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LPL: Causation Opinion Deficit Thwarts Claim

Tuesday, August 8, 2017   (0 Comments)
Posted by: Tom Jensen
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After client's divorce case was concluded she learned she had a potential marital tort claim against the ex-husband due to three physical altercations. She clamed her divorce counsel failed to inform her of the potential claims, and that the claims became time-barred. (Counsel were aware of the incidents.) Counsel explained they did not discuss the claim possibility because there was no documented long-term injury, no medical care was involved, nor was psychological care required. Client's expert said client had a "potential" claim, that counsel had an obligation to explain it, and that they had to "protect her rights." But at deposition he denied opining as to causation. Defense expert challenged the claim legitimacy and added that asserting the claim could disadvantage the client's case in the divorce proceeding. Trial court's defense SJ was affirmed in Rosenblatt v. Stripto, 2017 WL 3271905 (N.J. Super. Aug. 2, 2017). To prove casuation plaintiff had to show: (1) that she would have brought the claim, (2) it would have produced damages more than its cost, and (3) that the net award would not have adversely affected the divorce proceeding. This involved an "attenuated and intricate chain of causation" that required expert opinion support. The common knowledge exception could not apply. Her obligation to prove the "suit within a suit" would not substitute for establishing causation because that does not vitiate the expert opinion requirement. 

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