RICHARD ADELMAN et al. v. ARTHUR SHANKER, ESQ., KENNETH D. MACKLER, ESQ., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3233-04T13233-04T1

RICHARD ADELMAN and ALAN

MELTZER,

Plaintiffs-Appellants,

v.

ARTHUR SHANKER, ESQ., KENNETH

D. MACKLER, ESQ., and GOLDENBERG,

MACKLER & SAYEGH, a New Jersey

partnership, professional

corporation or other business

association,

Defendants-Respondents.

______________________________________

 

Argued September 11, 2007 - Decided

Before Judges Payne and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,

L-2994-02.

Dominic J. Aprile argued the cause for appellants (Bathgate, Wegener & Wolf, attorneys; Mr. Aprile, of counsel and on the brief; Esther A. Daniel, on the brief).

Jay H. Greenblatt argued the cause for respondents (Greenblatt & Laube, and Fineman, Krekstein & Harris, attorneys; Mr. Greenblatt and Michael S. Saltzman, of counsel; Mr. Saltzman, on the brief).

PER CURIAM

Plaintiffs, Richard Adelman and Alan Meltzer, appeal from the judgment of the Law Division dismissing their legal malpractice complaint against defendants, Arthur Shanker, Kenneth D. Mackler, and the law firm of Goldenberg, Mackler & Sayegh (jointly "the firm"). On appeal, plaintiffs contend the trial court erred in denying their pretrial motion for a change of venue and thereafter abused its discretion when it barred plaintiffs from introducing evidence of Shanker's sleep apnea. We affirm.

We briefly outline the facts of the matter. In 1993, plaintiffs retained the firm to defend them against claims brought by Howard and Jill Slotoroff and Joseph and Rita DeStefano (DeStefanos/Slotoroffs) in a complaint filed November 16, 1993, seeking damages against them for negligence, negligent misrepresentation, and breach of contract arising out of a failed business relationship, DeStefano, et al. v. Adelman, et al., Docket Number ATL-L-4643-93. Adelman and Mackler had been friends for many years, and Adelman was familiar with Mackler's reputation as a lawyer. The firm initially assigned Frederick L. Shenkman to handle the matter. Plaintiffs understood, however, that Mackler would supervise Shenkman's work. Shenkman handled all the pretrial discovery proceedings until Shanker later took over the case.

In February 1995, the matter was referred to an Early Settlement Panel (E.S.P). The panel apportioned liability against plaintiffs at sixty percent and recommended a non-binding settlement figure of $52,000. According to plaintiffs' complaint, this recommendation was never communicated to them by Shenkman or any other member of the firm prior to trial or subsequent to trial, and had it been communicated, they would have pursued settlement negotiations.

In June 1995, Mackler introduced plaintiffs to Shanker, who Mackler advised would be taking over their representation. Based upon Mackler's statement that Shanker was "able to go toe to toe with Tom Vesper[,]" Adelman came to the conclusion that "Shanker's abilities" were "great." Unbeknownst to plaintiffs, at the time they met Shanker, he already suffered from sleep apnea. He had undergone surgery in May 1993, which had not provided him with any relief. His sleep apnea caused sleeplessness, difficulty focusing, anxiety, and fatigue.

Also in June 1995, plaintiffs received correspondence from defendants which, among other matters, advised plaintiffs that the DeStefanos/Slotoroffs had renewed their Offer of Judgment, originally made in 1994, to accept $80,000 to settle the case. Plaintiffs rejected that offer and continued to do so throughout the litigation, only agreeing to settle the case for the $10,000 Offer of Judgment they had extended to the DeStefanos/Slotoroffs. The matter proceeded to trial as a bench trial.

On September 10, 1996, Shanker requested a continuance of the trial due to his medical condition. He advised the court, in camera, that he was both physically and emotionally unable to proceed and that, in his view, it was not in the best interests of his clients to proceed that day. He referenced the surgery he was scheduled to undergo three days later and advised that he expected an extended hospitalization and recovery period. Trial was adjourned and continued the following month, and concluded the next month. A year later, on November 6, 1997, the court entered final judgment in favor of the DeStefanos/Slotoroffs and awarded each couple $50,000, plus interest, attorney fees and costs, bringing the total award to $207,523.69. Subsequently, the parties settled the matter for $200,000.

On September 6, 2002, plaintiffs filed the present complaint against defendants alleging legal malpractice. Nearly two years later, plaintiffs filed a motion for a change of venue pursuant to Rule 4:3-3(a)(2). They argued,

[I]n light of the fact that [defendants practiced in Atlantic County] on a regular basis, are often before the courts, and when it comes to determinations of credibility, no matter how much a judge might try to be completely unbiased, there's a concern in the back of the plaintiffs' minds that the judge might be familiar with the lawyer and might take matters outside of the context of the case into consideration regarding credibility.

The judge denied the motion finding,

Well, I've handled numerous cases involving medical . . . malpractice against doctors in the county and legal malpractice against lawyers in the county, and other cases against other professionals in the county, some of whom . . . I knew of or heard of or had spent some time with. If I, or any other judge in the county, felt that they couldn't be completely unbiased, then obviously we'd recuse ourselves. I don't feel that way in this case. I feel that I can be unbiased, and I'm sure that there are other judges in the county that could be also. Your motion for a change of venue is denied.

Trial was conducted before another judge. Defense counsel moved to bar any reference to Shanker's sleep apnea. Defense counsel argued that Shanker's sleep apnea was irrelevant to whether defendants deviated from the standard of care owed to plaintiffs in the DeStefano/Slotoroff action and that there was no expert opinion establishing a causal connection between Shanker's condition and the alleged deviations. Plaintiffs responded (1) that expert testimony was not required because Shanker, in his in camera meeting with the judge during the DeStefanos/Slotoroffs' trial, revealed his medical condition and explained how it had been affecting him; (2) that had Shanker's condition been disclosed, they would have had the option to retain new counsel; and (3) the firm was well aware of Shanker's condition prior to his representation of plaintiffs, and the failure to disclose this condition was a breach of a duty of care owed to plaintiffs.

The trial judge granted defense counsel's motion, specifically finding that the factual issue for the jury was "whether the E.S.P. recommendation was made - or was conveyed to the client or whether it was not" and, in the context of the claim of failure to convey the E.S.P. recommendation, the disclosure of the sleep apnea was of no probative value. In addition, the judge concluded that even if there was some probative value, there was no evidence to support plaintiffs' claim that the failure to disclose the E.S.P. recommendation was

the result of Mr. Shanker's sleep apnea, with really absolutely no evidence to support that assertion . . . and I think there's a substantial risk that it will do a number of things: that it will confuse the jury about the issues in this case because the issues in this case are factually was the E.S.P. recommendation conveyed or was it not and, if not, what are the consequences, what damages were proximately caused by the failure to convey that recommendation, and to cloud those issues with assertions about the impact and debilitation of sleep apnea on Mr. Shanker at a very discreet point in time has a substantial - very substantial tendency to confuse the issues in this case. There is no medical evidence to suggest that during the time of the trial or that during the time that Mr. Shanker was pursuing or preparing this case, with one exception, and I'm going to discuss that in a minute, that his sleep apnea debilitated or had an impact on him that affected his effectiveness as a trial attorney. . . . At certain points the symptoms did become debilitating, and he was clear on that. He referenced four days during the time that he was preparing for trial when he could not work, and he obviously referenced the time when he made the application for the continuance to Judge Previti.

. . . .

If I accept the plaintiffs' expert and his opinion that Mr. [Shanker] was only operating at 50 percent of his effectiveness, but if at 50 percent Mr. [Shanker] was exercising that degree of care, knowledge, and skill that a lawyer of ordinary ability would have exercised under the same or similar circumstances, then there is no deviation from any standard of care, and the plaintiffs' expert never addresses that issue. As critical as he is and as much as he wants to insinuate that Mr. [Shanker's] . . . trial performance was affected, he never gave that opinion. He never viewed the videos of the trial. He concedes in his deposition that he could not formulate that opinion without doing so.

When the case was submitted to the jury, the verdict sheet asked the jury to answer two questions. The first question asked, "[D]o you find that the plaintiffs were not made aware of the ESP result[?]" The jury responded "yes" by a vote of seven to one. The second question posed to the jury asked, "Was the lack of that knowledge a proximate cause of the failure of the plaintiffs to accept the offer of $80,000 to settle the case?" The jury answered "no" by a vote of seven to one. The court entered a final judgment dismissing plaintiffs' complaint. This timely appeal followed.

I.

Plaintiffs urge that the trial court erred when it denied their motion for a change of venue. Rule 4:3-3 provides in pertinent part that a change in venue may be ordered "if there is doubt that a fair and impartial trial can be had in the county where the venue is laid." Whether venue should be changed is committed to the sound discretion of the court and will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Marshall, 123 N.J. 1, 76 (1991). Here, plaintiffs presented no evidence from which the motion judge could have reasonably concluded that it was unlikely that plaintiffs would receive a "fair and impartial trial." R. 4:3-3. During oral argument before the motion judge, plaintiffs conceded that the application was not based upon any specific facts but was "more of a matter of perception and concern in light of the fact that these lawyers practice here on a regular basis, are often before the courts[.]" We discern no abuse of the motion judge's discretion in denying plaintiffs motion.

II.

Plaintiffs next contend the exclusion of all evidence related to Shanker's sleep apnea amounted to a manifest denial of justice. They urge that this evidence was probative of defendants' credibility and its exclusion prevented the jury from properly weighing the credibility and accuracy of defendants' testimony, effectively foreclosing any opportunity for plaintiffs to "fully and fairly pursue their claims against defendants." We disagree.

A trial court is accorded broad discretion in determining "both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green v. N.J. Mfrs. Co., 160 N.J. 480, 492 (1999) (citing State v. Carter, 91 N.J. 86, 106 (1982)). The initial inquiry a trial court must make is whether the evidence is relevant. Ibid. "Relevant evidence" is any evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In other words, a trial court must consider the logical nexus between the proffered evidence and the fact in issue. Ibid. Further, even if a trial court determines that evidence is relevant, it may nonetheless be excluded if the trial court concludes that the probative value of the evidence is far outweighed by its tendency to confuse or mislead the jury. Ibid.

Here, the theory of plaintiffs' case was summarized just before the court conducted a Rule 104 hearing of plaintiffs' expert Barry Koyzra after defense counsel moved to bar Koyzra's testimony. See N.J.R.E. 104. In responding to the application, the following colloquy occurred between plaintiffs' counsel and the court:

He's [Koyzra] going to testify about the E.S.P. and that it should have been disclosed, the importance of it, what it is, why it's important, that it's a duty. That's the area. I'm not going to go into the preparation for trial because, as your Honor has observed, he did not, after his review of what he did review, come to any conclusion as to whether the outcome would have been any different at trial. . . . THE COURT: But more specifically, he didn't point to any trial error that he could say was caused by either zero preparation, inadequate preparation, whatever.

[PLAINTIFFS' COUNSEL]: Well, he said, "I didn't make a determination one way or the other," -

THE COURT: Right.

[PLAINTIFFS' COUNSEL]: - and I'm not going into that area at all.

THE COURT: Right, okay.

[PLAINTIFFS' COUNSEL]: I'm only going to focus on everything about the E.S.P.

(Emphasis added.)

Because defendants' expert conceded that defendants had a duty to disclose the E.S.P. recommendation to plaintiffs, the issue before the jury was simply whether defendants disclosed the recommendation, which explains why the verdict sheet had one question on deviation: "[D]o you find that the plaintiffs were not made aware of the [E.S.P.] result[?]"

We agree with the trial judge's conclusion that Shanker's sleep apnea bore no relevance to the resolution of that issue. While the evidence may have been relevant to Shanker's preparation and trial performance, plaintiffs' expert could not render an opinion "one way or the other" as to Shanker's trial preparation and performance. Thus, the trial judge properly concluded that the admission of evidence of Shanker's sleep apnea and its effects upon him had a "substantial tendency to confuse the issues." We find no palpable abuse of the trial judge's discretion to exclude this evidence. Green, supra, 160 N.J. at 492. Moreover, it is apparent by the jury's answer to the deviation question on the verdict sheet that it rejected defendants' testimony that plaintiffs were advised of the E.S.P. recommendation. Consequently, even if the court erred in excluding the evidence, the error was not so wide of the mark that it resulted in a "manifest denial of justice." State v. Carter, supra, 91 N.J. at 106.

Affirmed.

Plaintiffs were defendants in the underlying litigation. For ease of reference, they are referenced throughout this opinion as plaintiffs.

Although the court announced judgment dismissing plaintiffs' complaint orally from the bench following the jury verdict, a written order dismissing the complaint was apparently never prepared.

(continued)

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A-3233-04T1

December 14, 2007