Smith v. DeZao, No. 2:13-cv-72: New Jersey Federal Judge Allows Attorney Accused of Malpractice to Conduct Additional Discovery Regarding Underlying Case


A Magistrate Judge in the United States District Court for the District of New Jersey has held that an attorney defending a legal malpractice suit, is not limited to the discovery previously conducted in an underlying action.  In Smith v. DeZao, a family hired an attorney to represent them in a wrongful death suit against a New Jersey timeshare company, which booked a vacation for the family at a resort in Mexico.

Nine months prior to the trip, a hurricane had struck the region of Mexico where the resort was located, but the company assured the family that the resort’s hotel had been fully repaired.  However, when they arrived, much of the hotel was still under construction, including one of the two elevators, which had pieces of plywood blocking the open elevator shaft.  One evening, the family’s sixteen year old son leaned against the plywood and fell four stories to the bottom of the shaft.  He survived the fall and was attended to by his parents and older brother while they waited for emergency medical workers to respond, but he later died at the hospital.

Upon their return home, they hired the attorney, who initially filed a complaint against the timeshare company naming only the parents as plaintiffs, and omitting the older son.  The attorney subsequently sought to amend the original complaint to add a claim for negligent infliction of emotional distress by the older son, who had witnessed the accident.  The court denied the motion on the basis that the applicable statute of limitations had expired on any of his claims.  The parents eventually settled the case, and then the son filed a legal malpractice action against the attorney for failing to name him as a plaintiff.

The attorney filed a motion with the Court, seeking an order permitting him to discover information regarding whether or not the younger son had consumed alcohol prior to falling down the elevator shaft.  The timeshare company had raised this issue in the underlying case and had conducted limited discovery, but it was never fully resolved prior to the settlement.

The attorney argued that he was entitled to fully discover this information, because under New Jersey’s comparative negligence laws, any damages the son would have ostensibly recovered in the wrongful death case would have been reduced by the degree that the family, or their son, was responsible for the accident and resulting injuries.  This would include whether or not the son was intoxicated.

In order to prevail in a legal malpractice case, the plaintiff must prove the “case within the case”, which requires showing not only that an attorney’s conduct was negligent, but also that it prevented the plaintiff from succeeding in the underlying lawsuit.  Applying that doctrine here, the Magistrate Judge reasoned that the attorney should be able to present evidence, which may have been used against the son in the underlying case, and resulted in reduced or no damages.  The fact that the case settled, should not restrict the attorney to the record in the underlying matter.  Therefore, the Judge granted the attorney’s motion.

Decision: Smith v. DeZao


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