NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1626-07T11626-07T1
PHYLLIS RABINOWITZ and
ANDREW RABINOWITZ,
Plaintiffs-Appellants,
v.
JUDITH A. WAHRENBERGER, ESQ., and
WAHRENBERGER, PIETRO & SHERMAN, LLP,
Defendants-Respondents.
_____________________________________
Argued January 13, 2009 - Decided
Before Judges Wefing, Parker and LeWinn.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, No. L-5591-07.
Bruce H. Nagel argued the cause for appellant
(Nagel Rice, attorneys; Mr. Nagel, on the
brief).
Elliott Abrutyn argued the cause for respondent
(Morgan Melhuish Abrutyn, attorneys; Mr. Abrutyn,
of counsel and on the brief; Thomas G. Rantas,
on the brief).
The opinion of the court was delivered by
WEFING, P.J.A.D.
Plaintiffs appeal from trial court orders dismissing their complaint and assessing counsel fees and costs. After reviewing the record in light of the contentions advanced on appeal, we affirm the order dismissing the complaint but modify the assessment of costs and fees.
On July 13, 2006, Rebecca Rabinowitz, the daughter of plaintiffs Andrew and Phyllis Rabinowitz, was born prematurely at St. Barnabas Hospital in Livingston. Rebecca suffered from some respiratory distress at birth and remained hospitalized until July 18, 2006. On July 19, 2006, plaintiffs took Rebecca to the emergency room at St. Barnabas when she again appeared to be in respiratory distress. At the emergency room, Rebecca was seen by Lynn Reyman, M.D., who did not re-admit her to the hospital despite her parents' protests. They returned home with the baby who died two days later on July 21, 2006, after suffering a massive nose bleed.
In January 2007, plaintiffs, represented by Bruce Nagel, Esq., of Nagel Rice, commenced suit against Dr. Reyman. Dr. Reyman was represented in that suit by Judith Wahrenberger, Esq., of Wahrenberger, Pietro & Sherman. Plaintiffs alleged that Dr. Reyman was negligent when she did not admit the baby to the hospital on July 19, 2006, and that her negligence was a proximate cause of the infant's death.
On June 7, 2007, Ms. Wahrenberger deposed Andrew and Phyllis Rabinowitz on behalf of her client, Dr. Reyman. Ms. Rabinowitz was pregnant at the time of the deposition and under emotional stress. Ms. Rabinowitz was deposed first, and we are informed that she wept at several points while being deposed.
In his deposition, Mr. Rabinowitz noted that his wife had arranged to have a baby nurse after Rebecca was born. He said that when he and his wife arrived home after the baby's death, they were both distraught and unable to enter the house. He said that the police had driven the baby nurse to the train station. Ms. Wahrenberger asked which police department had come and the following exchange took place.
A. The Millburn Police. I believe it was the head of the Millburn Police because I had asked for him when Rebecca died because I had suspected there was a murder. So I asked for the head of police and the head of police, I was told, was coming.
Q. Why had you suspected a murder?
A. Negligent homicide is a murder.
Q. Why did you suspect negligent homicide?
A. Because the institution of Saint Barnabas failed to give my daughter proper treatment by releasing her when she was clearly still sick. And Dr. Reyman clearly saw a sick baby and clearly turned the other cheek and let her leave for her father to give her mouth to mouth. So both institutions and people just turned their head away from a clearly sick and dying child.
Q. And that was what you considered to be negligent homicide?
A. In my opinion, not as a lawyer, but as a parent -- I am a lawyer but not as a lawyer, as a parent, yes.
Q. Are you admitted to the Bar in any state?
A. New York and Washington D.C.
Q. Do you practice law?
A. Not as an outside counsel but for the firm, yes.
Q. Did you think that the baby nurse was in any way involved in negligent homicide?
A. Absolutely not.
Q. Was there ever a time that you thought she might have been --
A. Absolutely not.
Q. Do you think the nanny may have ever been involved in negligent homicide?
A. Absolutely not.
Q. Did you think your wife may have been involved in negligent homicide?
A. Absolutely not.
Q. Do you think that your wife may have treated the baby roughly?
A. No.
MR. NAGEL: Enough
Q. Do you think that the baby nurse --
MR. NAGEL: Enough
MS. WAHRENBERGER: We're talking about negligent homicide. I think I've got to ask these questions.
MR. NAGEL: No, you don't because it's not part of this case. It's his opinion.
THE WITNESS: I said my opinion as a parent, not as a lawyer. That's what I said.
MR. NAGEL: It's not part of this civil case. This is his opinion as a parent. It has no evidential value in a civil action so you don't have to go down this road.
MS. WAHRENBERGER: This baby had a subarachnoid bleed. One of the things that can cause a subarachnoid bleed is child abuse. This may very well be in this case. If you're not going to let him answer the questions --
MR. NAGEL: Say that again.
MS. WAHRENBERGER: Listen to the record. If you're not going to let me ask these questions --
MR. NAGEL: I'm going to tell you right now --
MS. WAHRENBERGER: Excuse me. I'm speaking now.
MR. NAGEL: If you go down that route without an expert right now --
MS. WAHRENBERGER: I would never go down that route without an expert.
MR. NAGEL: If you ask any of those questions to my clients who have lived through this tragedy, this deposition will end. So you've got a choice right now; you're going to take a different tact [sic]. If you ask one question that is even suggestive of the garbage that I just heard out of your mouth, this deposition will end.
MS. WAHRENBERGER: Mr. Nagel --
MR. NAGEL: We'll go before the court and have a monitor appointed so you don't ask a question like that to insult these parents who have lived through this.
The deposition then continued without further incident.
The following month plaintiffs filed the instant two-count complaint against Ms. Wahrenberger and her firm. In the first count, they referred to the deposition sequence set forth above as "outrageous and inhumane" and "so reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency." They sought damages on the theory of outrage. In the second count, plaintiffs sought damages for either intentional or negligent infliction of emotional distress. They alleged that defendant Wahrenberger had "intentionally elected to humiliate, embarrass, insult, and inflict the most grievous emotional distress" and that her "black-hearted attack" had been "calculated to cause severe emotional distress, humiliation, and offended all norms of civilized behavior and decency."
In lieu of filing an answer, defendants, through counsel, Elliott Abrutyn, Esq., of Morgan Melhuish Abrutyn, filed a motion to dismiss this complaint for failure to state a claim under Rule 4:6-2(e). Plaintiffs opposed this motion and cross-moved to disqualify the attorneys representing defendants. We are satisfied the trial court correctly denied the motion for disqualification and granted the motion to dismiss.
I
We turn first to the motion for disqualification. If that should have been granted, its denial would necessarily have tainted the remainder of the proceedings.
Nagel and his prior law firm had instituted several medical malpractice actions against Joseph Dello Russo, M.D., a physician who had an extensive practice in performing laser eye surgery. Dello Russo v. Nagel, 358 N.J. Super. 254, 261 (App. Div. 2003). The law firm placed a newspaper advertisement seeking other clients who might have claims against Dello Russo. Id. at 262. Dello Russo responded by filing suit against Nagel and other attorneys in the firm, seeking injunctive relief and damages under several theories, including defamation and tortious interference. Id. at 260. Part of Dello Russo's claim rested upon the allegation that Nagel had, prior to publication of the advertisement, demanded $3 million to settle the pending suits and threatened to place such an advertisement if the money were not paid. Id. at 261. Elliott Abrutyn, Esq., successfully represented Nagel in that litigation, arguing in part that any statements that might have been made during a settlement conference were subject to the litigation privilege. Id. at 265-67.
Plaintiffs sought to disqualify Abrutyn from representing defendants in this matter because he had represented Nagel in the earlier matter. In support of their motion, plaintiffs relied upon R.P.C. 1.9. We agree with the trial court that R.P.C. 1.9 provides absolutely no basis upon which to disqualify Abrutyn in this matter. R.P.C. 1.9 sets forth the parameters that guide attorneys in handling matters adverse to the interests of former clients. The Rabinowitzes were never clients of Abrutyn. And, in pressing the motion, plaintiffs made no allegation that Abrutyn, as a result of representing Nagel in the earlier action, came into possession of any confidential information about Nagel or his prior firm.
II
The New Jersey Supreme Court has twice in recent years been called upon to consider the litigation privilege and upon each occasion it has strongly restated its views on the necessity and value of recognizing and enforcing the privilege. Loigman v. Twp. Comm. of Middletown, 185 N.J. 566 (2006) (holding that plaintiff's