Legal Updates for Lawyers’ Professional Liability - CASE LAW UPDATE

Appellate Division affirms summary judgment to law firm, finding that plaintiff’s expert report was devoid of any evidence establishing the standard of care providing the benchmark for the opinions offered.

DeCaro v. Elkind and DiMento, 2024 WL 2196587

The plaintiff was involved in a verbal altercation with another patron while at a bar in a Little Egg Harbor, New Jersey, restaurant. She asserted she was later confronted by the patron outside the restaurant, physically assaulted and suffered debilitating injuries.

The plaintiff retained the defendants to file a complaint on her behalf against the restaurant and patron. On the plaintiff’s behalf and with her consent, the defendants agreed to an expedited trial on liability and damages with a high-low agreement, pursuant to which the plaintiff would receive a minimum recovery of $150,000 and a maximum recovery of $750,000. The parties waived their rights to appeal from the verdict, as molded by the court in accordance with the high-low agreement. The parties also agreed the molded verdict would constitute a settlement of all claims.

The plaintiff’s claims against the restaurant and patron were tried before a jury in accordance with the consent order. The jury determined the restaurant was not negligent, the plaintiff was 60% negligent and the patron was 45% negligent. Although the jury’s liability findings otherwise resulted in a no-cause verdict in the restaurant’s and patron’s favor, the court awarded the plaintiff $150,000 in accordance with the parties’ high-low agreement.

The plaintiff subsequently filed a legal malpractice complaint against the defendants, alleging they “negligently and in breach of their fiduciary duty” represented her in the lawsuit against the restaurant and patron. Following the exchange of discovery, the defendants moved for summary judgment, asserting the plaintiff could not sustain her burden of proof at trial because the report from the plaintiff’s liability expert on the defendants’ alleged deviations from the standard of care constituted an inadmissible net opinion. Following argument on the motion, the judge issued a comprehensive bench opinion granting the defendants’ motion.

On appeal, the Appellate Division affirmed the judge, holding the trial court did not abuse its discretion in determining that the plaintiff’s expert’s report was comprised of a series of inadmissible net opinions. The report included opinions concerning purported errors committed by the defendants during their representation of the plaintiff in the personal injury case. The Appellate Division held that the expert report was devoid of any evidence establishing the standard of care providing the benchmark for the opinions offered.  

^{Legal Update for Lawyers’ Professional Liability – September 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}