February 20, 2009
DAVID SOULT, PHILISA SOULT, CHASARIE SOULT, AND DONEANNE SOULT, PLAINTIFFS-APPELLANTS,
MATTIONI, LLP; MATTIONI, LTD, MATTIONI, MATTIONI & MATTIONI; AND ALAN MATTIONI, ESQUIRE, INDIVIDUALLY AND AS AGENT FOR MATTIONI, LLP AND MATTIONI, LTD. DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey Law Division, Burlington County, Docket No. L-1380-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 14, 2009
Before Judges Axelrad, Parrillo and Lihotz.
Plaintiffs appeal from the dismissal, with prejudice, of their legal malpractice complaint against defendants. On October 23, 2007, the court granted summary judgment after determining plaintiffs' expert's report amounted to an inadmissible net opinion. Plaintiffs also appeal from the order denying reconsideration of summary judgment.
We have reviewed the evidence submitted by defendants in support of their unopposed summary judgment motion and all pleadings and transcripts submitted with respect to plaintiffs' request for reconsideration. As required, the facts are viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We have considered plaintiffs' argument challenging the court's rejection of the report submitted by their expert, Kevin P. McCann, Esq., as a net opinion, and the responsive arguments advanced by defendants in light of the record and the applicable law. Following our review, we are satisfied Judge Suter properly dismissed plaintiffs' complaint and denied their request for reconsideration. Accordingly, we affirm substantially for the reasons stated by Judge Suter in her written opinions, granting summary judgment filed October 23, 2007, and denying reconsideration filed December 20, 2007. R. 2:11-3(e)(1)(A) & (E). We add the following brief comments.
McCann concluded, "defendants were negligent in not formulating and implementing a reasonable litigation strategy in a timely fashion" because they breached a duty to plaintiffs by not obtaining the necessary expert medical testimony and an evaluation of economic damages. McCann also opined, "defendants should have attempted to have flare imaging MRIs or PET scans performed as soon after exposure as possible[,]" and maintained "if [defendants] get a medical report that's not helpful you go looking for another one," suggesting defendants should have continued to search for medical experts who would continue testing to establish injury resulting from the carbon dioxide exposure.
To be clear, defendants sought medical expert diagnosis and opinion regarding plaintiffs' condition as a result of the carbon dioxide exposure. However, the opinions received did not favorably support the conclusion plaintiffs suffered compensable injury. Although our law establishes the broad proposition an attorney has a duty to a client to timely formulate and implement a reasonable litigation strategy, nothing supports McCann's suggestion that this general standard of conduct includes a duty to continue to shop for favorable expert opinions once unfavorable reports are rendered. Absent proof of liability, proof of claimed damages is pointless.
We agree with Judge Suter's thorough analysis determining the McCann opinion is devoid of reference to authorities defining the standard, which defendants purportedly breached. Instead, it is comprised of McCann's conclusory determinations based upon his personal view defendants departed from the standard of practice among New Jersey lawyers handling personal injury cases. Therefore, it is unacceptable. Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001).
As to reconsideration, the summary judgment motion was unopposed. Nevertheless, Judge Suter decided the motion on the merits "because these issues might have been raised under a Rule 4:50-1 motion." Plaintiffs' application was denied for the same reason summary judgment was granted: their liability expert's report was inadmissible as a net opinion.
We determine the judge reached the proper conclusion on summary judgment. Consequently, we discern no abuse of discretion in the denial of the motion for reconsideration.
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