Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

D'Agostino v. Drazin & Warshaw, P.C.

Superior Court of New Jersey, Appellate Division

September 13, 2013

STEVEN D'AGOSTINO, Plaintiff-Appellant,
DRAZIN & WARSHAW, P.C., Defendant-Respondent.


Argued March 5, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Special Civil Part, Docket No. DC-021538-10.

Steven D'Agostino, appellant, argued the cause pro se.

Mark M. Tallmadge argued the cause for respondent (Bressler, Amery & Ross, attorneys; Mr. Tallmadge and Gregory J. Cannon, on the brief).

Before Judges Lihotz and Ostrer.


The trial court dismissed plaintiff Steven D'Agostino's legal malpractice complaint against defendant Drazin & Warshaw, P.C. for failure to file an affidavit of merit. The court then denied plaintiff's motion for reconsideration. Plaintiff appeals from the order denying reconsideration. Having reviewed plaintiff's arguments in light of the facts and applicable law, we affirm.


Plaintiff filed his pro se complaint in the Special Civil Part on October 15, 2010, almost six years after he obtained a settlement in a personal injury action in which defendant represented him. The record reflects that plaintiff, a musician, slipped and injured his neck and shoulder while entering a restaurant where he was scheduled to perform on April 24, 1999. He was treated with physical therapy and cortisone shots. According to defendant, it filed the complaint on plaintiff's behalf against the restaurant and related parties, and ultimately obtained a $41, 250 settlement in the midst of trial, of which $23, 849.83 was paid to plaintiff, after defendant deducted its fee and costs.

Plaintiff's complaint against defendant stated, in full:
Defendant represented Plaintiff in a personal injury matter, which commenced in 1999 and continued until 2004. However, numerous mistakes were made by Defendant, both during trial and the years before. As a direct result, Plaintiff was compelled to accept a much lower settlement amount. Plaintiff contends these mistakes constitute breach of contract and malpractice.

As damages, plaintiff did not seek the additional recovery he claims he would have secured in the underlying action.[1] Rather, he seeks disgorgement of defendant's fee, which was within the jurisdictional limit of the Special Civil Part.

In its November 29, 2010, answer, defendant denied plaintiff's allegations, and demanded that plaintiff produce an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Defendant also served plaintiff with interrogatories and a document production request. The parties then engaged in motion practice involving discovery and the necessity of an affidavit of merit.

Plaintiff filed a motion on December 28, 2010, seeking permission to proceed without an expert witness. However, the clerk rejected the motion as non-conforming on January 5, 2011. Plaintiff then filed an accepted conforming motion on January 13, 2011. Defendant filed opposition. Plaintiff alleged in an affidavit in support of his motion that defendant was negligent by failing to obtain all his medical records; to oppose certain defense motions; and to subpoena his treating physicians to testify. He alleged that as a result, before jury deliberations began, he was compelled to accept an inadequate settlement. Although plaintiff never amended his complaint, he also alleged in an affidavit that defendant overcharged him, specifically in expert fees and transcript costs.

In the meantime, defendant notified plaintiff by letter on January 3 and January 10, 2011 that his responses to interrogatories were overdue and it would seek relief from the court absent a response. On January 13, 2011, having received no response, defendant then filed a motion to dismiss plaintiff's complaint without prejudice. The court granted defendant's motion by order entered February 10, 2011.

After his complaint was dismissed, plaintiff filed a motion to strike defendant's answer for failure to comply with discovery requests he served on defendant. The record does not include a formal order disposing of the motion.

Plaintiff also sought to reinstate his complaint. In March 2011, the court denied plaintiff's motion to reinstate because he had not cured his discovery default and did not pay the restoration fee required by Rule 6:4-6(b). Plaintiff filed a second reinstatement motion on March 9, 2011 after providing the requested discovery and paying the $25 restoration fee. The court granted the motion on August 1, 2011.

Defendant then filed a motion to dismiss the complaint with prejudice for failure to serve an affidavit of merit. On August 31, 2011, the court heard argument on defendant's motion to dismiss and plaintiff's undecided motion to proceed without an expert witness. The court concluded plaintiff was required to file an affidavit of merit in order to pursue both his negligence and overcharge claims. The court also apparently concluded that plaintiff waived any overcharge claim by failing to raise it when he accepted the settlement. However, the court dismissed plaintiff's complaint without prejudice because of the court's delay in ruling on plaintiff's reinstatement motion. The court granted plaintiff thirty days — until September 30 — to produce an affidavit of merit, along with a motion to reinstate his complaint. The court entered a formal order on September 7.

On September 12, 2011, plaintiff sought reconsideration, or alternatively, an extension of time to file an affidavit of merit and an order compelling discovery from defendant. The court denied plaintiff's motion on October 14, 2011. By order entered October 20, 2011, the court dismissed the complaint with prejudice for failure to provide an affidavit of merit.

This appeal followed. Plaintiff argues that he did not need to serve an affidavit of merit because the malpractice portion of his claim falls under the common knowledge doctrine. He also argues that even if an affidavit of merit were required, he was prejudiced by the absence of a Ferreira[2] conference, and defendant's failure to produce discovery. He also argues the court erred in dismissing his overcharge claims, which he asserted were based on contract, not negligence.


We first address whether plaintiff's complaint was exempt from the affidavit of merit requirement based on the common knowledge doctrine. We apply a plenary standard of review to the court's order dismissing the complaint. Sickles v. Cabot Corp., 379 N.J.Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005).

The Affidavit of Merit Statute requires a plaintiff who alleges professional negligence to provide an expert's affidavit stating the action has merit. N.J.S.A. 2A:53A-27. The statute is consistent with the general requirement that expert testimony is required to establish the standard of care that is an essential element of a plaintiff's professional negligence claim.

To establish legal malpractice, a plaintiff must show "(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation." Because the duties a lawyer owes to his client are not known by the average juror, a plaintiff will usually have to present expert testimony defining the duty and explaining the breach.
[Stoeckel v. Twp. of Knowlton, 387 N.J.Super. 1, 14 (App. Div.) (quoting Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)), certif. denied, 188 N.J. 489 (2006).]

See also Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J.Super. 1, 12 (App. Div. 2001) ("[T]he party asserting malpractice must, under New Jersey case law, present expert testimony that establishes the standard of care against which the attorney's actions are to be measured." (citations omitted)).

However, our Court has held that an affidavit of merit is not required in those cases where, under the common knowledge doctrine, expert testimony would not be required to establish a deviation from the standard of care. Hubbard v. Reed, 168 N.J. 387, 390 (2001) (holding affidavit of merit was not required in case where dentist removed the wrong tooth). The common knowledge doctrine applies "where 'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without a benefit of the specialized knowledge of experts.'" Id. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).

The Hubbard Court warned that the common knowledge exception to the affidavit of merit requirement must be construed narrowly, stating that "[i]n most . . . cases, expert testimony will be required to establish both a standard of care and breach of that standard by the defendant[.]" Id. at 397. Moreover, the applicability of the common knowledge doctrine should be clear on the face of the complaint. Id. at 395 (stating "the threshold of merit should be readily apparent from a reading of the plaintiff's complaint").

We have held the common knowledge doctrine applies when an attorney has failed to communicate with an expert to assure his attendance at trial, and the expert's testimony was essential to prove the plaintiff's injuries were caused by the accident on defendant's property. Kranz, supra, 390 N.J.Super. at 148. Expert testimony was not required where the plaintiff alleged the attorney failed to brief an issue, misrepresented the case's status, and failed to accurately report a settlement discussion. Sommers v. McKinney, 287 N.J.Super. 1, 12 (App. Div. 1996). Also, an expert is not needed to establish negligence where an attorney fails to record a mortgage. Stewart v. Sbarro, 142 N.J.Super. 581, 591 (App. Div.), certif. denied, 72 N.J. 459 (1976).

To generalize, an expert opinion is not required in "that category of cases that are so straightforward in nature that expert testimony is not required." Brach, supra, 345 N.J.Super. at 12. "A common thread runs through these cases, namely none of them required the trier of fact to evaluate an attorney's legal judgment concerning a complex legal issue." Id. at 13; see Ronald E. Mallen & Jeffrey M. Smith, 4 Legal Malpractice § 37:23 at 1659 (2013 ed.) ("The situations in which expert testimony was not required have typically involved egregious and extreme instances of negligence.").

Where an attorney has conducted some investigation of a client's claim, but the malpractice plaintiff asserts it was insufficient, the standard of care is unlikely to fall within a jury's common knowledge.

Although expert opinion is not necessary to establish the negligence of a personal injury attorney who fails to conduct any investigation of his client's claim, where the attorney has undertaken some investigation, a jury will rarely be able to evaluate its adequacy without the aid of expert legal opinion.
[Brizak v. Needle, 239 N.J.Super. 415, 432 (App. Div.) (emphasis added), certif denied, 122 N.J. 164 (1990).]

In Aldrich v. Hawrylo, 281 N.J.Super. 201, 214 (App. Div. 1995), appeal dismissed, 146 N.J. 493 (1996), we reversed the trial court's determination that expert testimony was unnecessary. We stated, "A jury would not be able to evaluate the adequacy of the investigation or the opinion without the aid of expert legal testimony." See also Sommers, supra, 287 N.J.Super. at 12 (citing Aldrich, supra, for principle that adequacy of investigation generally requires expert testimony).

Applying these principles, we agree with the trial court's assessment that plaintiff's claim was not subject to the common knowledge exception to the affidavit of merit requirement. The common knowledge doctrine's applicability may not be discerned from the face of plaintiff's complaint, as Hubbard requires. Plaintiff alleged only that "numerous mistakes were made by [d]efendant, both during trial and the years before, " constituting breach of contract and negligence, which resulted in his accepting a reduced settlement.

Even considering plaintiff's later affidavit, his allegations do not fall within the category of straightforward cases we have described. Plaintiff alleges that defendant did not obtain all his medical records, asserting that several records could have supported his case. Plaintiff does not describe the nature of the omitted records, or their relevance to a disputed issue. Moreover, he implicitly concedes that defendant obtained at least some of his medical records. Thus, he objects to the adequacy of defendant's investigation, not the complete failure to conduct one. As we have explained, the adequacy of an investigation requires expert opinion.

The common knowledge exception also does not save plaintiff's claim that defendant failed to oppose certain motions in limine. Plaintiff does not describe the motions, nor their impact on his case. An attorney is required to diligently represent his client, but he or she also is prohibited from interposing frivolous defenses on a client's behalf. An attorney's decision not to oppose a motion is likely to require an assessment of the motion's merit. Moreover, even if an attorney could marshal non-frivolous opposition to a motion, he or she may for tactical or strategic reasons, decline to do so. Expert opinion is required to determine whether such judgments fall below a reasonable standard of care.

Also, the failure to call plaintiff's treating physicians as experts — without more — does not bespeak a violation of the standard of care within a fact-finder's common knowledge. The decision to call or not call a witness usually involves an exercise of judgment involving an assessment of, among other things, what the witness may say to support a party's claim, whether the witness's testimony may undermine the party's case, and the availability of alternative proofs. A fact-finder's determination that such judgment calls are negligent requires the support of expert testimony.

Plaintiff argues that even if the affidavit of merit statute applied to his complaint, he was prevented from complying because he lacked discovery from defendant. We are unpersuaded. The statute provides:

An affidavit shall not be required pursuant to section 2 of this act if the plaintiff provides a sworn statement in lieu of the affidavit setting forth that: the defendant has failed to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit; a written request therefor along with, if necessary, a signed authorization by the plaintiff for release of the medical records or other records or information requested, has been made by certified mail or personal service; and at least 45 days have elapsed since the defendant received the request.

[N.J.S.A. 2A:53A-28.]

The timing of the sworn statement is deemed to relate back to the written request for records, if made. Aster v. Shoreline Behavioral Health, 346 N.J.Super. 536, 544-45 (App. Div. 2002). Otherwise, it is subject to the same sixty day period set forth in N.J.S.A. 2A:53A-27. Id. at 550.

"N.J.S.A. 2A:53A-28 reflects a legislative recognition that a plaintiff may be prevented from making [a threshold showing that the claims asserted are meritorious] if a defendant fails to produce essential medical records or other information." Scaffidi v. Horvitz, 343 N.J.Super. 552, 558 (App. Div. 2001). However, a defendant's failure to timely respond to a document request does not invariably relieve a plaintiff from complying with the Affidavit of Merit Statute. Ibid.

N.J.S.A. 2A:53A-28 applies only to "medical records or other records having a substantial bearing on preparation of the affidavit[.]" A plaintiff may request a great variety of documents to assist in the preparation of a case that are not essential for the preparation of an affidavit of merit. Moreover, it generally would be difficult, if not impossible, for a defendant to distinguish between documents that have "a substantial bearing on preparation of the affidavit [of merit]" and documents that may simply aid the plaintiff in the eventual proof of a case at trial. Therefore, N.J.S.A. 2A:53A-28 must be construed to require a plaintiff to identify with specificity any medical records or other information he believes are needed to prepare an affidavit of merit, in order to trigger the forty-five day period for a response.

[Id. 558-59.]

Plaintiff apparently did not serve formal discovery demands upon defendant; none are included in the record before us. Nor is there any evidence that, outside the discovery process, he requested specific records from defendant's case file. Rather, plaintiff wrote to defendant's counsel on December 31, 2010: "As far as our documentation requests, obviously your law firm wants a copy of everything that I have that relates to this case, and vice versa of course, I want the same from your client." Plaintiff did not file a sworn statement that specifically identified the documents he needed.

Plaintiff also argues that his certification in support of his motion for reconsideration, filed after his complaint was dismissed with prejudice, can be deemed both a request for records, and a sworn statement in lieu of the affidavit of merit. We disagree. The certification lacked specificity. It was also untimely. It was filed months after the answer, and after the case was dismissed without prejudice. Moreover, the request for documents must precede, by at least forty-five days, the statement in lieu of affidavit.

We also reject plaintiff's argument that the affidavit of merit requirement is relaxed where the case is presented not to a jury of laymen, but to a judge who, presumably, has expertise in the field. "The rule . . . is that, since the standard of care usually is an issue of fact, expert testimony is essential, even where the court is the factfinder." Mallen, supra, § 37.23 at 1673; see also Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474, 481 (3d Cir. 1979) (finding the expert testimony requirement applies equally to both bench and jury trials). Reliance on a judge's expertise would raise due process issues. Bonhiver v. Rotenberg, Schwartzman & Richards, 461 F.2d 925, 928-29 (7th Cir. 1972) (finding that allowing the trial judge to determine the standard of care would violate due process as such a determination cannot be subject to cross examination). Also, as a practical matter, not every trial judge is an expert in the particular field of practice at issue. Mallen, supra, at § 37.23 at 1674 ("To dispense with expert testimony is to assume that the judge possesses the knowledge and experience by which to gauge the attorney's conduct.").

Finally, plaintiff's claim of overcharges is not saved by characterizing it as a breach of contract claim. We recognize that an affidavit of merit is not required to support a breach of contract claim that does not implicate a professional standard of care. Couri v. Gardner, 173 N.J. 328, 340 (2002). However, plaintiff did not allege overcharges in his complaint, nor did he seek to amend his complaint to include such a claim. He alleged defendant committed mistakes before trial. "[N]umerous mistakes were made by Defendant, both during trial and the years before[.]" He alleged that as a result, he accepted a lower settlement amount. Even if we indulgently read "settlement amount" to mean the net proceeds to him, his complaint does not include a claim that defendant overstated the costs of experts and transcripts. Thus, the court did not err in dismissing plaintiff's complaint.

Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.