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                          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-0177-15T4
                  Submitted January 18, 2017 – Decided August 2, 2017
                  Before Judges Ostrer and Vernoia.
                  On appeal from the Superior Court of New
                  Jersey, Law Division, Monmouth County, Docket
                  No. L-12-13.
                  Ginsberg & O'Connor, P.C., attorneys for
                  appellant (Gary D. Ginsberg and Stephen P.
                  Burke, Jr., on the brief).
                  Giordano, Halleran & Ciesla, P.C., attorneys
                  for respondents Vincent Stripto and Drazin &
                  Warshaw, P.C. (Michael J. Canning, of counsel;
                  Mr. Canning and Matthew N. Fiorovanti, on the
                  Kaufman Dolowich & Voluck, LLP, attorneys for
                  respondents Howard Bachman and Goldstein &
                  Bachman, Attorneys at Law (Iram P. Valentin,
                  of counsel; Mr. Valentin        and   David     J.
                  Gittines, on the brief).
          In this attorney malpractice case, we review the trial court's
    requirement that plaintiff provide expert testimony to establish
    proximate cause. Plaintiff Randy Rosenblatt sued two of her former
    divorce attorneys and their respective law firms, Vincent Stripto
    of Drazin & Warshaw, P.C., and Howard Bachman of Goldstein &
    Bachman.   Plaintiff alleged that the two failed to notify her that
    she might have a Tevis claim, which negatively affected the outcome
    of her divorce.      The trial court concluded that expert testimony
    was necessary to prove proximate causation, and eventually granted
    summary judgment for defendants once it became clear that plaintiff
    had not offered such testimony.
          On   appeal,   plaintiff   challenges   the   court's   evidentiary
    ruling and the entry of summary judgment.        We affirm.
          Bachman succeeded Stripto as plaintiff's divorce attorney.
    Stripto began representing plaintiff in 2000.        He filed and then,
    at plaintiff's request, withdrew complaints on her behalf in 2000,
    2001 and 2002.       The following year, he filed the complaint that
    was   later    amended   and   ultimately   litigated.      Stripto    also
    represented plaintiff in a related domestic violence action, which
                                         2                             A-0177-15T4
    resulted in a January 2004 final restraining order (FRO) against
    her husband.
           Plaintiff substituted Bachman for Stripto later that year.
    During Bachman's representation, plaintiff and her husband agreed
    to binding arbitration of their divorce case. Plaintiff discharged
    Bachman in 2006 after receiving the arbitration decision.
           In November 2007, after consulting with another attorney,
    plaintiff claimed she discovered for the first time that she had
    a potential marital tort claim against her husband under Tevis v.
    79 N.J. 422
     (1979).1        The potential claim related to three
    altercations in 2002, 2003 and 2004.           She alleged that in 2002,
    her husband grabbed her arm so firmly it left a black and blue
    mark that lasted a week; in 2003, he pushed her against a wall,
    causing short-lived pain to her neck and one of her hands (she
    could not recall which); and in 2004, he butted heads with her in
    the midst of an argument.
           She contended neither Stripto nor Bachman ever informed her
    that   she   had   a   potential   tort   claim,   which   was   now   barred.
    Plaintiff filed her legal malpractice action on December 28, 2012,
      Stripto and his law firm contested this assertion during
    discovery, stating that another attorney at Drazin & Warshaw
    explicitly discussed and recommended against filing a Tevis claim.
    However, for purposes of our review, we assume — as did the trial
    court — the truth of plaintiff's allegation.
                                          3                                A-0177-15T4
    seeking damages that she allegedly would have recovered had the
    claim been brought. Plaintiff also sought damages for the "severe,
    temporary and permanent physical and mental injuries requiring
    medical and psychological care and treatment and will require such
    care in [the] future."     She produced no medical records or expert
    testimony to support her claim of permanent injury, however.
         Although the attorneys did not discuss a potential Tevis
    claim or file one on plaintiff's behalf, they were aware of the
    incidents.       Stripto referred to them in plaintiff's claim for
    divorce based on extreme cruelty.        The 2004 incident also prompted
    the domestic violence complaint (although the prior history of
    domestic violence added only the 2003 incident and did not allege
    any physical injury from that prior event).             Bachman, in turn,
    relied on the FRO during the arbitration hearings in an attempt
    to gain sole legal custody of the children.
         Both attorneys explained they did not discuss the possibility
    of a Tevis claim with plaintiff because they did not believe the
    incidents provided a viable claim for such relief.         In particular,
    they noted plaintiff did not suffer any documented long-term
    physical    or   psychiatric   injury    from   the   events.   Moreover,
    plaintiff never received medical treatment or medication for any
    resulting    injuries,   nor   did   she   seek   any   psychological    or
    psychiatric treatment for emotional or verbal abuse by her husband.
                                         4                            A-0177-15T4
    As a result, they believed that the Tevis claim would be neither
    successful nor cost-effective for plaintiff.
         In support of her malpractice claim, plaintiff relied on the
    expert opinion of attorney Ronald Edelman.     In his brief report,
    Edelman opined that plaintiff had a "potential Tevis claim" and,
    further, that defendants "had the obligation to advise her of her
    Tevis rights" and "to protect her rights."      The report did not
    expressly address whether defendants breached their duty of care
    by not filing such claims, nor did it discuss whether they would
    have succeeded.
         The court granted in part and denied in part without prejudice
    defendant's first motion for summary judgment, which was filed
    before the end of discovery.   In an oral decision in March 2015,
    Judge Katie A. Gummer dismissed plaintiff's claim for damages tied
    to alleged permanent physical or mental injury.   Specifically, the
    court noted, "it is undisputed that plaintiff did not suffer any
    permanent physical injuries as a result of the purported physical
    and verbal abuse inflicted upon her by her former husband."      The
    court concluded that plaintiff "neither factually nor legally"
    established that she had suffered any "disability or ongoing
    physical or mental injury" or that she was entitled to damages
    flowing therefrom.   Nonetheless, Judge Gummer concluded plaintiff
    had a viable Tevis claim for damages arising out of the injury she
                                     5                          A-0177-15T4
    allegedly experienced after the three assaults. The court rejected
    defendants' argument, which relied on Merenoff v. Merenoff, 
    76 N.J. 535
     (1978), that the husband's actions and plaintiff's injury
    were too trivial to be litigable.
         The court also concluded that because plaintiff's malpractice
    action concerned "the soundness of decisions made by lawyers as
    to what they should relay to their clients and what actions to
    take in a matrimonial matter[,]" expert testimony would be required
    to establish proximate causation.    The court noted that plaintiff
    had not alleged (at least at that point) that she would have filed
    a Tevis claim if her attorneys had informed her of the potential
    claim.   The judge stated it was unclear whether Edelman's opinion
    that the attorneys had failed to protect plaintiff's interests was
    intended to convey a view on proximate causation.   However, giving
    plaintiff the benefit of the doubt, the court assumed it did,
    subject to clarification in discovery.
         In his subsequent deposition, Edelman denied opining "as to
    whether any actions of the lawyers proximately caused any damage
    to" plaintiff.   He stated his report focused on "whether or not
    the attorney[s] fulfilled [their] obligation to [their] client,"
    by failing "to advise the client of her Tevis rights."     Edelman
    stated he did not form an opinion as to the value of the Tevis
    claim, whether it was negligent of the attorneys to conclude it
                                     6                          A-0177-15T4
    should not be filed, whether plaintiff would have pursued the
    claim if she had been advised about it, or the impact of filing
    the claim on other issues in the divorce.2
         Defendants   submitted   an   expert   report   by   attorney   David
    Wildstein, who stated he had extensive experience with Tevis
    claims. He explained that, in general, Tevis claims are "a rarity"
    in matrimonial matters.     He noted that successful claims usually
    require "medical or expert testimony and serious or substantial
    injury."   He asserted it was "doubtful" that plaintiff would have
    succeeded if she had brought a claim. Wildstein stated, "Plaintiff
    has failed to provide any evidence that she would have prevailed
    in recovering damages."   He endorsed Bachman's strategic decision
    to utilize the FRO in connection with the custody dispute rather
    than bring a Tevis claim.
         Wildstein also noted that the filing of a weak Tevis claim
    would disadvantage the client's case in the matrimonial matter.
    For example, "if a non-viable Tevis count was filed, it could be
    viewed by a Judge or arbitrator as a legal tactic to obtain
    leverage which could prejudice plaintiff's custody case."        He also
     Edelman admitted a plausible reason not to pursue the Tevis claim
    in this case was the fact that it would have opened the door for
    plaintiff's husband to introduce evidence of plaintiff's alleged
    extramarital affair, which had prompted his verbal and physical
                                       7                             A-0177-15T4
    stated that "the Court frowns upon weak or non-viable Tevis claims
    which may be used as leverage."
         In the meantime, plaintiff filed a certification stating that
    she would have pursued a Tevis claim if she had been informed
    about the possibility.    She filed no further expert certifications
    or other reports.
         Based   on   this    expanded        record,   Judge   Gummer   granted
    defendants' renewed motion for summary judgment.              She concluded
    that Edelman's deposition clarified he was not, in fact, offering
    an opinion as to proximate cause.           Reaffirming her prior holding
    regarding the necessity of expert testimony on this subject for
    plaintiff's prima facie case, the judge concluded that its omission
    was fatal to plaintiff's cause of action.           The court entered final
    orders   dismissing      plaintiff's        malpractice     complaint       with
    prejudice.   This appeal followed.
         "The necessity for, or propriety of, the admission of expert
    testimony, and the competence of such testimony, are judgments
    within the discretion of the trial court."             State v. Zola, 
    112 N.J. 384
    , 414 (1988), cert. denied, 
    489 U.S. 1022
    109 S. Ct. 1146
    103 L. Ed. 2d 205
     (1989).        Accordingly, we must "generously
    sustain" such determinations, so long as they are "supported by
    credible evidence in the record."             Estate of Hanges v. Metro.
                                          8                                 A-0177-15T4
    Prop. & Cas. Ins. Co., 
    202 N.J. 369
    , 384 (2010).                  Conversely, if
    the trial court applies the wrong legal test when analyzing
    admissibility, we apply de novo review.             Konop v. Rosen, 425 N.J.
    Super. 391, 401 (App. Div. 2012).
         The evidentiary question here is whether the trial court
    appropriately required expert testimony to establish proximate
    cause in plaintiff's legal malpractice claim. As a general matter,
    expert testimony is barred "unless it relates to a subject matter
    which is so distinctively related to some science, profession,
    business or occupation as to be beyond the ken of the average
    layman."     Boland v. Dolan, 
    140 N.J. 174
    , 188 (1995) (internal
    quotation marks and citation omitted).                Although N.J.R.E. 702
    speaks    permissively   —   stating       that   "[i]f   .   .   .   specialized
    knowledge will assist the trier of fact to understand the evidence
    or to determine a fact in issue . . . [an expert witness] may
    testify    thereto"   (emphasis   added)      —   "New    Jersey      courts   have
    required expert testimony to explain complex matters that would
    fall beyond the ken of the ordinary juror."               State v. Fortin, 
    189 N.J. 579
    , 596 (2007).
         Legal malpractice actions often present such complex matters.
    The elements of legal malpractice consist of: "(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,
                                           9                                   A-0177-15T4
    and   (3)   proximate    causation    of   the   damages   claimed   by   the
    plaintiff."     Jerista v. Murray, 
    185 N.J. 175
    , 190-91 (2005)
    (internal quotation marks and citation omitted).           The client bears
    the burden of proof.         Sommers v. McKinney, 
    287 N.J. Super. 1
    , 10
    (App. Div. 1996).
          The attorney's duty of care involves the "exercise [of] the
    knowledge, skill and ability ordinarily possessed and exercised
    by members of the legal profession similarly situated" and the
    "exercise [of] a reasonable degree of care and prudence having
    reference to the character of the service [an attorney] undertakes
    to perform."    Passante v. Yormark, 
    138 N.J. Super. 233
    , 238 (App.
    Div. 1975), certif. denied, 
    70 N.J. 144
     (1976).                 Whether an
    attorney has fulfilled that duty is not ordinarily a matter within
    the jury's common experience or knowledge.           Brizak v. Needle, 
    239 N.J. Super. 415
    , 432 (App. Div.), certif. denied, 
    122 N.J. 164
          Accordingly,      we   generally     require   expert   testimony     to
    establish the first two elements of a malpractice claim.                  See
    Carbis Sales, Inc. v. Eisenberg, 
    397 N.J. Super. 64
    , 78 (App. Div.
    2007) (internal quotation marks and citation omitted); Restatement
    (Third) of Law Governing Lawyers § 52, comment g (2000) ("[A]
    plaintiff alleging professional negligence . . . ordinarily must
    introduce expert testimony concerning the care reasonably required
                                         10                              A-0177-15T4
    in the circumstances of the case and the lawyer's failure to
    exercise such care.").   Only in the exceptional case, where the
    breach of duty is basic or obvious, is an expert not required.
    See Brizak, supra, 239 N.J. Super. at 431-32 (App. Div.) (no expert
    needed when attorney "fail[ed] to conduct any investigation" into
    client's alleged malpractice claim); see also Sommers, supra, 287
    N.J. Super. at 10 ("In rare cases, expert testimony is not required
    in a legal malpractice action where the duty of care to a client
    is so basic that it may be determined by the court as a matter of
         The third element, proximate cause, requires a showing that
    the malpractice was a "substantial factor in bringing about" an
    injury.   Conklin v. Hannoch Weisman, 
    145 N.J. 395
    , 419 (1996)
    (internal quotation marks and citation omitted).     Proof must be
    based on "competent credible evidence," Sommers, supra, 287 N.J.
    Super. at 10, and not "mere conjecture, surmise or suspicion,"
    2175 Lemoine Ave. Corp. v. Finco, Inc., 
    272 N.J. Super. 478
    , 488
    (App. Div. 1994) (internal quotation marks and citation omitted).
    Here as well, our courts have required the use of expert testimony
    except when "the causal relationship between the attorney's legal
    malpractice and the client's loss is so obvious that the trier of
    fact can resolve the issue as a matter of common knowledge."     Id.
    at 490; see also Sommers, supra, 287 N.J. Super. at 11 (accord);
                                   11                           A-0177-15T4
    4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, § 37:23,
    at 1653 (2013 ed.) ("[U]nless the causal link is obvious or can
    be established by other evidence, expert testimony may be essential
    to prove [causation.]"); Allen v. Martin, 
    203 P.3d 546
    , 569 (Colo.
    App.   2008)   (noting    "most   jurisdictions       have   concluded    that
    causation in a legal malpractice action must be proved by expert
    testimony,     unless    causation    is     within    the   jury's    common
    understanding" and collecting cases); Bozelko v. Papastavros, 
    147 A.3d 1023
    , 1030 (Conn. 2016) ("Because a determination of what
    result should have occurred if the attorney had not been negligent
    usually is beyond the field of ordinary knowledge and experience
    possessed by a juror, expert testimony generally will be necessary
    to provide the essential nexus between the attorney's error and
    the plaintiff's damages.").
           Whether a particular causal chain is so obvious that expert
    testimony is unnecessary is a fact-sensitive inquiry.            We required
    expert testimony when the alleged malpractice concerned the manner
    in which a complex transaction had been structured.             2175 Lemoine
    Ave. Corp., supra, 272 N.J. Super. at 487-90.                Conversely, we
    concluded that no expert testimony was required to demonstrate
    that an attorney's misrepresentation about the strength of an
    adversary's position had a substantial, negative impact on the
    terms of his client's settlement.          Sommers, supra, 
    287 N.J. Super. 1
    2                               A-0177-15T4
    at 8-9.   Although we held that the plaintiff needed an expert to
    challenge the quality of work done on her behalf, an expert was
    not required "to announce that an attorney may not charge for work
    that has not been performed . . . . [or] to establish the causal
    connection between a charge for services not performed and lesser
    proceeds to the plaintiff."    Id. at 14.
         Here, the trial court found expert testimony was required to
    establish proximate cause.    We will not disturb that discretionary
    conclusion.   It bears repeating that the alleged malpractice here
    pertains to a failure to notify plaintiff of a potential claim
    under Tevis during the course of a matrimonial dispute.
         Accordingly, in order to meet the proximate cause prong of
    her negligence claim, plaintiff had to demonstrate: (1) that she
    would have brought the Tevis claim; (2) that the Tevis claim would
    have produced an award greater than the cost of bringing it; and
    (3) that such a net award would not have been offset by negative
    repercussions in the broader matrimonial litigation.      This is a
    far more attenuated and intricate chain of causation than was
    presented in Sommers.   Even assuming plaintiff would have filed a
    Tevis claim, the second and third elements implicate complex
    questions of the law beyond the ken of average jurors.
         Plaintiff had to demonstrate she would have brought the Tevis
    claim because she provided no evidence that defendants would have
                                     13                          A-0177-15T4
    acceded to a request, if she made one, to file such a claim on her
    behalf.    As noted above, the attorneys believed the claim would
    have     been    ill-advised     and         counter-productive,     assertions
    corroborated by Bachman's expert.              Edelman admittedly offered no
    opinion    on    whether     defendants'         actions    caused   plaintiff
    compensable harm.
           Plaintiff also had to demonstrate not only that the Tevis
    claim would succeed, but it would produce a net positive award.
    There is no evidence that an attorney would have pursued the claim
    on a contingency basis (even assuming doing so would not run afoul
    of Rule of Professional Conduct 1.5(d)(1)).                 Plaintiff thus may
    have been required to incur fees and costs to pursue the claim.
    To prove damage, plaintiff would need to establish that those fees
    and costs did not exceed the value of a recovery for the tort.
           Furthermore, filing the claim could have complicated and
    prolonged the underlying matrimonial litigation and increased
    costs.    Perhaps more significantly, it could have resulted in a
    less favorable outcome on other issues of value and importance to
    plaintiff in the divorce case.           For example, as noted above, the
    Tevis claim may have opened the door to evidence about plaintiff's
    alleged extra-marital affair, which may have had an impact on
    custody    and   financial     issues    pertinent     to   both   alimony   and
    equitable distribution.
                                            14                              A-0177-15T4
           Additionally, if plaintiff secured any recovery in a Tevis
    action, the court would subsequently need to guard against a
    double-recovery based on application of the same facts to the
    calculation of equitable distribution.               As we have warned:
                [P]laintiff's age, physical and emotional
                health and occupational limitations, if any,
                attributable to defendant's tortious conduct,
                may not again be considered in evaluating the
                equitable   division   of    property   issues.
                Likewise, defendant's actual liability in tort
                resulting in judgment must be considered in
                the court's decision respecting the division
                of property. The judgment debt owed plaintiff
                must   also  be   considered    in   evaluating
                plaintiff's    demand     for    alimony    and
                particularly defendant's ability to pay
                alimony. There may not be a double recovery
                from defendant.
                [Giovine v. Giovine, 
    284 N.J. Super. 3
    , 29
                (App. Div. 1995) (authorizing marital tort
                claim for battered woman's syndrome).]
    One treatise has observed that, although practitioners would be
    well-advised to "re-examine the financial viability" of marital
    tort    claims   after       cases   like        Giovine,    "most    matrimonial
    practitioners recognized that these types of claims were illusive,
    spurious, inciteful [sic], rarely financially fruitful, and might,
    in   some   cases   .    .   .   invite     an    undesired     and   financially
    dysfunctional judicial response . . . ."                    1 Gary N. Skoloff &
    Laurence J. Cutler, New Jersey Family Law Practice § 1:67 (15th
    ed. 2013) (emphasis added).
                                          15                                  A-0177-15T4
         Accordingly, we discern no abuse of discretion by the trial
    court in its decision to require expert testimony on proximate
         Further, we reject plaintiff's argument that she could have
    proceeded    without   expert         testimony       because     she     could     have
    established causation at trial in the "suit within a suit."                          Put
    simply, this argument confuses a procedural trial framework with
    plaintiff's prima facie burden.
         The "suit within a suit" approach allows a plaintiff to prove
    proximate cause by "present[ing] the evidence that would have been
    submitted at a trial had no malpractice occurred."                            Garcia v.
    179 N.J. 325
    ,     358    (2004).         Notably,     the    Court     has
    emphasized   that   this   is    only     one    of    a   number    of    procedures
    available to the parties in a malpractice suit.                         Lieberman v.
    Employers Ins. of Wausau, 
    84 N.J. 325
    , 343-44 (1980).                           Another
    option is the "use of expert testimony as to what as a matter of
    reasonable   probability      would     have    transpired      at      the    original
    trial."   Ibid.
         But this procedural choice does not relieve plaintiff of her
    substantive, prima facie burden as plaintiff seems to suggest.
    Just because the parties choose to proceed by a "suit within a
    suit" instead of by expert certifications does not mean that a
    trial court cannot still require expert testimony as part of
                                            16                                      A-0177-15T4
    plaintiff's proofs.       See 4 Mallen, supra, § 37:23, at 1650 ("In
    the trial-within-a-trial context, expert testimony that would have
    been mandatory remains such."); cf. Cellucci v. Bronstein, 277
    N.J.   Super.    506,   520-24    (App.    Div.   1994)     (reviewing    expert
    testimony regarding negligence offered at a "suit within a suit"
    proceeding), certif. denied, 
    139 N.J. 441
           Plaintiff may not have needed an expert to establish the
    merits of her Tevis claim — that is, that her husband assaulted
    her,   that    she   suffered    pain,    and   that    a   monetary   award    is
    appropriate to compensate her for that pain.                 But, as we noted,
    it was beyond the ken of the average juror to determine whether
    such a compensatory award would have been offset by the direct
    costs of bringing it and the indirect costs upon her other claims
    in the divorce case.      Only expert testimony could remedy that gap
    in understanding.       The "suit within a suit" procedure would not
           To the extent not already discussed, plaintiff's remaining
    claims lack sufficient merit to warrant discussion in a written
    opinion.      R. 2:11-3(e)(1)(E).
           In sum, we discern no abuse of discretion in the court's
    determination that plaintiff required expert testimony to meet her
    prima facie showing of proximate cause.                As plaintiff failed to
                                         17                                  A-0177-15T4
    do   so,   we   affirm   the   court's    grant   of   summary   judgment   for
                                         18                               A-0177-15T4