New Jersey's Trusted Personal Injury Lawyers

Court Weakens the Workers' Compensation Bar

Expands workers' right to sue when injured on unguarded industrial machines
By Ronald Grayzel

There were 14 decisions in tort law this term, the highest profile case being Laidlow, where the Court weakened the workers' compensation bar and expanded the rights of workers to sue their employers when they are aware that injuries are substantially certain to occur on unguarded industrial machines.

A great deal of attention was paid to the field of medical malpractice, where the court expanded the cause of action for informed consent to include a physician's misrepresentations about his credentials. Two cases dealt with the failure of trial courts, in complicated cases, to construct jury charges that are adapted to the facts and theories of the case and that accurately reflect the existing state of the law. And the justices finished their rehabilitation of a plaintiff's right to obtain damages for pain and suffering against public entities.

The Bar anxiously awaits the personnel changes in the next era as Gov. James McGreevey starts to name new judicial nominees for the Court as current justices retire. Trial lawyers were ecstatic that one of their own, Barry Albin, received the nod for the next vacancy. Albin will be the first trial lawyer to ascend to the Court since Justice Robert Clifford retired. Albin spent his professional career trying civil and criminal cases and he will bring valuable insight to future court decisions.

Storming the Ramparts
Employers have always enjoyed immunity from personal injury lawsuits by their employees, thanks to the exclusivity provision of the Workers' Compensation Act, N.J.S.A. 34:15-8. This bulletproof shield has received scathing criticism from judges, commentators and trial lawyers who believe that this exemption allows employers to "get away with murder." The most vocal critics have been product liability defense lawyers who complain that manufacturers are burdened with liabilities that should be borne by industrial employers causing accidents by modifying and/or removing safety devices from machines.

The act provides that employees may sue their employers and co-employees for intentional misconduct, but the courts have narrowly construed this exception to apply only to deliberately intentional acts and not to grossly negligent, reckless, willful or wanton misconduct. Bryan v. Jeffers, 103 N.J. Super 522 (App. Div. 1968).

The authoritative view expressed by Larson in his treatise on Workers' Compensation "was that a cause of action against the employer could not lie for anything short of a conscious and deliberate intent directed to the purpose of inflicting an injury." As a practical matter, the only cases that could clear this crossbar were assaults, and they were not worth pursuing as long as workers' compensation provided benefits for lost wages, medical bills and permanent partial disability.

The first crack in the employer's armor was inflicted by plaintiffs in asbestos litigation in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985). Chemical plant workers were permitted to pursue intentional tort actions against corporate physicians for failing to disclose to the plaintiffs that they had radiographic evidence of asbestos disease and for allowing them to continue working in environments laden with asbestos fiber.

The compensatory damages were strictly limited to the aggravation of the diseases the workers had initially contracted. A prima facie case required proof that the defendants knew that their actions were substantially certain to cause harm, and then the trial judge must evaluate "whether the injury and circumstances surrounding it were part and parcel of everyday industrial life or plainly outside the legislative grant of immunity."

This subjective analysis is called the context prong. This was a more expansive definition of intentional misconduct formulated by Prosser. The claims against the corporate employer for "intentionally" causing the occupational diseases in the first place were dismissed - "even though defendant's conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employee's health" - because occupational diseases were perceived in the ivory tower as a typical industrial risk that workers' compensation was designed to remedy.

On first impression, the Court's adoption of a more liberal test for intentional conduct may have appeared to open the floodgates to new cases, but the Millison opinion carefully emphasized that prior precedent was still intact and that the new standard was limited in scope; "substantial certainty" meant "virtual certainty." The restrictive language represented "a conscious effort to impose severe restrictions on the exception, bringing it as close to subjective desire to injure as the nuances of language will permit, while at the same time recognizing the problems of proof inherent in any attempt to demonstrate subjective intent."

Any hope of extending the new doctrine to industrial machine cases was dashed by the citation to Larson's statement that "the intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin." Millison was a big bang with no consequences. Plaintiffs got the headlines and employers kept their immunity.

The next attack on the citadel didn't occur until 13 years later, when the Appellate Division, in Mabee v. Borden, Inc., 316 N.J. Super 218 (1998), made an employer stand trial in a machine case where the record revealed evidence that the defendant was aware of the dangers of the equipment, had removed a safety guard to increase production and a prior injury had occurred. The Appellate Division believed that this constellation of facts provided a reasonable inference that the defendant knew that the plaintiff's accident was sufficiently certain to occur. The interlopers had now reached the factory gate.

The high stakes rematch between employers and employees came to the arena at the Richard J. Hughes Justice complex after the lower courts, in Laidlow v. Hariton Mach. Co., 335 N.J. Super 330 (App.Div. 2002), dismissed a case brought by a worker against his employer for an accident on an unguarded industrial machine where the plaintiff was prepared to prove that the defendant was aware of the danger; that there had been complaints about the problem; that there had been prior close calls; and that a guard had been purchased but not installed.

There was testimony in depositions that the guard was placed on the equipment only when OSHA made inspections. The trial court and the majority of the Appellate Division granted and sustained the employer's summary judgment application because they did not believe that the plaintiff's version of the facts constituted intentional wrong. Two appellate judges found that the lack of prior injuries differentiated the case from Mabee, but the dissent believed that the evidence of the defendant's knowledge was sufficient to sustain a claim (especially the employer's attempts to hoodwink OSHA). As Phil Rizzuto used to say: "The ducks are on the pond."

In Laidlow, 170 N.J. 602 (2002), authored by Justice Virginia Long, a unanimous Supreme Court reversed the decisions below and sent the case back for trial. The theoretical foundation for the decision was the unqualified adoption of Prosser's expansive definition of intentional wrong to include actions by an employer that are substantially certain to cause harm; the plaintiff is not required to prove that the employer had a subjective desire to harm.

The justices embraced the conclusion in Mabee that the deliberate removal of a safety device from a machine by an employer could, under appropriate circumstances, meet the intentional-wrong standard. The justices agreed with the dissenting appellate judge that the facts were sordid enough to satisfy the substantial certainty test, even though there were no prior injuries on the equipment.

In order to quell concerns about a dramatic increase in litigation, Long stated that the "holding is not to be understood as establishing a per se rule that an employer's conduct equates with an intentional wrong whenever that employer removes a guard or similar safety device from equipment or machinery, or commits some other OSHA violation."

Trial judges are now gate-keepers required to initially evaluate, in summary judgment applications, whether the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If the initial inquiry is satisfied, then the trial judge is to determine "whether the injury and the circumstance surrounding it were part and parcel of everyday industrial life or plainly outside the legislative grant of immunity."

The latter determination is strictly a judicial function and is not only to be deployed in summary judgment motions, but also at critical times during the trial and in post-trial motions.

Laidlow is a major victory for lawyers who labored long and hard to break through the worker's compensation bar. In third-party liability cases, the plaintiff now has the option to pursue the employer where the evidence discloses egregious misconduct. This option was a boon to Laidlow who had already settled claims against the manufacturer and distributor of the machine.

Product liability defense lawyers will file cross-claims for contribution and wage war on the employer. Even if the evidence of intentional conduct doesn't pass muster by the end of the trial, the record will be filled with testimony about the employer's misconduct that defense lawyers will attempt to use to show that the product was not a proximate cause of the plaintiff's injuries.

Employers are not subject to strict liability and manufacturers will use this as a wedge to circumvent Suter v. San Angelo foundry & Machine Co., 76 N.J. 240 (1978), and try the plaintiff's conduct. Product sellers must be careful not to sue an employer that fights back. The employer's liability insurance company will not simply lie down and take the hit. Employers may take aim at manufacturers, as they have a stake in the recovery of their compensation lien. Plaintiff and defense lawyers may decide that the best strategy is to leave the employer's chair empty.

Finally, the Death of Brooks
Under Brooks v. Odom, 150 N.J. 395 (1997), a plaintiff was prohibited from recovering money damages for pain and suffering against a public entity if an injured body part regained any function or the plaintiff was able to return to work. This threshold was set so high that many seriously injured plaintiffs with legitimate cases were left without a remedy. This new standard totally upended the routine handling of Tort Claims Act cases that had existed for decades.

In Gilhooley v. County of Union, 163 N.J. 11 (2000), the Court rectified its Brooks mistake by allowing for recovery of damages if there was a permanent loss of the use of a bodily function that is substantial, even though it is not total.

The Court devised a two-pronged test that the plaintiff had to satisfy: (1) an objective permanent injury; and (2) a permanent loss of bodily function that is substantial. The Court created a category of cases involving "aggravating circumstances" that applied to the plaintiff in this case because she had a surgical repair of a fracture with the insertion of hardware. The justices also admonished courts not to engage in fact-finding in summary judgment applications that mimics the responsibility of juries in plenary trials. The Gilhooley decision calmed turbulent waters and provided trial courts with a flexible method of analysis to resolve pain and suffering claims against public entities.

The Court finished its repairs to the damaged infrastructure of Title 59 caused by the Brooks earthquake by deciding two cases that added content to the Gilhooley analysis: Kahrar v. Borough of Wallington, 171 N.J. 3 (2002) and Ponte v. Overeem, 171 N.J. 46 (2002).

The plaintiff in Kahrar injured her shoulder in a fall that required surgery - in which a portion of the bone in the shoulder was removed and a detached tendon was reattached to the shoulder - to repair a torn rotator cuff. The shortened tendon limited the movement of the shoulder and the limitation of motion was confirmed by objective tests in orthopedic evaluations of the plaintiff.

Medical expenses were approximately $25,000 and lost wages amounted to $6,225.00 (the plaintiff lost about one hundred days of work). The plaintiff was able to return to her job as a secretary with no restrictions and to resume her normal day-to-day activities, with some physical limitations.

The trial court dismissed the claim under Brooks because the residuals of the plaintiff's injuries did not constitute a permanent loss of bodily function because she was able to resume her job duties in her sedentary occupation. The appellate court affirmed the decision.

The Court granted the plaintiff's petition for certification and restored the case. The justices found ample objective evidence of a serious injury and concluded that the plaintiff's limitations were substantial. Key factors in the Court's decision were the degree of the injury, the invasiveness of the surgery and the marked limitations of motion in the shoulder.

The opinion also hit the delete key on the Brook's methodology of dismissing cases if the plaintiff is able to resume activities, even with limitations. "If the loss of bodily function is permanent and substantial ... a plaintiff's eligibility to recover pain and suffering damages will not be defeated merely because she can perform some routine functions almost as well as she could prior to her injury."

The plaintiff in Ponte required arthroscopic surgery to repair a torn meniscus caused by an accident on a New Jersey Transit bus. The plaintiff's treating orthopedist subsequently noted in his records that the plaintiff's knee had a good range of motion and good stability. The plaintiff stated in answers to interrogatories that he had pain and discomfort in his knee and that he had to limit his physical activities because of the injury.

After summary judgment was obtained by the defendant in the trial court, the decision was reversed by the Appellate Division. The Supreme Court granted certification and restored the trial court's decision. The Court was influenced by the fact that the plaintiff had no limitation of motion, no instability in the injured joint, no impairment in his gait and no significant limitation of activities. In the eyes of the justices, this case contained none of the aggravating circumstances necessary to justify an award of damages for pain and suffering under Title 59.

Brooks is deader than a doornail. May it rest in peace. It has been replaced by a rational analysis requiring a fact finder to pinpoint whether or not there is objective evidence of a serious injury, medical findings documenting a permanent disability and a real life impact on the activities of daily living.

Kahrar and Ponte are two well described end points on a continuum that outlines to judges and jurors where a viable case lies. The dissent by Justice Peter Verniero is absolutely correct in its observation that Brooks was kicked out the back door by his colleagues, but his lament fails to take into account that remedial measures were required to repair the damage done when Brooks trampled on precedent and prior practice. It is a credit to the Supreme Court that they recognized the error of their ways and did what had to be done to correct the problem.

Sham Affidavit Doctrine
A guiding principle of the civil justice system is that a trial on the merits is the only authentic way to resolve a dispute among the parties that cannot be taken care of by negotiation and compromise. But a trial is anathema to a litigator.

To lawyers in the mega firms occupying the multi-story legal centers, the true way to test your adversary's mettle is to shower her with paper and then go on to endless days of depositions. Victory is winning the motion for summary judgment - trials are for the rabble.

A great obstacle to the litigator's worldview has been the civil justice system with its anachronistic, sentimental attachment to the common law, the rules of evidence and the jury trial. To the new world order, Judson v. People's Bank & Trust Co., 17 N.J. 67 (1954), with its emphasis on giving people their day in court, was an object of contempt.

When Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), came down, champagne corks popped in mahogany-paneled conference rooms everywhere to celebrate the long-awaited invocation to try cases on the papers without the messy intervention of juries. The only problem was that Brill did not quite work out the way it was expected to. The trial courts were still populated with too many judges who were wed to the old ways of doing things. Judges were still finding fact disputes everywhere. What to do?

Here comes the sham affidavit rule. First, you treat a deposition like a trial, asking the parties, the witnesses and the experts hours and hours of carefully constructed questions until you get the answers you are looking for. You prepare the script for your own witnesses very carefully so they do not stray from the party line. You create mounds of self-serving documents and paper discovery that make nice additions to appendices for briefs.

Then comes the litigator's crowning moment: the summary judgment motion. When your adversary submits opposing affidavits, you knock them out of the box because they contradict the previous deposition testimony rendered in sterile conference rooms outside the dynamic of the courtroom. Once you accomplish this feat, the facts are undisputed, and you win.

How do you knock out an affidavit from a party or a witness that calls a fact question into play? The sham affidavit rule. This rule of convenience requires a trial court to reject an affidavit that contradicts the affiant's prior deposition testimony.

What is the rationale for this contrivance? After all, isn't credibility best assessed in a trial where questions and answers are governed by the rules of evidence; where testimony is judged in context with the case around it; and where the fact finders have an opportunity to assess the demeanor of the witness? Quaint, but sappy.

As the court said in Perma Research & Development Co. v. Singer Co., 410 F.2d 13 (2nd Cir. 1969), "If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issue of fact." We wouldn't want that, would we? It is much better to have a system that makes these judgments every other Friday after reviewing briefs and appendices.

This new procedural rule found its way into our jurisprudence in Shelcusky v. Garjulio, 343 N.J. Super 504 (App. Div. 2001), a products liability case, where the plaintiff alleged that a forklift was defective because it lacked warnings about the dangers of using it while handling explosive materials. The plaintiff was seriously injured when his forklift ignited some explosive materials. In depositions, the plaintiff testified that he did not know what these materials were. The plaintiff's employer also testified in depositions that he did not know that the load the plaintiff was working on was potentially explosive.

The defendant moved for summary judgment, arguing that the plaintiff could not prove proximate cause because the plaintiff and his employer did not know the materials that the forklift was handling were explosive, and a warning to this effect would not have changed their conduct. One of the key items in the defendant's appendix was an OSHA report that would have never seen the light of day at trial. Plaintiff submitted the following affidavit in opposition to the motion:

“At the time I was injured I did not know what I was loading, and I had no reason to inquire as to the contents of what I was loading. If it was important to determine what I was loading I would have discovered that the items I was loading were rejected damaged cans that were leaking flammable gases . Because I was aware that there were flammable materials on the premises, a warning not to use the forklift where flammable gases or vapors were present would have alerted me to discover the items I was loading were rejected damaged cans and thus would have prevented me from using the forklift and getting injured.”

The trial court granted summary judgment, holding that the plaintiff could not sustain his burden of proof on proximate cause because a warning would not have made any difference since the employer did not know that the materials were explosive. The plaintiff moved for reconsideration with a new affidavit from a co-worker (stating that he knew that the products were flammable) to support an argument that he would not have had to ask his employer to find out that the products were flammable.

The court denied the motion, finding that the plaintiff had failed to prove that he or his co-workers believed the products to be flammable. The plaintiff tried again with an affidavit he executed stating that he did know the products were flammable and that a warning would have changed his conduct.

The trial court refused to consider the motion. The decision was upheld on appeal because the court below was not required to accept "a purely self-serving certification by plaintiff that directly contradicts his prior representations."

The Supreme Court granted certification and formally adopted the sham affidavit rule, but with important limitations. Shelcusky v. Garjulio, 172 N.J. 185 (2002). The justices made it very clear that the rule should be applied only when an affidavit is "clearly or blatantly" inconsistent. The record needs to be carefully examined to make sure that there is no reasonable explanation for apparent differences. An affidavit that explains or clarifies testimony will not be rejected. If an affidavit offers a justification for the inconsistency, such as confusion or failure of memory or misspeaking, it will be considered. Newly discovered evidence might explain a different factual presentation.

If a satisfactory explanation for a contradiction is offered, a credibility question is presented and the motion should be denied. If an adequate presentation is not made, then the affidavit will be disregarded. When a court reviews the party's testimony and compares it to an affidavit, there is "a kind of weighing that involves a type of evaluation, analysis and sifting of evidential materials. This process is not the same kind of weighing that a fact finder engages in when assessing the preponderance or credibility of evidence."

After reviewing the record, the Court found that the courts below should not have ignored the supplemental affidavits from the plaintiff and the witness. A majority of the justices believed that the affidavits explained and clarified testimony and did not contradict it, but also believed the affidavits created a fact issue on proximate cause - and the dismissal was reversed.

This decision fairly balances a party's right to a plenary trial against the integrity of the proceedings in the civil justice system. If a fact is fairly established under oath in a deposition by a party or a witness, summary judgment will not be denied simply because a supplemental affidavit is submitted that contradicts prior sworn testimony. If the affidavit adds important information or clarifies prior statements, the affidavit should be considered.

In today's world, it may be prudent for lawyers to develop key points on cross-examination in depositions that normally might be left alone. If you don't practice your position in depositions, a court may conclude you don't have one.

Good Samaritan
N.J.S.A. 2A:62A-1 provides immunity to physicians, paraprofessionals and volunteers "who in good faith render emergency care at the scene of an accident or emergency to the victim or victims thereof, or while transporting the victim to a hospital." Does this protection extend to doctors who are called upon to provide emergency assistance to other physician's patients at a hospital? The Supreme Court said no in Velazquez v. Jiminez et al., 172 N.J. 240 (2002):
Good Samaritan immunity encompasses only those situations in which a physician (or other volunteer) comes by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation and staff. A hospital or medical center does not qualify. Terrible complications developed during the plaintiff's labor and delivery at the hospital, prompting the patient's ob/gyn to summon help from a specialist in fetal medicine on the staff who routinely handled high-risk patients. There was no prior contact between the specialist and the plaintiff.

The specialist encountered a dire situation. The first physician could only deliver the baby's head because its shoulders were pressing against the mother's pubic bone. After an attempt to complete the delivery vaginally failed, the specialist performed a Caesarean. Unfortunately, the baby was born brain damaged and died before his third birthday.

In the malpractice case, the patient's regular physician and the hospital settled with the plaintiff, who proceeded to trial against the specialist. The jury found in favor of the plaintiff but only allocated 3 percent of the liability to the specialist.

Not content with a personal victory, the defendant pressed forward to try to win one for the profession by obtaining complete immunity under the good samaritan doctrine. The trial court and the appellate court decided that the immunity did not apply to physicians working on staff in a hospital.

The Court's work was complicated by the fact that the statute did not expressly exclude medical professionals called on for emergency assistance at a hospital. When confronted with a poorly written statute like this one, courts turn to the legislative history and discern the legislative intent.

The historical literature on good samaritan statutes revealed that they were passed to resolve the dilemma a physician faces when she encounters accident victims on the roadway. In such a case, only limited, heroic measures can be provided until the ambulance arrives and transports the victim to the hospital.

The statutes were passed to ensure that medical professionals could render aid without fear of legal repercussions and were not designed to provide immunity to physicians working on staff at well-equipped hospitals.

In the few states where broader protection is provided, the statutes have express language to include hospital physicians. In the absence of a clear legislative command to do so, this Court was not going to extend immunity to a huge pool of professionals paid to render emergency treatment in medical facilities.

Informed Consent
In Howard v. University of Medicine and Dentistry of New Jersey, 172 N.J. 537 (2002), the plaintiff underwent a decompressive cervical laminectomy by a neurosurgeon at UMDNJ that left him a quadriplegic.

In the malpractice case, the plaintiff alleged that the defendant failed to provide him with informed consent and negligently performed the surgery. The defendant denied the allegations and testified that he conducted two lengthy meetings where he explained the risks and benefits of the procedure to the patient. The defendant also testified in his deposition that he had performed this procedure approximately two dozen times before and that he had become board certified in neurosurgery two years after this operation.

After the deposition, the plaintiff moved to amend the complaint to add a count for fraud supported by the plaintiff's certifications that the defendant had represented to him in conversations that he was board certified and that he had done the operation over 60 times before.

The defendant opposed the motion arguing that it was too close to trial to add new causes of action and that there was no merit to the allegation. The trial court was persuaded by the defendant's arguments and did not believe the amendment would fundamentally change the plaintiff's obligation to prove that the defendant negligently performed the surgery.

In the trial judge's view, the allegation of fraud would only inject undue prejudice into the proceeding. The Appellate Division granted leave to appeal and instructed the trial court to permit an amendment to include a "deceit based claim." Fraud would require proof that the defendant made a material misrepresentation of a presently existing or past fact with knowledge of its falsity and with the intent that the plaintiff would rely thereon - with resulting reasonable reliance to the plaintiff's detriment.

The appellate court analogized the claim to a battery and held that the plaintiff would not have to prove that the surgery was performed negligently to prevail on the fraud claim.

The Supreme Court granted leave to appeal to evaluate whether or not a physician's misrepresentation of his credentials is actionable and, if so, whether it constitutes a lack of informed consent, a battery or a claim for fraud.

The opinion, authored by Justice Jaynee LaVecchia, is a primer on the different theories of malpractice and reading it will be useful to any lawyer who wants to understand the interplay of the different causes of action.

A battery occurs if a doctor fails to obtain a patient's consent for a procedure, or if there is consent to one type of operation and the surgeon performs a substantially different one. Consent can be vitiated by fraud and constitute a battery. In Perna v. Pirozzi, 92 N.J. 446 (1983), the justices held that a battery occurred if a surgeon who obtained consent for the operation substituted other physicians in his group to do the procedure without knowledge of the plaintiff.

In this intentional tort action, the plaintiff does not have to prove that the physician deviated from the standards of practice. A plaintiff may obtain at least nominal and punitive damages even if the operation was performed properly with a perfect result. For this reason, this is not a cause of action that courts wishes to push the envelope on.

Every patient is entitled to be fully informed about the potential risks and benefits of a proposed form of medical treatment. A breach of duty occurs when the health-care provider does not disclose a material risk of a particular form of treatment. Not every risk is material. A risk is material "when a reasonable patient, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk, or cluster of risks, in deciding whether to forego the proposed therapy or to submit to it." Largey v. Rothman, 110 N.J. 204 (1988).

The specific information that must be provided is dependent on what a reasonably prudent patient would consider significant before deciding whether to have the treatment. A plaintiff meets the burden of proof on causation if he can demonstrate that a reasonably prudent patient in the plaintiff's position would have declined the treatment or selected a different option if he had been apprised of the risks. The plaintiff does not have to show that the defendant performed the underlying treatment negligently to recover in an informed-consent case.

In framing the issue, the Court noted that physicians do not have a legal obligation to disclose their credentials to a patient. However, the justices believed that affirmative misrepresentations about a surgeon's credentials could undermine the consent given by a patient.

LaVecchia concluded that "a serious misrepresentation concerning the quality or extent of a physician's professional experience, viewed from the perspective of the reasonably prudent patient assessing the risks attendant to a medical procedure, can be material to the grant of an intelligent and informed consent to a procedure. Stripped to its essentials, plaintiff's claim is founded on lack of informed consent."

The Court placed some significant limitations on a misrepresentation case. A plaintiff cannot prevail unless "an objectively reasonable person could find that physician experience is material in determining the medical risk of the procedure to which plaintiff consented, and if a reasonable prudent person in plaintiff's position informed of the defendant's misrepresentations about his experience would not have consented, then a claim based on lack of informed consent may be maintained."

A critical component of the plaintiff's burden of proof is to show that the defendant's level of experience "had the capacity to enhance substantially the risk of paralysis from undergoing a corpectomy. If the true extent of the defendant's experience could not affect materially the risk of paralysis from the procedure, then the alleged misrepresentation could not cause a reasonably prudent patient in plaintiff's position to decline consent to the procedure."

The practical consequence of this last requirement is that the plaintiff's expert must persuade a jury by a fair preponderance of the believable evidence that the defendant's lack of experience was a cause of the plaintiff's harm.

What does that mean? The plaintiff's expert will have to pinpoint something the inexperienced defendant did (or did not do) that a more experienced physician would have done with more skill. In the vernacular of a malpractice lawyer, that is a standard and a deviation, right? That sounds a lot like garden variety malpractice, doesn't it?

The trial judge, who did not want to create a platform enabling the plaintiff's lawyer to distract the jury from its central mission in the case of evaluating whether the surgery was performed properly, had analyzed the problem correctly. Injecting fraud into the case changes the dynamic of the trial and creates the potential of distracting the jury from focusing on the critical issue. The trial judge did not believe that raising the temperature of the proceeding was conducive to a dispassionate review of the evidence.

When you squeeze this new cause of action hard, all you are doing is giving the plaintiff an opportunity to create a hot tailwind to drive the jury to a plaintiff's verdict in a disputed case. The Court was very uneasy about creating a cause of action based on a credibility shootout. This is why the trial judges have been instructed to exercise a significant gate-keeping function for a misrepresentation case. The trial judge must be wondering where he went wrong guarding this gate. This is a not a cause of action that will generate much traffic.

But the Court would not embrace a separate cause of action for fraud because of its concern that it would unleash a potent cause of action involving claims for punitive damages that would not be subject to the limitations of proof associated with informed consent.

Fatal Error
In days of yore, trial judges drafted their own jury instructions, drawing on their own background and experience to make sure that the charge accurately set forth the applicable legal principles. The goal of these efforts was to make the law understandable to jurors.

To be successful, you had to work at it. Many trial judges would maintain eye contact to ensure that the message got across. There were courtrooms where jurors were invited to ask questions if they did not understand what they were listening to. If there was a problem in communication, the trial judge departed from the script and improvised to get the point across. Many experienced judges kept notebooks of their work product that they circulated to colleagues. While the model jury charges have existed for many years, it was only a guide to be used as needed.

As the ranks of the judiciary swelled with lawyers who had never practiced regularly in the courts and the law became more complex and difficult to keep up with, the model jury charges became a testament that was routinely read verbatim to juries. The red book was stuffed with mundane charges for routine occasions like welcoming, excusing and thanking the jury. The creative judicial process of molding the communication to the situation at hand was replaced by the rote recitation of dull, rigid prose.

Trial judges are supposed to adapt the instructions to the facts and theories of individual cases, but that does not happen very often. A significant drawback to the mechanical use of the red book is that there is a considerable lag time between changes in the law and the revision of the model jury charges. It is not uncommon for cases to be tried on outdated principles of law because the revisions have not hit the shelf yet, and appellate judges have become increasingly frustrated.

The jury instructions in Das v. Thani, 171 N.J. 518 (2002), failed to incorporate the changes in the medical judgment charge mandated by the Supreme Court in Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618 (1999). The opinion limited the judgment charge to cases involving misdiagnosis or the selection of one of two or more generally accepted courses of treatment. The treatment chosen must be an equally acceptable approach in order not to be a deviation from accepted practice, and the facts of the case must be carefully analyzed before a decision is made to give the charge, which must be adapted to the facts of the specific case. These principles were subsequently reaffirmed and expanded on in Velazquez v. Portadin, 163 N.J. 677 (2000).

Old habits are hard to break and medical malpractice defense lawyers bite, kick and scratch to hold onto any vestige of the judgment charge because it helps win cases.

The plaintiff in Das had a complicated labor and delivery and the baby died due to longstanding complications that existed in the womb. In the malpractice case, the plaintiff alleged that her ob/gyn failed to use modern technology (to monitor the health and development of the fetus) that would have detected the problem early enough to save the baby.

The mother was diagnosed with diabetes during her pregnancy. The physician determined fetal growth by placing his fingers on the plaintiff's abdomen and counting the number of fingertips from top to bottom to compute the length of the unborn child. He also evaluated the baby's health by using maternal fetal monitoring, relying on the mother to tell the physician how often the baby moved in two-hour intervals.

The plaintiff's expert testified that the standard of care required the use of modern, accurate equipment and methodologies such as ultrasound, fetal monitoring and biophysical profiles, especially after the mother was diagnosed with diabetes. The expert described the defendant's techniques as " '60s medicine."

The plaintiff's position was buttressed by the fact that the defendant had the equipment in the office but did not use it. No doubt defense counsel's legal position was undercut by the fact that these technologies have been used for many, many years by physicians monitoring pregnancies in lawyers' families.

The defendant's expert opined that frontier techniques are just as acceptable as modern ones because "there's a whole array of ways you can monitor a fetus" even in a patient with diabetes. Defense counsel, Ms. Houdini, made the elephant disappear by arguing that the patient did not have the kinds of problems that called for modern technology and that the choice to do things manually was a matter of "judgment."

The trial judge delivered the old boilerplate charge on medical judgment right out of the model jury charge, without objection, including the music that defense counsel wanted to hear: "when the accepted standards of medical practice permit two or more courses of action and the physician in the exercise of his judgment selects one of those alternatives, he cannot be found negligent if the course chosen produces a poor result." The experienced and skilled defense lawyer was able to parlay the judgment theme into a no cause of action.

In post-trial motions and on appeal, the lower courts took an old-fashioned look at the case and upheld the verdict, observing that the lawyers had done an excellent job in presenting their positions and that the charge was adequate enough to avoid the label of plain error.

The Supreme Court disagreed. It originally remanded the case to the Appellate Division for re-examination in light of Velazquez. After the appellate court affirmed the case a second time, the Court reversed and ordered a new trial because of the inadequate jury instructions. Justice James Coleman, a former trial judge, wrote an opinion that reflects the Court's impatience with lower courts' failure to adapt model jury charges that reflect changes in the law.

Once again, the Court laid out the basic elements of a judgment charge by approving this revision made to the model jury charge:
A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/ treatment choices must be in accordance with accepted standard medical practice. Your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis [specify what types treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.
Coleman instructed judges and the bar that the judgment charge must specifically lay out the factual allegations of the parties and place them in context for the jury:
The jury first should have been instructed that if it believed plaintiff's experts that defendant deviated from the standard of care by not monitoring plaintiff's pregnancy with ultrasounds, electronic fetal monitoring and biophysical profiles, then it may not excuse defendant's omissions as medical judgment. Conversely, if it believed defendant's expert that maternal fetal monitoring complied with the standard of care, then the selection of one of two generally accepted courses of treatment was an exercise of medical judgment for which defendant could not be liable.
The Court found the trial court's charge to be "grossly inadequate" and granted a new trial. The Court has now spoken forcefully on three occasions concerning its expectations that trial judges should carefully examine the facts of each case on the record before deciding to give the judgment charge and, if it does give the charge, to carefully tailor the charge to the facts of the case. That cannot be accomplished by filling in the blanks in the model jury charges.

The plaintiff in Reynolds v. Gonzalez, 172 N.J. 266 (2002), seriously injured his leg in a motorcycle accident and was left with a serious disability that he contended was caused by the defendant's failure to diagnose and treat compartment syndrome. The malpractice case was defended vigorously by the treating orthopedist, who claimed that the plaintiff had a serious, irreversible nerve injury caused by the accident, not by compartment syndrome.

The battle of the experts focused on the competing diagnoses and whether or not the injury was treated appropriately. There were two trials and each jury returned an identical verdict, finding that the defendant had committed malpractice by failing to test for compartment syndrome and that the deviation increased the risk of the ultimate harm, but that the increased risk was not a substantial factor in producing the ultimate injury.

It was apparent that both juries accepted the defendant's position that the plaintiff's disability was caused by a nerve injury and not compartment syndrome.

Although plaintiff's counsel did not persuade the jury that the defendant committed malpractice, he had better luck with the trial judge, who granted a motion for a new trial because he did not believe the jury got it right.

After the return of the second jury verdict, the motion for a new trial was denied. The issue on appeal was the propriety of delivering model jury charges without adapting them to the facts and circumstances of the case and failing to incorporate all of the applicable principles of law. The Appellate Division took note of the fact that the plaintiff had two bites at the apple; that the case was a classic battle of the experts; and that imperfect instructions were not sufficient reason to require a third trial.

When a plaintiff alleges that a physician's malpractice allowed a preexisting condition to worsen, the plaintiff must prove that the negligent treatment increased the risk of harm posed by the pre-existing condition and that the increased risk was a substantial factor in causing the ultimate harm. Scafidi v. Seiler, 119 N.J. 93 (1990.)

The plaintiff's primary appellate argument was a call for the elimination of the substantial factor requirement and the imposition of the burden on the defendant to prove that his failure to perform the appropriate test was not a substantial factor in the ultimate result.

The Court refused to eliminate the substantial factor requirement on plaintiffs in increased-risk cases, but it did modify the charge. The standard instruction on proximate cause used by the trial court in this case describes it as "a cause which necessarily set the other causes in motion and was a substantial factor in bringing the accident about" ... and further as a "cause which naturally and probably led to and might have been expected to produce the accident complained of."

The Court criticized this language because it is only appropriate in cases where there is a single cause of the harm. In an increased-risk case, the jury needs to hear the law on concurrent causation. The new approved charge requires the trial judge to state that a defendant's deviation need not be the only cause, nor a primary cause, for the deviation to be a substantial factor in producing the ultimate result. The defendant's negligent conduct cannot be a remote or an inconsequential contributing factor. It must play a role that is both relevant and significant in bringing about the ultimate injury. Some other event that is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the actor's negligence insignificant and therefore, to prevent it from being a substantial factor.
The Court criticized the trial court's failure to tailor the charge to the facts and contentions of the case. The majority of justices faulted the trial court for failing to recognize the significance of the fact that the plaintiff alleged that the defendant had failed to perform a diagnostic test, requiring it to incorporate the principles of Gardner v. Paulig, 150 N.J. 359 (1997), into the charge.

The trial judge should have told the jury that the plaintiff was not required to prove that the tests would have revealed the presence of compartment syndrome but only that the defendant's failure to perform the tests increased the risk that the plaintiff would suffer nerve injury resulting in the paralysis of his left foot.

Defense malpractice lawyers complain bitterly about this decision. After two trials on the merits with identical defense verdicts, they bristle at the suggestion that the juries did not understand the issues.

This year's opinions highlight the Supreme Court's determination to order new trials if the trial judge and the parties fail to go through the process of constructing an appropriate charge that reflects a conscious effort to accurately set forth the law and that adapts to the facts of the case being tried. The plain error rule has gone by the wayside. Lawyers beware: It is fatal error to assume that an erroneous charge will get by if your adversary fails to object to it. Trial lawyers should make every effort to use charge conferences as an opportunity to ensure that jury instructions meet applicable requirements.

The real problem with jury instructions in complicated cases is that juries do not understand them. The concepts are difficult for lawyers and judges to grasp, and it is impossible for juries to comprehend the law if the language used is drawn from the red book.

Although the language suggested in these opinions is truer to the law than the old model jury charges, it is not any clearer. The real masters at explaining the law to lay people today are prosecutors. These presenters must explain the law to live audiences repeatedly in an interactive process where the decision makers can ask questions and get answers. Able prosecutors have learned how to distill the legal principles into understandable terms with analogies and story telling. The feedback from the grand jurors helps the prosecutor make a presentation that gets across to the audience.

No model jury charge should be approved until it has been presented to focus groups of everyday people who can react to the language and give feed back to the authors on whether the ideas are getting across. How many jurors really understand difficult concepts such as increased risk after listening to the model jury charge? There is only one way to find out.

Trial judges should not hesitate to wander from the text to give examples and story lines to illustrate concepts, and jurors should be permitted to question the judge during the process. The red book is only a guide to the preparation of an appropriate charge; It is not a crutch.

Affidavit of Merit
A plaintiff who is pursuing a breach of contract action against a physician does not have to obtain an affidavit of merit.

In Couri v. Gardner, Docket No. A- 40-01, 2002 N.J. LEXIS 1088, the plaintiff hired a psychiatrist to assist him in a custody proceeding. The physician distributed his report to all of the parties and counsel without the plaintiff's permission. This wreaked havoc on the plaintiff's position in the Family Court and a breach of contract action ensued.

The trial court and a majority of the Appellate Division agreed with the defendant's argument that the case should be dismissed because the plaintiff did not submit an affidavit of merit.

The Supreme Court held that the case did not require an affidavit of merit because the allegations concerned a breach of an implied agreement not to release a report without consent and did not involve the defendant's deviation from a professional standard of care.

Corporate Officer Liability

Trial lawyers once believed that corporations made tempting targets for juries in personal injury cases because they were impersonal entities with deep pockets. But years of corporate public relations depicting the tort system as a lottery for greedy plaintiffs and their lawyers have hit the target.

Sophisticated observers recognize that perceptions have changed and that juries will frequently identify with corporate defendants and scrutinize every aspect of a plaintiff's claim before awarding damages. Personal responsibility has become a mantra wielded as a sword by defense lawyers. Sensing this change in the prevailing winds, plaintiffs' lawyers have focused their attention on identifying individual corporate decision makers who can play the role of Ken Lay in morality plays of corporate misconduct that a jury can sink its teeth into. Defense lawyers have countered by producing corporate witnesses with a wholesome, down-to-earth appearance that will portray the corporate client in the best possible light. In the era of Enron and WorldCom, identifying a culpable villain may be the key to defeating a corporate defendant at trial.

What has not been settled in New Jersey is whether or not there is a legal basis for holding corporate officers individually responsible for torts committed by their corporate employers.

The participation theory provides that a corporate officer can be held personally liable for a corporate tort when the corporation owed a duty of care to the victim; the duty was delegated to the officer; the officer was sufficiently involved in the commission of the tort; and the officer breached the duty of care. See William M. Fletcher, Encyclopedia of the Law of Private Corporations, Sec. 1137.

Our courts have applied this doctrine in intentional torts and for violation of certain statutes. See, for example, Charles Bloom & Co. v. Echo Jewelers, 279 Super 372, 382 (App. Div. 1995) (Conversion), and Klugler v. Koscot Interplanetary, Inc., 120 N.J. Super 216 (Ch. 1972)(Consumer Fraud). An open issue is whether or not the theoretical net is strong enough to snare company employees who are simply negligent.

The Supreme Court undertook a comprehensive review of the participation theory in Saltiel v. GSI Consultants, Inc., 170 N.J. 297 (2002), and specifically noted that New Jersey precedent would support the application of the theory in cases involving negligent conduct that caused physical injuries to a plaintiff.

In Saltiel, there was a dispute between two corporations involved in designing and building a college soccer field that developed drainage problems. The contractor that built the field alleged that the specifications created by the subcontractor were the culprit. It appears that the subcontractor did not have insurance and did not have a performance bond.

The action, pleaded in tort and contract, sought damages for the costs of the remedial repairs and was brought solely against the corporate officers for the subcontractor who did the design work. The trial court granted summary judgment for the two individual defendants because it believed that their status as corporate officers protected them from liability. The Appellate Division reversed, holding that the officers' participation in the creation of the specifications was a basis for holding them responsible under the participation theory. The Supreme Court granted the officers' petition for certification.

The corporate plaintiff won the battle but lost the war. The Court rejected the notion that the participation theory was limited to intentional misconduct and broadened the reach of the doctrine to negligence. However, the Court held that the substance of the claim was a contract action that did not support personal responsibility for the corporate officers.

This decision is a timely watershed, flinging the courthouse doors wide open to personal injury actions against corporate officers and employees who negligently participate in activities that cause injuries. Including corporate officers as defendants in personal injury cases will be used as a tactic more frequently in the post-Enron era so that juries can gear their deliberations to the real decision makers and judge the individuals responsible for the wrongdoing.

The graphic image depicted in news reports and etched in the public mind - of high-level executives lined up for public examination by Congress in its hearings on corporate corruption - is a scene that plaintiffs' lawyers will want to duplicate in courtrooms in the future. It is the perfect anecdote for plaintiffs to the skepticism fostered by the tort reform battles of the 1990s. This decision will be the foundation upon which these claims will be based in New Jersey, and defense lawyers will counterattack hard to protect their corporate employees as this strategy begins to unfold.

Insurance
The parties in an assault case walk a tightrope in pleadings and discovery because it is in their mutual interest to keep the homeowner's carrier in place to defend and indemnify the defendants. All homeowners' policies contain exclusions for intentional conduct and the carriers aggressively pursue declaratory judgment actions to extricate themselves from cases they don't belong in.

Our courts have held that there is coverage for "unintended results of intentional acts." SL Industries, Inc. v. American Motorists Insurance Co., 128 N.J. 188 (1992). The classic example is the teenage rumble in Prudential Property & Casualty Insurance Co. v. Karlinski, 251 N.J. Super 457 (App.Div.1991), where a carrier sought a declaratory judgment to escape defending and indemnifying its insured in a civil suit due to the exclusion in its policy for "bodily injury which is expected or intended by the insured." After surveying the discovery material the trial court found that the insured had engaged in intentional conduct in the brawl and granted the carrier relief.

The Appellate Division reversed, finding that coverage would exist "where the intentional act does not have an inherent probability of causing the degree of injury actually inflicted, a factual inquiry into actual intent of the actor to cause the injury is necessary." The appellate judges felt there was a fact dispute as to whether the injury was expected or intended because "teenagers are prone to engage in mutually accepted tests of dominance and prowess involving physical contact ... king of the hill assaults ... in which, physicality notwithstanding, there is no intent to cause more than passing discomfort."

Harleysville Ins. Companies v. Garitta, 170 N.J. 223 (2001), was a wrongful death case brought by the estate of a decedent who had been stabbed by another individual in an unsavory family dispute. The perpetrator used a kitchen knife to stab the victim twice in the chest. The victim had apparently instigated the fight, but it quickly escalated into a deadly encounter. The young perpetrator was apparently frightened of the older, stronger combatant and testified that he did not really mean to kill the unarmed man.

The killer pleaded guilty to a third-degree homicide. The civil suit was filed against the wielder of the knife, the "samaritan" who supplied the weapon and the killer's father (in whose house the killing occurred), and the pleadings artfully described the defendants' actions as reckless, negligent and careless.

The homeowner's policy did not provide coverage for "bodily injury which is expected or intended by the insured." In the declaratory judgment action filed by the carrier, it laid out in simple terms that it should not have to defend or indemnify a party who plunged a knife into someone else's chest and killed him.

The record consisted of discovery and the transcripts from the criminal trial of the samaritan who was also convicted of a crime. Blessed with clear vision, the trial judge granted the carrier summary judgment, delivering the following homily: "When you stab someone, you intend to harm them, and when you stab them twice, you intend to kill them." Open and shut? Wrong.

The Appellate Division reversed. According to the appellate judges, "a trial was required to determine what took place on the evening in question, how the wounds were inflicted, and what the defendant's intentions and expectations were in using the knife given to him." I kid you not.

The Supreme Court granted certification and reversed. There were a few simple rules the court laid out to explain how the problem should be analyzed. One: Carriers may use and benefit from this type of exclusion. Two: Summary judgment is not usually appropriate in a case where an insured's intentions are at issue unless "the record undisputedly demonstrates that such injury was an inherently probably consequence of the insured's conduct." Three: When the insured's conduct is particularly reprehensible, courts may presume the intent to injure without inquiring into the actor's actual state of mind.

In this case, the majority of justices agreed with the trial judge that a man who thrusts a knife two times into another man's chest, and kills him, is engaged in a deadly encounter, which is an intentional act. The court concluded by noting that its decision was guided by legal precedent and by simple common sense.

The Court did not lose perspective on the boundaries of its decision. The mere involvement of a knife does not compel a conclusion that the conduct was intentional. If the parties had wrestled for the knife and the wound was inadvertent, that might be a different situation. The jurists noted that the murderer's father, who was alleged to have failed to supervise the premises, was entitled to a defense and coverage. This case places rational limits on the requirement of providing coverage to unintended results of intentional acts

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