Opinion
DOCKET NO. A-556Q-12T3
08-15-2014
ROSANNA EPSTEIN and DAVID EPSTEIN, her husband, Plaintiffs-Appellants, v. CHRISTIAN P. STUEBEN, ESQ., Defendant-Respondent.
Kenneth S. Thyne argued the cause for appellants (Roper & Twardowsky, LLC, attorneys; Mr. Thyne, of counsel and on the briefs; Erica A. Barker, on the briefs). Marshall D. Bilder argued the cause for respondent (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Bilder, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5518-10. Kenneth S. Thyne argued the cause for appellants (Roper & Twardowsky, LLC, attorneys; Mr. Thyne, of counsel and on the briefs; Erica A. Barker, on the briefs). Marshall D. Bilder argued the cause for respondent (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Bilder, of counsel and on the brief). PER CURIAM
Plaintiffs Rosanna Epstein and her husband David Epstein appeal from the trial court's May 9, 2013, order granting summary judgment and dismissing their professional negligence claim against their former attorney, defendant Christian P. Stueben. The underlying action involved a slip-and-fall claim by Rosanna and a loss of consortium claim by David against Tropicana Casino & Resort.
We use plaintiffs' first names for convenience and intend no disrespect in doing so. The underlying complaint named Columbia Entertainment, doing business as Tropicana, and other business entities that, among other things allegedly owned, operated, and maintained the casino hotel. We collectively refer to the defendants in the underlying action as Tropicana.
After discovery closed in the underlying action, the court granted defendant's motion to withdraw based on an alleged conflict. Represented by new counsel, plaintiffs settled the underlying action on the eve of trial for $45,000. Plaintiffs claim they were compelled to accept that amount because defendant failed to obtain a medical expert's report establishing causation and permanency of Rosanna's alleged injuries. In support of their negligence action, plaintiffs produced the report of attorney Andrew M. Zapcic. He opined that had defendant not breached an attorney's reasonable standard of care, plaintiffs' case would have had a settlement value of $125,000 to $150,000. In granting summary judgment, the trial court concluded that Zapcic offered an inadmissible net opinion. Absent other admissible evidence to sustain plaintiffs' claim, the judge concluded that dismissal was warranted.
Plaintiffs argue that the court erred in deeming Zapcic's opinion to be inadmissible. We agree, and reverse.
I.
We discern the following facts from the record, affording plaintiff all favorable inferences based on the "competent evidential materials." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Rosanna slipped and fell on a wet floor near an escalator at the Tropicana on September 9, 2006. She complained she injured her left ankle, toe, left knee, and lower right back. She sought medical treatment two days later, complaining of back and neck discomfort. Back x-rays showed no fractures or malalignments, but indicated that Rosanna suffered from prominent joint degenerative changes. Neck x-rays were also negative. Two months later, Rosanna retained defendant to file a personal injury action, which he did in January 2007.
Rosanna was treated initially by her family physician, Dr. Rekha Sehgal, and two orthopedists, Dr. Stephen Zabinski, and Dr. Kimberley Smith Martin. In October, MRIs were performed of Rosanna's cervical spine, lumbar spine, and left shoulder at Dr. Zabinski's request. In early 2007, Rosanna was evaluated by three additional physicians — Dr. Richard Strauss, Dr. Dirk Skinner, and Dr. Edward Soriano. Each one prepared a report. Dr. Strauss addressed his report to Dr. Sehgal, who referred Rosanna to him. Dr. Soriano addressed his report to Dr. Strauss for the same reason. The reports were apparently not prepared for the purpose of supporting plaintiffs' lawsuit.
The record does not include records or reports of these three physicians. However, a memorandum by plaintiffs' substitute counsel asserted that Dr. Zabinski diagnosed Rosanna with "cervical sprain/strain with persistent left sided radicular syndrome; left shoulder sprain/strain with crepitus, weakness . . . mild lumbar sprain/strain; a left knee spraining injury with crepitus and a question of an underlying internal derangement." After reviewing MRIs that he ordered, Dr. Zabinski noted multiple disc herniations in the cervical spine, and rotator cuff tendonitis in the left shoulder. An MRI of the lumbar spine also showed disc herniation.
In her visit with Dr. Strauss, a neurological surgeon, Rosanna complained of significant and radiating neck and back pain and denied any symptoms prior to her fall. Dr. Strauss reported in February 2007 that there was no evidence of acute traumatic injury to the cervical or lumbar spine, such as soft disc herniation or fracture/subluxation. Although he also concluded Rosanna suffered from degenerative disc disease, he found "her subjective symptomatology . . . disproportionate to the objective clinical evidence available from her physical examination and radiographic studies." Dr. Strauss rejected suggestions in the MRI studies that Rosanna had herniated discs between the third and fourth cervical vertebrae. He requested an EMG and nerve conduction study, which Dr. Skinner performed. Noting Rosanna's "poor effort," Dr. Skinner reported that results were within normal limits, and noted no denervation.
Dr. Strauss also referred Rosanna to Dr. Soriano, who was certified in physical medicine and pain management. In his February 22, 2007 report, Dr. Soriano recorded Rosanna's complaint of neck pain radiating into her left arm, hand, and shoulders; and lower back pain, radiating into both legs. Rosanna stated her condition began following her September 2006 fall. Based on his examination, Dr. Soriano's assessment was: "1. Acute left C5-6 herniated nucleus pulposus with left radiculitis. 2. Lumbar sprain and strain. 3. Left shoulder impingement syndrome." His plan called for epidural injections, physical therapy, and pain medication. None of the three physicians expressly stated that Rosanna suffered acute injuries as a result of the fall, nor did they render opinions as to causation and permanency.
Rosanna continued to complain of radiating pain in her neck and back that significantly impaired her quality of life. She continued to treat with Dr. Soriano and others. After multiple extensions, discovery was scheduled to end on June 11, 2008. Defendant filed a motion on that date to extend discovery. The court denied the motion as untimely. Shortly thereafter, he successfully moved to withdraw as plaintiffs' counsel. Defendant asserted that a souring business relationship with Rosanna's brother, for whom Rosanna then worked, created a conflict.
The record reveals that Rosanna was deemed disabled as of February 18, 2007, through June 16, 2007, due to her injuries sustained in the fall, but then returned to work in January 2008, initially part-time, but full-time as of April 2008.
Plaintiffs' new counsel unsuccessfully sought to reopen discovery in September 2008. Counsel asserted that Rosanna continued to receive treatment for her pain, her condition had worsened, and she had not achieved maximum medical improvement. He argued an extension was necessary to allow Rosanna to undergo additional tests, evaluations, and treatment, and to obtain additional records and expert reports. Counsel included a follow-up report of Dr. Philip Tasca, an associate of Dr. Soriano. Dr. Tasca noted that Rosanna reported moderate to severe pain, exacerbated by neck and left shoulder motion. His assessment included findings of cervical spondylosis, myofascial pain syndrome, left rotator cuff impingement, and apparently, radiculopathy or radiculitis. Dr. Tasca's report did not render an opinion regarding causation.
The report states, "RO left C6 versus C5 radic — C7 also possible."
Plaintiffs' new counsel thereafter offered to settle the case in October 2008 with a "high" demand of $135,000. The case proceeded to non-binding arbitration later that month, resulting in a proposed net award to plaintiff of $85,500. The arbitrator found Rosanna ten percent at fault. Tropicana demanded a trial de novo. Plaintiffs did not. Instead, they extended an offer of judgment in the amount of $77,000, which was not accepted.
In his de bene esse deposition before the scheduled trial date in March 2009, Dr. Soriano opined regarding causation, over defense counsel's objection that the issue of causation was not preserved in his reports provided during discovery. Dr. Soriano testified that Rosanna's fall "precipitated" "new symptoms," notwithstanding her "underlying degenerative changes." He conceded that Rosanna "did not have a pristine cervical spine by any means." Her conditions included "degenerative changes in her neck . . . multiple levels of . . . disk bulging, dark disks . . . [and] slight slippage of the vertebra." He asserted that asymptomatic patients with abnormal findings on MRI can "have some type of trauma or injury and become symptomatic." In the face of defense counsel's objections, Dr. Soriano did not expressly address whether Rosanna's injuries were permanent, but stated that her symptoms persisted and continued to be treated.
As trial approached, Tropicana disclosed its discovery of information that Rosanna had previously been treated in 2003 for left shoulder and arm pain, contrary to her denials to her physicians of any prior symptoms. Also, there were widespread reports that Tropicana was on the verge of filing for bankruptcy protection. The parties agreed to settle the case for $45,000 on March 4, 2009. Plaintiffs' counsel acknowledged that the impending filing factored into plaintiffs' decision to settle. Tropicana filed its Chapter 11 petition the following month.
Plaintiffs filed their professional negligence action against defendant in June 2010, which was later supported by an affidavit of merit. Plaintiffs asserted that defendant negligently failed to obtain an admissible expert opinion causally tying Rosanna's fall to her reported symptoms. As a result, plaintiffs were handicapped in their efforts to settle the case.
Plaintiffs produced a July 2012 expert report of Dr. Evangelos Megariotis, a board-certified orthopedic surgeon, who opined that Rosanna suffered permanent neck and back injuries as a result of her 2006 fall. Dr. Megariotis based his opinion on medical records covering the period between May 2003 and January 2012. Dr. Megariotis did not examine Rosanna for his report. Contrary to Dr. Strauss, Dr. Megariotis found that the 2006 MRIs "revealed an impingement syndrome of the left shoulder, herniated discs C3-C4, C4-C5, C5-C6, C6-C7 and spondylotic changes and an anterolisthesis of L4 on L5 facet arthroplasty, and what was described as an L3-L4 bulge."
His diagnosis was:
1. Chronic persistent cervicothoracic derangement secondary to traumatically induced disc herniations of C6-C7, C5-C6, and C3-C4 with secondary posttraumatic spondylosis and contractures and intermittent myeloradiculopathy.He opined that the diagnoses were "100% CAUSALLY RELATED TO HER SEVERE INJURIES OF 09/09/2006." Rosanna's prognosis for improvement was poor.
2. Chronic persistent severe and progressive lumbar spondylosis secondary to traumatic acceleration, exacerbation and worsening of an anterolisthesis of L4 on L5, with a progressive exacerbation of a preexisting disc herniation L4-L5, acute traumatic L3-L4 disc herniation, not bulge, with progression, and severe progressive posttraumatic myofascial contractures and intermittent bilateral myclopathy and myeloradiculopathy.
3. Left shoulder post traumatic arthrosis of the AC joint and Glenohumeral joint with contractures and weakness secondary to direct trauma, secondary contractures, and nerve dysfunction in the neck produced by disc injuries.
4. Chronic persistent and worsening anxiety, depression, and insomnia
syndrome secondary to chronic, posttraumatic pain.
5. Worsening opioid medication tolerance secondary to medically necessary chronic use.
Plaintiffs also produced Zapcic's report. Zapcic opined that defendant violated the standard of care by failing to obtain a report of an expert prepared to testify at trial that plaintiff suffered permanent injuries as a result of the fall. Zapcic asserted, "Dr. Soriano was not permitted to discuss causation or permanency, since [defendant] . . . had not supplied an adequate report in Discovery prior to the Discovery end date." Zapcic opined that plaintiffs' counsel "was forced to settle the case on a 'compromised' basis since [plaintiffs'] medical liability expert was unable to link her injuries to the slip and fall accident at his [d]e [b]ene [e]sse deposition." Zapcic relied on the deposition of plaintiffs' trial counsel in the underlying action, who testified that Dr. Soriano was prepared to testify that plaintiff suffered a permanent injury. He noted that permanence was an essential factor in calculating damages.
As we have noted, Dr. Soriano did discuss causation and permanency in his de bene esse deposition, but he did so after defense counsel preserved an objection for trial. Since the objection appears to have been well-founded, the result would likely have been the same: Dr. Soriano would have been unable at trial to "link [Rosanna's] injuries to the slip and fall accident."
Zapcic also opined that defendant was negligent by failing to timely seek an extension of discovery. Zapcic conceded that the timing of the filing of the complaint was a judgment call. However, the relatively early filing of the complaint created the need to continually extend discovery to document Rosanna's condition.
Zapcic recognized "it would be speculative to place an absolute value on [plaintiffs'] case" if it had gone to trial. However, he opined that had defendant obtained a suitable medical expert report with "proper language as to causation, [and] permanency," a fair settlement range of the case would have been between $125,000 and $150,000. He recognized Tropicana had threatened bankruptcy, but asserted it was still a viable entity. In his deposition, Zapcic acknowledged that evidence of Rosanna's 2003 shoulder injury could have negatively affected the settlement value of the case.
Zapcic based his estimate of settlement value in part on his "experience in trying and settling personal injury matters involving liability and injuries comparable to those sustained by the [p]laintiff in this case." At deposition, he stated he had tried five or six slip-and-fall cases in his career, and also litigated about fifteen cases against casinos. Although his slip-and-fall cases involved recoveries less substantial than what he opined plaintiffs should have received, he stated that they also involved less significant injuries. He did not examine any jury verdict or settlement data. Zapcic stated he discounted his settlement estimate to account for the fact that the claim was against a casino in Atlantic County, and Atlantic County jurors were often sympathetic to casinos.
In concluding that Zapcic's opinion was an "inadmissible net opinion," the court cited "gaps" in Zapcic's report and testimony. The court found that the only proffered evidence that defendant could have obtained more favorable medical testimony was Dr. Soriano's de bene esse deposition. But, the court was unconvinced that anything Dr. Soriano said "would potentially have changed the outcome of the settlement" and "[a]nything in addition to what Dr. Soriano testified to is pure speculation." The court found that Zapcic failed to consider "in any meaningful way" Rosanna's prior injury and Tropicana's impending bankruptcy. The court also found that Zapcic's estimate of the settlement value range lacked a factual basis, other than Zapcic's minimal experience. The court also concluded that "Zapcic's opinion cannot and does not say that the Tropicana would have offered a better settlement if [d]efendant . . . had secured better medical reports."
II.
On an appeal from an order granting summary judgment, we exercise de novo review, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We determine whether there exists a genuine issue of material fact, and if not, whether the motion judge correctly applied the law. Ibid. However, we review a trial court's decision regarding the admissibility of expert evidence for an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008). The abuse-of-discretion standard applies to evidentiary rulings preliminary to determinations of motions for summary judgment. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010).
Applying that standard, we are convinced the trial court mistakenly exercised its discretion in concluding that Zapcic offered an inadmissible net opinion. "An expert's conclusion is considered to be a 'net opinion,' and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence." Creanga v. Jardal, 185 N.J. 345, 360 (2005). An expert is thus required "to give the why and wherefore of his or her opinion, rather than a mere conclusion." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (internal quotation marks and citation omitted).
The "net opinion" rule has been defined as "'a prohibition against speculative testimony.'" Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525 (App. Div. 2007) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997 )), certif. denied, 194 N.J. 272 (2008). A net opinion is one that "present[s] solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion." Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (2008). In general, experts "must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable." Koruba, supra, 396 N.J. Super. at 526 (internal quotation marks and citation omitted).
Defendant argues that Zapcic's opinion was a net opinion because (a) he lacked concrete proof that Dr. Soriano or any other potential medical witness would have clearly opined that Rosanna's fall caused her pain and other symptoms, and they were permanent; (b) he gave insufficient weight to Rosanna's 2003 injury and Tropicana's impending bankruptcy; and (c) he relied on limited personal experience in estimating the settlement value of the case if a more favorable report had been obtained. We disagree.
Defendant misapplies the net opinion rule. Dr. Soriano's de bene esse deposition is sufficient circumstantial evidence, if not direct evidence, that an opinion directly addressing causation and permanence could have been procured, had defendant sought it. We reject the argument that Dr. Soriano's deposition testimony was irrelevant because it was offered after the close of discovery. Also, Dr. Megariotis interpreted Rosanna's 2006 MRIs to show multiple herniated discs. Defendant likely could have procured an expert report showing Rosanna's injuries were permanent, because she continued to experience unrelieved symptoms two years after her slip-and-fall.
Expert opinion testimony "is not inadmissible simply because it fails to account for some particular condition or fact which the adversary considers relevant," provided the opinion is supported by other sufficient reasons. Hisenaj, supra, 194 N.J. at 24 (internal quotation marks and citation omitted). The fact that Zapcic gave relatively little weight to the 2003 injury and Tropicana's potential bankruptcy goes to the weight of his opinion, not its admissibility.
We recognize that plaintiffs' damages claim is measured by comparing what an attorney exercising reasonable care would have obtained in settlement, and what defendant obtained. Expert testimony was necessary to determine the fair settlement value of plaintiff's case. See Kelly v. Berlin, 300 N.J. Super. 256, 269 (App. Div. 1997). However, a systematic study of jury verdicts was not required to assure admissibility of Zapcic's estimate, although it certainly would have bolstered its persuasiveness. 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.
We note that defendant presented the expert opinion of David M. Cedar, who did perform an in depth analysis of slip-and-fall verdicts. In light of his research, and his personal experience, Cedar opined that a $45,000 settlement was a reasonable result. 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.
--------
We also do not read Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97 (App. Div. 2001), or Fireman's Fund Insurance Co. v. Imbesi, 361 N.J. Super. 539 (App. Div.), certif. denied, 178 N.J. 33 (2003), both cited by defendant, to compel a different result. In Kaplan, the court rejected an opinion regarding the settlement value of a divorce matter where the expert apparently did not offer any evidential support for the stated standard of care, nor did the expert rely on his own prior cases, or objective studies of similar case results, in support of his damages opinion. Likewise, the rejected opinions in Firemen's Fund expressed bald conclusions regarding the value of claims. That is not the case here. Since plaintiff presented sufficient evidence to withstand defendant's summary judgment motion, she was entitled to present her case to a jury. We reverse and remand the case for trial.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION