United States: Disproving The "Case-Within-The-Case" In Malpractice Lawsuits

In a decision with significant potential ramifications for malpractice cases in New Jersey, Judge Joseph A. Dickson, U.S. Magistrate Judge for the District of New Jersey, held this past week that a lawyer being sued for malpractice in connection with his representation in underlying wrongful death lawsuit may seek discovery of potentially mitigating evidence about the accident forming the basis of the underlying lawsuit – even if the discovery was not explored in the underlying case itself. In this specific case, the judge ruled that the attorney being sued for malpractice could conduct discovery focusing on whether the decedent in the wrongful death case had consumed alcoholic beverages the night he fell to his death down an under-construction elevator shaft at a resort in Mexico.

In this case, the alleged malpractice resulted from the attorney's failure to add a claim on behalf of the decedent's brother (who witnessed and heard the deadly fall) as a plaintiff in the underlying wrongful death case. As in many malpractice actions, the plaintiffs must prove both (1) that their attorney was negligent and (2) that they would have prevailed in the underlying case as well. This approach is commonly referred to as the "case-within-the-case" approach. This case-within-the-case approach, however, can raise important evidentiary issues when underlying cases settle prior to going to trial, as did the underlying wrongful death case here (and as do the overwhelming majority of lawsuits).

Here, in order to poke holes in the underlying wrongful death action, the allegedly negligent attorney sought discovery concerning the decedent's alleged (underage) drinking on the night of his death. The plaintiffs argued that the alleged negligent attorney should be prohibited from taking "a second bite of the apple” and seeking additional discovery which was not fully explored during the wrongful death action.

Judge Dickson, in holding that the alleged negligent attorney could seek this discovery, found that the issue of the decedent's alcohol consumption was not fully explored because there was no trial in the underlying wrongful death case: "The presence of a settlement in the underlying case should not prevent [the alleged negligent attorney] from conducting discovery now." The judge also determined that the issue of the decedent's alcohol consumption was not some "elusive theory" regarding the alcohol consumption but was instead an issue that had been examined to some degree during discovery and "very likely could have arisen at trial."

The court also held that the decedent's potential comparative negligence was directly related to the plaintiffs' claim for emotional distress, because any recovery for emotional harm resulting from the death or serious injury of another is reduced by the proportion of the injured party's own negligence.

In malpractice cases such as this one, attorneys seek to poke as many holes as possible in the very same cases which they were once vigorously advocating on behalf of their former clients. This past week's decision may bolster attorneys' ability to undermine the "case-within-the-case" which plaintiffs must prove in order to successfully win a malpractice lawsuit.

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