May 15, 2009
VINCENT J. MARRA, PLAINTIFF-APPELLANT,
HOCKFIELD, HASNER & ASSOCIATES, AND LOUIS G. HASNER, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1033-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 23, 2009
Before Judges Sapp-Peterson and Alvarez.
Plaintiff Vincent J. Marra's legal malpractice claims arise from his representation by Louis G. Hasner, Esq., of the firm of Hockfield, Hasner & Associates (defendants), in a suit for damages allegedly sustained as a result of a June 26, 1999 automobile accident. On January 25, 2008, the Law Division judge granted defendants' request for summary judgment on the basis that the dismissal of the earlier automobile negligence proceeding, which was caused by plaintiff's lack of medical proofs, was not a result of any legal malpractice committed by defendants. We agree and accordingly affirm.
The Automobile Negligence Action
In plaintiff's underlying automobile negligence action, defendants Jason Luke and/or Nancy Luke (the Lukes) were granted an order on March 7, 2003, barring plaintiff's use of his expert reports. Dr. Richard C. Costa's report, which was served upon the Lukes on December 13, 2002, pursuant to Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993), purported to be a comparative analysis of plaintiff's pre-existing condition and the injuries sustained in the automobile accident. The report was necessitated by the belated revelation that plaintiff had a pre-existing back problem of long standing. Once plaintiff was barred from using the expert reports, the Lukes were granted summary judgment. Defendants appealed the decision on behalf of plaintiff, but the award of summary judgment was affirmed. Marra v. Luke, No. A-1196-03 (App. Div. August 26, 2004). Essentially, plaintiff attributes the dismissal of his automobile negligence case to legal malpractice on the part of defendants.
Plaintiff further asserts that damages should be calculated based solely, as detailed by his legal malpractice expert, on the settlement value of the underlying case. Some further history is necessary.
Defendants filed plaintiff's complaint in the automobile negligence case on April 17, 2001. In answers to interrogatories, at his deposition, and when interviewed by six different physicians, plaintiff denied any significant prior back problems other than a moderate problem some fifteen or twenty years prior, which had not resurfaced. Medical records obtained days before the discovery end date, however, indicated that plaintiff complained of back pain from at least 1979 forward.
In an MRI study dated July 13, 1999, ordered shortly after the car accident, it was noted that plaintiff's lumbar spine had a stable appearance when compared with a prior study. The reference was to a February 28, 1998 MRI study undertaken because of plaintiff's complaints about back pain. Both MRI studies revealed multiple disc herniations and bilateral peripheral stenosis. Factually, plaintiff complains in this lawsuit that even before obtaining his complete medical records, defendants should have noticed the reference to an earlier MRI in the July 13, 1999 report.
The discovery end date in the automobile negligence case was October 15, 2002. When the Lukes subpoenaed plaintiff's medical records, they and defendants discovered Dr. Costa's treatment, prior to the accident, of plaintiff's chronic back problems. Those medical records specifically referred to the prior February 1998 MRI report and to the fact that plaintiff had a history of herniated nucleus pulposis in his lumbar spine.
The medical records were provided by defendants to the Lukes' attorneys by letter dated October 2, 2002. The matter was scheduled for mandatory arbitration on December 19, 2002. On December 13, 2002, defendants submitted Dr. Costa's Polk report to the Lukes' attorneys. The report stated:
As his medical records reveal, Vincent was seen and treated by me for back and leg pain prior to the motor vehicle accident. On February 5, 1998, he presented to our office with low back pain and numbness of his of left leg, at which time he was referred for x-rays, the results of which revealed minimal end plate changes of L3-4 and L4-5, with the disc spaces maintained. Still complaining of back and leg pain, he was referred to Dr. Jaffe for EMG and MRI evaluations, and medication was prescribed for the pain. The MRI of February 26, 1998 revealed no evidence of nerve root effacement or spinal stenosis, and only mild degenerative changes at L3-4 and L4-5. The results of the EMG study done on February 27, 1998 were normal.
His prescription pain medications were refilled on March 9, 1998 and March 31, 1998. The patient was advised that if the symptoms persisted, he should return to the office and he would be referred to an Orthopedic Specialist. As far as I can determine, the problem resolved and the patient did not seek any further treatment with this practice for back or leg pain from that time until the car accident in June of 1999.
It is my professional medical opinion the need for treatment, injections and eventual surgery are a direct result of the injuries suffered in the motor vehicle accident of 1999.
The judge suppressed the report because it was not supplied until approximately two months after the discovery end date.
Dr. Aurora Dela Rosa's report, based on a January 16, 2003 exam, was suppressed for the same reason. On September 12, 2003, the court in the automobile negligence case accordingly dismissed plaintiff's complaint for failure to satisfy the verbal threshold.
On appeal, we found that the suppression and ultimate dismissal of the cause of action were proper because, pursuant to Rule 4:17-7, the submission of medical reports almost two months after the discovery end date was impermissible. Marra, supra, slip op. at 7. We did not question that defendants learned of plaintiff's pre-existing condition just days before the discovery end date. Ibid. Nor did we question that defendants could not have sought admission of the late reports pursuant to Rule 4:17-7, as they could not certify that the information was not readily discoverable by the exercise of due diligence prior to the discovery end date. Id. at 7-8.
As we also said, however, even if Dr. Costa's Polk report had been submitted prior to the discovery end date, "it was substantively insufficient to differentiate plaintiff's pre-existing disc injuries from any subsequent injury caused by the June 1999 accident." Id. at 8. As a result, due to both the timing and inadequacy of Dr. Costa's Polk report, the award of summary judgment to the Lukes was affirmed.
Motion for Summary Judgment in Legal Malpractice Action
On their motion for summary judgment in this proceeding, defendants asserted that plaintiff could not establish that the facts, even when viewed in the light most favorable to him, would entitle him to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The motion judge correctly characterized plaintiff's claim as calling for proof of a "suit within a suit," not the alternative considered under the unique set of facts found in Lieberman v. Employers Ins. of Wausau, 84 N.J. 325 (1980).
Plaintiff's failure to disclose his pre-existing condition to his own attorneys, in depositions, and when examined by several physicians, together with the inadequacy of the Polk report, creates insurmountable hurdles to his success at trial.
The facts of this "suit within a suit" would not entitle him to judgment as a matter of law. Plaintiff could not establish the "viability of the case," as the motion judge put it, solely by the submission of a legal malpractice expert's report that fixed a settlement value on the case as if plaintiff's pre-existing injury been disclosed and an adequate Polk report supplied earlier.
Plaintiff contends that Lieberman allows him the option of proceeding with his legal malpractice claims by either proving "a suit within a suit" or through the use of his expert's settlement valuation of the underlying case. Lieberman allows a plaintiff to proceed to prove a claim for damages merely on an expert's report where unique circumstances are present. Id. at 343-44. In Lieberman, the plaintiff, who was the defendant in the underlying case, complained that the case was improperly settled by his attorneys without his authorization. Id. at 329. The court said that in addition to proving a "suit within a suit":
[a]nother option, which may be apposite in this case in light of the duality of defendants, the factor of role reversal, and the passage of time, is to proceed through the use of expert testimony as to what as a matter of reasonable probability would have transpired at the original trial. . . . Such experts would testify, in light of their experience and expertise, concerning the outcome of the [underlying case] if the case had been brought to trial . . . and had been defended in the manner . . . initially planned. [Id. at 344.]
In other words, even when the legal malpractice claim concerns a settlement, the touchstone is still the probable outcome had the matter proceeded to trial.
In this case, defendants cannot be faulted for having assumed during the course of fourteen meetings with plaintiff between August 1999 and August 2002 that plaintiff accurately recalled his prior medical history and was being truthful in his assertion that he had no pre-existing injuries. Although it is not entirely clear if any specific error on defendant's part is being asserted as actionable, it is at least suggested that the professional negligence was defendants' failure to notice the reference to the earlier MRI in the post-accident report or to more closely question plaintiff as to pre-existing injuries. Neither claim, in our opinion, has merit.
The question we must answer is whether plaintiff has asserted facts that, when viewed in the most favorable light, given the current state of the law, establish deviation from the standard of care, proximate causation, and damages. Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004). We concur with the motion judge that plaintiff has not established the requisite deviation from the standard, proximate causation, or damages.
Nothing in plaintiff's legal malpractice expert's report substantiates why defendants' failure to obtain a Polk report earlier in the proceedings constituted a deviation from the standard. Only if plaintiff had told his attorney of the pre-existing condition could the attorney have been expected to know about it. The passing reference in the July 13, 1999 MRI report to a prior study was insufficient to put a reasonable attorney on notice that his client had a pre-existing condition.
In any event, so long as Dr. Costa's report did not satisfy the Polk requirements, no proximate causation was established. Plaintiff would not have been able to pursue damages against the Lukes even if the report had been supplied on a timely basis. To suggest that had Dr. Costa's report been received on a timely basis, the Lukes would have accepted the arbitrator's recommendation and settled the matter is nothing more than sheer speculation. Additionally, to consider the settlement value of the case in a vacuum, without consideration of the likely outcome had the matter been tried, also constitutes speculation.
We can therefore say with confidence that plaintiff was not damaged by defendants' representation of him in the underlying suit for automobile negligence. See Albee Assocs. v. Orloff, Lowenbach, Stifelman and Siegel, P.A., 317 N.J. Super. 211, 224 (App. Div.), certif. denied, 161 N.J. 147 (1999). Because Dr. Costa's report did not meet the Polk standard, the underlying automobile negligence case simply did not have a settlement value.
There were no genuine issues of fact in this case. The judge engaged in a proper weighing process in deciding that there was only one outcome, that defendants would prevail as a matter of law. Brill, supra, 142 N.J. at 540. Accordingly, we affirm.
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