A New Jersey appeals court has reinstated a malpractice suit against a New Jersey lawyer that had been dismissed below because the plaintiff’s expert relied on his own experience rather than on a survey of settlement and verdict amounts in comparable cases.
The Appellate Division on Aug. 15 remanded an action against attorney Christian Stueben alleging that he mishandled the case of a former client who was injured when she slipped on a wet floor at the Tropicana Casino & Resort in Atlantic City, N.J.
The case was dismissed on summary judgment below because the trial court found the plaintiff’s expert had offered up a net opinion in contending that the underlying case might have been worth more than threefold the amount for which it settled.
But the appeals court said “it was sufficient, for admissibility purposes, for him to rely on his personal experience, albeit limited, in handling slip-and-fall cases and matters adverse to Atlantic County casino defendants.”
The litigant, Rosanna Epstein, fell inside the Tropicana in September 2006, sustained shoulder, back and other injuries, and was treated by numerous physicians, according to the opinion.
At least three doctors issued reports, but they weren’t produced for the purposes of litigation, didn’t explicitly link Epstein’s injuries to the fall and didn’t address causation and permanency, the opinion said.
Epstein was represented by Stueben, then the head of a Fort Lee, N.J., firm. He repeatedly extended discovery but his final motion for an extension was denied. Stueben then withdrew from the case based on a conflict, according to the opinion.
The basis for the conflict was a dispute Stueben had with Epstein’s brother, whom he represented in an unrelated matter, according to Angela Roper, whose firm represents Epstein in the malpractice case.
Stueben was replaced by Hurvitz & Waldman of Pleasantville, N.J., Roper said. That firm attempted to reopen discovery in September 2008, but was unsuccessful, according to the opinion.
During negotiations, Epstein’s highest demand was $135,000. An arbitrator found Epstein 10 percent at fault and awarded $85,000, but the Tropicana sought a trial. Tropicana offered $77,000, which Epstein rejected, according to the opinion.
Before trial, one of Epstein’s treating physicians, Edward Soriano, testified that her fall precipitated preexisting degenerative conditions. Tropicana found that she’d withheld information from her doctors about treatment in 2003 for shoulder and arm pain, according to the opinion, Also, it was reported that the resort was on the verge of bankruptcy.
Against that backdrop, Epstein agreed to settle the matter for $45,000 in March 2009, the opinion said.
She filed the malpractice action against Stueben, claiming he failed to obtain an expert opinion linking the fall to her conditions.
A medical expert obtained for the malpractice action attributed the injury totally to the fall.
Another expert, Hazlet, N.J.-based attorney Andrew Zapcic, opined that Stueben violated the standard of care because Soriano was prepared to provide expert testimony as to causation, and Epstein was forced to settle the case.
Zapcic said the case could’ve settled for between $125,000 and $150,000, despite the fact that Tropicana was approaching bankruptcy and Epstein had a previous undisclosed injury.
He based the estimate on his personal experience—he had tried five or six slip-and-falls and litigated about 15 cases against casinos in his career, he said—and did not provide verdict or settlement data, according to the opinion.
Bergen County Superior Court Judge John Conte granted Tropicana’s summary judgment motion, deeming Zapcic’s report a net opinion. The judge said Zapcic’s settlement value had no factual basis, and cited other insufficiencies, according to the opinion.
On Epstein’s appeal, however, Appellate Division Judges Mitchel Ostrer and Harry Carroll were “convinced the trial court mistakenly exercised its discretion in concluding that Zapcic offered an inadmissible net opinion,” and reversed and remanded for trial.
The issues Conte pointed out in Zapcic’s report had to do with the strength of the expert opinion, not its admissibility, the court said.
Soriano’s report was “sufficient circumstantial evidence, if not direct evidence, that an opinion directly addressing causation and permanence could have been procured, had defendant sought it,” the court said in the per curiam decision.
As for the case valuation, expert testimony was necessary but “a systematic study of jury verdicts was not required to assure admissibility of Zapcic’s estimate, although it certainly would have bolstered its persuasiveness,” the panel said.
The court did note that Tropicana’s expert, David Cedar, did an “in depth analysis of slip-and-fall verdicts.”
Still, the court said, “Although Cedar’s opinion was clearly more thorough than Zapcic’s, and perhaps, more persuasive to an ultimate fact-finder, it did not demonstrate that Zapcic’s opinion was inadmissible.”
Roper, of Roper & Twardowsky in Totowa, N.J., said the decision is “important because it stands for the value that you can use an expert witness to testify on what they believe a case would’ve settled for, if handled properly, based on their experience.”
“In a personal injury legal malpractice case, there is no method to define what the damages are,” she added.
Stueben, currently practicing at Rosemarie Arnold’s Fort Lee, N.J., firm, didn’t return a call.
Marshall Bilder of Eckert Seamans Cherin & Mellott in Trenton, N.J., Stueben’s counsel, also didn’t return a call.
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