About two weeks after losing his bid to dismiss Barbara Bok's entire legal malpractice suit, attorney Anthony Pope on Wednesday urged the court to throw out certain "speculative" allegations regarding how he handled her underlying matter, which settled mid-trial for $600,000 after a juror became sick, presumably with COVID-19 symptoms.
The lawyer took aim in particular at Bok's assertion in her Dec. 2 complaint that his purported misconduct included not moving for a mistrial when it was "obvious" the case would not reach a verdict in light of the outbreak and the sick juror.
Pope stressed in a brief that a March 12, 2020, order from New Jersey Supreme Court Chief Justice Stuart Rabner suspended all new jury trials due to the pandemic but allowed ongoing jury trials to continue, saying "there is no way to predict whether a judge would have granted a mistrial" as the order "allowed for impaneled jury trials to continue to conclusion."
The allegation that Pope "failed to move for a mistrial is immaterial where defendants would not have been required to move for a mistrial based on" the order "allowing impaneled jury trials to continue to conclusion despite the onset of the coronavirus pandemic nor is there any basis to suggest (other than pure speculation) that a mistrial would have been granted," the brief said.
Among other claims targeted in his motion is Bok's allegation that Pope's questioning of her liability expert at the trial failed to develop the elements of the doctrine of res ipsa loquitur, a Latin phrase meaning "the thing speaks for itself." That doctrine allows jurors to infer a defendant's negligence.
The complaint alleged that his insufficient questioning "guaranteed that the jury would not have been so charged at the conclusion of the evidence in plaintiff's case."
But Pope noted Wednesday that he wasn't finished presenting Bok's case when the trial was "interrupted" by the pandemic, blasting such claims about his questioning as "speculative and improper."
"But for the chain of events occasioned by the COVID-19 pandemic, this matter would have been tried to conclusion," according to Pope's brief. "Plaintiff cannot now assert causes of action based on trial questioning that never concluded due to her decision to settle the matter."
Her allegation about the expert's questioning also is "directly refuted" by a pretrial memorandum filed by Pope, which set forth that, at the end of Bok's case, portions of deposition testimony of two defendants "was to be read into the record and would establish the necessary elements of res ipsa loquitur such that a jury could be appropriately charged," the brief said.
"Certainly there can never be evidence to suggest something would or would not have occurred in a trial when that component of the trial did not yet happen," the brief said.
The underlying case dealt with Bok's allegations that a doctor botched her bilateral tonsillectomy during a 2017 visit to Hackensack University Medical Center, causing her to suffer severe injuries, court documents state. The trial in the case ultimately kicked off with opening statements and testimony on March 9, 2020.
After Bok arrived at the courthouse on March 12, Pope informed her that the defendants had offered a total settlement of $600,000, according to her legal malpractice complaint. Pope also told her that "a juror had called in sick, presumably suffering from COVID-19," the complaint said.
Bok assumed "her case would have to be canceled" since other jurors had been in contact with the sick juror, the complaint said. Because the last settlement demand from Pope was $3 million, Bok initially refused to accept the $600,000 offer and wanted to either pursue the trial if it was postponed or a new trial.
Pope told her that she had to accept the settlement since he had spent more than $132,000 on her case and that if the case was postponed, "he was going to withdraw as her attorney and ... she would have to pay over $50,000 in expert fees, if the case had to be retried," the complaint said.
In previously seeking to toss the entire case, Pope pointed to statements that Bok made about the settlement before Superior Court Judge Mary K. Costello on March 16, 2020. While answering questions from Pope, Bok indicated that she entered into the deal voluntarily and that she was "satisfied" with his services, court documents state.
But Superior Court Judge Lisa M. Adubato denied the motion last month. At the current stage of the case, allegations about Pope pressuring Bok to accept the deal must be taken as true, and Bok must receive every inference that Pope's alleged conduct was "coercive" and "put the plaintiff in a situation of being under duress," Judge Adubato said.
Judge Adubato noted that, during the appearance before Judge Costello, Pope asked Bok "cursory" questions about the settlement and did not ask whether she was satisfied with the deal. Nothing was put on the record about "the reason for the settlement," the judge added.
Even accounting for how Bok said she was satisfied with Pope's services, the judge said "the additional allegations surrounding the settlement aspect of this complaint lead me to deny the motion today."
In his present motion, Pope again cited Bok's statement that she was satisfied with his representation, saying in Wednesday's brief that that remark was "in direct contravention to her allegations that defendants improperly questioned her expert witness or failed to properly try the case."
"Plaintiff's claims outlined in the complaint are improper where plaintiff voluntarily admitted that she was satisfied with her legal representation at trial," the brief said.
Counsel for Pope declined to comment Thursday.
Bok's attorney, Joseph E. Collini, told Law360 on Thursday that "the motion is frivolous and will be denied I am sure."
Bok is represented by Joseph E. Collini of Emolo & Collini.
Pope is represented by Max Billek and Katherine M. Coyne of Wilson Elser Moskowitz Edelman & Dicker LLP.
The case is Barbara Bok v. The Law Firm of Anthony Pope PC et al., case number L-8234-20, in the Superior Court of New Jersey, County of Essex.
--Editing by Daniel King.
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