RANDY B. ROSENBLATT VS. VINCENT STRIPTO, ESQ. (L-12-13, MONMOUTH COUNTY AND STATEWIDE)
A-0177-15T4
| N.J. Super. Ct. App. Div. | Aug 2, 2017Background
- Plaintiff Randy Rosenblatt sued two former divorce attorneys (Stripto/Drazin & Warshaw and Bachman/Goldstein & Bachman), alleging they failed to advise her of a potential marital tort (Tevis) claim based on three incidents (2002, 2003, 2004), which she later discovered was time-barred.
- Stripto represented Rosenblatt from 2000; Bachman succeeded him and handled arbitration resolving the divorce. A final restraining order (FRO) from 2004 and prior filings referenced the incidents.
- Rosenblatt produced an expert (attorney Ronald Edelman) who opined defendants had an obligation to advise about Tevis but did not opine on proximate causation or likely success/value of a Tevis claim; defendants’ expert (David Wildstein) opined such claims are rare, typically require medical/expert proof, and likely would not have succeeded or could have harmed other matrimonial outcomes.
- The trial court ruled expert testimony was required to prove proximate causation in this malpractice suit and dismissed Rosenblatt’s claims after Edelman disclaimed any causation opinion and plaintiff produced no other causation expert or medical evidence.
- On appeal the Appellate Division affirmed, holding proximate causation here required expert proof because loss causation involved complex, non-obvious inquiries (would plaintiff have sued, would a Tevis claim have yielded net recovery after costs, and would it have harmed other matrimonial outcomes).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to prove proximate causation in legal malpractice arising from failure to advise about a Tevis claim | Rosenblatt argued she could prove causation without an expert (e.g., by a "suit within a suit" or her own certification that she would have pursued the claim) | Defendants argued causation required expert proof because establishing that a Tevis claim would have produced a net, non-prejudicial recovery implicates complex legal and evidentiary judgments beyond lay understanding | Court held expert testimony was required; absence of an expert causation opinion was fatal and summary judgment for defendants affirmed |
| Whether plaintiff’s expert (Edelman) adequately opined on proximate causation | Edelman’s report implied defendants failed to protect Rosenblatt’s Tevis rights; plaintiff relied on that | Defendants noted Edelman expressly disclaimed any opinion on whether defendants’ conduct proximately caused compensable loss or whether the Tevis claim would have succeeded | Held Edelman did not offer a proximate-cause opinion; his deposition confirmed he did not opine on success/value of the Tevis claim or its effects on matrimonial outcomes |
| Whether a "suit within a suit" procedure obviates the need for expert testimony on causation | Rosenblatt argued she could prove causation at trial by presenting the evidence that would have been offered in the Tevis case | Defendants argued the procedural choice does not eliminate the substantive requirement to prove causation by competent evidence, which may include expert testimony | Held the "suit within a suit" does not relieve a plaintiff of the substantive obligation to prove causation; expert testimony remains necessary where causation is not within common knowledge |
| Whether plaintiff proved damages for permanent physical/mental injury | Plaintiff asserted she suffered severe temporary and permanent injuries requiring ongoing care | Defendants pointed out no medical records, treatment, or expert medical/psychiatric proof of permanent injury existed | Held trial court correctly dismissed claims for permanent physical/mental injury due to lack of medical evidence |
Key Cases Cited
- Tevis v. Tevis, 79 N.J. 422 (N.J. 1979) (establishes viability of marital tort claims for assaults in the matrimonial context)
- Jerista v. Murray, 185 N.J. 175 (N.J. 2005) (sets out elements of legal malpractice: duty, breach, proximate causation, damages)
- Sommers v. McKinney, 287 N.J. Super. 1 (App. Div. 1996) (discusses when expert proof is required in malpractice and when causation may be proven without experts)
- Conklin v. Hannoch Weisman, 145 N.J. 395 (N.J. 1996) (proximate cause requires malpractice be a substantial factor in bringing about the claimed injury)
- Merenoff v. Merenoff, 76 N.J. 535 (N.J. 1978) (cited by defendants on triviality of alleged conduct; court distinguished it)