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The Appellate Division has reaffirmed trial courts’ authority to require a legal malpractice plaintiff to present expert testimony to demonstrate proximate cause.
In an Aug. 2 decision, Appellate Division Judges Mitchel Ostrer and Francis Vernoia declined to reinstate legal malpractice claims filed by a dissatisfied ex-client against two of her former divorce attorneys.
Plaintiff Randy Rosenblatt alleged that Vincent Stripto and Howard Bachman failed to inform her that she had a potential marital tort claim against her ex-husband because of three instances of alleged physical abuse.
Both Stripto, of the Red Bank offices of Drazin & Warshaw, and Bachman, now with the Old Bridge offices of Dwyer, Bachman & Newman, argued that they did not urge Rosenblatt to pursue the claim—commonly known as a Tevis claim based on the state Supreme Court’s 1979 ruling in Tevis v. Tevis—because she did not seek medical attention after the alleged incidents, there were no long-term effects, and raising the claims could have further complicated already contentious divorce proceedings, according to the decision.
At the time the lawsuit was filed, Bachman was with a firm named Goldstein & Bachman.
Monmouth County Superior Court Judge Katie Gummer dismissed the lawsuits in March 2015 after finding that Rosenblatt failed to present expert testimony to demonstrate that there was proximate cause to believe the two attorneys gave bad advice.
In the unpublished ruling, the appeals court said the state’s courts have long required that plaintiffs in malpractice cases provide expert testimony to explain issues that may “fall beyond the ken of the ordinary juror.”
“Only in the exceptional case, when the breach of duty is basic or obvious, is an expert not required,” the appeals court judges said. “We will not disturb [Gummer's] discretionary conclusion.”
Rosenblatt was represented by Gary Ginsberg of Mount Laurel’s Ginsberg & O’Connor. Stripto and his firm were represented by Michael Canning of Giordano, Halleran & Ciesla in Red Bank. Bachman and his former firm were represented by Iram Valentin of the Hackensack office of Kaufman Dolowich Voluck.
None of the attorneys returned calls seeking comment.