not an issue in this case." Thus, defendants did not dispute that they breached the duty of care owed to plaintiff in her medical malpractice action.

At the conclusion of the proof hearing, the court found that plaintiff was entitled to an award of damages in the amount of $275,000. In addition, the court ruled that plaintiff was entitled to prejudgment interest together with counsel fees and costs. The court's findings included the following:

There's no question in the Court's mind that the plaintiff has produced sufficient proofs to prevail on her claim of legal malpractice. It's an unfortunate, but not extraordinarily rare circumstance where for whatever reason, the attorney does not comply with discovery requests. The client is essentially left in the dark. And this is unfortunately, not the first time that I have heard of circumstance[s] where the only time that the client learns that the matter has been dismissed is when the attorney essentially has abandoned her and she takes it upon herself to go to court and discovers that the matter has been dismissed.

For all of the reasons set forth in the record, all of the evidence with regard to the notices from the Court, the dismissal of the complaint without prejudice, the opportunity to restore the abandonment of the client, the ultimate sanction in the underlying case of a dismissal with prejudice, the filing of an appeal and then the abandonment of the appeal, all show very convincingly that the defendant committed legal malpractice in his representation of Ms. Braime with regard to her underlying matter.

Defendants filed an appeal after the entry of an amended judgment in the amount of $359,035.37 and an order denying defendants' motion for reconsideration and other relief. On appeal, defendants present the following arguments:

POINT I

DEFENDANTS WERE ENTITLED TO RELIEF FROM THE ORDER REQUIRING PAYMENT OF $5,000.00 IN ATTORNEYS' FEES IN 30 DAYS TO REINSTATE THEIR PLEADINGS; THEY PROVIDED VIRTUALLY ALL THE DISCOVERY BEFORE THE COMPLAINT WAS FILED, AND IMPOSITION OF THE SANCTION WAS TANTAMOUNT TO SUPPRESSING THEIR ANSWER WITH PREJUDICE.

POINT II

AT THE PROOF HEARING, THE JUDGE MISTAKENLY BELIEVED THAT THE DEFENDANTS HAD FAILED TO PROVIDE DISCOVERY WHEN IN REALITY THEY HAD MERELY FAILED TO PAY THE $5,000.00 "SANCTION"; THE COURT ABUSED ITS DISCRETION IN UNFAIRLY LIMITING THE DEFENDANTS' PARTICIPATION AT SAID PROOF HEARING.

POINT III

EVEN IF THE PROOF HEARING HAD BEEN PROPERLY CONDUCTED, PLAINTIFF DID NOT PROVE THAT SHE WOULD HAVE RECOVERED IN BRAIME v. BOUCHERIT BUT FOR DEFENDANTS' ALLEGED LEGAL MALPRACTICE; IF ANYTHING, PLAINTIFF RAISED THE POSSIBILITY THAT HER CLAIM WAS PREEMPTED BY THE WORKERS' COMPENSATION STATUTE. (Note: One portion of this argument was only partially raised below).

A. COMPETENT EXPERT TESTIMONY -- AS OPPOSED TO AN UNSWORN NET OPINION -- WAS REQUIRED TO ESTABLISH NEGLIGENCE, CAUSATION, AND PERMANENCY.

B. WORKERS' COMPENSATION ISSUE.

We are satisfied from our review of the record that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm with only the following comments.

With respect to defendants' first point, we note that defendants did not oppose plaintiff's motion to suppress their answer without prejudice, which was granted on February 8, 2005, or plaintiff's motion to suppress their answer with prejudice, which was granted on June 15, 2005, because defendants did not fully comply with plaintiff's discovery requests until May 19, 2006. In addition, defendants' motion to restore their answer was denied without prejudice on March 1, 2005, after defendants' attorney candidly acknowledged that Popovitch "did not answer interrogatories the way he should have." Therefore, an award of counsel fees was entirely appropriate under Rule 4:23-5(a)(1). Moreover, the record reflects that the judge carefully considered the affidavit of services submitted by plaintiff's attorney, and defendants concede they "did not object to the award of counsel fees." Consequently, the trial court's decision to award reasonable counsel fees to plaintiff in the amount of $5000 was not an abuse of discretion. See Zaccardi v. Becker, 88 N.J. 245, 251 (1982) ("Routinely allowing attorneys to ignore the time limits in R. 4:23-5(a) would subvert the policy of encouraging expeditious discovery."); see also Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995) ("If the discovery rules are to be effective, courts must be prepared to impose appropriate sanctions for violations of the rules.").

In their second point, defendants claim the trial court erred by "unfairly limiting" their participation in the proof hearing. We do not agree. Defendants relinquished their right to present affirmative proofs when they failed to comply with the order dated June 9, 2006. Moreover, the scope of a defaulting defendant's participation in a proof hearing is a matter of judicial discretion. Jugan v. Pollen, 253 N.J. Super. 123, 133 (App. Div. 1992), certif. denied, 138 N.J. 271 (1994). In this case, we find no abuse of discretion by the trial court because Popovitch sent plaintiff to Dr. Cilento for the purpose of obtaining an expert report in 1998, and plaintiff subsequently relied on Dr. Cilento's reports to establish her medical malpractice claim; defendants' attorney conceded that plaintiff's expert report on legal malpractice was "irrelevant" because plaintiff had proven her case without it; defendants' attorney was permitted to cross-examine plaintiff regarding the nature and extent of her injuries; and defendants' attorney was allowed to present a closing statement at the conclusion of the proof hearing.

Defendants also claim plaintiff's proofs were insufficient to establish that she would have been successful in her medical malpractice action. However, in the context of a proof hearing a trial court is obliged to view plaintiff's proofs indulgently, and the general practice is "to require only a prima facie case." Heimbach v. Mueller, 229 N.J. Super. 17, 20 (App. Div. 1988); see Pressler, Current N.J. Court Rules, comment 2.2.2. on R. 4:43-2. In the present matter, the trial court determined there were sufficient "prima facie proofs" to establish that defendants' professional negligence prevented plaintiff from receiving a favorable recovery in the underlying medical malpractice action, and the court's findings and conclusions are fully supported by the record.

 
Affirmed.

Because these injuries occurred during the course of her employment, plaintiff filed a workers' compensation claim and testified she was awarded the sum of $30,000 in that proceeding.

In view of this disposition, there is no need to consider plaintiff's cross-appeal from the order dated June 9, 2006.

(continued)

(continued)

7

A-3077-07T2

November 6, 2009