A New Jersey appeals court has snuffed out a last-ditch attempt to use the common knowledge doctrine in a legal malpractice case after the plaintiff's attorney failed to obtain an expert for trial.

A three-judge Appellate Division panel on Tuesday said a trial judge was correct in dismissing the malpractice complaint after giving the plaintiff's attorney a number of opportunities to obtain an expert.

Appellate Division Judges Jose Fuentes, Thomas Manahan and Karen Suter said the plaintiff's attorney had no one but himself to blame for not obtaining an expert.

“Here, plaintiff's belated and disingenuous attempt to jettison the requirement of expert testimony on the day of trial and rely instead on the common knowledge doctrine does not warrant discussion,” the appeals court judges said in the per curiam decision.

The case began in December 2013, when plaintiff Francine Gudin sued defendants 6108 Hudson Ave. LLC, a company, along with officers David Hepperle and Ray Delgaudio in an attempt to collect $262,500 from an outstanding promissory note, according to the decision.

Gudin amended her complaint in October 2014 to include the defendants' attorney, Stephen Cea, and his law firm at the time, Newark's Levy, Ehrlich & Petriello, alleging legal malpractice and breach of fiduciary duty. Gudin filed an affidavit of merit from attorney Carl G. Archer, the court noted.

Over the course of the next year, Hudson County Superior Court Judge Mary Costello and Assignment Judge Peter Bariso granted the plaintiff several discovery extensions, but Gudin's attorney, John Gleason, repeatedly failed to produce an expert to testify, according to the decision.

Costello had set a trial date for Oct. 13, 2015, and that date remained firm.

The defense, citing trial strategy, had declined to provide an expert until after the plaintiff's attorney had done so.

Gleason, of New York's Gleason & Koatz, eventually produced an expert report—10 days after the last discovery deadline expired, and 13 days before trial.

The defense objected to the report's introduction, saying they did not have time to respond before the trial began.

Hudson County Superior Court Judge Jeffrey Jablonski denied Gleasons' attempt to introduce the expert testimony, as well as his later attempt to use the common knowledge doctrine in lieu of expert testimony. Gleason acknowledged to the court that his reliance on the common knowledge doctrine, permitted when expert testimony is unnecessary to make out a claim, was a “fallback” option, the court noted.

Gudin appealed, but the appeals court rejected his “fallback” argument out of hand.

“Counsel's failure to fulfill those obligations are entirely of his own making,” the judges said.

Both Cea's attorney, Michael Canning of Red Bank's Giordano, Halleran & Ciesla, and Levy Ehrlich's attorney, Peter Koenig of O'Toole Scrivo in Cedar Grove, said they agreed with Jablonski's and the appeals court's “well-reasoned” opinions.

Gleason did not return a telephone call.

Contact the reporter at [email protected].

A New Jersey appeals court has snuffed out a last-ditch attempt to use the common knowledge doctrine in a legal malpractice case after the plaintiff's attorney failed to obtain an expert for trial.

A three-judge Appellate Division panel on Tuesday said a trial judge was correct in dismissing the malpractice complaint after giving the plaintiff's attorney a number of opportunities to obtain an expert.

Appellate Division Judges Jose Fuentes, Thomas Manahan and Karen Suter said the plaintiff's attorney had no one but himself to blame for not obtaining an expert.

“Here, plaintiff's belated and disingenuous attempt to jettison the requirement of expert testimony on the day of trial and rely instead on the common knowledge doctrine does not warrant discussion,” the appeals court judges said in the per curiam decision.

The case began in December 2013, when plaintiff Francine Gudin sued defendants 6108 Hudson Ave. LLC, a company, along with officers David Hepperle and Ray Delgaudio in an attempt to collect $262,500 from an outstanding promissory note, according to the decision.

Gudin amended her complaint in October 2014 to include the defendants' attorney, Stephen Cea, and his law firm at the time, Newark's Levy, Ehrlich & Petriello, alleging legal malpractice and breach of fiduciary duty. Gudin filed an affidavit of merit from attorney Carl G. Archer, the court noted.

Over the course of the next year, Hudson County Superior Court Judge Mary Costello and Assignment Judge Peter Bariso granted the plaintiff several discovery extensions, but Gudin's attorney, John Gleason, repeatedly failed to produce an expert to testify, according to the decision.

Costello had set a trial date for Oct. 13, 2015, and that date remained firm.

The defense, citing trial strategy, had declined to provide an expert until after the plaintiff's attorney had done so.

Gleason, of New York's Gleason & Koatz, eventually produced an expert report—10 days after the last discovery deadline expired, and 13 days before trial.

The defense objected to the report's introduction, saying they did not have time to respond before the trial began.

Hudson County Superior Court Judge Jeffrey Jablonski denied Gleasons' attempt to introduce the expert testimony, as well as his later attempt to use the common knowledge doctrine in lieu of expert testimony. Gleason acknowledged to the court that his reliance on the common knowledge doctrine, permitted when expert testimony is unnecessary to make out a claim, was a “fallback” option, the court noted.

Gudin appealed, but the appeals court rejected his “fallback” argument out of hand.

“Counsel's failure to fulfill those obligations are entirely of his own making,” the judges said.

Both Cea's attorney, Michael Canning of Red Bank's Giordano, Halleran & Ciesla, and Levy Ehrlich's attorney, Peter Koenig of O'Toole Scrivo in Cedar Grove, said they agreed with Jablonski's and the appeals court's “well-reasoned” opinions.

Gleason did not return a telephone call.

Contact the reporter at [email protected].