CATHY MITCHELL VS. GERALD SKEY (L-0486-12, MERCER COUNTY AND STATEWIDE)
A-1657-14T2
| N.J. Super. Ct. App. Div. | May 12, 2017Background
- Cathy Mitchell (attorney) sued her former trial counsel W.S. Gerald Skey and his firm for legal malpractice arising from their representation of her in a 2011 divorce trial against Richard Miller.
- Mitchell alleged Skey delayed key discovery (deposing Miller, obtaining bank and billing records), subpoena efforts were quashed, and he failed to coordinate with a forensic accountant, harming her settlement/trial position.
- Mitchell filed an affidavit of merit (AOM), the court found the original AOM deficient, she filed a replacement, and defendants moved to dismiss; Bhattacharya (co-defendant) was dismissed for AOM insufficiency but Skey remained.
- The case experienced discovery disputes and competing summary judgment motions; the trial court repeatedly ordered Mitchell to serve an expert report and set a December 1, 2014 deadline.
- Mitchell failed to serve a legal-malpractice expert report by the deadline; the court granted defendants' renewed summary-judgment motion and dismissed her complaint on December 1, 2014. Mitchell appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony/AOM was required in this malpractice claim | Mitchell: malpractice was obvious/common knowledge; no expert needed | Defendants: malpractice involved legal judgment and investigation adequacy, requiring expert proof | Court held expert testimony/AOM was required; this was not a "common knowledge" case |
| Whether Mitchell's allegations (late discovery, subpoenas, failure to work with accountant) presented a basic breach | Mitchell: failures were clear omissions and causally linked to harm | Defendants: allegations concern adequacy of investigation and legal judgment, requiring expert analysis | Court held allegations raised nuanced, non-basic issues needing expert explanation |
| Whether proximate causation could be established without expert proof | Mitchell: causation was apparent to lay jurors | Defendants: causation from alleged omissions requires expert analysis | Court held proximate causation was not sufficiently obvious; expert needed |
| Procedural: whether dismissal on summary judgment was appropriate for failure to serve expert report | Mitchell: requested extensions and argued motions were unresolved; sought stay/extension | Defendants: deadline had been set repeatedly; failure to comply justified summary judgment | Court affirmed summary judgment dismissal for failure to timely furnish expert report |
Key Cases Cited
- Nicholas v. Mynster, 213 N.J. 463 (de novo review of summary judgment standard)
- Hubbard v. Reed, 168 N.J. 387 (common-knowledge doctrine can obviate expert requirement in rare cases)
- Brizak v. Needle, 239 N.J. Super. 415 (no expert needed where attorney did virtually no investigation and the error was obvious)
- Sommers v. McKinney, 287 N.J. Super. 1 (no expert required where attorney did no work/made misrepresentations inducing a bad settlement)
- Conklin v. Hannoch Weisman, 145 N.J. 395 (elements of legal malpractice: duty, breach, proximate causation)
- Brach, Eichler v. Ezekwo, 345 N.J. Super. 1 (expert testimony usually required to evaluate adequacy of legal investigation)