ANTHONY ANGELO VS. JOEL I. BERGMAN (L-3937-13, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2392-15T2
ANTHONY ANGELO,
Plaintiff-Appellant,
v.
JOEL I. BERGMAN,
Defendant-Respondent.
________________________________
Submitted March 14, 2017 – Decided July 28, 2017
Before Judges Fisher and Leone (Judge Fisher
concurring).
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-3937-
13.
Edward R. Grossi, attorney for appellant.
Robert G. Ricco, attorney for respondent.
PER CURIAM
Plaintiff Anthony Angelo appeals the trial court's January
8, 2016 order granting summary judgment in favor of defendant Joel
Bergman, his former attorney. We affirm.
I.
The parties' statements of undisputed material facts include
the following. Plaintiff brought a medical malpractice case
against a pain management doctor. Plaintiff was represented by
Bergman during the trial, at which Dr. Antonio Aldrete testified
as plaintiff's expert witness. In 2011, after three days of trial,
plaintiff settled that case for $200,000.
In 2013, plaintiff filed a lawsuit against Bergman, the
attorney who negotiated the settlement on his behalf. Plaintiff
hired Anthony Ambrosio, an attorney, as an expert to write a report
on plaintiff's allegations of legal malpractice. Ambrosio issued
his report in December 2014. He was deposed in September 2015.
Based on Ambrosio's deposition, Judge Vicki A. Citrino found
Ambrosio rendered a net opinion. The court dismissed plaintiff's
legal malpractice claim on summary judgment.
II.
If "a trial court is 'confronted with an evidence
determination precedent to ruling on a summary judgment motion,'
it 'squarely must address the evidence decision first.' Appellate
review of the trial court's decisions proceeds in the same
sequence[.]" Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,
384-85 (2010)). "On appeal, then, those rulings will be gauged
2 A-2392-15T2
separately: the evidentiary ruling under an abuse of discretion
standard, and the legal conclusions undergirding the summary
judgment motion itself on a plenary de novo basis." Estate of
Hanges, supra, 202 N.J. at 385. We must hew to those standards
of review.
III.
"Legal-malpractice suits are grounded in the tort of
negligence." McGrogan v. Till, 167 N.J. 414, 425 (2001). "The
elements of a cause of action for legal malpractice are (1) the
existence of an attorney-client relationship creating a duty of
care by the defendant attorney, (2) the breach of that duty by the
defendant, and (3) proximate causation of the damages claimed by
the plaintiff." Ibid."As in nearly all malpractice cases, plaintiff needed to
produce an expert regarding deviation from the appropriate
standard." Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179
N.J. 343, 362 (2004). "As 'the duties a lawyer owes to his client
are not known by the average juror,' expert testimony must
necessarily set forth that duty and explain the breach." Buchanan
v. Leonard, 428 N.J. Super. 277, 288 (App. Div. 2012) (quoting
Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78 (App. Div.
2007)), certif. denied, 213 N.J. 534 (2013). "[W]ithout expert
testimony, a jury simply does not have the knowledge, training,
3 A-2392-15T2
or experience to decide the settlement value of plaintiff's claim."
Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 104 (App.
Div. 2001) (quoting Kelly v. Berlin, 300 N.J. Super. 256, 269
(App. Div. 1997)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . .
which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other
data.'" Townsend, supra, 221 N.J. at 53-54 (citation omitted).
"The net opinion rule is succinctly defined as 'a prohibition
against speculative testimony.'" Harte v. Hand, 433 N.J. Super.
457, 465 (App. Div. 2013) (citation omitted). "That is, an
expert's bare opinion that has no support in factual evidence or
similar data is a mere net opinion which is not admissible and may
not be considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 372 (2011); see Townsend, supra, 221 N.J. at 57-59.
A.
Plaintiff argued Bergman committed legal malpractice in
valuing the case at $200,000. Plaintiff retained Ambrosio as his
expert to show a breach of the standard of care for legal
malpractice. In his expert report, Ambrosio opined: "Bergman was
negligent in advising Plaintiff to settle his case for $200,000.
From a review of other jury verdicts and a reasonable assessment
4 A-2392-15T2
of the case based on my experience, a reasonable settlement value
of this case was $500,000."
However, in his deposition, Ambrosio conceded defendant's
considered opinion of "[$]200,000 and take this and go home is a
judgement call and is not malpractice." He also agreed "the real
issue of this case" was not "whether [$]200,000 was fair or not."1
Thus, Ambrosio "completely abandoned his original opinions
concerning [the] deviation from the . . . accepted standard of
care" on the valuation issue. Ritondo by Ritondo v. Pekala, 275
N.J. Super. 109, 116 (App. Div.), certif. denied, 139 N.J. 186(1994). This case is similar to Ritondo. In that medical
malpractice action, plaintiff's medical expert, on cross-
examination, "effectively retracted" his direct testimony as to
the doctor's deviations from the standard of care. Ibid. After
reaffirming his original opinions on redirect, the expert again
retracted that testimony on re-cross. Id. at 115. We were
persuaded "that the value of testimony given by a witness on direct
examination may be entirely nullified by admissions on cross-
1
Ambrosio said that the real issue in this case was "whether or
not . . . [plaintiff] was somehow pressure[d] or misinformed into
settling." Ambrosio agreed that was "a separate and distinct
issue from the monetary valuation of the case." We address that
issue in the next section.
5 A-2392-15T2
examination." Id. at 116. Similarly, Ambrosio's testimony negated
his opinions in his report.
Plaintiff cites a portion of the deposition where Ambrosio
stated he was not "retracting that portion of [his] expert opinion
that alleges malpractice based on an improper valuation of the
case at $200,000."2 However, later in his deposition Ambrosio
conceded that "valuation is an art," that you "[c]an't fault"
Bergman for "giving his best judgment that this is [plaintiff's]
best chance to settle" if that was "his considered opinion," and
that his advice to settle for $200,000 was "not malpractice."
Plaintiff argues Bergman recommended the $200,000 settlement
because he mistakenly believed the medical malpractice case would
be dismissed before it reached the jury. Plaintiff cites
Ambrosio's report which stated:
A reasonably prudent and competent
attorney who reviewed Aldrete's trial
testimony would conclude that there was no
question that this case would reach a jury.
Thus, Bergman acted below the applicable
standard of care in advising Angelo to settle
the case for $200,000, as Bergman has
indicated the only reason that he advised
Angelo to settle the case [w]as the inability
to prove the negligence and malpractice.
2
Ambrosio explained that "if everything [plaintiff] says was true,
in terms of his complaints, it would be worth a lot more than
$500,000." However, Ambrosio conceded that "maybe Mr. Angelo
won't be [b]elieved at trial."
6 A-2392-15T2
Nonetheless, Ambrosio abandoned the core of that opinion when he
admitted in his deposition that a $200,000 settlement was not
malpractice.
B.
In his report, Ambrosio stated "an additional element of the
Defendant's malpractice is the failure to adequately explain the
mechanics of the settlement." In open court in plaintiff's
presence, Bergman stated "there's been an agreement as to a
High/Low in this case," and "[$]200,000 is the low and [$]500,000
is the high." He stated that he had spoken to plaintiff and gone
through the evidence and that they had decided not to proceed
further with the case. Counsel and the trial court agreed to
enter a judgment of no cause dismissing the case with prejudice.
On March 25, 2011, plaintiff and Bergman signed a General
Release explaining that plaintiff was releasing his claims against
the doctor and in return he would "receive the amount of
$200,000.00." The signed release stated that "the terms of the
settlement and this Release have been completely read and explained
to [plaintiff] by [Bergman]," that plaintiff "fully understands
. . . the terms of the settlement and of this Release," and that
he "entered into the settlement and signed this Release
voluntarily" and "without any undue influence."
7 A-2392-15T2
Ambrosio was unaware of this release when he wrote his report.
When confronted with the release in his deposition, Ambrosio
testified:
Q. What is the significance of [plaintiff]
entering into a settlement agreement or
in this case, a general release, a month
after the settlement was entered into in
open court?
A. Well, the only way he is going to get any
money is to sign this release. So this
is, again, an opportunity for him to
reject the settlement.
Q. Now, is it significant that he didn't
reject the settlement?
A. I am afraid it is. . . . It sort of
undercuts his credibility, frankly.
. . . .
Q. What would – how would his case in this
case be different if he had refused to
sign that release?
. . . .
A. He probably would be in a position to
move to vacate the settlement, based upon
he didn't give proper consent. But that
[signature of the release] undercuts any
ability to do that.
Q. Does that mean now that, in fact, in
reality, he gave consent to Mr. Bergman
and wanted to go forward with the
settlement?
. . . .
A. Yes, that's what that means.
8 A-2392-15T2
Ambrosio conceded that plaintiff knew he would get $200,000
in the settlement, and that plaintiff knew the settlement would
end his medical malpractice case. When asked about plaintiff's
claim "he didn't even know the amount of the settlement for six
months after it took place," Ambrosio testified he did not "find
it credible."3 Accordingly, Ambrosio in his deposition effectively
negated his prior opinion that plaintiff did not understand he was
settling his case for $200,000.
Plaintiff argues that what Bergman referred to as "a high-
low agreement" was a fraud. We agree the parties did not enter
into a true high-low agreement, which is designed to limit the
parties' risks from the jury's verdict.4 Rather, the parties
entered into the so-called high-low agreement at the same time as
they settled the case for $200,000, so there was no risk from a
jury verdict. Despite counsel misrepresenting to the trial judge
3
Ambrosio also admitted it was not malpractice to settle the case
in open court in plaintiff's presence without a voir dire of
plaintiff or a simultaneous written confirmation of the
settlement.
4
"A high-low agreement is a device used in negligence cases in
which a defendant agrees to pay plaintiff a minimum recovery in
return for plaintiff's agreement to accept a maximum sum regardless
of the outcome of the trial." Benz v. Pires, 269 N.J. Super. 574,
578 (App. Div. 1994). "A high-low agreement protects a plaintiff
from the danger of receiving less than the floor amount and
protects a defendant from exposure to a judgment higher than the
agreed ceiling." Id. at 579.
9 A-2392-15T2
in the medical malpractice action that the parties had entered
into a "high-low agreement," it is undisputed the parties really
settled the case for $200,000. It appears the parties
characterized their $200,000 settlement as a "high-low agreement"
to allow the doctor to pay plaintiff the $200,000 without having
to report any malpractice.
We do not endorse the parties' deliberate mislabeling of
their medical malpractice settlement. Nonetheless, plaintiff
failed to show it breached a duty to him or damaged him. Ambrosio
testified there was no "impropriety in reaching a settlement . . .
in order to allow the doctor not to have to report" malpractice,
adding: "It happens oftentimes. It is a big incentive for
settlement." In any event, the so-called high-low agreement did
not change the essentials of the settlement for plaintiff –
dismissal of his case in return for $200,000 – which Ambrosio
conceded plaintiff understood.
Thus, Ambrosio's "negation" in his deposition testimony of
the key portions of his report "was a clear and unequivocal
withdrawal of his opinion. As a result, [plaintiff was] left
10 A-2392-15T2
without proof of any deviation of the standard of care, a necessary
element of [his] claim." Ritondo, supra, 275 N.J. Super. at 116.5
That rendered Ambrosio's report a net opinion which the trial
court properly precluded. A reviewing court will overturn a trial
court's decision to preclude expert opinion only "'when a decision
is made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" U.S.
Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citation
omitted). We find no abuse of discretion here.
Thus, Ambrosio did not show a breach of the standard of care
in Bergman's advice to settle or his explanation of the mechanics
of the settlement. Plaintiff nonetheless argues Ambrosio's
references to the Rules of Professional Conduct were sufficient
to establish a standard of care. Plaintiff notes that under the
ethics rules "[a] lawyer shall abide by a client's decision whether
to settle a matter." R.P.C. 1.2(a). Ambrosio also cited ethics
5
Plaintiff notes that Ambrosio filed a certification in opposition
to summary judgment claiming that he "neither recanted nor
retracted anything." However, "a trial court may reject an
affidavit as a sham when it 'contradict[s] patently and sharply'
earlier deposition testimony, there is no reasonable explanation
offered for the contradiction, and at the time the deposition
testimony was elicited, there was no confusion or lack of clarity
evident from the record." Hinton v. Meyers, 416 N.J. Super. 141,
150 (App. Div. 2010) (quoting Shelcusky v. Garjulio, 172 N.J. 185,
200-01 (2002)). In any event, the certification focused on the
claimed failure to explain how much plaintiff would "net" from the
settlement, a claim plaintiff does not renew on appeal.
11 A-2392-15T2
rules that "[a] lawyer shall keep a client reasonably informed
about the status of a matter," and "shall explain a matter to the
extent reasonably necessary to permit the client to make informed
decisions regarding the representation." R.P.C. 1.4(b), (c).
However, particularly after being confronted with the release
signed by plaintiff, Ambrosio conceded that plaintiff was informed
of the status of the matter, was able to make informed decisions,
and decided to settle the case for $200,000. Given Ambrosio's
concessions in his deposition, plaintiff could not show Bergman
violated the ethics rules.6
In any event, "the assertion that an attorney has violated
one of our ethical rules does not give rise to a cause of action."
Green v. Morgan Props., 215 N.J. 431, 458 (2013). "[S]tate
disciplinary codes are not designed to establish standards for
civil liability but, rather, to provide standards of professional
conduct by which lawyers may be disciplined." Baxt v. Liloia, 155
N.J. 190, 202 (1998). "Although the Rules of Professional Conduct
may inform the scope of an attorney's duties, those rules do not,
6
Ambrosio's concessions similarly belied his report's citation of
ethics rules that a lawyer shall not engage in "gross negligence,"
and "shall act with reasonable diligence and promptness in
representing a client." R.P.C. 1.1, 1.3. Ambrosio's concession
regarding the high-low agreement also undermined his report's
citation of ethics rules concerning candor toward the tribunal,
R.P.C. 3.3, and conduct involving dishonesty, R.P.C. 8.4(c).
12 A-2392-15T2
in themselves, create a duty, and a violation of those rules,
standing alone, does not form the basis of a cause of action."
Banco Popular N. Am. v. Gandi, 184 N.J. 161, 182 n.8 (2005).
Ambrosio could cite the ethics rules to support his opinions
on the standards of care. Baxt, supra, 155 N.J. at 199-200; Carbis
Sales, supra, 397 N.J. Super. at 79. However, those ethics rules
could not support a cause of action after his repudiation in his
deposition of any breach of those standards, and the resulting
exclusion of his net opinion.
Accordingly, we agree with the trial court that Ambrosio's
report amounted to a net opinion and was properly excluded.
IV.
The exclusion of Ambrosio's net opinion left plaintiff
without admissible expert testimony. As expert testimony was
required to carry plaintiff's burden to show legal malpractice,
the trial court properly granted summary judgment. See R. 4:46-
2(c) and Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).
Plaintiff's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E). We need not address
Bergman's remaining arguments.
Affirmed.
13 A-2392-15T2
FISHER, P.J.A.D., concurring.
I agree with nearly all my colleague has said about this
case. I write separately to offer a few comments about one
particularly odd circumstance.
Plaintiff's medical malpractice action, which lies at the
heart of this legal malpractice action against his attorney in
that case, was resolved when, at some point during the trial of
the former,1 plaintiff's then attorney (defendant Bergman) advised
the trial judge the matter had been settled. Here's the entire
agreement as then described by defendant Bergman:
THE COURT: Okay, what could I do for you?
MR. BERGMAN: If Your Honor pleases – first of
all we need to state on the record that there's
been an agreement as to a High/Low in this
case.
THE COURT: Okay. What are the parameters of
that?
MR. BERGMAN: The parameters are 200,000 is the
low and 500,000 is the high.
THE COURT: Is that correct . . . ?
[DEFENSE COUNSEL]: That is correct, Your
Honor.
THE COURT: Okay.
1
We have only been provided with a few pages of the trial
transcript in that matter.
No one added anything further to this description of the settlement
and, immediately following the above colloquy, defendant Bergman
said he had "gone through all of the evidence [with plaintiff] and
[described] what I would be intending herein after [to prove] and
decided that . . . we're not going to proceed further with the
case." With that, defense counsel requested a dismissal with
prejudice, which the judge immediately granted. So ended the
medical malpractice action.
Taken at face value, there can be no dispute about the nature
of the agreement defined, albeit briefly, by defendant Bergman.
He called it a high-low agreement and, when asked, he identified
the high and the low. What he described was entirely consistent
with how we've defined a true high-low agreement, i.e., an
arrangement by which "defendant agree[d] to pay plaintiff a minimum
recovery in return for plaintiff's agreement to accept a maximum
sum regardless of the outcome of the trial." Benz v. Pires, 269
N.J. Super. 574, 578 (App. Div. 1994); see also Serico v. Rothberg,
448 N.J. Super. 604, 613 (App. Div.), certif. granted, __ N.J. __
(2017); Malick v. Seaview Lincoln Mercury, 398 N.J. Super. 182,
184 n.1 (App. Div. 2008).
If what was represented to the trial judge in the medical
malpractice action actually expressed the parties' true settlement
agreement, then, in my view, we would be required to reverse the
2 A-2392-15T2
summary judgment entered in Bergman's favor in this legal
malpractice action. If the parties to the medical malpractice
action entered into a true high-low agreement, there would be no
reason – having secured his adversary's agreement to pay his client
$200,000 no matter what thereafter occurred – for Bergman to
immediately volunteer that his client could not survive a motion
to dismiss, pack his bags, and walk away from a potentially greater
recovery. A legal malpractice claim based on a theory that
defendant was negligent in failing to pursue the possibility of a
greater reward – with no downside risk – does not, in my view,
even require the support of expert testimony. Any juror could
understand, without the assistance of an expert, that the
plaintiff's attorney was negligent. Consequently, if the parties
actually entered into a high-low agreement, defendant was
negligent in failing to take his free spin and proceed to a final
disposition of the trial even if a greater recovery seemed far out
of reach. Had plaintiff pursued this theory in this legal
malpractice action, the motion judge would have been required to
deny Bergman's motion for summary judgment.
Plaintiff, however, has not pursued that theory. Plaintiff's
argument on appeal and his expert's opinion are based on a premise
that the settlement agreement was a false or fraudulent high-low
agreement – that it wasn't a high-low agreement at all – that it
3 A-2392-15T2
was simply a disguised agreement to settle for $200,000. In short,
plaintiff does not dispute that when Bergman said the parties
entered into a high-low agreement he really meant that plaintiff
agreed to accept $200,000 in exchange for a release of his claims.
With these additional comments, and out of a concern that
what occurred when the medical malpractice action was settled is
not viewed as, and doesn't become, "business as usual" in our
trial courts, I join in affirming the summary judgment entered in
favor of defendant.
4 A-2392-15T2