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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...