BRIAN MCDONNELL v. HANNON & JOYCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1372-09T31372-09T3

BRIAN MCDONNELL,

Plaintiff-Appellant,

v.

HANNON & JOYCE, GREGORY JOHN

HANNON, HANNON & PALERMO, P.C.,

THOMAS J. JOYCE, ESQ., LAW

OFFICES OF THOMAS J. JOYCE,

III,

Defendants-Respondents.

 

Argued June 3, 2010 - Decided July 1, 2010

Before Judges Stern, Graves, and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6347-08.

William O. Crutchlow argued the cause for appellant (Eichen, Crutchlow & McElroy, LLP, attorneys; Thomas Paciorkowski, on the brief).

Marshall D. Bilder argued the cause for respondents (Sterns & Weinroth, attorneys; Mr. Bilder, of counsel and on the brief; Jonathan H. Katz, on the brief).

PER CURIAM

Plaintiff Brian McDonnell appeals from the dismissal of his legal malpractice action bottomed upon his attorneys' alleged failure to file an action within the prescribed three year statute of limitations of the Federal Employers Liability Act (FELA), 45 U.S.C.A. 51, 56; see Polizzi v. N.J. Transit Rail Operations, Inc., 364 N.J. Super. 323, 328 (App. Div. 2003) in the context of defendants' motion for summary judgment. We affirm.

I.

Because this appeal arises from the grant of a motion for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff[,]" the non-moving party. Strawn v. Canuso, 140 N.J. 43, 48 (1995); see also Kress v. La Villa, 335 N.J. Super. 400, 410 (App. Div. 2000), certif. denied, 168 N.J. 289 (2001). In November 2001, plaintiff retained defendants to pursue remedies against his employer, New Jersey Transit Rail Operations, Inc. (NJT), for personal injuries resulting from allegedly dangerous work-related conditions. Three years later, in November 2004, and again in December 2004, separate law suits were filed on plaintiff's behalf by defendants Hannon & Joyce and Thomas Joyce III, Esq. in the Essex vicinage, pursuant to the FELA.

The first filed action (Docket No. L-9255-04) sought remedies for plaintiff's putative "occupational ulnar nerve entrapment on the right" (the elbow claim). The second action (Docket No. L-9786-04) was filed three weeks later and sought remedies in two counts: the first count related to a "trauma injury" to plaintiff's back (the acute back claim), alleged to have occurred while on the job in Hoboken "[i]n or about January 2002" (the trap door incident); the second count involved "repetitive occupational trauma to [plaintiff's] back" (the occupational back claim) which was asserted as having occurred progressively from 1984 to the present.

The two matters came to be transferred to the Hudson vicinage, where NJT was located. They were assigned new docket numbers and then case managed for several years. Shortly before the change of venue in March 2006, plaintiff jettisoned defendants as his attorneys and obtained the services of John H. Sanders, Esq. (Sanders) of Eichen, Levinson & Crutchlow, LLP (Eichen Levinson) to represent him instead. Substitutions of attorney were filed, resulting in Sanders taking over the prosecution of the FELA matters from defendants. Under the new counsel's stewardship, discovery was exchanged, a liability expert report on behalf of plaintiff was produced, and dispositive motions were defended. Thus, the duration of defendants' professional relationship with plaintiff was slightly more than four years, with just over one year consisting of litigation. Sanders represented plaintiff in the FELA matter for slightly less than two years but was the primary attorney responsible for all substantive decisions relating to the litigation from the time he filed the substitution of attorney.

One of those litigational decisions made by Sanders was the retention of plaintiff's liability expert, JW Rufolo and Associates, Inc. An expert report (the Rufolo Report) was prepared by Joseph Rufolo entitled "Case Analysis" who limited its scope to a "causal analysis of Brian McDonnell's injury to determine corporate responsibility." The injuries addressed by the Rufolo Report were limited to plaintiff's "severe lower back injuries." In its analysis of causality, the Rufolo Report employed phrases such as "Mr. McDonnell was repeatedly exposed to recurring lower back strain;" "[t]he constant back injuries;" and "repetitive trauma" to describe plaintiff's working conditions and resultant effect on his back. In addition, the opinion stated that "[a]s a result of his work activities, Mr. McDonnell suffered from chronic trauma to his lower back," culminating in a "permanent injury" when "he sustained an acute injury to his lower back while lifting a trap door at his work site" in "January of 2002." The Rufolo Report did not contain a specific analysis of NJT's negligence related to the trap door incident and treated it instead as an ordinary work event. Indeed, by any fair reading of the Rufolo Report, it simply expressed the view that the harm to plaintiff's back was incurred because "[h]e worked over a long period of time in an unhealthy labor environment with repeated exposure." Plaintiff did not submit an expert opinion related to his elbow claim.

Around the end of December 2007, NJT filed a motion for partial summary judgment, seeking to dismiss only the elbow claim and the occupational back claim, not plaintiff's acute back claim. Essentially, NJT sought to dismiss the entire complaint that presented the elbow claim, and only count two of the complaint that asserted the dual back injuries.

NJT's legal theory in support of its motion to dismiss the elbow claim focused on the lack of a expert opinion to support a causal connection between NJT's alleged negligence and the elbow harm supposedly suffered by plaintiff. NJT also characterized the contents of the Rufolo Report as a mere "net opinion." It argued that because the elbow claim involved "a cumulative trauma injury, under the FELA," plaintiff was required to produce for the jury "an expert on ergonomics to evaluate whether [NJT] provided a reasonably safe place to work in 1983 and thereafter." NJT argued that plaintiff's expert was neither an ergonomics expert, nor did it opine on "plaintiff's specific job assignments and cannot conclude whether those assignments presented risk factors to plaintiff." NJT also pointed out that the Rufolo Report did not directly discuss plaintiff's elbow condition, and contended that the submission of such a vague claim to a jury would invite speculation and conjecture.

NJT also moved to dismiss the occupational back claim on the ground of untimeliness, and to bar the presentation of evidence prior to three years before the filing date of the complaint. NJT argued that litigational discovery revealed that plaintiff first learned of his back condition "the aches and pains [and] 'tightness in his lower back, and a pain down his left leg'" in the late 1980s. In light of FELA's three-year statute of limitations, NJT argued that the occupational back claim "mandate[d] a filing of suit in the early 1990s." Since the complaint was not filed until December 2004, NJT argued alternatively that either (1) all of the occupational back claims should be barred, or (2) plaintiff's recovery for an occupational back claim would be limited to "proved damages that occurred in the three years preceding the filing of the [c]omplaint."

Sanders subsequently responded to the motion in an unconventional fashion. First, his letter brief noted that "[t]here is no medical evidence in this case of any long term occupational injury," essentially conceding that the Rufolo Report's attempt to prove the occupational back claim as pled in the second count was insufficient. Counsel then mounted an unenthusiastic defense on the elbow claim motion by arguing in the letter brief that despite the fact that no ergonomics expert opinion was presented, a jury could nevertheless resolve the causation issue based upon the opinion of one of plaintiff's regular treating physicians. Lastly, and most unexpectedly, he provided a certification from his client, which admitted "[i]t has come to my attention that medical records and reports submitted in this case on my behalf indicate an accident date of 2002. This is not correct, as this accident occurred in December 2000 or January 2001."

Plaintiff's certification also avowed, for no apparent reason, "[i]n late 2001, I contacted my prior attorney and told him about the accident that occurred in December 2000 or January 2001 and the injury to my lower back." Plaintiff did not mention the date he had told Sanders of the newly-remembered date of the accident; nor did he try to explain why his expert witness Joseph Rufolo referred to January 2002 as the date of the happening of the accident; nor why a physician identified in his answers to interrogatories as a potential expert, Dr. Ari Ben-Yishay, M.D., stated in a letter dated November 12, 2002, that "[Brian McDonnell] reports injuring himself in January of 2002 when he lifted a trap door."

Taken aback, but presumably delighted, NJT extemporaneously pressed for a dismissal of all of plaintiff's back claims, even though a motion for summary judgment relating to the acute back claim had not yet been filed. Presumably, until plaintiff presented the self-defeating certification, NJT was satisfied after reviewing the discovery materials that the trap door incident had occurred in January 2002, within the three year look-back period of the FELA statute of limitations.

During oral argument of NJT's motion, plaintiff's counsel conceded the supposed error in the date of the trap door incident. He told the motion judge, "[i]n this case plaintiff would be unable to [prove to the jury that he filed the complaint within three years of the accident] because of the fact that the complaint was filed in December of 2004 and the accident happened in January of 2001." In a signal exchange between plaintiff's counsel and the motion judge, the attorney essentially pleaded no contest to a statute of limitations defense that had not even been raised by the defense:

THE COURT: Well, is there any defense to the statute of limitations as to count one [containing the acute back claim] that in fact the complaint was filed after the statute of limitations expired, sir?

MR. SANDERS: There is not a defense, Your Honor, but normally in a normal tort case the statute of limitations is an affirmative defense the defendant has to raise and they have to prove [to] the jury that or prove to a judge as a matter of law that the plaintiff doesn't meet its obligations under the statute of limitations. But in a FELA case it's the plaintiff's obligation to prove that he filed within the three-year statute of limitations, so it's a little bit different.

But in this case where there's a motion to bar the plaintiff from presenting evidence of an accident that occurred before the three-year statute of limitations, which is currently before the Court today, there's really no difference between that and the motion to dismiss. So the plaintiff has shown to the Court that this accident did in fact happen outside the statute of limitations issue, the statute of limitations for this for a FELA claim.

Upon hearing this surrender, the motion judge spontaneously held, "based upon plaintiff's presented evidence that the accident in question in count one took place in either December of 2000 or January of 2001, and given the fact that the complaint was not filed until December of 2004, the Court is dismissing that count with prejudice at this time." As for the elbow claim, the motion judge agreed with NJT's position and entered an order on February 14, 2008, granting "full summary judgment," which ultimately dismissed both of plaintiff's complaints and all of his claims with prejudice.

Plaintiff did not pursue an appeal against NJT, but rather

seven months later commenced this legal malpractice action against the original FELA attorneys. In filing the legal malpractice action, plaintiff continued to be represented by Sanders and Eichen Levinson. Several months into the new litigation, defense counsel wrote plaintiff's attorney proclaiming the lack of culpability of defendants and instead placing the blame for plaintiff's loss to NJT upon "Sanders and Eichen Levinson."

Following a flurry of discovery motions, and before the expiration of the discovery period, defendants moved for summary judgment to dismiss the legal malpractice complaint in its entirety. Defendants argued without conceding the statute of limitations bar that because plaintiff could not establish NJT's negligence even if the FELA complaint had been timely filed, the legal malpractice action was therefore without merit. Moreover, defendants asserted that plaintiff's astounding voluntary acknowledgement that there was a latent statute of limitations defense was a pretext to obscure Sanders's mishandling of the FELA action in order to maneuver a switch of the target for recovery from NJT to defendants' potential deep pockets. Lastly, defendants argued that because plaintiff's answers to interrogatories in the legal malpractice action relied upon the Rufolo Report without any reservation, it constituted an adoptive admission of the 2002 date for the trap door incident, rendering defendant's alleged negligence moot.

Plaintiff resisted defendants' arguments by pointing out to the motion judge that the application was premature, given that the discovery period had not yet expired, and the time to exchange expert reports had not arrived. Thus, any potentially authoritative solutions to the thorny proximate cause questions could not fairly be adduced in the face of incomplete discovery. Plaintiff also argued that plaintiff did not adopt the Rufolo Report as an admission, but reserved the right to amend said report, and could later supplement it with an additional expert all still within the remaining discovery period.

The motion judge was persuaded by defendants' arguments. He concisely concluded "that the defendants['] actions do not qualify as legal malpractice." He based this determination upon his succinct finding that "there's no indication that the defendants had any knowledge with regard to the underlying claim with regard to this trap door incident that had happened earlier than 2002." The motion judge also cursorily mentioned, without further explanation, that "there's an issue with regard to the manner in which Mr. Sanders may have handled the underlying case."

When pressed by plaintiff's attorney for clarification, the motion judge stated that plaintiff was relegated to the conclusions of his FELA expert if plaintiff had to try a case within a case in the legal malpractice action, stating "[y]ou have to live with the record on the underlying case that . . . the case as presented deviated from the accepted standard of legal representation to which plaintiff was otherwise entitled." The court "saw this as an occupational case that was dismissed" and "you may have talked about the trap door but I took it to go with the occupational case." Accordingly, we discern from these remarks that the motion judge considered plaintiff's epiphany concerning the date of the trap door incident as a sleight of hand that effectively immunized defendants from plaintiff's claim of professional breach of duty.

In an order dated November 4, 2009, the motion judge dismissed the legal malpractice action with prejudice. This appeal followed.

II.

"In reviewing a grant of summary judgment, we must accept as true [a] plaintiff[']s account that defendants['] professional derelictions led to the dismissal of [his] personal injury lawsuit." Jerista v. Murray, 185 N.J. 175, 189 (2005). Appeals from grants of summary judgment require that we make use of the same standard employed by the motion court, which grants summary judgment only if the record shows that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see Aronberg v. Tolbert, ___ N.J. Super ___, ___ (2010) (slip op. at 6); Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009). Issues of law are reviewed by this court de novo, without deference to the trial court's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). We may affirm the motion court even if we disagree with its rationale, so long as there exists a valid and independent basis for affirmance that is readily apparent from the record. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); Osoria v. W.N.Y. Rent Control Bd., 410 N.J. Super. 437, 439 (App. Div. 2009).

An exception to the foregoing framework provides that "[g]enerally, summary judgment is inappropriate prior to the completion of discovery." Wellington v. Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div.), certif. denied, 177 N.J. 493 (2003). A party opposing summary judgment on that basis is nonetheless obligated to establish "'with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action.'" Ibid. (quoting Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)). Additionally, the party opposing summary judgment "must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007).

We depart from the motion court in two respects. First, the motion record contrary to the judge's finding that the defendants did not have any knowledge with regard to the earlier happening of the trap door incident supports the clear inference (as required by familiar Brill principles) that defendants were in fact aware of the earlier date of the trap door incident because plaintiff had directly told them so. Plaintiff submitted an affidavit as part of the motion record in which he stated "[i]n late 2001, I contacted my prior attorney and told him about the accident that occurred in December 2000 or January 2001 and the injury to my lower back." Even in light of defendants' contrary certification regarding their lack of knowledge of a specific traumatic back injury occurring before 2002, the motion court was obliged to accept plaintiff's version of events for summary judgment purposes. See Senna v. Florimont, 196 N.J. 469, 475 n.1 (2008).

Second, we decline to adopt the motion court's constrained view that in a legal malpractice action that must be based upon a trial within a trial, e.g. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004), a plaintiff is limited in the presentation of his or her expert proofs to the constrained universe created in the underlying case. The logical consequence of such a ruling would disenfranchise a plaintiff who claimed that an attorney's malpractice involved (1) a failure to obtain an appropriate expert, (2) the retention of an unqualified expert, or (3) the presentation of an expert's net opinion. We do not run the evidence to be used in a legal malpractice action through the filter of the allegedly negligent strategic choices made by the litigator. See Jerista, supra, 185 N.J. at 193 (holding that even without an expert opinion, plaintiff is entitled to rely upon other relevant evidence and legal principles such as res ipsa loquitor to prove liability).

Nevertheless, under the unique and extraordinary circumstances of this case, which include (1) the unanticipated conduct of plaintiff's counsel conceding the bar of FELA's statute of limitations at the time of the underlying motion for summary judgment and (2) the adoptive admission of the Rufolo Report in the legal malpractice action, we conclude that plaintiff is, as a matter of law, unable to establish a necessary element required to pursue a legal malpractice action.

A plaintiff in a legal malpractice suit must show: "'(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, supra, 185 N.J. at 190-91 (2005) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)). It is plaintiff's inability to demonstrate the third prong of proximate causation that requires our affirmance of the judgment of the Law Division.

At the end of the FELA litigation's pretrial life cycle there were ostensibly three claims still pending on behalf of plaintiff: (1) the elbow claim, (2) the acute back claim, and (3) the occupational back claim. Defendants' role in the litigation was marginal; they merely cast off the anchor to commence the action. On the other hand, it was attorney Sanders who piloted the case into the shoals of dismissal. He worked with plaintiff to answer discovery requests, obtained the Rufolo Report as plaintiff's sole liability opinion, and decided (presumably in consultation with his client) on the stratagems to be deployed in order to resist NJT's motion for partial summary judgment, before hopefully proceeding to trial. By essentially conceding that all of plaintiff's back claims were without merit, plaintiff cannot resurrect his moribund theory of liability engineered by Sanders and pass it off as a professional negligence claim against his former attorneys. The Rufolo Report, even when viewed indulgently in plaintiff's favor, operated to eliminate any viable claim for an acute back injury, and instead promoted only a claim against NJT for a cumulative occupational back injury. Plaintiff's use through the expert selected by Sanders, not defendants of an opinion that negated an acute back injury cannot fairly be ascribed to defendants' conduct. Even if they failed to file the FELA claim in a timely fashion, plaintiff relinquished the acute back claim on his own, without regard to the statute of limitations.

Furthermore, we are confounded why, if plaintiff so clearly indicated in his June 2006 deposition that the trap door event occurred in 2000 or 2001, plaintiff's counsel did not immediately request a voluntary dismissal of count one the acute back claim pursuant to Rule 4:37-1(a). By keeping that count alive hoping against hope to resolve the matter without the necessity of a trial plaintiff essentially held a trump card that could be played against his former attorney if his bluff with NJT failed. We cannot countenance such tactics even if done in aid of zealous advocacy, and would readily apply principles of estoppel to ensure their downfall. See Sugarman v. Township of Teaneck, 272 N.J. Super. 162, 171 (App. Div.), certif. denied, 137 N.J. 310 (1994).

Even if we impute too much creativity and imagination to plaintiff and his attorney, it is more likely (as revealed by the FELA motion record) that a state of confusion was fostered by plaintiff in order to achieve a litigational advantage. Up until the fateful moment when plaintiff submitted his certification indicating the earlier date for the trap door incident, all of the record evidence including parts of plaintiff's deposition testimony pointed to a January 2002 accrual date. The idea that NJT's lawyer should have been astute enough following plaintiff's deposition to know of an Achilles heel in count one is asking too much. Indeed, although plaintiff did testify at the deposition that he injured himself in late 2000 or early 2001, and later certified that it was in either December 2000 or January 2001, he also stated that he went to Dr. Thomas Hennessey, D.C. "the next day; if not, soon after" the trap door incident. Of course, the earliest evidence of plaintiff actually seeing Dr. Hennessey assuming that Dr. Hennessey's records are accurate was February 12, 2001, clearly not the next day after the supposed occurrence of the trap door incident. There were ample and understandable cross-currents concerning the actual accrual date of the acute back injury that rendered plaintiff's later concession suspect. Thus, even if plaintiff acted innocently and in good faith, his acute back claim was abandoned by strategic litigational decisions as well as the contents of the Rufolo Report, not because of an alleged defalcation of defendants in the representation of plaintiff.

Fortifying our conclusion that plaintiff is unable to demonstrate proximate causation for any harm by defendants, is plaintiff's continued reliance to the point of an adoptive admission of the Rufolo Report in the legal malpractice case. An expert's report can be admissible as an adoptive admission of a party pursuant to N.J.R.E. 803(b)(2) in some instances when the party provides the report in response to specific interrogatories and thus adopts the contents as its admission. Ratner v. General Motors Corp., 241 N.J. Super. 197, 201 n.2 (App. Div. 1990); Mehalick v. Schwartz, 223 N.J. Super. 259, 262 (Law Div. 1987); cf. Corcoran v. Sears Roebuck and Co., 312 N.J. Super. 117, 126 (App. Div. 1998).

Plaintiff provided the following relating to defendants' Interrogatory #45:

45. Describe in detail how and why New Jersey Transit [was] responsible for the accident(s) and/or your injury/injuries in the underlying matters?

See report attached from JW Ruffolo (sic). Plaintiff reserves [the] right to amend through ongoing discovery in accordance with the Rules of Court.

Unlike his answers to interrogatories in the FELA matter, plaintiff did not globally eschew the adoptive admission doctrine when he answered interrogatories in the legal malpractice action. Indeed, in the specific response to Interrogatory #15 relating to the nature and extent of his injuries in the legal malpractice interrogatories, plaintiff specifically included the following caveat:

By way of further description and explanation are copies of the documents listed below (Same is furnished with the specific understanding that it does not constitute an adoptive admission as referenced in Sallo v. Sabatino, 146 N.J. Super. 416 (App. Div. 1976), [certif. denied,] 75 N.J. 24 (1977) and Skibinski v. Smith, 206 N.J. Super. 349 (App. Div. 1985).

This admonition does not appear as part of plaintiff's answer to Interrogatory #45. Plainly, by not conditioning his response to Interrogatory #45 with such limiting language, he cannot now avoid the effects of an adoptive admission.

Thus, when so treated, it is clear that even if plaintiff were permitted to obtain supplemental expert opinions, he could not create a genuine issue of material fact in dispute regarding the lack of proximate cause vis- -vis defendants. The appropriateness of dismissing all claims against them is readily apparent to us.

We have considered plaintiff's remaining arguments, including his point relating to the non-expiration of the discovery period and find that they are without merit and do not warrant further discussion in this written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Eichen Levinson appears to be the predecessor to plaintiff's current attorneys, Eichen Crutchlow & McElroy, LLP.

The motion called itself a motion for summary judgment, but it did not seek a dispositive result as to all issues contained in the two complaints.

Upon learning of plaintiff's position in the midst of oral argument, the motion judge immediately granted NJT's motion for summary judgment on the second count stating, "based upon the information that . . . has just [been] put on the record . . . the Court finds that there is an absence of medical evidence that can sustain count number two [and] the Court is going to grant the dismissal of the count with prejudice and that disposes of that aspect of our motions."

Plaintiff claimed in a deposition conducted in June 2006, that he was injured in 2001, but was out of work for nine months in 2002.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

(continued)

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