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Rabinowitz v. Wahrenberger

March 20, 2009

PHYLLIS RABINOWITZ AND ANDREW RABINOWITZ, PLAINTIFFS-APPELLANTS,
v.
JUDITH A. WAHRENBERGER, ESQ., AND WAHRENBERGER, PIETRO & SHERMAN, LLP, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-5591-07.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 13, 2009

Before Judges Wefing, Parker and LeWinn.

Plaintiffs appeal from trial court orders dismissing their complaint and assessing counsel fees and costs. After reviewing the record in light of the contentions advanced on appeal, we affirm the order dismissing the complaint but modify the assessment of costs and fees.

On July 13, 2006, Rebecca Rabinowitz, the daughter of plaintiffs Andrew and Phyllis Rabinowitz, was born prematurely at St. Barnabas Hospital in Livingston. Rebecca suffered from some respiratory distress at birth and remained hospitalized until July 18, 2006. On July 19, 2006, plaintiffs took Rebecca to the emergency room at St. Barnabas when she again appeared to be in respiratory distress. At the emergency room, Rebecca was seen by Lynn Reyman, M.D., who did not re-admit her to the hospital despite her parents' protests. They returned home with the baby who died two days later on July 21, 2006, after suffering a massive nose bleed.

In January 2007, plaintiffs, represented by Bruce Nagel, Esq., of Nagel Rice, commenced suit against Dr. Reyman. Dr. Reyman was represented in that suit by Judith Wahrenberger, Esq., of Wahrenberger, Pietro & Sherman. Plaintiffs alleged that Dr. Reyman was negligent when she did not admit the baby to the hospital on July 19, 2006, and that her negligence was a proximate cause of the infant's death.

On June 7, 2007, Ms. Wahrenberger deposed Andrew and Phyllis Rabinowitz on behalf of her client, Dr. Reyman. Ms. Rabinowitz was pregnant at the time of the deposition and under emotional stress. Ms. Rabinowitz was deposed first, and we are informed that she wept at several points while being deposed.

In his deposition, Mr. Rabinowitz noted that his wife had arranged to have a baby nurse after Rebecca was born. He said that when he and his wife arrived home after the baby's death, they were both distraught and unable to enter the house. He said that the police had driven the baby nurse to the train station. Ms. Wahrenberger asked which police department had come and the following exchange took place.

A. The Millburn Police. I believe it was the head of the Millburn Police because I had asked for him when Rebecca died because I had suspected there was a murder. So I asked for the head of police and the head of police, I was told, was coming.

Q: Why had you suspected a murder?

A: Negligent homicide is a murder.

Q: Why did you suspect negligent homicide?

A: Because the institution of Saint Barnabas failed to give my daughter proper treatment by releasing her when she was clearly still sick. And Dr. Reyman clearly saw a sick baby and clearly turned the other cheek and let her leave for her father to give her mouth to mouth. So both institutions and people just turned their head away from a clearly sick and dying child.

Q: And that was what you considered to be negligent homicide?

A: In my opinion, not as a lawyer, but as a parent -- I am a lawyer but not as a lawyer, as a parent, yes.

Q: Are you admitted to the Bar in any state?

A: New York and Washington D.C.

Q: Do you practice law?

A: Not as an outside counsel but for the firm, yes.

Q: Did you think that the baby nurse was in any way involved in ...


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