FREDERICK STEINBERG, D.O. v. DONALD J. GRASSO, ESQ.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2508-05T12508-05T1

FREDERICK STEINBERG, D.O.,

Plaintiff-Appellant,

v.

DONALD J. GRASSO, ESQ.,

Defendant-Respondent,

and

MEDICAL INTER-INSURANCE

EXCHANGE OF NEW JERSEY,

Defendant.

 
__________________________

Argued February 5, 2007 - Decided March 9, 2007

 

Before Judges Lintner and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3327-03.

Saul J. Steinberg argued the cause for appellant (Sufrin Zucker Steinberg Sonstein & Wixted, attorneys; Mr. Steinberg, on the

brief).

Michael S. Saltzman argued the cause for respondent (Fineman Krekstein & Harris, attorneys; Mr. Saltzman and Hema Patel Mehta, on the brief).

PER CURIAM

Plaintiff Fredrick Steinberg, D.O. (Steinberg), appeals from a summary judgment dismissing his complaint against defendant Donald Grasso, Esquire (Grasso), which alleged legal malpractice and fraud in connection with Grasso's representation of Steinberg in a medical malpractice complaint against Steinberg. We affirm in part and reverse in part.

I.

These are the relevant facts, viewed in a light most favorable to Steinberg with all inferences drawn in his favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Steinberg, a specialist in obstetrics, was sued by one of his patients for alleged medical malpractice related to his delivery of a child. The delivery was impeded by shoulder dystocia and the patient alleged that Steinberg was negligent in treating the condition, causing the child to develop Erb's palsy. Grasso was selected by Steinberg's insurance carrier, defendant Medical Inter-Insurance Exchange of New Jersey (MIIX), to defend Steinberg. Steinberg told Grasso throughout the medical malpractice action that he had not been negligent and that he did not wish to settle the underlying claim.

During discovery in the medical malpractice action, the plaintiff's expert testified at deposition that he could not identify specifically how Steinberg injured the child. However, based on the injuries to the child, he opined that Steinberg must have deviated from the standard of care. Discovery also revealed the existence of twenty-four color photographs taken during delivery of the child by a friend of the birth mother. Those pictures were transmitted to Grasso in June 2001. Steinberg told Grasso he believed the photographs exonerated him of any wrongdoing or negligence in delivering the child. Grasso did not provide the defense expert with the photographs of the delivery, and therefore, the defense expert did not render an opinion as to the significance, if any, of the photographs.

On December 4, 2001, Grasso wrote to MIIX to provide it with his evaluation of the underlying claim. Grasso provided an overview of the underlying action, including the child's injuries and his impressions regarding the likely trial witnesses. Grasso informed MIIX that:

The insured [Steinberg] is a pleasant direct and knowledgeable man who speaks strongly and definitively. Unfortunately, he does not make a great overall appearance and looks somewhat sloppy at times. We will hope to control this at the time of trial and in the overall I will hope that he will make a good witness in his own behalf. . . .

. . . .

This is clearly a case in which a child has suffered an injury which the plaintiffs are claiming does not occur without the use of excessive force or as we are claiming that there was no excessive force and that these injuries sometimes do occur despite the best efforts of the physician. A jury will have good experts on both sides and they will probably balance each other out. Much will therefore depend on the jury's impressions of Dr. Steinberg. This will be counterbalanced by the sympathy which the jury will feel for this 5 year old child with lifelong limitations on his ability to use his non-dominant arm. Since neither side has anything to sway the medical issue to either side, I would estimate the chances of a jury verdict on liability in favor of Dr. Steinberg to be about 50%. If liability is found, proximate cause will not be in issue.

I would estimate the jury verdict potential in this case to be in the range of $1.2 to $1.5 million dollars. I would estimate settlement value to be in the range of $350,000.00 to $400,000.00[.] I would recommend that it be considered. However, I do not believe that Dr. Steinberg wished to settle this case at this time and accordingly we may have to see how things go during trial to influence him.

The medical malpractice case was scheduled for trial on February 4, 2002. On January 29, 2002, Grasso met with Steinberg at Steinberg's home to prepare for trial. Grasso discussed the possibility of settling the underlying action within Steinberg's coverage limits, and presented Steinberg with a "Consent to Settle" form. According to Steinberg, Grasso discussed settling the underlying action using a high-low settlement. Grasso denies that a high-low settlement was the chosen method of settlement, however he admits that he advised Steinberg that if settlement was accomplished on a high-low basis and Steinberg was exonerated at trial, Steinberg would not be reported to the National Practitioner Data Bank.

On January 29, 2002, Steinberg signed a "CONSENT TO SETTLE" agreement authorizing his insurance carrier, MIIX,

TO SETTLE THE CLAIM OF [PLAINTIFF] . . . ON SUCH TERMS AS [MIIX] DEEMS TO BE APPROPRIATE.

IN SO CONSENTING, I AM IN NO WAY ADMITTING LIABILITY, BUT I AM AUTHORIZING [MIIX] TO SETTLE THIS CLAIM ON MY BEHALF.

I UNDERSTAND NEW JERSEY'S PROFESSIONAL MEDICAL LEGAL ACT OF 1989 AND THE HEALTH CARE QUALITY IMPROVEMENT ACT OF 1986 REQUIRE THE MIIX INSURANCE COMPANY TO REPORT ALL SETTLEMENTS TO THE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY AND THE NATIONAL PRACTITIONER DATA BANK. I FURTHER UNDERSTAND THAT ANY SETTLEMENT ON MY BEHALF MAY AFFECT MY ELIGIBILITY FOR THE MERIT RATING PLAN AND FUTURE INSURABILITY.

On February 5, 2002, Grasso, on behalf of Steinberg, settled the underlying action for a sum certain. As a result of the settlement, MIIX filed a medical malpractice payment report with the National Practitioner Data Bank.

On June 6, 2003, Steinberg filed a complaint against Grasso alleging legal malpractice and fraud. In Count One Steinberg alleged that Grasso was negligent in (1) failing to provide the defense expert in the underlying action with the photographs taken during delivery of the child, (2) failing to seek an expert report analyzing the significance of the photographs to the underlying claim, (3) failing to "adequately explain . . . the significance of the Consent to Settle form," and (4) in "[s]uggesting to Steinberg to settle the [underlying] claim based on a high/low arrangement without advising Steinberg that Grasso and/or MIIX intended to settle the case outright if possible."

In Count Two of the complaint, Steinberg alleged that Grasso engaged in fraud and misrepresentation by misrepresenting that the underlying action would be settled on a high-low basis and by misrepresenting that Grasso possessed the ability to try the underlying action on its merits. Steinberg alleged that he would not have given consent to settle had he known the underlying action was not going to be settled on a high-low basis.

Steinberg alleged that Grasso's actions caused damages including (1) damage to his reputation as a result of being reported to the National Practitioner Data Bank, (2) significant interference with his ability to obtain insurance coverage, (3) significant limitations on his ability to form professional associations, and (4) emotional distress and anguish.

On September 26, 2003, Grasso filed an answer denying Steinberg's substantive allegations. On October 8, 2003, Grasso filed an amended answer, again denying Steinberg's substantive allegations. The parties participated in discovery thereafter.

Grasso moved for summary judgment on July 25, 2005. He asserted that Steinberg had not served an expert report on liability, and argued that Steinberg could not prove his legal malpractice claim without an expert. He also argued that Steinberg had not produced any documentary evidence of identifiable damages nor had he served an expert report on damages. As a consequence, Grasso urged that the complaint should be dismissed. Grasso submitted, among other things, three pages of testimony from Steinberg's deposition in which Steinberg admitted that he did not undergo formal treatment for the emotional distress and anguish which he claimed to have suffered as a result of Grasso's actions, nor did he miss any work as a result of that emotional distress.

Steinberg opposed Grasso's motion, asserting that the parties had agreed to extend discovery and to provide expert reports on liability and damages at a scheduled August 22, 2005, case management conference. Steinberg argued that in any event an expert was not required to establish a prima facie case of legal malpractice based on Grasso's misrepresentations respecting the settlement of the medical malpractice action. Steinberg also argued that expert testimony respecting damages was not required to prove the emotional distress component of his damages claim.

In his reply, Grasso argued that Steinberg had conceded that he had no damages but emotional distress. He then asserted that Steinberg could not sustain a claim for intentional infliction of emotional distress under Buckley v. Trenton Sav. Fund Soc., 111 N.J. 355 (1988). Grasso did acknowledge receiving an expert report on Steinberg's behalf, but asked the court to disregard it as untimely.

The motion judge, following oral argument, granted Grasso's motion for summary judgment dismissing Steinberg's claims against Grasso. In doing so, the judge held:

The [c]ourt has had an opportunity . . . to review the moving papers and hear arguments of counsel. The [c]ourt is also aware of Rule 4:46-2, the motion for summary judgment as well as the guidelines that follow pursuant to Brill v. Guardian Life Insurance Company of America, [ 142 N.J. 520, 523 (1995),] but the Court is clearly aware of . . . Buckley [supra, 111 N.J. at 544].

And the [c]ourt reviewing the case as well as the documents provided by counsel, I'm satisfied that consistent with Buckley v. Trenton the motion is granted. There's nothing that the [c]ourt has reviewed which would suggest that the alleged damage to the plaintiff is within the scope of Buckley v. Trenton.

There has to be some demonstration and there has been no demonstration whatsoever with respect to the extreme or outrageous character of the injury that may have been sustained by the plaintiff. I just don't see how this case would escape the Buckley v. Trenton ruling by the Supreme Court. The motion is granted.

On September 29, 2005, Steinberg filed a motion for reconsideration, which Grasso opposed. Steinberg certified that his claim included economic and non-economic components. First, he asserted the damage to his reputation for which he sought damages stemmed from MIIX reporting the settlement of the claim against him to the National Practitioner Data Bank, which he classified as damage to his "reputation per se." Steinberg also relied on an expert report of Mark Molz, Esq., as proof of Steinberg's damages respecting interference with his ability to maintain associations and medical malpractice insurance. Steinberg also asserted that he believed that an expert report was not needed to understand these damage claims. Additionally, Steinberg certified that he spent "hundreds of hours, if not up to one thousand" hours preparing for the medical malpractice trial, and that he should be compensated for that time because the matter was settled without his consent. As to his emotional distress, Steinberg certified that the settlement "eats at me every day" because his attorney dropped the ball.

Grasso opposed any reconsideration because the material presented by Steinberg did not satisfy the requirements of Rules 4:49-2 and 4:50-1. He argued, again, that the evidence was insufficient to require a trial.

In a supplemental certification dated November 28, 2005, Steinberg submitted certain evidence regarding malpractice insurance premiums being lower for "preferred risks" and stated that he would no longer qualify for the lowest rates available. Steinberg also certified that this matter had been "extremely stressful" and that he spent time preparing for trial which he otherwise would have spent with patients, all of which was wasted by Grasso's conduct, thereby demonstrating the damages he incurred.

Steinberg's attorney argued that the judge erred in granting the summary judgment because the Court in Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37 (1984), held that a claim of legal fraud did not require proof of compensatory damages, but rather permitted an award of nominal and punitive damages so long as the plaintiff has shown some detriment or loss. He pointed out that Steinberg's expert opined on damages with respect to insurability and future economic opportunity.

Grasso's attorney, again, represented to the court that Steinberg conceded at the time of the September 9, 2005, summary judgment motion that his only damages were emotional and those damages were barred by Buckley. He also argued that subsequent case law precluded emotional damages in a legal malpractice action unless they were severe.

On December 16, 2005, following oral argument, the lower court denied Steinberg's motion for reconsideration, finding the following:

On June the 23rd, 2003 the plaintiff filed a complaint alleging that the defendant committed legal malpractice in the course of his representation of the plaintiff . . . . Plaintiff claims that the defendant improperly settled the . . . case on behalf of the plaintiff . . . even though plaintiff had signed a consent to settle form.

Now, counsel moves this [c]ourt to reconsider the order dated September 9, 2005 wherein defendant's motion for summary judgment was granted on the basis that the facts supporting plaintiff's claim for emotional distress did not meet the . . . requisite threshold.

Plaintiff's personal certification urged the [c]ourt to consider the fact that his claim includes economic as well as . . . a non-economic component. Plaintiff argues that a jury should determine whether or not his emotional distress is tangible, extreme, and pervasive enough to justify recovery.

. . . .

In this [c]ourt's opinion, plaintiff has not made any allegations that the [c]ourt's reasoning was incorrect or that the [c]ourt failed to consider controlling case law. Moreover, the [c]ourt finds that the plaintiff has not submitted new information or facts which would impact upon the [c]ourt's prior decision.

As such, the [c]ourt reviewing the moving papers as well as hearing arguments by counsel to reconsider . . . the September 9, 2005 order, . . . the motion for reconsideration is denied.

II.

On January 20, 2006, Steinberg filed a notice of appeal challenging the lower court's grant of summary judgment in favor of Grasso as well as the court's denial of his motion for reconsideration. He contends on appeal that the motion judge erred in dismissing both counts of his complaint, legal negligence and legal fraud and misrepresentation. He asserts that he suffered both economic and non-economic damages, precluding a summary judgment.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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). The court must make "a determination whether there exists a 'genuine issue' of material fact." Brill, supra, 142 N.J. at 540. There are no genuine issues of material fact if "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." Ibid. "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). An appellate court employs the same standard in reviewing a trial court's summary judgment determination. Prudential Property & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

A motion for reconsideration may be made if a party believes the court erred in entering a previous order. R. 4:49-2. "The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." Ibid. "'Reconsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Moreover,

"[r]econsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . ."

[Ibid. (quoting D'Atria, supra, 242 N.J. at 401.]

III.

In an action for legal negligence, the plaintiff is required to prove three 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." McGrogan v. Till, 167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)); Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993); Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 342 (1980). Because the motion judge dismissed this cause of action for failure to prove any damages, we do not address the sufficiency of the proofs with regard to the balance of the elements.

Steinberg contends that the motion judge erred in failing to take into account as cognizable damages (1) his on-going emotional distress over the settlement; (2) the amount of time Steinberg, himself, spent preparing for trial, all of which was wasted by the settlement; (3) the damage to his reputation from the inclusion of his name in the National Practitioner Data Bank; (4) his legal fees and costs incurred in connection with the prosecution of the legal malpractice action; (5) the potential increase in malpractice premiums, which Steinberg may have to pay as a result of the settlement of the underlying case; and (6) the diminution in his ability to form future business associations. Steinberg urges that the trial court erred in relying on Buckley, supra, in finding that Grasso's emotional distress claim could not be maintained.

Because Steinberg did not include his expert's report in the appendix on appeal, we cannot evaluate the sufficiency of his fifth and sixth claims of damages. As a consequence, our analysis is limited to the first four damage claims: emotional distress damages, lost-time damages, damage to his reputation, and legal fees and costs.

Steinberg may not recover emotional distress damages in a legal malpractice case "in the absence of egregious or extraordinary circumstances." Gautam v. De Luca, 215 N.J. Super. 388, 399 (App. Div.) (holding "that damages should be generally limited to recompensing the injured party for his economic loss"), certif. denied, 109 N.J. 39 (1987). Furthermore, even in egregious or extraordinary circumstances, "in the absence of medical evidence establishing substantial bodily injury or severe and demonstrable psychiatric sequelae proximately caused by the tortfeasor's misconduct[,]" emotional distress damage awards are not permissible. Id. at 399-400. "Aggravation, annoyance and frustration, however real and justified, constitute unfortunate products of daily living. Damages for idiosyncratic psychiatric reactions should not be permitted." Id. at 400 (citing Caputzal v. The Lindsay Co., 48 N.J. 69, 76 (1966). This is consistent with Picogna v. Bd. of Educ. of Cherry Hill, 143 N.J. 391, 396-97 (1996), in which the Court held that "[t]he potential for fabricated claims justifies a requirement of enhanced proof to support an award of such damages." In a case where emotional distress damages are sought, the "'court decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved.'" Id. at 397 (citing Buckley, supra, 111 N.J. at 367).

In the context of a claim for legal malpractice seeking emotional distress damages, Gautam is dispositive. Steinberg has not presented evidence that he sought treatment for his emotional distress, nor that he suffered the type of "severe" emotional reaction that warrants recovery for emotional distress. In fact, Steinberg admitted at deposition that he had not sought treatment for his emotional distress, nor had he taken any medication regarding his distress. Moreover, Steinberg has not presented expert testimony regarding his emotional distress. Therefore, the judge did not err in concluding that Steinberg could not prove emotional distress damages proximately caused by Grasso's negligent representation.

Turning to his claim of lost-time damages, we note that Steinberg has not brought any case law to our attention that permits him to recover damages for the time he spent defending an action lost as the result of legal malpractice. Neither has our research revealed any such case. We are not inclined to permit such a recovery because the time spent defending the action was compelled by the medical malpractice suit and not by Grasso. Litigants generally are not entitled to recover their time lost in attending court or participating in litigation, Westfield Ctr. Serv., Inc. v. Cities Serv. Oil Co., 162 N.J. Super. 114, 126 (Ch. Div. 1978) aff'd, 86 N.J. 453 (1981), and we see no reason to make an exception to this rule in the case of legal malpractice claims.

Steinberg's remaining claims for damage to his reputation and for legal fees and costs resulting from the alleged legal malpractice should not have been summarily dismissed. Damage to reputation does not require proof of economic loss. Under the law of libel, damages are divided into three categories:

(1) Punitive or exemplary damages, where actual malice or recklessness is shown; (2) special damages, such as loss of business, which are recoverable only upon proof of loss of specific economic benefits; and (3) general damages which the law presumes to follow inevitably from a defamatory publication and which, therefore, are often recoverable without proof of injury.

[Bock v. Plainfield Courier-News, 45 N.J. Super. 302, 309 (App. Div. 1957).]

Where legal malpractice is alleged to have proximately resulted in damage to the client's reputation, as here, we see no reason to impose a more stringent proof requirement than is imposed by the law of libel. Thus, a client whose reputation has been damaged as a result of legal malpractice may recover general, or nominal, damages in the absence of "proof of loss of specific economic benefits." Ibid.

With respect to the legal fees and costs incurred in prosecuting the legal malpractice action, the Supreme Court in Saffer v. Willoughby, 143 N.J. 256, 272 (1996), held that "a negligent attorney is responsible for the reasonable legal expenses and attorney fees incurred by a former client in prosecuting a legal malpractice action." We have held that neither R. 4:42-9(a) nor the "American Rule" preclude such an award in a legal malpractice action. Bailey v. Pocaro & Pocaro, 305 N.J. Super. 1, 6 (App. Div. 1997). Accordingly, the motion judge erred in dismissing the legal malpractice action in its entirety.

IV.

Steinberg also contends that the motion judge erred in granting summary judgment on the fraud count because, Steinberg asserts, he "made a sufficient showing of loss or detriment upon which a jury, at the very least, could have awarded nominal, if not compensatory damages." Steinberg further contends that the trial court erred in denying his motion for reconsideration because the trial court failed to consider the holding in Nappe, supra.

Legal fraud requires demonstration of five elements: (1) a material representation by the defendant of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intent that the plaintiff rely upon it; (4) reasonable reliance by the plaintiff; and (5) resulting damage to the plaintiff. . . . [F]raud is never presumed, but must be established by clear and convincing evidence.

Weil v. Express Container Corp., 360 N.J. Super. 599, 612-13 (App. Div.) (citing Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624-25 (1981); Albright v. Burns, 206 N.J. Super. 625, 636 (App. Div. 1986)), certif. denied, 177 N.J. 574 (2003).

Summary judgment was granted only on the failure to prove resulting damage. In Nappe, the Court addressed the issues of whether a cause of action for fraud can be maintained where the plaintiff cannot prove compensatory damages and whether the plaintiff could recover punitive damages without having recovered compensatory damages. Nappe, supra, 97 N.J. at 41-42. The plaintiff in Nappe agreed to loan a developer $200,000 for construction of a model unit in a high-rise condominium building in exchange for a ten-percent interest in the projected $1.8 million return on the development. Id. at 43-44. The loan proceeds were not used to construct and furnish the model unit and its completion was brought to a halt as a result of lack of funds. Id. at 44. The plaintiff sued in fraud, but was unable to prove any loss in profits, i.e. compensatory damages, as a result of the misallocation. Ibid.

The Court first addressed whether compensatory damages were an essential element of a cause of action for legal fraud. Id. at 45. After exploring common law developments which led to the requirement of showing actual damages in a fraud action, the Court held that

the requirement of actual damage to sustain a cause of action for intentional torts no longer serves a useful purpose, at least where a victim of an intentional wrong has suffered some loss, detriment, or injury but is unable to prove that he is entitled to compensatory damages. His rights have been invaded and he should be entitled to vindication in an award of nominal damages. Indeed, it is difficult to justify permitting nominal damages in a trespass action and not in a case of a wilful and malicious intentional tort. We hold, therefore, that compensatory damages are not an essential element of an intentional tort committed wilfully and without justification when there is some loss, detriment, or injury, and that nominal damages may be awarded in such cases in the absence of compensatory damages.

[Id. at 47-48 (footnote omitted) (emphasis added).]

Here, Steinberg did not produce evidence that would allow him to recover compensatory damages, which must be proven to a reasonable degree of certainty. Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997). Grasso contends that Steinberg produced no evidence to support his assertions that his reputation has been damaged, that he has been unable to obtain insurance, or that he has been unable to form business associations as a result of his inclusion in the National Practitioner Data Bank. We disagree. If a person falsely reported in a publication that Steinberg committed malpractice in treating a patient, that accusation would constitute libel per se that would entitle Steinberg at least to general damages in the absence of proof of economic loss. Ricciardi v. Weber, 350 N.J. Super. 453, 475 (App. Div. 2002) ("[Actual damage as an] element of the slander plaintiff's prima facie case is waived if the statement is deemed slander per se, because damage to reputation is presumed to flow from such statements."), certif. denied, 175 N.J. 433 (2003); Sokolay v. Edlin, 65 N.J. Super. 112, 121 (App. Div. 1961) ("[W]here spoken language is of such a character as to make the slander actionable per se, a suit will lie without proof of special damages."). "[A] slander which ascribes to another conduct . . . incompatible with the proper conduct of his lawful . . . profession is liable for slander per se." Sokolay, supra 65 N.J. at 121-22. No different result should obtain where the damage to Steinberg's reputation grew out of a legal fraud by his attorney. We are satisfied that, if there was no malpractice, the inclusion of his name in the National Practitioner Data Bank as a proximate result of the fraud damaged his reputation and will continue to do so in the future.

The Nappe Court also addressed whether a plaintiff could recover punitive damages without having recovered compensatory damages. Id. at 48-51. The Court held that "punitive damages may be assessed in an action for an intentional tort involving egregious conduct whether or not compensatory damages are awarded, at least where some injury, loss, or detriment to the plaintiff has occurred." Id. at 51. The Court concluded that its "holding that nominal and punitive damages may be appropriately assessed in certain circumstances for intentional torts in the absence of a compensatory damage award is fully applicable in actions for legal fraud." Id. at 53.

We are satisfied that Steinberg did not produce any evidence that Grasso's conduct was so egregious that he should be able to recover punitive damages from Grasso. See ibid. His conduct was not so egregious that it would warrant imposition of punitive damages. The dismissal of that damage claim was appropriate.

Reversed and remanded for further proceedings consistent with this opinion.

 

The record on appeal does not reflect the manner in which the claims against MIIX were resolved. MIIX did not participate in this appeal.

We have searched the record for such a concession but find none. To the contrary, Steinberg's attorney at oral argument on the summary judgment motion addressed the expert report he had recently served and, based on that report, he argued that Steinberg was entitled to recover his attorney's fees in prosecuting the legal malpractice action, costs of suit, and prejudgment interest. He also argued that Steinberg had "lost chance" damages with respect to malpractice insurance ratings and opportunities for career optimization.

No such cause of action was advanced in Steinberg's complaint, which set forth only two causes of action, medical negligence and fraud.

The expert report prepared by Mark Molz and referenced by plaintiff is not contained in the appellate record.

This argument is, again, advanced on appeal without any reference to the record to support it.

(continued)

(continued)

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