Rabinowitz v. Wahrenberger
966 A.2d 1091, 406 N.J. Super. 126 (2009)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The absolute litigation privilege protects attorneys from civil liability for statements made and questions asked during judicial proceedings, including depositions, so long as the communications are logically related to the action.
Facts:
- Phyllis and Andrew Rabinowitz's infant daughter, Rebecca, was born prematurely with respiratory distress.
- A day after being discharged from the hospital, the Rabinowitzes took Rebecca to the emergency room where she was seen by Dr. Lynn Reyman but was not re-admitted.
- Two days later, Rebecca died at home.
- The Rabinowitzes subsequently sued Dr. Reyman for medical malpractice, alleging her negligence caused their daughter's death.
- During a deposition in the malpractice case, Dr. Reyman's attorney, Judith Wahrenberger, questioned Andrew Rabinowitz.
- In response to a question, Andrew Rabinowitz stated that he suspected his daughter's death was a "murder" or "negligent homicide."
- Following this statement, Wahrenberger asked Rabinowitz if he suspected the baby nurse, the nanny, or his wife of being involved in the negligent homicide, and if his wife had treated the baby roughly.
Procedural Posture:
- Phyllis and Andrew Rabinowitz filed a medical malpractice suit against Dr. Lynn Reyman.
- After a deposition in that case, the Rabinowitzes filed a new, separate complaint against Dr. Reyman's attorney, Judith Wahrenberger, and her law firm in the trial court.
- The complaint alleged outrage and intentional or negligent infliction of emotional distress.
- In lieu of an answer, Wahrenberger and her firm filed a motion to dismiss for failure to state a claim upon which relief can be granted.
- The trial court granted the defendants' motion to dismiss the complaint.
- The Rabinowitzes, as plaintiffs-appellants, appealed the trial court's dismissal to the Superior Court of New Jersey, Appellate Division.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the litigation privilege protect an attorney from a subsequent lawsuit for intentional infliction of emotional distress based on questions asked during a deposition that are related to the deponent's own testimony?
Opinions:
Majority - Judge Wefing
Yes, the litigation privilege protects an attorney from a subsequent lawsuit for intentional infliction of emotional distress based on questions asked during a deposition that are related to the deponent's own testimony. The court affirmed the dismissal of the complaint against the attorney, holding that her questions were absolutely protected by the litigation privilege. The court reasoned that depositions are an integral part of pretrial proceedings and that the privilege is indispensable to allow attorneys to freely explore and probe claims asserted against their clients. When Andrew Rabinowitz himself introduced the concept of "negligent homicide," Wahrenberger was not only permitted but arguably had a duty to her client to question him further on that statement. The court applied the established four-part test for the privilege from Hawkins v. Harris, finding that Wahrenberger's questions were made (1) in a judicial proceeding, (2) by a participant, (3) to achieve the objects of the litigation, and (4) had a logical relation to the action, thus falling squarely within the privilege's protection.
Analysis:
This case strongly reaffirms the breadth and strength of the litigation privilege in New Jersey, extending its absolute protection to an attorney's questioning during depositions, even if the questions are perceived as offensive or inflammatory. By emphasizing that the privilege protects any communication with 'some connection or logical relation to the action,' the decision insulates attorneys from retaliatory lawsuits for emotional distress, thereby promoting vigorous advocacy and the uninhibited investigation of facts. This precedent serves as a significant shield for litigators, ensuring they can explore all avenues raised during discovery, including a deponent's own provocative statements, without fear of personal liability.
