On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6347-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves, and J. N. Harris.
Plaintiff Brian McDonnell appeals from the dismissal of his legal malpractice action--bottomed upon his attorneys' alleged failure to file an action within the prescribed three year statute of limitations of the Federal Employers Liability Act (FELA), 45 U.S.C.A. § 51, § 56; see Polizzi v. N.J. Transit Rail Operations, Inc., 364 N.J. Super. 323, 328 (App. Div. 2003)--in the context of defendants' motion for summary judgment. We affirm.
Because this appeal arises from the grant of a motion for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff[,]" the non-moving party. Strawn v. Canuso, 140 N.J. 43, 48 (1995); see also Kress v. La Villa, 335 N.J. Super. 400, 410 (App. Div. 2000), certif. denied, 168 N.J. 289 (2001). In November 2001, plaintiff retained defendants to pursue remedies against his employer, New Jersey Transit Rail Operations, Inc. (NJT), for personal injuries resulting from allegedly dangerous work-related conditions. Three years later, in November 2004, and again in December 2004, separate law suits were filed on plaintiff's behalf by defendants Hannon & Joyce and Thomas Joyce III, Esq. in the Essex vicinage, pursuant to the FELA.
The first filed action (Docket No. L-9255-04) sought remedies for plaintiff's putative "occupational ulnar nerve entrapment on the right" (the elbow claim). The second action (Docket No. L-9786-04) was filed three weeks later and sought remedies in two counts: the first count related to a "trauma injury" to plaintiff's back (the acute back claim), alleged to have occurred while on the job in Hoboken "[i]n or about January 2002" (the trap door incident); the second count involved "repetitive occupational trauma to [plaintiff's] back" (the occupational back claim) which was asserted as having occurred progressively from 1984 to the present.
The two matters came to be transferred to the Hudson vicinage, where NJT was located. They were assigned new docket numbers and then case managed for several years. Shortly before the change of venue in March 2006, plaintiff jettisoned defendants as his attorneys and obtained the services of John H. Sanders, Esq. (Sanders) of Eichen, Levinson & Crutchlow, LLP (Eichen Levinson)*fn1 to represent him instead. Substitutions of attorney were filed, resulting in Sanders taking over the prosecution of the FELA matters from defendants. Under the new counsel's stewardship, discovery was exchanged, a liability expert report on behalf of plaintiff was produced, and dispositive motions were defended. Thus, the duration of defendants' professional relationship with plaintiff was slightly more than four years, with just over one year consisting of litigation. Sanders represented plaintiff in the FELA matter for slightly less than two years but was the primary attorney responsible for all substantive decisions relating to the litigation from the time he filed the substitution of attorney.
One of those litigational decisions made by Sanders was the retention of plaintiff's liability expert, JW Rufolo and Associates, Inc. An expert report (the Rufolo Report) was prepared by Joseph Rufolo--entitled "Case Analysis"--who limited its scope to a "causal analysis of Brian McDonnell's injury to determine corporate responsibility." The injuries addressed by the Rufolo Report were limited to plaintiff's "severe lower back injuries." In its analysis of causality, the Rufolo Report employed phrases such as "Mr. McDonnell was repeatedly exposed to recurring lower back strain;" "[t]he constant back injuries;" and "repetitive trauma" to describe plaintiff's working conditions and resultant effect on his back. In addition, the opinion stated that "[a]s a result of his work activities, Mr. McDonnell suffered from chronic trauma to his lower back," culminating in a "permanent injury" when "he sustained an acute injury to his lower back while lifting a trap door at his work site" in "January of 2002." The Rufolo Report did not contain a specific analysis of NJT's negligence related to the trap door incident and treated it instead as an ordinary work event. Indeed, by any fair reading of the Rufolo Report, it simply expressed the view that the harm to plaintiff's back was incurred because "[h]e worked over a long period of time in an unhealthy labor environment with repeated exposure." Plaintiff did not submit an expert opinion related to his elbow claim.
Around the end of December 2007, NJT filed a motion for partial summary judgment,*fn2 seeking to dismiss only the elbow claim and the occupational back claim, not plaintiff's acute back claim. Essentially, NJT sought to dismiss the entire complaint that presented the elbow claim, and only count two of the complaint that asserted the dual back injuries.
NJT's legal theory in support of its motion to dismiss the elbow claim focused on the lack of a expert opinion to support a causal connection between NJT's alleged negligence and the elbow harm supposedly suffered by plaintiff. NJT also characterized the contents of the Rufolo Report as a mere "net opinion." It argued that because the elbow claim involved "a cumulative trauma injury, under the FELA," plaintiff was required to produce for the jury "an expert on ergonomics to evaluate whether [NJT] provided a reasonably safe place to work in 1983 and thereafter." NJT argued that plaintiff's expert was neither an ergonomics expert, nor did it opine on "plaintiff's specific job assignments and cannot conclude whether those assignments presented risk factors to plaintiff." NJT also pointed out that the Rufolo Report did not directly discuss plaintiff's elbow condition, and contended that the submission of such a vague claim to a jury would invite speculation and conjecture.
NJT also moved to dismiss the occupational back claim on the ground of untimeliness, and to bar the presentation of evidence prior to three years before the filing date of the complaint. NJT argued that litigational discovery revealed that plaintiff first learned of his back condition--"the aches and pains [and] 'tightness in his lower back, and a pain down his left leg'"--in the late 1980s. In light of FELA's three-year statute of limitations, NJT argued that the occupational back claim "mandate[d] a filing of suit in the early 1990s." Since the complaint was not filed until December 2004, NJT argued alternatively that either (1) all of the occupational back claims should be barred, or (2) plaintiff's recovery for an occupational back claim would be limited to "proved damages that occurred in the three years preceding the filing of the [c]omplaint."
Sanders subsequently responded to the motion in an unconventional fashion. First, his letter brief noted that "[t]here is no medical evidence in this case of any long term occupational injury," essentially conceding that the Rufolo Report's attempt to prove the occupational back claim as pled in the second count was insufficient.*fn3 Counsel then mounted an unenthusiastic defense on the elbow claim motion by arguing in the letter brief that despite the fact that no ergonomics expert opinion was presented, a jury could nevertheless resolve the causation issue based upon the opinion of one of plaintiff's regular treating physicians. Lastly, and most unexpectedly, he provided a certification from his client, which admitted "[i]t has come to my ...