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Justices Retool Common Law Doctrines

written by Ronald Grayzel

09-04-2006

The 2005-2006 Supreme Court term did not feature any blockbuster decisions in tort law. There were cases where the justices retooled common law doctrines like res ipsa and respondeat superior. The Supreme Court wrestled with the admissibility of character evidence, opinion evidence and reputation evidence in civil cases. As always, there were decisions that evaluated the limits of statutory and contractual immunity in negligence law.

There will be a change in the leadership of the Supreme Court when the Chief Justice retires, and her absence is not likely to impact legal standards. The Chief Justice has not played an active role in the evolution of the common law of negligence. Trial lawyers will be watching to see if there is any change in the strict enforcement of best practices deadlines and penalties. Court watchers will be interested in seeing whether new additions to the bench will have any impact on the liberal tradition of the New Jersey Supreme Court in tort law.

Res Ipsa

Res ipsa, "the thing speaks for itself," is an English common law doctrine that allows an injured plaintiff to prove a prima facie case by circumstantial evidence. The requirements for its application are:

1) The event must be of a kind which ordinarily does not occur in the absence of someone's negligence;

2) It must be caused by an agency or instrumentality within the exclusive control of the defendant; and

3) It must not have been due to any voluntary action on the part of the plaintiff.

The doctrine provides only a "permissive presumption" that it is more probable than not that the defendant was negligent. The plaintiff does not have to exclude all other possible explanations for the incident. The burden of proof does not shift. The defendant is given the opportunity to offer a contrary explanation about the causative circumstances of the accident or say nothing at all. The burden of coming forward moves to the defendant because he has superior knowledge of the instrumentality that caused the accident. The plaintiff does not have to bolster its proofs with experts but he may be compelled to offer expert opinion testimony only if the subject matter is beyond the common knowledge of the fact finder. The plaintiff is not required to pursue exhaustive discovery before resorting to this method of proof. Menth v. Breeze Corp., 4 N.J. 428, 437 (1950). Once res ipsa is established, the case goes to a jury unless defendant's evidence is so strong that the fact question can be decided as a matter of law. These principles have been recognized in New Jersey for a century. Mumma v. Easton and Amboy R.R. Co., 73 N.J.L. 653, 658 (E.&A. 1905).

The genesis of res ipsa was Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863). Plaintiff was injured while walking by a warehouse when he was struck by a barrel lowered from a window. The court held that the plaintiff's testimony about the accident constituted prima facie evidence of negligence and imposed on the warehouse owner the burden of coming forward to produce "any facts inconsistent with negligence." To its judicial architects, res ipsa was simply a method of deductive reasoning allowing a jury to find an inference of fault from an unusual accident that had the hallmarks of culpability. The flexibility of the doctrine has allowed it to be adapted to a wide variety of modern fact patterns and it has stood the test of time.

Res ipsa was not designed to guarantee a plaintiff's victory. Personal injury lawyers are acutely aware that circumstantial evidence may be weak ground to stand on with jurors who demand an explanation from the party with the burden of proof. Skilled defense lawyers can weave exculpatory explanations from the defendant's intimate knowledge of the situation. Confidence in jurors' ability to listen carefully to both sides and make the right decision has led jurists to refrain from granting summary judgment motions or dismissing res ipsa cases at the close of evidence. Bevilacqua v.Sutter, 26 N.J. Super. 394 (App. Div. 1953).

The traditional fabric of res ipsa was nearly torn asunder by the Supreme Court this past term in Szalontai v. Yazbo's Sports Café, 183 N.J. 386 (2005). The plaintiff was injured in a commercial parking lot when it opened up beneath him. There was no dispute that the business owner controlled the premises or that the plaintiff did not contribute to the accident. On first blush, this is a classic example of the barrel falling out of the window calling for the application of res ipsa. Instead, the trial court refused to conclude that this was the kind of accident that bespoke negligence in the absence of expert testimony pinpointing defendant's liability and dismissed the case at the close of plaintiff's case. Another reason for the trial Court's decision was the plaintiff's failure to comply with Best Practices and take depositions and provide timely expert reports to establish liability. The Court's myopic vision was directed toward the plaintiff's attempt to use a late expert report produced after the arbitration. It appeared that the Szalontai court perceived res ipsa to be a privilege that plaintiff's counsel had failed to earn. A jury case was eviscerated in part to flog the plaintiff's lawyer for failing to meet the timetable of the Rules. This deviation from precedent was enough to cause William Prosser to turn over in his grave.

A deeper concern was the potential harm inflicted on a venerable common law doctrine by engrafting on to it a requirement that expert testimony is required simply because the collapse of a parking lot is construed to be a complex event requiring an explanation by an engineer. A discovery litmus test was never a prerequisite to deploying the doctrine. The trial judge in Szalontai granted the involuntary dismissal without taking testimony from one defense witness. The trial judge never gave the doctrine a chance. This aggressive gate-keeping was not in keeping with judicial tradition.

Quick and effective corrective action came recently in a unanimous decision authored by Justice Barry Albin in Jerista v. Murray, 185 N.J. 175 (2005). Plaintiff was injured entering a supermarket when an automatic door closed on her. The victim's lawyer allowed the statute of limitations to lapse without doing an investigation or learning about the cause of the problem. Ten years elapsed and the original doors and the defendant's witnesses disappeared. In the subsequent legal malpractice action, the defendant/lawyer obtained a dismissal based on the plaintiff's failure to prove the "case within a case" by establishing the supermarket's negligence. Plaintiff's attempt to invoke res ipsa failed because the trial judge ruled that the plaintiff required an expert to pinpoint the cause of the door's malfunction. The decision was upheld on appeal, 367 N.J. Super. 292 (App. Div. 2004). The Appellate Division added that expert testimony was required to rule out other possible causes of the accident. Szalontai and Jerista posed a risk of emasculating res ipsa.

In Jerista, the Court reversed and held that res ipsa applied because "an automatic door . . . does not close on an innocent patron causing injury unless the premises' owner negligently maintained it." "A jury does not need an expert to tell it what it already knows." The Justices debunked the idea that expert testimony is required to before the doctrine can be applied in any case involving a so-called "complex instrumentality." The crux of the issue is whether it is a matter of common knowledge that the mishap would not have occurred in the absence of fault. The Supreme Court refused to require a plaintiff to take prescribed discovery as a prerequisite to allowing the inference of negligence. This was a case for the jury to resolve. The decision is accompanied by an exhaustive history of the common law and was not influenced by the fact that it was a legal malpractice case.

In Jerista, the Justices would not countenance issuance of summary judgment before the plaintiff presented her case and defendant was given the opportunity to give a contrary explanation. Res ipsa was created for just this situation. The formula is simple and straightforward: when an accident bespeaks negligence, the instrumentality was under the control of the defendant, and the plaintiff is blameless, there is an inference of negligence that creates an issue of fact for a jury to resolve. That Szalontai was an aberration is reflected in the fact that it was not cited in the Jerista opinion.

Best practices demands allegiance to form over substance. Its only fidelity is to fixed deadlines. Szalontai lost sight of the utility of common law principles to resolve cases. Jerista is a traditional opinion that celebrates the history of the common law and leaves decision making to the jury. Jerista is a landmark in our common law. Szalontai has been relegated to the dust bin of history where it belongs.

Vicarious Responsibility

Outsourcing and subcontracting have become standard practice in industry. Some of the cost savings are realized at the expense of public safety. A common example of the problem occurs in the trucking industry. Companies hire trucking subcontractors at bargain-basement prices that are realized by providing unsafe, substandard equipment operated by untrained, unscrupulous operators. These outfits are uninsured or underinsured and the entities that hired them are insulated from liability by an outmoded application of a common law doctrine that provides immunity for the negligent acts of independent contractors.

Plaintiffs have attacked the problem by attempting to persuade courts to hold the companies who hire these fly-by-night contractors vicariously liable for their negligent acts. The efforts have been largely unsuccessful, as the courts usually sing the same refrain:

Principals are not liable for the actions of independent contractors unless the principal retains control of the manner and means of doing the work; hires an incompetent contractor or where the activity constitutes a nuisance per se. Majestic Realty Assoc. Inc. Toti Contracting Co., 30 N.J. 425, 431 (1959); Cuff Adm'x v. Newark & New York R.R. Co., 35 N.J.L. 17 aff'd 35 N.J.L. 574 (E.&A. 1871).

The conceptual barrier to vicarious liability is high and the case law has remained rigidly resistant to change. Appellate cases that specifically find these exceptions to exist are few and far between. The law has become a blanket prescription for immunity. The beauty of the common law is its ability to adapt to the changing realities of an evolving society. Our courts are now beginning to grapple with this problem.

Common law sclerosis was on display in Mavrikidis v. Petullo, 153 N.J. 117 (1998). An overloaded, uninsured asphalt truck operated by an unlicensed driver employed by a paving company went through a red light and caused serious injuries to another motorist. The truck owner was a subcontractor hired by an owner of a construction project to pave. The work was performed by the contractor to pay off a business debt.

Included in the injured plaintiff's lawsuit were the entities that controlled the project and hired the contractor. The plaintiff persuaded the jury that the defendants had hired an incompetent contractor and was liable in part for the accident. The record was replete with facts demonstrating that the entities that did the hiring were aware of the flaws in the quality of the contractor's operation, the poor condition of its vehicles and its financial irresponsibility.

The Appellate Division and the Supreme Court overturned the verdict on the grounds that the principals could not be held accountable for hiring an incompetent contractor because there was no specific evidence that the subcontractor was incapable of doing the paving job it was specifically hired to do. Under this constricted view of the evidence, the subcontractor's transport of asphalt was beyond the realm of the principal's responsibility for negligent hiring. The majority did not believe the companies that employed the subcontractor had a responsibility to check the bona fides of the contractor's employees or to have any responsibility for its equipment. Most importantly, the court held that financial responsibility is not a category of incompetence.

Three Justices dissented by arguing for a more flexible application of the common law exceptions to support the verdict. The dissent would be a portent of things to come.

Opportunity came knocking this term in Puckrein v. ATI Transport, Inc, 186 N.J. 563 (2006). The fact pattern was ideal for adapting common law principles to modern realities because it reflected the macro-economic factors that create the risk and tragically demonstrated the consequences. A plaintiff was killed and another seriously injured when a tractor trailer with defective brakes owned and operated by ATI came through a red light and struck the plaintiff's vehicle. The tractor trailer was unregistered and uninsured. The owner and driver of the vehicle were prosecuted criminally.

BFI had a contract with the City of New York to collect and haul garbage. The garbage was transported to a collection facility and then transported all over the United States and the world. BFI contracted with World Carting to do some of the waste hauling. Under the terms of the contract, World Carting warranted that it had all the necessary licenses and permits; that it would perform the work in compliance with all regulations; that it would maintain insurance; provide proof of insurance and that it would not subcontract the work without BFI's written approval. Trucks could not enter the BFI facility without clearance.

The record revealed that the hauling was actually performed by a company called ATI, a subcontractor to World Carting. The BFI supervisor thought that ATI and WC were the same companies. They had the same address and the same owner. No written permission was obtained from BFI for the substitution. The insurance on the trucks lapsed and no up-to-date certificate was provided.

Plaintiffs sued BFI as one of the defendants in the lawsuit, contending that it had hired an incompetent contractor. The defendants that operated and/or owned the truck defaulted, did not appear at trial and were judgment proof. BFI received summary judgment on the grounds that they were not the "employer" of ATI and that they could not be liable for the negligence of its independent contractor's subcontractor. The decision was affirmed by the Appellate Division. The Supreme Court granted plaintiff's petition for certification.

A unanimous Supreme Court reversed the summary judgment on the grounds that there was ample evidence of the independent contractor's "incompetence" to sustain a finding of vicarious responsibility against BFI. Justice Virginia Long's opinion breathed new life into moribund common law principles and blazed a new path toward vicarious liability by holding that "under our law, the hauler's basic competency included a valid driver's license, a valid registration certificate and a valid liability insurance identification card." The court elected to distinguish Mavrikidis, noting that the allegation went to the heart of the contractor's hauling responsibilities they were hired to perform. The Court provided this frame of analysis:

The core question is not whether World Carting was competent to transport BFI loads upon the public highway's — it was not. The question is whether BFI violated its duty to use reasonable care in selecting a trucker and whether it knew or should have known of World Carting's incompetence . . . [An] employer may be charged with negligence in hiring an independent contractor where it is demonstrated that he should have known or might by the exercise of reasonable care have ascertained, that the contractor was not competent . . . At a minimum, BFI was required to inquire whether its hauler had proper insurance and registration because without those items the hauler had no right to be on the road.

A critical change in the law is the duty to inquire. No longer can a company shield itself from liability by pleading ignorance. The Supreme Court found the defendant's attempt to distinguish between World Carting and ATI a non-starter.

The world has changed since the common law immunity for hiring independent contractors was first constructed. A typical scenario is no longer Mrs. Smith hiring the local plumber to fix the kitchen sink. The business model in the 21st century is to transfer labor costs, liability, risk and accountability to others to assure maximum returns. This approach creates risks to the general public that requires redress by common law principles. ATI and its errant truck was the product of a business plan that sought to avoid the responsibility of safety to create greater return on investment. In our economy, BFI has the freedom to implement such a plan. Our common law must adapt to protect and compensate the public when the business enterprise fails to exercise reasonable care to comply with the obligation to provide for safety of its operation. No one questions the concept that a trucking company should be legally responsible when its driver kills an innocent victim driving a truck with bad brakes that is unlicensed, unregistered, and uninsured. In today's world, there is no reason to immunize a company who wreaks the same havoc with a method of operation that empowers contractors to cause the same result. This case begins a process of re-examining and evaluating the legal responsibilities of companies that hire incompetent independent contractors that cause harm to the public.

Differential Diagnosis

Personal injury defense lawyers vigorously attack the basis of the plaintiff's expert medical opinion in the hopes of persuading a court to bar the testimony and dismiss the claim. The first line of attack is to establish that the expert failed to follow accepted scientific methodology. Defense lawyers focus considerable time and energy in discovery to demonstrate that the expert's bare conclusions are inadmissible "net opinions." It has become standard accepted practice for defense counsel to file motions for summary judgment and motions in limine to bar a plaintiff's expert's testimony. Many trial courts have been willing to make these decisions on a record consisting of expert reports and/or their deposition testimony.

This aggressive strategy succeeded in Creanga v. Jardal Jr., 185 N.J. 345 (2005), when defense counsel persuaded the trial court in a pretrial motion to preclude the testimony of plaintiff's medical expert on grounds that it was a "net opinion," leading to a dismissal of the Complaint. Plaintiff was 24-weeks pregnant with twins when she was rear-ended in a motor vehicle accident. Two days later, the plaintiff lost one of the twins to a miscarriage. The surviving twin was born completely healthy at a later date. Plaintiff claimed that she lost her baby due to the motor vehicle accident. Plaintiff's treating physician opined that the accident caused the miscarriage and death of the baby. Defendant vigorously contested the allegation.

The trial court record consisted of the plaintiff's deposition testimony and the de bene esse deposition of the plaintiff's treating physician. Plaintiff was 36 years old and healthy at the time of the accident. The pregnancy was normal. The plaintiff's treating physician examined her two days before the accident and her condition was normal. She was belted at the time of the accident and described the impact as forceful. She did not testify that she struck her abdomen on any part of the car. Plaintiff went to her job as a medical assistant after the accident and was examined by the physician. Two days later, plaintiff experienced contractions and went to the emergency room. Attempts to stop the delivery of the first baby were unsuccessful. The child died a short time later.

The plaintiff's physician reached his conclusion on causal relationship by engaging in a process of "differential diagnosis." This is described as a "medical construct for determining which one of two or more diseases or conditions a patient is suffering from, by systematically comparing and contrasting their symptoms." The first step is to create a list of possible causes for the event. The plaintiff's treating physician considered trauma, preeclampsia, high blood pressure, infection, incompetent cervix and prior abortions.

The next step in differential diagnosis is to eliminate causes that are not supported by the clinical history or data. The plaintiff's treating physician excluded an incompetent cervix and scarring from abortions as a causative factor because the patient would not have had contractions if she suffered from these conditions. He testified that he would not have been able to stop the delivery of the second baby if the mother had these problems. According to the physician, there was nothing in the patient's history that indicated problems with high blood pressure, preeclampsia, infections or other medical conditions.

The physician believed that trauma was a logical explanation for the miscarriage because of the temporal relationship between the accident and the premature labor against a backdrop of a normal pregnancy.

Defense counsel hit the expert hard in cross-examination and scored major points. The lawyer was able to lay out a plausible case for an incompetent cervix as a cause of the miscarriage. Plaintiff's mother had suffered from an incompetent cervix and had experienced eleven miscarriages. The witness had signed a hospital chart that listed an incompetent cervix as a cause of the miscarriage. There was nothing about the accident in the hospital chart or the doctor's office records. The expert also backed off an assertion that there was a blow to the patient's abdomen in the accident because there were no facts to support the contention. He conceded that his opinion might not be the same if there was no blow to the abdomen. The doctor was also not aware that plaintiff was wearing a seat belt.

The trial court concluded that the expert's testimony constituted a "net opinion" and dismissed plaintiff's claim. The Appellate Division believed that the expert's opinions were based on his "subjective beliefs" and affirmed the court below. The appellate court was particularly concerned that the doctor's belief that the patient had a blow to the abdomen in the accident was not supported by the facts. Plaintiff's petition for certification was granted.

A unanimous court in an opinion authored by Justice James Zazzali reversed the lower courts' decisions. The Supreme Court held that medical expert opinions based on differential diagnosis were admissible as long as the expert demonstrated "what he or she did and that the proper diagnostic procedures were followed." The expert must use "scientific methods and procedures" to justify the elimination of alternative causes. Courts have long recognized that differential diagnosis is a legitimate scientific method of establishing causal relationship in toxic tort cases. Lapka v. Porter Hayden Co., 162 N.J. 545, 557 (2000); Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (1984). Every personal injury lawyer understands that direct medical testimony is usually structured around the physician's intuitive process of inclusion and exclusion to reach a medical conclusion within a reasonable degree of medical probability. No surprise here.

The Justices did not believe that the expert's testimony was a "net opinion." The doctor laid out a detailed explanation for his opinions with reference to the patient's history, records and medical conditions. The treating physician had seen the patient shortly before and after the accident. He noted that trauma is a recognized cause of miscarriage and that the problem arose shortly after the accident in an otherwise healthy woman in the midst of a normal pregnancy. This passed muster under what Justice James Zazzali describes as the "why and wherefore" test. The opinion noted the inconsistencies in the expert's testimony, but concluded that this goes to the weight to be given by the fact finders and "not to its admissibility."

Red Card

The plaintiff in Gonzalez v. Safe and Sound Security Corp., 185 N.J. 100 (2005), was catastrophically injured in a shooting at an Atlantic City housing project. The plaintiff and another man had gone to visit a friend in one of the apartments. An argument between the plaintiff's companion and another man escalated into fisticuffs. Plaintiff was shot in the spine by the other man as he was trying to leave the premises.

Plaintiff sued the owner of the apartments, its management company and the security contractor, alleging that security was inadequate. The assailant failed to answer and a default was entered.

At trial, the evidence disclosed that the project was a hotbed of criminal activity, including shootings, robberies and assaults. Security was understaffed and the guard on duty did not intervene to stop the melee or call the police. There also did not appear to be any dispute that the plaintiff was an innocent bystander to the shooting.

Plaintiff was in court every day for his trial. He did not testify. Plaintiff's counsel advised his client not to testify because of credibility problems. Plaintiff had a conviction for a robbery he committed on the very same premises a month before the incident. It does not appear that the trial judge was going to allow the defense counsel to reveal the conviction on cross-examination. The defense wanted to pursue the allegation that the plaintiff had been armed. There were apparent inconsistencies in the plaintiff's account of the facts in depositions. One can only imagine what a terrible witness the paralyzed plaintiff was if his own lawyer wouldn't put him on to testify about damages.

When plaintiff did not take the stand during his case, defendants served a notice in lieu of subpoena on the plaintiff's counsel. A motion to quash the untimely notice was denied. A defense lawyer called plaintiff to testify during the defense case. Plaintiff refused. The trial judge ordered the plaintiff to testify. Plaintiff still refused. It does not appear that plaintiff's counsel made any attempt to push his client to comply with the court's order. The opinion suggests that the lawyer was orchestrating the strategy. Defendants immediately moved to dismiss plaintiff's complaint with prejudice. The trial judge refused to invoke the ultimate sanction but instead advised the parties that he would give an adverse inference charge.

Defendants had legitimate reasons to want the plaintiff to take the stand. Defense counsel believed that there was a possibility that they could establish that plaintiff was a trespasser or licensee. They also wanted to probe the plaintiff's testimony on the facts surrounding the fight and the timeline of what happened. A critical issue in the case was notice, i.e., did the events provide sufficient opportunity for the defendants to respond or did everything just break too fast?

The trial judge did find that plaintiff would offer useful testimony on how the fight started, his role in the fight, whether the guard was present and what the guard did or did not do. The trial court invoked the lesser sanction because the judge believed that the harm done to defendants' case was minimal and did not warrant a dismissal. The trial court believed that the facts were very well developed by other witnesses. The court allowed the defendants to read plaintiff's deposition in its entirety except for the material about his conviction. The trial judge advised the jury that "plaintiff had refused to testify and it could infer that plaintiff would have testified adversely against his interest on any issue or any fact in this case . . . "

Plaintiff won the case and there was a damages award for over $2.3 million. Seventy percent of the award was allocated to the owner and managing agent and thirty per cent to the shooter. Plaintiff was absolved of any negligence.

On appeal, the defendants assailed the trial court's failure to threaten or execute a dismissal after plaintiff refused to obey the order to testify. The Appellate Division believed that the trial court had properly exercised its discretion in entering the lesser sanction because plaintiff's testimony would not have "materially and legitimately assisted" the defense.

Seven Justices roundly rejected the opinions below, reversed the judgment, and instructed the trial court to order the plaintiff to testify, and if he refused, to dismiss the case with prejudice. An important rationale for the opinion was the defendants' constitutional right to defend the case by calling an important eye witness who had knowledge of relevant facts. "Defendants have a right to a plaintiff's testimony in presenting their defense." Plaintiff was a critical eyewitness on liability and in the best position of anyone to discuss the impact of his injuries.

Another reason to invoke the most serious penalty was the plaintiff's willful failure to obey the trial judge's order. Justice Barry Albin's opinion did not disguise the Court's displeasure with the strategic maneuvers of the plaintiff and lower court's tolerance of it:

Here, plaintiff and his attorney made a calculated decision that plaintiff's claim would be better received by the jury if he did not testify, even if he had to bear an adverse inference instruction. As plaintiff postured for partisan advantage, he engaged in brinksmanship with the court, challenging the court's authority to enforce its own order. A court should not surrender control to manipulative tactics that undermine the basic fairness and the integrity of the trial.

The world watched with dismay when a referee red-carded one of the world's greatest soccer players for a head butt as the World Cup final came to a close. Here, the Justices condemned the courts below for failing to invoke the ultimate penalty for plaintiff's defiance. Here, the Justices pulled the red card.

The Supreme Court also reaffirmed that a landlord has a duty to provide reasonable security for tenants and their guests in common areas.

Psychiatric Malpractice

In Marshall v. Klebanov, No. A-76-05 (N.J. July 26, 2006), decedent's husband filed a wrongful death/medical malpractice action against a psychiatrist. Plaintiff contended that the defendant had "abandoned" the care of his wife, causing her subsequent suicide.

The defendant contended that he was entitled to the immunity provided by N.J.S.A. 2A:62A-16:

[F]rom any civil liability for a patient's violent act against another person or against himself unless the practitioner has incurred a duty to warn and protect the potential victim as set forth in subsection b. of this section and fails to discharge that duty.

Subsection b provides that "a duty to warn or protect" arises when:

The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out the threat;

The circumstances are such that a reasonable professional in the practitioner's area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself.

The statute was adopted in the wake of the landmark California case of Trasoff v. Regents of the University of California, 551 P. 2d 334 (Cal 1976), and the New Jersey sequel, McIntosh v. Milano, 168 N.J. Super 466, 489 (Law. Div. 1979), establishing that when a psychiatrist learns that his patient may harm a third party, the psychiatrist must undertake reasonable steps to protect the innocent person.

The plaintiff's decedent in Marshall had a history of psychiatric illness and consulted the defendant for treatment. The patient reported a history of two suicide attempts years before and recurring suicidal thoughts. The patient reported that she was badly depressed. The defendant diagnosed the plaintiff with "major depression." The physician did not believe that the patient was in imminent danger because she did not have a plan to hurt herself. The psychiatrist altered the patient's medications and instructed her to come back one week later.

The plaintiff returned for the second visit but did not see the physician. Plaintiff stated that his wife was refused treatment because she was unable to pay. The physician's receptionist stated that she instructed the patient to wait and see the doctor but that the patient refused because she wanted to put her insurance in place before she saw the doctor again. The psychiatrist adamantly denied that he refused treatment because of the patient's inability to pay. Another appointment was scheduled for approximately three weeks later. No one in plaintiff's family believed that she was going to commit suicide. Plaintiff committed suicide two days before she was scheduled to see the doctor again. Plaintiff alleged that defendant "abandoned the patient and failed to provide her with adequate monitoring and treatment and failed to refer her elsewhere."

Defendant's motion for summary judgment under N.J.S.A. 2A:62A-16a was granted by the trial court because the judge believed that the literal terms of the statute applied to a case involving a psychiatrist whose patient died of suicide. The Court found that defendant did not have a duty to "warn or protect" because the decedent's family members "did not suspect that her suicide was imminent" and defendant "had not physically seen the patient since January 7th." The trial judge found as a matter of law that there was no "imminency."

The Appellate Division reversed because it concluded that the statute did not immunize a psychiatrist from a claim that a deviation from medical care caused a patient to commit suicide. The appellate judges did not believe the statute was designed to provide immunity in every case involving a psychiatric patient that resulted in suicide. Marshall v. Klebanov, 378 N.J. Super. 371 (App. Div. 2005). The appellate judges believed the purpose of the statute was to "codify the practitioner's duty to warn and protect without fear of violating ethical restraints by disclosing confidential information." A dissent concluded that a literal reading of the statute provided the defendant with immunity from any civil liability for a patient suicide unless he or she has incurred a duty to warn and protect. The defendant appealed as of right.

The Supreme Court held that the statute does not provide immunity for a mental health care professional who abandons a seriously depressed patient and fails to comply with accepted practice standards. The Court believed the statute was designed to clarify McIntosh and outline practices for mental health professionals to follow when a patient may pose a risk of violence to a third party without exposing themselves to liability for disclosing confidential information. According to the Court, the statute was not designed to immunize mental health professionals from deviations of conventional medical standards of care regarding failure to monitor, treat and/or prescribe medication.

The Supreme Court, did however, uphold the trial court's finding that liability under the statute to "warn or protect" did not arise in this case because there was no "imminency."

Judicial Misdiagnosis

The plaintiff's husband in Bender v. Adelson, No. A-37-05 (N.J. July 19, 2006), died after a heart procedure performed by interventional cardiologists. The widow's malpractice/wrongful death action against the physicians produced a jury award of $1.6 million.

Defendants' appeal complained about the trial court's refusal to allow defendants to use three liability experts whose reports were served one month after the final discovery end date. Plaintiff had experts in both interventional cardiology and hematology. Plaintiff did not serve her experts' reports until just before the end of the first discovery end date. One report was a year old and the other a year and a half old. No reasonable explanation was offered for the plaintiff's delay in serving them on the defense. Defendants designated themselves as experts and also produced a report from a cardiac surgeon before an additional discovery deadline provided by court order elapsed.

Defendants attempted to designate an additional two experts in interventional cardiology and one in pathology approximately one month after the discovery end date with a trial scheduled about two months later. The discovery end date had been extended twice and there had been two additional orders in place, compelling defendants to produce expert reports by a date certain with bar dates that were violated. Defendants were forced to trial without an expert in the field of interventional cardiology. In support of the motions to allow the late service of reports, defendants outlined the problems they encountered in locating experts in an esoteric field that were willing to help. The trial court did not find that this constituted "due diligence" or "exceptional circumstances." This argument was doomed to failure since the appellate courts are not inclined to re-evaluate its ideological commitment to Best Practices. The Appellate Division and the Supreme Court affirmed the trial court's decision to bar the experts.

The issue that drove the appeal was the summation by plaintiff's counsel arguing an adverse inference from the defendants' failure to produce independent experts in the fields of hematology and interventional cardiology coupled with attacks on the credentials of the defendants' cardiac surgeon. Defendants complained that the arguments were unfair and prejudicial because plaintiff's counsel had effectively prevented the use of these experts by court order and had stated to the court on the record at the motion that the additional experts were not required because the defendants' cardiac surgeon was qualified to offer all of the opinions the defendants needed to defend the claim.

Plaintiff's counsel countered that these comments were inspired by defense counsel's attack on plaintiff's experts in summation and the arguments that defendants were the best experts because they were treating surgeons present at the time of the procedure. Counsel also pointed out that the statement that defendants did not produce experts in these fields as witnesses was true, that their failure to do so was their own fault by failing to comply with court orders and he was entitled to attack the credibility of the defendants' expert to affect the weight to be accorded to the witness's testimony.

Defense counsel made an immediate application for a mistrial and the trial court reserved. One month after the verdict, the trial judge declared a mistrial because he found that the arguments were inaccurate, unfair and had the capacity to lead to a "miscarriage of justice." The Appellate Division reversed the trial court because "it was true that there were no independent hematologists or cardiologists supporting defendants' case at the time of trial" and that "defendants created this situation by their own delay." A dissent concluded that "the integrity of the judicial process was not preserved here" because the comments of plaintiff's counsel regarding the defendants' expert were an "about-face" and the arguments about the adverse inference inaccurate.

On defendants' appeal to the Supreme Court, the Justices ruled that plaintiff's comments about the failure to produce independent experts in cardiology were inaccurate and unfair because this was a consequence of a court order and not the inability to find one prepared to support the defense. The point of an adverse inference argument is to persuade a jury to believe that the experts were not produced by defendants because they could not find qualified professionals to support the defense position. According to the Justices, "plaintiff's counsel also knew that the jury was unaware of the procedural bar and thus the summation by counsel played on ignorance and implied an untruth." The plaintiff's lawyer went one step too far and it cost him. The Supreme Court did not believe the trial judge abused his discretion in declaring a mistrial. The Court did not find any misconduct in the arguments about the shortcomings in the defense expert's credentials or the failure to produce a hematologist.

The problem with the Court's decision is the failure to diagnose the real cause of the unfair trial. This was the inability of the defense to produce the expert testimony it required to defend the claim. A reasonable exercise of judicial discretion by the trial judge would have allowed the defense to use one of the interventional cardiologists designated beyond the deadline. The plaintiff caused an initial delay in discovery by holding on to its experts' reports until the very last moment. There were still two months left before trial when defendants served their last reports and there was ample time to depose a single cardiologist and have the plaintiff's experts respond. The playing field would have been level without significantly prejudicing the plaintiff. In fairness to the trial judge, he has superiors armed with calendars looking over his shoulder. Even after this case goes to trial again, defendants are left with the same problem, i.e., if they don't have an independent expert in the field of interventional cardiology to defend the claim. Condemning the summation is treating the symptom, not the disease.

Rigid deadlines create an incentive for tactical maneuvers that can adversely impact a fair trial. Plaintiff may have won his case when the motion judge barred the defendants' expert reports. There was too much at stake here to allow this to happen.

The plaintiff's isolated comment about defendants' failure to produce an independent expert in cardiology was not capable of causing a "miscarriage of justice." The jury was already aware of this after sitting through the trial and listening to the defense expert's concessions about not presently being actively engaged in surgical practice and never having performed the procedure that defendants performed. The summation is the final exchange of punches in the fifteenth round. The defense lawyer took hard shots at the plaintiff's experts and made his own inappropriate comments to boost the credibility of defendants by inappropriately calling them "life givers" and not "life takers." The microscopic focus on a few inappropriate comments by plaintiff's counsel in summation was hardly the kind of inflammatory moment that would lead a jury astray. After a long, hard battle, the temperature in the courtroom is bound to be high and the usual instructions always point out that comments by counsel are not evidence. Most juries make up their minds before summation. A few tepid comments in summation are hardly a reason to overturn a verdict.

Defendants got their chance at a new trial. Anything can happen. The problem remains the same. Plaintiff has an enormous tactical advantage due to the order barring defendants from using an interventional cardiologist to support its defense. Even if plaintiff's counsel gives a dull, uninspired summation, he will still have the upper hand. This is the true legacy of Best Practices.

Charitable Immunity

Is a township school board entitled to charitable immunity, under N.J.S.A. 2A:53A-7 (CIA)? "No," said Justice Long on behalf of seven justices in Tonelli v. Wyckoff, 185 N.J. 438 (2005).

Plaintiff was injured in a fall at defendant's school attending her granddaughter's travel soccer game. The local club was allowed to play there by school officials. Grandma filed a notice of claim and then a lawsuit against the school board. The public entity pleaded charitable immunity as an affirmative defense because it was organized exclusively for educational purposes. The legal position apparently gained traction as a consequence of O'Connell v. State, 171 N.J. 484 (2002), holding that Montclair State University could invoke the protection of the CIA. Defendant school board moved for summary judgement and plaintiff cross-moved to dismiss the defense. The trial court granted the motion and plaintiff appealed. The Appellate Division reversed because it did not believe the Legislature intended the CIA to apply to public entities.

The Supreme Court granted the school board's petition for certification. The school board argued that the plain language of the CIA applied to any entity organized exclusively for "educational purposes." The plaintiff countered that a tax supported governmental entity was not entitled to charitable immunity.

A unanimous Supreme Court upheld the Appellate Division decision. Justice Wallace's exhaustive inquiry into the CIA's legislative history and the appellate cases revealed that the law was passed to protect private charities that depend on charitable contributions whose funds are held in trust solely for the purpose of the organization. The CIA was not meant to apply to a tax-supported governmental entity required by law to provide services. The Justice also noted decades of jurisprudence that held school boards accountable for negligence under Title 59. O'Connell was distinguished because the college was not operated by the government and was funded largely by tuition and charitable donations.

Waiver

A parent cannot sign away her child's future right to file a personal injury claim against a recreational facility in a standard waiver form. Hojnowski v. Vans Skate Park, No. A-17/45-05 (N.J. July 17, 2006). When mom took her 12-year-old son to a skateboard park for the first time, she was required to execute a "Release and Waiver of Liability and Jury Trial" that precluded any claim for personal injuries unless the owner "intentionally failed to prevent or correct a hazard caused by unsafe equipment or devices." The same form mandated that all claims be submitted to binding arbitration by AAA.

After the boy was injured on defendant's premises, mom filed a lawsuit against the skate park in Superior Court. Plaintiff immediately moved to enjoin arbitration and to invalidate the liability release. The trial court held that plaintiff was bound by the arbitration clause and dismissed the complaint. The trial judge refused to deal with the validity of the liability waiver, concluding that the issue should be resolved by the arbitrator.

The Appellate Division unanimously upheld the decision to compel arbitration, but two judges voted to vitiate the liability release while one judge dissented. 375 N.J. Super 568 (App. Div. 2005). Defendant appealed the adverse decision on the liability release and plaintiff's petition for certification was granted to determine if it was saddled with arbitration.

The Supreme Court approved the arbitration clause, but would not enforce the liability release. Five justices believed that "the public policy of New Jersey prohibits a parent of a minor child from releasing a minor child's potential tort claims arising out of the use of a commercial recreational facility."

The Court affirmed the courts below on the arbitration clause because of the strong public policy favoring the settlement of disputes through arbitration. According to the opinion, "a pre-injury agreement to arbitrate does not require a minor to forego any substantive rights, . . . only the forum in which those rights are vindicated." There has been a long-term trend in our state's jurisprudence sanctioning the widespread practice of compelling arbitration of negligence claims and cutting off access to the courts. It is particularly disheartening that the court would allow this to happen in a case involving a minor where the civil justice system has long recognized its obligation to safeguard their rights by approving settlements. However, there is a ray of hope. Both appellate courts specifically emphasized that the issue of the enforceability of the arbitration clause against the adult was not being considered as it was not raised by the parties. The Court should not allow businesses to extinguish a citizen's right to a jury trial simply because a form is signed by a customer.

Group Settlement

Effectuating group settlements by multiple plaintiffs against common defendants is extremely difficult to accomplish without a class action. The plaintiffs may not see eye to eye on the resolution of a case. Defendants may not settle if they cannot buy a complete peace agreement. Parties have used various methods to forge group settlements. Courts interested in clearing crowded dockets have often created imaginative solutions. Courts and parties have always been mindful of the boundary lines drawn by RPC 1.8 (g) that provides that a

lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of the clients, unless each client gives informed consent after a consultation that shall include disclosure of the existence and nature of all the claims involved and of the participation of each person in the settlement.

One method used by plaintiffs' counsel is to create an organization that is empowered to negotiate and reach a settlement by a majority vote. The plaintiffs' counsel in The Tax Authority, Inc v. Jackson Hewitt, Inc., 187 N.J. 4 (2006), devised this arrangement with a group of 154 franchisees in a lawsuit against a franchisor for breach of contract. The franchise agreement prohibited class actions. The franchisees' retainer agreement with their lawyer specifically provided that a group settlement could be reached if a weighted majority of the group approved it. The organized effort also provided that each franchisee would share the legal costs. A formula was provided that governed the distribution of any settlement proceeds. A four-person steering committee was formed to make decisions regarding strategic and procedural matters. Each litigant was provided with an opportunity to consult with counsel before executing the agreement.

Mediation produced a tentative settlement agreement between the plaintiffs' steering committee and the defendant. Proceedings were reported on a password-protected Web site maintained by plaintiffs' counsel. A spreadsheet contained calculations of each plaintiff's share of the settlement proceeds. One hundred twenty eight members voted to approve the settlement. A final settlement agreement was provided to each plaintiff. Plaintiffs' lawyer announced that he would move to be relieved of counsel for any franchisee that declined to execute the settlement agreement on grounds of a conflict of interest.

Things started to get dicey when one of the steering committee members resigned and opposed the settlement. Counsel for the plaintiff moved to be relieved from representation of the dissenting plaintiffs and the defendant cross-moved to enforce the settlement. Eighteen plaintiffs opposed the settlement, alleging that the Retainer Agreement violated RPC 1.8(g) by obtaining advance agreement to abide by any settlement approved by a majority.

The trial court granted the defendant's motion to enforce the settlement, finding that it did not violate the rules of ethics. Counsel was also relieved of representing the dissenters.

Only one aggrieved party appealed. The Appellate Division reversed the trial court, holding that a retainer with a majority-rules provision on settlement violated R.P.C. 1.8(g) The franchisor's petition for certification was granted.

In a unanimous decision, the Supreme Court agreed with the Appellate Division. Justice John Wallace Jr. wrote that R.P.C. 1.8 prohibits retainer agreements that bind a party to the terms of a settlement before it is finalized. To pass muster, any such agreement must afford each party a chance to accept or reject the settlement after it is negotiated. The Court applied the decision prospectively and referred the matter to the Commission on Ethics Reform for review and analysis.

The Court judicially noticed that respected commentators have called for a rule change to allow retainer agreements like this to be honored. This case is an example of a situation where it should be permitted. The plaintiffs were sophisticated businessmen. They understood the terms of the agreement and could freely participate with the group or hire their own lawyer. The organized effort provided an efficiency of scale that allowed for a successful resolution of the case.

Class actions require a fairness hearing before a settlement is reached. Requiring court approval of group settlements would provide a mechanism to protect the rights of litigants.

Foul Ball

The plaintiff in Maisonave v. Newark Bears Professional Baseball Club, Inc, 185 N.J. 70 (2005), walked onto the concourse at defendant's minor league ballpark to buy a hot dog from a mobile vendor. While on the concourse, plaintiff was struck in the face and seriously injured by a foul ball. The lawsuit against the ball club was dismissed on summary judgment by the trial court under the limited duty rule that has only two requirements for owners of ballparks:

Provision of protected seating sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion;

Protection for spectators in the most dangerous section of the stands.

The second requirement is satisfied by providing screened seats behind home plate in baseball and behind the goals in hockey. Schneider v. American Hockey & Ice Skating Center, Inc., 342 N.J. Super 527 (App. Div. 2001).

The record disclosed that there were two vending carts in the protected area around home plate that plaintiff could have used. The philosophy behind this special rule was established by a legion of old common law cases that expressed the belief that getting hit by foul balls is part of the game and it's a risk you assume when you go to the ballpark. E.g., Quinn v. Recreation Park Ass'n, 46 P. 2d 144 (Cal. 1935).

The Appellate Division reversed, concluding that a stadium owner may have a duty to protect other areas of the ballpark beside behind home plate. The judges believed that a concession area may be different than the stands since spectators are not on guard for errant balls in these locations. 371 N.J. Super 129 (2004).

The Supreme Court granted the ball club's petition for certification. It upheld the appellate decision modifying the limited duty rule by excluding multi-purpose areas such as concourses and playground areas from its reach. A majority of justices believed that "areas outside of the stands, including concourses and mezzanines," would be subject to the business invitee rule. The limited duty rule was relegated to the stands.

Baseball has become big business in New Jersey. Many minor league baseball teams have constructed stadiums in the state. Before the ink was dry on the decision, the industry flexed its political muscles and obtained the passage of the Baseball Spectator Safety Act, N.J.S.A. 2A:53A-43, by the New Jersey Legislature. The law provides "that the assumption of risk shall be a complete bar to suit and serve as a complete defense to a suit against an owner by a spectator" and that no claims may be brought for injuries sustained "from any of the inherent risks of attending a professional baseball game." The ballparks only have to provide nets behind home plate and warning signs. The Legislature was the umpire of last resort.

Character Flaw

Courts are loath to admit "character evidence," R. Evid. 404, in civil trials because it creates the risk that a jury will simply judge the person and not the facts. A wrongful death cases is a bird of a different feather. It is standard accepted practice for plaintiffs to present evidence of a decedent's wholesome character traits, including devotion to family, church and community, to bolster the proposition that the family suffered "pecuniary loss" including a loss of guidance, instruction and training. Speiser, Recovery for Wrongful Death, 4th Sec. 6.25. Defendants turn the tables on the plaintiff where there is evidence of decedent's bad character, like a criminal conviction. Wimberly v. Paterson, 75 N.J. Super 584 (App. Div. 1962)

In Johnson v. Dobrosky, No. A-41-05 (N.J. July 25, 2006), plaintiff filed a wrongful death/medical malpractice action on behalf of the estate of a woman who left behind a surviving husband and children. Plaintiff sought money damages for the estate only for the loss of guidance, instruction and training, Green v. Bittner, 85 N.J.1 (1980), and not future lost income. Defendant elicited evidence that just prior to her death, decedent was convicted of welfare fraud. A jury returned a "no cause" for action on liability. Plaintiff appealed, contending that the verdict was a consequence of irrelevant, prejudicial evidence that tainted the liability verdict.

On appeal, plaintiff had two enormous obstacles to overcome. The first impediment to success was the long-standing practice of admitting character evidence in death cases. A second significant problem was that the jury had found for the defendants on liability and had never reached the issue of damages. Plaintiff would also have to persuade the appellate judges that the prejudice from the evidence was so great that it tainted the liability verdict.

The trial judge struggled with the admissibility of the criminal conviction. This is the kind of evidence that can shut the door on any juror's ability to give fair consideration to a legal claim for damages. On the other hand, it certainly may be reasonable for a jury to hear that the guidance, instruction and training had been recently interrupted by a jail sentence. After initially barring the evidence at plaintiff's request, the trial judge reversed himself when he realized the model jury charge recognized the decedent's character as a relevant issue for the jury to consider on pecuniary loss. Plaintiff did not testify. The impact of the evidence was heightened when defense counsel elicited it from the plaintiff during the defense case. It was accompanied by admissions that the decedent was unemployed for five years before her death and that the surviving husband had a drug conviction.

Plaintiff's motion for new trial was denied.

The Appellate Division simply affirmed based on the long-standing recognition that character is in issue in a death action. The Supreme Court granted certification and reversed.

The Justices held that character evidence is not generally admissible in a wrongful death action on the issues of financial support unless it directly relates to the likelihood or unlikelihood of future financial contributions. Bad character may not have anything to do with the financial contributions a decedent might contribute to a family. Bad people do support their families. There may be situations where the life circumstances involving the decedent's character may be relevant, such as "if a decedent had not worked for many years, or was serving a long jail sentence" because "each of these factors bear directly on what contributions the decedent might make."

Character evidence is also not admissible on "advice, guidance and counsel damages" as "bearing on the high or low quality of the decedent and hence of the advice to be rendered." Again, if the factor bears directly on the likelihood that the benefit would have been rendered, the evidence may be relevant. This might include the fact that a parent was not involved in the child's life or a criminal conviction that bore directly on the family relationship like a crime by a parent against a child. "What is not admissible is general character evidence offered to prove that a decent was lazy, had loose morals or was otherwise a person of bad character and would give bad advice." The "polestar" is the relevance the evidence has to the relationship of the parties and the likelihood that the advice, guidance and training would be contributed in the future.

The Court referred the matter to the Civil Jury Charge Committee to change the charge accordingly. The opinion also instructs trial courts to consider bifurcating wrongful death cases if character evidence is admitted and may have the potential to undermine fair consideration of the liability issues.

The Justices did not believe the welfare fraud conviction had a direct bearing on the relationship she had with her family and it should not have gotten into evidence. The Court also believed that the evidence had the capacity to taint the liability verdict and ordered a new trial. This decision marks a change in established practice. The ruling requires lawyer and judges to draw fine lines. It remains to be seen how well lawyers and trial courts can execute these instructions.

Bird Flu

Wild things go on in employment cases. To the casual observer, it appears that the Rules of Evidence are suspended at trial while counsel hurl everything but the kitchen sink at each other to prove that the other side is worse. The problem with these "street fights" is that they may lead to a breakdown in the standards governing the admissibility of evidence that could spill over to conventional practice. A great example of this danger is Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286 (2006), where it appears that controls on the standard of practice have been diminished. This case may impact how all civil cases are tried.

Plaintiff alleged in her lawsuit against her former employer that she was the victim of sexual harassment and retaliatory discharge. The lurid details read like a script from "The Jerry Springer Show." Plaintiff obtained a verdict and defendant appealed, challenging two major ruling by the trial court.

Plaintiff claimed that she was afflicted with chronic fatigue syndrome and depressive disorder caused by the defendant's bad behavior and retained psychiatrists as experts. Defendant also had an expert psychiatrist who concluded that plaintiff was not suffering from any disorder caused by her past employment. One of the plaintiff's experts changed his mind in deposition after reviewing additional materials and came to the conclusion that plaintiff may be a malingerer. The expert changed sides. The record is silent regarding how the defense secured the witness' cooperation to testify. Defense counsel attempted to call this expert at trial. No doubt, the employer's lawyer wanted to spin the tale of the expert's metamorphosis from spokesman for the dark side to advocate for truth and justice once he had seen the light. Plaintiff's counsel objected and the trial judge refused to allow it. The ruling was affirmed by the appellate court. The precedent that prohibits this gambit is well established. Graham v. Gielchinsky, 126 N.J. 361 (1991); Deffer v. Shop-Rite Supermarkets, Inc, 332 N.J. Super 540 (App. Div. 2000). It is a bedrock principle that you cannot call the opponent's expert to offer opinions in your case absent exceptional circumstances.

Unfortunately, this precedent counted for little with the Supreme Court in Fitzgerald. It held "that access to the testifying witness is allowed and the adversary may produce a willing expert at trial." The rationale for the radical change was the proposition that "no party to litigation has anything resembling a proprietary right to any witness' evidence." The party does not have to show "exceptional circumstances" before pulling the trigger on this sharp tactic.

The Justices do provide some prophylactic measures to soften the blow. A lawyer may not use the opponent's expert if he is unwilling to cooperate. The Court also prohibits the lawyer calling the former plaintiff's expert from revealing that the expert used to play for the other side. However, be prepared for the caveat. "The restriction is not absolute." How so? "[T]hat rule will not apply where the original retaining party opens the door, for example, by challenging the qualifications of the expert. In such circumstances, inquiry into the original retention may be necessary because that party will have placed the prior engagement in issue." So, when your former expert goes through voir dire, you had better stipulate to his credentials or else. And, don't dare challenge the witness's credibility. This may "open the door" as well. How can the spurned attorney conduct an adequate cross examination without opening the door when his name is all over the expert's file and he provided the material the expert relied on? The proverbial door opens as soon as the cross-examiner stands up and clears this throat and the adversary knows it. But have no fear. If the expert's change of sides comes out, the trial judge is instructed to give a cautionary instruction "to the effect that the change of side, in itself, is no reflection on the adverse party." Nothing like a little salve on an open wound to make things all better.

It is hard to comprehend why experienced jurists would cast aside a rule designed to protect the integrity of the practice. The first problem that the opinion does not discuss is how does the party recruit the opponent's expert? The record is silent on how the defense counsel was able to secure the cooperation of the expert. Remember, if the expert doesn't agree to this, you can't call him. Did the expert call the lawyer? Did the lawyer solicit his adversary's expert? Is it now open season for lawyers to recruit the other side's expert?

The work-product privilege is supposed to protect the initial phase of the interaction between lawyer and expert where strategies and ideas are discussed. The recent amendment to R. 4:10-2(d)(1) providing a "safe harbor" for communications between the lawyer and the expert was an explicit recognition that the relationship between expert and lawyer was a demilitarized zone off-limits to incursions from the enemy. What happens now? Does the expert's new employer get unfettered access to privileged materials and the draft reports?

If all a party gets is the opportunity to call a witness that parrots what his own expert is saying, why do it? The defense lawyer in Fitzgerald had experts. There are lots of reasons. Does anyone doubt that the newly enlisted mole can wreak havoc on the other side's case simply by revealing everything he knows to the eager, new attorney? What the raider really gets is an opportunity to sit down with the expert in the confines of his conference room and figure out how to undermine the opponent's case. After all, there is nothing in the Fitzgerald opinion that prohibits this.

It may be that the old lawyer knows a few things he can use in cross-examination that can minimize the damage done by the expert. But isn't that opening the door? Many experts require attorneys to sign retainer agreements today. Every lawyer better make sure that it contains a clause prohibiting the expert from casting his lot with the opponent.

The Fitzgerald opinion goes on to dismantle established taboos against opinion and reputation testimony in civil cases. Defendant wanted to produce trial testimony from a number of plaintiff's former co-workers to demonstrate that she: "was an habitual liar," exaggerated her background and abilities, made up stories about her career aspirations and tells whoppers about meeting a professional football player when she really didn't. All of these disparaging observations were going to be offered to discredit plaintiff's credibility. R. Evid. 607. The trial judge would have none of this nonsense and barred the testimony under R. Evid. 608: "a trait of character cannot be proved by specific instances of conduct."

Defense counsel then sought to use the same witnesses to offer the opinion that plaintiff was not truthful, R. Evid. 701, and had a poor reputation for truthfulness without getting into the specific incidents. R. Evid. 803(c) 21. The trial judge correctly observed that "such testimony would necessarily lead back to the specific instances of conduct and result in the issue going round and round" and barred it. The Appellate Division approved of the trial judge's careful analysis of the defendant's offer of proof and affirmed the ruling.

Unfortunately, the Supreme Court took a different view. Those "wild and crazy jurists" held that "defendants should have been permitted to present both opinion and reputation testimony regarding plaintiff's truthfulness without reference to specific instances of conduct."

All you have to do to get the opinion evidence on a witness's bad character for truthfulness admitted is to show that "it is founded upon the character witness' perceptions of the prior witness and will assist the jury in determining the fact in issue." The foundation for reputation evidence is a cinch. Just establish that "the subject and the witness are from the same relevant community and there is an expressed community opinion regarding a trait of the subject's character."

Opinion and reputation evidence is a creature of criminal trials and is completely foreign to the civil practice. Take a typical scenario. Plaintiff testifies in a damage trial that she has certain physical complaints caused by her injuries supported by expert medical evidence. The defense lawyer attempts to undermine the credibility of the plaintiff on cross-examination by demonstrating that the complaints are exaggerated and this defense is supported by a defense medical expert that testifies there are no objective findings to support the claim. Can you imagine the defense lawyer calling the plaintiff's friends and neighbors to testify that the plaintiff is not truthful and that this is a consensus shared in the community? Perhaps the plaintiff in a red light, green light case can bolster his position by calling the defendant's associates to testify that he isn't truthful. A literal reading of Fitzgerald gives these methods carte blanche.

This ruling fails to show any sensitivity to the impact this kind of testimony will have on a civil trial. All experienced trial judges have developed a sniff test deployed to screen out testimony of dubious merit. The trial judge in Fitzgerald did a good job of applying it. The Appellate Division deferred. Experienced trial lawyers have become extremely adept at impugning a witness' credibility by using conventional techniques of cross-examination. There is no need to resort to opinion and reputation evidence to accomplish this task.

Does the Supreme Court have any sense of the time and energy that trial courts may have to devote to these side shows? Can you imagine how ridiculous and time consuming the examination and cross-examination of these witnesses will be? You know that the other party will have to counter with his own "character" witnesses to respond, R. Evid. 608. And on and on. Hopefully, trial judges will come armed with R. Evid. 403, exclusion of relevant evidence on grounds of prejudice, confusion or waste of time, to prevent this poor practice from becoming widespread.

Ultimately, the guardians of the civil justice system need to safeguard the trial process from deviating from its central mission to provide a fair, well-controlled process to allow juries to make rational decisions about disputes. Gamesmanship and open-ended side shows cheapen and disrupt trials. One can only hope that this ruling in an employment case will not become a virulent virus that infects the body politic.

Asbestos Work Site Liability

The bankrupt asbestos industry is no longer able to provide adequate compensation to workers injured by their defective products. Plaintiffs have attempted to fashion new theories of liability against different defendants.

Many construction trades were exposed to asbestos while working at large refineries, powerhouses and factories. Many years ago, plaintiffs attempted to pursue worksite defendants for failing to protect workers from the hazards of asbestos exposure at these kinds of industrial premises, but the trial and appellate courts were not hospitable to expanding liability to these defendants. This may change after the Supreme Court's decision in an asbestos wrongful death case, Olivio v. Owens Illinois, Inc., 186 N.J. 394 (2006).

Decedent was married to a steamfitter/welder and she died of malignant mesothelioma as a consequence of laundering her husband's clothing contaminated with asbestos fiber that the worker brought home. During his career, the union worker was sent out to various work sites including an Exxon refinery where he was exposed to asbestos on its pipes and equipment. The worker was diagnosed with asbestosis.

There were over 30 defendants in the Olivio lawsuit, including sellers of asbestos products and some of the work sites where the tradesman worked, such as Exxon Mobil. Plaintiff contended that the property owners failed to provide him with a safe place to work and were negligent for allowing him to leave the premises with asbestos-laden clothing. All of the defendants settled except for Exxon Mobil.

The trial court dismissed the case against Exxon Mobil on grounds that the defendant did not have a legal duty toward a plaintiff that never came upon its premises. The appellate court reversed because the judges believed it was foreseeable that a housewife would be harmed by asbestos brought home on her husband's work clothes from the refinery. The court imposed a duty on Exxon Mobile because it could have "easily informed plaintiff of the risks to his own health and the health of his wife and/or provided changing rooms so as to limit exposure to asbestos." 377 N.J. Super 286 (App Div. 2005). The Supreme Court granted Exxon Mobile's petition for certification.

The Supreme Court concluded that it was foreseeable to the defendant that a worker at the refinery would bring home asbestos on his clothing and expose his wife. The record documented information available to the petroleum industry many years ago about the dangers of asbestos and the precautions that should be taken before a worker left the premises with work clothes soiled by toxic materials. However, the Justices did not believe this ended the inquiry. Defendant argued that it did not have a legal duty to the worker because asbestos exposure was part of or incidental to the very work his employee was hired to perform. According to Exxon, if there is no duty to the worker, there is no duty toward the members of his household.

The Supreme Court accepted the defendant's position that the resolution of the potential liability for the housewife's death hinged on whether the defendant had a duty to the worker. The Justices were unable to decide this issue because the factual record from the trial court was not sufficiently developed. The case was remanded. The Court believed a hearing was required to determine the scope of plaintiff's work at the refinery, whether asbestos exposure was a known risk incidental to the specific work the steamfitter was hired to perform and whether Exxon controlled the work of the contractor on its premises in order to make a determination on duty. Evidence also had to be adduced on whether Exxon gave sufficient information to the contractor about the dangers of asbestos to determine if a duty was violated.

Stay tuned. This remand is fraught with risk for Exxon. An adverse outcome will open the doors to many claims in New Jersey against this refinery owner and many other owners of large industrial premises where workers were exposed to asbestos.

Insurance on the Hook

Under the "initial permission" rule, "if a person is allowed to use a motor vehicle in the first instance, any subsequent use, short of theft, while it remains in the driver's possession, even if not in the contemplation of the parties, is a permissive use within the terms of the omnibus clause." Matits v. Nationwide Mutual Ins. Co., 33 N.J. 488 (1960). Case law is replete with examples of drivers going on "frolics and detours" with an owner's vehicle, getting into accidents and injuring someone, and receiving the benefits of the owner's liability policy. This drives carriers wild.

The fact pattern in Proformence Insurance Co. v. Jones, 185 N.J. 406 (2005), is typical. The owner of a pick-up truck lent the vehicle from time to time to a relative with the caveat that it not be used in his furniture delivery business. "Good old Henry" didn't let the owner's admonition dissuade him. He gave the vehicle to an employee for a move. The driver fell asleep at the wheel and crashed the vehicle into a pedestrian.

The injured party's lawsuit was consolidated with the liability carrier's declaratory judgment action seeking to wriggle off the hook on coverage. The carrier attempted to persuade the courts that they should not have to provide coverage to the miscreant because he was using the vehicle to move furniture without permission. This argument went nowhere. Once you give the vehicle to someone, your carrier provides liability coverage come "hell or high water." Mattis, N.J. Super 373, 381 (App. Div. 1960).

Proformence came up with a more ingenious argument. The liability policy contained a "business pursuits exclusion," which prohibits use of the vehicle in a commercial enterprise. The carrier sought to avoid coverage due to Henry's violation of the BPE. Does this trump the Initial Permission Doctrine? The trial court, the appellate court and the Supreme Court said no. Each court cited the long-established proposition that "a policy provision that conflicts with statutorily mandated coverage will not be enforced."

However, the Supreme Court rewarded the appellant's imaginative argument by reading into the policy the minimum statutory coverage of $15,000 instead of the stated policy limits of $100,000. This radical surgery was performed by the Court because of the blatant violation of the BPE and the Justices' determination that the injured party's only reasonable expectation was that the driver had the statutorily-mandated limits. What the Court giveth, the Court taketh away.

PLIGA

The New Jersey Property-Liability Insurance Guaranty Association Act, N.J.S.A. 17:30A-1-20, provides a safety net for liability insurance policyholders when the carriers become insolvent. The statutory policy limit of $300,000 is not adequate in this day and age where million-dollar limits and umbrella policies are common place. What happens when a liability policy holder with million-dollar limits is relegated to the PLIGA limits when his carrier becomes insolvent? Is the plaintiff limited to a recovery of $300,000? Is the policy holder personally liable for a higher verdict? The statute is silent on the issue. The answers to these questions became critical as one of New Jersey's major medical malpractice carriers teeters on the edge.

The Supreme Court advised tort defendants insured by insolvent carriers that they are personally responsible for verdicts in excess of $300,000 in Johnson v. Braddy and Walsh Trucking, 186 N.J. 40 (2006). The trucking company protected itself with a liability policy with $1 million in coverage and an umbrella policy of $25 million. When the company's driver struck a parked truck, injuring the driver, it had every reason to believe it was adequately protected until the primary liability carrier became insolvent. This left the trucking company holding the bag for $700,000. This was not an academic concern. The victim suffered serious injuries, including a partially amputated leg.

Plaintiff instituted his lawsuit against the driver and the trucking company after the carrier became insolvent. The case was dismissed to allow plaintiff to obtain his UM benefit of $300,000. Once this was accomplished, plaintiff reinstated his complaint. Defendant moved for summary judgment, seeking to dismiss the complaint on grounds that the trucking company could not be personally liable for any judgment in excess of $300,000, which plaintiff received from his own policy. Plaintiff opposed the motion, arguing that the policy holder remains personally responsible for judgments in excess of the statutory limit. Both the trial court and the appellate court held that the defendant remained personally responsible for any verdict in excess of that amount due to the absence of any provision in the statute capping the plaintiff's recovery. 367 N.J. Super 565 (App. Div. 2005). The Supreme Court granted defendant's leave to appeal joined in by amicus for the New Jersey Hospital Association and the Medical Society of New Jersey.

The New Jersey Supreme Court unanimously affirmed the lower courts because the PLIGA statute does not specifically provide policyholders with a cap. The Court called on the Legislature to provide "for such remedial action as it deems appropriate."

The PLIGA statute provides that the Guaranty Association is entitled to a set-off for any benefits that the injured plaintiff is entitled to receive from another source. In the Johnson case discussed above, plaintiff did not receive any payment from the fund because he collected $300,000 from his UM carrier. The fund has taken the position that it is entitled to a set-off any time a plaintiff receives a payment from any solvent liability carrier. Plaintiffs have opposed this position, contending that PLIGA benefits are available any time a liability carrier has become insolvent and the plaintiff is not made whole. Plaintiff contends that the Guaranty Association is only entitled to a credit for moneys paid by insurance proceeds payable as a direct result of the insolvency of the insurer, like UM.

The Supreme Court weighed in on this issue in Thomsen v. Mercer Charles, 187 N.J. 197 (2006), and sided with plaintiffs. Plaintiff was rendered quadriplegic in an accident while being transported in a van owned and operated by defendant Mercer-Charles. Another passenger in the van was killed in the accident. The defendant had one liability policy for $1 million with Reliance and another $1 million policy with Philadelphia Insurance Company. (PIC) The parties agreed to a settlement for the proceeds of both policies. The carriers were required to deposit their money with the court pending an allocation hearing. Reliance became insolvent before it kept its end of the bargain. The Guaranty Association intervened in the action to assume any potential claims against Reliance. The Association filed a motion to obtain an Order declaring that its $300,000 per claim obligation should be reduced by any amount plaintiff received from PIC. The parties stipulated that the value of the plaintiff's claim exceeded $2 million.

The Association's motion was denied. The trial court ruled that "when a person is injured in an accident for which there is liability coverage under two primary insurance policies, one of which becomes uncollectible due to the insolvency of the issuing company, any payment made by a solvent carrier would be applied to an inured claimants total amount of damages, but would not be used as a setoff." The trial judge executed an Order of Final Judgment in favor of plaintiff in the amount of $1.3 million.

The Appellate Division reversed and remanded for entry of judgment in favor of the Guaranty Fund, eliminating its obligation to pay as it was entitled to a credit for the moneys paid by PIC. 377 N.J. Super. 267 (App. Div. 2005). A dissent by one of the appellate court judges sent the matter up on appeal.

A unanimous opinion authored by Justice Jaynee LaVecchia reversed the appellate court and reinstated the trial court decision:

We therefore hold that when an insured is covered by both a solvent and an insolvent insurer and the solvent insurer has paid the insured an amount exceeding the Act's maximum payment, but which falls short of the insured's total damages, the insured may seek compensation from the Association.

The plaintiff gets the $1.3 million.

IFPA

The legislative purpose of The New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1-30, was to provide government and industry with the tools to aggressively attack fraudulent insurance claims. The statute empowers insurance companies to pursue affirmative claims against perpetrators to recoup their losses, obtain investigation fees, legal costs, counsel fees and treble damages "if the court determines that the defendant has engaged in a pattern of violating the act. 17:33A-7. Relief is available against anyone who files a claim for insurance "knowing that the statement contains any false or misleading information." 17:33A-4 Violations may also include "concealing or knowingly failing to disclose information concerning a person's initial or continued right or entitlement to a benefit, 17A:33A-4(a)(3); presenting any knowing false or misleading statement in an insurance application, 17:33A-4(a)(4)(b); or knowingly assisting, conspiring with, or urging any person to violate any of the act's provisions, 17:33A-4(a)(5)(b). IFPA is a potent weapon in the insurance industry arsenal.

The act is silent on the carrier's burden of proof. Is it a fair preponderance of the believable evidence or by clear and convincing evidence? The only reported case was a Law Division decision, Harleysville Insurance Co. v. Diamond, 359 N.J. Super 34 (Law Div. 2002), that applied the clear and convincing standard of proof.

In Liberty Mutual Insurance Co. v. Land, 186 N.J. 163 (2006), the carrier filed an IFPA suit against an insured and their public adjuster for submitting an inflated and fraudulent property damage claim under the homeowner's policy. Evidence included a neighbor's videotape showing the claimants "enhancing" the damage to the structure. The policy holder requested money for items that were not damaged. The investigation by the plaintiff's adjuster revealed that the claim also contained items from a previous claim that the insured had been paid for, which the insured had not repaired. Liberty Mutual denied the claims but then filed this legal action. The property owners counterclaimed to collect their money and added gasoline to the fire by alleging the carrier's bad faith.

The jury charge required the carrier to prove its case by the clear and convincing standards of proof. A jury concluded that defendants "knowingly misrepresented, concealed, or failed to disclose material facts concerning the loss to plaintiff." The trial judge held a hearing on damages and issued an order for judgment awarding treble damages, investigation costs and counsel fees totaling over $82,000.

When the defendants appealed, the carrier cross-appealed, arguing that its burden of proof in an IPFA action should be a fair preponderance of the believable evidence. The Appellate Division disagreed and held that the trial court applied the right standard. The appellate court reversed the verdict on grounds of the plaintiff's counsel's incendiary summation. The carrier's counsel, usually defending claims, got so excited reaching for the brass ring that he called for the jury to "send a message" and to show their displeasure for high insurance premiums. The insurance company carried its crusade for a reduced burden of proof forward to the Supreme Court after its petition for certification was granted.

In a five-to-two decision, the Court adopted the standard of a fair preponderance of the believable evidence because it believed this reflected the Legislature's intent when it passed the law. Key factors in Justice Zazzali's majority opinion, included the remedial nature of the legislation and the use of the same standard in analogous statutes like the False Claims Act, 31 U.S. C. 3729(a)(2) and New Jersey's Consumer Fraud Act, N.J.S.A. 56:8-1.

Justices Barry Albin and Virginia Long dissented because they believed the draconian penalties in the act required a stricter standard. The most persuasive example to these jurists was the punitive damages statute requiring proof by clear and convincing evidence, N.J.S.A.2A:15-5.9-5.17. The dissenters believed that the courts have the constitutional authority and obligation to create the standard of proof when the statute is silent on the subject.

Excess Liability Insurance

Excess liability policies contain a requirement for insureds or their agents to make timely notification to ensure the carrier can protect its interests in the underlying lawsuit. Policy language generally provides that failure to do so within the applicable time limits can result in forfeiture of the coverage.

The plaintiff in Gazis v. Miller, 186 N.J. 224 (2006), was seriously injured in an accident with a vehicle operated by a parish priest. The Archdiocese had a liability policy with Lumberman's Mutual Casualty with limits of $250,000 that was administered by Kemper National Account Service. An excess "occurrence-based" policy issued by The National Catholic Risk Retention Group Inc. provided additional coverage of $750,000. National reinsured $400,000 with American Re. The National policy had the following notice of claim requirement:

Notification of Claims-[the insured] shall give written notice to the company as soon as practicable but no more than 120 days after receiving notice of any event which gives rise to or may give rise to a covered Loss irrespective of any apparent liability . . . In the event the insured fails to provide such notice, this Policy will not apply to any such injury.

The parties to the insurance contracts agreed that Kemper would be responsible for notifying the excess carrier after an accident.

The driver reported the accident to Kemper on the day after the accident and four months later Kemper was aware that the injured party had a lawyer. Ten months after the accident, Kemper set up a reserve for $275,000. Kemper did not notify the excess carrier until approximately 17 months after the accident. There is no explanation in the record as to why notice was not provided.

With the statute of limitations in hailing distance, plaintiff filed her personal injury complaint approximately six months after National was notified of the claim. The excess carrier denied coverage due to the late notice. The defendants impleaded the excess carrier as a third party defendant. An arbitration award of $1 million was entered. The defendants settled with the plaintiff for $500,000, requiring payment of the underlying policy limits and an assignment of the claim of $250,000 against the excess carrier. Kemper slithered away into the night.

In the ensuing summary judgment motions, the defendant and the plaintiff argued that coverage should be available from the excess carrier as it had not suffered any prejudice from the delayed notification. While the excess carrier's representative submitted a certification outlining the prejudice it suffered from not being able to focus on the claim earlier, the crux of the argument by the excess carrier was that it was entitled to the protection of a clearly written contract provision. The trial court concluded that National was entitled to enforce the notice provision in its contract with its sophisticated partners and dismissed the claim against the excess carrier. The trial court also found that National had not suffered any prejudice from the delayed notification.

The Appellate Division reversed, 378 N.J. Super 59, 60 (App. Div. 2005), on the grounds that the excess carrier could not deny coverage on the "occurrence-based" policy unless it demonstrated that "appreciable prejudice" resulted from the delayed service of the notice of claim. The appellate court relied on the holding in Cooper v. Gov't Employees Ins. Col, 51 N.J. 86 (1968), that an automobile "occurrence-based" policy was still available to an insured who had failed to comply with the notice provisions in the policy because the carrier suffered no "appreciable prejudice" from the delay. The Supreme Court granted National's petition for certification.

Justice LaVecchia, writing for the majority, upheld the appellate court and found that excess coverage remained available to the insured because National failed to demonstrate that it was appreciably prejudiced by the delay. A basis for the decision was the Justices' belief that the notice provision was not material to the coverage purchased by the members of the risk retention group. The Cooper standard now applies to "occurrence based" excess policies. The same standard does not apply to a "claims made" policy "because "an extension of the notice period constitutes an unbargained-for expansion of coverage, gratis, resulting in the insurance company's exposure to a risk substantially broader than that expressly insured against in the policy."

Justice Roberto Rivera-Soto dissented because he did not believe that Cooper should be extended to include reinsurance policies with clearly written notice requirements in contracts executed between sophisticated parties. To the dissenter, the Court's policy concerns did not warrant a significant change in the law when the problem was created by a clear-cut breach of contract by Kemper. Justice Soto believed that his colleagues failed to take note of the appropriate course of relief, which was the tort defendants' breach of contract suit against Kemper. Justice Soto was clearly outraged that Kemper's blatant violation of its fiduciary duty to notify the excess carrier of the claim was ignored by the parties and the other judges. Justice Soto reports that he asked the defendant's counsel at oral argument why they did not institute a breach of contract action against Kemper and counsel could not give a reason. Justice Soto believed that "this case presents a singularly poor candidate for the sweeping rule the majority announces." The jurist concluded his dissent by writing that "the majority overstepped its authority, weakened the import of admittedly unambiguous and clear contractual language, and protected a wrongdoer at the expense of the innocent."

UCJF

The Unsatisfied Claim and Judgment Fund provides compensation for "qualified persons," N.J.S.A. 39:6-62, who are "residents of this State or the owner of a motor vehicle registered in this State or a resident of another state, territory or federal district of the United States or province of Canada or of a foreign country, in which recourse is afforded, to residents of this State of substantially similar character to that provided for by this act." The Fund provides PIP benefits and/or compensation for pain and suffering ($15,000) to accident victims injured by financially irresponsible or unidentified operators of motor vehicles where alternate insurance is not available.

The plaintiff in Caballero v. Martinez, 186 N.J. 548 (2005), an undocumented teenage laborer, came to New Jersey to join family members, work, and send money back home to his family in Mexico. Plaintiff was living with a group of men in a local apartment and working with a computer company. Plaintiff was paid in cash and did not pay taxes. Plaintiff testified that he intended to remain here for five years. Five months after arriving in the Garden State, plaintiff was seriously injured while traveling to work as a passenger in a co-worker's vehicle when the driver lost control. The vehicle was not registered or insured. Plaintiff did not have a license or any kind of insurance. Plaintiff incurred over $38,000 in medical bills and lost over $1,400 in wages. The record does not reflect whether the bills were outstanding or paid. Plaintiff returned to work but had disabilities from his injuries.

Plaintiff instituted an action against the fund to obtain PIP benefits and compensation for his injuries. The claim was dismissed by the trial court on summary judgment because the court concluded that he was not a "qualified person" because he was an undocumented alien that had not formed the requisite intent to establish residency under the statute. 376 N.J. Super 223 (2004). The decision was upheld on appeal. A dissent in the Appellate Division brought the appeal to the Hughes Justice Center.

What do you think the Court did? You're right. Plaintiff wins, 7-0. Justice Zazzali and his colleagues believed that plaintiff's intention to live here, coupled with the presence of his family members and his work record was sufficient to establish that plaintiff was a "resident."

Grayzel is a certified civil trial attorney and a partner with Levinson Axelrod of Edison.

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