JERSEY CITY, N.J. (Legal Newsline) – A legal malpractice lawsuit over a woman's failed litigation against health care providers over the 2012 death of her father, allegedly caused by infected bedsores, is back in Hudson County Superior Court following a New Jersey appeals panel's decision late last year.
In its 14-page opinion issued Dec. 26, a New Jersey Superior Court two-judge appellate panel reversed and remanded two orders previously issued by the Hudson County Court, including granting summary judgment in favor of an attorney and law firm in the legal malpractice case. The panel also reversed and remanded an order that denied the plaintiff's cross-motion to extend the discovery end date, or "DED," and reinstated the lawsuit.
"We agree with plaintiff that the civil presiding judge abused his discretion by not extending the DED and not adjourning the trial date," the opinion said.
The opinion was issued by Judge Richard S. Hoffman and Judge Lisa A. Firko
The estate of James McClenton, filed by McClenton's daughter Annie McClenton as the estate's administrator, sued attorney Anthony Carbone and his Jersey City-based law firm.
Annie McClenton hired Carbone in 2012 to pursue medical negligence claims against health care providers who treated her father following his stay at Newport News Nursing Home in Jersey City, according to the opinion's background portion.
"The decedent developed bedsores, which became infected, and according to plaintiff, was a proximate cause of his death in 2012, at the age of 83," the opinion said.
The following year, Carbone filed suit on the estate's behalf against the nursing home, Jersey City Medical Center, Jersey City and the state of New Jersey.
"Carbone initiated the action without conducting an investigation, a medical records review, or consulting with any experts before or after the complaint was filed," the opinion said.
Carbone didn't file an Affidavit of Merit (AOM) because he didn't think it was required and the complaint was subsequently dismissed with prejudice against the nursing home and medical center in April 2014. His motion for reconsideration was denied by the Superior Court.
"Thereafter, Carbone wrote to plaintiff advising her that she may have a claim for legal malpractice against him and his firm," the opinion said. "He also represented to her that several experts reviewed the matter and concluded decedent's bedsores were not a proximate cause of his demise. Plaintiff contends no such review ever occurred."
Annie McClenton filed her legal malpractice complaint in May 2017 and the Hudson County court granted summary judgment in October of the following year.
"On appeal, plaintiff argues that defendants' summary judgment motion was improvidently granted, and the order denying an extension of the DED and adjournment of the trial date warrants reversal based upon notions of fundamental fairness," the opinion said. "Defendants seek affirmance of both orders."
The appeals panel did not give Carbone and his law firm the affirmation he sought.
"The [Hudson County] judge simply based his decision on best practices deadlines, warranting reversal and reinstatement of plaintiff's complaint," the opinion said. "Plaintiff has served impressive legal and medical expert reports warranting a trial."