Before Judges Pressler, Landau and Arnold.
The opinion of the court was delivered by: Landau, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 1999
On appeal from Superior Court of New Jersey, Law Division, Burlington County.
The appellant in this case is Michael Pimpinelli, Esq., attorney for J. W., who is the plaintiff in the above-captioned matter. He appeals from an order of the trial Judge, entered sua sponte on order to show cause, that assessed him with a R. 1:4-8 sanction *fn1 requiring personal payment to defendant's counsel, Shabel & Shabel, Esqs. of $1,500 for his "sudden change in position" during oral argument on a motion for summary judgment.
After depositions of plaintiff's possible expert witnesses by the defendant's attorney, Pimpinelli wrote to advise that he decided not to call an expert to support damages arising from ten years of sexual abuse by plaintiff's father that she alleged had continued until she was sixteen years of age.
Pimpinelli repeated this representation during the pre-trial arbitration proceeding.
Based upon that advice, defendant's attorney moved for summary judgment, urging that no causation could be established absent expert testimony. In reply, Pimpinelli argued that plaintiff's testimony of the sexual abuse by her father, with details of its consequences outlined in her certification in opposition to summary judgment, was sufficient for a jury to conclude that she had suffered pain and suffering warranting compensatory as well as punitive damages without the need for expert testimony. He also relied upon the legislative policy established by N.J.S.A. 2A:61B-1. *fn2 Plaintiff's opposing certification stated, in pertinent part:
2. At the time of trial, I will testify as to the pain and fear I experienced as my father was performing the acts of sexual abuse upon me. I will testify as to my constant fear and apprehension that he would come into my bedroom at night and molest me.
3. I will testify concerning how these acts of sexual abuse interfered with my enjoyment of my childhood. Every night I would fear going to bed knowing that he might come into my room to molest me. As a child, I never felt safe.
4. In my early teens, in order to dull the emotional pain and fear, I indulged in the use of alcoholic beverages and drugs. At that time, I could only obtain relief from the mental anxiety and pain by numbing myself with drugs and alcohol.
5. I will testify that when I think about the sexual abuse, I experience a pain in my stomach.
6. My testimony will include my belief that the sexual abuse caused me to experience depression, low self-esteem and a multitude of anxieties. As a result of the sexual abuse, I believe that I will always have difficulty being in a physical and emotional relationship with any man.
Pimpinelli concedes that when the Judge indicated during oral argument that defendant's motion to bar compensatory damages would be granted if no expert witness on causation was presented, he "changed position" and told the court and ...