professional negligence

 

A Superior Court judge has ruled that the law firm Mazie, Slater, Katz & Freeman must proceed in a legal malpractice lawsuit over the reversal of a $166 million child abuse verdict.

Judge Keith Lynott of Essex County Superior Court denied the motion by Mazie Slater and attorney David Mazie for reconsideration of the judge’s denial of their motion to dismiss the malpractice claim filed by former client Neomi Escobar. Lynott also denied the motion by Mazie and Mazie Slater to dismiss a claim for punitive damages.

The judge also tossed a cross-motion by the plaintiff for a protective order barring the use of a certification from former Appellate Division Judge John Keefe, who was a mediator in the underlying case. Keefe gave a statement that the defendants submitted along with a motion seeking removal of Escobar as guardian of her grandson Jadiel Velesquez, the abused child at the center of the case.

The malpractice suit accuses Mazie and his firm of negligently failing to advise Escobar on factors that could limit her recovery in the suit—namely, the possibility that a court would rule that employees of the state’s child welfare agency were entitled to immunity, and that an allocation of liability for the child’s injuries would result in most of the blame being directed at the child’s abusive father. Escobar’s suit claims she rejected the state’s  $10 million settlement offer based on Mazie’s advice. Mazie and his firm claim they gave Escobar ample warnings of the risks she faced by turning down the settlement.

A jury returned a $166 million verdict against the state Division of Youth and Family Services after Mazie brought a negligence suit on Escobar’s behalf. The suit claimed the child protection agency was liable for failing to remove Jadiel from his parents. Jadiel became blind and cognitively disabled after his father violently shook him to stop him from crying.

A trial judge cut the verdict down to $102 million, then the Appellate Division threw out the verdict, finding DYFS rules gave its workers no basis to remove the infant based on the information they had at the time. The panel also said the two DYFS employee defendants in the case were entitled to statutory and qualified immunity because their actions in the case were reasonable.

After the Appellate Division vacated the verdict, Escobar sued Mazie and his firm for malpractice. Escobar is represented by Bruce Nagel, a former law partner of Mazie until 2006, when the two ended their alliance in an acrimonious split.

After Lynott denied the defense motion to dismiss, Mazie and his firm said in their motion for reconsideration that the judge improperly failed to examine the materials they submitted with their motion that concerned legal advice Mazie gave to Escobar. But Lynott said this was essentially the same evidence and argument they submitted the first time around.

Lynott responded that “the Court is required at this stage of the case to accept as true” the plaintiff’s allegations that the Defendants failed to properly advise Escobar about the chances that a court would find the DYFS caseworkers entitled to immunity from suit and that an allocation of fault would find the child’s injuries were mostly the fault of his abusive father and not the government caseworkers.

Lynott rejected the plaintiff’s request for a protective order concerning a certification by mediator Keefe. While the plaintiffs asserted that “under no circumstances can the mediator, the parties or counsel disclose anything that took place in the mediation,” Lynott said the confidentiality agreement between the mediator and parties might not be applicable based on the circumstances—namely, the plaintiff’s claims in the case relating directly to discussions that may have been held during the mediation.

Paul Carbon of Margolis Edelstein in Berkeley Heights, who represents Mazie and his firm in the case, declined to  comment.

But Adam Slater of Mazie Slater said his firm will move for leave to appeal Lynott’s rulings. Slater said his firm repeatedly warned Escobar that the Appellate Division was likely to throw out the $102 million award and conclude that the DYFS workers who handled Jadiel’s case were entitled to immunity from suit. The state proposed a $10 million settlement but Escobar rejected it, Slater said.

“If this case can go forward, no lawyer can ever be safe,” Slater said.

Nagel did not respond to a reporter’s call about the case.