MARIO PESA et al. v. ROGER MITCHELL, ESQ., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-001986-041986-04T5

MARIO PESA and SVETLANA PESA, his wife

Plaintiffs-Appellants,

v.

ROGER MITCHELL, ESQ. and

SZAFERMAN, LAKIND, BLUMSTEIN,

WATTER & BLADER, P.C.,

Defendants-Respondents,

and

LEVY, PHILLIPS & KONIGSBERG, ESQS.,

Defendants.

 

Submitted September 20, 2005 - Decided June 20, 2006

Before Judges Axelrad and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. C-5938-02.

Drazin and Warshaw, attorneys for appellants (John R. Connelly, on the brief).

Riker, Danzig, Scherer, Hyland & Perretti, attorneys for respondents (Anthony J. Sylvester, of counsel; Harold L. Kofman, on the brief).

PER CURIAM

This legal malpractice action arises from defendant law firm's representation of plaintiffs Mario and Svetlana Pesa in a medical malpractice action. Plaintiffs appeal from summary judgment in favor of defendants. We affirm.

The facts that form the basis for plaintiffs' legal malpractice claim are as follows. In 1991, plaintiff Mario Pesa developed a neck mass which was diagnosed by Dr. Sunil Shah, an otolaryngologist, as a right branchial cyst. During surgery, Dr. Shah damaged plaintiff's accessory nerve to the right shoulder muscles.

In January 1992, plaintiffs retained the law firm of Levy, Phillips and Konigsberg where the case was handled by defendant Philip Morell and who commenced a medical malpractice action against Dr. Shah. The same year, Dr. Lawrence Kaplan, a neurologist, was retained to serve as the Pesas' liability expert. Dr Kaplan opined in his report of November 11, 1992 that Dr. Shah had departed "from acceptable practice to not identify the spinal accessory nerve or its branches during an operative procedure in this area." Prior to the original trial date, representation of the Pesas was assumed by the law firm of Szaferman, Lakind where defendant Roger Mitchell was assigned as trial counsel. The trial was rescheduled until April 1997.

Following jury selection, and before openings, counsel for Dr. Shah moved in limine to disqualify Dr. Kaplan as being unqualified to opine as to whether Dr. Shah deviated from the standard of care. The trial court agreed, precluded Dr. Kaplan's testimony, and dismissed the Pesas' complaint. On appeal (A-5549-96), in an unpublished opinion in April 1998, we reversed the trial court, concluding that Dr. Kaplan did have the requisite training and experience to testify as an expert and remanded for a new trial The trial was scheduled for October 26, 1998.

In the interim, in an apparent response to the Pesas' request to consider bolstering the testimony of Dr. Kaplan with an additional doctor defendant Mitchell contacted other otolaryngologists; however, none offered an opinion that Dr. Shah deviated from the standard of ordinary care. By letter of July 30, 1998, defendant Mitchell advised the Pesas that he contacted several potential experts and made reference to a "head and neck surgeon" who wanted $10,000.00 to testify at trial. The letter also made reference to the improbability of the court allowing a new expert in the case, that the cost of reviewing medical records was "about $500.00," and that there was no way to "predict whether the potential expert will determine that the defendant Shah was guilty of medical malpractice." Defendant Mitchell, therefore, concluded not to pursue an additional expert.

Due to Dr. Lawrence Kaplan's untimely death, trial was adjourned until December 7, 1998, and defendant Mitchell was given until November 20, 1998 to name a new expert and produce a report. Defendant Mitchell contacted Dr. Kenneth Kaplan and Dr. William Kuhel, both board certified otolaryngologists, who, after reviewing the relevant medical records, were not willing to opine that Dr. Shah had deviated from the standard of care. Although not an otolaryngologist, Dr. Norman Roome, a vascular surgeon, was retained by defendant Mitchell. Dr. Roome was affiliated with Lenox Hill Hospital in New York City and had performed branchial cyst surgery, and opined in his report that Dr. Shah had deviated from the standard of ordinary care. Although Dr. Roome testified similarly at trial, the jury returned a no-cause verdict which is not being appealed. Following the adverse verdict, plaintiffs filed the legal malpractice claim and defendants moved for summary judgment, claiming that plaintiffs failed to establish a prima facie case of legal malpractice, that no rational fact-finder could find a breach of duty by defendant-attorney, and that plaintiffs failed, as a matter of law, to establish that the breach was the proximate cause of the loss.

The motion judge granted summary judgment concluding:

An attorney is required to exercise on behalf of his client the skill and ability ordinarily possessed and employed by members of the legal profession similarly situated and to use reasonable care and prudence in connection with those responsibilities.

. . . .

All that's required essentially is that the lawyer exercise sound judgment in connection with the manner in which the attorney prosecutes the case.

. . . .

The defendant called a qualified physician to render an expert opinion in this case. And that was Dr. [Roome]. And he was deemed qualified to render an opinion in this case. . . .

What is really significant for the Court is all of the exhibits and the documentations that were attached evidencing communication between Mr. Mitchell and other physicians, Otolaryngologist, or otherwise referred to as ENT's, trying to get other doctors to provide an opinion that [medical] malpractice had occurred.

. . . .

I would grant summary judgment . . . additionally on the second point relied upon by movants . . . that the plaintiffs cannot establish proximate cause . . . The plaintiffs themselves have produced no ENT who has rendered an opinion that Dr. Shah deviated from accepted standards of care.

The thrust of plaintiff's argument is that the defendants in the underlying medical malpractice action failed to retain a qualified expert witness resulting in a no-cause jury verdict. Plaintiffs contend that a reasonable jury could conclude that defendants should have retained the "$10,000.00" expert pursuant to their instructions, and that failing to retain an expert in head and neck surgery increased the risk that they would lose the medical malpractice case at trial.

Plaintiffs, relying on Albee Assocs. v. Orloff, Lowenbach, Stufelman and Siegel, 317 N.J. Super. 211, 222 (App. Div.), certif. denied, 161 N.J. 147 (1999), argued before the motion judge and, on appeal, that while generally the burden is on the plaintiff to show by a preponderance of the evidence that damages were the result of the defendant's negligence, the court may shift that burden. Plaintiff additionally argued by analogy that here, as in medical malpractice cases involving a claim of lost chance of survival, the court can presume that an expert in the relevant field would have increased plaintiffs' chances of winning at trial, and, therefore, shift the burden to the defendant to prove otherwise.

Legal-malpractice suits are grounded in the tort of negligence. The elements of a cause of action for legal malpractice are (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. At the most fundamental level, the legal-malpractice action provides a remedy for negligent professional performance.

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

The first and most basic concept "buried" within proximate cause is that of causation in fact. Cause in fact is sometimes referred to as "but for" causation. . . . The simplest understanding of cause in fact in attorney malpractice cases arises from the case-within-a-case concept. For example, if a lawyer misses a statute of limitations and a complaint is dismissed for that reason, a plaintiff must still establish that had the action been timely filed it would have resulted in a favorable recovery.

[Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996) (citations omitted).]

We are convinced that here the appropriate procedural approach is a suit within a suit, having considered that

plaintiff was a . . . plaintiff in the original underlying action, the professional mishandling of which gives rise to the malpractice suit. In such cases, there well might be a parallel between the two actions as to the identity of witnesses and the nature of the evidence so that a later "suit within a suit" would not be inconvenient or difficult.

[Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 343 (1980).]

In Lieberman, the Court identified "extraordinary factors" which simply are not present here.

The plaintiff there proceeded against dual defendants on different theories; one was a malpractice claim against an attorney, and the other was a breach of contract claim against an insurer. Additionally, there was a reversal of roles in which the plaintiff in the malpractice action was a defendant in the underlying negligence action so that a "suit within a suit" framework would be "awkward and impracticable" and "could well skew the proofs." These factors are not present here. The only claim is one of professional negligence. Additionally, we have a traditional "plaintiff-plaintiff" paradigm . . . .

[Jerista v. Murray, 367 N.J. Super. 292, 303 (App. Div. 2004), rev'd, remanded by 185 N.J. 175 (2005) (citations omitted) (quoting Lieberman, supra, 84 N.J. at 343).]

We are convinced that the facts of this case do not bespeak negligence. See Jerista, supra, 185 N.J. at 192. The plaintiffs have advanced no justification to shift the burden or to relieve them from proving a "case within a case" in order to sustain the malpractice claim. The motion judge accurately observed that plaintiffs produced no otolaryngologist who had rendered an opinion the Dr. Shah deviated from accepted standards of care.

In deciding a motion for summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This court's standard of review mirrors that of the trial court; whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997); McClelland v. Tucker, 273 N.J. Super. 410, 415 (App. Div. 1994).

We are convinced that the motion judge properly applied the criteria for summary judgment as set forth in Brill, correctly concluding there was no issue of material fact that defendants breached the duty of care owed to plaintiffs in this legal malpractice case.

Affirm.

 

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A-001986-04T5

June 20, 2006